' SYED MAZAHAR ALI AKBAR NAQVI, J---Muhammad Arshad son of Muhammad Mushtaq, appellant was tried by learned Additional Sessions Judge, Sargodha, camp at Bhalwal in case F.I.R.
No,277/2003, dated 2-12-2003, under section 302, P.P.C., registered at Police Station Midhranjha, District Sargodha who vide judgment dated 17-12-2004 convicted the appellant under section 302(b), P.P.C., and awarded him death sentence with a direction to pay Rs,1,00,000 as compensation to the legal heirs of the deceased as provided under section 544-A, Cr.P.C., and in default whereof to further undergo six months SI.
2. Feeling aggrieved by the judgment of the learned trial Court, the appellant impugned the same through filing Criminal Appeal No,86-J/2006; whereas the learned trial Court forwarded Murder Reference No,809 of 2004 for confirmation of the death sentence awarded to the appellant, in terms of section 374, Cr.P.C.
3. As both the matters are arising out of the same F.I.R., therefore, we intend to dispose of the same through this single judgment.
4. The prosecution story as alleged in the F.I.R. (Exh.PC) recorded on the statement of Mst. Sughran Bibi wife of Allah Bakhsh (P.W.-4) is that she is household lady and her husband namely Allah Bakhsh is a labourer. On 2-12-2003 at about 8:00/9:00 a.m., her husband had gone to Kot Moman for earning livelihood. At about 4:30 p.m., he was proceeding back from Kot Moman while riding on his bicycle on bank of canal and when he reached near bridge of canal within the territorial limits of Naseer Pur Kalan, he was done to death by some unknown person while firing on his forehead, information of which was given to the complainant after the evening. The complainant in the company of Muhammad Afzal son of Allah Yar, caste Sheikh Awan, resident of Kotla Panah and Umar Hayat son of Sultan Ahmad, caste Ranjha, resident of Peoples Colony, reached at the place of occurrence; where dead body of her husband was lying. The complainant deployed Umar Hayat on the dead body and in the company of Muhammad Afzal Lumberdar reached the Police Station for reporting the matter. Upon receipt of information of the occurrence, Muhammad Nawaz SI (P.W.-10), recorded the statement of Mst. Sughran Bibi complainant as Exh.PC, which was readover to her, who thumb marked the same in token of its correctness.
5. After recording Exh.PC, Muhammad Nawaz SI (P.W.-10) proceeded to the place of occurrence, inspected the dead body, prepared injury statement (Exh.PG), inquest report (Exh.PH) and handed over the dead body to Sher Muhammad 1779/C for escorting the same to the mortuary. The Investigating Officer secured bloodstained earth from the place of occurrence vide recovery memo. Exh. PD and bicycle was taken into his possession vide recovery memo Exh. PE. The Investigating Officer prepared the rough site plan Exh.PJ of the place of occurrence. After the postmortem examination, the said constable produced last worn clothes of deceased shirt (P-4), shalwar (P-5) and bunyan (P-7), all bloodstained, which were taken into possession by the Investigating Officer vide recovery memo Exh.PK. He also recorded the statements of the P.Ws.
Under section 161, Cr.P.C. The Investigating Officer handed over the bloodstained earth and bicycle (P-3) to the Moharrir for safe custody and onward transmission to the quarter concerned.
6. On 10-12-2002, P. W -11 Muhammad Ijaz Ahmed Qureshi while posted as SHO of Police Station Midhranjha took over the investigation of the case. On 22-12-2003, after recording the statements of Manzoor and Ibraheem P.Ws. Under section 161, Cr. P.C. The Investigating Officer traced Muhammad Arshad appellant as culprit for committing the murder of Allah Bakhsh deceased.
Muhammad Afzal and Umar Hayat P. Ws. Appeared before the Investigating Officer and got recorded their statements under section 161, Cr.P.C. Regarding extra-judicial confession of Muhammad Arshad appellant. On 16-1-2004, the Investigating Officer arrested the accused/appellant and obtained his physical remand. On 19-1-2004, the accused made a disclosure before him and then on 20-1-2004 he led to the recovery of pistol 30-bore (P-1) alongwith three live bullets of 30-bore (P-2/1-3) from a bush growing on the bank of lower Jhelum canal by digging out the same from the earth, which the Investigating Officer took into possession vide recovery memo Exh. PA. The Investigating Officer also prepared rough site plan of the place of recovery as Exh. PA/1 .
7. Muhammad Ramzan A.S.-I. (P.W.3) got prepared site plan of the place of occurrence Exh. PB and Exh.PB/1 from Muhammad Hayat Patwari (P .W.8).
8. During the course of investigation, the Investigating Officer found the accused guilty and submitted the report under section 173, Cr.P.C., to the Court of competent jurisdiction, which was en routed through Illaqa Magistrate as provided under section 190(2), Cr.P.C.
9. The appellant was charge sheeted by the learned trial Court which he pleaded not guilty and claimed trial. Prosecution in order to prove its version produced as many as 11 witnesses. P.W.-4 is the complainant of the case; whereas P.W.-5 Muhammad Afzal has elaborated the statement of the complainant and he is also the witness of extra-judicial confession. P.W.6 Muhammad Ibraheem is the witness of wajtakkar. Muhammad Nawaz SI (P.W.10), Muhammad Ijaz Ahmad Qureshi SI (P.W.-11) and Muhammad Ramzan A.S.-I. (P.W.-3) are the Investigating Officers of the case.
10. Dr. Waqar Hameed (P.W.9) conducted the postmortem examination on the dead body of the deceased Allah Bakhsh and observed the following injuries:-
(1) A lacerated wound (firearm) wound of entry of lift side of forehead, size 2.5 x 1.5 cm having inverted margins and irregular shape.
(2) A lacerated firearm wound of exit on back of head size 5 cm x 3 cm averted margins, irregular shape."
' After conducting the postmortem examination, the doctor arrived at the following opinion:- "In my opinion death in this case occurred due to injury No,1 damaging vital structure of skull cavity leading to massive haemorrhage, shock and death, sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem and homicidal in nature. All the injuries were inflicted with fire arm."
' Statements of rest of the witnesses are formal in nature.
11. On 13-12-2004, the learned DDA while making his statement without oath gave up P.Ws. Manzoor Ahmed, Muhammad Mansha and Umar Hayat. Similarly vide his statement dated 14-12-2004, the learned DDA gave up P.W. Azmat Ullah 371/C being unnecessary and Sher Muhammad constable being dead. On 16-12-2004, the SPP, after tendering in evidence the report of Chemical examiner (Exh.PL) and that of the Serologist (Exh.PM), closed the prosecution evidence.
12. Muhammad Arshad appellant was examined under section 342, Cr.P.C., wherein he did not opt to appear under section 340(2) Cr.P.C. As a witness of his own to disprove the allegation levelled against him. In response to the question why the case against him and why the P.Ws. Deposed against him, the appellant made the following deposition:- "My Phoophi Mst. Sughran Bibi had married with Allah Bakhsh deceased without our consent. She falsely implicated me in this case. I and my father were not on visiting terms with Mst. Sughran and her husband Allah Bakhsh deceased. I and my father never obtained any money on loan from Allah Bakhsh deceased nor there was any incident of quarrel between me and my father on the one side and Allah Bakhsh deceased on the other side. Mst. Sughran and other prosecution witnesses have made false statements to involve me falsely in this case."
13. After hearing the arguments advanced by learned counsel appearing on behalf of both the parties, the learned trial Court, while evaluating the evidence available on record, found the version of the prosecution correct beyond any shadow of doubt, resulting into conviction of the appellant as stated supra.
14. Learned counsel for the appellant contends that admittedly the occurrence is unseen as according to contents of F.I.R., the complainant was informed about the occurrence after the evening while the occurrence had taken place at 4.30 p.m. On 2-12-2004. It is further contended that P.W.-6, Muhammad Ibraheem has deposed the evidence of wajtakkar, however, the facts remains that the said P.W. Was not the resident of the village where the occurrence took place and moreover, this witness has not implicated the appellant in the occurrence. It is further contended that no crime empty was recovered from the place of occurrence and in absence of any corroboration, the recovery of pistol .30-bore is of no use to the case of the prosecution. Learned counsel further submitted that no reason for making extra judicial confession has come on record as such it has got no value. In the end, learned counsel has urged that as the prosecution has failed to establish its case against the appellant beyond any reasonable doubt, the appellant deserves acquittal.
15. Contrary to above, learned Additional Prosecutor General has contended that this is a case of circumstantial evidence and the prosecution has succeeded to prove the case while producing three kind of evidence last seen/wajtakkar, extra judicial confession and the recovery, which corroborate each other. It is further contended that the appellant and the complainant are closely related; therefore, there is no reason for the complainant to falsely implicate the appellant in the instant case. It is also stated that the motive is fully proved. In the end learned Law Officer has submitted that as only one accused is nominated in the F.I.R. As such he is not entitled for any exception.
16. We have heard the arguments of learned counsel for the appellant as well as learned Additional Prosecutor General and perused the record with their able assistance.
17. Occurrence of this case was reported to the local police of Police Station Midhranjha by Mst.
Sughran Bibi wife of Allah Bakhsh deceased. According to the details of crime report, the occurrence had taken place at 4:30 p.m. While the same was reported to the police at 7:00 p.m.
The F.I.R. Does not contain the name of any person rather only the presence of the dead body was mentioned within the local limits of police station Naseer Pur Kalan. It was also mentioned that some unknown person had fired at him, which had landed on the forehead towards left side of the deceased. The information was told to the complainant after the evening and she reached at the place of occurrence in the company of Muhammad Afzal son of Allah Yar and Umar Hayat son of Sultan Ahmed and they found the dead body of the deceased as stated above and the matter was reported to the police. During the course of investigation it transpired that one Muhammad Aslam had informed Mst. A Sughran Bibi complainant about the occurrence, however, astonishingly said Muhammad Aslam was not produced during the course of trial. Muhammad Ibraheem P.W.6 at the time of recording his statement introduced himself as relative of the deceased but at the same time it transpired that he is resident of Bhalwal and hails from Kotla Panah and he was residing in the above village at the time of occurrence. He stated that he along with Manzoor P.W. Had gone to Kot Moman from where he had to go to Chakwal while the destination of Manzoor P.W. Towards his native village Moazamabad. When both of them reached near the bridge of Lower Jhelum Canal known as Korey Koot Nakka Bridge while riding bicycles, they saw appellant Muhammad Arshad who was coming from the southern side of the canal bank and was looking to be out of sort and in embarrassed situation and when he was inquired about his condition, the appellant could not satisfy Ibraheem P.W.-6. This condition of the appellant was perceived by the P. Ws. And they assumed that he was the man who had committed the murder; therefore, the statement of P.W.-6 is based upon assumption. Moreover, the statement B of P.W.-6 was recorded after 20 days and for this delay he explained that he is mason by profession and had no occasion to inform the police about this important piece of evidence due to his business.
18. Muhammad Afzal appeared as P.W.-5 and he claims that on 30-12-2003, Muhammad Arshad appellant along with his father Mushtaq Ahmed had gone to his dera in the area of Kotla Panah; where the appellant had confessed his guilt and also introduced motive for the murder as he had owed an amount of Rs,50,000 from Allah Bakhsh deceased for the treatment of his father Mushtaq when his legs were broken in an accident. He confessed that the deceased had demanded the amount but the same was not repaid.
19. Except these two pieces of evidence, the prosecution has nothing to stand on his own legs.
Moreover, these were made at a belated stage, which creates doubt in their veracity. Admittedly no C crime empty was recovered from the place of occurrence. Recovery of the pistol is of no consequence to the prosecution especially when the dimension of injury could not be caused by a pistol shot.
20. The appellant was taken into custody on 16-1-2004 and while on physical remand for interrogation, he made a disclosure on 19-1-2004 and led to the recovery of pistol .30-bore (P-1) and 3 live bullets (P-2/1-3), which were taken into possession vide recovery memo. Exh.PA on 20-1- 2004. As there was no empty recovered from the place of occurrence, the prosecution could not substantiate its version while introducing cogent, reliable D and confidence inspiring evidence. The appellant at the time of recording his statement under section 342, Cr.P.C., refuted the motive introduced during the course of investigation by P.W.-5. He further stated that as Mst. Sughran Bibi, the complainant, had married with Allah Bakhsh deceased at her own without the consent of her other family members; therefore they were even not having visiting terms with her.
21. Be that as it may, the prosecution in this case has miserably failed to put forth any evidence to substantiate the guilt of the appellant beyond any reasonable doubt, therefore, after scanning the whole prosecution evidence, we have arrived at the conclusion that each piece of prosecution evidence is weak in nature if taken in isolation and even if it is taken into account in totality, the same had not further advanced the prosecution case to prove it to the hilt. Resultantly, Criminal Appeal No,86-J of 2006 qua Muhammad Arshad son of Mushtaq Ahmed is accepted in toto.
Sentence awarded to the appellant by the learned trial Court in terms of judgment dated 17-12- 2004 is set aside. Consequently, he is acquitted of the charge. He is ordered to be released forthwith if not required in any other case. Murder Reference No,809 of 2004 forwarded by the learned trial Court in terms of section 374, Cr.P.C., for confirmation of sentence of death fails, which is answered IN NEGATIVE. Death sentence is NOT CONFIRMED.