RAUF AHMAD SHEIKH, J. ----Arshad Mehmood appellant has challenged . the judgment dated 21- 6-2006 passed by Rana Masood Akhtar, learned Additional Sessions Judge, Rawalpindi, in case F.I.R. No,687 dated 19-9-2003 under sections 302/34, P.P.C. Police Station Civil Lines, Rawalpindi, whereby he was convicted under section 302(b), P.P.C. and was sentenced to death with an order to pay a sum of Rs,50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. and in case of nonpayment or its non-recovery through process of law as arrears of land revenue to undergo S.I. for six months. The learned trial Court has submitted Murder Reference No,683 of 2006 under section 374, Cr.P.C. for confirmation or otherwise of the death penalty awarded to the appellant. Muhammad Nawaz complainant has filed Criminal Revision No,26 of 2009 seeking enhancement of the compensation from Rs,50,000 to Rs,4,00,000. As all these matters are -inter-connected and inter-linked so are being decided through this single judgment.
2. Briefly stated the prosecution version as set-forth in the F.I.R. (Exh.PB/1) recorded on the statement (Exh.PB) of Muhammad Nawaz son of Ahmad Khan, caste Awan, Cultivator, aged 26 years, resident of Mauza Awan, Tehsil Bhalwal, District Sargodha, at present Sher Zaman Colony, Lane No,5, Tulsa Road, Rawalpindi, is that Muhammad Ijaz, younger brother of the complainant, had kept buffaloes in Sher Zaman Colony, Rawalpindi. One day prior to the occurrence, the complainant, his mother's brother Ahmad Khan and father's brother's on Khizar Hayat son of Sultan, residents of Mauza Awan, Tehsil Bhalwal, District Sargodha, came to see Muhamamd Ijaz in connection with the later's marriage, which was scheduled to be held on 27/28-9-2003. On the night between 18/19-9-2003, the complainant, Muhammad Ijaz, Ahmad Khan and Khizar Hayat slept in the room in the cattle-shed. They slept on two cots i,e, two on each cot after chaining the room from inside. At about 3.15 a.m. Arshad Mehmood alias Moodi son of Muhammad Aslam, Caste Awan, resident of their village arrived there and knocked the door. The complainant got up and switched on the bulb. He saw that Arshad Mehmood alias Moodi armed with Pistol .30 bore along with another person armed with Pistol .30 bore was standing in front of the door outside the room.
Arshad Mehmood raised a Lalkara that Muhammad Ijaz would be taught a lesson on that day for his engagement in the house of appellant's paternal uncle Ahmad Khan. On hearing the noise, Muhammad Ijaz, Ahmad Khan and Khizar Hayat awoke up. Arshad Mehmood and unknown person raised Lalkaras loudly that whosoever would make interference would also be killed. Arshad Mehmood alias Moodi son of Muhammad Aslam and unknown person with their respective Pistols .30 bore made indiscriminate firing on Muhammad Ijaz, which hit him on different parts of his body including front of chest, back, legs and arms, who fell on the cot after sustaining the injuries and died, in their sight instantly at the spot. The complainant, Ahmad Khan and Khizar Hayat did not proceed near to the deceased due to fear of loss of their lives. The accused persons fled away while making firing. The occurrence was seen by Ahmad Khan and Khizar Hayat. The motive was a grudge nourished by Arshad Mehmood because Muhammad Ijaz, was being married to the daughter of his paternal uncle (Chacha), which was scheduled to be held on 27/28-9-2003 as he wanted to contract marriage per force with the daughter of Ahmad Khan and for this reason Muhammad Ijaz was killed by Arshad Mehmood and unknown person by making fires without any fault on his part.
3. After investigation the accused/appellant was sent up to face the trial. He was charged under sections 302, P.P.C. He pleaded not guilty and claimed the trial.
4. The prosecution. examined 12 witnesses in support of its allegations against the appellant/accused. Muhammad Nawaz complainant appeared as P.W.2 and almost reiterated the contents of his statement (Exh.PB). Ahmad Khan (P.W.3) stated that he, Muhammad Nawaz complainant and Khizar Hayat P.W. (since given up) had come from their village Mauza Awan, Tehsil Bhalwal, District Sargodha, to Sher Zaman Colony, Rawalpindi, on 18-9-2003 in connection with the marriage of Muhammad Ijaz, which was scheduled to be held on 27/28-9-2003. They slept in the room adjacent to Tara' (cattle-shed). He and Khizar Hayat were sleeping on one cot, whereas Muhammad Ijaz and Muhammad Nawaz slept on the other. At about 345 a.m., there was a knock at the door. The complainant got up, switched on the bulb and opened the door. Arshad Mehmood appellant/accused was standing along with another unknown person, both were armed with .30 bore Pistols and they entered into the room. Arshad Mehmood accused raised Lalkara to teach a lesson to Ijaz for marrying the daughter of his uncle. Upon this they also awoke up. The accused persons raised Lalkara that whosoever come forward would not be spared. They started making fires on Muhammad Ijaz, who fell on the cot after receiving the same and succumbed to the injuries. The accused persons fled away. It is stated that he had settled, the marriage of his daughter with Muhammad Ijaz. Arshad Mehmood appellant had nourished a grudge as he wanted to marry the same girl but the witness had refused and for this reason he murdered Ijaz.
5. The medical evidence is adduced through Dr. Muhammad Imdad Aasi (P.W.8) who had conducted the autopsy of the dead body of the deceased on 19-9-2003 at about 11-00 a.m. He had found 16 injuries on the person of the deceased. He opined that the cause of death was due to firearm injuries especially abdominal and chest which damaged heart, lungs, liver etc., the vital organs which led to huge internal and external bleeding led to shock and caused death in ordinary course of nature. All injuries were ante-mortem caused by fire-arm except Injuries Nos.15 and 16, which were by blunt means. According to him the death occurred on spot, whereas the time between death and postmortem was within nine hours. He proved the postmortem report (Exh.PF) and pictorial diagrams (Exh.PF/1).
6. Muhammad Amin, S.-I. (P.W.12) stated that he secured the blood-stained cotton from 'Tale, which was lying on the cot vide memo (Exh.PC) and 7 empties of .30 bore Pistol P.2/1-7 vide memo (Exh.PD). Ahmad Khan (P.W.3) stated that he had attested both these memos of recovery as marginal witness. The I.O. Muhammad Amin, S.-I. (P.W.12) stated that on 25-10-2003 the appellant made a disclosure and led to the recovery of two .30 bore Pistols P.5 and P.6 wrapped in a white colour handkerchief along with a spare magazine P.9 and on unloading of Pistols P.5 and P.6 two live bullets P.7/1-2 and P.8/1-2 from the agricultural land of one Muhammad Aslam situated at Tulsa Road, which were secured through, memo of recovery (Exh.PH). He also proved the site plan of the place of recovery (Ex.PN) and statement of Muhammad Nawaz complainant (Exh.PB), injury statement (Exh.PJ), inquest report (Exh.PK) and site plan (Exh.PL). Muhammad Shahbaz, HC-3673 (P.W.11) has stated that the Pistols P.5 and P.6, magazines P.9 and live bullets P.7/1-2 and P.8/1-2 were recovered on disclosure and pointation of the accused/appellant, which were secured through memo of recovery (Exh.PH). Khurram Shahzad (P.W.10) stated that site plans with scale (Exh.PG) and (Exh.PG/1) were prepared by Qamar-ud-Din, who was unable to walk in those days.
The prosecution has also produced the report of the Chemical Examiner (Exh.P0), report of the Serologist (Exh.PQ) and report of the Forensic Science Laboratory (Exh.PR).
7. The appellant in his 'statement under section 342, Cr.P.C. denied the correctness of the allegations levelled by the-prosecution against him and veracity of the witnesses produced by it.
He contended that false recoveries were planted and fake proceedings were recorded by the Police in connivance with the complainant party. According to him, he had been roped falsely due to previous family enmity and for this reason all the P.Ws. have deposed falsely as they are closely related to each other. He contended that the false and baseless case has been registered on the story concocted by the complainant, who had arrived from his village at 9/10 a.m. on 19-9-2003 on receiving a telephonic message that unknown dacoits had murdered Muhammad Ijaz. He also made statement on oath under section 340(2), Cr.P.C. and stated that he had never demanded hands of Mst. Sajida for himself from the complainant or his father as he was already engaged with Mst. Rubina Bibi daughter of Muhammad Akram, resident of village Gonpur, Tehsil Bhalwal, District Sargodha, since 2002. He stated that the deceased was his maternal aunt's son and the information about his murder was received by Khizar Hayat and thereafter all the P.Ws., who were in village Awan, Tehsil Bhalwal, District Sargodha, came to Rawalpindi. It is stated that lie was also present in his house in village Awan at that time. Muhammad Afzal (DW-1)stated that the deceased was his sister's son and complainant is also his nephew. The appellant Arshad is his brother's son. On 19-9-2003 Khizar Hayat at about 2/2-30 a.m. told him that the dacoits had come and murdered a persons so he along with Ahmad son of Yaseen, Nawaz son of Ahmad, Amin son of Ibrahim, Liaqat son of Din and Muhammad son of Shera came to Baihra on a rickshaw and from there they came to Rawalpindi on Toyota Hilux and arrived at Rawalpindi at 9-30 or 10-00 a.m.
P.Ws. Ahmad Khan and Nawaz had come to Rawalpindi with him so they had not seen the occurrence. He further stated that Arshad appellant is innocent as he was present in the village at the time of occurrence.
8. After conclusion of the trial, the learned trial Court proceeded on to convict and sentence the appellant as mentioned above.
9. We have heard the arguments advanced by Mr. Muhammad Nadeem Kiyani, Advocate, learned counsel for the appellant, Mr. Muhammad Waheed Khan, D.P.-G. for the State and Mr. Muhammad Asif Chaudhry, Advocate, learned counsel for the complainant and have minutely perused the record with their able assistance.
10. The learned counsel for the appellant has contended that the occurrence took place at 3-00 a.m. on 19-9-2003 and was not witnessed by anyone as is clear from the critical analysis of the prosecution evidence. It is urged that all the witnesses belong to village Awan, Tehsil Bhalwal, District Sargodha, from where they could arrive after travelling on Toyota Hilux after 4/5 hours and their presence at the place of occurrence is not established and is highly unbelievable due to dishonest improvements made and the contradictions in their statements. It is urged that had the complainant, Ahmad Khan (P.W.3) or Nazar Hussain (P.W.4) been present as stated by them, they or at least one of them would have accompanied the dead body to the hospital and their names must have been mentioned in the postmortem report but they arrived in the hospital at about 9/10 a.m. as stated by them. It is urged that allegedly one Pistol was used so recovery of two Pistols on 25-10-2003, which was the last day of physical remand is highly doubtful as no independent witness was included in recovery proceedings. It is contended that in their supplementary statements made on 26-9-2003, the complainant and Ahmad Khan have categorically stated that due to darkness they could not note that only one person was standing out of the room and not two so the identification of the appellant as alleged by them is highly doubtful. In support of his contentions, lie has relied upon the case law reported as Umar Hayat and 3 others v. The State (1997 SCMR 1076), Barkat All v. Muhammad Asif and others (2007 SCMR 1812), Muhammad Riaz v.
The State (2009 PCr.LJ 1022) and Muhammad Hussain v. The State (2008 SCMR 345).
11. Controverting the arguments the learned counsel for the complainant and learned D.P.-G. have contended that P.Ws.2 and 3 are independent witnesses as they have no enmity with the accused/ appellant and their evidence cannot be discarded merely due to their relationship with the deceased. It is stated that the ocular account is fully supported from the medical evidence adduced through P.W.8 and the recovery of the weapons of offence. It is urged- that the appellant had made repeated fires and mercilessly caused Qatal-e- amd of a young man so he is not entitled to any lenient view. In support of his contentions, reliance is placed on Faisal Mehmood and another v. The State and another (2010 SCMR 1025), Federal Government Ministry of Defence v. Sepoy Liaqat Ali (2004 SCMR 1676), Muhammad Akbar and another v. The State (PLD 2004 SC 44) and Munir Ahmed v. The State (2001 SCMR 241). It is urged that an application under section 345(2), Cr.P.C. read with section 338-E, P.P.C. was submitted so the guilt of the accused/appellant stood established beyond any doubt. In support of this contention, reliance is placed on Muhammad Siddique v. The State (PLD 2002 Lahore 444).
12. Admittedly Muhammad Nawaz complainant (P.W.2) and Ahmad Khan (P.W.3) are residents of village Awan, Tehsil Bhalwal, District Sargodha. It is stated by P.W.2 that about three hours are spent in reaching at Rawalpindi from their village and on public transport another period of 30 to 45 minutes is spent if one travels from Adda Pirwadhai to Sher Zaman Colony on taxi. Both of them stated that they had come on 18-9-2003 to Rawalpindi and were present at the time of occurrence but none of them was present at the time of postmortem as they stated that they arrived in the hospital at 9/10 a.m. Nazar Hussain (D.W.1) did state that he accompanied the dead body for postmortem examination but his name is not mentioned in the postmortem report and in his statement under section 161 (Exh.DA) he had not mentioned that he had accompanied the dead body for postmortem examination rather stated that he received the same after postmortem examination along with Afzal and Liaqat. The postmortem report (Exh.PF) shows that Shakil Talib C- 4937 (P.W.4) had escorted the dead body to the hospital. It is not in consonance with the natural conduct that four adult male members of the family would let the dead body being escorted by the Police Constable and would not go with him. This fact lends full support to the contention of the accused/appellant as supported by DW-1, who is equally related to the deceased and complainant on one side and the appellant on the other. The complainant had not mentioned in his statement (Exh.PB) that the appellant had entered in the room rather according to the contents of the F.I.R., he had made firing while standing outside the room. He has also not stated in the witness box that the appellant had entered in the room. P.W.3 did state that the appellant and the other co-accused person entered in the room and then made firing but when confronted with his statement under section 161, Cr.P.C. (Exh.DA) it was found that this was a dishonest improvement.
He had also made improvements regarding his arrival from the village to Sher Zaman Colony, Rawalpindi and sleeping with Khizar Hayat on one cot and sleeping of Muhammad Nawaz and Muhammad Ijaz on the other cot. During investigation on 26-9-2003 Muhamamd Nawaz and Ahmad Khan had stated that Arshad Mehmood had made fires with two Pistols and that due to shades outside the room, they could not correctly ascertain the number of the assailants. The entry in the room was not mentioned in the complaint (Exh.PB) or the statement of the complainant in the witness box and the dishonest improvement made by P.W.3 in this regard makes his statement doubtful. The assailants/assailant did not enter the room. The possibility of mis-identification in the darkness of the night outside the room where no source of light is stated or proved, cannot be ruled out. The site plans (Exh. PL) and (Exh.PG) are at variance in this regard. As per (Exh.PL) the fire was made from point No,4, which is out of the room whereas as per Ex.PG it was made from Point No,3-A, which is inside the room. The land of Allah Ditta is separate from the Dera and the residential room of the deceased. P.W.12 has categorically stated that as mentioned in column No,1 of the inquest report (Exh.PK), the dead body was recovered from an open place owned by one Ch. Allah Ditta and he was not interrogated at all. The open place as per these site plans is no doubt adjacent to the Dera and shed but is separate from the same. The prosecution version that the deceased was killed inside the room has also become doubtful. Both the P.Ws. have stated that they arrived in the hospital at 9/10 a.m. on 19-9-2003. Nazar Hussain (P.W.1) as per statement (Exh.DA) had not escorted the dead body. It appears that after receiving an information in the village about the unfortunate demise of Muhammad Ijaz, they arrived in the hospital and thereafter the whole proceedings were recorded because had they been there earlier, at least one of them would have identified the dead body at the time of postmortem examination. According to the F.I.R., the accused was having one Pistol whereas the other Pistol was used by an unknown person but the recovery of two Pistols on the last day has been shown to have been made on disclosure of the accused/ appellant. Though the P.Ws. have tried to cover up this lacuna by saying that due to shades outside the room they could not ascertain that two persons were standing rather, the appellant alone had committed the murder but this ,part of their supplementary statements makes the recoveries highly unbelievable.
13. The next contention that as an application under section 345(2), Cr.P.C. was submitted so the guilt of the accused is proved and as such the appeal merits dismissal, has no force because the application under section 345, Cr.P.C. along with an affidavit was submitted by the complainant, wherein he had stated that he had forgiven the appellant and has no objection on his acquittal.
There is no idmission on the part of the appellant and he had not confessed his guilt in any manner. The heirs of the deceased did not support the alleged compromise as per report of the learned Sessions Judge but by no stretch of imagination, it can be presumed that the submission of the application by the complainant and subsequent disowning by the heirs would prove the guilt of the appellant. In the case-law reported as PLD 2004 Lahore 444, the learned counsel for the appellant therein did not opt to argue the case on merits at all and sought acquittal on the basis of compromise alone. It was held that the guilt of the appellant in the said case stood proved and due to circumstances of that case, the permission to compound the offence was not granted but in the present case the guilt of the appellant is not proved beyond doubt for the reasons observed above and the submission of application by the complainant (one of the heirs of the deceased) does not prove the guilt of the accused as he had not moved any such application and the evidence produced by the prosecution in this case does not inspire confidence.
14.From the appraisal of the evidence available on the record, we are of the considered opinion that the prosecution has failed to establish beyond doubt that the appellant was responsible for causing Qatl-e-Amd of deceased Muhammad Ijaz because both P.Ws. 2 and 3, who have furnished the ocular account do not inspire confidence and cannot be relied upon due to infirmities pointed out by us in The preceding paragraphs. This untrustworthy and unreliable evidence coupled with doubtful recoveries lead us to single conclusion that the learned trial Court has failed to appreciate the evidence in its true perspective and wrongly recorded conviction and award the sentence to the appellant. The impugned judgment is therefore not sustainable.
15.For the reasons supra, Criminal Appeal No,254 of 2007 filed by the appellant is accepted and the conviction E recorded and sentence awarded to him are set aside. He is in the Jail and be released forthwith if not required to be detained in any other case. Murder Reference No,683 of 2006 is answered in the negative. Criminal Revision No,26 of 2009 seeking enhancement in the compensation is without merits and is accordingly dismissed.