On conclusion of trial in case FIR No, 86-2002 dated 18.8.2002, under Sections 302/34 PPC registered at Police Station Headmarala District Sialkot, vide judgment dated 11.12.2003 passed by learned Additional Sessions Judge, Sialkot Muhammad Safdar appellant was convicted under Section 302- B PPC and sentenced to imprisonment for life for committing Qatl-e-Amad of Sanaullah deceased.
He was also directed to pay Rs, 1,00,000/- as compensation under Section 544-A Cr.P.C. to the legal heirs of the deceased or in default of payment of compensation to further undergo S.I. for six months. Benefit of Section 382-B Cr.P.C. was also extended to him. However, through the same judgment, Talawat Hussain and Mehmood Ahmad co-accused of the appellant were acquitted of the charge by extending them benefit of doubt. Muhammad Safdar appellant has challenged his conviction and sentence through Crl. Appeal No, 106-2004 whereas Muhammad Iqbal complainant has filed Crl. Revision No, 12392003 for enhancement of the same. As both arise out of same judgment and similar questions of facts and law are involved, these matters are disposed of through this single judgment.
2. Muhammad Safdar appellant alongwith acquitted accused namely Talawat Hussain and Mahmood Ahmad was sent to face trial for committing Qatl-i-Amd of Sanaullah, which occurrence had taken place on 18.8.2002 at about 2.00 p.m. within the area of Kot Mehraj, Police Station Headmarala District Sialkot, which was reported the same day at 3.15 p.m. by Muhammad Iqbal brother of Sanaullah deceased through statement (Ex. P-L) in the hospital recorded by Muhammad Nawaz Khan, S.I. (PW-13), on the basis of which F.I.R. No, 86 (Ex. PC) was recorded on 18.8.2002 at 4.45 p.m. by Muhammad Nawaz (PW-6) at Police Station Headmarala District Sialkot.
3. Succinctly the facts of the prosecution case are that on 18.6.2002 at about 2.00 p.m. in the area of Kot Mehraj, Muhammad Iqbal complainant alongwith Muhammad Aslam son of Barkat Ali, Mohsan Hassan son of Sanaullah, Mst. Musarrat wife of Sanaullah, Parveen Akthar his wife was present in the adjacent dera of their property while Sanaullah (deceased) the real brother of the complainant was ploughing in the fields of Muhammad Farooq the son of his sister. Then Talawat Hussain, Ahmad, Hussain, Safdar (appellant) sons of Nabi Ahmad and Mehmood Ahmad, son of Ghanay Khan all residents of Chak Ikhtiar while armed with pistols came there and raised lalkara. On seeing them Sanaullah stopped his tractor and alighted therefrom. Talawat Hussain raised lalkara to catch hold of Sanaullah and teach him a lesson to cultivate their agricultural land. Then he made a fire at Sanaullah hitting on the front side of his forehead who fell down. Thereafter, Ahmad Hassan fired with his pistol which landed on the front side of his forehead. Then Safdar Hussain made fire hitting on the right knee of Sanaullah and that of Mehmood hit Sanaullah on the front side of his forehead. Meanwhile, Muhammad Aslam, Mohsan Hassan, Musarrat Bibi and Parveen also came nearer. Within their view all the accused fired with their respective weapons hitting Sanaullah on the different parts of the body. On the hue and cry of the complainant as well as the PWs many people gathered there, who rescued them from the assailants. All the accused fled away from the place of occurrence while raising lalkara. Then complainant accompanied by Muhammad Aslam and Mohsan Hussain had shifted Sanaullah to Hospital in injured condition but he succumbed to the injuries in the way to hospital.
The motive behind the case was alleged that 10 years ago Umer Farooq the real son of daughter of complainant had purchased an agricultural land measuring 18 kanals from Pir Mehndi r/o Jhelum which the complainant party obtained from said Umer Farooq for cultivation and since then the same was in their possession. Talawat acquitted accused also purchased agricultural land from Pir Mehndi from the same Khata 4 years ago, but he claimed his ownership over the property earlier purchased by Umer Farooq in spite of that through the demarcation it fell in the ownership of Umer Farooq. According to the complainant Talawat Hussain etc. in order to take possession of the agricultural land forcibly and illegally had committed this occurrence while interim injunction was already issued in favour of Umer Farooq by a competent Court regarding the same property.
4. Muhammad Nawaz Khan S.I. (PW-13) after receiving the information of the occurrence went to the Civil Hospital, Sialkot where he recorded the statement (Ex. PL) of the complainant and after sending the complaint for registration of the case he prepared the injury statement (Ex. PJ) and inquest Report Ex. P.K. of the deceased. Thereafter, he sent the dead body of the deceased to mortuary for autopsy through Muhammad Idress. Then he went to the place, of occurrence, prepared the site-plan Ex. PP and also took into possession blood-stained earth vide recovery memo Ex. P.A.
5. Subsequently, the investigation was taken by Ghulam Akbar Inspector, the then S.H.O., who got prepared the site-plan. On 15.9.2001, he arrested Safdar Hussain, Mahmood and Talawat Hussain.
On 24.9.2002 Muhammad Safdar appellant led to the recovery of pistol .30 bore P. 3, alongwith five bullets P.5/1-5 from Chowk Chhanni bangla behind the mosque which was taken into possession by him vide recovery memo Ex. P.E.
6. After completion of the investigation report under Section 173 Cr.P.C. was submitted in the Court and copies required under Section 265-C Cr.P.C. were supplied to the appellants and charge was framed which was denied by them and the prosecution in order to prove the guilt of the appellant and his co-accused produced as many as 14 witnesses.
7. PW-1 to PW-6 and PW-8 are formal witnesses. PW-7 Muhammad Nawaz is the recovery witness while postmortem examination was conducted by Dr. Rana Muhammad Ilyas (PW-9). The ocular account has been furnished by Muhammad Iqbal, complainant, (PW-11) and Musarrat Bibi (PW-12).
However, Muhammad Nawaz Khan, S.I. (PW-13) and Ghulam Akbar Inspector (PW-14) had conducted the investigation.
8. After close of the prosecution evidence, the appellant and his co-accused got recorded their statements under Section 342 Cr.P.C. in which they professed their innocence and on a question that "why this case against yqu and why the PWs deposed against you" Muhammad Safdar appellant stated that he has been falsely implicated in this case being brother of Talawat Hussain.
9. After hearing the arguments of learned counsel for the parties, the learned trial Court had passed the impugned judgment of conviction and sentence which is being assailed through these matters.
10. Learned counsel for the appellant contends that Muhammad Iqbal, complainant (PW-11) is real brother of the deceased while Mst. Musarrat Bibi is widow of the deceased who being related inter se and with the deceased closely were interested witnesses and cannot be relied upon. It is next contended that previous litigation regarding possession of land was pending between the parties and they were interested witnesses, who have also made dishonest improvements at the trial to bring the medical evidence in line with the ocular account and they are not worthy of reliance; that both the eye-witnesses had not seen the occurrence and they were wrongly cited as eye- witnesses being close relatives; that the F.I.R. was lodged after consultation and due deliberation while conducting preliminary investigation, otherwise it was an unseen occurrence. It is also contended that on the basis of the same evidence Talawat Hussain and Mahmood Ahmad co- accused have been acquitted and the appellant could not be convicted on the basis of same evidence without any independent corroboration which is lacking in the present case. It is next contended that motive was also not proved which even otherwise is always a double edged weapon and the recovery of weapon of offence from the appellant was of no use to the prosecution as no empty was recovered from the spot, hence, the impugned judgment of conviction and sentence may be set aside.
11. Conversely, learned counsel for the complainant opposes this appeal on the ground that to the extent of the appellant medical evidence was in line with the ocular account and the said injury is born out from the post-mortem examination report and was clearly mentioned in the F.I.R. Hence, case of the appellant is distinguishable from the case of the acquitted accused and his conviction is liable to be maintained. It is further contended that the motive was proved and the prosecution has stood on its own legs.
12. I have heard the learned counsel for the parties and also perused the record with due care and caution.
13. The ocular account was furnished by Muhammad Iqbal (PW-11) who is complainant and claims that he got recorded his statement under Section 154 Cr.P.C. at 3.15 p.m. in Civil Hospital, Sialkot for an occurrence which had taken place on 18.8.2002 at about 2.00 p.m. In the F.I.R. PW-11 Muhammad Iqbal clearly got mentioned that three, fire made by Talawat Hussain, Ahmad Hassan and Mahmood Ahmad had hit Sanaullah on the front of forehead but in the post-mortem examination report it was found that the injuries on the forehead were caused by blunt edged weapon and in order to bring the ocular account in line with the medical evidence, they had made improvements at the trial while changing their versions regarding firing made by the said three accused. They were attributed injuries on the back of left thigh, right thigh below buttock and on the inner side of left knee besides alleging that all the accused had also caused injuries with the 'butts' of their weapons to cover up the injuries of blunt weapon, found during postmortem examination. While pointing out the said improvements, the ocular account to the extent of the co-accused was not relied upon by the learned trial Court and they were acquitted. The complainant filed Criminal Appeal No, 2313-2003 against their acquittal which was dismissed by this Court on 7.4.2004, which order has attained finality having not been assailed any further. When the ocular account has not been relied upon to the extent of the acquitted accused, whether the same can be relied upon to the extent of the appellant is an important question.
14. In the present case the appellant was attributed injury with firearm on the right knee of the deceased which no doubt is born out from the record and the PWs had made consistent statement in his regard both in their statements made before the police and at the trial. The August Supreme Court of Pakistan in a case reported in 1995 SCM R 599, (Ata Muhammad and another Versus The State), has held that "The ocular evidence may be -classified into three categories--Firstly, wholly reliable; secondly', wholly unreliable; and thirdly, partly reliable and partly unreliable. In first category conviction may safely be sustained on uncorroborated testimony. In the second category, even strongest corroborative evidence may not rehabilitate such evidence. In the third category, conviction cannot be recorded unless such evidence is corroborated by oral or circumstantial evidence coming from distinct source."
15. The question of relying upon the ocular account in the present case has been considered in the light of the above criteria laid down by the August Supreme Court of Pakistan. In the present case evidence of the eyewitnesses was not wholly reliable, which has already been disbelieved to the extent of the acquitted accused by the learned trial Court. Both the acquitted accused alongwith Mahmood Ahmad (P.O.) and Muhammad Safdar appellant were alleged to be armed with same weapon of offence, i,e, pistol. They were attributed one fire each on the different parts of deceased.
According to post-mortem report. Sanaullah deceased received 10 injuries, three with blunt weapon on the forehead, four with fire-arm on the back of left thigh, right thigh, left knee and right knee and three were exit wounds. Three injuries on the forehead were specifically attributed to the co-accused to have been caused with fire-arm in the F.I.R., which version was in conflict with the medical evidence. Moreover, three injuries with fire-arm attributed to the co-accused at the trial were not mentioned in the F.I.R. It clearly suggests, that the complainant and the witnesses were not present at the time of occurrence, otherwise such type of conflicts could not occur in their statements. The case of the appellant cannot be distinguished from the acquitted accused merely for the reason that the witnesses made consistent statements regarding the injury attributed to him, which was on the left knee. In view of improvements made by the PWs regarding the seat of injuries attributed to the co-accused it cannot be believed that they had made true version to the extent of the appellant as well. However, if for the sake of arguments, it is considered that the ocular account was partly reliable to the extent of the appellant, then it needs corroboration by oral or circumstantial evidence coming from distract source, which is lacking in the present case.
The Hon'ble Supreme Court has declared the maxim for corroboration in Ata Muhammad's case (supra), which is reproduced as under: "We know by our experience that time of recording of F.I.R. is not always genuine. The police, after learning about the commission of the crime keeps the space in the daily diary (Roznamcha) and a page in the F.I.R. Register blank for incorporating therein the gist of the information, the factum of registration of the case and the detailed report subsequently, in the light of preliminary investigation made by it. Furthermore, in this case the F.I.R. was lodged by Bati eyewitnesses himself. so, his previous statement recorded in the F.I.R. does not come from any distinct source. It is well settled that a witness cannot corroborate himself by repeating the version before different persons on different occasions. The evidence at the trial cannot be corroborated or reinforced by proving that the witness had made a similar statement to a third party on a previous occasion.
Mere repetition of a story will not give it any force or prove its truth."
16. The alleged recovery of pistol from the appellant does not provide any corroboration as no empty was recovered from the spot and only report of the Forensic Science Laboratory (Ex. P-T) that the weapon recovered from the appellant was in working condition is not sufficient to hold that the said weapon was used in the incident.
17. Similarly, medical evidence can only suggest that type of weapon was used in the incident but it cannot be considered as corroborative piece of evidence for maintaining the conviction of the appellant. In the present case four accused were attributed one fire-arm injury each with the same type of weapon, as such it cannot be said with certainty that who had caused which injury. Apart from the above improvements the conduct of both the eye-witnesses during the occurrence for taking no steps to rescue the deceased or to raise any hue and cry also creates doubt regarding their presence at the spot. It is worth mentioning to point out here that PW-11 Muhammad Iqbal when appeared in the Court was in handcuffs and he admitted during the cross-examination that he had been convicted in the murder case of his maternal cousin over the dispute of piece of land.
Brother of the witnesses was also convicted in such case. After perusal of their statements, PW-11 Muhammad Iqbal and PW-12 Musarrat Bibi are not found to be reliable for maintaining conviction in a case of capital punishment.
18. So far as motive is concerned, PW-10 Muhammad Ismail Patwari who prepared the site-plan has admitted during cross-examination that Khasra Nos, 337, 357 and 358 were owned by Umer Faqoor and Talawat Hussain co-accused in (1/2) share and present cultivation was in their names.
According to him, till the occurrence, no demarcation was made of the said Khasras. As such it cannot be said that prosecution was able to prove the motive which even otherwise was attributed to the acquitted accused.
19. For the foregoing discussion, I am satisfied that the prosecution has not been able to prove its case against Muhammad Safdar appellant as well through any cogent piece of evidence. Hence this appeal is accepted, the impugned judgment of conviction and sentence is set aside and Muhammad Safdar appellant is also acquitted of the charge by extending him the benefit of doubt. He shall be released from jail forthwith, if is not required in any other case.