' MUHAMMAD FARRUKH MAHMUD, J.-Jameel Ahmad appellant was tried by the learned Additional Sessions Judge, Lahore, in lieu of case F.I.R. No,459 registered at Police Station, Shahdara Town on 22-10-1999 for offences under sections 302/380, P.P.C, for committing the murder of Balouch Ahmad. Vide judgment dated 8-9-2001, the learned trial Judge convicted the appellant for offence under section 302(b), P.P.C, and sentenced him to death. He was also directed to pay Rs,50,000 as compensation to the legal heirs of the deceased. In default in payment thereof, he was to suffer six months' S.-I.
2. Jameel Ahmad, convict/appellant, has challenged his above noted conviction and sentence through the instant appeal. Murder Reference No,597 of 2001 seeking confirmation or otherwise of death sentence imposed upon the appellant has also been placed before us. We propose to decide both these matters through this consolidated judgment.
3. Briefly, the facts of the prosecution case per complaint Exh.P.A, recorded by Abdullah Ali Yousuf, S.-I./P.W.11, at the instance of Muhammad Arshad, complainant/P.W.l, which based the registration of formal F.I.R.; Exh.P.A./l, are that the complainant lived in Ravi Clifton Cotony, Shahdara Town, Lahore, and was working there for gain, while his parents were residing in Mughalia P^rk near Railway Phatak No,6. For the last 2/3 days his cousin Jameel had come to their house from Narowal District. On the day of occurrence, i.e, 29-10-1999 in the morning, the complainant came to the house of his parents and after some time he and his brother proceeded to their respective jobs and their mother also went out of the house to purchase household goods leaving behind his father and cousin Jameel, accused/appellant. At about 9-30 a.m. On receipt of information that a quarrel had taken place between his father and aforesaid Jameel, the complainant rushed to the house of his parents and saw that the appellant was giving successive Chhuri blows to his father to kill him. The hue and cry raised by the complainant attracted his brother Muhammad Asghar/P.W.2 and other Mohallahdars. On catching sight of the P.Ws., the accused/appellant, while brandishing the Chhuri, fled away from the spot. Balouch Ahmad succumbed to the injures at the spot.
' As to motive, it was alleged in the F.I.R, that a few days prior to the occurrence, Jameel Ahmad had stolen some cash from the house of the complainant. Suspicion was laid by the deceased on Jameel Ahmad. The deceased inquired from Jameel Ahmad about the theft, which annoyed him and he committed the murder of the deceased.
4. On 29-10-1999, on receipt of information about the incident, Abdullah Ali Yousuf, S.-I./P.W.11, went to the place of occurrence and recorded the statement of Muhammad Arshad, complainant/P.W.l, which was sent to the police station for registration of formal, F.I.R. He collected blood-stained earth from the spot and sealed the same into parcel through memo. Exh.P.B. He also took into possession 'Parna' P.l, two copper rings P.2/1-2 and a gilt ring P.3 from the place of occurrence through memo.
Exh.P.C. He prepared the rough site-plan of the place of occurrence (Exh.P.G.). He prepared injury statement Exh.P.I, and inquest report Exh.P.H, of the deceased and then sent the dead body for post-mortem examination. After postmortem examination, he took into possession the blood- stained clothes of the deceased, consisting of Shalwar P.S and Shirt P.6 vide memo. Exh.P.D./I. On 29-10-1999, the Investigating Officer got prepared the scaled site plan (Exh.P.F, and P.F./l) of the place of occurrence from Syed Abdul Rahim Kazmi/P.W.8. The appellant was arrested on 9-11-1999 and on 12-11-1999, he, while in custody, led to the recovery of blood-stained Chhuri P.4, which was taken into possession vide memo. Exh.P.D., prepared by the Investigating Officer (I.O.) and attested- by Muhammad Hanif Constable/P.W.3 and Fazil Ismail Constable. After completion of investigation, the appellant was sent up to face the trial.
5. During trial, the prosecution produced eleven witnesses in all. Ocular account was furnished by Muhammad Arshad and Muhammad Asghar, sons of the deceased/P.Ws.l and 2. Their statements are in line with the story given in the F.I.R. Dr. Abdul Jabbar/P.W.7 conducted postmortem examination on the dead body of the deceased on 29-10-1999 at 4-00 p.m. The doctor, while observing twelve injuries on the person of the deceased, opined that the injures were ante-mortem and caused by sharp-edged weapon. According to him, the cause of death was damage to vital organs, heart and liver under Injury No,7 and right kidney along with the vessels under Injury No,9 which led to profused haemorrhage, shock and death. All the injuries were sufficient to cause death in the ordinary course of nature. Probable duration between injuries and death was within half an hour, while it was within 7 to 9 hours between death and post-mortem examination.
Muhammad Hanif, Constable/P.W.3 stated about the recovery of blood stained Chhuri at the instance of the appellant. Abdullah Ali Yousuf, S.-I./ P.W.11, stated about the drafting and dispatch of complaint and the investigation thereafter. The rest of the evidence, being formal in nature, need not be discussed.
6. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false implication and took up the plea of alibi by stating that he was not present at the place of occurrence. He was residing in his village Banal from 25-10-1999 to onward and thereafter he was arrested by the police from his village and falsely roped in the case. Both the P.Ws, were related inter se. The appellant did not opt to appear as a witness in his defence as enjoined by section 340(2), Cr.P.C. However, he produced three D.Ws. In his defence. D.W.l Faqir Hussain stated that on the day of occurrence, i.e, 29-10-1999, the appellant along with his father Noor Muhammad and brother Muhammad Siddique was harvesting his rice crop. The harvesting started from 7-00 a.m.
And completed at about 10-00/10-30 a.m. On the aforesaid date. D.W.2 Rahmat Ali stated that on 29-10-1999 at about 7-45 a.m. He saw Jameel, appellant, Noor Muhammad and Siddique harvesting the rice crop of Faqir Hussain who was also sitting bn road side there. D.W.3 stated that on the day of occurrence at 9-00 a.m., he found the appellant along with his father and brother working in the field of Faqir Hussain.
7. Learned counsel for the appellant contends that it was an unwitnessed occurrence; that undeniably, both the eyewitnesses were out of their house in connection with their jobs when the occurrence took place; that they admitted that when they entered the house, the dead body of their father was lying inside the house but subsequently they improved by stating that the appellant was also standing there and inflicting injuries to their father; that both the witnesses did not describe the seat of injuries or the number of injuries in their statements; that the motive was trivial in nature and could not be believed; that the recovery of blood-stained Chhuri was affected from a far-fetched place after a considerable time and during recovery proceedings provisions of section 103, Cr.P.C, were violated with impunity; and that the prosecution case is not free from doubts.
8. Conversely, learned counsel for the complainant has submitted that it was a day-light occurrence; that the matter was reported to the police with promptitude; hence, the story narrated in the F.I.R, was free from doubts; that both the P.Ws, were also related with the appellant and had no previous ill-will or enmity to rope him in a false case; that the ocular account was fully supported by the medical evidence and corroborated by the circumstances of the case as well as the recovery of bloodstained Chhuri which was dug out by the appellant himself. He supports the impugned judgment. The learned counsel appearing on behalf of the State has adopted the line of arguments of the leamed counsel for the complainant.
9. We have heard the learned counsel for the parties and have also gone through the record of the case.
10. The occurrence took place inside the house of the deceased. Both the eye-witnesses Muhammad Arshad and Muhammad Asghar, who are sons of the deceased, were doing their jobs when they were informed about the occurrence. Muhammad Arshad was at his Thatta' which was at a distance of 100 yards from the place of occurrence, while Muhammad Asghar was working in the factory of Haji Ghulam Rasool at a distance of 60 yards from the spot. Muhammad Asghar, according to him, was informed by a child about the occurrence whose name he did not remember, while Muhammad Arshad, according to him, was informed by Aftab who was tenant of the shop owned by the deceased. According to F.I.R., when the complainant reached the house, the appellant was giving repeated blows with a Chhuri to the deceased. Meanwhile, P.W.2, Muhammad Asghar along with many neighbourers reached the spot. No independent witness was produced during trial. According to post-mortem report, the deceased received twelve injuries caused by sharp-edged weapon, while a minute reading of the post-mortem report reveals that in fact the number of injuries was about thirty six. It is not plausible that if the P.Ws, would have been present, who are real sons of the deceased, would allow the assailant to continue causing injuries to their father. The assailant was not armed with any automatic fire-arm weapon. He was having only a Chhuri in his hand which would not be enough to deter the sons who were also accompanied by many neighbourers to save the life of their father. The conduct of the" P.Ws, of not rescuing their father or not apprehending the assailant is too unnatural to be true. It is manifest from the circumstances of the case that both the eye-witnesses reached the spot after the death of their father. We are fortified in our view by the following admissions of both the eye-witnesses:- "(I) P.W. 1 during cross-examination at page 29 of the Paper Book admitted that "when I entered the place of occurrence I entered from the main entrance door on main road. At that time the dead body of my father was lying towards eastern wall."
(II) P.W.2 during his cross- examination at page 35 of the Paper Book admitted that "when I entered the house the dead body of my father was lying in the room which is after the first room and is at lower plinth level."
11. As per F.I.R., the cause for grievance was that few days prior to the occurrence, allegedly Jameel had stolen some amount from the house. The deceased inquired from Jameel about the theft-and the latter felt insulted. Neither the date nor the amount has been specified. Further more, Jameel continued living in the house of. The deceased despite the suspicion of theft laid against him.- During investigation through supplementary statements, the complainant tried to improve his case by stating that the appellant left the scene of occurrence after committing theft of Rs,37,000 in cash, gold ornaments and clothes. He was duly confronted with his earlier statements where no such thing was mentioned. The first supplementary statement was followed by another supplementary statement, wherein he stated that no theft was committed. As noted above, the deceased received thirty six injuries at the hands of the assailant. As far as appellant is concerned, he was nephew of the deceased and there was no background of any serious enmity or ill-will between the deceased and the appellant so as to justify the infliction of 36 injuries. In the circumstances, the motive as set down in the F.I.R, does not appeal to the reason.
12. None of the eye-witnesses went to the police station which was at a distance of 1-1/2 miles/2-1/2 kilometers nor they sent any of the neighbourers to the police station for reporting the matter.
According to P.W.11, he reached the place of occurrence after receipt of wireless message about 10- 00 a.m. And recorded the statement of the complainant. He further stated that the dead body was dispatched to the mortuary at 10-10 a.m. Or 10-15 a.m., while according to P.W.2, the dead body was removed for post-mortem examination at about 1-30 p.m., which means that a considerable time was spent by the Investigating Officer at the spot and the statement of complainant was recorded after due deliberations. Suspicions surround the F.I.Rs, which are not recorded at the police station that those were result of deliberations. Reference may be made to the case of Muhammad Siddique v. The State PLD 1958 (W.P) Lahore 601, wherein it was held by a learned Division Bench of this Court that "in view of the prevalence of the objectionable practice of not recording the first information reports at the police stations, because the Thanedar conveniently happens to be present somewhere in the vicinity, the inference is unavoidable that in fact the first information report was recorded at the place of occurrence after preliminary investigation." A similar view was expressed in Allah Baksh v. The State 1969 PCr.LJ 1204 Lahore.
13. The appellant was arrested on 9-11-1999 by P.W.11. While in custody, allegedly, the appellant led to the recovery of blood-stained Chhuri which was hidden near the northern wall of the tomb of Noor Jahan. No reliance can be placed on this recovery, as no one from public was associated with the recovery proceedings as against the provisions of section 103, Cr.P.C. In. Addition to that, the recovery was effected from a place which had the access to everyone.
14. The arguments of the learned counsel for the complainant that the appellant could not prove his plea of alibi; and that no one else but the appellant caused the murder are without any force, as it is well-established principle of law that the prosecution has to stand on its own legs and the accused cannot be convicted for infirmity in his defence. No one can be convicted on the basis of presumptions or suspicions howsoever, strong they may be. It was observed by a learned Division Bench of this Court in the case of Abdul Majid V. The State PLD 1982 Lahore 551 that "conviction in a case can only be based on the proved evidence of the case, whether it is direct or circumstantial.
Imagination and suspicion are never proof of guilt and these can never be substituted for proof."
15. The upshot of the whole discussion is that in our opinion the prosecution has failed to prove its case beyond doubt against the appellant. Hence, this appeal is allowed. 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.