Sayye d Mazahar All Akbar Naqvi, J.--Appellant Muhammad Asim alias Basharat Ali son of Muhammad Ilyas alongwith Haji Munir Ahmad son of Muhammad Sharif and Mst. Sanjida Bibi wife of Haji Munir Ahmed, was involved in case FIR No, 310/2003, dated 24.6.2003, Police Station Uggoki, District Sialkot registered at the instance of one Khan Muhammad son of Muhammad Din under Sections 302, 34, 109, PPC, with an allegation of causing death of Jamshed Ali.
2. During the course of investigation the accusation against the appellant was found correct.
Resultantly, he was sent to Court of law for its trial. The same was entrusted to learned Additional Sessions Judge Sialkot, who vide judgment dated 11.09.2004 convicted the appellant to sentence of death under Section 302(b), PPC, with compensation of Rs, 1,00,0000/- to be paid to the legal heirs of deceased in terms of Section 544-A, Cr.P.C., in default whereof he was to further undergo imprisonment for six months S.I. while co-accused of the appellant were acquitted by extending them benefit of doubt.
3. Being aggrieved by the impugned judgment, the appellant filed Crl. Appeal No, 1541/04; whereas the learned trial Court forwarded Murder Reference 860/04 for confirmation of death sentence awarded to the appellant as provided under Section 374, Cr.P.C. The complainant also preferred Crl. Revision No, 881/04 for enhancement of compensation.
4. As all the matters are arising out of the same FIR, therefore, there are being disposed off through this single judgment.
5. The facts of the case as narrated in the FIR (Exh. PA/1) recorded on the statement of Khan Muhammad (Exh. PA) are that Khan Muhammad, complainant is resident of Mouza Dholo Bheelo and he is involved in Zamindara. One day before the occurrence at about 9:00/10:00 a.m. Basharat Ali son of Muhammad Ilyas, caste Jatt Rawn, resident of Chak No, 320 Toba Tek Singh nephew of Mst. Sanjida Bibi wife of the Haji Munir Ahmad son of Muhammad Sharif brother-in-law of the complainant alongwith one un-known person came to the house of complainant, after taking meals in the evening complainant, his son Jamshed Ali, Najeeb Ullah son of Muhammad Sadiq caste Jatt resident of the same village, Basharat Ali and his companion (unknown name and residence) went to sleep on the cots in the field near his Dera. On 24.06.2003 at about 3:00 a.m.
(midnight) Basharat Ali and his companion awakened the complainant, while Basharat Ali was putting pistol .30 bore on temple of Jamshed Ali son of the complainant and said to the complainant that he and Muhammad Siddique brother of Haji Munir Ahmad resident of Kothi Bhatta have forbidden the uncle of the complainant Haji Munir and aunt Mst. Sanjida to arrange the marriages of their son and daughter with the brother and sister of the accused.. Therefore, he had arrived there to teach them lesson. In the meanwhile, Jamshed Ali son of complainant and Najeeb Ullah woke up. Basharat Ali on their eye view made fire of pistol .30 bore which hit on the head of Jamshed Ali son of the complainant, who fell down on the cot. The companion of Basharat Ali directed his pistol towards the complainant side and said that if they tried to approach, they will also be done to death. On hearing the noise of hue and carry raised by complainant, Ghulam Rasool son of Muhammad Hussain, caste Jatt from his cattle-shed attracted to the spot, Basharat Ali and his companion fled away towards Ghumramwala while making aerial firing. Jamshed Ali son of the complainant succumbed to the injuries at the spot.
6. The motive behind the occurrence was that Basharat Ali had suspicion that complainant and his brother-in-law Muhammad Siddique, were creating hurdles in the marriage of son and daughter of Haji Munir and Mst. Sanjida with the brother and sister of the accused. Due to this grudge the appellant on the abetment of Haji Munir Ahmad and his wife Sanjida Bibi committed the murder of Jamshed Ali son of complainant. 10/15 days prior to the occurrence Haji Munir and Mst. Sanjida Bibi came to the house of complainant and had said that on the asking of the complainant, Muhammad Siddique was not allowing them to enter into marriage tie at Toba Tek Singh and had also extended threats of dire consequences. Besides the complainant, Najeeb Ullah and Ghulam Rasool also witnessed the occurrence. Touqir Hussain, recorded the statement of the complainant, which was read over to him and the complainant signed the same in token of its correctness.
7. Touqir Hussain, S.I., (PW-13) recorded the statement of complainant (Exh. PA) and sent the same to the Police Station through Ghulam Murtaza 734/C for the registration of formal FIR (Exh. PA/1). He prepared inquest report (Exh. PK) injury statement (Exh. PI). He prepared the rough site-plan (Exh.
PJ), drafted the application (Ex. PL) for conducting the post-mortem, he took into possession the bloodstained earth through recovery memo. (Exh. PE). The Investigating Officer also took into possession one crime empty of pistol .30 bore from the place of occurrence, which was taken into possessi9n through recovery memo. Exh. PF. Later on the dead body of Jamshed Ali (deceased) was escorted to Civil Hospital, Sialkot, through Muhammad Riaz 640/HC alongwith two Prosecution Witnesses. After post-mortem, Muhammad Riaz, HC handed over last worn cloths of the deceased vest (P-2), Shalwar (P-3) and Parna (P-4) all were blood-stained to the Investigating Officer which were taken into possession through recovery memo. Exh. PD. The said witness also he handed over to the Investigating Officer post-mortem report (Exh. PB) and (Exh. PB/1) who, recorded the statement of PWs under Section 161, Cr.P.C. On 08.07.2003 the Investigating Officer directed Malik Touquir Ahmad, Halqa Patwari to prepare the site-plan and the later on the direction of the Investigating Officer inspected the place of occurrence in the presence of PWs and took the rough notes. On 12.07.2003 Malik Touqir, Halqa Patwari (PW-11) prepared the scaled site-plan (Exh. PG) and handed over to the Investigating Officer. Appellant, Muhammad Asim @ Basharat Ali was arrested on 19.08.2003 and the Investigating Officer obtained his physical remand from the concerned area Magistrate. On 23.08.2003, Investigating Officer further obtained physical remand for four days. On 26.08.2003 the appellant made disclosure and led to the recovery of pistol .30 bore (P-1) from the room of Mangu Behram near the bridge which was taken into possession vide recovery memo.
Exh.PC. During the course of investigation the Investigating Officer declared Mst. Sanjida Bibi and Munir Ahmad as innocent and accused Muhammad Tariq alias Tani as proclaimed offender.
Investigating Officer made application for obtaining the warrants of arrest of Muhammad Tariq alias Tani from the concerned area Magistrate and procured proclamation (Exh. PH) of accused Muhammad Tariq alias Tani and handed over the same to Mushtaq Ahmad, 253/C for the purpose of affecting its service. The Investigating Officer found the appellant guilty, prepared report under Section 173, Cr.P.C. and sent the same to the Court of competent jurisdiction enrouted through learned Illaqa Magistrate under Section 190(2), Cr.P.C.
8. Learned trial Court charge sheeted the appellant on 17.02.2004 to which he pleaded not guilty and claimed to be tried in accordance with law. The prosecution produced as many as 13 witnesses to substantiate in support of its version. PW-5, Khan Muhammad complainant, father of the deceased and PW-6 Najeeb Ullah son of Muhammad Sadiq furnished ocular account and supported the prosecution case. Dr. Maqsood Ahmad Butt (PW-2) conducted the postmortem examination upon the dead body of the deceased and found following injuries:- "1. Circular would 1 cm x 1 cm on let parietal area of skull. Burning and blackening were present.
Margin of wounds were inverted. Clotted blood was present on surrounding region.
2. A lacerated wound (punctured) 2 cm x 1 1/2 cm on right parieto-occipital area of skull. Magin of wound were exerted. Brain matter was protruding out from the wound."
9. Learned DDA gave up Ghulam Rasool son of Muhammad Hussain and Muhammad Arshad son of Abdul Latif, PWs as being un-necessary vide statement dated 09.06.2004. Learned DDA while tendering in evidence report of the Chemical Examiner (Exh. PM) that of Serologist (Exh. PO) and Forensic Science Laboratory (Exh. PN), closed the prosecution evidence. Thereafter the statement of the accused under Section 342, Cr.P.C. was recorded. In reply to question why this case against him and why PW deposed against him he gave the following answer:-- "The case was registered against me only on the basis of suspicion and the PWs have deposed incorrectly being close-relatives of the deceased. I am innocent. I was present in my village Chak No, 320, JB District Toba Tek Singh on the alleged date and time of the occurrence. I and my cousin Iftikhar had supported Irfan and Imran accused in case FIR No, 87/2002, dated 18.08.2002 under Sections 302/324, 34 of PPC registered with P.S. Head Marala in which Jamshed Ali deceased had provided his motor-cycle to the aforesaid accused to reach at the place of occurrence for murder of Muhammad Yasin deceased and causing injuries to Noor Hussain in the aforesaid case, and was desirous that deceased Jamshed Ali of this case be challenged as an abetter alongwith the main accused for providing facility of transport to them. Jamshed deceased was associated in the investigation in the aforesaid case but was not challaned because of aforesaid hostility existing in the mind of Khan Muhammad complainant against me. I have been involved maliciously in this case."
The appellant, Muhammad Asim declined to appear under Section 340(2) Cr.P.C. as a witness of his own to disproof allegation levelled against him but he produced Ghulam Akbar, Inspector (DW- 1) in support of his defence version.
10.Learned trial Court after evaluating the evidence available on the record convicted the appellant in the terms stated above, while the co-accused were acquitted of the charge while extending them benefit of doubt.
11.Learned counsel for the appellant contends that the occurrence had taken place on 24.06.2003 at 3:00 a.m. (midnight) while the matter was reported at 7:00 a.m. on the same day with the delay of four hours, which is unexplained and the possibility cannot be ruled out that the FIR had been lodged against the appellant with due deliberation and consultation. It is further argued that as per prosecution story the appellant alongwith unknown had come to the house of complainant, remained with them from morning to night, had taken food together but it was nowhere mentioned that the appellant was having pistol at that time. Learned counsel candidly argued that at the place of occurrence no source of light had been shown by the Investigating Officer or by the Draftsman, even the witnesses have not mentioned while appearing in the Court. The learned counsel further argued that one empty was recovered from the place of occurrence which was not sent to the firearms expert and its report is of no use which only indicates that pistol recovered on the pointing out of appellant was in working condition. It is further argued that motive in this case had not been proved by the prosecution. Learned counsel went on arguing that the ocular account is not coming from source, which can be assumed independent, therefore, without any independent corroboration from reliable and independent source, no sanctity can be attached to their testimonies, hence, any conviction on the basis of such kind of evidence on capital charge cannot be sustained. It is further argued that this is a case of no evidence and the presence of the eye-witnesses could not be proved by any stretch of imagination. It is also submitted by learned counsel for the appellant that according to the post-mortem report, the doctor had observed semi digest food in the stomach and that food remained semi digested only 1 to 2 hours and this discrepancy indicates that the occurrence had taken place at early hours of the night and later on, the appellant was falsely implicated in this case and in all these circumstances, the prosecution has miserably failed to prove its case beyond any shadow of doubt, therefore, the appellant is entitled to be acquitted of the charge.
12.On the other hand, learned Additional Prosecutor General ,assisted by learned counsel for the complainant contends that the FIR has been lodged promptly and delay had been fully explained, the question of substitution is not there as the parties in this case are closely related inter se. It is further submitted that the presence of prosecution witnesses is natural, as the complainant has specifically nominated the appellant with specific role, moreover, dimension of injury, locale of injury and distance from where fire was shade coordinates with the postmortem report. It is further submitted that the recovery of crime-empty and weapon of offence also supports the prosecution version. It is lastly contended that prosecution has fully substantiated its case, therefore, the appellant does not deserve any leniency.
13.Arguments advanced from all corners have been heard and the record perused.
14.Admittedly, the occurrence had taken place at about 3:00 a.m. at 24.06.2003 while the matter was reported to the police at 7:00 a.m. on the following morning of the same day, with a delay of 4 hours for which no explanation had been rendered by the prosecution. The inter-se distance between the place of occurrence and the Police Station as recorded in the crime report is 14- Kilometers. The ocular account in this case was furnished through Khan Muhammad son of Muhammad Din (PW-5) while Najeeb Ullah son of Muhammad Sadiq had furnished eye-witness account as PW-6. Both the prosecution witnesses are related inter-se. The story advanced by prosecution in this case that the appellant had come alongwith one unknown person and remained with them till night when they went to the fields adjacent to Dera Mowaishian for sleeping on the cots. The appellant was claimed to be the relative of complainant party but the complainant could not furnish the exact name of the appellant till 11.7.2004 when finally they got corrected the name of appellant from his native area i,e, Chak No, 320, Toba Tek Singh. The story of the prosecution is that the appellant prior to causing fire-arm injury on the person of Jamshaid Ali, deceased, got awaken the complainant and whole occurrence was committed in his eye view. The story of the prosecution seems to be improbable especially when the blood-stained was taken from the earth although it was prosecution version that deceased was done to death while he was sleeping on the cot. The Investigating Officer during the course of investigation had not taken into possession the cot and even in the site-plan (Exh. PC) it does not find mention the presence of cots at the place of occurrence. Another astonishing fact of this case is that both the prosecution witnesses of the ocular account are consistent that the deceased in the company of appellant had taken food in the evening but during the post-mortem report, the semi digested food was present in the stomach. This aspect of the prosecution case that food taken by the deceased in the evening is contradicted by all recognized principles registered in various books of medical jurisprudence authored by different medical jurists. Another aspect of this case cannot lose sight that the appellant remained with the deceased and other family members from morning to night in the month of extreme June but none of them could ascertain that he was in possession of a pistol and if the same was noticed, there was no body to ask its requirement, which is totally contrary to the custom prevailing in our society. The prosecution case as mentioned by it does not advance the motive as alleged in the prosecution version. The story of prosecution that father of the deceased was creating any hindrance in the marriage and the appellant had apprehension that the complainant and brother-in-law of the complainant Muhammad Siddique were also creating any hindrance in the marriage of brother and sister of Basharat Ali with daughter of Sanjida Bibi and Haji Munir does not appeal in the circumstances of the case. The motive advanced by the prosecution does not lend support from any other impendent evidence rather prosecution opted to bring on another motive, which does not find mention in the crime report.
Apart from this, the prosecution had not mentioned any source of light in the crime report as well as in the site-plan and in the absence of light, the prosecution case further becomes doubtful. The investigation in this case was carried out by Touqeer Hussain (PW-13. The manner of information to the Investigating Officer is most unnatural and the way said Investigating Officer responded also creates dents in the prosecution case. The prosecution version is that the occurrence had taken place when the deceased was sleeping on the cot but the blood-stain taken from the earth further negates the same.
15. All the facts and circumstances if taken into its entirety, the only presumption which can be estimated and finally given the credence is that the prosecution has miserably failed to substantiates case without any shadow of doubt. The dents created by the defence in the prosecution version are found on the salient features of prosecution version. Therefore, we are persuaded to intervene while pressing into service salutary principle of benefit of doubt in favour of the appellant. Resultantly, the same is extended in favour of appellant not as a matter of grace but as a matter of right. As a consequence whereof, judgment dated 11.09.2004 passed by the learned trial Court qua the sentence of appellant Muhammad Asim alias Basharat All is set aside and he acquitted of the charge. The appellant Muhammad Asim alias Basharat Ali be released forthwith, if not required in any other case. As discussed above, Criminal Revision No, 881/2004 for enhancement of compensation filed by complainant is hereby dismissed having no merits. Crl.
Appeal No, 1541/2004 filed by Muhammad Asim alias Basharat Ali son of Muhammad Ilyas is accepted in toto. Murder Reference No, 860/2004 forwarded by the learned trial Court for confirmation of death sentence under Section 374, Cr.P.C. is answered in Negative.
Death sentence is not confirmed.