' SYED SHABBAR RAZA RIZVI, J.--- Convict/appellant Muhammad Asif alias Aasu filed Criminal Appeal No,72 of 2002. He along with Azmatullah, Zahoor-ul-Haq, Rashad Amin and Gulzar Ahmad alias Ghara (since acquitted) was tried by Mr. Muhammad Zahoor Abbasi, Sessions Judge, Sialkot, in F.I.R. No,311 of 1996, dated 28-10,1996, registered at Police Station Sambrial, District Sialkot, for murder of one Muhammad Akram. The appellant was convicted under section 302(b), P.P.C. And sentenced to death as Ta'zir vide judgment dated 14-1-2002. He was further saddled with/directed to pay compensation of Rs,1,00,000 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. Exh.P.B. 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 along with 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, Cast 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 along with aforementioned four persons. All the aforementioned four persons and his brother earlier used to roam about together in the village being friends. Complainant along with 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 along with 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 complainants 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, S.-I. P.W.12, conducted investigation of this case. He deposed that on 28-10-1996, he drafted F.I.R. Exh.P.B. At about 9-00 a.m. He inspected the spot and took the dead body, lying in paddy field, into possession, prepared injury statement Exh.P.J. 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 Exh.P.E. And Exh.P.E./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 son of Karim Bukhsh P.Ws. Who furnished evidence of Wajtakkar. He also recorded statements of Mobashar, Muhammad Khalid and Shahzad P.Ws. Then investigation was transferred to Sohail Ahmad, S.-I., the then S.H.O. Police Station Sambrial, who appeared as P.W.10 and deposed that on 20-11-1996, he recorded statement of Gulzar Ahmad, M.H.C. And Constable/980 Allah Ditta Police Station 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 Exh.P.F. 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. Exh.P.G., attested by Muhammad Ashraf and Muhammad Khalid. It was also handed over to Moharrir in a sealed parcel. He recorded statements of recovery witnesses under section 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, P.P.C. It was framed against all the five accused on 1-12-1996 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, P.W.4 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 fire-arm lacerated wound of entry 4 x 3-1/2 c.m. 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 c.m. On the front of right side of forehead.
(3) There were multiple incised wounds 10 in number and each having the size of about 1-1/2 x 1/2 c.m. x skin deep on an area of 18 x 11 c.m. On the front of chest in middle.
(4) Multiple incised wound 3 in number, each having the size 2 x 1/2 c.m. x skin deep on an area of 7 x 6 c.m. 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 haemorrhage externally and internally and caused shock and death in an ordinary course of nature. Injuries Nos.2, 3 and 4 were caused by sharp-edged weapon injuries Nos.1 and 2 were ante-mortem.
7. The ocular account was furnished by Muhammad Afzal P.W.2 and Tahir Saeed P.W.3, who supported the prosecution version as well as motive for the occurrence as stated in the complaint.
8. Ihsanullah Constable No,1138, P.W.1, escorted the dead body to the mortuary and handed over last-worn clothes of the deceased, Shalwar P.1, Qameez P.2 and phail containing pellets to the S.H.O., given to him by the doctor. Gulzar Ahmad, H.C. 89, P.W.5, kept a sealed parcel containing blood-stained earth in Malkhana in tact and handed over the same to Allah Ditta Constable 980 for onward transmission to the office of Chemical Examiner, Lahore. Masood Ahmad Bhatti, Draftsman, P.W.6, prepared site plan Exh.P.E. And Exh.P.E./1. Allah Ditta Constable No,980, P.W.7, delivered a sealed parcel containing blood-stained earth and Liaqat A.S.-I. P.W.11, joined accused Rashad Amin who was on bail in police investigation. Dr. Muhammad Asif Mughal, P.W.4, furnished medical evidence, detailed above. Muhammad Khalid P.W.8 furnished the evidence of Wajtakkar and recovery of carbine P.4, Khaunchi P.5 through recovery memos. Exh.P.F. And Exh.P.G. He deposed that on 27-10-1996 at about 9-15 p.m. He was present along with Shehzad son of Yousaf on the sweet shop of Bhutto when Asif, Azmatullah accused along with 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, P.W.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 had 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 P.Ws. 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 Exh.P.F. And Exh.P.G.
9, The prosecution evidence was .Closed by tendering in evidence reports of Chemical Examiner Exh.P.L. And that of Serologist Exh.P.M.
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 D.W.1, Exh.D.A., affidavit of Kishwar Bibi mother of deceased Muhammad Akram Exh.D.B., affidavit of Mst. Azra Bibi widow of deceased Exh.D.C., certified copy of, affidavit of Muhammad Ashraf father of deceased Exh.D.D., certified copy of Muhammad Afzal, brother of deceased Exh.D.E., copy of bail order, dated 9-10-1997, Exh.D.F. And closed his defence evidence. He also produced Iftikhar Ahmad as D.W.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 P.Ws. Deposed against him), stated as under:- "All the P.Ws. 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 daylight, 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 of 2002 for confirmation of death sentence of Muhammad Asif alias Aasu. The appellant filed Criminal Appeal No,72 of 2002. While the complainant Muhammad Afzal filed Criminal 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 learned counsel for the appellant contends that P.W.2 and P.W.3 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 P.W.9 was worthless being hearsay and for the reason that his name was not mentioned in the F.I.R. 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 F.I.R. Clearly indicates that it was an unwitnessed occurrence; that the weapon was not specified in the F.I.R. 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 Additional 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 fire-arm injury; that the delay in F.I.R. Stood explained by the P.Ws.; 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 F.I.R. Through P.W.2 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 along with three other co-accused mentioned in F.I.R. 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 P.W.2, 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 Maaiik Ghumman they witnessed in the light of electric bulbs 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 Khaunchi. In the same condition, the accused persons dragged the deceased towards - fields of Muhammad Iqbal. Gara Qasai again caused 3/4 blows with the said Khaunchi which caused injuries at different parts of deceased body. The appellant fired with his fire-arm 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, P.W.2 gave a new twistbefore 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 P.W.2 was informed by his parents that the deceased had not come to them. Thereafter, P.W2's father P.W.9 proceeded to the house of appellant to inquire about the deceased. P.W.9 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. P.W.9 after giving above information to P.W.2 advised him to carry on search and he himself left to offer the morning prayers. Thereafter, P.W.2, Tahir Saeed P.W.3 and Mst. Azhara went out to search the deceased as narrated in the F.I.R.
16. In the F.I.R., appellant's name is mentioned along with three others i.e. Gulzar alias Gara, Almaroof Zahoora, Rashid Butt, however, during the statement before the Court P.W.2 introduced another accused Azmat Ullah. According to P.W.2, Azmat Ullah came for condolence and also confessed that he had also participated in the occurrence but had left before arrival of P.W.2 and other P.Ws. At the scene of occurrence.
17. As stated above P.W.2 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 P.W.2's statement very carefully on all material points at pages 47 and 48, there are discrepancies, contradictions and improvements. P.W.2, neither in F.I.R. Nor in his statement before Court mentioned the nature of fire-arm weapon by the appellant. For example, he deposed, "then Asif accused fired a shot with his fire-arm on the right temple of the deceased". However, P.W.3 mentioned fire-arm in the Court only, i.e. Carbine. P.W.3 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 Iqbal Khan. However, according to P.W.4 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 P.W.9. 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 the whole his life in police department as a constable. He conceded to the suggestion that during his service he remained associated with the Investigating Officers and he served at Police Station Sambrial.
18. P.W.6 Draftsman conceded suggestion that almost all important points were not shown by him in the site plan for one reason or another. P.W.10/Investigating Officer conceded that Khaunchi weapon of offence was not blood-stained. It may be recalled that according to P.W.2 and P.W.3, 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. P.W.10 further conceded in his cross-examination that in Exh.P.F./1 there was no mention of recovery witness or their presence.
19. P.W.4 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 fire-arm weapon. According to P.W.3, the fire-arm was a .12 bore carbine. According to P.W.2. And P.W.3, the deceased was also hit several times by the iron Khaunchi on different parts of body yet deceased's cloths were neither blood-stained nor they had any cuts or holes. According to P.W.4, on dissection both fascia in underlying muscle were cut, skull bone was perforated and the tenon 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- 1/2 c.m. x skin deep in an area of 8 x 8 c.m. 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 1- 1/2 x 1/2 c.m. x skin deep on an area of 18 x 11 c.m. 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 P.W.4, 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 of 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 of 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 of 2002 is answered in the Negative.