Muhammad Farrukh Mahmud, J.--Ghulam Abbas, appellant, alongwith Sultan Ahmad and Ahmad Khan was tried by the learned Additional Sessions Judge, Mandl Baha-ud-Din, in 'lieu of case F.I.R.
No. 193 registered at Police Station Phalia on 5-5-1995 for offences under Section 302/34, P.P.C. Vide judgment dated 27-9-2001, the learned trial Judge, while acquitting the aforesaid co-accused of the appellant, convicted and sentenced the appellant for offence under Section 302(b), P.P.C. to death plus payment of RS. 1,00,000 as compensation to the legal heirs of the deceased, in default in payment wheresof to undergo S. I. for six months. .
2. The convict-appellant has challenged his above-noted conviction and sentence through the instant appeal. Murder Reference No. 682 of 2001 seeking confirmation or otherwise of death sentence inflicted upon the appellant has also been placed before us. We propose to decide both these matters through this consolidated judgment.
3. The brief facts of the case as per statement Exh.P.D. recorded by Muhammad Siddique, A.S.- I/P.W.11, at the instance of Nadir Khan, complainant/P.W.2, which based the registration of formal F.I.R. Exh.P.D./I are that on 5-5-1995 at about 6-00 a.m. when the complainant his son Saifullah and Ahmad Khan/P.W.I were present in the mosque near bathrooms, while Ghulam Qadir was coming towards the mosque from the house of Safdar Hussain barber and had reached in front of the door of the mosque all of a sudden Sultan Ahmad armed with .32 bore pistol, Ahmad Khan alias Mazhar Iqbal armed with .7 mm rifle (both acquitted co-accused) and Abbas/appellant armed with .30 bore pistol came there. On the Lalkara of Sultan Ahmad that Ghulam Qadir should not go alive, Ahmad Khan alias Mazhar Iqbal fired at Ghulam Qadir but the fire missed the target. Then Abbas fired hitting Ghulam Qadir on his abdomen. Ghulam Qadir fell down, whereupon the complainant and the P.WS. rushed towards him. The accused decamped from the scene of occurrence.
The motive behind the occurrence was that 25/26 years ago, Ghulam Qadir had committed the murder of Manzoor Ahmad the father of Abbas/appellant and a compromise was subsequently effected therein.
4. On 5-5-1995, Muhammad Siddique, A.S.-I./P.W.11, was present in Main Bazar Phalia where Nadir Khan, complainant/P.W.2, got recorded his statement Exh.P.D. which was sent to the police station for registration of the case. Then the A.S.-I./Investigating Officer went to the spot; prepared its rough site plan Exh.P.K. and secured bloodstained earth vide memo. Exh.P.A. On 4-6-1995 he went to Mayo Hospital, Lahore, but was informed that Ghulam Qadir had been discharged from the hospital on 20-5-1995. On 1'6-64995, he was informed that Ghulam Qadir had expired. On 17-6- 1995, the Investigating Officer received the dead body of the deceased and got post-mortem examination on it. Abbas/appellant led to the recovery of .30 bore pistol P.1 which was taken into possession vide memo. Exh P.C. After completion of investigation, the appellant alongwith his acquitted accused was sent up to face trial.
5. To prove its version at the trial, the prosecution examined twelve witnesses. The prosecution after tendering in evidence the report of Chemical Examiner Exh.P.Q. closed its side. Then the appellant made his statement under Section 342, Cr.P.C. wherein he pleaded his innocence and false implication due to old enmity and rivalry. However, neither the appellant appeared as a witness under Section 340(2), Cr.P.C. nor .did he produce any witness in his defence. -
6. Learned counsel for the appellant contends that both the witnesses are not only related to the deceased but also chance witnesses who could not explain their presence at the time of occurrence; that they have contradicted each other on almost all material points; that the learned trial Court wrongly belied the dying declaration while recording the conviction of the appellant, despite the fact that the statement recorded.under Section 161, Cr.P.C. was neither placed on the record of the case nor was correctly put to the accused in his statement under Section 342, Cr.P.C.; that it is borne out from the circumstances of the case that it was an unwitnessed occurrence and the deceased was criminally assaulted in were hours of night by some unknown person; that admittedly, the deceased was involved in number of cases including murder cases and had number of enemies; that the appellant had been roped in this case merely on the suspicion; that the proAcution version is not supported by the medical evidence; and that the prosecution case is full of doubts.
7. Conversely, the learned counsel appearing on behalf of the State submits that the occurrence took place when the sun was shining and the assailant was known to the P.Ws.; that the matter was reported to the police promptly; that the ocular account is fully supported by the medical evidence, as the deceased lost his life due to gun fire; that the eye-witnesses were corroborated by the factum of motive which has been admitted by the appellant. However, the learned counsel has frankly conceded , that Exh.P.O. recorded by Muhammad Siddique, A.S.I./P.W.11, and relied upon by the learned trial Court was not available on the record of the case. Supports the judgment passed by the learned trial Court.
8. We have heard the learned counsel for the parties and have also gone through the record of the case.
9. According to prosecution case, the occurrence took place at 6:00 a.m. in front of the doorof the mosque. Nadir Khan/complainant, who is uncle of the deceased, and Ahmad Khan/P.W.1, whose niece was wife of Ghulam Qadir deceased, were standing near the bath rooms of the mosque, while Ghulam Qadir came out of the house of Safdar Hussain Hajjam and was heading towards the mosque. The presence of the witnesses and the deceased at the mosque was per chance, as they had not assembled there for saying their prayers and the complainant stated before the learned trial Court that at the time of occurrence, the sun was shining. The deceased was influential person with political links and had been Chairman of Zakat and Ushr Committee. According to Fard Bayan Exh.P.D., the matter was reported to Muhammad Siddique, A.S.I./P.W. 11,. while the latter was present in Main Bazar Phalia at 6:55 a.m. Thereafter, the case was registered at 7:05 a.m. at the police station which was situated at a distance of 9-1/2 miles from the spot.
The above-noted facts about Fard Bayan and registration of case are belied by the statements of two eye-witnesses before the learned trial Court. Nadir Khan/complainant, who had reported the matter to Muhammad Siddique/A.S.I. stated in Fard Bayan that he had taken Ghulam Qadir, while he was injured in a Hiace to Civil Hospital, Phalia.
'In his statement before the learned trial Court, he stated that after Ghulam Qadir got wounded, he left him alive and proceeded to get vehicle; he returned with the vehicle after two or two and a half an hour and till then Ghulam Qadir was lying on the ground; thereafter he was put in the vehicle and taken to the hospital, which means that he returned to the spot with the vehicle at about 8-00 or 8-30 a.m. and thereafter he took the injured Ghulam Qadir to the hospital. This admission on the part of P.W.2 exposes the fabrication of F.I.R. wherein it was stated that Nadir Khan complainant reported the matter to Muhammad Siddique in Main Bazar at 6-55 a.m. The matter was not reported to the police at the police station and such-like F.I.Rs. are always looked with suspicion, as invariably such-like F.I.Rs. are registered after visiting the spot and due 'deliberation. On the same point, P.W.1 stated that Ghulam Qadir remained at the spot in injured condition for about half an hour till the arrival of the vehicle. He further stated that no other person of the village was attracted to the spot within that half an hour. As already noted above, the deceased was a man of influence and it was not possible that nobody would attend him 2 or 21/2 hours if the witnesses would have been there. At least; the witnesses who were closely related to the deceased would have given Ghulam Qadir first aid and would not keep him, lying on the ground unattended. On the contrary, P.W.1 stated that they did not even administer water to the injured. The complainant claimed th4 he had taken Ghulam Qadir, while he was injured, to the hospital, whereas Dr. Ghulam Abbas Nasir Tarar, who attended to Ghulam Qadir on the date of occurrence, stated that Ghulam Qadir was brought by Sikandar Hayat Constable No. 367. Perusal of MLR Exh.P.E. reveals that in the column name of relative or friend the word "police" has been entered. It does not contain the name of any of the relatives or any of the P.Wi. The doctor did not observe any blackening or tattooing around the wound which means that the injury was not caused from a close range, while P.W.1 stated that injury was caused from a distance of six feet. According to Dr. Ghulam Abbas Nasar Tarar, after attending to Ghulam Qadir, he was referred to Mayo Hospital, Lahore, on the same day.
10.On 17-6-1995 at 8-00 a.m. Dr. Muhammad Nawaz/P.W.6 conducted post-mortem examination on the dead body of Ghulam Qadir who had died on 16-6-1995 at 10-00 p.m., after about one month and eleven days of the occurrence. The post-mortem report Exh.P.G. reveals that the body was brought by the police from the Emergency Ward of Mayo Hospital, Lahore. The injuries mentioned in the post-mortem report are similar to those mentioned by Dr. Ghulam Abbas/P.W.3.
The medical evidence supports the prosecution case only to the extent that the deceased lost his life due to fire-arm injury but it does not lead to the assailant.
(I)P.W.11 Muhammad Siddique A.S.-I. stated before the learned trial Court that on 4-6-1995, he went to Mayo. Hospital, Lahore, for recording of statement of injured but the doctor informed him that the injured Ghulam Qadir had been discharged from the hospital on 20.5.1995. He found him in the house of his. Peer near graveyard of Miani Sahib at Lahore and he recorded his statement. The learned trial Court, while recording the conviction of the appellant, relied on the statement of Ghulam Qadir which was recorded by Muhammad Siddique/P.W.H. The learned trial COurt referred to the statement Exh.P.O. For the following reasons, the learned trial Court committed a patent error by relying on the aforesaid statement:-- That the statement is not available on the record of the case. It is Also not available on the file sent by the learned trial Court itself; (II)That according to Paper Book and the original record, question was put to the appellant about the recording of statement of Ghulam Qadir deceased and the statement was referred to as Exh.P.C.; on the contrary, Exh.P.C., according to Paper Book and original record, is recovery memo: of .30 bore pistol; (III)That Muhammad Siddique himself stated that Ghulam Qadir was discharged from the hospital since 20-5-1995 and he found Ghulam Qadir in the house of his Peer, whose name has not been mentioned, situated in graveyard of Miani Sahib. The statement of Muhammad Siddique on this point is supported by the statement of complainant before the learned trial Court, wherein it was stated that Ghulam Qadir deceased came after receiving injuries returned from Lahore to village Agroiya; (IV)That it is also pertinent to note that Dr. Muhammad Nawaz/P.W.6 stated that on 5-5-1995, the Investigating Officer submitted an application inquiring as to whether Ghulam Qadir was in a position to give statement or not. On his application the doctor opined that the injury was serious, so he was unfit for giving statement. The application and the opinion of the doctor are available as Exh.P.H. at page 95 of the Paper Book.
'In the circumstances, even if some statement of Ghulam Qadir was recorded, while he was not in hospital, the same would hardly qualify as "dying declaration". But in this case, as already noted above, even the said statement is not available on the record of the case.
12.According to prosecution case, the motive behind the occurrence was that 25/26 years ago, Ghulam Qadir deceased had murdered Manzoor father of Abbas appellant. However, it was stated in the Fard Bayan itself that a compromise had been effected. Furthermore, the deceased was involved in a number of cases including. those of murder and had many accounts to settle, so it cannot be said that only the appellant had the motive against the deceased.
13.The recovery of .30 bore pistol was shown to have been effected at the instance of appellant but the pistol was never sent to Forensic Science Laboratory nor was any empty recovered from the spot. In addition to that, no independent witness was produced during trial to prove the recovery; hence, the recovery evidence cannot be used against the appellant.
14. The upshot of the whole discussion is that the prosecution case is replete with doubts. This appeal is accepted; the judgment passed by the learned trial Court is set aside. The appellant is acquitted of all the charges. He would be released forthwith if not required in any other case. The death sentence is not confirmed. The murder reference is answered in the negative.