Anwar-ul-Haq Pannun, J.--Through this judgment we propose to decide Cr1. Appeal No, 619/2003 (Loqman Vs. The State) and Murder Reference No, 132/2004, sent by learned trial Judge under Section 374 Cr.P.0 for confirmation or otherwise of the 'death sentenced awarded to Luqman son of Muhammad Sharif, appellant, as both these 'matters have arisen out of the same judgment dated 12.8.2003 in case FIR No, 165/02 dated 31.6.2002 under Section 302/34 PPC registered with Police Station city Shujabad, passed by learned Addl. Sessions Judge, Multan, whereby he found Luqman (appellant) guilty of Qatl-eAmad of Hamid Raza deceased and convicted him under Section 302(b) PPC and sentenced to death with a direction to pay Rs, 1,00,000/- as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C., in default whereof to undergo six months S.I. Co-accused Imtiaz Ahmad and Rasheed Ahmad were also convicted under Section 302(b) PPC and sentenced to imprisonment for life with the extension of benefit under Section 382-B Cr.P.C.
They were also directed to pay Rs, 1,00,000/- each as compensation to the legal heirs of deceased and in default thereof to undergo six months S.1.
2. The prosecution version as per Exh.PA, lodged by PW-.5, Nasir Ahmad, complainant, resident of Androon Railway Gate Shujabad is to the effect that one Shabbir Ahmad son of Ali Muhammad, father of accused Irfan alias Muchi and Rashid Ahmad wanted to give the hand of his daughter to Hamid Raza, the son of the complainant, Hamid Raza was also willing for this marriage, however, the complainant forbade his son from doing so but Shabbir Ahmad continued forcing Hamid Raza for this marriage but he also refused to accept the same, thereupon the accused Rashid Ahmad and Irfan alias Muchi both sons of Shabbir Ahmad nourished grudge and oftenly had extended threats for killing Hamid Raza. In the night between 31.5.2002 and 1.6.2002 at about 1.30 a.m. (night) the complainant along with his family members was sleeping in his house, the door of his house was knocked at, the complainant, woke up, the accused Irfan asked the complainant to send out his son Hamid Raza with him as his father Shabbir Ahmad had called him. Thereupon Hamid Raza came out of his abode, went alongwith Irfan on which the complainant became worried, who immediately along with PWs Nazir Ahmad and Qadeer Ahmad followed Hamid Raza and Irfan accused, when they reached near the shrine inside Rashid Shah Gate Shujabad they found, accused Rashid Ahmad and Luqman already present there Rashid Ahmad asked accused Luqman to fire at Hamid Raza, thereupon Luqman fired with his pistol upon Hamid Raza, son of the complainant, hitting on the abdomen of Hamid Raza near his heart. After receiving injury Hamid Raza fell down on the ground Luqman also fired a second shot, the complainant and PWs raised lalkara the accused Muhammad Irfan alias Muchi, Rashid Ahmad, who is handicap by both of his legs decamped on his bicycle. The deceased Hamid Raza was immediately, according to Exh. PA/1 was shifted to Civil Hospital; Shujabad in injured condition but he succumbed to the injuries.
3. On receiving the information being on patrolling about the occurrence, Malik Muhammad Ashraf SI PW-/11 along with his subordinate constables reached at the hospital, complainant Bashir.
Ahmad PW-5 recorded his statement Exh.PA to him which was reduced into writing, and was sent to Police Station through Khalid Hafeez PW-2 for registration of case whereupon the FIR was lodged at 4.30 a.m., Investigating Officer prepared Exh.PF inquest report and injury statement Exh.PE, handed over the dead body of the deceased to Muhammad Saleem No, 61-C (PW-9) for post- mortem examination and then he proceeded, along with the police party to the spot wherefrom he, secured two crime empties of .30 bore pistol P-8 and P-9 vide recovery memo. Exh.PG. The place Of occurrence was a matelled road, therefore, the Investigating Officer remained unable to collect the blood-stained _earth from the spot, however, he prepared rough site plan Exh.PK of the place of occurrence, besides, recording statements under Section 161 Cr.P.C. of the PWs, the last worn clothes of the deceased were also taken into possession vide recovery memo. Exh.PH and the accused were arrested by the Investigating Officer on 17.6.2002. During their physical remand Luqman got recovered Pistol 30 bore, P-10 underneath the Mango tree from a garden owned by one Mehmood Khan Magsi which was made into sealed parcel and secured vide recovery memo.
(Exh.P.B.) besides recovery of bicycle (P-11) from the house of Irfan accused through Exh.PC, the Investigation Officer also got prepared scaled site plan in triplicate Exh.PJ, Exh.PJ/1 and Exh.PJ/2 from the Draftsman Irfan Hayat PW-10, and then report under Section 173 Cr.P.C. was submitted before the learned trial Court.
4. The learned trial Court, after taking the cognizance of case, charge sheeted the accused on 18.11.2002 under Section 302/34 PPC to which the accused denied and claimed the trial. In order to prove its case the prosecution proved as many as 11 PWs along with the above noted documents, also it tendered in evidence, report of Forensic Science Laboratory Exh.P.M.
5. After recording prosecution evidence, the accused were examined under Section 342 Cr.P.C.
While replying Question No, 7 the appellant deposed as under:-- Ans: It is correct to the extent of giving Rishta and due to this grudge the complainant falsely implicated me in the present case.
While reply Question 8 why this case, the appellant deposed as under:-- Ans: Due to my friendship and neighborhood with the co-accused Abdul Rasheed I have been falsely involved in the present case.
The appellant neither appeared under Section 340 Cr.P.C. nor lead any evidence in his defence in the Court. On the conclusion of the trial the learned trial Court convicted and sentenced the appellant as aforesaid.
6. Learned counsel for the appellant submits that although the prosecution has pretended that the FIR in his case has been lodged promptly but the same is not correct. While referring the time of conducting of post-mortem examination over the dead body, by PW-3 on 01.6.2001 at 1.20 p.m. in spite of presence of dead body of the deceased at hospital submitted that even the time of occurrence infact is neither known nor the PWs have seen the occurrence. He has added that a blind murder, which took place during the dark hours of the night, has been foisted upon the accused due to previous grudge and on the basis of suspicion. While referring serious contradiction in the statements of alleged eye-witnesses, learned counsel exuberantly submitted that the presence of the said PWs at the spot at the alleged time of occurrence is not proved. He argued that the ocular account furnished by the PWs is pregnant with inherent improbabilities and thus cannot be relied upon for maintaining the conviction recorded by the learned trial Court. He submits that when the complainant knew that the co-accused has extended threats to kill the deceased, it is astonishing and unbelievable that why the complainant allowed his son at the mid of night to accompany co-accused of the appellant, who had already expressed his intention for causing harm to the deceased. He adds that the positive report of Forensic Science Laboratory is of no significance in this case as the recovery of empties from the place of occurrence, which is admittedly a public passage, could not be possible. He has criticized the alleged recovery of pistol from underneath Mango tree of the garden without associating any witness from the public.
Learned counsel has laid emphasis that even the place of occurrence is not known in this case as no blood-stained earth could have been secured from the spot where the occurrence has allegedly been taken place. He while referring Ex.PK and Ex.PJ has contended that the claim of seeing of occurrence by the PWs is in sharp contradiction with the medical evidence as no blackening has been found by the doctor, who conducted post-mortem on the dead body of the deceased. Learned counsel argued that the PWs are interested and inter-se related besides being inimical, therefore, no reliance can be placed on their testimonies.
7. On the other hand, learned DPG while supporting the impugned judgment argued that the PWs have seen the occurrence and the occurrence was reported very promptly to the Police. He has added that after the occurrence immediately the injured' was taken to the hospital where the I.O. came and the complainant got recorded his statement before the I.O., which was converted into FIR, therefore, the possibility of conducting of preliminary investigation can safely be ruled out.
Learned DPG has further submitted that the positive report of Forensic Science Laboratory qua the empties and recovered .30 bore pistol from the appellant establishes that the appellant is the person, who has committed the murder of the 'deceased. He has submitted that the eye-witnesses are residents of the locality, therefore, their presence at the spot cannot be doubted and their deposition only of being related to the deceased cannot be discarded. Learned counsel has added that non-mention of the source of light at the place of occurrence is mere an omission on the part of the I.O. and the Draftsman, which cannot be made basis for setting aside the impugned judgment. With the above submissions, learned DPG has prayed for dismissal of appeal and confirmation of the death sentence awarded to the appellant.
8. After hearing the learned counsel for the parties and perusing the record, the import question, which came to the mind of this Court is whether in the facts and circumstances of the case the presence of the PWs at the relevant time at the scene of occurrence is established or not. The occurrence in this case has allegedly taken place at 1.30 a.m (night). Admittedly it was known to the. complainant that on account of non-acceptance of the hand of the daughter of Rashid Ahmad, father of the co-accused of appellant, they have extended threats for killing the deceased, son of the complainant, therefore, it is not believable by any stretch of imagination that as per normal human conduct, a father knowingly would allow his son at the dead hours of the night to accompany with a person, who has extended threats to kill his son. The answer to this question would definitely be in the negative. The conduct of the complainant in this case does not appear to be normal as when he knew that the accused Irfan was annoyed of the deceased due to his refusal in accepting the hand of his sister and he was inimical to the deceased why the complainant did not prohibit his son from going with Irfan accused before the alleged occurrence in the night. Moreover, it has not been difficult for us, after going through the ocular evidence furnished by Naseer Ahmad (PW-.5) and Qadeer Ahmad (PW-.6), who both are real brothers, that how they covered the distance between the house of 'the complainant towards the place of occurrence by following the deceased and Irfan alias Machhi silently despite having serious worries about the life of the deceased in their mind and did not make any effort for stopping the deceased from going alongwith the accused. We have not been able to find out any reasonable excuse or justification, keeping in view the normal human conduct. They have neither even called the deceased while following the accused nor the accused when the deceased were able to hear the footfall of these PWs in the silence of the night. It is not difficult for us to draw an inference, in the facts and circumstances of the case, that had PWs by following been deceased and the accused who simultaneously reached at the spot, though through a different route, the occurrence would not have been taken place in their presence.
9. There is another aspect of the case that PW-.6 stated that Luqman fired at the deceased from 1 feet or 1 feet but the doctor, who conducted post-mortem, had not observed any blackening or tattooing because of firearm injury from a close range on the dead body of deceased, therefore, we hold that the medical evidence. is sharply contradictory with the ocular account and does not support the prosecution version on this score also. PW-.5 has stated that he alongwith Nazir Ahmad (given up) and Qadeer Ahmad (PW-.6) has reached at the spot by following the deceased and the accused after associating the PWs from their houses at the time of occurrence whereas PW-.6 has stated that we have reached there earlier than the accused Irfan and the deceased. He has stated that accused have gone through the Gali of Sheikh Munir and PWs reached there at spot from their own street. This is also a material contradiction in the statements of two PWs, which is not reconcilable.
10.Another aspect of the matter, which helped us in coming to the conclusion that the occurrence has not been seen by the PWs, is evident from the fact that the accused Irfan when called Hamid Raza deceased from the house of the deceased, he did not mention the place where his father was calling to the deceased, then how would the complainant, after associating the PWs at the mid of the night, who were sleeping in their houses, after getting them awaken could follow the accused 'instantaneously without any loss of time and that too at a destination, which was not disclosed upon them.
11.Admittedly the 1.0. has not been able to secure any bloodstained earth from the place of occurrence from the ground that it was not available there while the PW-.6 has stated that "there was blood at the spot', therefore, the contention of the learned counsel for the appellant that even the actual place of occurrence remained in mystery appears to be reasonable in the facts and circumstances of the case. Thus, we hold that the ocular account furnished by PWs. 5 and 6 does not inspire confidence and is pregnant with inherent improbabilities apart from being in sharp contradictions of vital nature noted above therefore, we hold that the occurrence has not been witnessed by the alleged eye-witnesses.
12.It is also worth consideration that if the occurrence has taken place at 1.30 a.m (night) the deceased was shifted to hospital by the PWs within a short span of time, where Dr. Nisar Ahmad was admittedly present being on duty why the deceased was not attended to by him why the post-mortem examination on the dead body of the deceased was conducted at 1.20 p.m on 01.6.2006 by PW-.3, when he has given probable duration between the injury and death within two hours and between death and post-mortem within 24 hours. PW-.3 has categorically stated in his cross-examination that Dr. Nisar Ahmad did not hand over to him "the dead body of the deceased or 'any other paper, the dead body of the deceased was already present in the hospital while the relevant papers about the same were received by him at 1.30 p.m from the Police, who happened to be Muhammad Aslam constable. I started conducting post-mortem examination on the dead body of the deceased at 1.30 p.m, which was completed within ten minutes." The above quoted statement of PW-.3 leads us to hold that the FIR has been lodged belatedly, probably after conducting preliminary investigation regarding the blind murder of the deceased. The probable time between the injury and death of the deceased was described as two hours by PW-.3 also leads us to draw an inference that had the deceased been taken, immediately after the occurrence, to the hospital when the Dr. Nisar Ahmad was available on duty, he would have definitely been attended by him by providing first aid, which has also not been done in this case.
The depositions of the PWs are also belied by the medical evidence on this score also.
13.Now we advert to the recovery aspect of the matter. We have noticed that, according to the prosecution own showing, the occurrence has allegedly taken place at a public place. The deceased was immediately, according to the PWs, was taken to the hospital although which fact has already been disbelieved by us, however, when the blood-stained earth was not recovered from the place of occurrence, the recovery of crime empties from the place of occurrence, which is a public passage, in the morning, hours appears to be improbable particularly when the recovery of the empties have not been shown in the relevant column of inquest report compiled by the I.O.
The recovery of pistol from underneath Mango tree of the garden, which was accessible to anybody cannot also be believed. Even otherwise when we have already disbelieved the ocular account of the prosecution on account of variety of reason, the positive report of the Forensic Science Laboratory in respect of empties and the allegedly recovered pistol on pointing out of the appellant cannot prove the prosecution version alone.
14.Last but not the least, we have scanned the, complaint Ex.PA, Ex.PK and Ex.PJ with our zeal but we failed to find anything mentioned by the I.0 and Draftsman regarding existence or availability of any source of light at the place of occurrence at the relevant time. We are in agreement with the learned counsel for the appellant that the site plan was prepared by the I.0 as well as Draftsman on pointing out of the alleged eye-witnesses besides on the basis of their own observations but non-showing of any source of light at the place of occurrence has adversely affected the prosecution version.
15.In the light of the above discussion we hold that the prosecution has not only failed to show any source of light at place of occurrence when the occurrence allegedly took place at the dead hours of the night. PWs 5 and 6 have badly failed in showing their presence at the place of occurrence at the relevant time. The medical evidence instead of corroborating the ocular account has contradicted the same. The recovery of pistol on pointing out of the appellant and the recovery of empties from the place of occurrence is not believable, thus mere positive report of Forensic Science Laboratory is not helpful to prove the case of the prosecution against the appellant. The FIR in this case appears to have been lodged belatedly after preliminary investigation. Absence of any motive and non-recovery of blood-stained earth from the place of occurrence, have its serious implications for determination of the place of occurrence, the prosecution has miserably failed in proving the charge against the appellant, therefore, we are clear in our mind that the conviction and sentence recorded by the learned trial Court is not sustainable.
16.For what has been said above, the appeal filed by the appellant is allowed, the conviction and sentence awarded to the appellant by the learned Addl. Sessions Judge, Multan through the impugned judgment dated 12.8.2003 is set aside. The appellant shall be released from the jail forthwith, if not required to be detained in connection with any other case.
17.Murder Reference No, 132/2004 is answered in the NEGATIVE, the sentence of death passed against Luqman convict appellant is not confirmed.