' MUHAMMAD FARRUKH MAHMUD, J.--- Azhar, Muhammad Hussain and Jewan were tried by the learned Additional Sessions Judge, Shorkot, in lieu of case F.I.R. No,79 registered at Police Station Garh Maharaja on 19-6-1996 for offences under sections 302/337-A(ii)/337-L(ii)/34, P.P.C. Vide judgment, dated 24-7-2001, the learned trial Judge convicted and sentenced the appellants as follows:-- Jewan appellant
(I) For offence under section 302(c), P.P.C. To undergo R.I. For fourteen years plus payment of Rs,1,00,000 as compensation to the legal heirs of the deceased, in default in payment whereof to undergo S.I. For six months.
' Azhar and Muhammad Hussain appellants
(I) For offence under section 302(b), P.P.C. To death each plus payment of Rs,1,00,000 each as compensation to the legal heirs of the deceased or in default in payment whereof to undergo S.I.
For six months each.
' Azhar appellant
(I) For offence under section 337-A(ii), P.P.C. To undergo R.I. For three years.
2. The convicts-appellants have challenged their above-noted convictions and sentences through the instant appeal. Murder Reference No,560 of 2001 seeking confirmation or otherwise of death sentence inflicted upon Azhar and Muhammad Hussain, appellants, has also been placed before us. We propose to decide both these matters through this consolidated judgment.
3. The brief facts of the prosecution case as per complaint Exh.P.J. Recorded at the instance of Mulazim Hussain/P.W.6, which based the registration of formal F.I.R. Exh.P.J./1, are that on 12-2-2000, the complainant, Zawar Hussain, Zafar Iqbal, Khadim Hussain and Ghulam Jaffar and women were going on a wagon from Basti Sialkot to Riazabad in connection with the Rasam-i-Mehndi of Khuda Bakhsh. At about 8-00 p.m. They alighted from the wagon and reached near the house of Mulazim Hussain in the street, all of a sudden Jewan and Azhar armed with Sotas and Muhammad Hussain armed with hunter emerged there. Azhar raised Lalkara that a lesson would be taught to Zawar Hussain for not facilitating for the hand of sister of Khuda Bakhsh. Azhar caused a Sota blow on the head of Zawar Hussain. Muhamma'd Hussain gave a hunter blow on the head of Zawar Hussain who fell down. Jewan gave two Sota blows on the right and left side of the head of Zawar Hussain.
Zafar Iqbal/P.W.5 tried to rescue Zawar Hussain and was given a Sota blow by Azhar on his left side of head. Muhammad Hussain gave hunter blow on,the fingers of left hand of Zafar Iqbal/P.W.5. The occurrence was witnessed by the complainant/P.W.6, Khadim Hussain and Ghulam Jaffar in the light of electric bulb. The appellants decamped from the scene of occurrence. Zawar Hussain (deceased) who became unconscious was taken to RHC Garh Maharaja, wherefrom he was referred to Nishtar Hospital, Multan and was succumbed to the injuries before reaching the hospital.
' The motive was that the accused wanted the hand of the sister of Khuda Bakhsh for Muhammad Hussain but due to intervention of Zawar Hussain, Khuda Bakhsh refused to give the hand of his sister to the accused.
4. Leaving the dead body of the deceased in his house at Mahmoodkot, Mulazim Hussain, complainant/P.W.6, while on his way to police station, came across Babar Nawaz, S.-I./S.H.O., at Tehsil Chowk on 13-2-2000 at 3-35 p.m. And got recorded his statement/ complaint Exh.P.J., which was sent to the police station where formal F.I.R. Exh.P.J./1 was recorded. After completion of investigation, the appellants were sent up to face the trial.
5. To substantiate its version at the trial, the prosecution produced eight witnesses. Ocular account was furnished by Zafar Iqbal and Mulazim Hussain, P.Ws.5 and 6. They also stated about the motive.
Ghulam Shabbir, M.H.C./P.W.8, recorded the formal F.I.R. Exh.P.J./1. In addition to that, he identified the signature and handwriting of Babar Nawaz, S.-I./S.H.O., on injury statement Exh.P.E., inquest report Exh.P.F., rough site-plan Exhs.P.G. And P.G./1, recovery memos Exhs.P.H., P.K., P.L., P.M. Talib Hussain/P.W.7 stated about the recovery of weapons of offences P.4 and P.5 at the instance of Azhar and Muhammad Hussain. Iqbal Hussain/P.W.2 stated about the recovery of Sota at the instance Jewan. Dr. Abdul Rahim Ghallu/P.W.1 medically examined Zawar Hussain and after giving first aid referred him to Nishtar Hospital, Multan. He also medically examined Zafar Iqbal/P.W.5 and found two injuries on his person. The witness conducted post-mortem examination on the dead body of Zawar Hussain and while observing four injuries on his person opined that the death was caused due to haemorrhage shock and injury to vital organ, the brain by injury No,3 which was sufficient to cause death in ordinary course of nature. All the injuries were caused by blunt weapon.
The rest of the evidence, being formal in nature, need not be discussed.
6. In their statements recorded under section 342, Cr.P.C., the appellants pleaded their innocence and false implication in this murder, which, according to them, was blind murder, adding that Zawar Hussain Shah had illicit relations with Mst. Shamim and on the fateful day Zawar Shah went to meet her in Mahmoodkot where he was murdered by some unknown persons. Mst. Shamim was engaged with Muhammad Hussain since childhood, so the complainant party had falsely roped the appellants in this case. However, neither the 'appellants appeared as their own witnesses under section 340(2), Cr.P.C. Nor did they produce any witness in defence.
7. Learned counsel for the appellants contend that the matter was reported to the police after unexplained delay and that it was not reported at the police station, rather it was reported at a Chowk which means that the F.I.R. Was, in fact, recorded at the spot after due deliberations; that both the P.Ws. Materially contradict each other; that the statements of P.Ws. Are not supported by the medical evidence; that no blood-stained earth was collected from the spot; that the recoveries of weapons do not help the prosecution case, as neither the Sota nor hunter was bloodstained and both were recovered from the same house; that no independent witness was produced in support of the motive; that the witnesses lived at a distance of seven miles from the place of occurrence; that they were related and chance witnesses. Furthermore no one from the locality where the occurrence took place was produced during trial; that the P.Ws. Could not plausibly explain their presence at the time of occurrence; and that prosecution case is replete with doubts.
8. Conversely, the learned counsel appearing on behalf of the State submits that the motive is admitted by the appellants; that the presence of Zafar Iqbal, who was injured during the occurrence, could not be denied; that the P.Ws. Had no enmity or against the appellants so as to depose falsely against them; that the ocular account is fully supported by the medical evidence; that the delay in the F.I.R. Has been fully explained in the F.I.R. Itself, as the father who is complainant of the case had been making desperate efforts to save the life of his son; that the statements of eye-witnesses are also corroborated by the recovery of weapons and as the accused lived in the same house, therefore, the recoveries must have been effected from the same house, so there was no odd about it. Support the judgment passed by the learned trial Court.
9. We have heard the learned counsel for the parties and have also gone through the record of the case.
10. In order to prove its case, the prosecution produced two eyewitnesses before the learned trial Court. Zafar Iqbal/P.W.5 received injuries during the occurrence and Mulazim Hussain P W.6 is father of the deceased. The complainant lived in Mahmoodkot.Which was at a distance of seven miles from Riazabad. As per F.I.R., on 12-2-2000, the complainant, his deceased son Zawar Hussain, Zafar Iqbal/P.W.5, Khadim Hussain and Ghulam Jaffar and ladies were going from Basti Sialkot to Riazabad on the occasion of Rasm-i-Mehndi of Khuda Bakhsh. They alighted from the wagon at 8- 00 p.m. And started going on foot towards the house of Khuda Bakhsh. When they were near the house of Mulazim Hussain, they were surprised by the accused. There is no explanation as to why the complainant party left the wagon before reaching the house of Khuda Bakhsh nor the name or bride or her parents has been mentioned anywhere. According to the complainant, 5/6 males and 6/7 women boarded the Dalla for Basti Riazabad. However, in spite of that, the matter was reported to the police at Tehsil Chowk Garh Maharaja on the next date, i,e, 13-2-2000 at 3-30 p.m. To S.H.O.
Babar Nawaz and thereafter the case was registered at 4-00 p.m., while the police station was situated at a distance of 5 kilometers only from the place of occurrence. Anyone of the accompanying witnesses could and report the matter at the police station within an hour. The complainant has tried to explain the delay by stating that Zawar Hussain deceased was taken to the hospital Garh Maharaja wherefrom after giving first aid he was referred to Nishtar Hospital.
However, Zawar Hussain succumbed to the injuries before the complainant party could reach Nishtar Hospital. Admittedly, the distance between police station and the Civil Hospital Garh Maharaja was 4/5 acres and from the hospital any person of the complainant party could go to report the matter. It is also noteworthy that the complainant stated during cross-examination that it took 1/1-1/4 hours in removing Zawar Hussain from the place of occurrence. In case 4/5 adults and the complainant were present at the spot, they would not have wasted more than an hour in removing Zawar Hussain. The presence of the P.Ws. At the spot becomes further doubtful by the fact that according to Dr. Abdul Rahim Galloo/P.W.1, Mulazim Hussain, while he was injured, was brought by one Malang Ali son of Talib Hussain. The medico-legal report (MLR) Exh.P.A. Prepared by P.W.1 reveals that Zawar Hussain reached the hospital at 11-55 p.m. On 12-2-2000. The name of Malang Ali son of Talib Hussain has been entered into the requisite column. The doctor further stated that due to precarious condition, the patient after providing first aid was referred to Nishtar Hospital. The doctor added that he handed over MLC Exh.P.A. To Malang Ali for ready reference.
During cross-examination, the doctor explained that after completing MLR Exh.P.A. At 11-55 p.m.
Within 1/2 or 3/4 hour he referred the patient to Nishtar Hospital for Expert management. On the contrary, the complainant stated that the doctor referred Zawar Hussain to Nishtar Hospital on the following morning at 5/6 a.m. Obviously, the complainant wanted to cover the delay in lodging the F.I.R.
11. As far as P.W.5 Zafar Iqbal is concerned, his mere being injured would not transform him into a truthful witness. According to him the occurrence lasted for 5 to 10 minutes and after one hour after the occurrence, they removed Zawar Hussain in injured condition to Civil Hospital Garh Maharaja.
He stated that he was also with injured Zawar Hussain in injured condition. He further stated that Zawar Hussain was put on a cot and had reached the Bus Stand Mahmood Kot wherefrom a wagon was hired for Civil Hospital Garh Maharaja. He added that the distance between Riazabad and Mehmood Kot was four miles. The statement does not tally with the circumstances of the case, as the occurrence took place at 8-00 p.m., while Zawar Hussain reached the hospital at 11-55 p.m., i,e, after about four hours. This is abnormal delay without any explanation. His statement is knocked out by the statement of Dr. Abdul Rahim Ghallu/P.W.1, who is an independent witness. As noted above, he stated on oath that Zawar Hussain, while he was injured, was brought by Malang Ali and he handed over MLR to Malang. He further stated that it was on 13-2-2000, i,e, next day, that on the written request of police, he examined Zafar Iqbal at 6-00 p.m. He categorically stated that injured Zafar Iqbal never visited him before 13-2-2000. In his statement, Zafar Iqbal stated that Jewan gave two Sota blows on the right and .Left side of head of Zafar Hussain, while Azhar gave a Sota blow on the head of Zawar Hussain, whereas Muhammad Hussain gave hunter blow on the head of Zawar Hussain. In that case, there would have been four head injuries on the person of Zawar Hussain, while there were only two injuries on the head and the rest of the two injuries were on the right side and left side of chest. In F.I.R., it was stated that Jewan gave two blows on the back of the chest.
However, the complainant improved his statement before the learned trial Court and stated that Jewan gave two repeated Sota blows on the right and backside of his chest. Both the witnesses have materially contradicted each on the point of seat of injury caused by Jewan and their statements are also not supported by the medical evidence. It is also pertinent to note that no blood-stained earth was collected from the spot. The matter was reported to S.H.O. Babar Nawaz after delay of 19-1/2 hours not at the police station but at Tehsil Chowk. The F.I.Rs, which are not recorded at police stations are not free from suspicion, as it has been held by the superior Courts that mostly such-like F.I.Rs, are recorded after visiting the spot and after due deliberations.
12. The recovered Sotas and hunter are not blood-stained; hence, it cannot be said that these were the weapons which were used at the time of occurrence. The prosecution has not produced any independent evidence to prove motive which is otherwise vague. Even the house. Of Khuda Bakhsh where ostensibly the complainant was going has not been shown in the site plan Exh.P.G.
13. In the above noted circumstances, we are of the considered opinion that the presence of the P.Ws. At the time of occurrence is not free from doubt. Hence we allow this appeal and set aside the judgment passed by the learned trial Court. The appellants are acquitted of all the charges. The appellants Azhar and Muhammad Hussain would be released forthwith, if not required in any other case. Jewan appellant is on bail. His bail bonds are cancelled and the sureties are discharged. The death sentence is not confirmed. The murder reference is answered in the negative. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.