' MUHAMMAD FARRUKH MAHMUD, J.---Ali Ahmad alias Ali Sher-appellant along with his co-accused Khalid alias Khalu, Meraj Bibi and Mst. Nasreen alias Uzma was tried by the learned Additional Sessions Judge, Gujranwala, in case F.I.R. No,201 registered at P.S. Sardar Gujranwala, for offences under sections 302/364/34, P.P.C. Vide judgment, dated 31-10-2001, the learned trial Court, while acquitting the aforesaid co-accused, convicted and sentenced the appellant as under:---
(i) for offence under section 302, P.P.C. To death plus payment of Rs,50,000 as compensation to the legal heirs of the deceased, in default whereof to undergo S.I. For six months;
(ii) for offence under section 364, P.P.C. To undergo ten years' R.I. Plus payment of Rs,50,000 as fine, in default whereof to suffer R.I. For one year.
2. Ali Ahmad alias Ali Sher, convict/appellant, has challenged his convictions and sentences through the instant appeal. Murder Reference No,843 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. The brief facts of the case per compliant Exh.P.M. Of Irfan Iqbal, complainant/P.W.10, which based the registration of formal F.I.R. Exh.P.M./1, are that 10/11 months prior to the registration of case, Humayun Iqbal, the brother of the complainant, was married with Mst. Nasreen alias Uzma. Two months prior to the occurrence, Humayun Iqbal along with his wife started living in the house of his in-laws. On 22-6-2000, he came back to his own house and told that his wife and sister-in-law Shamim, who were of loose character, were admonished by him, whereupon Ali Ahmad alias Ali Sher-appellant, Khalid alias Khalu, Mst. Meraj Bibi and Mst. Nasreen alias Uzma (the acquitted co- accused) after giving beating turned him out of the house and threatened him that in case he came to their house, he would be done to death. On 27-6-2000 at about 3-00 p.m. The appellant along with his acquitted co-accused came to the house of the complainant and sought pardon from Humayun Iqbal. They asked Humayun Iqbal to accompany them. The complainant, Arshad Munir, Mst. Sughran Bibi/P.W.10 and Humayun Iqbal-deceased along with Khalid etc. Went to the house of in-laws of Humayun Iqbal situated at Kallar Abadi Jandiyala Baghwala. Thereafter at about Ishawela, Khalid alias Khalu, appellant Ali Ahmad alias Ali Sher, Nasreen alias Uzma and Meraj Bibi on the pretext of walk took Humayun Iqbal towards Upper Chanab Canal. At about 11-00 p.m. Khalid etc. Came back to the house but Humayun Iqbal did not return. On inquiry, Khalid etc. Told that he had gone to Data Sahib at Lahore. The complainant and his mother remained waiting for him and had been inquiring about him from Mst. Meraj Bibi etc. Till the evening of 28-6-2000, whereafter they came back to their house and had been inquiring as to the whereabouts of Humayun Iqbal from Ali Ahmad etc. Who did not give satisfactory reply. It was suspected that Khalid alias Khalu, Ali Ahmad alias Ali Sher, Meraj Bibi and Nasreen alias Uzma had abducted Humayun Iqbal with a view to committing his murder.
4. On 27-6-2000 after registration of F.I.R. Exhe.M./1 on the written application/complaint Exh.P.A.
Made by the complainant, Hakim Ali, S.-I./P.W.11, went to the spot where he was informed that he dead body of Humayum Iqbal had been traced and was lying along with canal bank near WAPDA Town. The Investigating Officer (1.0.) went to that place; took the dead body, prepared its inquest report Exh.P.O. And injury statement Exh.P.Q. And sent the = dead body for post-mortem examination. He added offence under section 302, P.P.C. He prepared the site plan Exh.P.T. Of the place of murder and site plan Exh.P.U. Of the place of recovery of dead body. The appellant was arrested on 9-7-2000. The Investigating Officer collected blood-stained earth from the place of murder and sealed the same through memo. Exh.P.J. The appellant, while in custody on 13-7-2000, led to the recovery of Chhuri P.1 which was taken into possession vide memo. Exh.P.D. After completion of Investigating, the appellant along with his acquitted co-accused was sent up to face trial.
5. To substantiate its version at the trial, prosecution produced eleven witnesses. After tendering in evidence the reports of Chemical Examiner Exh.P.V. P.W. And the Serologist Exhs.P.X. P.Y, the prosecution closed its side. Thereafter, the statement of the appellant under section 342, Cr.P.C.
Was recorded, wherein he pleaded his innocence and false implication in the following words:--- "Humayun Iqbal was the husband of my sister Nasreen co-accused. Irfan Iqbal P.W./complainant is real brother of Humayun Iqbal deceased while Arshad Munir and Sughran Bibi are parents of the deceased. They all are interested in as much as they are not only related inter se with the deceased but are also inimical towards my family. Mubashir Mansoor and Muhammad Sharif P.
Ws. Are neighbourers and friends of the complainant. Due to worst relations between Humayun lqbal and his parents he left the house of his parents and started living in our house while Nasreen was already in our house in connection with pregnancy. A son of Humayun Iqbal was born in our house. The parents of Humayun Iqbal deceased had suspicion that Nasreen Bibi has instigated Humayun Iqbal deceased to leave the house of his parents. The whole family of Humayun Iqbal deceased started beating us. I am real brother of Nasreen co-accused. Due to above said hatred and grudge I along with my whole family has been involved falsely in this case. It is a blind murder.
Due to above said relationship I have been falsely involved in this case."
' However, neither the appellant appeared as a witness under section 340(2), Cr.P.C. Nor did he produce any defence evidence.
6. Learned counsel for the appellant submits that it was an unwitnessed occurrence; that the prosecution failed to prove the evidence of the deceased having been last seen in the company of the accused; that the witnesses on the same point were disbelieved to the extent of acquitted accused; that the case of the appellant was not distinguishable from that of the rest of the accused, as the learned trial Court had wrongly believed the evidence of recovery of blood-stained Chhuri because the assailants, who had thrown the dead body in the canal, could easily do away with Chhuri and would not bring it back to his house to keep it in-tact; that the prosecution failed to prove the motive; and that the prosecution case is not free from doubts.
7. Conversely, learned counsel appearing on behalf of the State have submitted that the witnesses were independent having no previous enmity or motive to depose falsely against the appellant; that the case of the acquitted accused was distinguishable from that of the appellant who led to the recovery of blood-stained Chhuri. They support the judgment passed by the learned trial Court.
8. We have heard the learned counsel for the parties and have also gone through the record of the case:
9. As per F.I.R. Humayun Iqbal deceased was married with Nasreen acquitted accused 10/11 months prior to the occurrence. About two months before the occurrence, Humayun started living in the house of his in-laws which was situated in Kallar Abaci. On 22-6-2000, Humayun Iqbal went to his house and informed the inmates that his wife and sister-in-law Shamim were of loose character and he had admonished his wife which incensed Ali Ahmad, Khalid, Meraj Bibi and Nasreen accused, who, after giving beating turned him out of the house. The accused issued threats of dire consequences in case Humayun returned to their house. On 27-6-2000 at about 3-00 p.m. The accused went to the house of the complainant and they apologized from Humayun Iqbal. They also asked Humayun Iqbal to accompany them. The complainant, Arshad Munir, complainant's mother Sughran Bibi and Humayun Iqbal accompanied the accused to the house of the accused.
At about Isha Wela, the accused took along with them Humayun Iqbal towards Upper Chanab Canal for walk. At about 11-00 p.m. The accused returned to the house minus Humayun Iqbal. On inquiry the accused informed the P. Ws. That Humayun Iqbal had gone to Lahore to pay respects to Data Sahib. Humayun Iqbal did not return till the evening of 28-6-2000. Thereafter the P.Ws.
Returned to their house. Meanwhile, the accused did not give any satisfactory reply to the inquiries of the P.Ws. About the whereabouts of the deceased. After waiting till 27-6-2000, the matter was reported to the police at 11-00 a.m. Initially, the case was registered under section 364, P.P.C.
Thereafter on the same date, offence under section 302/34, P.P.C. Was added. In support of the story narrated in the F.I.R., Irfan Iqbal brother of the deceased and his mother Mst. Sughran Bibi appeared before the learned trial Court. During their statements they tried to improve their version by making dishonest improvements. They also contradicted each other on material points.
Sughran Bibi stated that they returned on the next date at 10-00 a.m. While the complainant added that his father Arshad Munir returned in the evening on 27-6-2000. It may be mentioned here that according to F.I.R., Mst. Sughran Bibi, Irfan Iqbal and Arshad remained in the house of the complainant. It was not mentioned therein that Arshad returned on 27-6-2000. It was also not mentioned in the F.I.R. That Arshad was not the real father of the deceased and complainant. It is now available on record that Sughran Bibi after obtaining divorce from Muhammad Iqbal entered into second marriage with Arshad. Arshad was already married and his wife lived separately.
Similarly, Muhammad Iqbal father of the deceased was alive and living separately. The complainant admitted that a son namely Sheraz was born out of the wedlock of deceased and Nasreen Bibi. Nasreen Bibi went to the house of her parents 3/4 months prior to the birth. He had to admit that Mst. Shamim sister of Nasreen was a married lady. The conduct of both the witnesses is also implausible. Firstly all of them accompanied Humayun Iqbal to the house of his in-laws, while there was no need for them to accompany Humayun Iqbal. The accompanying of the P.Ws. With the deceased was mentioned as the P.Ws. Lived in a different colony. It is also strange that while the brother, mother and father remained in the house, the deceased left for walk with the accused leaving his close relatives behind. Sensing the implausibility of the story Mst. Sughran Bibi made dishonest improvements during trial by stating that she went after the accused while they were going to the canal along with the deceased but returned after covering some distance. The real mother and real father would not sit quiet in the house till the next day in the background of the motive if they had been present in the house and if within their view their son had accompanied the accused. It is opposed to common sense that Humayun Iqbal would leave for Lahore without informing his mother and brother who were present in the house of his in-laws. Had the P.Ws. Been present in the house, they would immediately have become suspicious and would not have sit quiet till the next evening. From 27-6-2000 till 2-7-2000, no serious efforts were made by the complainant party to know the whereabouts of the deceased. The matter was also not reported to the police till five days which belied the story of the prosecution that the deceased informed the complainant that the accused had threatened him with dire consequences in case he returned to their house. No one from the Mohallah or any independent person was produced before the learned trial Court to prove that the deceased was last seen in the company of the accused. The case was registered on the written application of the complainant for offence under section 364, P.P.C. At 11-00 a.m. On the same day the dead body was spotted floating in the canal by the Investigating Officer Hakim Ali, S.-I./P.W.11, who, according to Exh.P.B., got the dead body out of the canal and prepared memo. Exh.P.B. On that regard which bears the signatures of Irfan Iqbal/P.W.9, Muhammad Shafiq Anjam/P.W.3 and Muhammad Qasim who was not produced during trial. After the recovery of the dead body offence under section 302 P.P.C. Was added. P.W.11, who has retired from service, was a dishonest police officer. His dishonesty is evident from the fact that according to him, the complainant met him at 11-00 a.m. Thereafter he went to Mohallah Rasoolnagar at 1-00 p.m. The complainant accompanied him. He stayed in the house for half an hour to forty five minutes. Muhammad Shafiq and Muhammad Qasim, P.Ws., met him at Pull Chhicherwali at about 1-45 p.m. And both of them joined the Investigating Officer while he was on his way to the place from-where the dead body was found. He further stated that they reached the place, from-where the dead body was recovered, at 3-00 p.m. This whole story is knocked out by the statement of Shafiq Anjum/P.W.3 which was not challenged by the prosecution. According to P.W.3 on 2-7-2000 at about 10-00 a.m. He and Qasim were going to WAPDA Town on a motorcycle along the canal.
When they reached at the last gate of WAPDA Town, they spotted the dead body which was lying just on the line of bank of canal in front of the gate. Both of them, after identifying that the dead body was that of Humayun Iqbal, intimated the police through two persons and the police reached the spot and in the presence of police, they identified the dead body of Humayun Iqbal vide Fard Shanakhat Exh.P.B. The witness did not mention the name of Irfan Iqbal/complainant at the time of arrival of the police and identification of the dead body. The witness further stated that afterwards he and Qasim took the dead body of Humayun Iqbal to police station and then to the D.H.Q.
Hospital on private vehicle. The statement of Shafiq. Anjam stands fully corroborated by the documentary evidence and by the statement of the Doctor/P.W.7 who stated before the learned trial Court that the dead body was brought by Shahid Aziz Constable and was identified by Qasim and Muhammad Shafiq. It may be noted here that in the inquest report, prepared by Hakim Ali/S.-I.
In column NO.3 the time was mentioned as 7-30 p.m. On 2-7-2000. In column No,6 of the F.I.R., which relates to the time and date of sending of F.I.R. From the police station, it was mentioned "through special report". The time was deliberately not mentioned because there was no need to send this F.I.R. Through special report. It is more than obvious that the whole case was fabricated after the discovery of dead body by P.W. Shafiq Anjam and the F.I.R. Was recorded much later after due deliberations. It is crystal clear that the story of accompanying of P.Ws. With the deceased was fabricated in order to create evidence of the deceased having been last seen in the company of the accused. Irfan Iqbal and Sughran Bibi were disbelieved to the extent of Meraj Bibi, Nasreen and Khalid who were acquitted and their acquittal was not challenged. As far as the evidence of last seen is concerned, it is not distinguishable as against the appellant.
10. According to P.W.11 the accused led to the place where Humayun Iqbal was done to death and blood-stained earth was collected from there. In order to prove this Mubashar Manzoor/P.W.8 was produced before the learned trial Court. This witness was not worthy of any credence, as he was always available to the police and did not know the whereabouts of the place from where the blood was collected. According to him, he was just standing beside the un-metalled path near the canal bank near Jandiyala Baghwala when the police reached. Two females and Ali Ahmad appellant were in police custody. The police asked him and Khalid who was not produced during trial to accompany them. So they readily agreed and there the accused pointed out the place where the blood was lying. He did not specify as to which of the accused led to the discovery. He has been disbelieved qua Nasreen Bibi and Meraj Bibi. There is no reason as to why he should be believed against Ali Ahmad. He is also witness of the recovery of Danda at the instance of Khalid, acquitted accused, on 19-7-2000. On that date he was also available to the police when it was on their way to effect the recovery.
' During cross-examination his availability to the police was exposed. He could not come out with any plausible explanation as to why on two different dates, he was available to the police in order to become a witness.
11. According to prosecution case on 13-7-2000, the appellant led to the recovery of, Chhuri from , an iron box lying in his house. The witnesses of the recovery were Muhammad Amjad Constable/P.W.6 and Iftikhar Ahmad Constable (who was not produced during trial). It was not mentioned in the recovery memo. Exh.P.D. That the Chhuri was blood-stained. However, the same was found to be stained with human blood by the Serologist vide report Exh.P.X. It is ironical that the Chhuri which was not shown as stained with blood in the recovery memo. And about which P.W.6 did not state that the Chhuri was bloodstained was found to be stained with human blood subsequently. The Investigating Officer did not associate any resident of the locality and got the recovery memo. Attested by his own subordinates. The provisions of section 103, Cr.P.C. Were violated with impunity. It is revolting to common sense that the assailant, .Who, in order to hide his crime, had thrown the dead body in the canal, would bring back the Chhuri and keep the same in- tact in his house so as to present it before the Investigating Officer. It may be mentioned here that according to prosecution case, when the accused returned to their house, the P.Ws. Were present there. Only a fool in this situation would bring the Chhuri back to his house. It was an unwitnessed occurrence. Hence, in order to strengthen its case, Hakim Ali/Investigating Officer dishonestly fabricated evidence of recovery of Chhuri.
12. The factum that Nasreen Bibi had given birth to a child 3/4 months prior to shifting of the house negates the allegation levelled by the P.Ws. That the deceased was annoyed with his wife. Neither any independent evidence nor any physical evidence is available on record that the deceased was given beating by the accused on 22-6-2000. Further more, in his statement before the learned trial Court instead of 22-6-2000 the complainant mentioned the date as 25-6-2000.
13. As far as medical evidence is concerned, it discloses that the deceased lost his life due to injuries caused to him on the neck by sharp-edged weapon and that the deceased received injuries by sharp-edged weapon as well as by blunt weapon. It does not lead to the assailant.
14. The upshot of the whole discussion is that the prosecution case is replete with doubts. 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. 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.