' ASIF SAEED KHAN KHOSA, J.-Ihsan Ullah appellant was convicted for an offence under section 302(b), P.P.C. Vide judgment dated 27-11-2001 delivered by the learned Additional Sessions Judge, Hafizabad and was sentenced to death and to pay a sum of Rs,2,60,000 to the heirs of jphulam Murtaza deceased by way of Diyat. Through the same judgment the learned trial Court had acquitted the appellant's coaccused namely Muhammad Azam, Inayat and Saifullah. Two co- accused of the appellant namely Babar and Amanullah had been declared Proclaimed Offenders and, thus, the case against them was separated from that against the appellant and his other co- accused. Ihsan Ullah appellant has challenged his conviction 'and sentence before this Court through the present appeal which has been heard by us along with Murder Reference 849 of 2001 seeking confirmation of the sentence of death passed by the learned trial Court against him. We propose to decide both these matters together through the present consolidated judgment.
2. According to the prosecution's case unfolded in the F.I.R. Mst. Nazir Begum complainant was a resident of Mauza Kaleerwala situated within the area of Police Station Sadar, Hafizabad and was putting up at a house in her agricultural land situated towards the south-east of the above- mentioned village. The complainant's husband and four sons also used to live with her at the said house. Two other sons of the complainant namely Iftikhar Ahmad and Ijaz Ahmad used to live at their agricultural land situated in Mauza Mundiala Meer Shikaran in District Gujranwala and used to cultivate that land. About two months prior to the present occurrence the said sons of the complainant namely Iftikhar Ahmed and Ijaz Ahmad had altercated with some persons belonging to Arain brotherhood and in that incident one person belonging to Arain brotherhood had been murdered and as a consequence thereof the said sons of the complainant and some other persons were booked in that case of murder at the instance of Arain brotherhood. In the said case of murder some persons belonging to Kashmiri brotherhood including Babar accused and others used to help Arain brotherhood and, thus, some time ago the said Babar accused and others had issued threats to the complainant's son namely Ghulam Murtaza and others. At about 8-00 p.m. On 23-4-1999 the complainant, her husband namely Haji Muhammad Sharif and their son namely Ghulam Murtaza along with other members of the family were sitting at their house in Mauza Kaleerwala after taking dinner and on that occasion electric bulbs were alight in that house when suddenly Babar accused armed with a rifle .222 bore, Ihsan Ullah appellant armed with a gun .12 bore, Amanullah accused armed with a pistol .30 bore and 2/3 unknown persons came to the watt of sugarcane crop and while abusing the complainants' son namely Ghulam Murtaza they declared that they would teach a lesson to Ghulam Murtaza in connection with the murder taking place in Mauza Mundiala Meer Shikaran. Upon hearing that the complainant's son namely Ghulam Murtaza went out of the house in order to tell Babar accused and others that the complainant party was not responsible for %the said murder. When the complainant's son namely Ghulam Murtaza went close to the appellant and his co-accused the appellant fired a shot from his gun hitting Ghulam Murtaza in his abdomen. Upon receipt of that injury Ghulam Murtaza fell on the ground and then Babar and Amanullah accused and their 2/3 unknown companions started firing at the fallen Ghulam Murtaza while declaring they would not spare any body alive. The complainant, her husband namely Haji Muhammad Sharif and her daughter-in-law namely Mst.
Zubaida Bibi went running towards the appellant and his co-accused and started imploring them and raised hue and cry which attracted Ihsan Ullah P.W. From the adjoining Dera to the spot. The appellant and his co-accused left the place of occurrence while firing in the air. Soon thereafter the complainant, her husband namely Haji Muhammad Sharif and Ihsan Ullah P.W. Arranged a vehicle and took the injured Ghulam Murtaza to Civil Hospital, Hafizabad whereat the condition Of Ghulam Murtaza was declared to be precarious and the doctor advised the complainant and others to take Ghulam Murtaza to some hospital at Lahore. When Ghulam Murtaza was being transported to Lahore in an ambulance he succumbed to his injury on the way and died near Kassoke. The dead body of Ghulam Murtaza deceased was then brought by the complainant and others back to Civil Hospital, Hafizabad. Leaving the dead body of Ghulam Murtaza deceased at Civil Hospital, Hafizabad in the care of her husband namely Haji Muhammad Sharif the complainant went to Police Station Sadar, Hafizabad and lodged F.I.R. No, 163 thereat in respect of the above-mentioned incident at 6-00 a.m. On 24-4-1999 for offences under sections 302/148/149, P.P.C.
3. The investigation of this case was conducted by Javed Aslam, S.-I./S.H.O. (P.W. 12) and 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, a rough site-plan of the same was prepared, blood-stained earth was secured and 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 some of his co-accusdiL were arrested and some weapons were recovered at the instance of the appellant's co-accused. Upon completion of the investigation a challan was prepared and submitted in connection with this case.
4. Two co-accused of the appellant namely Babar and Amanullah were declared proclaimed Offenders and, thus, the case against them was separated from that against the appellant and his other co-accused. The learned trial Court framed a charge with two heads under sections 148 and 302/149, P.P.C. Against the appellant and his three co-accused td which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced fifteen witnesses in support of its case against the appellant and his coaccused. Mst Nazir Begum complainant (P.W. 10) and Mst. Zubaida Bibi (P.W. 11) furnished the ocular account of the incident in question and Mst. Nazir Begum complainant (P.W.
10) has also deposed about the motive. The medical evidence was provided by Dr. Captain Khalid Farooq (P.W.6) and Dr. Syed Nusrat Abbas (P.W. 13). Javed Aslam, S.-I./S.H.O. (P.W. 12) stated about the various steps taken by him 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 Azam, Inayat and Saifullah but after finding the prosecution's case against Ihsan Ullah appellant to have 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 the prosecution has miserably failed to prove its case against the appellant beypnd reasonable doubt and, thus, the appellant is entitled to be acquitted by this Court. As against that the learned counsel for the State have maintained in unison that the prosecution had succeeded in establishing the appellant's guilt to. The hilt and, therefore, 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 occurrence in this case had taken place during a night.
According to the F.I.R. As well as the statements made before the learned trial Court by the eye- witnesses namely Mst. Nazir Begum complainant (P.W.10) and Mst. Zubaida Bibi (P.W.Ll) electric bulbs were alight at the place of occurrence at the relevant time but according to the statement made by the Investigating Officer namely Javed Aslam, S.-I./S.H.O. (P.W.12) no such electric bulbs was secured from the place of occurrence. The said Investigating Officer had gone on to admit that availability of such electric bulb at the placejpf occurrence had not been shown in did rough site-plan of the place of occurrence prepared by him. We have B further noticed that the F.I.R. In this case had been lodged with a significant delay and the reason advanced by the complainant in that regard was that she had taken Ghulam Murtaza deceased to a hospital in an injured condition but that explanation had been belied by Dr. Syed Nusrat Abbas (P.W.13) who had categorically si.Ated before the learned trial Court that Ghulam Murtaza deceased had not been brought to the hospital in an injured condition by Mst. Nazir Begum complainant. The occurrence in this case had taken place at 8-0,0 p.m. On 23-4-1999 and an F.I.R, in that respect had been lodged at 6-00 a.m. On 24-4-1999 whereas post-mortem examination of the dead body had been conducted at 12-40 p.m on 24-4-1999. According to Dr. Captain Khalid Farooq (P.W.6) he had conducted post-mortem examination of the dead body soon after receipt of the police papers. It is, thus, evident, that the police papers necessary for getting the post- mortem examination conducted had become ready around mid-day on 24-4-1999 whereas the occurrence in this case had taken place at about 8-00 p.m on 23-4-1999. Such delayed post- mortem examination of a dead body is generally suggestive of a real possibility regarding 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. It is of critical importance to mention here that according to the post-mortem examination report pertaining to the dead body the duration between the death and the postmortem examination was about twelve hours which clearly showed that the occurrence in this case had taken place around midnight and not at 8-00 p.m. On 23-4-1999 as claimed by the eye-witnesses produced by the prosecution. Thus, instead of providing support to the ocular account the medical evidence available on the record of this case had gone a long way in discrediting the eye-witnesses.
10. The ocular account furnished in this case by Mst. Nazir Begum complainant (P.W.10) and Mst.
Zubaida Bibi (P.W.Ll) has utterly failed to inspire our confidence. Mst. Nazir Begum complainant (P.W.10) was the mother of Ghulam Murtaza deceased whereas Mst. Zubaida Bibi (P.W.11) was a daughter-in-law of the complainant and a sister-in-law of the deceased. The occurrence in issue had statedly been seen by Haji Muhammad Sharif, husband of the complainant, also but he had been given up by the prosecution as unnecessary. According to the prosecution Ihsan Ullah, a neighbour of the complainant, had also witnessed the alleged occurrence but the said independent witness had been given up by the prosecution as having been won over. We have found it to be quite intriguing that both the abovementioned male eye-witnesses had failed to appear before the learned trial Court in support of the prosecution's case against the appellant and his co-accused and instead the prosecution had produced two ladies to provide the ocular account. It is of critical importance to mention here that both Mst. Nazir Begum complainant (P.W.10) and Mst. Zubaida Bibi (P.W.11) had claimed before the learned trial Court, and this was so mentioned even in the F.I.R., that the complainant party was present at the relevant time in its house situated in their agricultural land but Zafar Iqbal, Patwari (P.W. 8) had unmincingly stated before the learned trial Court that the house of the complainant was not shown in the site-plan of the place of occurrence (Exhibit-PJ). A bare look at the said site- plan shows that the occurrence in this case had taken place in an open field and at a place which was not near any house at all. It is also relevant to mention here that in the F.I.R. As well as in her statement made before the learned trial Court Mst. Nazir Begum domplainant (P.W.10) had claimed that she, her husband namely Haji Muhammad Sharif and their neighbour namely Ihsan Ullah P.W. Had taken the injured Ghulam Murtaza to Civil Hospital, Hafizabad immediately after the alleged occurrence but the complainant's stand in that regard was completely belied by Dr. Syed Nusrat Abbas (P.W. 13) who had clearly stated before the learned trial Court that the injured Ghulam Murtaza had been brought to the Hospital by one Haji Ghulam Rasool and that he was not brought to the hospital by Mst. Nazir Begum complainant. Mst. Zubaida Bibi (P.W.11) had candidly conceded before the learned trial Court that she had not gone to the hospital with the injured Ghulam Murtaza. Apart from that many other inconsistencies and infirmities have been found by us to be present in the ocular account furnished by the prosecution in this case which have detracted from the veracity of the eye-witnesses produced by the prosecution. For instance, it had been
1. The appellants were not named in the F.I.R. And initially some other persons were suspected by the complainant as culprits but after the investigation they- were let off. ' mentioned in F.I.R. That 4/5 other accused persons had also fired at the fallen deceased but before the learned trial Court the complainant had maintained that no firing was done at the spot by any accused person other than the present appellant. In the F.I.R. The complainant had never mentioned that the shot fired at the deceased by the appellant had gone through the body of the deceased making an exit from the opposite direction but she had improved her stance in that regard before the learned trial Court in order to bring her testimony in line with the medical evidence. The complainant had also claimed before the learned trial Court that the accused party had fired about 10/12 shots while standing near a tree but no such tree was to be found in the site- plan of the place of occurrence nor any crime empty was recovered from the place of occurrence.
It may also be relevant to mention here that according to the complainant Ghulam Murtaza deceased had died at 10-00 p.m. Near Kassoke whereas the statement made before the learned trial Court by Dr. Syed Nusrat Abbas (P.W.13) showed that Ghulam Murtaza deceased was still alive at 11-05 p.m. when he was medically examined by the said doctor at Civil Hospital, Hafizabad, For all these reasons the eye-witnesses produced by the prosecution have utterly failed to inspire C our confidence and we have found them to be unworthy of implicit reliance on a capital charge.
11. The motive set up by the prosecution was that two brothers of Ghulam Murtaza deceased namely Iftikhar Ahmad and Ijaz Ahmad living in District Gujranawala were involved in a case of murder and some supporters of the complainant party of that case wanted to get even with the abovementioned brothers of Ghulam Murtaza deceased by harming Ghulam Murtaza deceased.
After going through the evidence available on the record of this case we have felt convinced that the prosecution had miserably failed to establish any motive on the part of the present appellant to do away with Ghulam Murtaza deceased. It had been conceded by Mst. Nazir Begum complainant (P.W.10) that in the abovementioned case of murder no allegation had been levelled against Ghulam Murtaza deceased. She had further conceded that the present appellant had absolutely no connection with the said case of murder at all. Nothing had been brought on the record of this case to show that the present appellant was pursuing that case or that he had any personal animus against Ghulam Murtaza deceased. The threats mentioned in the F.I.R. Had allegedly been issued by Babar accused and not by the present appellant. The Investigating Officer of the present case namely Javed Aslam, S.-I./S.H.O. (P.W.12) had admitted before the learned trial Court that no witness in support of the alleged motive had been produced by the complainant party during the investigation of this case. Mst. Nazir Begum complainant (P.W.10) had categorically acknowledged before the learned trial Court that prior to the present occurrence there was no dispute between the complainant party of this case and the accused party of the present case. She had gone on to state that Ghulam Murtaza deceased used to supply milk to the accused party of this case. If that were so then it is not understandable as to why the accused party was dealing with him and was purchasing milk from him. Mst, Zubaida Bibi (P.W.11) had clearly admitted before the learned trial Court that the complainant party of this case was on visiting terms with the accused party. For all these reasons we have felt no hesitation in concluding that the prosecution had failed to establish any motive which could prompt the appellant to do away with Ghulam Murtaza deceased and no corroboration to the ocular account was forthcoming on this score.
12. No weapon had been recovered from the appellant's possession during the investigation of this case and, thus, the ocular account had failed to receive any corroboration on this score either.
13. We have already observed above that instead of providing support to the ocular account the medical evidence available on the record had created serious doubts regarding veracity of the eyewitnesses produced by the prosecution.
14. The occurrence in this case had taken place on 23-4-1999 and according to the statement made by the appellant before the learned trial Court under section 342, Cr.P.C. On 23-11-2001 the appellant was aged about 18/19 years on that date. It is, thus' evident that the appellant was aged about 16/17 years at the time of the alleged occurrence. In the absence of any motive on the part of the appellant to do away with Ghulam Murtaza deceased we have found it to be unbelievable that the appellant, a young lad of 16/17 years of age, had ventured to murder Ghulam Murtaza deceased for no rhyme or reason.
15. For what has been discussed above a conclusion is inescapable and irresistible that the prosecution had failed to prove its case against the 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 he 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.
16. Murder Reference No,849 of 2001 is answered in the negative and the sentence of death passed by the learned trial Court against Ihsan Ullah appellant is not confirmed.