Muhammad Qasim Khan, J.--Safdar Ali and Muhammad Arif were tried by learned Additional Sessions Judge, Bahawalpur in case FIR No, 240 dated 31.12.2004 under sections 302/109/34 PPC registered with Police Station Head Rajkan, Bahawalpur and on conclusion of the trial vide judgment dated 12.05.2007 both were convicted under Section 302-B/34 PPC and sentenced to death. They were further ordered to pay Rs, 100,000/- each as compensation to the legal heirs of the deceased, in default thereof each one had to suffer six months simple imprisonment. Criminal Appeal No, 53/2008 has been filed by Muhammad Arif, whereas, Criminal Appeal No, 121-J/2007 has been filed by Safdar Ali as well as said Muhammad Arif through Superintendent Jail, and Murder Reference No, 24/2007 has been sent by the learned trial Court in terms of Section 374 Cr.P.C. All these matters are being taken up for decision by this single judgment.
2. Briefly the facts are that on 31.12.2004 at 10.15 p.m. through written complaint Ex.PA Mst. Nasim Bibi (PW-1) complainant reported the ' matter to the police to the effect that on the fateful day she along with her husband Iftikhar Ahmad as well as brother Muhammad Saleem deceased was returning home from the house of in-laws of Muhammad Saleem who was about 20-yards ahead of them. At about Maghrab Vela when they reached in front of house of Safdar Ali (accused/appellant), Muhammad Arif (accused/appellant) suddenly came forward and caught hold of Muhammad Saleem. Meanwhile, Safdar Ali also came and simultaneously fired a pistol shot hitting the head of Muhammad Saleem and second fire shot by Muhammad Arif hit his chest. On hearing hues and cries and also fire 'reports, Saeed Akhtar and Zafar Iqbal were attracted to the place of occurrence, whereupon, accused fled away from the spot by brandishing their weapons of offence. Muhammad Saleem succumbed to the injuries at the spot.
Motive was stated that about two years ago Muhammad Saleem deceased had contracted Nikah with Mst. Um-e-Kalsoom sister of Safdar Ali and rukhsati had not taken place. Safdar and others had a grudge that their sister had arranged Nikah without their consent. Subsequently Mst. Ume-e- Kalsoom died and Muhammad Saleem moved an application for disinterment of her dead body, whereupon, Muhammad Younas and Amjad Farooq co-accused (since acquitted) had also instigated Safdar Ali and on their conspiracy Safdar Ali and Muhammad Arif committed the murder of Muhammad Saleem.
3. On receipt of written complaint PW-8 Syed Muhammad Ikram Shah Inspector/SHO Police Station City Ahmadpur East proceeded to the place of occurrence, examined the dead body, prepared injury statement Ex.PH/4, inquest report Ex.PH/3 and then inspected the spot, where he prepared rough site-plan Ex.PL, collected bloodstained earth and made it into sealed parcel vide memo.
Ex.PJ, collected five empties of 30-bore vide memo. Ex.PK and recorded statements of the witnesses. On 1.1.2005 last worn clothes of the deceased were produced before him which consisted of Shalwar P-6, Qameez P-7, Bunyan P-8, Jersey P-9 and Sweater P-10, which all were stained with blood and were taken into possession through memo. Ex.PM. Safdar accused/appellant was arrested on 2.1.2005 who was in injured condition and his injury statement Ex.PN was prepared. On the same day blood-stained clothes of Safdar Ali accused were taken into possession vide memo. Ex.PO. On 16.1.2006 Safdar got recovered pistol P-13 which was seized vide memo. Ex.PP. As Arif accused appellant was not being traced, necessary proceedings including issuance of proclamation were initiated by the Investigating Officer. Muhammad Arif was however, arrested on 17.5.2006 by Ghulam Sarwar SI PW-9 on whose pointation 30-bore pistol 0-14 was recovered and secured into possession vide memo. Ex.PB. After completion of other formalities and on conclusion of investigation challan was sent to Court.
4. The accused persons when charge sheeted, they denied the prosecution case and claimed to be tried. The prosecution examined its witnesses in order to prove the case, apart from tendering certain reports in evidence. The accused in their statements under Section 342 Cr.P.C. refuted the prosecution evidence and ultimately the learned trial Court convicted and sentenced them as detailed in the opening paragraph of this judgment.
5. Learned counsel for the appellants has argued that in fact the occurrence took place during dark hours of the night and the time of occurrence has been stretched by the prosecution towards day light. It has been argued that, motive mentioned in the prosecution case has not been proved as Mst. Um-e-Kalsoom sister of Safdar appellant contracted marriage about two years before the happening of this incident and during that period no person from the family of Mst Um-e-Kalsoom including Safdar appellant ever forced Mst. Um-e-Kalsoom to get divorce from Saleem deceased by way of Khulla or otherwise. It has been argued that it was in the knowledge of the appellant and his -family members that Muhammad Saleem appellant had already been married with Mst Ghulam Fatima even then there was no effort or force by the appellant or his family for repudiating the marriage of Mst. Um-e-Kalsoom from Muhammad Saleem deceased. It has been argued that had the motive been with Safdar appellant then situation would have been different, either case of false and fabricated Nikah might have been got registered or some fight might have occurred during the period of those days, therefore, motive does not appeal to reasons.
6. Learned counsel has argued that PWs did not see the occurrence and in all probabilities the presence of eye-witnesses at the place of occurrence is doubtful on the ground that attribution of injuries which has been made by them in not in consonance with the numbers of fire shots received by the deceased Muhammad Saleem. According to the ocular version one fire has been attributed to each appellant but the post-mortem reveals that deceased received five fire shots, out of which Injuries No, 1, 2, 3 and 4 were individually sufficient to cause the death of the deceased.
It is not understandable as to how the remaining injuries were omitted by the eye-witnesses in the FIR or in their statements under Section 161 Cr.P.C. Allegedly Injury No, 1 has been attributed Safdar appellant and Injury No, 2 has been attributed to Arif appellant but about the remaining, injuries which were found on the dead body of the deceased at the time of post-mortem examination, these have been omitted by the eye-witnesses. It has been argued that during trial the eye- witnesses have dishonestly made improvements in their statements and those portions have been duly confronted with their earlier statements. It has been argued that these improvement cannot be considered as explanatory or supplementary, but these are to be considered as dishonest and mala fide improvements. The learned counsel has referred to Column No, 10 of the Inquest Report, wherein five injuries have been mentioned by the Investigating Officer. This diversity/contradiction in the ocular evidence as well as the medical evidence cannot be reconciled, which uproots the prosecution case. Learned has argued that medical evidence is in conflict with the ocular account, in this respect learned counsel has referred to the statement of Dr. Asif All (PW-5) as secondary evidence who in his statement got exhibited the post-mortem report as Ex.PH and diagram of the injuries Ex.PH/1 and Ex.PH/2. Learned counsel has taken the Court to the text of the injuries on the person of the deceased. According to the ocular version two injuries have been mentioned by the eye-witnesses, whereas, doctor deposed five injuries; this contradiction cannot be reconciled.
During trial Mst. Naseem Bibi complainant/eye-witness appeared as PW-1, whereas, Iftikhar Ahmad was examined as PW-2 have improved upon their statements vis-a-vis injuries and those portions of their statements were duly confronted. Numerical contradictions primarily occur to demonstrate that PWs did not see the occurrence and medical evidence does not corroborate the ocular account. Learned counsel further argued that recovery of pistol from Safdar which has been shown to have been affected on 8.3.2005 is false piece of evidence and the report of ballistic expert was also manoeuvered by the prosecution in order to strengthen its case. Learned counsel contended that evidence of recovery is always to be considered as corroborative piece of evidence and if the primary evidence is not believed then on the basis of recovery conviction and sentence cannot be upheld. With regard to recovery of five crime empties of 30-bore pistol from the spot, it is argued that all these empties were shown to have been fired from the barrel of the pistol of Safdar, which by itself creates doubt in the veracity of prosecution case, as according to the eye-witnesses two persons Safdar and Arif made firing at the deceased and it was not one person who committed the murder of Muhammad Saleem deceased, whereas, report of the Forensic Science Laboratory also negates this fact. It was next argued that Muhammad Saleem deceased was involved in a case registered vide FIR No, 225 dated 17.12.2004 on the statement of one Shoukat, certified copy of the said FIR is Ex.DD. In this nexus, learned counsel referred to the statement of Safdar appellant recorded under Section 342 Cr.P.C. where, in answering to Question No, 11 he stated that complainant party of the said hurt case had enmity with Muhammad Saleem deceased. In fact the murder was committed by that party but appellants have been falsely implicated in this case.
Lastly, it was argued that prosecution has miserably failed to prove the case and appeals may be accepted.
7. On the other hand, learned DDPP assisted by learned counsel for the complainant opposed the contentions of learned counsel for the appellants by arguing, that in the situation of panic it is not possible for the witnesses to adjudge the correct and precise number of fire shots having been caused by the accused on the person of the deceased, therefore, this contradiction about numbering of the injuries may not be taken for providing benefit of doubt to the appellants.
Learned counsel for the complainant has adopted the arguments of learned' DDPP and adds that prosecution has proved its case beyond any shadow of doubt by arguing that it is a case of prompt lodging of FIR, specific injuries have been attributed to the appellants, recovery to the extent of crime weapon of Safdar appellant is proved, Muhammad Arif co-appellant remained fugitive from law and this fact may also be used against him as a circumstances showing his involvement, therefore, appeals may be dismissed.
8. We have considered the arguments of learned counsel for the parties and perused the record.
9. The occurrence took place on. 31.12.2004 at about evening time, whereas, FIR was lodged on the written application of Mst. Naseem Bibi Ex.PA by presenting the same in the police station at 10.15 p.m. Mst. Naseem Bibi is an illiterate woman who had thumb marked Ex.PA. It appears from the circumstances that FIR was lodged at some belated stage. The time of registration of case has been given wrongly and if Mst. Naseem Bibi could not have got written Ex.PA then some body else did so who is not in picture and when this is the situation then possibility of consultation in j9tting down Ex.PA cannot be ruled out.
10.Motive in this case is very important. Prosecution has set up a motive that Mst. Um-e-Kalsoom contracted Nikah with Muhammad Saleem deceased about two years prior to the happening of this incident but later on she died. During subsistence of this Nikah neither appellant nor any other member from the family of Mst. Um-e-Kalsoom forced her to get divorce from him, although departure of bride had not taken place. The record is silent that during this period ever any attack, bickering or fight had taken place between the appellant and Muhammad Saleem deceased. It is also proved on the record that prior to the Nikah of Muhammad Saleem deceased with Mst. Um-e- Kalsoom; he was already married with one Ghulam Fatima. If any grudge was nourishing in the mind of the appellant then at least some sort of fight might have been taken place between the deceased and Safdar appellant. Again one thing is very important that Mst. Um-e-Kalsoom died in the house of her parents but the deceased tried to get exhumed her dead body for postmortem by moving an application and tried to establish that she was murdered by the appellant, but he failed. In the said application Ex.DB dated 29.8.2004 in Para-1 it has been mentioned by the deceased that Mst. Um-e-Kalsoom deceased remained with him at Bahawalpur for some time and thereafter, the deceased has been visiting in the house of Safdar appellant and kept on seeing Mst. Kalsoom who ultimately became pregnant, but strange enough that after about sixteen months of death of Mst. Um-e-Kalsoom an application for registration of case was submitted by deceased Muhammad Saleem. Furthermore, it is mentioned in the FIR that Mst. Um-e-Kalsoom died her natural death {{URDU TEXT}} , whereas, Mst. Naseem Bibi complainant/eye-witness PW-1 has stated in this context that Safdar appellant, killed Mst. Um-e-Kalsoom. This is material dishonest improvement vis-a-vis motive and this portion of her statement, was duly confronted during cross-examination.
11.Iftikhar Ahmad PW-2 who is real brother of the deceased Muhammad Saleem has deposed in his statement that on the eve of death of Mst. Um-e-Kalsoom, Muhammad Saleem deceased entered doubt that she was murdered, whereupon, Muhammad Saleem submitted an application for disinterment of her dead body in order to prosecute the appellant for her murder. He also improved upon on the motive part of the prosecution case. In the ray of motive another aspect is very important that some days prior to the happening of this occurrence, an incident took place of murderous assault about which one Shoukat got lodged a case through FIR No, 225/2004 dated 17.12.2004 under sections 324/34, 337-A(ii) PPC and in that FIR deceased Muhammad Saleem was nominated as an accused. This circumstance leads us to believe that deceased Muhammad Saleem had enmity in the vicinity with some other people as well and if we notice the time of occurrence that too lead us that incident might have taken place during dark hours. Appellant Safdar also tendered documents in his defence as to exhumation of dead body of Mst. Um-e- Kalsoom; therefore, due to reasons mentioned above we do not believe the motive of the prosecution in this case.
12.The prosecution case hinged upon the statements of two eye-witnesses i,e, Mst. Naseem Bibi PW-1 and Iftikhar Ahmad PW-2. Both are related to the deceased. Their statements are contradicted by the medical evidence as to number of injuries. These PWs during the trial tried to bring their statements in line with the medical evidence but were confronted by the learned defence counsel in this respect. Therefore, their evidence is disbelieved.
13.While discussing the medical evidence in this case, as it has been mentioned above that according to the prosecution's ocular account each injury has been caused by each of the appellant but the postmortem examination reveals that five fire shot injuries were present on the dead body of Muhammad Saleem deceased. This disparity cannot be reconciled. Had the PWs been present at the time of occurrence and had seen the occurrence then this disparity could not have occurred in their statements vis-a-vis number of injuries. It is not the case of prosecution that police recorded the statement of Mst. Naseem Bibi PW-1 and it was not recorded as per her version, as it is the case of the prosecution that a written application was moved before the Investigating Officer for registration of case, upon which the case was registered. Therefore, in view of this we seek guidance from a legal precedent reported as "GHULAM RASUL vs. WAZIR KHAN and others" in (1989 SCM R 1172): "Benefit of doubt--Contradictions in the FIR, ocular account and medical evidence existed--Eye witness account was furnished by only two witnesses who were son and relative of the deceased- Recoveries of crime weapons had not been proved--F.I.R. revealed that each of the accused had fired one shot each and the deceased had died as a result of two fire shots, whereas medical evidence showed that there were five fire-arm injuries on the dead body of the deceased out of which one was on the back of the deceased which was definitely the result of one shot--Distance between two injuries on the one side of the shoulder and one on the other side of the thigh was such that it could not be the result of one shot, deceased, therefore, had received more than two shots--Such material contradictions, held, were only beneficial to the accused and led the prosecution case towards dark and doubt and also considering other pieces of evidence acquittal of accused was found justified in circumstances."
Therefore, the benefit of these contradictions is to be resolved in favour of the appellants.
Muhammad Arif appellant is not directly related to the motive part of this case, he was a fast friend of co-appellant Safdar. Though he remained fugitive from. law for quite a long period but abscondence alone cannot be considered to be a circumstance against the appellant, especially when the prosecution has failed to prove its case. Recovery of crime weapon from Safdar is also not to be believed on the ground that ocular evidence has not been believed by us.
14.For what has been discussed above, we allow both these appeals, set-aside the conviction and sentences of the appellants and order their immediate release from jail if not required in any other case.
MURDER REFERENCE IS ANSWERED IN THE NEGATIVE. SENTENCE OF DEATH IS NOT CONFIRMED.