' SYED SHABBAR RAZA RIZVI, J.--- Muhammad Ashraf alias Achu, appellant filed the present appeal.
He along with Bashir Ahmad, Muhammad Ilyas, Muhammad Aslam and Muhammad Akram (already acquitted) was tried by Malik Abdul Rashid, learned Additional Sessions Judge, Depalpur, District Okara, in case F.LR. No,543 of 1998, dated 15-10-1998, registered at Police Station Hujra Shah Muqeem, District Okara, for murder of one Abdul Majeed. The appellant was convicted and sentenced to death vide judgment dated 18-3-2002 under section 302(b), P.P.C. He was further ordered to pay compensation. Of Rs,50,000 under section 544-A, Cr.P.C. To the legal heirs of the deceased.
2. Briefly, on 25-10-1998 at 7-15 a.m., complainant Mst. Razia Sultana got recorded statement Exh.P.C. With Muhammad Siddiq S.-I. Stating that she was resident of Mauza Cha Hameed Wala and their 14 acre landed property was situated in Phullarwan Wazir. The land was given on lease for three years to Muhammad Ashraf alias Achu (appellant) by husband of the complainant.
Muhammad Ashraf paid lease money for one year and thereafter refused to pay the lease money.
For which, civil litigation was pending. On the day of occurrence i.e. 25-10-1998 at about 6 a.m., husband of the complainant, Abdul Majeed (deceased), Ahmad Din son of Fateh Din and Hafiz Abdur Rehman son of Ghosi Khan were going towards Chah Peepal Wala. The deceased was going ahead of Ahmad Din and Hafiz Abdur Rehman. When they reached Khal Chah Balochan Wala, the accused, Muhammad Ashraf alias Achu (appellant) Muhammad Akram, Muhammad Aslam, Bashir Ahmad ,and Muhammad Ilyas armed with fire-arms who had laid ambush came in front of the complainant party. Muhammad Ashraf (appellant) raised Lalkara to teach lesson to Abdul Majid (deceased) for litigation. Thereafter, the accused started firing with their fire-arms. The fire shots hit Abdul Majid on different parts of his body. The accused kept on firing and raising Lalkaras.
On .Hearing the fire shots and hue and cry of the complainant party, many people of the village came there. The accused decamped from the place of occurrence. The occurrence was witnessed by the complainant as well as, Ahmad Din, Hafiz Abdur Rehman along with other people of the village. Abdul Majid, deceased was taken to the Civil Hospital, Hujra Shah Muqeem in injured condition, where he succumbed to the injuries.
4. Muhammad Siddiq, S.-L/P.W.8 after recording the statement Exh.P.C. At the hospital sent the same to the police station for registration of formal F.I.R. Exh.P.C./1. He prepared the inquest report of the dead' body through memo. Exh.P.G. And injury statement through memo. Exh.P.J. He prepared application Exh.P.H. For conducting postmortem examination and entrusted the dead body to Khalid Habib. Then the Investigating Officer recorded the statements of P.Ws. And proceeded to the place of occurrence. He secured the blood-stained earth from the spot through memo, Exh.P.G.
And prepared the rough site plan through memo. Exh.P.K. After post-mortem examination, Khalid Habib constable handed over last-worn clothes of the deceased and a phial said to contain a piece of bullet to the Investigating Officer which were taken into possession through Exh.P.A.
Thereafter, he recorded the statements of the P.Ws. Under section 161, Cr.P.C. Subsequently, the investigation was transferred to Abdul Majeed, S.-I. P.W.9 on 25-10-1998. He arrested Muhammad Ashraf accused. While in police custody, Muhammad Ashraf, appellant led to the recovery of rifle .7 mm P.3 which was taken into possession through memo. Exh.P.F. After completion of investigation he challaned Muhammad Akram and Muhammad Ashraf accused. During his investigation, Ilyas, Bashir and Aslam were found innocent.
5. After submission of the challan, the charge was framed under sections 302 and 34, P.P.C. It .Was framed against all the three accused on 26-2-2000 to which they pleaded not guilty and claimed for the trial. During the trial the prosecution examined as many as 10 witnesses to prove the guilt of the accused.
6. The medical evidence was furnished by Dr. Muhammad Yahya, P.W.2 who on 25-10-1998 at 4 p.m. Conducted the post-mortem examination on the dead body of Abdul Majeed and found the following injuries on his person:--
(1) A fire-arm entry wound 0.8 x 0.8 c.m. In front and lower part of right chest, 11 c.m. From umbilicus, margins of the wound were inverted. Corresponding marks on Qameez was present.
(2) A fire-arm exit wound 2 x 2 c.m. On later and lower part of left chest. Exit of injury No, 1.
(3) A fire-arm entry wound 0.8 x 0.8 c.m. On lateral aspect of left chest. Margins of the wound were inverted. Corresponding marks on Qameez were present.
' All other organs were healthy, except the chest wall, pleura and left lung, which were perforated, left forth 12th ribs fractured, abdominal walls peritoneum, diaphragm stomach small intestine, large intestine, liver and spleen were also perforated. A metallic piece probably part of a bullet was recovered from abdomen. In his opinion the cause of death in this case was haemorrhage shock due to injuries Nos.1, 2 and 3 which were quite sufficient to cause death in ordinary course of nature.
All injuries were anti-mortem and were caused by fire-arm. Probable time between death and post-mortem was. Within 24 hours and time between injury and death was within two hours.
7. The ocular account was furnished by Mst. Razia Sultana, P.W.4 who supported the prosecution story as well as motive for the occurrence as eye-witness of the occurrence. Hafiz Abdul Reitman, P.W.5 supported the prosecution story as an eye-witness of the occurrence. His statement was in line with that of the complainant, P.W.4.
8. Abdul Majeed, Constable was examined as P.W.1. He escorted the dead body of the deceased to the mortuary and after post-mortem he handed over the last-worn clothes of the deceased to the Investigating Officer. P.W.3 Mushtaq Ahmad, constable kept the sealed parcel of blood-stained earth in Police Malkhana in safe custody and then on 11-11-1998 handed over the same to Muhammad Saeed constable for its onward transmission to the office of Chemical Examiner. Agha Saleem Patwari was examined as P.W.6. He prepared the site plan of the place of occurrence through memo. Exh.P.E. And Exh.P.E./1. Muhammad Ishaque was examined as P.W.7. He asserted that in his presence the accused recovered rifle .7 mm P.3 which was taken into possession through memo. Exh.P.F. A.S.-I. Ghulam Murtaza, P.W.10 registered the formal F.I.R. Exh.P.C./1 on the basis of complaint Exh.P.C.
9. The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.P.O. And that of Serologist Exh.P.R. The report of Forensic Science Laboratory was tendered as Exh.P.R.
10. At close of the prosecution evidence, the statement of the accused/appellant was recorded under section 342, Cr.P.C. The appellant denied the allegations and claimed his innocence. In reply to question No,5 (as to why the case against him and the P.Ws. Deposed against him), he stated as under:- "The P.Ws. Are close relatives inter se and they are inimical to me and my co-accused Muhammad Akram thinking us the supporters of Mst. Rehmati Bibi. The complainant party and Mst. Rehmati Bibi have been litigation over the inheritance of one Jewan Khan for the last many years. The deceased sought the help of one Malik Munawar Phullarwan to defend the illegal "possession of the property against Mst. Rehmati Bibi. Mst. Rehmati Bibi wanted to get the possession of land from Bundu Khan the father of the deceased after the dismissal of his appeal by the learned Additional District Judge, Depalpur, whereupon, the deceased had borrowed the "Badmash" from Malik Munawar Phullarwan resident of Mauza Shamskay, who sent four armed persons at Chah People Wala for guarding the property. The said armed persons of said Malik Munawar Phullarwan along with the men of Aslam Phullarwan had actually murdered the deceased Abdul Majeed at night and no P.W.
Was present at the time of occurrence and I and my brother Muhammad Akram had been falsely involved in this case by the prosecution in league with the complainant. In, fact the occurrence is unseen and no P.W. Was present at the time of the commission of the offence."
11. The trial culminated into conviction and sentence of the appellant, Muhammad Ashraf alias Achu mentioned above and acquittal of co-accused, Bashir Ahmad, Muhammad Ilyas, Muhammad Aslam and Muhammad Akram. Muhammad Ashraf alias Achu, appellant filed Criminal Appeal No,95/J of 2003 against his conviction and sentence. The trial Court sent up Murder Reference No,196 of 2002 for confirmation of death sentence of the appellant. Both the matters above-mentioned are being decided by this consolidated single judgment.
12. The learned counsel for the appellant contends that the witnesses were related to the deceased and were chance-witnesses; that they were inimical towards the appellant and that the statements of P.Ws. Have been disbelieved qua Muhammad Akram, co-accused who was assigned similar role; that no independent and reliable incriminating evidence was available against Muhammad Ashraf appellant which distinguishes his case from that of Muhammad Akram and in such-like circumstances the conviction could not be recorded against Muhammad Akram; that the evidence of recovery was of no consequence as no empty was recovered from the spot and it could not be said that the gun allegedly recovered at the instance of appellant was used during the occurrence, with certainty; that there are material contradictions between the medical evidence and the ocular account; that during the investigation story given in the F.I.R. Was found to be false; that the prosecution story was replete with doubts.
13. The learned Additional Prosecutor-General, Punjab contends that it was a daylight occurrence, and the identification of the appellant was not in question; that the weapons were mentioned in the F.I.R. As firearms and the witnesses could not be discarded for not specifying nature of weapons and that the ocular account is supported by medical evidence and corroborated by the evidence of recovery and motive; that the acquittal of Muhammad Akram would not benefit the appellant as the recovery of weapon from Muhammad Akram was disbelieved by the learned trial Court; that no mitigating circumstance exist in favour of the appellant and supports the judgment passed by the learned trial Court.
14. We have heard the learned counsel for the parties and perused the record.
15. According to the complainant/P.W.4, the motive or background of the occurrence was that the appellant was cultivating 14 acres of land which was given to him on lease by the deceased, Abdul Majid, late husband of P.W.4. According to P.W.4, the lease was of three years but the appellant refused to make payment after one year.' P.W.4 also referred to litigation in this regard before the Revenue Authorities. On the other hand, though the appellant side agreed to the existence of litigation but also maintained that the deceased was in occupation of the said land illegally and without lawful title. In our opinion, it is necessary to understand the above controversy to appreciate the evidence on record. One Jeevan Khan owned 72 acres of land in village Phullarwan Wazirke. After his death, Bundu Khan, father of Abdul Majid (deceased) got 14 acres of land from the said 72 acres of land. Jeevan Khan was survived by two widows; Rehmat Bibi alias Rehmati and.
Mathai Bibi. Rehmat Bibi alias Rehmiti claimed that father of the deceased had no legal right to keep above mentioned 14 acres of land. It is on the record and also admitted by P.W.4 that Rehmat Bibi alias Rehmiti resorted to litigation to get possession of the above mentioned 14 acres of land and she eventually won the case from the civil as well as from the Court of learned Additional District Judge. It is also admitted by P.W.4 on page 43 of this paper book, that the possession of the said land was taken from P.W.4's family through a warrant of ejectment through legal means. In this regard proceedings of Revenue Authorities are available as Exh.D.E. Dated 22-3-1999 with title of `Karwai warrant'; village Phullarwan Wazirkc. According to the Investigating Officer/P.W.9 (at page 62 of the paper book) it came in his knowledge during the investigation that Aslam accused along with his brother had also purchased about 27 acres of land from said Rehmiti Bibi out of the disputed land. He also stated that it came into his knowledge that the land which Abdul Majid (deceased) had given to appellant on lease was part of said piece of 27 acres, therefore, the appellant stopped payment of lease money to the deceased and started paying lease money to Aslam accused and his brothers, as owners. In the above background, now we propose to examine the evidence and contention of the learned counsel for the parties. In F.I.R. P.W.4 being the star- witness stated that on 25-10-1998 at 6 a.m. (morning) while they were going towards Chah Balochan Wala, the appellant and co-accused, Muhammad Akram and Muhammad Aslam started firing with their respective fire-arms which hit deceased on different parts of the body. The other accused also fired in the air. The emphasis of prosecution is involvement of three accused person i.e. The appellant, Muhammad Akram and Muhammad Asian. However, the nature and kind of their weapons of offence is not given in the F.I.R. By P.W.4. P.W.4 stated that firing caused by the above mentioned accused hit different parts of body of the deceased, it did not describe which parts of the body of the deceased were hit by the firing. On the other hand, in her statement before the Court, P.W.4 stated that Muhammad Aslam, accused was armed with rifle, Bashir accused was armed with .12 bore gun, Ilyas accused was armed with carbine and the remaining two accused were armed with pistols .30 bore. P.W.4 further stated that the names of said remaining accused are Muhammad Ashraf and Muhammad Akram. So this is an improvement and also contradiction between the contents of F.I.R. And statement of P.W.4 in the Court. P.W.4 further stated that in the Court that Ashraf (appellant), Muhammad Akram and Aslam accused fired with their respective weapons on her husband, Abdul Majid; she also stated that the fires. Of Ashraf and Muhammad Akram accused hit Abdul Majid, deceased. The above detail was not given in the F.I.R. P.W.5 who is also an eye witness stated the above incident differently. According to him, it was Ashraf, appellant and Aslam accused persons who had fired with their respective weapons at Abdul Majid. He clearly omitted Muhammad Akram. He further stated that accused Muhammad Akram had fired in the air.
P.W.4 did not mention parts of deceased's body which were hit by the firing despite the fact that after the occurrence she remained with the body. She also had brought the body to the hospital; she was with body at the hospital when police arrived there and recorded her statement. Therefore, the said omission on her part does not appear to be A natural. Apart from above, whole page 36 of the paper book is full of contradictions and improvements on almost every material point. For example, she stated that she had stated before the police of giving land on lease to Muhammad Ashraf and Muhammad Akram, accused; when confronted with. Exh.P.C. Name of Muhammad Akram was not mentioned. She further stated that she had stated before the police detail of fire- arms carried by all the accused at the time of occurrence; when confronted with Exh.P.C., only accused being armed with fire-arms were mentioned. P.W.4 also stated that she had recorded her statement before the police mentioning about falling down of her husband after sustaining injuries at the spot. However, when confronted with Exh.P.C. It was not so recorded. P.W.4 conceded that there was no written agreement between the parties regarding lease of the land. She conceded that she did not know any crime-empty was recovered by the police from the spot. She herself could not see anything like that there as she was in the severe shock. In her cross-examination, she conceded that originally one Jeevan Khan was owner of 72 acres of land including 14 acres of land mentioned above. P.W.5 also conceded that though 5/6 fire shots were fired by the accused persons but he did not see any crime-empty at the spot. He also conceded in his cross- examination about the litigation of the land detail of which has already been alluded to.
16. P.W.8 Muhammad Siddiq who investigated the case initially and who was the one who reached first time to the complainant as well as on the site of occurrence, stated that P.W.4/complainant had not given _ description of arms with which accused were armed at the time of occurrence.
P.W.9 Abdul Majid, S.-I. Who completed the investigation submitted that he arrested Muhammad Ashraf, appellant on 28-12-1998 and recovered rifle .7 mm through memo. Exh.P.F. On the same date. At this point, we may remind ourselves that P.W.4 mentioned in her Court statement as under:-- "Aslam accused was armed with rifle, Bashir armed with .12 bore gun, Ilyas accused with carbine, the remaining two accused were armed with pistols .30 bore. The names of said remaining accused are Ashraf and Akram."
' P.W.5 stated in his Court statement as under:-- "All of a sudden, Ashraf, Akram and Bashir accused presently in Court had raised Lalkara that deceased be taught a lesson for the litigation against Ashraf and Akram present in Court were armed with pistols."
The above mentioned P.W.4 and P.W.5 were introduced as eye- witnesses and according to their Court statements appellant was armed with .30 bore pistol. In F.I.R. P.W.4 had not mentioned at all as to with which arm the appellant was armed. Can recovery Exh.P.F. Be believed in such circumstances which shows recovery of .7 mm rifle? Obviously not P.W.4 and P.W.5 stated clearly in the Court that no crime-empty was recovered from the place of occurrence. During the course of investigation, P.W.9 declared co-accused Ilyas, Bashir and Aslam innocent as he did not find sufficient evidence against them to connect with the commission of the offence.
17. According to P.W.2 Dr. Muhammad Yahya, the time between death and injury was two hours.
According to P.W.4, the deceased was hit by accused persons at 6 a.m. And the deceased was brought by P.W.4 and P.W.6 to the hospital about 6-30/6-45 a.m., therefore, according to this narration the death was caused at the most within 45 minutes instead of two hours. Conflict between the medical version and ocular version on this count is obvious. Likewise, according to P.W.2 time between death and post-mortem was 24 hours. As stated above, the deceased was hit at 6 a.m. And died by, at the most, 6-45 a.m., his post-mortem was conducted at 4 p.m. i.e. On 25- 10-1998, hence if we go by prosecution version time between death and post-mortem is between 9 to 10 hours. Again there is a conflict between medical version and ocular version. It may further be noted that according to P.W.2, doctor injuries Nos.1 and 3 were result of one kind of weapon (injury No,2 was an exit wound) but this opinion cannot be helpful to the prosecution because P.W.4 and P.W.5, eye-witnesses gave no description in the F.I.R. And in Court statements they described appellant armed with .30 bore pistol. The P.W.9 stated that he recovered .7 mm rifle from the appellant as a weapon of offence. The recovery memo. Exh.P.F. Also indicates that it was a .7 mm rifle instead of .30 bore pistol.
18. In the backdrop of above discussion, cross-examination, of statement of P.W.9 is worth consideration and seem to us more probable than versions of prosecution and defence. He stated as under:- "It is correct that one Malik Munawar had been supporting the complainant party throughout the investigation and had been appearing from their side. It had also come to my knowledge during the investigation that even prior to this occurrence, in the case of the dispute between the complainant party and the accused Ashraf, etc., said Malik Munawar Khan had sent his four armed men to support the deceased party; lest Ashraf accused etc. Forcibly harvest the paddy crop without giving share/lease to the deceased party. It also came to my knowledge during investigation that Ashraf accused also managed some persons to counteract the threat from the complainant side as to the crops in the disputed land standing and during night of 24/25-10-1998, both the parties had resorted to firing' at each other sporadically and at 6 a.m. a fire of some one hit Abdul Majeed deceased who was removed in the injured condition to the Rural Health Centre, Hujra where he succumbed to his injuries.'
19. As a result of the above appreciation of evidence and critical examination of contentions of both parties we have reached to the conclusion that the prosecution failed to prove its case beyond any shadow of doubt. The prosecution case is loaded with doubts and benefit of doubt goes to the accused/appellant instead of prosecution. For the same, judgment of the learned trial Court is set aside. Resultantly, Criminal Appeal No,95/J of 2003 is allowed and as a result of the same, the appellant shall be released from jail if not required in any other case.
20. For the same reasons, Murder Reference No,196 of 2002 is answered in negative.