Tariq Shamim, J.--Appellant Ghulam Mustafa alias Jaari son of Faqir Muhammad was tried by the learned Additional Sessions Judge, Lahore in case bearing F.I.R. No, 387/2000, dated 2.10.2000, for offence under Sections 302, 148 and 149 P.P.C., registered at Police Station Hanjarwal, Lahore, and vide the judgment of the learned trial Court dated 12.10.2002, the appellant was convicted u/S. 302(b) P.P.0 for committing murder of Iftikhar Hussain, deceased, and sentenced to death with a fine of Rs, 10,000/- to the State. He was also made liable to pay compensation of Rs, 50,000/- in terms of Section 544-A Cr.P.C. to the legal heirs of the deceased: The trial of the co-accused of the appellant, who were absconding, was directed to be conducted after their arrest.
2. This judgment will dispose of the appeal in hand bearing Crl. Appeal No, 1841/2002 as well as Crl.
Revision No, 1205/2002 filed by the complainant for enhancement of fine as well as the compensation. The Murder Reference Bearing No, 65/2003 sent by the learned trial Court for confirmation of sentence of death shall also be answered through this judgment.
3. Briefly, the facts of the case are that Iftikhar Hussain (deceased), the younger brother of the complainant namely Zulfiqar Ali, used to ply a wagon from Thokar Niaz Baig to Bhaati Gate. On 2.10.2000, at night time, the complainant along with his brother Iftikhar Hussain was sitting on a wooden bench near the Petrol Pump and was waiting for a wagon. In the meanwhile, Ahmad Ali and Liaqat Ali came there to obtain petrol for their tractor and both of them also sat with them and ordered tea from a nearby Tea Stall. In the meantime, at about 9:00 p.m. Muhammad Iqbal alias Kali armed with .222 rifle, Ghulam Mustafa alias Jaari (the appellant) armed with .30 bore pistol, Shabbir alias Shabbira and Arshad Ali both armed with mouzer .30 bore and one unknown person armed with .222 bore rifle came there in a Suzuki car bearing Registration No, LOB-5347. They disembarked from the car. Muhammad Iqbal alias Kali raised a lalkara that Iftikhar be taught a lesson for not supplying fish and for demanding-fare for the wagon. On seeing th.em, Iftikhar tried to flee from the place but Muhammad Iqbal alias Kali fired a burst from his .222 bore rifle which hit him on the left back shoulder and scapula of Iftikhar. A shot was fired by the appellant Ghulam Mustafa alias Jaari at Iftikhar which landed on his left flank. Thereafter, Shabbir alias Shabbira fired from his pistol .30 bore which hit him on the left back of his shoulder. He then fell on the ground and in fallen position Arshad Ali fired at him with his mouzer which landed on his right backside. The fifth shot was fired by the unknown person with his .222 bore rifle on Iftikhar which hit him on the left interior side. There was a main road and the traffic was going on. On the hue and cry raised by the witnesses a number of persons gathered at .the place of occurrence whereupon the assailants escaped in their car towards Multan Chungi. The motive behind the occurrence was that three days prior thereto the accused Shabbir alias Shabbira and Arshad Ali after renting the wagon of the complainant's brother (the deceased) wanted to load stolen fish but the driver of the wagon refused to do so and brought the wagon back. Thereafter, the brother of the complainant demanded fare/rent of the wagon from the accused, which infuriated the accused and subsequently resulted in the murder of the deceased.
4. At the trial, the prosecution in order to prove its case produced as many as 14 witnesses including the eye-witnesses, doctor, witness of recovery, formal witnesses and the Investigating Officer. After giving up PW Ahmad Ali son of Wazir Ali being unnecessary and tendering in evidence the report of Chemical Examiner (Ex.PN) and that of the Serologist (Ex.PO), the learned DDA closed the prosecution evidence. After finalization of prosecution evidence, the appellant was examined under Section 342 Cr.P.C. who pleaded his innocence. In answer to the question as to why the case against him and why the PWs had deposed against him, the appellant replied that the PWs are interested witnesses inter se and influential person and he had been falsely involved in this case.
However, he neither opted to appear as his own witness in terms of Section 340 (2) Cr.P.C. nor did he produce any evidence in his defence. The learned trial Court after taking into consideration every aspect of the case and hearing the arguments, convicted and sentenced the appellant, as stated above.
5. The learned counsel for the appellant contended that it was an unseen occurrence as the witnesses were residents of a far-flung area that the F.I.R had been lodged with unexplained delay of 1 hour and 35 minutes although the distance of the Police Station from the place of occurrence was only half a kilometer; that during investigation weapon of offence was not recovered from the possession of the appellant and, therefore, the recovery of empties from the spot was inconsequential; that in the rough site-plan Ex.PJ prepared by the Investigating Officer there was no point shown about the place where the witnesses were standing and the place where the accused were present at the time of occurrence; that all the witnesses were related inter se and, therefore, their evidence could not be accepted without corroboration from some other independent source; that motive for the occurrence could not be proved at the trial by the prosecution and that in absence of corroboration from any independent source the conviction of the was liable to be set aside.
6. The learned Deputy Prosecutor-General contended that the prosecution had succeeded in proving its case against the appellant beyond any shadow of doubt as the ocular account furnished by the eyewitnesses was credible, the motive was proved by the witnesses and the recovery of weapon of offence was also proved and that the conviction of the appellant was based on proper appraisal of evidence by the learned trial Court, therefore, no interference was called for.
7. We have heard the learned counsel and gone through the record with their able assistance.
8. It has straightaway been noticed by us that the F.I.R in the case was lodged with a delay of 1 hour and 35 minutes although the Police Station was half a kilometer away from the place of occurrence. From the evidence it is apparent that none from the complainant side made any effort to report the matter to the police. Statement of Irshad Ahmed, Inspector (PW-12) is' relevant in the said regard in which he had categorically stated that he had received information about the occurrence at Jinnah Hospital where he recorded the statement of Zulfiqar Ali (PW-1) on the basis of which formal F.I.R Ex.PA/1 was lodged. It had also come out in the evidence of this witness that the place of occurrence was a Petrol Pump and although a number of employees of the Petrol Pump were present at the relevant time but none was willing to come forward as a witnesses of the occurrence. If the employees of the Petrol Pump were not inclined to join in as prosecution witnesses then it is inconceivable as to why Akbar Ali (PW-3), who was purportedly the owner of a Tea Stall, had come forward to depose in favour of the prosecution. Apart from Akbar Ali (PW-3) the complainant Zuffigar Ali and Liaqat Ali took the witness stand as PW-1 and PW-2 respectively.
The account furnished by all three eye-witnesses referred to above is contrary to each other as to the seat of injury caused by the appellant. Although in the F.I.R it is mentioned that the appellant caused an'injury on the left flank of the deceased but Zulfiqar Ali (PW-1) in his statement before the learned trial Court has attributed injury on the left leg of the deceased to the appellant. He has also made contradictory statement vis-a-vis the injuries caused by the other absconding accused.
Liaqat Ali (PW-2) in his testimony before the learned trial Court has attributed to the appellant injury on the left flank of the deceased which is in conflict with the statement made by Zulfiqar Ali (PW-1). Interestingly, this witness in his cross-examination has stated that the deceased received all shots from the backside which again is contrary to the medical evidence as the deceased had suffered a number of injuries from the front side as well. Zulfiqar Ali (PW-1) is the real brother of the deceased whereas Liaqat Ali (PW-2) is the cousin of the deceased and is a resident of a place half a kilometer away from the place of occurrence. It is surprising to note that Zulfiqar Ali (PW-1) and Liaqat Ali (PW-2) being closely related to the deceased did not make any effort to report the matter to the police although the Police Station was at .a distance of only half a kilometer from the place of occurrence. Akbar Ali (PW-3) has also furnished an inconsistent account of the injuries caused by the absconding accused. This witness as well as Liaqat Ali (PW-2) have admitted that they are not witnesses of the motive. As to why Akbar Ali (PW-3) had not reported the matter to the police is also a mystery. In his cross-examination he has stated that he does not remember as to who had accompanied the deceased while being shifted to the hospital. From the foregoing it is manifest that there are material improvements and contradictions in the statements made by the eye-witnesses which in our opinion are sufficient to create serious doubts about the veracity of evidence of ocular account adduced by them at the trial.
9. Adverting to the medical evidence furnished by Dr. Aamar Bashir (PW-14) who conducted the post-mortem examination on the dead body of Iftikhar Hussain deceased on 3.10.2000 at 10:15 a.m., according to the said witness the deceased had suffered eight injuries which were all ante mortem and caused by fire arm weapons. According to Dr. Aamar Bashir (PW-14) Injury No, 7-A on the left back side of the chest of the deceased was in fact an exit wound. This is the only injury which is close to the injury attributed to the appellant in the F.I.R., by Liaqat Ali (PW-2) and Akbar Ali (PW-3).
It is, thus, evident that the ocular account furnished by the witnesses is not in consonance with the medical evidence and, therefore, no corroboration is forthcoming to the ocular account from this piece of evidence.
10.Insofar as the motive behind the occurrence is concerned, according to the prosecution. three days prior to the occurrence Shabbira and Arshad Ali, absconding accused, had rented a wagon owned by the deceased and the complainant in which they intended to load stolen fish but the driver of the wagon refused to do so and on his return the entire incident was narrated to the deceased who apparently demanded rent of wagon from the appellant and the absconding accused and in order to avenge the insult, murder of the deceased was committed by them. The most logical and natural witness to prove the motive was the driver of the wagon who was not produced but instead evidence in respect thereof was furnished by Zulfiqar Ali (PW-1). To his extent it is hearsay evidence as he had not witnessed the incident which took place between the driver of the wagon and the accused. Further, it is not in evidence as to which one of the accused had rented the wagon from the deceased and the place and time of doing so is also conspicuously missing. Consequently, we are of the opinion that the motive behind the occurrence could not be established by the prosecution at the trial which even otherwise appears to be a farfetched one.
11.During spot inspection, which was conducted on the following day of the occurrence by the Investigating Officer, five empties of .222 bore rifle and three empties of .30 bore pistol were recovered by the police which were taken into possession vide memo Ex.PB. During the course of investigation no weapon was recovered from the possession of the appellant and mere recovery of some empties and that too from a busy place one day after the occurrence is of no consequence.
12.Although much stress has been laid by the learned trial Court while convicting the appellant on his abscondance. In our view in the absence of any other material evidence on the record mere abscondance of an accused cannot be made a basis for his conviction.
13.As a sequel to the above, while extending the benefit of doubt to the appellant, we ACCEPT Criminal Appeal No, 1841 of 2002 and set aside the conviction and sentence awarded to him by the learned trial Court. The Criminal Revision (Cr. Rev. No, 1205/2002) for enhancement of sentence of fine is DISMISSED.
The Murder Reference is answered in the NEGATIVE.