Syed Shabbar Raza Rizvi, J.--Convict/appellant Muhammad Aasif alias Aasu filed Crl. Appeal. No. 72 of 2002. He alongwith Azmatullah, Zahoor-ul-Haq, Rashad Amin and Gulzar Ahmad alias Ghara (since acquitted) was tried by Mr. Muhammad Zahoor Abbasi, Sessions Judge, Sialkot, in FIR No. 311/96, dated 28.10.1996, registered at P.S. Sambrial, District Sialkot, for murder of one Muhammad Akram. The appellant was convicted under Section 302(b) PPC and sentenced to death as Ta'zir vide judgment dated 14.01.2002. He was further saddled with/directed to pay compensation of Rs.
100,000/- under Section 544-A Cr.P.C. to the legal heirs of the deceased and in default whereof, to further undergo S.I. for six months.
2. Muhammad Afzal, the complainant, lodged F.I.R Ex. PB stating therein that he was resident of village Jaithikay Tehsil Daska and was working in the factory of Sh. Zafar Iqbal as a labourer, in Sialkot. In the previous night complainant alongwith his brothers Muhammad Akram alias Gogha, Tahir Saeed and other family members were present in his house when at about 9.00 p.m.
Muhammad Asif son of Faryad Hussain, Caste Kashmiri, Gulzar alias Ghara son of Inayat, Caste Chughtai, Zahoor alias Zahoora son of Maulvi Siraj, Caste Kakay Zai, resident of Deh and Rashad Butt, resident of Dhananwali came to his house. Muhammad Asif knocked the door and called Muhammad Akram, brother of the complainant outside who left the house alongwith aforementioned four persons. All the aforementioned four persons and his brother earlier used to roam about together in the village being friends. Complainant alongwith other family members slept as usual and they woke up at 4.00 a.m. Muhammad Akram was not present in their house.
They got worried and started search of his brother. At about 4.45 a.m complainant alongwith his brother Tahir Saeed and Mst. Azra Bibi wife of his brother Muhammad Akram went for search of Muhammad Akram. When they reached near the paddy field of Muhammad Maalik Ghumman, they witnessed in the moonlit as well as in the light of electric bulbs that all the aforementioned accused were giving beating to Muhammad Akram. Gulzar alias Ghara armed with an iron `Khaunchi' was inflicting `Khaunchi' blow to Muhammad Akram. Thereafter, accused dragged Akram to an adjacent field of paddy crop of Muhammad Iqbal where again Ghara accused inflicted `Khaunchi' blows to him on various parts of his body. Thereafter, Rashad Butt and Zahoor accused inflicted kick and fist blows and also caught hold of Akram. Then, appellant Muhammad Asif fired at Muhammad Akram which hit him on his right temporal region. Akram after receipt of fire arm injury became injured and fell down. All the four accused allegedly gave threats to the' complainant's not to come near them; otherwise they would be done to death. After a short while complainant's brother Akram succumbed to the injuries at the spot and aforementioned 4 accused persons allegedly fled away from the spot.
3. The motive of alleged occurrence was a money dispute between the aforementioned accused and brother of the complainant due to which a quarrel had also taken place between them a few days earlier. But the complainant had patched up matter. Complainant waited for his relatives to come from Rawalpindi, thereafter he reported the matter to the police at about 9 a.m. on 28.10.1996.
4. Razzaq Ahmad, Sl, PW-12, conducted investigation of this case. He deposed that on 28.10.1996, he drafted F.I.R Ex.PB at about 9.00 a.m. He inspected the spot and took the dead body, lying in paddy field, into possession, prepared injury statement Ex.PJ and thereafter he sent the dead body to Civil Hospital Daska for postmortem under the escort of Iftikhar Ahmad and Ihsanullah constables. He got prepared' site-plan through 'draftsman Ex. PE and Ex.PE/1. This witness recorded statements of Azra Bibi, Tahir Saeed, Muhammad Sarwar Khan, Ihsanullah constable, Iftikhar constable and also recorded supplementary statement of Muhammad Afzal complainant on the same day. He also recorded statements of Muhammad Iqbal, Ashraf s/o Karim Bukhsh PWs who furnished evidence of Waj-Takar. He also recorded statements of Mobashar, Muhammad Khalid and Shahzad PWs. Then investigation was transferred to Sohail Ahmad, SI, the then SHO, P.S. Sambrial, who appeared as PW-10 and deposed that on 20.11.1996, he recorded statement of Gulzar Ahmad, MHC and constable/980 Allah Ditta P.S. Sambrial. On 22.11.1996, he arrested Muhammad Asif, Gulzar Ahmad and Azmatullah accused in this case. On 1.12.1996, he recovered Carbine p.4 from Muhammad Asif alias Aasu accused from his residential house. Carbine was taken into possession vide' Ex. PF. He handed over the same to Moharrir after making it into a sealed parcel for its safe custody in the Malkhana. Then. he recovered Khaunchi p.5 from the custody of Azmatullah from his residential house which was taken into possession vide memo Ex.PG, attested by Muhammad Ashraf and Muhammad Khalid. It was also handed over to Moharrir in a sealed parcel. He recorded statements of recovery witnesses u/S. 161 Cr.P.C. After completion of the investigation, the accused were challaned to the Court.
5. The charge was framed under Section 302/34 PPC. It was framed against all the five accused on 01.12.1996 to which they pleaded not guilty and claimed for the trial. During the trial the prosecution examined as many as 12 witnesses to prove the guilt of the accused persons.
6. The medical evidence was furnished by Dr. Muhammad Asif Mughal, M.O. THQ, Hospital, Daska, PW4 who on 28.10.1996 conducted the post mortem examination on the dead body of Muhammad Akram and found the following injuries on his person:--
1. A firearm lacerated wound of entry 4 x 33 cm obliquely into cranial cavity deep, on the right trion region, margins were everted blackening signs present. It was the entry wound.
2. There were multiple incised wounds 5 in number each having the size about 2-1/2 x skin deep in an area of 8 x 8 cm on the front of right side of forehead.
3. There were multiple incised wounds 10 in number and each having the size of about x 1/2 cm x skin deep on an area of 18 x 11 cm on the front of chest in middle.
4. Multiple incised wound 3 in number, each having the size of 2 x 1/2 cm x skin deep on an area of 7 x 6 cm on the outer aspect of right chest in middle.
In the opinion of the doctor, the cause of death was shock due to Injury No. 1 which caused trauma to the vital organ i.e. brain matter which led to excessive hemorrhage externally and internally and caused shock and death in an ordinary course of nature. Injury Nos. 2, 3 and 4 were caused by sharp edged weapon. Injury Nos. 1 and 2 were ante mortem.
7. The ocular account was furnished by Muhammad Afzal PW-2 and Tahir Saeed PW-3, who supported the prosecution, version as well as motive for the occurrence as stated in the complaint.
8. Ihsanullah Constable No. 1138, PW-1, escorted the dead body to the mortuary and handed over last worn clothes of the deceased Shalwar p.1, Qameez p.2 and phial containing pellets to the SHO, given to him by the doctor. Gulzar Ahmad, HC 89, PW-5, kept a sealed parcel containing blood stained earth in Malkhana intact and handed over the same to Allah Ditta Constable 980 for onward transmission to the office of Chemical Examiner, Lahore. Masood Ahmad Bhatti Draftsman, PW-6, prepared site-plan Ex, PE and Ex.PE. Allah Ditta Constable No. 980, PW-7, delivered a sealed parcel containing blood stained earth and Liaqat ASI PW-11, joined accused Rashad Amin who was on bail in police investigation. Dr. Muhammad Asif Mughal, PW-4, furnished medical evidence, detailed above. Muhammad Khalid PW-8 furnished the evidence of Waj Takkar and recovery of carbine p.4, Khaunch? p.5 through recovery memos Ex.PF and Ex.PG. He deposed that on 27.10.1996 at about 9.15 p.m. he was present alongwith Shehzad son of Yousaf on the sweet shop of Bhutto when Asif, Azmatullah accused alongwith Akram deceased passed from said place and Asif accused was armed with an iron 'Khaunchi'. On 1.12.1996, he was present in Police Station when accused Asif and Azmatullah made disclosure for the recovery of their respective weapons of offence. He also attested the memos of recovery. Muhammad Ashraf, PW-9, furnished circumstantial evidence and also witnessed recovery of last worn clothes of deceased shalwar p.1 and shirt p.2. He deposed that on the information that Muhammad Akram deceased had not returned, he went to the house of Asif accused. The mother of Asif accused told him that all the accused namely Asif, Rashad. Gulzar and Zahoorul Haq accompanied by the deceased Muhammad Akram alias Gogha had stayed in the house of Asif accused for the night and they had left the house shortly before his visit to the house of Asif. Thereafter, he went to offer his morning prayers and when he returned after prayer, he was informed by his son Muhammad Afzal that the above said accused and murdered deceased, He further deposed that Azmatullah accused came to them and told them that he was included in the assailants of the deceased and had run away on the arrival of the PWs. He also witnessed the disclosure of recovery of Carbine p.4 made by Asif and Khaunchi p.5 made by Azmatullah accused. He also attested the recovery Memos of respective recoveries Ex.PF and Ex. PG.
9. The prosecution evidence was closed by tendering in evidence reports of Chemical Examiner Ex.
PL and that of Serologist Ex.PM.
10.After the close of the prosecution evidence, the statements under Section 342 Cr.P.C. of all the five accused were recorded. All the accused persons denied the allegations and claimed their innocence. Only Rashad Amin accused opted to produce 'his defence evidence. He tendered in evidence Nikahnama of Iftikhar Ahmad DW-1, Ex.DA, affidavit of Kishwar Bibi mother of deceased Muhammad Akram Ex.DB, affidavit of Mat. Azra Bibi widow of deceased Ex. DC, certified copy of affidavit of Muhammad Ashraf father of deceased Ex. DD. certified copy of Muhammad Afzal, brother of deceased Ex.DE, copy of bail order dated 9.10.1997 Ex. DF and closed his defence evidence. He also produced Iftikhar Ahmad as DW.1 who deposed that on the day of occurrence, Rashid Ameen, being his cousin, remained in his village for participating in his marriage ceremony and making arrangement for his Waleema. The appellant/accused in reply to Question No. 13 (as to why the case against him and why the PWs deposed against him), stated as under: "All the PWs are closely related inter se. None from the locality appeared or produced by the complainant before the police to corroborate their version. In fact it was an unseen occurrence.
Complainant and his father who is a retired police official when came to know about the death of Akram deceased at about 8/9.00 a.m., they went to the police station and after an illegal consultation they had concocted the above story. That is why inordinate delay has been caused in lodging the F.I.R, under some baseless pretext stated in the F.I.R, Father of the complainant being a greedy person and retired police official had been bargaining with the different persons of village and I could not meet with his demands, hence he involved me in the occurrence. However, it is clear like day light, in the village that the deceased was an addict of heroin. He had also been selling the heroin in the village. Thus he might had been done to death by his unknown friends, i.e. heroin suppliers."
11.The trial culminated into conviction and sentence of the appellant as mentioned above and acquittal of co-accused Azmatullah, Zahoorul Haq, Rashad Amin and Gulzar Ahmad. The trial Court sent up Murder Reference No.90/2002 for confirmation of death sentence of Muhammad Asif alias Aasu. The appellant filed Crl. Appeal No. 72 of 2002. While the complainant Muhammad Afzal filed Crl. Appeal No. 73 of 2002 against acquittal of above mentioned four co-accused, All the matters above-mentioned are being decided by this consolidated single judgment.
12.The teamed counsel for the appellant contends that PW2 and PW3 both were related to the deceased and were chance witnesses; that they miserably failed to explain their presence at the time of occurrence, that both of them made dishonest improvements during their statements recorded by the learned trial Court; that the statement of PW9 was worthless being hearsay and for the reason that his name was not mentioned in the FIR at all; that the prosecution also failed to prove motive; that the medical evidence did not support the ocular account; that the inordinate delay in lodging the FIR clearly indicates that it was an unwitnessed occurrence; that the weapon was not specified in the FIR at all and subsequently a carbine was allegedly recovered at the instance of the appellant, however, the recovery was of no consequence as no empty was recovered from the spot; neither carbine was sent to any Expert to determine whether it was in working order or not; that the prosecution case was not free from doubt.
13.The learned Addl. Prosecutor General, Punjab, submits that the occurrence took place near the house of the complainant so his presence at the spot was not unnatural; that the ocular account was supported by the medical evidence to the extent of appellant as the deceased lost his life due to firearm injury; that the delay in FIR stood explained by the PWs; that the recovery evidence was available against the appellants and supports the impugned judgment of the learned trial Court.
14.We have heard the learned counsel for the appellant as well as learned Additional Prosecutor General, Punjab at length.
15.The prosecution version given In the FIR through PW2 is that on the night of 27.10.1996, he was present at his residence as usual with other members of the family. At about 9 p.m., the appellant alongwith three other co-accused mentioned in FIR came, the appellant knocked at the door, whereupon deceased went at the door to meet them. Thereafter, deceased Muhammad Akram left the house with the accused persons as five of them were friends and used to roam about together.
According to PW2, he woke up at about 4 a.m. (28.10.1996) and found deceased missing from his bed. He with Tahir Saeed, brother and Mst. Azhara Bibi, wife of the deceased started search. When they reached near paddy crop of Muhammad Maalik Ghumman they witnessed in the light of electric bulb and moonlight that the deceased was being beaten by the appellant and his co- accused. One of the co-accused, Gara Qasai was hitting deceased with iron KHUNCHI. In the same condition, the accused persons dragged the deceased towards fields of Muhammad Iqbal. Cara Qasai again caused 3/4 blows with the said KHUNCHI which caused injuries at different parts of deceased body. The appellant fired with his firearm weapon (description of weapon was not given). The shot hit the deceased on the right temple. After receiving the injury the deceased fell on the ground. The deceased died of the same injuries at the spot. However, PW2 gave a new twist before the trial Court and stated that after having known that the deceased had not returned until 4 a.m. on. 28.10.1996, he proceeded to the house of his parents and inquired from them about deceased. PW2 was informed by his parents that the deceased had not come to them. Thereafter, PW2's father PW9 proceeded to the house of appellant to inquire about the deceased. PW9 was informed by mother of the appellant that the deceased and appellant were together in their house and that they had left a short time ago. PW9 after giving above information to PW2 advised him to carry on scorch and, he himself left to offer the morning prayers. Thereafter, PW2, Tahir Saeed PW3 and Mst. Azhara went out to search the deceased as narrated in the FIR.
16.In the FIR, appellant's name is mentioned alongwith three others i.e. Gulzar alias Gara; Aimaroof Zahoora, Rashid Butt, however, during the statement before the Court PW2 introduced another accused Azmat Ullah. According to PW2, Azmat Ullah came for condolence and also confessed that he had also participated in the occurrence but had left before arrival of PW2 and other PWs at the scene of occurrence.
17.As stated above, PW2 made improvement in the Court in his statement before the police which is irreconcilable with above facts to judicial mind. It is difficult to have both versions, one in F.I.R and another in Court, together. As a matter of fact, they are completely in conflict with each other if we examine PW2's statement very carefully on all material points at page 47 and 48, there are discrepancies, contradictions and improvements. PW2, neither in FIR nor in his statement before Court mentioned the nature of firearm weapon used by the appellant. For example, he deposed, "then Asif accused fired a shot with his firearm on the right temple, of the deceased." However, PW3 mentioned firearm in the Court only, i.e. carbine. PW3 stated that the appellant and co-accused were beating deceased in the paddy field of Muhammad Maalik Ghumman and then they dragged deceased to a nearby field of lqbal Khan. However, according to PW4, Dr. Asif, no mark of dragging was found on the person of the deceased. Muhammad Ashraf, father of the deceased, appeared before the Court as PW9. He conceded in his deposition that his statement was never recorded under Section 161 Cr.P.C. by the police. In such a situation apparently there was no need or legal compulsion to have his statement recorded in the Court. He also conceded to the suggestion that he served for whole his life in police department as a Constable. He conceded 'to the suggestion that during his service he remained associated with the I.Os. and he served at P.S. Sambrial.
18.PW6 Draftsman conceded suggestion that almost all important points were not shown by him in the site-plan for one reason or another. PW10/I.O. conceded that `KHUNCHI' weapon of offence was not blood stained. It may be recalled that according to PW2 and PW3, accused Gulzar alias Gara had caused a number of injuries on different parts of the deceased with iron 'Khaunchi' yet it was not blood stained. PW10 further conceded in his cross- examination that in Ex.PF/1 there was no mention of recovery witness or their presence.
19. PW4 Dr. Asif Mughal conducted the post mortem on 28.10.1996 upon the dead body of the deceased. According to him, last worn clothes of the deceased were not stained with blood. He further stated that no corresponding cuts were noticed in clothes and there was no mark of dragging either. According to the prosecution story, the deceased was hit by shots of firearm weapon. According to PW3, the firearm was a 12-bore carbine. According to PW2 and PW3, the deceased was also hit several times by the iron Khaunchi on different parts of body yet deceased's clothes were neither blood stained nor they had any cuts or holes. According to PW4, on dissection both fascia in underlying muscles were cut, skull bone was perforated and the terion region as well, and there were multiple fractures at different places of skull bone. Blood was collected in between the membranes and cranial cavity. Membranes were perforated at different sides. Underlying brain matter was destroyed and contained blood. Right optic nerve was also destroyed; There was fracture on base of skull bone and fracture on frontal bone of skull and nasal septum. Multiple foreign body about 50 in number which were tinning and metallic were brought out from different sides of the brain. There were multiple incised wounds 5 in number each having the size about 2% cm x skin deep in an area of 8 x 8 cm on the front of right side of forehead. The doctor further noted that there were multiple incised wounds, 10 in number and each having the size of about 13 x 1/2 cm x skin deep on an area of 18 x 11 cm on the front of chest in middle, yet he opined that the last worn clothes were not blood stained. In the presence of above finding and the opinion of PW4, the prosecution version is highly improbable.
20.The nutshell of the above discussion and analysis is that the prosecution failed to prove its case beyond any shadow of doubt. Resultantly, Criminal Appeal No.72/2002 filed by Muhammad Asif alias Aasu, appellant is allowed, his conviction and sentence is set aside and he is acquitted of the charge. He shall be released forthwith if not required in any other case. Criminal Appeal No.73/2002 against acquittal of Azmat Ullah son of Akbar Ali and Zahoor ul Haq son of Siraj ul Haq is dismissed in the above circumstances.
21.Murder Reference No. 90/2002 is answered in the Negative.