' ASIF SAEED KHAN KHOSA, J.-Abdul Rehman alias Abdul appellant was convicted for an offence under section 302(b), P.P.C, vide judgment dated 20-1-2001 rendered by the learned Sessions Judge, Hafizabad and was sentenced to death as Ta'zir and to pay a sum of Rs,50,000 to the heirs of Munir Ahmad deceased by way of compensation under section 544-A, Cr.P.C, or in default of payment thereof to undergo rigorous imprisonment for six months. Through the same judgment a co-accused of the appellant namely Muhammad Yaqoob had been acquitted by the learned trial Court. The appellant has challenged his conviction and sentence before this Court through the present appeal which has been heard by us along with Murder Reference No,214 of 2001 seeking confirmation of the sentence of death passed by the learned trial Court against the appellant. We propose to decide both these matters together through the present consolidated judgment.
2. According to the prosecution's case detailed in the F.I.R. Hanif Ahmad complainant was a labourer by profession and at about 7-30 p.m. On 8-8-1998 he and his brother namely Munir Ahmad had gone to the house of Yar Muhammad at his Dera Cheemida in village Dharian situated within the area of Police Station Jalalpur Bhattian, District Hafizabad and from there they had gone to the house of Mehram in order to negotiate for return of the wife of Munir Ahmad namely Mst.
Jannat Bibi who had gone to the house of her parents on account of estrangement with her husband. At the house of Mehram an altercation had developed between the parties during the negotiations but the parties had been separated by others and the complainant and his brother namely Munir Ahmad had returned to the house of Yar Muhammad. At that time the said Yar Muhammad and his son namely Muhammad Yaqoob were also present at the house of Yar Muhammad. After a short while Abdul Rehman alias Abdul appellant and Muhammad Yaqoob accused, both armed with hatchets, came to the house of Yar Muhammad and proclaimed that the complainant party had been cruel to the above mentioned lady and that they had come to avenge that cruelty. Thereafter the appellant and his co-accused gave one blow each with their hatchets which blows landed on the head of Munir Ahmad who became unconscious upon receipt of those injuries. The appellant and his co-accused then ran away from the spot. Munir ahmad was removed in an injured condition to Civil Hospital, Jalalpur Bhattian for medical treatment by the complainant and Yar Muhammad, Muhammad Yaqoob and Khadim Cheema but when he was being treated by a doctor he succumbed to his injuries and died in the hospital. Upon receipt of information about the above mentioned occurrence the local police reached Civil Hospital, Jalalpur Bhattian on its own and at 8-15 a.m. On 9-8-1998 it recorded a statement of Hanif Ahmad complainant in respect of the said incident. On the basis of that statement of the complainant formal F.I.R. No,249 was subsequently registered at Police Station Jalalpur Bhattian, District Hafizabad at 8-30 a.m. On 9-8-1998 for an offence under section 302, P.P.C, read with section 34, P.P.C.
3. The investigation of this case was conducted by Saeed Abid, A.S.-I. (P.W.7) and Muhammad Saleem, Inspector (P.W.8). During the investigation an injury statement and an inquest report were prepared, the dead body was dispatched to the mortuary for autopsy, the place of occurrence was inspected, blood-stained earth was secured, a rough site-plan of the place of occurrence was prepared and the statements of witnesses were recorded. After the postmortem examination of the dead body the last-worn clothes of the deceased were secured and later on a formal site-plan of the place of occurrence was got prepared, the appellant and his co-accused were arrested and a hatchet was recovered from the appellant's possession. Upon completion of the investigation a challan was prepared and submitted in connection with this case.
4. At the commencement of the trial the learned trial Court framed a charge with one head under section 302, P.P.C, read with section 34, P.P.C, against the appellant and his co-accused to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced ten witnesses in support of its- case against the appellant and his co- accused Hanif Ahmad complainant (P.W.4) and Yar Muhammad (P.W.5) furnished the ocular account of the incident in question and they also deposed about the motive.
Yar Muhammad (P.W.5) also stated about recovery, of a blood-stained hatchet from the appellant's possession during the investigation of this case. The medical evidence was provided by Dr. Shaukat Ali Wahla (P.W.9). Saeed Abid, A.S.-I. (P.W.7) and Muhammad Saleem, Inspector (P.W.8) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature.
6. In their statements recorded under section 342, Cr.P.C, the appellant and his co-accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They, however, opted not to make statements on oath under section 340(2), Cr.P.C, and did not produce any witness in their defence.
7. Upon conclusion of the trial the learned trial Court acquitted the appellant's co-accused namely Muhammad Yaqoob but after finding the prosecution's case against the appellant to have been proved beyond reasonable doubt it convicted and sentenced him as mentioned and detailed above. Hence, the present appeal and the connected murder reference before this Court.
8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that both the eye-witnesses produced by the prosecution had made discrepant statement and they had failed to receive any independent corroboration or support. It has, thus, been canvassed failed to prove its case against the appellant beyond reasonable doubt and, therefore, he is entitled to be acquitted by this Court. As against that the learned counsel for the , State has maintained that the prosecution had succeeded in establishing its case against the appellant beyond reasonable doubt and, thus, his conviction and sentence recorded by the learned trial Court do not warrant any interference by this Court.
9. After hearing the learned counsel for the parties and going through the record of this case with their assistance we have straightaway observed that the F.I.R, in this case had been lodged with a noticeable delay and as a matter of fact none belonging to the complainant party had gone to report the matter to the police and the F.I.R, had been registered when the police had reached the relevant hospital on its own after receiving an information about the present occurrence from an undisclosed source. The occurrence in this case had taken place at about 7-30 p.m. On 8-8-1998 and an F.I.R, in that regard had been registered at 8-15 p.m. On 9-8-1998 at a hospital but the post- mortem examination of the dead body had, been conducted at 1-00 p.m. On 9-8-1998. Such a delay in conducting post-mortem examination of a dead body was generally suggestive of time having been consumed by the complainant party and the police in procuring and planting eye- witnesses and in cooking up a story of the prosecution before preparation of the necessary papers for purpose of getting post-mortem examination of the dead body conducted. In these circumstances we have put ourselves to caution regarding veracity of the eyewitnesses produced by the prosecution.
10. The ocular account was furnished in this case by Hanif Ahmad complainant (P.W.4) and Yar Muhammad (P.W.5). Hanif Ahmad complainant (P.W.4) was a real brother of Munir Ahmad deceased and he was surely a chance witness. It had been maintained by the complainant that he and his brother namely Munir Ahmad deceased had gone to the relevant village to negotiate for return of the estranged wife of Munir Ahmad deceased but after an abortive attempt in that regard at the house of Mehram they had returned to the house of Yar Muhammad(P,W.5) and then it was in the house of Yar Muhammad (P.W.5) that the present occurrence had taken place. Hanif Ahmad complainant (P.W.4) had maintained that Abdul Rehman alias Abdul appellant lived in the house of the above mentioned Mehram and that the negotiations for return of Munir Ahmad deceased's wife had taken place in the house of the said Mehram. As against Yar Muhammad (P.W.5) had maintained that Hanif Ahmad complainant (P.W.4), Munir Ahmad deceased and he himself had in fact gone to the house of the parents of Mst. Jannat Bibi, wife of Munir Ahmad deceased, for the purpose of reconciliation. It is nobody's case that Mehram was the father of Mst. Jannat Bibi. No independent proof whatsoever had been led by the prosecution in this case to establish that there in fact was an estrangement between Munir Ahmad deceased and his wife namely. Mst. Jannat Bibi or that Mst. Jannat Bibi lived at the house of Mehram at the time of the present occurrence.
Apart from that no independent evidence had been adduced by the prosecution to confirm its assertion that Hanif Ahmad complainant (P.W.4) and Yar Muhammad (P.W.5) had in fact visited the house of the said Mehram immediately prior to the present occurrence. It may be pertinent to mention here that Yar Muhammad (P.W.5) had clearly stated before the learned trial Court at one stage that at the time of the present occurrence Yar Muhammad (P.W.5), Yaqoob and Ayyub were present at the place of occurrence and that no other person was present thereat during the alleged occurrence. This statement of Yar Muhammad (P.W.5) had excluded the presence of Hanif Ahmad complainant (P.W.4) at the scene of the crime at the relevant time.
11. Yar Muhammad (P.W.5) belonged to the brotherhood of the complainant and this had been admitted so by Hanif Ahmad complainant (P.W.4), Although the occurrence in this case had taken place in the immediate vicinity of the house of Yar Muhammad (P.W.5) and, thus, he could be branded as a natural witness yet the contradictions between his statement and the statement of Hanif Ahmad complainant (P.W.4) go a long way in indicating that he had not witnessed the occurrence himself in the F.I.R, lodged by him and in his statement made before the learned trial Court. Hanif Ahmad complainant (P.W.4) had maintained that Muhammad Yaqoob accused was armed with a hatchet whereas Yar Muhammad (P.W.5) had stated before the learned trial Court that Muhammad Yaqoob accused was armed with a Danda. According to the F.I.R, and the statement made by Hanif Ahmad complainant (P.W.4) it was only Abdul Rehman alias Abdul appellant and his co-accused namely Muhammad Yaqoob who had come to the place of occurrence at the relevant time but Yar Muhammad (P.W.5) had maintained before the learned trial Court that Abdul Rehman alias Abdul appellant, Muhammad Yaqoob accused, Mehrani and 2/3 others had come to the place of occurrence together and all of them were carrying various weapons with them. According to the F.I.R, and the statement made by Hanif Ahmad complainant (P.W.4) one blow of hatchet was given to the deceased on his head by Abdul Rehman alias Abdul appellant, whereas another blow of hatchet on the head of the deceased was given by Muhammad Yaqoob accused. Yar Muhammad (P.W.5) had, however, maintained before the learned trial Court that Munir Ahmad deceased had received two blows one of which had been caused by the appellant whereas the second blow was given to the deceased by some person whom this witness did not know. Yar Muhammad (P.W.5) had gone on to state that it was Abdul Rehman alias Abdul appellant who had given both the blows on the head of Munir Ahmad deceased. The statement made by Hanif Ahmad complainant (P.W.4) shows that it was "quite dark" at the time of the occurrence and even Yar Muhammad (P.W.5) had stated before the learned trial Court that it was "dark" at the time of the occurrence. The statement made by Yar Muhammad as well as the site-plan of the place of occurrence (Exh.P.H.) show that the occurrence had taken place outside the main house of Yar Muhammad (P.W.5). It could, thus, well be that by the time this witness had come out of his house the assailant had already gone away and disappeared in the darkness of the night after causing the solitary blow to the deceased. For all these reasons the ocular account furnished by the prosecution has failed to inspire our confidence.
12. Instead of providing support to the ocular account the medical evidence had gone a long way in contradicting and discrediting the eye-witness produced by the prosecution. It has already been observed by us above that the post-mortem examination of the dead body had been conducted with a noticeable delay which was suggestive of a real possibility that time had been consumed by the complainant party and the police for the purpose of procuring and planting eye-witnesses and cooking up a story of the prosecution. It is also of critical importance to mention here that both the eye-witnesses produced by the prosecution had categorically alleged that Munir Ahmad deceased had been given two hatchet blows on his head but the postmortem examination of the dead body had revealed that the deceased had received only one injury on his head. It may be relevant to mention here that even according to the charge framed by the learned trial Court the deceased had been given two hatchet blows on his head by two different accused persons but the medical evidence had not supported the charge in that regard. According to Dr. Shoukat Ali Wahla (P.W.9) the duration between the injuries and the death was within twenty- four hours and the duration between the death and the post-mortem examination of the dead body was eight to ten hours. This showed that Munir Ahmad deceased had received his injury between 3-00 a.m. And 5- 00 a.m. On 9-8-1998 whereas according to the ocular account the deceased had received his injuries at 7-30 p.m. On 8-8-1988. Such a discrepancy between the medical evidence and the ocular account had thrown the entire case of the prosecution wide open and had rendered the veracity of the ocular account furnished by it open to serious doubts. We have already observed above that both the eye-witnesses produced by the prosecution had admitted before the learned trial Court that the occurrence in this case had taken place when it was quite dark but at the same time they had maintained that the occurrence had taken place at 7-30 p.m. In the month of August. We may take judicial notice of the fact that in the month of August it is not "quite dark" at 7- 30 p.m. It may be of some significance to mention here that different prosecution witnesses including the Investigating Officer namely Saeed Abid, A.S.-I. (P.W.7) had admitted before the learned trial Court that the memorandum of recovery of the Shalwar of the deceased was not available either on the judicial file or on the police file. It could, thus, well be that Munir Ahmad deceased had been done to death in the small hours of the night when he was not wearing a Shalwar and that the actual circumstances wherein he had been killed had been suppressed by the complainant party.
13. The motive set up by the prosecution was that Munir Ahmad deceased's wife namely Mst.
Jannat Bibi had gone to her parent's house due to an estrangement with Munir Ahmad deceased and in the evening prior to the present occurrence Munir Ahmad deceased and his brother namely Hanif Ahmad complainant (P.W.4) had gone to the house of one Mehram for negotiating a return of the deceased's wife and during those negotiations an altercation had taken place between the parties. It had been maintained by the prosecution that the parties were separated and then Munir Ahmad deceased and Hanif Ahmad complainant (P.W.4) returned to the house of Yar Muhammad (P.W.5) whereat they were subsequently attacked by the accused party. No independent evidence regarding estrangement between Munir Ahmad deceased and his wife namely Mst. Jannat Bibi had been produced by the learned trial Court. It has been claimed by Hanif Ahmad complainant (P.W.4) that the said lady had gone to live with her parents but admittedly both the eye-witnesses had not gone to the house of the said lady's parents for the purpose of negotiations regarding her return to the house of Munir Ahmad deceased. It was maintained by the prosecution that one Muhammad Ali, a brother of Mst. Jannat Bibi, lived in the house of Mehram but if any alteration had taken place between the parties at the house of the said Mehram then the brother of the lady namely Muhammad Ali ought to have been leading the accused party for the purpose of launching an assault upon the deceased at the time of the present occurrence but admittedly that was not the case. The said Muhammad Ali is not an accused person in the present case. The motive set up by the prosecution was deposed about by Hanif Ahmad complainant (P.W.4) and Yar Muhammad (P.W.5). Hanif Ahmad complainant (P.W.4) had provided no detail about or any reason for the altercation allegedly taking place between the parties at the house of Mehram and it had not even been clarified by him as to who had participated in that altercation from either side. If that altercation was the motive in the present occurrence then in the absence of any detail about that altercation it cannot be held by us that the said motive had been established by the prosecution. Yar Muhammad (P.W.5) had clearly stated that he had not gone to the house of Mehram for the purpose of negotiations and, thus, he had not witnessed the alleged altercation taking place between the parties at the house of Mehram. His statement in respect of the alleged motive was, therefore, nothing but hearsay. In this view of the matter the motive set up by the prosecution had remained far from being established and no corroboration to the ocular account was forthcoming on that score.
14. Although a blood-stained hatchet had allegedly been recovered from the possession of Abdul Rehman alias Abdul appellant during the investigation of this case and subsequently the reports submitted by the Chemical Examiner and the Serologist had confirmed that the recovered hatchet was stained with human blood- yet we have found the alleged recovery of a blood-stained hatchet from the appellant's possession to be not free from serious doubts. Yar Muhammad (P.W.5) had been produced by the prosecution as a witness of the alleged recovery but he had clearly stated before the learned trial Court that the hatchet in question had been recovered from a room of the house of the appellant's uncle namely Yaqoob and not from the house of the appellant himself. As against that the Investigating Officer namely Muhammad Saleem, Inspector (P.W.8) had categorically, stated that the blood-stained hatchet had been recovered from the appellant's own residential house. In these circumstances even the place of the alleged recovery was in serious doubt rendering the entire recovery proceedings to be nothing but sham.
Muhammad Saleem, Inspector (P.W.8), had admitted before the learned trial Court that the site- plan of the place of the alleged recovery of hatchet was not available on the judicial file or even on the police file. Apart from that the statement made by Yar Muhammad (P.W.5) arid Muhammad Saleem, Inspector (P.W.8), show that the provisions of section 103, Cr.P.C, had flagrantly been disregarded vis-a-vis the alleged recovery and also that the hatchet in issue had not been recovered from an exclusive possession of the appellant. Be that as it may the fact remains that the alleged recovery had been affected after twenty six days of the alleged occurrence and during such a long period the blood available on the hatchet, if any, would have disintegrated. We have even otherwise found it to be quite unbelievable that the appellant had not even bothered to wipe the blood off the hatchet during so many days falling between the alleged occurrence and the alleged recovery. For all these reasons we have not been able to attach any credence to the alleged recovery of hatchet from the appellant's possession during the investigation of this case and, thus, the said recovery has been found by us to be of little corroborative value.
15. It is of critical importance to mention here that both the eye-witnesses produced by the prosecution in this case have already been disbelieved to the extent of Muhammad Yaqoob co- accused who had been attributed a specific hatchet blow on the head of Munir Ahmad deceased and the allegation levelled against the said accused person was identical to that levelled against the present appellant. In the absence of any independent corroboration to the ocular account vis- a-vis the present appellant the same eye-witnesses cannot be believed by us to the extent of the present appellant while they have already been disbelieved to the extent of the appellant's co- accused.
16. For what has been discussed above a conclusion is inescapable and irresistible that the prosecution had failed to prove its case against Abdul Rehman alias Abdul appellant beyond reasonable doubt. This appeal is, therefore, allowed the conviction and sentence of the appellant recorded by the learned trial Court are set aside and the appellant is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required in any other case.
17. Murder Reference No,214 of 200I is answered in the negative and the sentence of death passed by the learned trial Court against Abdul Rehman alias Abdul appellant is not confirmed.