Muhammad Ahsan Bhoon, J.--This judgment shall dispose of Crl. Appeal No, 2194 of 2002 filed by Abdul Rehman appellant and Crim. Appeal No, 304-J of 2003 by Addul Hakeem alias Hakeem son Abdul Rehman, as both arise out of same judgment dated 29.11.2002 passed by the learned Addl.
Sessions Judge, Gojra District Toba Tek Singh in case FIR No, 130 dated 05.07.1998 registered under Sections 302/324/393 PPC at Police Station, Nawan Lahore District Toba Tek Singh.
2. Apart from the above appeals, the learned trial Court has submitted Murder Reference No, 839 of 2002 for confirmation of death of Abdul Hakeem alias Hakeema, appellant-accused, as required under Section 374 Cr.P.C., which shall also be decided through this judgment.
3. The appellant Abdul Hakeem and Abdul Rehman were convicted and sentenced by the learned Additional Sessions Judge, Gojra District T.T Singh as under:-- S.No,Name of accusedOffence u/S.- Sentence .
Abdul Hakeem302(b) PPC .
Sentenced to death. He was also directed to pay compensation of Rs, 2,00,000/- to the legal heirs of the deceased and in case of default in payment to further undergo S.I. for six months. 394 PPC Sentenced to R.I. for six years and also to pay fine of Rs, 10,000/- and in case of default to undergo one SI. For month.
Benefit of Section 382-B Cr.1.C. was also extended to them.
Abdul Rehman302(b)/34 Sentenced to life imprisonment along with compensation of Rs, 1,00,000/- to be paid to the legal heirs of the deceased and in case of non-realization he has to further undergo SI for three months.
394 PPCSentence to six years R.I. along with fine of Rs, 10,000/- and in case of default to undergo S.I for one month. 337-L(iiiSentenced to one year R.I. and also to pay Daman of Rs, 5000/- and in case of non-realization to further undergo S.I. for one month. Benefit of Section 382-B, Cr.P.C. was extended to him. All the sentences were ordered to run concurrently.
4. The prosecution story in brief as alleged in the complaint was that Khalid Pervaiz son of Muhammad Aslam lodged a report that he is resident of Chak No, 335-JB and he along with his brothers Zahid Mahmood and Shahid Mahmood was running a shop at Adda Nawan Lahore in the area of Chak No, 336-JB. On 5.7.1998 at 7-00 p.m after closing the shop Zahid Mahrnood and Shahid Mahmood were on one motorcycle while he and his paternal uncle Muhammad Akram son of Din Muhammad were on the other Motorcycle, when they proceeded to Chak No, 335-JB. Zahid Mahmood and Shahid Mahmood were going ahead of them while they were following them. When his brothers turned from Rajba at More Faqeer Sir in the area of Chak NO. 335-JB three persons who were riding on Motorcycle, out of them one was armed with rifle 222 bore and they tried to stop hison1 brothers but Zahid Mehmood did not stop his motorcycle. when his brothers reached at the dera of Manzoor son of Barkat in Square No, 48 Khasra No, 10, the accused riding motorcycle crossed them, made them to stop and tried to snatch the motorcycle but the brother of the complainant resisted, upon which the accused made indiscriminate firing with rifle 222 bore, as a result of which Zahid Mahmood succumbed to the injuries while Shahid Mahmood sustained serious injures when he and his paternal uncle Akram raised alarm, the accused fled away towards Chak No, 335-JB while riding on the motorcycle. The complainant also alleged that he could identify the accused if produced before them. His paternal uncle Akram besides him witnessed the occurrence. Shahid Mahmood was shifted to Civil Hospital, Nawan Lahore for the purpose of treatment and he left behind his paternal uncle Akram near the dead body of Zahid.
5. After due investigation report under Section 173 Cr.P.0 was submitted in the learned trail Court.
Charge was framed against the appellants who denied of the charge, pleaded not guilty and claimed trial. The prosecution produced its evidence. The appellants were examined under Section 342 Cr.P.C. In answer to Question No, 16 abdul Hakeem, appellant-accused stated as under:- "The case was registered against unknown persons. It was an untraced murder case, the co- accused Farid was murdered by inspector Tallat Mahmood and Fida Hussain S.I/I.O. I was involved in that false and bogus police encounter. After that Tallat Mahmood and Fida Hussain, S.I. made conspiracy to involve me in the present case. The I.O. Fida Hussain at the instance of Tallat inspector created false and frivolous and fabricated evidence against me and the co-accused.
The father of the victim Muhammad Aslam was also a police employee at Faisalabad who also stood in line with the I.O. and also made some other false case against me and the co-accused. I am absolutely innocent in this case. The PWs are inter se related and they deposed against me at the behest of Fida Hussain and Inspector Tallat Mahmood. All the witnesses are interested witnesses who have deposed falsely against me. Abdul Rehman appellant accused in answer to Question No, 16 stated on the same lines." They neither opted to appear as their own witnesses in disproof of the allegation levelled against them as required u/S. 340(2) Cr.P.C. nor did they adduce defence evidence. The learned trial Court after hearing the learned counsel for the parties, passed the above said conviction and sentence, which is being assailed through these criminal appeals.
6. The learned counsel for the appellants has contended that the alleged occurrence in this case in fact took place in the dark hours of the night and none of the accused was identified by the injured PW-11 Shahid Mahmood whereas the complainant Khalid Pervaiz, PW-9, brother of the deceased was not present at the spot; that the FIR was lodged with un-due deliberation and after consultation; the recovery of empty was also not confidence inspiring; that the report of Forensic Science Laboratory was the result of concoction as accused has been arrested on the very next day of the occurrence but their arrest was fictitiously shown on 23.07.1998 and prayed for acquittal.
7. On the other hand, learned DPG has defended the impugned judgment by submitting that evidence of complainant PW-9 Khalid Pervaiz and Injured PW-11 Shahid Mahrnood along with evidence of recovery has proved the case against the appellant and prayed for dismissal of appeals.
8. Heard. Record perused.
9. Admittedly the occurrence in this case took place at 7-00 p.m. on 05.07.1998 and none of the accused was nominated in the FIR. Later on, on the basis of supplementary statement made by the complainant on next day of occurrence i.e 6.7.1998, both the appellant Abdul Hakeem and Abdul Rehman along with co-accused Fareed were nominated as culprits who had allegedly committed the crime in question. The complainant PW-9 Khalid Pervaiz, brother of the deceased, while appearing before the learned trial Court narrated the story of FIR and in addition thereto he named the accused with their specific role of two fire-shots made by Abdul Hakeem appellant hitting right eye of the deceased, fire made by Fareed, co-accused (since murdered in encounter) hitting on the right hand of the deceased and 3rd fire made by Abdul Hakeem again hit right chest of the deceased and fire made by Abdul Rehman appellant hit lower leg of PW-11 Shahid Mahmood. He further deposed that he came to know about the names of accused from his brother Shahid Mahmood injured as he could not tell him their names at the time of lodging of FIR because after receipt of the injuries he had become unconscious but the said story of becoming unconscious of Shahid Mahmood is belied by evidence on record as there is nothing available in the statement of Dr.Naeem Ullah Khan, PW-5 that injured Shahid Mahmood PW-11 was unconscious when he was brought in the hospital or when he was examined by him. Similarly on perusal of medico legal report Exh.PF of Shahid Mahmood injured, he had not found that he was unconscious at the time of his examination particularly he examined the injured at 9.25 p.m. and the injured Shahid Mahmood himself stated in his examination-in-chief that he had become conscious at 9-00 p.m. whereas Exh.PF would show that injured Shahid Mahmood was examined at 8.50 p.m. So all these assertions negate the version of prosecution. It would be appropriate to mention here that the document Exh.PS, an application for recording of statement of injured PW was allegedly submitted by the Investigating Officer PW-14 Fida Hussain where the Doctor gave note " Not fit. for statement". Exh.PT, another application dated 6.7.1998 moved by PW-14 Fida Hussain S.I wherein note was given by the PW-5 Dr.Naeem Ullah Khan" fit for statement" but when the said doctor appeared as PW-5 has not uttered a single word that any application was moved before him by PW-14 for the statement of injured PW-11 or he gave any note on the said application. Even otherwise the injury on the person of PW-11 Shahid Mahmood was no non-vital part of the body i,e, on outer side of right leg just below the knee joint. So, in our view, story of becoming unconscious was not plausible and was not supported by any admissible place of evidence. The complainant Khalid Pervaiz PW-9, brother of the deceased was unable to justify his presence on the place of occurrence particularly when injured was examined by PW-5, he was not in the company of PW-9 and it was deposed by PW-11 Shahid Mahmood who stated as under:-- "At 9-00 p.m. in hospital only Asmat ullah was present with me. My father reached in the hospital at about 12-Night. No other relative had come there before the arrival of my father."
The above quoted portion would show that neither he was accompanied by the complainant nor any of his other family member reached at the hospital till 12:00 night and even none from the police official had come there which fact would show that in fact, the only injured PW-11 was accompanying the deceased at the time of occurrence, PW-9 Khalid Pervaiz stated as under: "The accused present in the Court were already known to me from their faces but their names were not known to me. Shahid Mahmood on coming into senses next day early in the morning at Azan time told me the names of the accused in hospital.
Similarly injured PW-11 also stated in his cross-examination which is re-produced below for facility of reference: "Prior to the occurrence the accused were known to me from their faces but I was not aware from their names. Again said that my brothers Zahid Mahmood deceased and Khalid were known to accused from their faces and not from their names. The accused has been visiting my shops and they have also been purchasing the electricity articles but my brother Zahid Mahmood and Khalid had not made wiring in their houses."
The above quoted portion of evidence particularly of injured PW would show that he was also not aware about the names of the accused and how it was possible for him to give the description of role, which was mentioned in supplementary statement by the complainant. Both PWs-9 & 11 tried to clear the situation while stating again that accused were known to them from their faces and not from their names but the first portion of their statement, which, in our view, brought on record the truth during the cross-examination. The evidence available on record would show that the appellants were arrested on the very next day of the occurrence as is evident from the statement of PW-4 Nazir Ahmad, who is close relative of the deceased. He stated in his evidence, which is re produced below: "Accused were arrested on the following day of occurrence."
This fact is corroborated by the circumstances deposed by PW-10 Muhammad Aslam, father of the deceased, who stated that accused' Fareed was murdered after 2/3 days of the occurrence of the present case and this fact was also admitted by PW-14 Fida Hussain, S.I who stated that co- accused Fareed was murdered in police encounter on 7.7.1998 which fact would show that the name of the accused were mentioned in supplementary statement and statement of PW-11 Shahid Mahmood, when the accused were arrested on the next day of occurrence out of which Fareed was murdered in an encounter to whom the injury at the hand of the deceased was attributed whereas the appellant Abdul Hakeem was attributed role of causing fatal injury whereas injury suffered by PW-11 was attributed to Abdul Rehman.
10. It is a matter of record and evidence that father of the deceased was a police official and the above discussion would show that whole evidence was the result of mere concoction. Another important aspect of the case is that as per FIR the only weapon which was held by one of the accused out of three was .222 bore rifle but later on in supplementary statement and statement under Section 161 Cr.P.C. all the three accused were shown as armed with different kinds of weapons and were attributed different roles, said improvements duly confronted in cross- examination further negates the case of prosecution.
11. Two empties of .30-bore pistol P-6/1-2 that were recovered vide recovery memo Exh.PC from the spot. PW-3 Muhammad Sadiq deposed about the said recovery but he stated that no other empty was 'recovered from the spot. Similarly, three empties of .222 bore rifle P-5/13 were taken into possession vide recovery memo Exh.PD and was proved before the learned trial Court by PW-4 Nazir Ahmad along with I.O. PW-14 but Nazir Ahmad clearly stated in his cross-examination that when police arrived the dead body of Zahid Mahmood and person of Shahid Mahmood injured were lying at the spot and he had seen there only three empties of 222 bore rifle which were taken into possession by PW-14. He categorically stated that he did not see the recovery of any other empty. So evidence of PW-3 and PW-4 was contradictory to each other. PW-10 is father of the deceased, and is also recovery witness of C pistol along with live bullets and number plate of motorcycle from the accused Abdul Rehman and also rifle 222 bore from Abdul Hakeem and PW- 14, the I.O. was also witness of the said recovery but he admitted this fact that the recovery was effected from both the accused from the same place of one room on 26.7.1998 whereas pistol was recovered on 28.7.1998. Recovery was effected from abdul Hakeem on 28.7.1998. They admitted this fact that so many persons of the locality were gathered there at the relevant time but no independent witness was associated to join the recovery proceedings which is in violation of Section 103 Cr.P.C. Another important aspect of the case is that inquest report Exh.PK would show that there was nothing mentions column No, 23 that anything was taken into possession from the spot and this fact was also admitted by PW-14/I.O. Another important aspect of the case would be that both the appellants had already been arrested had they were in custody of the police as admitted by PW-4 Nazir Ahmad, then matching of recovery vide report Exh.PN would be of no consequence. It would be important to mention here that Exh.PW, the report of Forensic Science Laboratory would show that empty marked as P.2 was found fired form pistol of Farid accused (since murdered in an encounter with the police), whereas there is nothing in evidence that anything was recovered at the behest of Farid accused (since dead). It would be appropriate to mention here that only number plate was recovered at the behest of the accused but the motorcycle of which attempt of snatching was made, same was neither recovered from the spot nor from the accused persons. Another important fact is also evident from the statement of PW-4 that the police had reached at the spot but the FIR was lodged but according to the "police Karwai" it shows that Fard Biavan was written in the area of Chak No, 338-JB which shows that the FIR was lodged after undue deliberation and consultation.
12. For what has been discussed above, we are of the considered view that prosecution evidence is self contradictory concoction and fabrication is floating on the surface and the prosecution has failed to establish its case beyond any shadow of doubt against the appellants. Consequently, both these appeals are allowed, the impugned judgment of conviction dated 29.11.2002 passed by the learned Addl. Sessions Judge, Gojra is set aside and the appellants are acquitted of the charges. They are in Jail and they shall be set at liberty forthwith if not required in any other case.
Murder Reference is answered in negative.