This judgment will dispose of Cr. Appeal No, 161/2004 filed by Muhammad Arshad against conviction and Cr. Rev. No,87/2004 filed by Mst. Mumtaz Begum complainant for enhancement of sentence awarded to appellant vide judgment dated 24.12.2003 passed by the learned Addl.
Sessions Judge Ferozewala District Sheikhupura whereby he convicted the appellant under Section 302(b) PPC and sentenced to imprisonment for life with a direction to pay Rs, 50,000/- as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C. Benefit of Section 382B Cr.P.C. was extended to the appellant.
2. As per FIR (Ex.PD/1), brief facts of the case as narrated by complainant Mst. Mumtaz Begum (PW.
7) are that she was resident of Rana Town. On 29.5.2001 at 9.00 a.m. she along with her sister Shameem Akhtar and Tahir Ali Shah were going to the graves of their relatives in Scheme No, 1, E- Block, near Dargahi Gill Qadeem. When they reached near the graveyard at some distance near a deserted house, the accused namely Muhammad Mansha Jat armed with pistol his sons Hera armed with pistol, Asif armed with pistol, Kala armed with pistol, Arshad alias Accha armed with pistol along-with Mst. Perveen Bibi wife of Mansha, all Jat by case and residents of Rana Town, were ambushing. Mst. Parveen Bibi on seeing them called her campanions that Tahir Ali Shah had come, on which all the accused raised lalkaras and first of all Heera and Asif fired with their pistols on Tahir Ali which landed on left side of his chest under the heart. Then Kala and Arshad alias Accha fired with their pistols which hit Tahir Ali on his chest and Tahir Ali after being seriously injured succumbed to the injuries at the spot and the accused while raising lalkaras and saying that if some one lodged FIR, that would meet the same fate and fled towards Dargahi Gill.
3. Motive behind the occurrence was that her nephew (Bhanja) Shakeel was murdered by Asif accused in the year 1997 and Tahir Ali Shah deceased pursued his case and the accused, refrained Tahir Ali Shah from pursuing the case but he flatly refused, on which all the accused in consultation with each other, due to that grudge, murdered him with fire shots.
4. After due investigation, report under Section 173 Cr.P.C, was submitted in the learned trial Court.
Charge was framed against the appellant and acquitted accused who denied the charge, pleaded not guilty and, claimed trial. The prosecution produced its evidence. The accused were examined under Section 342 Cr.P.C. Muhammad Arshad appellant/accused in answer to question as to why this case against him and why the PWs deposed against him stated, as under:-- "The occurrence was un-witnessed and I have been involved in this cased due to previous enmity on the basis of suspicion. I also pleaded my innocence but the local police despite disagreeing with the version of the complainant wrongly challaned me." The accused did not opt to appear as his own witness in disproof of the allegation levelled against him as required under Section 340(2) Cr.P.C.
5. The learned trial Court after hearing the parties passed the above said conviction and sentence through the impugned judgment, which has been assailed by the appellant through instant appeal.
6. Learned counsel for the appellant has contended that it was a blind murder. None of the PWs saw the occurrence. The FIR was lodged after due deliberation as reflected from the statement of the complainant. On the basis of same evidence co-accused were acquitted from the charge and same evidence cannot be believed against the appellant. Further contends that ocular account is contradictory to the medical evidence. The injury attributed to the appellant were not available on the body of the deceased, so the medical evidence is contradictory to the ocular account. The place of occurrence was disputed one as the dead body as per statement of Mst. Mumtaz Bibi complainant (PW.7) was first brought to his house from where same was taken to the Police Station. The motive is improbable and unbelievable because the case of motive of present occurrence had already stood decided in the year 1999 as admitted by the eye-witnesses and in that case the accused stood acquitted, so thereafter the motive was available to the complainant to falsely implicate the appellant.
7. On the other hand, learned DPG has supported the impugned judgment and contended that the appellant is duly nominated in the FIR for causing effective fire shot on the front chest of the deceased, same is corroborated by the medical evidence, and there was no motive for false implication, the prosecution has proved its case beyond any shadow of doubt against the appellant and prayed for dismissed of the appeal.
8. I have heard the learned counsel for the parties and gone through evidence on record with their able assistance.
9. As per prosecution version the FIR (Ex. PD/1) the occurrence took place at 9.00 a.m. on 29.5.2001 in a graveyard near Darghai Gill Qadeem, Rana Town Ferozewala and the FIR was lodged at 11.15 a.m. on the same day by Mst. Mumtaz Bibi complainant (PW. 7) a sister of the deceased. She nominated in the FIR six accused persons namely Mansha, Asghar alias Heera, Asif, Azam alias Kale since P.O., Arshad alias Achhu appellant and Mst. Parveen Bibi. Out of above total six accused, Mansha is the father and Mst. Parveen is the mother of the rest of four accused persons, so all the six accused persons are of one family including the father and mother. As per FIR firstly Asghar alias Heera and Asif acquitted accused simultaneously made firing with their pistols 30 bore which hit the deceased on left side of his chest under the heart. Secondly the accused Azam alias Kale and Arshad alias Achhu (appellant) fired with his pistols simultaneously which hit Tahir Ali deceased in his front chest and thirdly Mansha accused made fire with his pistol which hit around umbilicus of Tahir Ali who succumbed to the injuries at the spot. Mst. Mumtaz Bibi complainant (PW.7) while appearing before the learned trial Court reiterated the same version which was corroborated by Mst. Shamim Akhtar (PW. 8) who is another sister of the deceased and the complainant but there are only two injuries on left side of chest under the heart as per skiagram Ex.PA/1 and those are Injuries No, 1 and 2 and same were attributed to acquitted co-accused Heera and Asif and rest of the injuries were on abdomen around umbilicus which according to the complainant PW.7 and second eye-witness PW.8 were attributed to Mansha acquitted accused so the medical evidence runs counter to the ocular evidence.
PW.7 in her cross-examination stated as under:-- 'Dead body was taken to our home on a cot after about one hour. The cot was lifted by us the two PWs and our small children after-wards the other people joined us. The names of those persons are not known to me. Police reached at our home after a short time of our arrival. No statement of mine was recorded at my house at that time. The dead body was transmitted to Muridke Police Station where it was kept till night. In the meanwhile our relatives reached there. After that I submitted an application for registration of case. The application was written in the police station by the police."
The above quoted portion of the evidence would show that the place of occurrence in this case is disputed one as the dead body was taken to the hospital from the house and secondly it was admitted by the complainant that despite the presence of police at her house her statement was not recorded there rather the same was transmitted to Police Station Muridke and in the meanwhile their relatives reached and they submitted application for registration of the case at night so all the proceedings were with due deliberation and consultation. Meaning thereby that till night the complainant party was not aware about the real culprits, so FIR was not promptly lodged.
So, in my considered view none of the eye-witnesses saw the occurrence. PW.7 and PW.8 both admitted that none of the witnesses of threats was ever produced by them during the investigation and it was also admitted by PW.7 that they used to go to graveyard on the dates of their own choice and there as no date fixed for visiting the graves, so the alleged story of visiting the graveyard by the whole family does not appeal to reason when there was no particular occasion or Khatam' etc. on the day of occurrence.
10. As far as motive of the case is concerned, it was prosecution case that the accused had murdered one Shakeel `bhanja' of the complainant and son of PW.8 in 1997 and they had grudge against the deceased for the prosecution of said case but it was admitted by both the eye- witnesses that the earlier case of Shakeel stood decided in 1999 and all the accused were acquitted in that case meaning thereby that three years prior to the present occurrence the said case of Shakeel had already been decided in favour of the accused. Thereafter, it does not appeal to any reason that the accused/appellant had any motive to kill the deceased for prosecution of the murder of Shakeel, his nephew rather the same motive could be available to the complainant party to involve the appellant and his other family members when they had not seen the occurrence. It is also a settled principle of law that motive is always a double edged weapon and in this way the motive was available to the complainant party to implicate the appellant and his family members.
11.As far as the recovery is concerned, during the course of investigation neither any empty was recovered despite alleged reckless firing by six accused as per FIR and similarly no recovery of any weapon of offence was effected at the behest of the appellant particularly when he was arrested on 26.4.2001, so there is no need to further dilate upon the same.
12.As far as the medical evidence is concerned, as explained above there were six entry wounds on the body of the deceased whereas five exit wounds and that does not furnish corroboration to the case of the prosecution because the four other co-accused who were attributed effective firing shots were acquitted particularly when injuries caused by them were available on the body of the deceased. Even the seat of injuries attributed to the appellant further negates the prosecution version as there is no injury on the front chest of the deceased rather two injuries present under the heart of deceased were attributed to co-accused Asghar alias Heera and Asif acquitted accused.
13.In view of what has been discussed above, I allow this appeal due to the following reasons:-- (1)On exactly the same evidence and in view of joint charge, it is not comprehendible as to how one accused can be acquitted and on the same assertion of witnesses, the other can be convicted. Reliance is placed on Umar Farooque vs. The State (2006 SCM R 1605).
(2) Statement of witness improving his version subsequently to strengthen prosecution case, such statement for being improved dishonestly, could not be relied upon--Improvements once found to be deliberate and dishonest would cast serious doubts on veracity of such witness.
Reliance is placed on Farman Ahmad versus Muhammad Inayat and others (2007 SCM R 1825).
(3) In order to sustain conviction on capital charge, evidence must come from independent and unimpeachable source rather than from tainted and inimical witnesses without any independent corroboration. Reliance is placed on Muhammad Hussain versus The State (2008 SCM R 345).
(4) The medical evidence in this case runs counter to the ocular account as in the FIR fire attributed to appellant was on front chest of the deceased whereas according to doctor there is no injury on the chest of the deceased and injuries under heart on chest were attributed to acquitted accused.
(5) No empty was recovered from the place of occurrence and even there is no recovery of any weapon of offence from the appellant though he was arrested on 26.5.2001.
(6) It is a settled principle of law that the motive is always a double edged weapon and in this case the motive was available to the complainant party to falsely implicate the appellant and his family members.
13. For the foregoing reasons, this appeal is allowed the conviction and sentence awarded to the appellant vide judgment dated 24.12.2003 passed by the learned ASI, Sheikhupura is set aside. The appeal shall be released forthwith, if he is not required to be detained in any other criminal case.
The Cr. Rev. having no merits is dismissed.