' KHAWAJA MUHAMMAD SHARIF, J.--- The appellants Mushtaq Hussain and Muhammad Razzaq along with their co-accused Khadim Hussain, Saeed Hussain, Safdar Hussain and Sadiq Hussain were tried by the learned Additional Sessions Judge, Rawalpindi, in case F.I.R. No,127 registered at Police Station Ganjmandi on 25-3-1995 for offences under sections 302/365/147/148, P.P.C. Vide judgment, dated 20-12-2000, the learned trial Court, while acquitting the aforesaid co-accused of the appellants, convicted and sentenced the appellants as follows:--
(I) Mushtaq Hussain for offence under section 302(b), P.P.C. To imprisonment for life plus payment of Rs,50,000, as compensation, to the legal heirs of the deceased in default whereof to undergo further S.I. For three months; and
(II) Razzaq for offence under section 302(b), P.P.C. To death plus payment of Rs,1,00,000, as compensation, to the legal heirs of the deceased, in default whereof to undergo S.I. For six months.
2. The appellants Mushtaq Hussain and Muhammad Razzaq-have challenged their above-noted convictions and sentences through the instant appeal while the learned trial Court has made a reference bearing Murder Reference No,230 of 2001 seeking confirmation or otherwise of death imposed upon Muhammad Razzaq appellant. Both these matters are being decided through this consolidated judgment.
3. Brief facts of the case as narrated by Muhammad Yousaf (complainant), while he was in injured condition, in his statement Exh.P.L. Are that he was serving in Pakistan Railway and was living with his family in Quarter No,7, Scheme No,7 and in its line Mushtaq Butt resided in Quarter No,9. On the fateful day in the evening at about 7-00 p.m. When the complainant was going back to his quarter after caging the hens and reached near the door of quarter of Mushtaq Butt, suddenly, Mushtaq Butt son of Fazal Karim, Qadir Hussain son of Fazal Karim, Razzaq son of Sadiq Safdar son of Ashiq, Saeed son of Ashiq and Sadiq came out of the quarter and after grappling with the complainant, took him inside the quarter, where Saeed, Safdar, Khadim Hussain and Sadiq put him on the ground and Mushtaq Butt armed with hammer and Razzaq armed with iron rod started beating him with their weapons. Mushtaq Butt gave blow of hammer to the complainant on his right knee, beneath the left ankle and on the right leg. Razzaq gave two blows of iron rod on the head of complainant, right arm and left leg. Khadim Hussain gave him a kick blow on his mouth. On hue and cry of complainant, his wife and nephew Riaz Hussain reached the spot. They after beseeching the accused rescued the complainant.
4. On receipt of information Muhammad Ramzan, A.S.-I./P.W.13 reached Civil Hospital, Rawalpindi, and recorded the statement of Muhammad Yousaf Exh.P.L. And sent the same for registration of formal F.I.R. He prepared injury statement Exh.P.M. He collected blood through cotton vide memo.
Exh.P.D. On 26-3-1995 Muhammad Yousaf injured expired. Thereafter, the Investigating Officer prepared inquest report Exh.P.O. After entrustment of investigation to Inam Ellahi, Inspector/P.W.10, on 4-4-1995 he arrested Mushtaq, Safdar and Sadiq Hussain. On 8-4-1995 he also arrested Razzaq, Saeed and Khadim Hussain, Mushtaq Butt, while in custody on 10-4-1995 led to the recovery of blood-stained hammer P.12 from his residential quarter, which was taken into possession vide memo. Exh.P.E. On 12-4-1995 at the instance of Muhammad Razzaq the Investigating Officer recovered iron rod P.13, which was also taken into possession vide memo. Exh.P.F. After completion of investigation, the accused was sent up to face trial.
5. At the trial, the prosecution in order to prove its case produced 13 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.P.Q., Exh.P.R. And Exh.P.S. Closed its case. The accused in their statements recorded under section 342, Cr.P.C.
Pleaded their innocence and false implication. They neither appeared as witnesses under section 340(2), Cr.P.C. Nor did they produce any witness in their defence.
6. Learned counsel for the appellants in support of this appeal submits that the occurrence, according to F.I.R., took place on 25-3-1995 at 7-00 p.m.; that the complaint was lodged at the hospital by Muhammad Yousaf (now deceased) himself at 9-50 p.m.; that P.W.8 Dr. Muhammad Ashraf stated that the injured arrived at 9-30 on 25-3-1995 in the hospital and he was medically examined at 11-30 p.m.; that Riaz Ahmad/P.W.6, eye-witness and also nephew of the deceased, stated before the trial Court that they reached along with the injured in the hospital and thereafter the police also arrived in the hospital. The learned counsel submits that the above facts prove that F.I.R. Was recorded after due deliberations and consultations; that according to statement of Dr. Muhammad Ashraf/P.W.8, who had medically examined the complainant/now deceased in injured condition, stated that the injured was unconscious at the spot and according to the learned counsel, this fact is proved froth the statement of P.W.4 Dr. Tanveer Akhtar, who stated at page 32 of the paper book under heading "on dissection" that "There is extra-dural haemotoma and brain cavity was full of blood". The learned counsel submits that in fact, the deceased was not in a position to make a statement; that neither any certificate was obtained from the doctor about his fitness to make a statement. The learned counsel has referred to the statement of P.W.2 Shabbir Ahmad/H.C. At page 55 of the paper book, which reads as "When we reached hospital the dead body was in the X-Ray Room" and that he had accompanied Muhammad Ramzan, A.S.-I./P.W.13.
The learned counsel submits that in view of the above submissions, the so-called dying declaration is a manipulated one and cannot be relied upon.
7. The learned counsel now refers to the statement of Riaz Ahmad/P.W.6, eye-witness. According to the learned counsel Riaz Ahmad was a government servant by profession and was resident of Village Losar, Tehsil and District Rawalpindi, while the occurrence had taken place within the area of Scheme No,7 of Railway Quarters situated within the jurisdiction of Ganj Mandi. The learned counsel submits that Riaz Ahmad is a chance witness; that the said witness gave no reason to be present at the spot at the time of occurrence; that during cross-examination at page 69 of the paper book the witness stated "I do not personally know the accused persons". But no identification parade was held to identify the culprits by him. The learned counsel submits that although the F.I.R.
Was recorded at 9-50 p.m. But this witness stated in third line of page 72 of the paper book "my statement was recorded by the police at about 7-45 p.m."
8. Then the learned counsel referred to the statement of P.W.1 Mst. Kulsoom Bibi the widow of Muhammad Yousaf deceased. According to the learned counsel, in fact this witness was residing in the village and after the occurrence she was called so as to make her an eyewitness. The learned counsel in order to substantiate his argument has referred to her cross-examination at page 48 of the paper book wherein she stated "when the doctor started treatment Yousuf deceased was in senses. The doctor informed the police about the incident. After a short while the police came there". The learned counsel submits that this is against the medical evidence. He has also referred to her statement at page 50 of the paper book, wherein she stated "I and Riaz went to the quarter". The learned counsel submits that she had been making divergent statements on different steps. The learned counsel submits that she had stated in her cross-examination at page 52 of the paper book "I gave specific role of each accused (confronted with Exh.D.A. Where specific role of each accused is not mentioned)." The learned counsel submits that she did not know as to who used to reside in the other quarters in between their quarter and that of Mushtaq accused.
Learned counsel submits that if she had been living with her husband, she would have known the names of the resident of the said quarter.
9. The learned counsel has again referred to the statement of Mst. Kulsoom widow of the deceased at page 53 of the paper book wherein she stated "Razzaq accused had Sarya who threw it on the ground while leaving the spot". Further submits that P.W.1 at page 47 of the paper book stated "Mushtaq Butt accused threw the hammer inside the room". Further submits that her statement is corroborated by P.W.6 who stated "when the accused persons left the place of occurrence they threw the hammer and iron bar in the room". The learned counsel submits that Rahmat Hussain/P.W.3, who is the recovery witness, was resident of a place which was situated at a distance of 18 miles from the place of recovery of hammer and Sarya. The learned counsel submits that the place of recovery was quarter and according to the statement of P.W.3, the key of that quarter was with Muhammad Ramzan, A.S.-I./P.W.13. According to the learned counsel it was Muhammad Ramzan, A.S.-I., who had opened the lock of the quarter of Mushtaq accused. The learned counsel submits that in view of the above said submissions, the evidence of recovery cannot be taken into consideration.
10. The learned counsel submits that as far as motive is concerned, it was mentioned in the F.I.R. By the complainant Muhammad Yousaf now deceased that motive behind the occurrence was litigation between the parties, while P.W.1 stated that the accused party wanted to snatch their quarter. The learned counsel submits that on this shaky evidence, conviction and sentence imposed upon the appellants cannot be maintained and they are entitled to acquittal.
11. Conversely, the learned Assistant Advocate-General for the State submits that according to the deceased complainant, there was litigation between himself and the accused persons; that both the eye-witnesses are independent witnesses and had no animus against the appellants to falsely implicate them in the case; that the ocular account is fully supported by the medical evidence and strengthened by the recovery of hammer and iron bar at the instance of the accused. Supports the judgment passed by the learned trial Court.
12. We have heard the learned counsel for the parties at a great length and have also gone through the record of the case.
13. The facts of the case have been given in the earlier paragraphs of this judgment. The F.I.R. Was recorded on the statement of Muhammad Yousuf who is now deceased. The learned trial Court treated it as a dying declaration. We are not going to believe that when Muhammad Yousuf made statement, he was conscious and was able to make a statement for the following reasons:--- That Dr. Muhammad Ashraf/P.W.8 medically examined Muhammad Yousuf on 25-3-1995 at 11-30 p.m.
And issued Medico-legal Report (M.L.R.)/Exh.P.J. According to his statement, he examined him on the said date at 11-30 p.m. Although the arrival of the injured was at 9-30 p.m. In his cross- examination, he stated "it is correct that as per injury No,8, the patient was not able to sit The patient can be unconscious due to extensive damage of brain. There was no evidence of ENT bleeding". While Dr. Tanvir Akhtar/P.W.4, who conducted post-mortem examination on the dead body of the deceased on 26-3-1995 stated at page 32 of the paper book "there is extra dural haemotoma and brain cavity was full of blood". Dr. Muhammad Ashraf also stated in the M.L.R. That the injured was drowsy. Even the Police Officer who recorded the statement of Muhammad Yousuf did not obtain permission from the doctor whether the injured (now deceased) was fit to make a statement or not. He even did not get the signature of the doctor on the said statement. The observation of the first doctor Muhammad Ashraf was that when he examined the patient, he was drowsy. In the above said circumstances, the statement of Muhammad Yousuf cannot be treated as dying declaration and the same is afterthought.
14. Now we are left with the statements of Mst. Kulsoom Bibi and Riaz Ahmad whose presence is eliminated from the fact that in Exh.P.J. (M.L.R.), especially its column "name of relative or friend", wherein it has been mentioned as"{{URUD TEXT}}". It means that neither Riaz nor Mst. Kulsoom Bibi took the deceased in injured condition to the hospital. It was the police who after getting information took the injured to the hospital. Riaz Ahmad had also admitted during cross- examination that he did not know the accused persons prior to the present occurrence. He is real nephew of the deceased. As far as Mst. Kulsoom Bibi is concerned, as mentioned above, if she had been present at the spot, she must have accompanied her husband and her name would have been mentioned in the relevant column. The learned counsel for the appellants, while arguing the case, referred to the certain portions of the statements of both the eye-witnesses, which we have mentioned/quoted in paras.5 to 9 of this judgment, which shows that the eye-witnesses were not present at the spot. Moreover, it has come on record during trial that both Mushtaq and Muhammad Razzaq, accused/appellants, had thrown their respective weapons, i.e. Hammer and iron bar, at the place of occurrence. P.W.6 during cross-examination stated that he was asked by the Investigating Officer to accompany him because he had to recover iron bar Sarya and hammer from both the appellants. The key of the quarter of Mushtaq appellant, the alleged place of recovery of weapons, was with Muhammad Ramzan, A.S.-I./I.O., who opened the door of the said house and then got recovered the said articles. The recovery is also very doubtful for the reasons that on the day of occurrence, according to the eye-witnesses, both the appellants had thrown the hammer and iron bar at the place of occurrence while leaving the spot. The said articles should have been available on the place of occurrence and would have been taken into possession by the Investigating Officer on the same day. So the recovery is also ruled out from consideration.
15. As far as motive is concerned, Muhammad Yousuf stated in the F.I.R. That there was litigation between the parties but no evidence whatsoever was led on this point, while Mst. Kulsoom Bibi stated before the trial Court that in fact, the accused/appellants wanted to eject the complainant party from the said quarter. So two different motives have been introduced by the prosecution; one by the deceased/complainant and the other by Mst. Kulsoom Bibi. It is also noteworthy that on the same set of evidence, four co-accused of the appellants, as noticed earlier, have been acquitted by the learned trial Court and no appeal against their acquittal has been filed before this Court.
16. Taking into consideration the above said facts and circumstances, submissions made by the learned counsel for the parties and the evidence on record, we are of the opinion that the case against the appellants is of doubtful nature. While granting benefit of doubt to the appellants, this appeal is accepted and the conviction and sentence of the appellants is set aside. They are acquitted of all the charges. They shall be released forthwith if not required in any other case. The death sentence inflicted upon Muhammad Razzaq appellant is Not confirmed. The murder reference is answered in the negative.