' MUHAMMAD FARRUKH MAHMUD, J.---Saifullah-appellant, Muhammad Asif, Ahmad Sher, Allah Ditta and Allah Yar were tried by the learned Additional Sessions Judge, Chiniot, in case F.I.R. No.50 registered at Police' Station Saddar Chiniot on 24-1-1999 for offences under sections 302/34, P.P.C.
During trial, as there was no incriminating evidence against Muhammad Asif and Allah Ditta, accused, they were acquitted by the learned trial Court under section 265-K, Cr.P.C. Vide order dated 25-8-2001. However, the learned trial Court, vide its judgment dated 24-9-2001, while acquitting Ahmad Sher and Allah Yar, co-accused, convicted Saifullah appellant for offence under section 302(b), P.P.C. And sentenced him to death plus payment of Rs.1,50,000 as compensation to the legal heirs of the deceased, in default whereof to undergo S.I. For six months.
2. Saifullah, convict/appellant, has challenged his conviction and sentence through the instant appeal. Murder Reference No.701 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 judgment.
3. The brief facts of the case per complaint Exh.PB presented to Muhammad Younus, Inspector/P.W.7, by Sarang Ali, complainant/P.W.2, which based the registration of formal F.I.R.
Exh.PB/2, are that Humayun alias Hamaoon, brdther-inlaw (Behnoi) of complainant, along with his family lived in his Dhari. The complainant and Khizar Hayat/P.W.3 were also present in a. Room of the said Dhari along with Humayun and his family members. At about 7-00 p.m. After taking meals they all were gossiping with each other when Saif appellant, while standing outside the entrance gate, which was closed, inquired from Humanyn about the latter's brother Ahmad Sher who was living in Chakwal. Humayun told the accused that Ahmad Sher had not yet returned from Chakwal.
Meanwhile the accused asked for opening the door, whereupon Mst. Dauli/P.W.4, the sister of the complainant, opened the door. Saifullah armed with rifle and two other unknown persons who were also armed with fire arms entered the house. Saifullah caused a fire which hit on the left side of the chest of Humayun. The second fire-shot by Saifullah hit Humayun on his left flank. The two unknown accused overpowered Mst. Dauli and raised Lalkara that if anybody came near or moved, he would be done to death. On account of fear the complainant and Khizar Hayat did not get up from the places where they were sitting. Humayun fell down and succumbed to the injuries at the spot. On the alarm raised by the P.Ws., the accused, while leaving behind some empties and some live cartridges, decamped from the scene of occurrence.
' The motive behind the occurrence was that 30/32 years prior to the occurrence, maternal grandfather (Nana) was murdered by Humayun, who was convicted and sentenced therefor.
4. On 24-1-1999 at 9-20 when Muhammad Younas, Inspector/P.W.7, was present at Adda Harsa Sheikh in connection with patrol duty, Sarang/complainant appeared before him and presented written application Exh.PB, which was sent to the police station where formal F.I.R. Exh.PB/2 was registered. Thereafter, the Investigating Officer/IO went to the place of occurrence; prepared injury statement Exh.PE and inquest report Exh.PF of the deceased and sent the dead body for postmortem examination. The Investigating Officer prepared the rough site-plan Exh.PG of the place of occurrence. He also collected blood-stained earth from the spot and sealed the same into a parcel vide Memo. Exh.PC. He also collected two empties P.1, P.2 and two live cartridges P.3 and P.4 from the spot and took the same into possession vide memo. Exh.PD. The Investigating Officer got prepared the scaled site-plan Exh.PA of the place of occurrence from the draftsman. After completion of investigation, the appellant along with his co-accused was sent up to face trial.
5. During trial prosecution produced thirteen witnesses in support of its case. After tendering in evidence the reports of Chemical Examiner Exh.PJ, Bacteriologist Exh.PK and Forensic Science Laboratory Exh.PL, the prosecution closed its side. The statements of Muhammad Zafar/ Inspector and Muhammad Munir Ahmad/ D.S.P., who also partially investigated the case, were also recorded as C.W.1 and C . W .2.
6. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false implication in the following words:- "I am innocent. In fact I was not born at the time of murder of my Nana Sultan Mahmood by the deceased Humayun, which took place 32 years prior to this occurrence. Humayun deceased was challaned and was convicted and undergone the sentence. Both the parties including the deceased, lived in the same village peacefully and no untoward incident took place.
' My uncle Zafarullah Khan had dispute regarding land taken on lease from Khizar Hayat and his brother Aslam Khan P.Ws. Which was contested before the Civil Court, hence, they were inimical towards us. In fact deceased was murdered by unknown persons. I am innocent and was declared so by the Investigating Officer on the basis of sound material of evidence produced by me and my co-accused namely Allay Yar, Ahmad Sher and Allah Ditta."
' However, neither the appellant made his statement under section 340(2), Cr.P.C. Nor did he produce any witness in his defence.
7. Learned counsel for the appellant contends that the complainant dishonestly introduced Khizar Hayat, who was his maternal uncle, as a witness in the case; that Mst. Dauli was not an independent witness and she has towed the line of evidence introduced by Sarang Ali; that when grandfather (Nana) of Saifullah was murdered 30/32 years before the occurrence, the appellant was not even born, so he had no motive; that there is no evidence that during the period of 30/32 years any altercation ever took place between the appellant and the deceased; that Sarang complainant of the case admitted that five arbitrators were nominated by the parties which indicates that it was an unwitnessed occurrence or at least the assailant could not be identified at the time of occurrence; that the case was investigated by various police officers and the appellant had joined all the investigations of the case and was never declared proclaimed offender; that during all the investigations, the appellant was found innocent. On that regard the learned counsel has referred to the statements of C.W.1 and C.W.2 who had investigated the case; that Mst. Dauli has also made a tainted statement by introducing the names of Ahmad Sher and Allah Yar in her testimony; that if she had identified Ahmad Sher and Allah Yar, then their names must have been incorporated in the application which made the basis for registration of formal F.I.R.; that the opinion recorded by the police about the innocence of the appellant had more force in the instant case, as the complainant of the case was himself a police employee. The learned counsel has submitted that it would be unjust to convict Saifullah on the sole testimony of Mst. Dauli who was under the influence of the complainant.
8. Conversely, learned counsel for the complainant submits that Saifullah was named as accused right from the beginning; that all the witnesses have given a very consistent account that fatal injury is attributed to Saifullah-appellant alone; that at least the presence of Mst. Dauli could not be denied, as she was inmate of the house; that she has also named Saifullah as the principal accused; that the statements of the P.Ws. Are fully supported by the medical evidence; that the statements of C.W.1 and C.W.2 were only police opinion, as the C.Ws. Were not eyewitnesses and, hence, their concession given to the appellant would be of no consequence; that the prosecution has successfully proved the motive against the appellant; that in order to save the appellant, C.W.1 and C.W.2 dishonestly involved Muhammad Asif in this case; that the appellant came armed with deadly weapon and took life of an innocent person by repeatedly firing upon him and as such, no mitigating circumstances exist in his favour and he has rightly been convicted and sentenced to death.
9. We have heard the learned counsel for the parties at a great length and have scanned the entire record of the case.
10. The occurrence took place on 24-1-1999 during night at 7-00 p.m. The matter was reported by Sarang Ali P.W.2 through written application to Muhammad Younas, S.H.O./P.W.7, who, per chance, was present at Adda Harsa Sheikh at 9-20 p.m., after more than two hours of the occurrence. The written application was addressed against Saifullah appellant and two others, who were not previously known to the complainant. According to F..LR., Humayun deceased who was husband of the sister of Sarang-complainant lived at his Dhari along with his wife and children. On the fateful night, the complainant and P.W. Khizar Hayat, who is maternal uncle of the complainant, were sitting in the house of the deceased and were gossiping after having dinner at 7-00 p.m.
Saifullahappellant reached there and while standing outside the entrance gate, which was closed, enquired from Humayun about Humayun's brother Ahmad Sher. Humayun informed the accused that Ahmad Sher was in Chakwal and had not returned. Thereafter the accused insisted on opening the door. Mst. Dauli opened the door. Saifullah, who was armed with rifle, along two others, who were also armed but not known to the complainant, entered the house.. Saifullah caused fire which hit on the left side of the chest of. Humayun. Saifullah repeated the fire which hit on the left flank. The two companions of Saifullah held Mst. Dauli wife of the deceased. Due to injuries, Humayun fell down and died on the spot. The accused left the scene of occurrence after leaving some empties and some live cartridges. The motive behind the occurrence was that 30/32 years ago, grandfather (Nana) of Saifullah was murdered by Humayun. Humayun was convicted and sentenced. The prosecution case rests on the statements of Sarang/ P.W.2, Khizar Hayat/P.W.3 and Mst. Dauli/P.W.4. All the three related to the deceased. Sarang Ali and Khizar Hayat were chance witnesses. However, the presence of Dauli at the time of occurrence could not be denied as she was the wife of the deceased. Sarang Ali admitted that he resided at a separate Dhari which was at a B distance of 4/5 Killas from the house of the accused, while Khizar Hayat P.W. Used to reside with him at the time of occurrence. He also admitted that he and Khizar Hayat had gone to the house of the deceased just to have "Gup-Shup" and there was no special occasion for the visit.
Undeniably, Sarang -Ali was an employee of police constabulary and on the day of occurrence was posted at Farooqabad which was at a distance of fifty kilometers from the place of occurrence. In order to justify his presence at the time of occurrence, he volunteered the information that he was not granted leave on Eid, therefore, he absented from his duty and went to his village. According to him, two days prior to the occurrence, Eid was observed and he remained absent from duty for about 7/8 days. He never came out with information as to whether any action was taken against him or not. However, he stated that he could not produce any certificate from his department to prove his absence from duty on the date of occurrence. In addition to that this witness, who claimed to have studied up to 8th Class and who was a member of police force, stated that the written application Exh.PB was not written by him and he had got it drafted from some resident of the village whose name he did not remember. According to him, Adda Harsa Sheikh where the application was presented to the police officer was at a distance of 7/8 Kilometers from his village. He was dropped at the Lorry Adda of the village on a motorcycle by Azhar residence of the locality. He added that the lorry Adda was at a distance of two Kilometers from his Dera. According to him, he left his village for reporting the matter after one hour of the occurrence and per chance he spotted the police at Adda Harsa Sheikh which was at a distance of 8/10 Kilometers from the police station.' After spotting the police, he alighted from the bus and presented the written application to the S.H.O. It is more than apparent that the complainant was making desperate attempts to cover the delay in lodging of F.I.R. The police station was at a distance of 12 miles from the spot. The buses used to ply between police station and the village where the occurrence took place. One could easily C report the matter at police station within an hour, while in this case, the case was registered after three hours of the occurrence, whereas the matter was reported to the S.H.O. At Adda Harsa Sheikh where the S.H.O. Was present by chance. It has been observed by the superior Courts in a number of judgments that the F.I.Rs. Which are not recorded at the .Police stations carry a presumption that those were drafted at the spot after due deliberations. It is not believable that Sarang who was a police employee would risk his service by remaining absent from duty for 7/8 days. His coming to village on the occasion of Eid without leave is understandable but his remaining absent from duty after the Eid at the risk of his employment is beyond comprehension. It appears that he, being a police employee, was summoned from Farooqabad after the occurrence to play the role of complainant.
11. All the witnesses made dishonest improvements in their statements recorded by the learned trial Court as against the written application Exh.PB. The Oomplainant modified his statement by stating that somebody not known to the P. Ws. Inquired about Ahmad Sher and Humayun deceased advised the inquirer to have information about Ahmad Sher from the adjacent Dhari. Thereafter the persons who were outside the door insisted on opening the door for the reason that they had come from a far-off place and they were unable to locate the Dhari of Ahmad Sher. Hence, Mst. Dauli opened the door. Khizar Hayat/P.W.3 on the same point stated that somebody knocked at the door of the house of Humayun and stated that they had come to see Ahmad Sher brother of the deceased who was at Chakwal and Mst. Dauli opened the door. Mst. Dauli also stated that somebody knocked at the door and inquired about Ahmad Sher brother of the deceased. The person who. Knocked at the door was informed by Humayun that Ahmad Sher was at Chakwal.
Thereafter the persons who were outside the gate stated that they had come from Lahore and had no knowledge about the Dhari of Ahmad Sher and it was dark. They insisted to open the door and Mst, Dauli obliged. This story has been invented against the F.I.R. For the reason that the inmates of the house would not open the door of their house during night at the knock of their enemy. So all the three witnesses made dishonest improvements in their own ways' and were duly confronted with their 'earlier statements. It is also note- worthy that in F.I.R. The names of Ahmad Sher and Allah Yar (acquitted co-accused) were not mentioned nor their description was given nor their weapons were specified.. Contrary to F.I.R., Mst. Dauli named Ahmad Sher and. Allah Yar as companions of Saifullah. Khizar. Hayat also named Ahmad Sher and Allah Yar as accompanying accused of Saifullah in his examination-in-chief. During cross- examination he came out with the explanation that Saifullah had not muffled his face when he entered the room. However, Ahmad Sher and Allah Yar had muffled their faces and faces of Ahmad Sher and Allah Yar were visible when they grappled with Mst. Dauli and for that reason he and Dauli identified Ahmad Sher and Allah Yar. Needless to say both these witnesses were confronted with their earlier statements, wherein the names of Ahmad Sher and Allah Yar were not mentioned. It does not appeal to reason that while the accompanying accused had muffled their faces, the principal accused would take no precaution to hide his identity. The complainant on that point stated that when he returned to the spot after lodging the F.I.R., he was told by Khizar Hayat that the accompanying accused were identified as Ahmad Sher and Allah Yar. It is pertinent to note that Mst. Dauli never stated that any of the accused had muffled his face and she identified the accused after the drop of the veil during scuffle. The statements of P.Ws. Mst. Dauli and Khizar Hayat are not only against their earlier statements but are also contradictory to F each other. Even otherwise, Ahmad Sher and Allah Yar were well-known to the P.Ws. And had they entered the house of the deceased, their names must have been mentioned in the F.I.R. Sarang had not left the house within a second of the occurrence.
He must have taken some time to take care of his brother-in-law who had been critically wounded and thereafter he would have left the house. It was not possible that the P.Ws. Would not have told him the names of the accompanying acquitted accused. Further more, the complainant claims to be eye-witness. In that case he would have either supported the story of Mst. Dauli or that of Khizar Hayat. It is available on record that Muhammad Asif who was grandson (Pota) of the person who was murdered by Humayun deceased also faced trial. He was sent up to face trial on the basis of judicial confession made by him before a Magistrate. However, since the complainant party insisted that it was Saifullah who had murdered Humayun and did not state against Asif, therefore, Muhammad Asif and Ahmad Sher were acquitted by the learned trial Court on 25-8-2001 under section 265-K, Cr.P.C. The learned trial Court in its wisdom did' not feel it necessary to record the statement of the Magistrate who had recorded the judicial confession of Muhammad Asif.
However, C.W.1 Muhammad Zafar/Inspector and C.W.2 Muhammad Munir Ahmad/D.S.P. Were summoned by the learned trial Court as witnesses and their statements were recorded.
Muhammad Zafar/Inspector stated on oath that during investigation, Asif was found to be involved in the case. On 19-2-2000 physical remand of Asif was procured from the Magistrate. On 20-2-2000 Asif led to the recovery of .303 rifle P.6 which was taken into possession. The recovery memo. Was attested by Ghulam Sarwar/P.W.5 and Khizar Hayat/P.W.3. He further stated that Naeem Hayat Tiwana recorded the confession of Asif (since acquitted) on 21-2-2000. He was cross-examined by the prosecution. During cross-examination he admitted it to be correct that none of the accused except Asif and Allah Yar were arrested in this case until submission of report under section 173, Cr.P.C. By him, or his predecessor. After admitting it correct, he volunteered information that even his successor Investigating Officer did not arrest any of the other accused. The above noted suggestion by the learned counsel for the prosecution and the admitting answer of Muhammad Zafar/Inspector cannot be lost sight of, as it denotes that till 19-2-2000, i.e. a year after the occurrence, Saifullah was not arrested by any of the Investigating Officers Muhammad Zafar was also cross-examined by the learned counsel for the accused. During cross-examination he clarified that Khizar Hayat and Ghulam Sarwar witnesses of the recovery of rifle at the instance of Muhammad Asif were the same witnesses who had appeared as P.W.3 and P.W.5. He further admitted that both the Lambardars of the village Shahamand and Ghulam ,Sarwar had appeared before him and had sworn affidavits about the innocence of Saifullah, Allah Yar and Ahmad Sher. He admitted it to be correct that D.S.P. Chiniot gave a direction to him that Saifullah, Ahmad Sher and Sufi Allah Yar were innocent and Allah Yar who had been arrested by the previous Investigating Officer should be got discharged from the Court. He further, stated that after the direction, he got Allah Yar accused discharged and declared Saifullah and Ahmad Sher innocent in his report under section 173, Cr.P.C.
And he mentioned the name of Saifullah in Column No.2 of the challan. According to him, the challan was submitted only against Muhammad Asif. The statement of Muhammad Zafar C.W.1 was fully supported by the statement of Muhammad Munir Ahmad/D.S.P. It is very significant that though the complainant was a police employee yet Saifullah was not arrested in this case by any of the Investigating Officers for a year. It is not the case of the prosecution that Saifullah absconded, rather according to record, he joined the investigation and was never declared to be absconder.
12. The ocular evidence is supported by the medical evidence to the extent that the deceased lost his life due to fire-arm G injuries but not further. It may be noted here that according to post- mortem report, there was a lacerated wound caused by blunt weapon in center of the head of the deceased but that injury was not explained by any of the P.Ws. It was Stated in the F.I.R. That after receipt of fire-arm injuries Humayun fell. However, according to rough site-plan as well as the sealed site-plan, the dead body of Humayun was lying on the cot. According to Exh.PD available at page 112 of the Paper Book, the Investigating Officer collected two live and two used empty cartridges from the place of occurrence. It was also stated in F.I.R. That the accused left behind some live and some used cartridges. These two documents belie the case of the prosecution against Saifullah. According to prosecution case, Saifullah was armed with a rifle atnd fired twice at the deceased. In that case, the empty should have been that of a bullet and not that of cartridge.
No recovery was effected from the appellant.
13. As far as motive is concerned, Sultan Mahmood who was murdered by Humayun was Nana of the appellant and was Dada of Asif, who, according to police investigation, had committed the murder. The motive was available against Muhammad Asif (acquitted accused) and the appellant. It is in evidence that Sultan Mahmood was murdered before the birth of the appellant and during the intervening years, i.e. From the murder of Sultan Mahmood to the murder of Humayun, no untoward incident took place between the appellant and the deceased. It appears that as Asif was employed in the army and usually was not available at the village, the appellant was named in the case on the basis of suspicion. P.W. Dauli who is sister of the complainant has towed the line of evidence suggested by the complainant. Her testimony stands disbelieved to the extent of Ahmad Sher and Allah Yar, who, according to her, had held her during the occurrence' and entered the house. Iii the circumstances, it cannot be said that Mst. Dauli came out with the whole truth and I hence her sole testimony cannot be made basis for conviction on a capital charge. It may be added here that the complainant admitted that with the consent of the parties five arbitrators were appointed to decide about the involvement of Saifullah, Ahmad Sher, Allah Yar and Allah Ditta, accused in the case. Had the assailant been identified by the P.Ws., then they would not have settled down to the verdict of arbitrators.
14. For what has been said above, we have concluded that the prosecution case was not free from doubt. Hence, this appeal is allowed and the judgment passed by the learned trial Court is set aside. The appellant is acquitted of all the charges and 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.