Kh. Muhammad Sharif, C.J.--This judgment will dispose of Criminal Appeal No, 278 of 2005, Criminal Appeal No, 300 of 2005 and Murder Reference No, 08 of 2009.
2. The appellant Imran All was tried by the learned Addl: Sessions Judge, Jhelum who vide his judgment dated 16.07.2005 convicted the appellant under Section 302(B)/34 PPC and awarded death sentence as Taazir and compensation of Rs,50,000/-, which will be paid to the legal heirs of the deceased. However, the other co-accused Muhammad Shafique has been acquitted by the learned trial Court in a case bearing F.1.R No, 239 dated 04.05.2003 under Sections 302, 34 P.P.C. at Police Station Waris Khan District Rawalpindi.
3. The convict has filed the appeals while learned Addl: Sessions Judge has also sent a Reference to this Court under Section 374 Cr.P.0 for confirmation or otherwise of death sentence.
4. Brief facts of the case are that on 04.05.2003, at about 6.30 p.m. the complainant of this case, namely, Haji Muhammad Saleem along with Ayub and Safdar were going to see their relative Muhammad Nawaz in Mohallah Fazalabad District Rawalpindi and on their reaching in Street No, 03, they saw Abdul Rauf coming too. In the meanwhile, Muhammad Shafique alias Sheeqa armed with Churri, Imran alias Manna armed with Churri and Kamran alias Kalu, empty handed while making a lalkara appeared there and launched an attack on Abdul Rauf. Imran alias Manna raised Lalkara to teach a lesson for the previous quarrel. Shafique alias Sheeqa gave a Churri blow on Abdul Rauf which hit him on the right thigh. Abdul Rauf fell down. Imran alias Manna gave a churri blow on Abdul Rauf while he had fallen on the ground which hit him on the chest. Shafique alias Sheeqa gave a second blow which hit Abdul . Rauf on the left leg. On seeing the complainant, Muhammad Younas and Muhammad Safdar PWs all the accused ran away from the spot by raising lalkaras. The injured was taken to hospital through a taxi for the purposes of treatment, who succumbed to the injuries there.
5. The motive behind this occurrence as stated by the complainant was a quarrel between the accused and the deceased Abdul Rauf about 02 days prior to the occurrence, as a result of which all of the accused in furtherance of their common intention caused injuries on the person of Abdul Rauf which led to his death.
6. After completion of the investigation, challan was submitted before the learned trial Court.
Charge was framed to which, appellants pleaded not guilty and claimed to be tried. In order to prove its case, prosecution produced as many as fifteen (15) PWs during the trial.
7. PW-12 Dr. Hafiz Muhammad Qasim Khan, conducted the postmortem examination of the dead body of deceased on 05.05.2003 at 03.00 a.m. and found eight injuries on his person. He opined that all the injuries were anti mortem in nature and caused by sharp edge weapon. Injury No, 2 is sufficient to cause death. The probable time between injury and death was immediate and the death and post mortem was within five hours,
8. P.W-15 Muhammad Ilyas SI who conducted the investigation has stated that on 04.05.2003, on receipt of the information reached at the spot, where the complainant made an oral statement Ex P.C, which he reduced into writing vide Ex P.E.1 and sent the same to the Police Station for registration of case through Muhammad Ramzan 417/HC. He also prepared the inquest report of the dead body Ex P.K. He arrested the accused Imran on 16.05.2003 and on his disclosure recovered the crime weapon i,e, Churri vide recovery memo. Thereafter he arrested the other co-accused Muhammad Shafique on 30.05.2003 and on the same day crime weapon i.e, Churri was recovered from his `dub' vide recovery Memo. Ex.P.C. He also prepared the injury statement of the deceased, which is Ex P.O.
9. The appellant Imran Ali was examined under Section 342 Cr.P.0 and he did not opt to appear and deposed on oath as required under Section 340(2) Cr.P.C. After conclusion of the trial above-said conviction and sentence was passed.
10.Learned counsel for the appellant in support of this appeal ,submits that the eye-witnesses were not present at the spot because according to FIR occurrence had taken place at 6.30 p.m. but later on time was given as 9.30 p.m. in the supplementary statement; that both eye-witnesses are resident of place which is 4 to 5 kilometers away; that both the witnesses are chance witnesses; that there is conflict between the ocular account and medical evidence because according to post mortem report 8 injuries were found while PWs have given three injuries; that during the post mortem examination the doctor found that the time of injury and death was immediate whereas the witness said that when they reached in the DHQ Hospital, the deceased died there; that there is only one injury attributed to the appellant; that I.O. had admitted that when he arrested the appellant, there was a bandage on his hand: that PW-12 Dr.Hafiz Muhammad Qasim Khan, who conducted the post mortem examination has admitted that whole of the clothes were smeared with blood because after receiving the injuries the . deceased fell in the Nalah and blood spread on all of his clothes and this fact supports version of the appellant; that infact one Zubair, Mohaladar of appellant took the deceased to the hospital and not Investigating Officer as claimed that the appellant had caused injury to the deceased under grave and sudden provocation because he wanted to abduct Ghazala, his ex-wife.
11.Learned counsel submits. that without independent and strong corroboration, conviction cannot be maintained; that though the witnesses denied that there was any grabbling between the appellant and the deceased but there are injuries and would of injury is on the chin; that whole of the clothes of the deceased were torn; that in the FIR real motive has not been given i,e, that Mst.Ghazala was married to the deceased as his second wife and that motive given in the FIR is that there was an altercation between Shafique acquitted and the deceased; that not a single witness from the locality either cited or produced by the prosecution; that if both the versions are put in juxta position, then version of the appellant inspires more confidence.
12.On the other hand learned DPG assisted by the learned counsel for the complainant submits that Mst.Ghazala never appeared in defence of the appellant; that Mst. Ghazala remained wife of Abdul Rauf who divorced her so there is no question of Abdul Rauf going to the house of Mst.Ghazala. Learned counsel submits that there was a drain near the place of occurrence and the deceased might have fallen in the said drain; that infact the accused persons at the time of quarrel had torn the clothes of the deceased; that the appellant has not produced any medico legal report in order to establish that he was injured in the occurrence; that the story of appellant that the deceased tresspassed into the house tried to abduct the deceased and took her 80 feet is not plausible; that the story of eye-witnesses was that they were going to the house of Muhammad Nawaz, who was living in Street No, 2 near the place of occurrence; that the reasons for acquitting co-accused Shafique have been given at page 105 of the paper book; that the reasons given by the learned trial Court for acquittal of Shafique are totally illegal as he was named in the FIR, specific role was attributed to him, blood stained churri was recovered from him and repeated blows on the person of the deceased were attributed to him. At the end, learned counsel submits that the appeal filed by the appellant should be dismissed and acquittal of Shafique be converted into conviction.
13.On the other hand Mrs. B.H. Shah, Advocate, who has been appointed by this Court to defend Shafique submits that the reasons given by the learned trial Court for acquittal of respondent are just and legal one and this Court should not interfere with it.
14.We have heard the learned counsel for the parties at great length and gone through the record with their able assistance 15.In the instant case the occurrence had taken place on 4.5.2003, according to FIR at 6.30 p.m. within the revenue estate of Mohallah Fazal Abad Gali No, 3, which is at 1/2 kilometer from the Police Station Waris Khan District Rawalpindi. Matter was reported to the police at DHQ Hospital at 11.15 p.m while formal FIR was recorded at 11.30 p.m. on the same day.
16.Three accused were tried by the learned trial Court. Imran and Shafiq were tried in the instant trial, appeal of which we are hearing in which Shafique was acquitted. Imrari has been awarded death sentence while Kamran real brother of Imran, was tried as juvenile offender and he was acquitted by the learned trial Court. Deceased of this case is 'Abdul Rauf. FIR was lodged by PW. 11 Haji Muhammad Salim, who is first cousin of the deceased while PW-8 Muhammad Ayub PW-8 is his cousin. Third witness was given up. From the place of occurrence blood stained, earth was taken into possession tide memo. Ex.PA. The appellant was arrested on 16.5.2003. He got recovered Churri on 19.5.2003 vide memo Ex PD found to be blood stained. Shafique acquitted co-accused also got recovered Churri Ex.PC. According to the prosecution the motive behind the present occurrence was that "two days prior to the occurrence Abdul Rauf deceased, Shafique and Kamran alias Kalu had a quarrel. Abdul Raul had given fist blows and leg blows to them, on which Shafique (acquitted accused and Imran had committed murder of the deceased".
17.We have gone through the evidence recorded by the learned trial Court. Real facts of the case are that Abdul Rauf was married with Mst. Ghazala real sister of Imran appellant. Earlier she was married to Shafique acquitted accused. Later on after two years of marriage with Abdul Rauf, Abdul Rauf divorced Mst. Ghazala. These facts were concealed by the complainant part from the police but were brought on record by the defense. The time of occurrence given by the complainant is 6.30 p.m. The police station was at a distance of half kilometer but the FIR was lodged in the Hospital at 11.15 p.m. i,e, after 5 hours of the occurrence, which shows that the same was recorded after due deliberations and consultations. In order to make in lane the case of the prosecution, the complainant made supplementary statement and stated that in fact occurrence had taken place at 9.30 p.m. for the reason that the post mortem took place at 2.00 a.m. (night) on the same night and PW. 12 Dr.Hafiz Muhammad Qasim Khan and the doctor had en time between injury and death immediate and death and post mortem 5 hours. Both the eye-witnesses are resident of a place 4/5 kilometers from the place of occurrence. They had no business to be present at the spot.
Occurrence had taken place 60 feet from the house of Imran and Shafique because Imran and Shafique were living in the same house. Then there is a conflict between ocular account and medical. Complainant had mentioned three injuries on the person of the deceased while the doctor PW.12 Hafiz Muhammad Qasim Khan who had conducted post mortem examination had examined 8 injuries at the dead body while the PWs present at the spot mentioned three injuries.
Had the PWs were present there, there should not have been glaring mistake in mentioning the injuries.
18. We may also state here that Shafique co-accused was acquitted by the learned Trial Court, the appeal against which was filed before this Court by the complainant Muhammad Saleem bearing Crl. A.No, 300-2005, in which notice was issued to Muhammad Shafique, one Maqsood Adv. filed power of attorney on his behalf but today neither Shafique is present nor his counsel. We cannot adjourn this case as counsel for the appellant, counsel for the complainant and learned DPG is present, so we have requested Syeda B.H. Shah, Advocate, to appear in this case on behalf of Shafique respondent at State Expense. Now, it is a case of two versions, one put by the complainant party and other by the appellant in his statement recorded under Section 342 Cr.P.C. In reply to Question No, 9, why this case against you, he replied as under: "On the day of occurrence, in between 6.00 and 7.00 p.m. the deceased Abdul Rauf, while armed with a dagger and in a drunked condition, came to the house of my parents situated at Lane No, 03, Muhallah Fazalabad, Rawalpindi and trespassed the same. He tried to take alongwith him my sister, namely Mst. Ghazla, forcibly. She resisted. Meanwhile, I came there after parking my tongs near my house and requested the deceased to leave my house but he did not do so and attacked upon me. We both grappled with each other and in same condition, we came in the street in front of house of my parents. I snatched dagger from the deceased and gave one Churri blow upon Abdul Rauf in my defense. He fell down and remained lying near a nullah of my house and died there. None of the PWs were present at that time and subsequently they came to the hospital after reaching of the dead-body there. The dead body was brought to the hospital by one Zubair resident of the area. The motive mentioned by the prosecution is false. The police did not get examined my injuries which I received during the occurrence from the hands of the deceased.
Abdul Rauf because of influence and wealth of the complainant party Muhammad Shafique and Kamran, co-accused did not participate in this occurrence and even they were not present at the venue of occurrence. The deceased was a person of bad character and number the cases of taking liquor and hurt were registered against him at different police stations. During quarrel only one main injury was sustained by the deceased and remaining injuries are only bruises. All the PWs are interse related and they have deposed against me falsely to strengthened the prosecution case."
19.We are of the considered view that the eye-witnesses were not present at the spot. Had they been present at the spot, they must have get the case registered within half and hour when the police station was at a distance of half kilometer. Then their mala fide is proved from the fact that they had changed the time of occurrence from 6.30 p.m. to 9.30 p.m. Onus always lies on the prosecution to prove its case when eye- witnesses are not believed, how can we maintain conviction and sentence awarded to the appellant.
20.It has also come on record at page 49 through PW-8 that Imran and Shafique accused used to live in one house. The Investigating Officer while being cross-examined at page 74 stated that "It is correct that at the time of arrest, Imran accused had dressed bandage on the hand which means that he was injured but he was not medically examined by the police. PW.15, Muhammad Ilyas, S.I.
Investigating Officer at page 72 also admitted as follows: "It is correct that Abdul Rauf after two years of marriage divorced Mst. Ghazala and then that she contracted marriage with Shafique accused for the second time."
21.Haji Muhammad Saleem PW.11 complainant when being cross-examined admitted that first wife of Abdul Rauf was his niece. Abdul Rauf married with Mst. Ghazala without permission of first wife and the family was also un-happy on this and he further admitted that he was also unhappy on the second marriage of Mst. Ghazala with Abdul Rauf. If he was unhappy, he had no occasion to accompany the deceased Abdul Rauf at the relevant time of occurrence at the place of occurrence.
22.It may also be noted here that when the FIR was recorded at 11.15 p.m. in the Hospital, how the Investigating Officer in Ex.PK would have given the time as 10.00 p.m. The Dr.Hafiz Muhammad Qasim Khan PW.12 had admitted that whole of the clothes of the deceased were smeared with blood and he also stated in the last line of cross-examination at page 27 that "possibility cannot be ruled out to the fact that the blood stains on the clothes spread due to water." It was case of appellant in reply to Question No, 9 that while fighting they came near the Nallah and the deceased after receiving injuries fell in the Nallah and that Nallah has been shown by the Draftsman in the site-plan at Page 139 of the paper book.
23.After having heard the learned counsel for the parties and going through the evidence available on record when we have disbelieved the presence of eye-witnesses, then it is law of the law that statement or accused should be accepted in totality and we accept the same.
24.The result of above discussion is that appeal is accepted, conviction and sentence awarded to the appellant is set aside. Death sentence is not confirmed. Murder Reference is answered in negative.
25.For the reasons given in Crl. A. No, 278-05 titled Imran Ali Vs. The State, Crl. A. No, 300 of 2005 is also dismissed.