' MUHAMMAD FARRUKH MAHMUD, J.---The appellant Ghulam Nabi alias Gami was tried by Malik Abdul Rashid, learned Additional Sessions Judge, Depalpur, in a private complaint filed by Ali Muhammad, complainant/P.W.1, for offences under section 302/34, P.P.C. Against the appellant and one Nazir alias Jeeru. Nazir alias Jeeru was never summoned nor tried, as the compliant to his extent was dismissed by the learned trial Court vide its order dated 25-3-1999. By means of judgment dated 31-5-2002 the learned trial Court convicted the appellant for offence under section 302(b), P.P.C. And sentenced him to death plus payment of Rs,50,000 as compensation to the legal heirs of the deceased.
2. Ghulam Nabi, convict/appellant, has challenged his above noted conviction and sentence by filing the instant appeal, while the learned trial Court has made a reference bearing Murder Reference No,415 of 2002 seeking confirmation or otherwise of death sentence awarded to the appellant. Both these matters are being decided through this judgment.
3. Briefly stated the facts of the case as disclosed by the complaint filed by Ali Muhammad against Ghulam Nabi alias Gami-appellant and Nazir alias Jeeru are that on 29-7-1998 at about 10-30 p.m., the complainant/P.W.1, his sons Muhammad Yasin-deceased and Muhammad Ashraf/R.W.2 were present on the tube-well of Muhammad Sarwar. The tube-well was operative that time. A lantern was hanging on the door of the engine room. In order to check oil, Muhammad Yasin had just gone towards the engine room when Ghulam Nabi-appellant, the son in law of the complainant, armed with .12 bore double-barrel gun and Nazir alias Jeeru armed with .12 bore gun came there. Ghulam Nabi, while raising Lalkara that he would teach a lesson to Yasin for complaining against him to his mother and for extending threats to him, fired two shots from his gun which hit Yasin, whereas Nazir alias Jeeru continue aerial firing and raising Lalkara that no one should come near them. As a result of fires, Muhammad Yasin succumbed to the injuries at the spot. The accused while firing decamped from the scene of tragedy, The occurrence was witnessed by the complainant and his son Muhammad Ashraf. The complainant was very much aggrieved by the shock. He along with Ata Ullah/C.W.7 and one Khalid Masood, both landlords of the area, went to the police station. Both the aforesaid landlords made the complaint sit aside and they themselves talked to the police and got the thumb impressions of the complainant on the register with the assurance that case would be registered in accordance with the story narrated by the complainant but the first information report was not read over to him. On the next date, when the complainant got copy of the F.I.R., he came to know that Ata Ullah etc. Had got the case registered against their own enemies, leaving the real culprits. The complainant had been requesting the police officers to proceed against the respondents/accused but without success, which necessitated the institution of the present private complaint.
' The motive behind the occurrence was that Ghulam Nabi alias Gami was a man of ill repute and earlier to the present occurrence, he made attempt to commit Zina-bil-Jabr with Mst. Raj alias Rani, the wife of the deceased and daughter in law of the complainant and the said incident was narrated by her to her husband Yasin, 'who complained to the mother of Ghulam Nabi, whereupon the mother of the appellant rebuked her. The deceased had himself threatened the appellant with dire consequence in case he indulged in such-like bad activities in future. On account of that grudge, the appellant as well as Nazir alias Jeeru had committed the intentional murder of the deceased.
4. The learned trial Court summoned the appellant only to face trial. As the accused/appellant did not plead guilty, the trial commenced.
5. To substantiate his version at the trial, the prosecution produced three witnesses in all. Ocular account was furnished by Ali Muhammad; P.W.1 and Muhammad Ashraf/P.W.2. In addition to that, they also stated about the motive. Dr. Munir Ahmad/P.W.3, who conducted post-. Mortem examination on the dead body of the deceased, while observing nine injuries on his person, opined that all the injuries were caused by fire-arm weapon and sufficient to cause death in ordinary course of nature. According to the doctor, time between injury and death was almost immediate, while between death and post-mortem, it was 17/18 hours. The learned trial Court also recorded the statements of C. W..1 to C.W.B. Ghulam Ahmad, S.I./C.W.6, stated about the registration of the case and the investigation thereafter. The rest of the evidence, being formal in nature, need not be discussed.
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. I have been falsely involved in this case. I was found innocent by the police during investigation and my name was shown in Column No,2 of the challan under section 173, Cr.P.C. And I was left at the indulgence of the Court. Ali Muhammad P.W. Was not present at the spot at the time of occurrence. After coming to know about the death of Yasin deceased he lodged F.I.R.
Exh.P.A at the police station and he had nominated Muhammad Arif son of Said, Shani son of Sajwar, both armed with .12 bore guns, Nawaz alias Naji son of Sadiq, Aslam others armed with rifles as accused persons. He had further stated in F.I.R. Exh.P.A that the above said seven persons had committed the murder of Yasin deceased at the instance of Ameer Tajeka. He had further stated in the F.I.R. That Muhammad Arif aforesaid had fired with his gun at. Yasin hitting on his left arm while Shani aforesaid had fired at the deceased, which hit on his back, shoulder and left buttock, while the remaining five persons were stated to have fired. In this F.I.R. Ali Muhammad had named me and his son Muhammad Ashraf as eye-witnesses of the occurrence. Since I was not present at the spot at the time of occurrence, so I did not depose as an eye-witness during the investigation. The complainant got annoyed with me saying that he had named me as an eye-witness being his Damad and for this reason I must support his version mentioned in the F.I.R. Exh.P.A but I refused to oblige him. Upon this, he became inimical to me and forced her daughter Mst. Nusrat Bibi, my wife to leave my house, but she refused to do so, which further annoyed the complainant Ali Muhammad P.W. The complainant Ali Muhammad P.W. Conspired with Muhammad Arif etc. Eight accused mentioned in F.I.R. Exh.P.A as accused persons and effected compromise with them and got them declared innocent by the police. After a considerable period he lodged false complaint against me on account of enmity and grudge by showing 'him and his son Muhammad Ashraf as eye-witnesses and by setting a false motive against me."
' The appellant neither appeared as his own witness as contemplated by section 340(2), Cr.P.C. Nor did he produce any witness in his defence.
7. Learned counsel for the appellant submit that the appellant was not named in the F.I.R. Which was lodged after a considerable delay; that Ali Muhammad and Muhammad Ashraf made dishonest statements before the learned trial Court and they were duly confronted with their earlier statements; that their statements are neither supported by medical evidence nor by any other circumstance of the case; that the prosecution case was not free from doubts.
8. Contrarily, the learned Additional Prosecutor-General for the State submits that All Muhammad and Muhammad Ashraf were natural witnesses; that they had no previous enmity or against the appellant so as to involve him in a false case, as substitution was a rare phenomenon; that the medical evidence supports the ocular account that the deceased lost his life due to fire-arm injuries.
9. We have heard the learned counsel for the parties at a great length and have also gone through the record.
10. The occurrence took place at 10-30 p.m. In the dark of the night on 29-7-1998. Initially, the case was registered at 3-15 a.m. On 30-7-1998 after a delay of about five hours, on the statement of Ali Muhammad, complainant/father of the deceased. The delay is significant in this case as.The police station was at a distance of less than five miles from the spot. According to F.I.R., Muhammad Yasin deceased son of the complainant was residing at the tube-well of Muhammad Sarwar. On the fateful night at 10-30 a.m., he was running tube-well. Muhammad Ashraf son of the complainant and Ghulam Nabi (now appellant) son in law of the complainant were present at the tube-well.
Muhammad Arif armed with .12 bore double-barrel gun, Nawaz alias Naji armed with rifle, Shani armed with .12 bore gun, Aslam armed with .222 bore rifle, Yousaf armed with .222 bore rifle along with two others who could not be identified and were armed with rifles reached there. Muhammad Arif caused a fire with his gun which hit on the left elbow of Yasin. Shani fired with his gun, which, hit him on his back, left buttock, flank and the abdomen under the shoulder. The rest of the accused also kept on firing. Yasin fell on the ground and thereafter while raising Lalkara the accused left.
11. The motive behind the occurrence was existing enmity over murder between Muhammad Sarwar landlord of Yasin deceased and one Amir Tajeka. According to F.I.R., the complainant was not present at the time of occurrence and he reached the spot after receipt of information and was furnished with the details by his son Muhammad Ashraf-P.W. And his son-in-law Ghulam Nabi appellant.
12. During investigation on 7-9-1998 after one month and nine days of the occurrence, Ali Muhammad complainant submitted affidavit before Ghulam Ahmad, S.-I./C.W.6. In the affidavit, the complainant came out with an absolute new story. According to the contents of the affidavit, on the fateful night at 10-30 p.m. The complainant, his deceased son Yasin and Muhammad Ashraf were present at the tube-well which was running. A lantern was also on and hanging on the door of the engine room. Muhammad Yasin, in order to check oil went towards the engine room. Suddenly, he was confronted by Ghulam Nabi appellant who was armed with a .12 bore double-barrel gun and one Nazir alias Jeeru armed with .12 bore pistol (who was neither summoned nor tried). After raising Lalkara that he would teach a lesson to Yasin for complaining against him to his mother, Ghulam Nabi fired twice which hit Muhammad Yasin. Nazir kept on firing aimlessly. Yasin, after receipt of fires, fell on the ground and lost his life. Thereafter the two accused left the scene of occurrence. It was further stated that the complainant went to the police station in the company of Ata Ullah son of Muhammad Sultan and Khalid Masood. The complainant who was very much aggrieved was made to thumb-mark certain papers. On the very next date, when he got the copy of the F.I.R., he protested; as, according to him, the accused named in the F.I.R. Were innocent and the contents of the affidavit were correct. A new motive was also set in the affidavit, according to which Ghulam Nabi was of bad character, who attempted to commit Zina with Mst. Raj Bibi daughter-in-law of the complainant who reported the matter to her husband and Yasin deceased complained to his father as well as to the mother of Ghulam Nabi and threatened Ghulam Nabi with dire consequences if he again tried to molest Raj Bibi. After receipt of complaint, in the presence of Yasin deceased, mother of Ghulam Nabi rebuked her son. After receipt of affidavit, C.W.6 arrested Ghulam Nabi and Nazir alias Jeeru, accused, on 14-10-1998. However, according to his investigation, both Ghulam Nabi and Nazir Ahmad were innocent and they were left at the mercy of the Court. On 17-11-1998 after about 3-1/2 months of the occurrence, B complaint was filed by Ali Muhammad against Ghulam Nabi appellant and Nazir alias Jeeru. The contents of the complaint are the same as given in the affidavit which need not be repeated. The learned trial Court summoned only Ghulam Nabi as accused in. The case and Nazir was never tried. During trial Ali Muhammad complainant and his son Muhammad Ashraf furnished the ocular account. They stated in accordance with the story given in the affidavit and the complaint. Both of them were duly confronted with the contents of F.I.R. And the statements of Muhammad Ashraf recorded under section 161, Cr.P.C. Soon after the registration of the case. We would like to add here that neither Ata Ullah nor Khalid Masood was named as accused in the complaint despite levelling of allegation that instead of real culprits, they roped seven innocent persons appearing before the learned trial Court. Muhammad Ashraf stated about in the F.I.R. Both the witnesses made dishonest improvements while hanging of lantern. He was duly confronted with his earlier statement Exh.D.B.
Recorded during inquiry proceedings, wherein lantern was not mentioned. Of course, the lantern was not mentioned in the F.I.R. As well. Ghulam Ahmad/C.W.6, who investigated the case, admitted it to be correct that he did not see any lantern on the spot. According to Muhammad Ashraf, the complaint was filed on the next date of occurrence and his statement was recorded after one or two months of the occurrence in the complaint. Both are against the record. The complainant, who, according to F.I.R., was not present at the time of occurrence and reached the spot after receipt of information, turned himself into an eye-witness. Muhammad Ashraf followed the lead and he also stated that the occurrence took place in the presence of his father. Needless to say that both the P.Ws. Were confronted with their earlier statements. The most significant fact which knocks out the story of the complaint is that after registration of case, the Investigating Officer reached the spot where the complainant and Muhammad Ashraf, P.Ws., were present. In their presence, the Investigating Officer collected the blood-stained earth from the spot vide memo. Exh.C.W.6/E, available at Page 96 of the Paper Book. The memo was attested by Muhammad Ashraf P.W. And Ghulam Nabi appellant. It contained thumb-impression of both. It is manifest that when the Investigating Officer visited the spot, Ghulam Nabi was not only present there but he also participated in the investigation of the case and his status as a witness was not challenged by then. If Muhammad Ashraf or Ali Muhammad had seen the appellant committing the offence, they would have lodged the protest there and then and would not have allowed Ghulam Nabi to become a witness in the case. Both the witnesses gave details of the injuries, suffered by the deceased, in F.I.R. And their earlier statements but the seat of injuries was not mentioned by either of the two witnesses either in the complaint or in their statements before the learned trial Court.Both the witnesses have contradicted each other on material points; as to when the complainant left for police station; when the police arrived at the spot and when the police left.
Though it was mentioned in the F.I.R. That matter was reported to the police at 3-15 a.m. Yet according to P.Ws. And documentary evidence, it was registered much later. The complainant himself stated that he left for the police station at sun rise time and reached the police station, which was at a distance of 3/4 miles, at 7/8-00 a.m. He added that he stayed at the police station till 12-00 noon and started for the place of occurrence at about 12-00 noon. On the contrary, P. W.2 Muhammad Ashraf stated that the police arrived at the spot in the morning when sun had not risen. Perusal of the inquest report reveals that time of the receipt of information of death was not mentioned in Column No,3. The post-mortem on the dead body was conducted on 30-7-1998 at 3- 15 p.m. The doctor stated during cross-examination that he conducted post-mortem examination soon after receipt of the dead body and relevant papers. All the above noted facts make it manifest that Yasin was done to death during night while he was alone and the whole time was spent in consultations as to who could be the assailant. The story that Ata Ullah and Khalid Masood in connivance with the police officer got the F.I.R. Registered against their enemies had no legs to stand, as, according to F.I.R., five accused, who were named, were accompanied by two others. The names of the appellant and Nazir alias Jeeru could easily be mentioned instead Of two other accused who were not previously known to the complainant. Perusal of the F.I.R. Under the heading "Karwai Police" shows that Ali Muhammad complainant had gone to the police in the company of one Nazir Ahmad son of Allah Ditta and Sarfraz son of Jahangir. The Investigating Officer stated on oath accordingly. The names of Ata Ullah and Khalid Masood are not mentioned in the F.I.R. Under the hearing "Karwai Police".
13. As far as medical evidence is concerned, it denotes that the deceased lost life due to multiple fire-arm injuries which were paused from a very close range. As far as witnesses are concerned, they failed to give any detail or the seat of injuries before the learned trial Court.
14. In order to prove motive, neither the best witness Raj Bibi nor any independent witness was produced before the learned trial Court. F.I.R. No,88/95 Exh.P.E. Registered on 14-5-1995 was brought on the record of the case, as, according to which, Yasin had got a case registered against Ghulam Nabi appellant for commission of Zina with his wife Raj Bibi. The incident took place about two years and ten months prior to the instant occurrence. Meanwhile, undeniably, the matter was patched up between the parties, who kept on meeting each other. Mst. Nusrat Bibi daughter of the complainant never deserted the house of her husband and used to be present during the trial. The prosecution failed to prove through any reliable evidence that Ghulam Nabi had attempted to commit Zina-bil-Jabr with Raj Bibi 2/3 days prior to the occurrence. The time was never mentioned either in the complaint or in the earlier statements; that was mentioned for the first time by the complainant before the learned trial Court and he was duly confronted with his earlier statement.
15. As regards the recovery of gun, it may be mentioned here that the same was produced before the Investigating Officer by Ata Ullah, who appeared before the learned trial Court as C.W.7. He was cross-examined by the learned counsel of the complainant. During cross-examination, he explained that he had borrowed the gun P-4 and its licence from Ghulam Nabi accused for his own protection and that Ghulam Nabi was his tenant. The recovery evidence rather helps the appellant.
16. In the above noted circumstances, in our opinion, neither Ali Muhammad nor Muhammad Ashraf was present at the time of occurrence. They had been guessing about the assailant and adjusting their statements according to the new discoveries. It is settled principle of law that presumption how strong it may be cannot take the shape of proof. The prosecution case is replete with doubts. 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 shall be released forthwith if not required in any