Saif-ur-Rehman, J.--Muhammad Nawaz alias Bambu, Muhammad Riaz alias Riazi and Muhammad Anwer were tried by the learned Addl. Sessions Judge, Vehari, Camp at New Central Jail, Multan in case FIR No, 280 dated 09.07.1997 registered under Sections 302/34, P.P.C. at Police Station City Burewala. The learned Judge vide his judgment dated 27.04.2002 found the appellant guilty in the said case for committing Qatl-i-Amd of Muhammad Sharif deceased convicted him under Section 302(B), P.P.C. and sentenced him to death subject to confirmation by this Court. He was directed to pay Rs,50,000/- as compensation to the legal heirs of the deceased and in default thereof to suffer R.I. for one year. Remaining two accused were acquitted of the charge.
2. The appellant has challenged his conviction & sentence through the instant Criminal Appeal.
Murder Reference No, 363/2002 has also been received from the learned trial Court under Section 374, Cr.P.C. seeking confirmation of the death sentence. This judgment shall dispose of the appeal and the reference.
3. This case was registered on report of Muhammad Aslam who stated in the FIR that he was resident of Chak No, 277/EB and was serving as a Field Assistant in Department of Agriculture. On the day of occurrence, he was present in the grassy plot in front of office of the DSP alongwith his real brothers Muhammad Sharif, Muhammad Akram, and Ameer and a few more persons in connection with investigation of case FIR No, 131/97 registered under Section 324, P.P.C. at Police Station Sahuka. It was about 10:30 a.m., Muhammad Riaz alias Riazi, Muhammad Nawaz alias Bambu sons of Muhammad Anwar and other persons were also present there in connection with investigation of the said case when Muhammad Anwar with a bag arrived there. Within their sight, he opened the bag, took out pistol 30-Bore and handed it over to Muhammad Nawaz alias Bambu and gave second pistol to Muhammad Riaz alias Riazi. He shouted lalkara to teach a lesson to Muhammad Aslam & Muhammad Sharif for pursuing the case. Muhammad Nawaz fired at Muhammad Sharif hitting him on the left side of the abdomen. Muhammad Sharif tried to save his life in injured condition. Muhammad Riaz alias Riazi fired at him hitting him on the left thigh.
Muhammad Sharif fell on the ground. They tried to get hold of the accused who gave lalkara that any one coming near them would be killed. They could not go near the accused out of fear. All the accused fled away from the place of occurrence while firing. Murder feuds between the parties was alleged to be the motive of this offence.
4. At the inception of the trial, the accused were formally charged under Sections 302/34, P.P.C.
They denied the charge and claimed trial. The prosecution examined as many as 11 witnesses to prove the charge. Muhammad Abdul Rafique Qureshi & Liaquat Ali appeared as CW-1 & CW-2 respectively.
5. Dr. Muhammad Amja 1 Shakeel PW-1 medically examined Muhammad Sharif. He deposed that on 09.07.1997 Muhammad Sharif was brought by Waryam Ali 339/C-II. He found the following injuries on his person:-- "(1) Fire-arm wound (1/2) cm x 1 cm x going deep on left side of abdomen 5 cm x away from umblicus. Its margins were inverted. It was wound of entry. Shape was oval.
(2) Fire-arm wound on right side of chest on outer side in middle, 1l cm x 1 cm x going deep. Its margins were everted. It was wound of exit. It was oval in shape.
(3) Fire-arm wound oval in shape (2/4) cm x 1 cm x going deep. Its margins were inverted. It was wound of entry. It was in front and inner side of left thigh in its upper part.
(4) An oval wound 34 cm x 1 cm x going deep on the back of upper part of left thigh on inner side.
Its margins were everted. It was exit wound. It was about 3 cm below Injury No, 3.
He stated that the patient was in shock. B.P. was nil and his condition was serious. The patient was referred to Operation Theatre for necessary treatment. The injuries were caused by fire-arm and probable duration of injuries was fresh. Exh.PA is carbon copy of MLC.
He further deposed that on 09.07.1997 on his death he performed the postmortem examination of Muhammad Sharif and found the following injuries on his person.
1. Wound oval in shape 34 cm x 1 cm x going deep on left side of abdomen 5 cm away from umblicus margins were inverted. It was wound of entry.
2. Oval wound 1 cm x 134 cm x going deep on outer border of right side of chest. Margins everted. It was exit wound.
3. Oval wound 1 cm x34 cm x going deep in front and inner side of upper part of left thigh. Margins were inverted. It was entry wound.
4. Oval wound 34 cm x 1 cm x going deep on the back and inner side of upper part of left thigh.
Margins were everted and it was exit wound.
5. Stitched laprotomy wound 24 cm in front of abdomen.
6. Two stitched wounds each 134 cm on right side of chest made in operation theatre for drainage of blood from pleural cavity.
In his opinion the death had occurred due to shock and haemorrhage. The injuries had been caused with fire-arm. Injuries No, 1 & 2 were sufficient to cause death in the ordinary course of nature. Probable time between injuries & death was about 3-4 hours and between death and postmortem examination about three hours. Exh.PC is the carbon copy of postmortem report and Exh.PC/1 the sketch of injuries.
6. Muhammad Aslam complainant and eye-witness of the occurrence entered the witness box as PW-3 and reiterated he facts mentioned in the FIR. On empty cartridge PW-3 was recovered by the Investigating Officer from the place of occurrence in his presence which was taken into possession vide memo Exh. PH. He again joined the investigation on 10.08.1997 when Riaz accused led to the recovery of pistol P-4 from his house situated in Square No, 62 Killa No, 9 Chak No, 277/WB which was secured vide memo Exh.PJ. He reported both the recoveries.
7. Muhammad Ameer PW-4 another eye-witness corroborated PW-3. He also witnessed recovery of cartridge P-3.
8. Riaz Ahmad PW-6 inter alia stated that on 09.09.1997 he was handed over three sealed parcels by the Moharrar, said to contain empties & pistols, for onward transmission to the office of Forensic Science Laboratory, Lahore which he delivered in the said office on 10.09.1997 intact. Exh.PS is report of Forensic Science Laboratory, Lahore according to which the crime empty recovered from the place of occurrence matched with pistol P-1 got recovered by Muhammad Nawaz-appellant.
9. Mazhar Nawaz SI is Investigating Officer who was examined as PW-10. According to him on 09.07.1997 he recorded statement of Muhammad Aslam-complainant Exh.PF. He prepared the injury statement Exh.PB of Muhammad Sharif and sent him through Constable Waryam Ali for medical treatment. He deposed that due to clerical mistake he recorded the name of the complainant Muhammad Aslam in place of Muhammad Sharif deceased. He prepared rough site- plan Exh.PM of the place of occurrence; took into possession blood-stained earth vide memo Exh.PG from there and; secured crime empty P-3 vide memo Exh.PH from that spot. He then went to the Police Station where he received letter from Medical Officer Exh.PN (regarding death of the deceased) and he added offence under Section 302, P.P.C. After the postmortem examination, Waryam Ali Constable produced before him last worn clothes of the deceased consisting of blood- stained shirt P-1 and Shalwar P-2 which he took into possession vide memo Exh.PE. He prepared inquest report Exh.PB. He arrested Muhammad Nawaz accused and recovered pistol 30-Bore P-5 alongwith 08 live cartridges P-6/1-8 which he took into possession vide memo Exh.PL. He got prepared site-plans Exh.PK/1 & 2 with scale. He deposited the case property with Moharrar for safe custody. On 31.07.1997 investigation of this case was transferred from him to Javed Haider Shah, SHO P.S. Gaggo.
10. The aforesaid Javed Haider Shah appeared as PW-11 and stated that at the time of taking over the investigation, Riaz & Muhammad Nawaz accused were already under arrest of the local police.
On 10.08.1997 Muhammad Riaz led to the recovery of pistol P-4 and he took the same into possession. He prepared rough site-plan of place of occurrence Exh.PP.
11. On conclusion of the prosecution evidence statements of the accused were recorded under Section 342, Cr.P.C. To the question as to why this case against him and why the P.Ws. made statements against him, Muhammad Nawaz accused replied:-- "We the accused and the complainant party are from one BRADRI and reside in the same Chak and were living peacefully. About 14 years ago the complainant side abducted my daughter Mst.
Naziran when my sons co-accused were minors. This abduction ensued rivalry. On the fateful day viz 9.7.97 Ashraf case, in which I and my co-accused were accused persons was fixed in the Court of ASJ, Burewala, we attended the Court. Muhammad Sharif deceased on complainant side had also attended the Court, who was fired at by some one in the premises of Burewala Courts. Liaqat Ali 263/C driver & Naib Reader of DSP Burewala caught red handed the assailant alongwith the weapon of offence and they produced him before the DSP, Burewala. The DSP Burewala sent the said assailant namely Haq Nawaz alongwith weapon of offence to P.S. Saddar, Burewala for detention. Muhammad Aslam complainant and other PWs were not present at the spot as case FIR No, 13/97 was not fixed for investigation by the I.O. on that day. PWs reached Burewala after receiving the information of occurrence and then by collusion with the police falsely involved me and my co-accused in this false case due to blood feud enmity as well.
PWs are highly inimical towards us and interested witnesses and related to the deceased, so they have falsely deposed against us."
Remaining accused gave similar replies to this question.
12. Muhammad Abdul Rafique Qureshi DSP also conducted investigation of this case but was not examined by the prosecution. He appeared as CW-1 and deposed that according to his investigation Muhammad Nawaz alias Bambu was found guilty whereas Muhammad Riaz & Muhammad Anwar were found innocent.
13. Liaqat Ali Constable then posted as Driver with DSP Sadar, Vehari was examined as CW-2. The accused tried to have support to their defence plea through his statement, therefore, Examination- inchief of this witness is reproduced as under:-- "I was posted as driver on 9.7.97 with DSP, Burewala. DSP came to his office at Burewala on 9.7.97 near about 9.00 a.m. and from there he went to the office of A.C. Burewala to see him. I parked the official jeep driven by me in front of office of DSP and I remained there when DSP went to the office of A.C.Burewala. A man came from the side of Khauchary (Courts), at that time a man was sitting on the ground in front of office of DSP where e man who came from Court side started firing upon the said person. He had blown 2/3 fire. The man who was sitting on the ground sustained 2/3 fire injuries. His name was later on brought to my knowledge being Muhammad Sharif. The man who had made firing upon Muhammad Sharif tried to escape and he run to the southern side on the road and I chased and grappled him and I committed a CHAPHUA. At that time the man was holding a pistol. I brought him to the office of DSP and soon after that DSP also came to his office to whom I showed the person caught by me. The man so caught by me told his name being Haq Nawaz. The DSP ordered me that the person so caught by me be detained in the lock up in P.S. Sadar, Burewala in the company of Ehsan Nabi Reader/Constable of DSP. The man was locked up and we went back. My no statement was ever recorded throughout the investigation except Ex-DB.
At this stage witness has been directed to touch the accused present in the Court who was allegedly caught by him. The witness has gone near to the accused and he has taken a few minutes to judge as who was the person caught by him and he has replied that now five years have been elapsed and at that time the man who was caught by him did not have any beard, where today all accused persons facing the trial have beard on their faces. However he touched one of the accused in presence of the Court from whom (accused) the Court has inquired, what is his name, then the said accused got touch by the witness has stated his name is Riaz s/o Muhammad Anwer. He (witness) has further stated that now he is not perfect to say that he has touched the correct man who was caught by him five years ago."
14. Learned counsel for the appellant submitted that it was an un-witnessed occurrence. The eye- witnesses were not present at the time of occurrence. In fact, one Haq Nawaz committed the Qatl- i-Amd of the deceased. He was caught by the staff available at office of the DSP. However, for the reasons best known to the police, he was let-off and due to enmity previously existing between the parties, the appellant and his co-accused were falsely booked in this case. It was urged that the prosecution story was not confidence inspiring. The occurrence was supported by interested witnesses. The recoveries were false & fabricated. The learned trial Court failed to appreciate the evidence on the record. The appellant was entitled to acquittal.
15. The learned Deputy Prosecutor General on the other hand submitted that the appellant was named in promptly lodged FIR. Through cogent evidence the prosecution had proved the charge.
The eye-witnesses were corroborated by motive, medical evidence and the recoveries. The impugned judgment was unexceptional and this appeal was liable to dismissal.
16. We have considered the respective contentions of the parties and perused the relevant record.
17. In support of the motive, Muhammad Aslam PW-3 stated:-- "Motive behind the occurrence was that my real brother Muhammad Sharif was murdered by Nawaz and Riaz accused before this occurrence about 2 years ago and we are pursuing his case".
While giving eye account of the occurrence, this witness stated that Muhammad Anwar while handing over pistols to the appellant and Riaz (acquitted accused) raised lalkara that Aslam and Sharif deceased be taught lesson to pursue the case. Muhammad Ameer PW-4 also made similar statement.
18. The facts admitted by the two eye-witnesses in their statements further prove a Jong standing enmity between the parties including murders.
19.As admitted by complainant himself his real brother Muhammad Ashraf was murdered by Nawaz and Riaz accused. According to him, he and Sharif were pursuing the case, therefore, lalkara was given that Aslam and Sharif be taught a lesson which meant that both the complainant and Sharif deceased were the target of alleged aggression. However, from evidence of the prosecution, nothing is found to hold that even any attempt was made on the life of Aslam complainant though he was present at a distance of just two feet from the deceased from whom the assailants were at a distance of just five feet. It indicates that the assailant(s) had no grudge against Aslam complainant and this inference belies the motive set up by prosecution at least to the extent of complainant to whom no harm was done and even no attempt was made to do so.
20. For the aforementioned reasons we find that the defence successfully created doubts in the motive part of the prosecution story.
21. For determining the mode of occurrence, we went through the site-plan Exh.PK carefully and found that Aslam eye-witness was shown to have been present at Point No, 6 i,e, about two feet from Point No, 1 where the deceased received fatal shots. Ameer PW-4 was at Point No, 8 almost at a distance of two feet from the deceased. At the time of fires the appellant and his acquitted co- accused Rip were shown to be present at a distance of five feet. If all the eye-witnesses and other persons were present with the deceased at the time of occurrence as alleged in the FIR Exh.PF at the distances alleged by the prosecution, it would not have been difficult for the eye-witnesses and their supporters to overpower the appellant and his co-accused or at least they would have attempted to do so because real brother and other close relatives would not have cared about their own lives. Their conduct and the circumstances suggest the possibility that the occurrence did not take place in the manner as alleged by the prosecution.
22. Another important fact to be noted is that had the eyewitnesses been present at the place of occurrence, their first reaction after the occurrence must have been to save the life of the deceased who was injured and still alive. Both eye-witnesses i,e, PW-3 & PW-4 admitted during their cross-examination that they had not accompanied the deceased to hospital. Muhammad Aslam complainant explained that he first went to get the case registered. However, when the police had already arrived, his going to the Police Station and leaving his real brother at the mercy of others in precarious condition is against the ordinary course of nature. The fact that deceased was taken to hospital by Waryam Ali Constable is supported by the medico legal certificate Exh.PA as well. Presence of the eye-witnesses at the place of occurrence , therefore, becomes highly doubtful.
23. In presence of the admitted enmity and the fact that Muhammad. Aslam complainant PW-3 is real brother of the deceased and Muhammad Ameer PW-4 is son of sister of his wife, both the eyewitnesses are held to be interested and thus their testimony has to be subject to a careful scrutiny. Both alleged the cause of their presence outside the office of DSP because the DSP had called the parties in connection with investigation of murder case of the aforesaid Ashraf. This fact could be proved by documentary evidence. However, no such evidence could be produced by the prosecution. The Investigating Officers were specifically got confronted with this fact, however, nothing could be disclosed by them to draw a conclusion that on the day of occurrence, the parties were called by the Investigating Officer to join investigation in the murder case of Ashraf.
PW-4 further admitted during his statement that he was neither an accused nor a witness in the aforesaid case. For want of proof of a plausible cause of the presence of these P.Ws. at the place of occurrence, they are held to be chance witnesses.
24. Though seat of injuries mentioned by the eye-witnesses are corroborated by the medical evidence yet there appears to be some confusion while preparing the injury statement by the police. In the injury statement Exh.PB, three injuries on the person of the deceased were mentioned by the Investigating Officer. Name of the victim in this statement is mentioned as Muhammad Aslam son of Gul Muhammad who in fact is the complainant of the case. Following part of the statement of Dr. Muhammad Amjad Shakeel PW-1 in this regard, is further material which reads :-- "It is correct that in Ex-PB is not of Muhammad Sharif injured and according to its writing, it belongs to Muhammad Aslam s/o Gul Muhammad. I had written the name of father of Muhammad Sharif as Gul Muhammad. It is correct that in ExPB, three injuries were mentioned by the police, whereas as per Ex-PA, four injuries were on the person of the injured. It is correct that in Ex-PB, Injury Nos. 2 & 3 had not been mentioned by the police as fire-arm".
25. Learned counsel for the appellant submitted that these discrepancies occurred because the police was not aware of the name of injured and none of the relatives of the deceased was present at the place of occurrence to attend to him. We do not find substance in this contention.
26. With regard to recoveries we find that since crime weapons and the crime empty were dispatched to Forensic Science Laboratory on. the same day, therefore, report of the police that the empty tallied with the pistol recovered from the appellant carries no force.
27. The defence plea taken by the appellant and his co-accused has been reproduced in para 11. It was supported by CW-2 and his examination-in-chief has been reproduced in Para No,
13. It may be true particularly because the Investigating Officers did not conduct proper investigation in this regard. However, total substitution is a rare phenomenon. We do not find any evidence to corroborate CW-2, therefore, we find that defence plea has no force.
28. To sum-up, though we have not attached any importance to the plea taken by the appellant yet it is settled law that the prosecution case has to stand on its own legs. It was for the prosecution to prove the charge beyond any shadow of doubt. In the evidence regarding motive, ocular account, manner of occurrence, medical evidence and recoveries, the appellant successfully created doubts. Resultantly, we find that the impugned judgment is not sustainable. This appeal is accepted. The impugned judgment, conviction & sentence are set-aside. The appellant is acquitted of the charge. He is in Jail and shall be released forthwith if not required in any other case;
29. Death sentence is not confirmed. Murder Reference is answered in negative.