' MUHAMMAD FARRUKH MAHMUD, J.--- This judgment will dispose of Criminal Appeal No,286 of 2000 filed by Muhammad Maqbool alias Koola, who faced trial in case F.I.R. No,471, registered at Police Station Lower Mall, Lahore, on 18-10-1994, for offences under section 302/34, P.P.C., before learned Additional- Sessions Judge, Lahore, who after conclusion of trial, vide his judgment, dated 6-3- 2000 convicted the appellant under section 302(b), P.P.C. And sentenced him to death with compensation of Rs,50,000 or in 'default six months' R.I.
2. Murder Reference No,223 of 2000 for confirmation or otherwise of death sentence of appellant shall also be decided through this single judgment.
3. Succinctly the facts of the case as mentioned in F.I.R. Exh.P.B./1 are that complainant along with his brother Muhammad Ghaffar was running a Tandur shop for about a year. Maqbool Ahmad was employed at the said Tandur. On 16-10-1994 Maqbool had a quarrel with Muhammad Ghaffar and on the same day Maqbool after extending threats of dire consequences left for village. On 17-10- 1994 in the evening Muhammad Ayub and Phangan Khan, cousin and uncle of the complainant respectively, came at his shop and inquired about the reasons of quarrel with Maqbool. After taking meal they slept on the roof. At about 4-00 a.m. Maqbool Ahmad and Abdul Ghaffar armed with Chhuris, Ghulam Rasool armed with Sota came on the roof. The complainant woke up. The lights-of the adjacent houses were on. Within the view of complainant Maqbool Ahmad inflicted Chhuri blows one after the other on his brother Muhammad Ghaffar. The complainant raised alarm and tried to his brother. Ghulam Rasool extended threat to kill the complainant. On hearing the noise uncle of the complainant Phangan Khan and his cousin Muhammad Ayub also woke up. They tried to rescue the injured but the accused threatened them with dire consequences and continued inflicting Chhuri blows on Muhammad Ghaffar. After receiving the injuries, the injured fell down.
Thereafter the accused while brandishing their Chhuris in the air ran away from the spot.
4. The motive behind the occurrence was that one year prior Muhammad Suleman uncle of the complainant had a dispute with the accused, as Muhammad Suleman had given fiance of accused Maqbool in marriage to his brother-in-law. Muhammad Ghaffar used to help his uncle Muhammad Suleman. The matter was compromised between the parties but the accused had grudge against them. Thus, for that grievance the accused murdered Muhammad Ghaffar.
5. After registration of formal F.I.R., the investigation of the case was taken over by Irshad Baig S.- I./P.W.11, who conducted thorough investigation and arrested the accused. During investigation Abdul Ghaffar and Ghulam Rasool were declared innocent and were discharged. So after effecting recovery of Chhuri used during the occurrence, Maqbool was sent up to face trial.
6. At the trial, the prosecution in order to prove its case produced 14 witnesses in all and after tendering in evidence the reports of Chemical Examiner Exh.P.I. And Exh.P.K. And that of Serologist Exh.P.J. And Exh.P.L. Closed its case. The accused in his statement recorded under section 342, Cr.P.C. Pleaded his innocence and false implication. He did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial, the learned trial Court convicted and sentenced the appellant as stated above.
7. The learned counsel for the appellant has contended that it was a night occurrence; that P.W.
Ayub and the complainant both belonged to a village which was at a distance of 60 Kms. From the place of occurrence; that according to prosecution case Ghafarra and appellant were brothers and both inflicted Chhuri blows but Ghaffarra was never tried nor any complaint was ever filed against him; that delay in postmortem clearly reveals that the complainant was summoned from his village after the occurrence; that it is proved from record that one Fayyaz a close by neighbour had taken the deceased while injured to the hospital and the death certificate bore his name, therefore, if the complainant would have been present there then certainly his name was mentioned in.The said certificate; that the prosecution miserably failed to prove motive, as according to prosecution case itself the appellant had been working at the Tandur of the complainant party for about a month; that Phangan Khan, who was uncle of the deceased, was not produced while Ayub, who knew nothing about the motive, was produced; that in case the P.Ws. Would have been present there they certainly would have tried to save Muhammad Ghaffar as the assailants were not armed with any fire-arm weapon; that evidence of recovery of blood- stained Chhuri was a piece of fabrication on the part of the Investigating Officer, as the Chhuri was allegedly recovered from inside the shop of the complainant, which was quite unnatural, as according to prosecution case, after committing murder the assailant ran away while brandishing Chhuris, so there was no chance to hide the Chhuri inside the shop of the complainant; that Ayub and Irshad both did not state before the learned trial Court that Chhuri was blood-stkined; that no independent person was associated during recovery proceedings; that number of injuries on the person of deceased denotes that whosoever the assailant had sufficient time and freedom to commit the offence; and that the prosecution case was replete with doubts.
8. On the other hand, the learned counsel appearing on behalf of the complainant has submitted that the deceased and the complainant used to run Tandur shop together and were sleeping on the roof of their shop, so the complainant was the natural witness and his presence could not be denied; that the assailant caused 15 injuries with sharp-edged weapon so the complainant had sufficient time to have a look at the assailant; that the complainant had no previous or enmity with the assailants so as to involve him in a false case; that presence of Ayub was also natural as he had come to inform his cousin about the threats issued by the appellant in the village after leaving the service of the complainant; that the ocular account was fully supported by the medical evidence and corroborated by the factum of recovery of Chhuri, which was stained with human blood; that the motive stands proved and that in any case weakness of motive would not be a ground for not inflicting normal penalty of death; that during investigation it was established that it was the appellant who had committed the murder of an innocent person; that no reason existed for the complainant to substitute a killer for an innocent person; that both the witnesses have corroborated each other on all the material particulars of the case; that in the presence of trustworthy direct evidence minor discrepancies and delay in postmortem would not matter, as it reflect on the working of the police and the complainant party would not suffer; and that it was suggested to the P.Ws. That some of the inhabitants of the locality sworn affidavits in favour of the appellant but neither the affidavits were produced during investigation nor anyone of those persons was produced in defence to substantiate their plea.
9. The learned Additional Prosecutor-General adopts the line of arguments advanced by the learned counsel for the complainant.
10. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely. According to prosecution on the fateful day Maqbool alias Koola appellant and his two brothers Abdul Ghaffar and Ghulam Rasool climbed over the roof, where Muhammad Ghaffar deceased and his brother Muhammad Iqbal complainant/P.W.11, his cousin Muhammad Ayub/P.W.12 and his uncle Phangan Khan were sleeping. The appellant and his brother Abdul Ghaffar both were armed with Chhuris and both of them caused injuries to Muhammad Ghaffar till he was fatally wounded. The role assigned to Ghulam Rasool was that he was armed with Sota and prevented the P.Ws. From rescuing the life of Muhammad Ghaffar deceased. Abdul Ghaffar and Ghulam Rasool were not sent up to face trial. It was Maqbool alone who faced trial. During trial, after recording the examination-in-chief of the complainant on 23-10-1996 an application was moved for summoning the remaining two accused, which was fixed for arguments for 30-10-1996.
On the said date the learned trial Court passed order that the application would be considered after cross-examination. However, no order was passed for summoning the rest 9f the accused by the learned trial Court till conclusion of the trial.
11. The occurrence took place on 18-10-1994 at about 4-00 a.m. When it was dark. The matter was reported to the police through written application by the complainant at 5-55 a.m. After about two hours of the occurrence, while the police station was at a distance of 2 Kms. Only. According to F.I.R., the complainant took his wounded brother in a rickshaw to Mayo Hospital, where he was pronounced dead. At that time he was accompanied by neighbour Muhammad Fayyaz, who owned a press. Undeniably, the complainant and the other witnesses were the residents of village Alditta, which was at a distance of about 60 Kms. From the place of occurrence. The complainant claimed that he and his brother were running a Tandur at Hafeez Road, Masoomganj, Lahore, for the last one year while Muhammad Ayub P.W.12 and Phangan Khan uncle of the complainant had come to the shop in the preceding evening to the night of occurrence. The reason for arrival of the witnesses was that the appellant after quarrelling with the deceased on 16-10-1994 had gone to village and issued threats against Ghaffar deceased. Feeling concern Muhammad Ayub P.W.12 and Phangan Khan went to the shop of the deceased in order to inform him. We would like to mention here that as per F.I.R. The motive behihd the occurrence was that one year prior to the occurrence a dispute occurred between Muhammad Suleman (uncle of the complainant and the deceased) and the appellant over "Rishta", as Suleman got engagement of the appellant broken and got the lady married with his brother-in-law. Ghaffar deceased used to take side of his uncle, which caused annoyance to the appellant. It is strange that despite grievance Maqbool appellant was allowed to work at the Tandur of the deceased and continued working for a month and got angry on 16-10-1994. Prima facie either Maqbool did not work at the Tandur or there was some other motive behind the occurrence, as in the existence of motive the appellant would not work as a labourer at the Tandur owned by the deceased.
12. It is in evidence that after examination of Muhammad Ghaffar the doctor issued death certificate. P.W.13 Irshad Baig, S.-I., who investigated the case, admitted it to be correct that the death certificate of Ghaffar was available on the police file and that it was correct that according to the death certificate it was Muhammad Fayyaz who had taken the injured to the hospital. The argument of the learned counsel for the appellant that in case the complainant had been accompanying the deceased then death certificate would have borne his name and not that of Muhammad Fayyaz is not without substance. It is also noteworthy that the Investigating Officer admitted it to be correct that the above noted Fayyaz along with other respectables of the locality sworn affidavits in favour of the accused.
13. The P. Ws. Implicated three brothers in the case and according to them, Abdul Ghaffar and Maqbool both caused injuries to the deceased with Chhuris. The seat of injuries was not mentioned in the F.I.R. Nor injuries were specifically attributed to Ghaffar and appellant. During trial the complainant tried to adjust his statement in accordance with the medical report by mentioning the seat of injuries and he was duly confronted with his earlier statement. Similar role was assigned to the appellant and his brother Abdul Ghaffar. The latter was never tried and strangely the complainant did not make any serious effort to get him tried. He could easily do so by filing a complaint if he was not satisfied with the investigation of the police or he could press his application seeking summoning of rest of the two accused pending before the learned trial Court.
The conduct of the complainant speaks volume against him. It appears that he had not witnessed the occurrence otherwise he would not have spared the accused, who had also caused injuries to the deceased. Allegedly the accused were three in number, while the complainant party was comprising of four persons including the deceased and the accused were not equipped with fire- arms, so if the witnesses had been there they would have done their best to save the life of their near and dear one.
14. As noted above, the distance between the place of occurrence and the police station was only 2 Kms. And one could easily report the matter at police station within half an hour of the occurrence.
Any one of the complainant party could go and report the matter. It is true that according to prosecution story Fayyaz and complainant had taken the deceased to the hospital, then Ayub and Phangan, if they had been there, could easily go and report the matter to the police. It is also notable that the F.I.R. Was based on the written application of the complainant. According to complainant, he went to police station and narrated the facts and then he moved written application. He could not say whether the application was written by a private person or by any police official. He deliberately told lie by stating that he did not remember that the application was read over to him or not. It is evident from the fact that when he was confronted with the contents of the F.I.R. Most of the time he answered that he did not remember.
15. According to medical evidence, the deceased had received 15 injuries on his person with sharp- edged weapon. Perusal of post-mortem report reveals that all the injuries were caused by the same weapon or by the similar weapon. It takes time to cause 15 injuries and as noted above the witnesses if present must have interfered at least they could raise alarm to attract the neighbours.
The deceased lost his life between 4-00 to 5-00 a.m. On 18-10-1994; F.I.R. Was shown to have been registered on the same date at 5-55 a.m., in that case the body could easily be sent to the mortuary within 3 to 4 hours on 18-10-1994. On the contrary post-mortem was conducted on the next date at 11-30 a.m. Perusal of the post-mortem report Exh.P.C. further reveals that body was received at the hospital on 19-10-1994. The delay in conducting post-mortem examination fortifies the view that the accused were not known to the complainant party.
16. The appellant was arrested on 10-11-1994 after about three weeks of the occurrence. On 22-11- 1994 he allegedly led to the recovery of blood-stained Chhuri from the shop of deceased. To prove recovery no independent person was produced before the learned trial Court and P.W. Muhammad Ayub, who was also eye-witness, stated about the recovery. Undeniably he resided at a distance of 60 Kms. From the place of recovery. He did not state before the learned trial Court that Chhuri was blood-stained. According to him, he per chance went to police station on the day when the recovery was effected. Irshad Baig S.-I./ Investigating Officer, who prepared recovery memo., did not state before the learned trial Court that Chhuri allegedly recovered at the instance of the appellant was blood-stained. Leaving the infirmities aside; it is revolting to common sense to believe that the accused G while leaving the scene of occurrence chose to go inside the shop and hide the Chhuri. The recovery evidence of Chhuri is not worthy of any credence.
17. Now coming to the motive, as noted above the dispute was over breaking of engagement and marrying of fiance of the appellant with brother-in-law of Muhammad Suleman, uncle of the deceased. Suleman was alive and lived in the village. The appellant could easily take revenge from Suleman. According to P.Ws., the grievance of the appellant was that deceased used to take side to his uncle. It is also in evidence that dispute arose about one year prior to the occurrence and that the appellant was working at the shop of the deceased as labourer for the last one month and had quitted his job only two days prior to the occurrence. In these circumstances, firstly the appellant, if aggrieved, would not join service of his adversary and secondly the deceased would not accommodate him in existence of any enmity. Furthermore, during one month of service no dispute arose over "Rishta" between the deceased and appellant till 16-10-1994. According to Ayub, he did not know the name of woman, who was engaged with the accused; he did not know the name of father of that lady; he did not know the name of husband of the lady. In addition to-this, he stated that he heard about the marriage of said lady. In case lady was married, with brother-in- law of Suleman then the P. Ws. Must have known the details, as Suleman was very close relative being uncle of deceased, complainant and Muhammad Ayub P.W. On the same point the complainant stated that motive behind the occurrence was that brother of appellant was married with brother-in-law of Muhammad Suleman (his uncle), however, later on matter was compromised through the intervention of respectables but the appellant had developed hatred against his brother who had been helping his uncle. Certainly the fault lied with Suleman but according to complainant the appellant kept grudge against the deceased. As noted above in that case neither the appellant would have served under the deceased nor the deceased would have employed him. In these circumstances, it appears that the motive was concocted after the occurrence.
18. The nutshell of the whole discussion is that the prosecution case is replete with doubts, thus, while granting benefit of doubt to the appellant, we allow this appeal, set aside the judgment passed by the learned trial Court and acquit the appellant from all the charges. He would be released from jail forthwith, if not required in any other case.