' IJAZ AHMAD CHAUDHRY, J.---Khizar Hayat appellant was convicted under section 302(b), P.P.C.
Vide judgment, dated 5-7-2001 handed down by the learned Sessions Judge, Khushab and was sentenced to death for committing Qatl-i-Amd of Noor Muhammad deceased with direction to pay a sum of Rs,50,000 to the heirs of the above-said deceased by way of compensation under section 544-A, Cr.P.C. However, through the same judgment, co-accused namely, Muhammad Amir and Muhammad Ramzan were acquitted of the charge by the learned trial Court by extending benefit of doubt to them. Khizar Hayat appellant has challenged his conviction and sentence through Criminal Appeal No, 1103 of 2001 while Criminal Appeal No,1293 of 2001 has been filed by Dost Muhammad complainant against the acquittal of Muhammad Amir and Muhammad Ramzan and both these matters have been heard by us along with Murder Reference No,528 of 2001, sent by the learned trial Court under section 374, Cr.P.C. Seeking confirmation of the sentence of death passed by the learned trial Court against Khizar Hayat. We propose to decide all these matters jointly through the present consolidated judgment.
2. Succinctly the facts of the prosecution's case setup in the F.I.R. (Ex.PA) got lodged by Dost Muhammad complainant (P.W.1.) are that on 26-10-2000 at 5-30 a.m. He and his father Noor Muhammad deceased were going to the shop of Amanullah of their village. Noor Muhammad deceased was ahead of him by some paces and when they reached near the said shop of Amanullah, Muhammad Amir and Muhammad Ramzan (acquitted accused) armed with their respective guns while Khizar Hayat accused appellant armed with hatchet emerged out of the bushes near the baithak of one Mansab. Muhammad Amir (acquitted accused) raised a lalkara that the complainant and his father should not let alive and Khizar Hayat appellant inflicted a hatchet below on the person of Noor Muhammad deceased which landed on his forehead. Noor Muhammad deceased fell down and Khizar Hayat appellant inflicted numerous hatchet blows one after the other which landed on his left upper arm, right upper arm, left knee, left ankle and right knee. The complainant (P.W.1.) stepped forward in order to intervene, Muhammad Amir and Muhammad Ramzan (acquitted accused) challenged him that he would also be dealt in the same way. On his alarm, Muhammad Hayat (P.W.2) and Nazar Muhammad (not produced) who were passing nearby also attracted and saw the occurrence. On seeing them the accused persons while raising slogans left the place of occurrence. Dost Muhammad complainant (P.W.1) along with other persons took Noor Muhammad deceased to Civil Hospital Mitha Tiwana but when they had covered a distance of about four furlongs, Noor Muhammad succumbed to the injuries.
3. The motive behind the occurrence was alleged to be that about 10/11 days earlier, a daughter of Muhammad Amir (acquitted accused) disappeared from house and the accused were suspecting that she was abducted by the complainant's brother Saleh Muhammad for which reason the accused in furtherance of their common intention took the life of Noor Muhammad deceased.
4. The investigation of this case was conducted by Ghulam Farid S.-I. (P.W.11) and during the investigation, the dead body of the deceased, was inspected, injury statement and inquest report were prepared, statements of the witnesses under section 161, Cr.P.C. Were recorded, the place of occurrence was inspected, brood-stained earth was secured, rough site-plan of the place of occurrence was prepared, the dead body of the deceased was sent to the mortuary for autopsy, the last-worn clothes of the deceased were received, a formal site-plan of the place of occurrence was got prepared, the appellant was arrested on 3-11-2000, who on 5-11-2000 while in police custody led to the recovery of blood-stained hatchet (P.W.3) from his residential room and after completion of the investigation a challan was submitted.
5. At the commencement of the trial the learned trial Court after supplying copies of the documents required under section 265-C, Cr.P.C. To the appellant and the co-accused framed a charge under section 302/34, P.P.C. Against them to which they pleaded not guilty and claimed a trial.
6. During the trial the prosecution produced as many as eleven witnesses in support of its case. The ocular account of the incident in question was furnished by Dost Muhammad complainant (P.W.1) and Muhammad Hayat (P.W.2), the medical evidence was provided by Dr. Mehmood Akhtar (P.W.8) who on 27-10-2000 had conducted the postmortem examination on the dead body of the deceased. Ghulam Farid S.-I. (P.W.11) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature.
7. In their statements recorded under section 342, Cr.P.C. The appellant and the co-accused had denied and controverted all the allegations of fact levelled against them by the prosecution and had professed their innocence. However, to a question that "why this case against you and why the P.Ws. Deposed against you?", Khizar Hayat appellant replied as under:-- "I have been falsely implicated in this case due to the existence of strained relations between the parties due to undoing the engagements between the families. As a matter of fact it was an unseen night time occurrence. The deceased had numerous enemies who reside in the vicinity of the place of occurrence. Some one out of the said enemies caused him injuries whereafter.
Amanullah shop-keeper and some other persons carried him after laying on the cot from the spot to his house where he died. During that night Dost Muhammad complainant was called from Sheikhupura where he is employed and the story was fabricated in the morning. In order to fabricate another piece of evidence, hatchet P.3. Was falsely planted upon me when it was produced by Dost Muhammad complainant himself and it was stained with human blood in the police station. The P.Ws. Falsely deposed against me and my co-accused."
In reply to the above-said question, Muhammad Amir and Muhammad Ramzan co-accused professed their innocence and denied the allegations. The appellant and the co-accused, however, opted not to make statements on oath under section 340(2), Cr.P.C. But they produced Muhammad Zaman Moharrir as D.W.1 in their defence.
8. Upon conclusion of the trial the learned trial Court after finding the prosecution's case against the appellant to have been proved beyond reasonable doubt convicted and sentenced him as mentioned and detailed above while the two co-accused were acquitted. Hence, the appeal filed by the appellant against his conviction and sentence and also the Criminal Appeal filed by Dost Muhammad complainant (P.W.1) against the acquittal of Muhammad Amir and Muhammad Ramzan co-accused along with the connected Murder Reference before this Court.
9. The learned counsel for the appellant contends that the eyewitnesses were interested witnesses being related inter se and with the deceased closely; that they had not witnessed the incident and they were not present at the spot at the time of occurrence; that there are, contradictions in the statements of both the eye-witnesses; that acquittal of the co-accused of the appellant by the learned trial Court had created a serious dent in the prosecution's case towards the involvement of the appellant as well; that the eye-witnesses produced in this case by the prosecution had been disbelieved by the learned trial Court to the extent of the acquitted co-accused and, thus, the same eye-witnesses could not be believed by the learned trial Court against the appellant in the absence of any independent corroboration; that the appellant had been involved in the present case on suspicion that there was no reason for the appellant to commit the murder of the deceased; that the motive was also not proved and the prosecution had failed to prove the case against the appellant beyond any shadow of doubt; that according to the doctor the time between the receiving of injury and the death was two to four hours and had the two sons and brother of the deceased present at the spot they would have taken the deceased in injured condition to the hospital for his medical treatment as the village Dhok Wadghal Dakhli Jabi where the incident had taken place was connected with village Mitha Tiwana through metalled road and the traffic was available day and night; that the recovery of blood-stained hatchet from the appellant's possession was legally inconsequential as the same was witnessed by Ghous Muhammad (P.W.5) and Muhammad Aziz (given up P.W.) who were not residents of the village from where the recovery was effected and it was violation of section 103, Cr.P.C. As no independent person from the said locality was joined to witness the recovery proceedings which shows that, it was a fake created evidence; that the F.I.R. Had been got registered with the delay of 13 hours and the story narrated by the complainant has been falsified through the statement of the Investigating Officer; that the prosecution had not succeeded in proving the case against the appellant beyond any shadow of doubt and the appeal filed by the appellant may be accepted.
10. On the contrary, learned counsel for the complainant has vehemently opposed the appeal on the ground that it was a daylight occurrence ana identification of the assailants was not doubtful as both the parties were closely related to each other; that both the eye witnesses had sufficiently explained their presence at the spot at the time of occurrence who had no enmity to falsely implicate the appellant by letting off the real culprits; that the eye-witnesses remained consistent on material points regarding the time, place and the manner in which the occurrence had taken place; that the delay in lodging the F.I.R. Had been sufficiently explained by the complainant; that the medical evidence supported the prosecution case; that recovery of blood-stained hatchet had been effected from the possession of the appellant and according to the report of the Chemical Examiner and that of Serologist the same was found stained with human blood which corroborates the ocular account; that both the eye-witnesses were natural witnesses and their Satements may be relied upon for maintaining the conviction; that the prosecution had succeeded in proving the case against the appellant beyond any shadow of doubt and the appeal filed by the appellant may be dismissed. Also contends that Muhammad Ramzan and Muhammad Amin respondents/accused had joined hands with the appellant and they were vicariously liable for the offenCe and they may be convicted and sentenced while accepting Criminal Appeal No,1293 of 2001.
11. The learned counsel for the State frankly conceded that the eyewitnesses had not been able to establish their presence at the spot.
12. We have heard the learned counsel for the parties at length and also gone through the record of this case with due care and caution.
13. The incident in the present case according to the prosecution had taken place at 5-30 on 26- 10-2000 within the area of Dhok Wadghal Dakhli Jabi, situate 27 k.m. Away towards South from Police Station Mitha Tiwana Dsitrict Khushab and the matter was reported by Dost Muhammad complainant (P.W.1) son of the deceased at the Police Station through F.I.R. (Exh.PA) recorded by Ghulam Farid, S.-I. (P.W.11) on 27-10-2000 at 6-30 a.m. Under section 302/34, P.P.C. According to the prosecution itself in the present case F.I.R. Had been recorded after 13 hours of the incident. The delay had been explained by the complainant by stating that due to the hilly area as well as due to the non-availability of the vehicle he could not lodge the F.I.R. Whether the said explanation was plausible or the delay had occurred for some ulterior motive are the questions to be seen by us.
The complainant himself during the cross-examination admitted that village Jabi was a big village and there were office of Union Council and High School etc. And it was directly connected with Mitha Tiwana through a metalled road. Ghulam Farid, S.-I. (P.W.11) during the cross-examination admitted that village Jabi was connected with village Mitha Tiwana through a metalled road and it was a big village. According to him, there were public call offices in the said village and transport was available from village Jabi every time for everywhere day and night. In such circumstances, the explanation for delay given in the F.I.R. Stood falsified through the statements of the Investigating Officer and the prosecution witnesses themselves which casts doubt about the presence of the eye-witnesses at the time of incident. Even otherwise post-mortem examination had been conducted at 12-30 noon with further delay of six hours after the registration of F.I.R.
According to Dr. Mehmood Akhtar, (P.W.8), the time between the death and post-mortem was 10 to 20 hours. All these facts show that the F.I.R. Had not been lodged with promptitude and inordinate delay had occurred in recording the F.I.R. Which casts doubt in the prosecution story.
14. To prove the ocular account the prosecution had produced two eye-witnesses i,e, Dost Muhammad complainant (P. W. 1) and Muhammad Hayat (P.W.2). P.W.1. Dost Muhammad complainant was son of Noor Muhammad deceased while P.W.2. Muhammad Hayat was real brother of the deceased. Both the eye-witnesses were not only related inter se and with the deceased closely, but they were also not residents near the place of incident and their presence at the spot was per chance. According to P.W.1. Dost Muhammad complainant he was going to purchase some articles from the shop of Amanullah and his father was ahead of him about 15 karams who had also gone to purchase some articles and per chance Muhammad Hayat (P.W.2) who was brother of the deceased along with Nazar Muhammad were coming from another path on the same path in order to make some purchase. It is strange that when the eye-witnesses and the deceased were going to purchase household articles at the same time according to the complainant the deceased had gone to purchase sugar and tea while he had gone to purchase cigarette which fact indicated that the complainant was aware of the fact that the deceased was going to purchase sugar and tea when he was going to purchase cigarette for himself from the same shop. What was the reason for going of all the family members for purchasing these articles at the same shop when the complainant would have purchased tea and sugar as well and we are not satisfied with the reasons given by the P.Ws. For their presence at the spot during the occurrence. Even otherwise, according to the Medical Officer Dr. Mehmood Akhtar (P.W.8) who had conducted the post-mortem examination on the dead body of the deceased; the time between the injury and the death was 2 to four hours. During the cross-examination he admitted that neither bandage nor any piece of cloth was applied on the injuries when the dead body was brought in the hospital. It is strange that the three eye-witnesses were present and two of them were real sons of the deceased while the 3rd one was real brother of the deceased but they" did not apply any bandage or piece of cloth in order to stop the oozing of blood when he was in injured condition. They also did not arrange for any vehicle in order to take the deceased in injured condition to the hospital to save his life. This fact also casts serious doubt about their presence at the spot. Even otherwise, F.I.R. In the present case had been registered with the delay of 13 hours and we have discussed above that the said delay was not natural. The possibility cannot be ruled out that it was an witnessed occurrence and after the recovery of the dead body, the prosecution story was concocted, otherwise there was no reason to withhold first aid to the deceased, who remained alive as per opinion of the doctor for two hours at least and we do not find any material on record to contradict this opinion of the doctor, rather the circumstances of the case have belied the presence of the P.Ws. At the spot. The probable time between the death and post-mortem given by the doctor also indicated that the incident had not taken place at 5-30 p.m. As claimed by the prosecution. We have also observed that statements of the eye-witnesses are not confidence inspiring and they were capable of making false statements as the acquitted accused namely Muhammad Amir and Muhammad Ramzan according to the prosecution were armed with guns and were present at the spot, but they only raised a lalkara. During the cross-examination P.W.1 Dost Muhammad complainant denied that Sultan brother of the deceased had engaged his two daughters with him and with his brother and Mst. Basra was wife of Sultan and according to him there was no dispute between them over Rishta but P.W.2. Muhammad Hayat admitted that Sultan was not on visiting terms with the deceased due to breaking of Rishta. So the complainant had alsO tried to conceal this fact. They had also concealed that Muhammad Amir and Muhammad Ramzan (acquitted accused) were real brothers of said Mst. Basra wife of Sultan and uncle of the deceased. Even otherwise, the motive behind the occurrence was alleged to be that daughter of Muhammad Amir (acquitted accused) was abducted by Saleh Muhammad son of the deceased and brother of the complainant and due to this reason this incident had taken place. It is strange that Muhammad Amir and Muhammad Ramzan (acquitted accused) who were directly connected with the motive were present at the spot with fire-arms but they had not used the said weapons during the incident. Even otherwise, the learned Trial Court had found the story of the prosecution as false regarding the presence of Muhammad Ramzan and Muhammad Amir (acquitted accused) at the place of incident. Muhammad Amir (acquitted accused) was 55 years of age. He had direct motive against the deceased as son of the deceased had taken away his daughter why he did not use the weapon if he and his brother aged about 35 years also present at the spot and if they wanted to finish the deceased the firearm weapons allegedly in their possession were more useful to commit the murder instead of using the hatchet by Khizar Hayat appellant who was not directly connected with the motive alleged by the prosecution. Even otherwise, we find that the incident allegedly had taken place in front of the Baithak of Mansab and 15 karams away from the shop of Amanullah. There was also house of Sher Ali near the place of incident. It is admitted fact that the said path was being used by the people but no witness except for the close relatives of the deceased were produced by the prosecution. We have also observed that the eye-witnesses had not been able to prove their presence at the spot with sufficient and acceptable explanation and their statements are falsified from the other circumstances as well. It is also found that they were capable of making false statements and it is not safe to rely upon their statements for maintaining the conviction in a murder case.
15. The motive of the occurrence had been alleged that the daughter of Muhammad Amir (acquitted accused) had left his house and Muhammad Amir (acquitted accused) suspected that Saleh Muhammad son of deceased had abducted his daughter. During the cross-examination both the eye-witnesses admitted that name of the daughter of Muhammad Amir (acquitted accused) allegedly abducted by Saleh Muhammad was not mentioned by them. Similarly, day, time and the manner in which the abduction was made was not mentioned and no application was ever moved by Muhammad Amir (acquitted accused) for the registration of the case. Dost Muhammad complainant (P.W.1.) during the cross-examination conceded that Saleh Muhammad was working in a mill at Sheikhupura but no witness was produced to substantiate that daughter of Muhammad Amir (acquitted accused) had been abducted. During the cross-examination it has been admitted by the complainant that two daughters of Muhammad Amir (acquitted accused) were married and 3rd one daughter was aged about 8 years and no evidence has been collected about the age of the daughter of Muhammad Amir (acquitted accused) whether she was aged of 7 years at the time of her abduction. Ghulam Farid, S.-I. (P.W.11) also admitted that in support of the motive as alleged by the prosecution no evidence has been produced except the oral statements of both the eye-witnesses and the said oral statements are not H worthy of reliance. Hence the prosecution has not been able to prove the motive against the appellant for the commission of the offence.
16. As far as the alleged recovery of hatchet from the appellant in the present case is concerned, to prove the same, the prosecution produced P.W.S. Ghous Muhammad who stated that the recovery of hatchet (P.3) had been effected from Khizar Hayat appellant on 5-11-2000 from his house and he along with Muhammad Aziz had witnessed the same. During the cross-examination it has been explained by him that Muhammad Aziz (given up P.W.) was resident of 5 miles away from the place of recovery and he himself was residing 2 miles away from the place of recovery. Both of them had gone to the Police Station of their own. He could not say that the vehicle used in the recovery proceeding was an official or it was a private vehicle. He also conceded that no lumberdar or any respectable of the vicinity joined in the recovery proceedings. As such the recovery having been effected in violation of section 103, Cr.P.C. Cannot be relied upon. Even otherwise, it has been admitted by this P.W. That the appellant was already at the Police Station for the last 8 days. On the other hand, Ghulam Farid, S.-I. I.O. (P.W.11.) stated that the appellant was arrested on 3-11-2000 and the recovery was effected on 5-11-2000. After the perusal of the statements of P.W.5 and P.W.11., we are satisfied that the prosecution had not been able to prove the recovery of hatchet from the appellant beyond any shadow of doubt which is inconsequential of no avail to the prosecution.
17. For what has been discussed above, we have come to an irresistible conclusion that the prosecution had not been able to prove the case against, Khizar Hayat appellant beyond any shadow of doubt. Hence, Criminal Appeal No,1103 of 2001 is hereby accepted, the impugned judgment of conviction and sentence recorded by the learned trial Court against Khizar Hayat appellant is set aside and he is acquitted of the charge by extending him the benefit of doubt, who shall be released from jail forthwith, if not required in any other criminal case.
18. Murder Reference No,528 of 2001 is answered in the negative and the sentence of death passed by the learned trial Court against Khizar Hayat appellant is not confirmed.
19. As regards Criminal Appeal No,1293 of 2001 filed against the acquittal of Muhammad Amir and Muhammad Ramzan, coaccused/respondents, we have noticed that in the F.I.R., mere presence of the said accused had been shown and no active role had been ascribed to them. In view of above discussion, the main accused Khizar Hayat has also been acquitted by us while disbelieving the prosecution story and as such we do not find may merit in Criminal Appeal No,1293 of 2001, which is dismissed.