JUDGMENT JUDGMENT SARDAR MUHAMMAD SHAMIM KHAN, J.---Riffat Hussain and Ijaz Hussain, appellants were tried by the learned Additional Sessions Judge, Khanewal in case F.I.R. No. 274 of 2003 dated 29-10-2003 registered under sections 302 and 34, P.P.C. At Police Station Kacha Khoh.
The learned Additional Sessions Judge vide judgment dated 19-4-2005 convicted Riffat Hussain, appellant under section 302(b) of P.P.C. And sentenced him to Death as Ta'azir. He was further directed to pay Rs.1,00,000 as compensation under section 544-A of Cr.P.C. To the legal heirs of the deceased or in default thereof to further undergo six months' S.I., while Ijaz Hussain, appellant was also convicted under section 302(b), of P.P.C. And sentenced to Imprisonment for Life. He was also further directed to pay Rs.1,00,000 as compensation under section 544-A of Cr.P.C. To the legal heirs of the deceased or in default thereof to further undergo Six Months' S.I.
2. The appellants have filed Criminal Appeal No.282 of 2005 against their conviction and sentences whereas the complainant filed Criminal Revision No.269 of 2005 for enhancement of sentence of respondent No.2 to the normal penalty of Death and enhancement of compensation of Rs.1,00,000 to the normal amount of Diyat of both the respondents Nos.2 and 3, whereas the learned trial court has sent a reference (M.R. No.527 of 2005) for the confirmation of Death sentence of Riffat Hussain, appellant or otherwise. We purpose to dispose of all these three matters by this single judgment..
3. The occurrence took place on 29-10-2003 at about 11-00 a.m. In the area of Chak No.39/10.R, Tehsil and District Khanewal. F.I.R. Exh.PK was got recorded by Muhammad Haneef (P.W.8) brother of the deceased Muhammad Sharif at the Police Station Kacha Khoh, Khanewal, on the same day at about 2-50 p.m. And was recorded by Muhammad Aslam, Inspector(P.W.10).
4. The brief facts of the prosecution story as narrated in the F.I.R. Are that his younger brother Muhammad Sharif was the tenant of one Ghulam Murtaza Shah. About two years prior to the occurrence his brother entered into marriage with Mst. Saglain, a (Mamoonzad' of Riffat Hussain accused, but about a year back she died. After her death Muhammad Sharif entered into second marriage with a woman of Choohan BROTHERY. This caused annoyance to Riffat Hussain and others and about 3/4 days prior to the occurrence some hot words were exchanged between Muhammad Sharif and Ijaz Hussain, brother of Riffat Hussain, Ijaz Hussain had extended threats to Muhammad Sharif. On 29-10-2003 at about 11-00 a.m. He (complainant) accompanied by Zulfiqar and Bashir Ahmad were going to the Dera and when they reached near the house of Ansar Shah they were attracted by the noise of fire shot and saw that Riffat Hussain armed with gun and two other persons, who could not be identified at the spot, were running towards south. They (witnesses) hurriedly entered the Dera where they found Muhammad Sharif lying on the ground in an injured condition. He had received shots on the left side of his chest. Ghulam Hussain son of Ghulam Hassan caste Syal who was then serving as private servant of Muhammad Sharif was also present there. Injured succumbed to the injuries then and there and his dead body was brought to Civil Hospital Kacha Khoh. Then leaving Bashir Ahmad and Faiz Muhammad for protection of the dead body he (complainant) reached Police Station Kacha Khoh where he lodged F.I.R. Exh.PK which was recorded by P.W.10 Inspector Muhammad Aslam.
5. The motive behind the occurrence was stated that due to the marriage of the deceased in Chohan Family, the deceased was murdered by Riffat Hussain and others.
6. After completion of investigation, challan was prepared and submitted before the learned trial court for trial. Charge against the accused was framed to which, they pleaded not guilty and claimed to be tried. In order to prove its case, the prosecution has examined as many as eleven (11)
P.Ws:-- P.W.1 Abdul Razzaq 255/C was the witness of recovery of Car bearing No.8891/LHR.
P.W.2 Shah Nawaz 98/C-I was the witness in respect of execution of warrant of arrest of against two accused persons.
P.W.3 Muhammad Ashraf 823/C escorted the dead body of the deceased to Civil Hospital Kacha Khoh for autopsy purposes.
P.W.4 Muhammad Ramzan 383/C deposed that on 17-11-2003 Moharrar handed over him a sealed parcel said to contain blood-stained earth which he deposited in the office of Chemical Examiner on 18-1-2003, intact.
P.W.5 Muhammad Zubair HC deposed that on 29-10-2003 the Investigating Officer of this case handed over him sealed parcel said to contain blood-stained earth for safe custody in the Malkhana and on 17-11-2003 handed over this to Muhammad Ramzan 383/C for its onward transmission to the office of Chemical Examiner, Lahore. Further deposed that on 23-1-2004 the Investigating Officer handed over him one sealed parcel said to contain .12 bore gun and one empty cartridge for keeping the same in Malkhana. Then on 26-1-2001 he handed over the same to Abdul Razzaq, Constable for its onward transmission to the office of the Chemical Examiner.
P .W.6 Raja Ghulam Farid Janjooa, Draftsman deposed that on 10-12-2003 visited the place of occurrence, took rough notes on the pointation of witnesses and under the direction of police and then prepared site plan in triplicate.
P.W.7 Dr. Muhammad Umar Farooq deposed that, on 30-10-2003 at 8-00 a.m. He conducted the autopsy on the dead body of the deceased and found the following injuries, on the person of the deceased.
(i) Fire arm punctured wound 8 in number each measuring 1-1/2 cm X 1 cm except one in the centre measuring 2-1/2 cm X 1-1/2 cm. Blackening and burning was present on front of left upper most chest and left shoulder.
(ii) Five outlet wounds each about 1-1/2 X 1-1/2 cm on the inner side and back of right exilla with three bruises underneath the skin, from them three pellets removed and sealed.
In his opinion cause of death was trauma to both right and left lungs and severe hemorrhage in both forensic cavities causing shock and respiratory block. Due to injury No.1 which could cause death in ordinary course of nature.
P.W.8 Muhammad Hanif is the brother of the deceased and complainant of this case. He deposed in support of the prosecution version.
P.W.9 Bashir Ahmad is the eyewitness of the occurrence who also deposed in support of the prosecution story.
P.W.10 Muhammad Aslam, Inspector lodged the F.F.R. Exh.PK at the statement of P.W. Muhammad Hanif complainant correctly.
P.W.11 Nazar Muhammad S.-I. Was the Investigating Officer of this case who deposed regarding the steps of investigation.
The Deputy District Attorney gave up Zulfiqar, Ghulam Murtaza Shah and Manzoor Hussain 776/C being unnecessary and Ghulam Hussain P.W. Being won over by the accused and tendered in evidence the report of Chemical Examiner Exh.PQ, the report of Serologist Exh.PR and report of Forensic Science Laboratory Exh.PS and close the prosecution case.
8. After recording the prosecution evidence, the appellants were examined under section 342 of Cr.P.C. Wherein they stated that they did not want to appear and depose on oath as required under section 340(2) of Cr.P.C. The reply to the question that why this case is against you why the P.Ws have deposed against you, by the appellant Riffat Hussain is reproduced hereunder in verbatim:-- "It is also incorrect. It was a blind murder and after deliberation and consultation of about 4 hours by the so called imported and chance witnesses have deposed that they by chance, being close relation with each other while they were going to see the deceased without any reason at 11-00 a.m., were in front of the house of Ansar Shah. They heard the report of the gun and they saw me equipped with gun and two other persons to whom they could not identify running towards the house at a distance of 130-feet, then they reached and entered into the Dera at a distance of 110- feet and found Sharif injured lying on the ground, who had received fires on the left side of his chest. Ghulam Hussain servantof the deceased was present thete. The alleged servant Ghulam Hussain himself was detained for 11-days by the police as a suspect of that murder that is why he was not produced, the only eye-witness of the occurrence because the rest of the witnesses have seen Riffat and two unidentified accused running away at a distance of 70 feet from the place of occurrence. Later on prosecution unsuccessfully tried to make improvement and made them eye- witnesses of the occurrence while all the so-called chance witnesses including P.W.8 and P.W.9 and the accused persons are residents of the same Chak for the last about 20/25 years or more and P.Ws remained together for four hours prior to the registration of the case. They have been discussing only the above said murder and even, then they did not mention in the F.I.R. That anyone of them has seen firing by the accused on the deceased. Ijaz who was later on involved in this murder case, real brother of Riffat Hussain resident of the same Chak for more than 20-years and relation of the P.Ws and also on visiting terms with P.W.9 how he could not be identified as accused running away along with Riffat and they never gave any identification mark of the third accused to the Investigating Officer and later on they tried to involve Saeed the co-accused the co-relation of the accused and the complaint of the F.I.R., recorded after deliberation and consultation of four hours. Either the P.Ws. Have not seen the occurrence or if they have seen the occurrence how they would have not identified, Ijaz and Saeed relations of P.Ws when they can recognize carbine in the hands of Ijaz Hussain. The prosecution failed to explain the delay when there was telephonic facility available in the Chak. All types of conveyances were available in the Chak including tractor trolley.
Deceased used to cultivate 5 acres of land with a hired tractor. Prosecution concocted this story that Daala was brought from Kacha Khoh by their relative Faiz even he did not report at the Police Station Kacha Khoh. Surprisingly after the death of the deceased at the spot after about three and a half hours dead body was taken to the hospital and not to the police station but the prosecution failed to explain why the dead body was taken to the hospital when the deceased 'was not injured but died at the spot many hours prior to his shifting to the hospital. From the above said mysterious facts it is quite clear that complainant was not present near the place of occurrence. He was informed at Multan and after some deliberation and consultation dead body was shifted to hospital and then the case was registered with the allegation that he had seen the accused running away at the point which is 70 feet from the place of occurrence. Later on he with mala fide intention became eye-witness to the occurrence to which he was confronted with his statement in the F.I.R. And also in the site plan which the P.Ws. Got prepared on the day of occurrence by the I.O.
And later on by the Draftsman and also there was no motive to hurt Sharif. P.Ws. Were not happy over the second marriage of deceased with Mst. Sacilain in the life of first were. Muhammad Sharif was a bad character who married thrice while his first were was still alive with children from him and also having affairs with an unmarried daughter of Iqbal while having no mean of subsistence.
In the F.I.R. Registered after deliberation and consultation of 4 hours it was not mentioned that out of two unidentified accused any one of them was having carbine in his hand which was introduced later on. They heard the noise of one fire but in the F.I.R. They have concocted that many fires hit the deceased. No person from the abadi of the chak which is at a distance of one kanal was cited or produced as a witness while occurrence as alleged took place at 11-00 a.m. When every member of the village is on move in the village and also to work in the houses and fields. Statements of the P.Ws. Contradictory inter se and do not inspire confidence. Dishonesty of the police officials is also apparent on the file."
Whereas Ijaz Hussain replied to the question as under:-- "It was a blind murder. After deliberation and consultation of about four hours by the so called imported and chance witnesses I and my co-accused Riffat who is my real brother were involved in this case falsely. Detailed answer has been given by my co-accused Riffat Hussain. I rely upon the statement of my co-accused Riffat Hussain."
9. After conclusion of the trial above mentioned conviction and sentence was passed against the appellants.
10. Through the Criminal Appeal No.282 of 2005, the appellants, while through Criminal Revision No.269 of 2005, the complainant has challenged the validity of impugned judgment.
Learned counsel appearing on behalf of the appellants submits that there is extraordinary and unexplained delay of 3-hours and 50-minutes in lodging the F.I.R. Which makes the whole prosecution story as doubtful and in fact Muhammad Hanif, complainant was summoned from Multan and thereafter the case was registered; that motive alleged by the prosecution in the Exh.PK has not been proved by leading any independent evidence and that motive relates to one year back and during the trial the prosecution has improved the motive part of prosecution story which is not reliable; that in fact it was an un seen occurrence and according to the prosecution on version given in the F.I.R. Exh.PK, when P.Ws. Were coming from their house towards Dera, they heard the report of fire and saw that Riffat Hussain, appellant along with two unknown persons were running towards South but on the basis of mala tide thereafter, they improved their case and stated that Riffat Hussain, appellant fired with gun in their presence which hit the deceased. They also changed their version and stated that they also recognized Ijaz Hussain, appellant along with Riffat Hussain, appellant at the time of occurrence and that all evidence of P.W.8 Muhammad Hanif was confronted with his previous statement so his evidence could not be used against the appellants; that occurrence took place in a thickly-populated area but except two close relatives of the deceased, no independent person from the vicinity was associated by the prosecution to prove their case; that the post mortem examination on the. Dead body of the deceased was conducted after the delay of 22-hours without any explanation, which shows that the prosecution was still under process of consultation and deliberation; that recovery of gun from possession of Riffat Hussain, appellant is also inconsequential as no empty was secured from the place of occurrence rather gun and empty was planted against the appellant on 23-1-2004, so the positive report of Forensic Science Laboratory, Lahore in this regard is inconsequential. It has been lastly prayed that there is no legal evidence available against the appellant and that as per F.I.R. They saw Riffat Hussain, appellant running from scene of occurrence from his backside, so it was not possible for the witnesses to identify and recognize him from his backside from a distance of about 110-feet and the appellants be acquitted.
12. On the other hand learned Deputy Prosecutor General assisted by learned counsel appearing on behalf of the complainant opposed the acceptance of the appeal (Criminal Appeal No.282 of 2005), while contending that Riffat Hussain, appellant was identified and recognized along with gun, while running from occurrence immediately after the occurrence; that thereafter the complainant through his supplementary statement nominated both appellants along with their specific roles; that the prosecution has also proved the motive part of the prosecution story. It has further been contended that the both appellants remained absconders and were arrested on 21-1- 2004, so this is strong corroborative piece of evidence against them; that both the appellants are criminal and that have been involved in so many other cases also; that it was a daylight occurrence and the P.Ws. Saw Riffat Hussain from the distance of 80/85-feet so one could be identified and recognized properly from such a distance. It has lastly been submitted that the occurrence took place in an area comprising more than 1000 persons then why the complainant selected these two persons as culprits; that in fact both were real culprits so their names were given by the prosecution and their appeal be dismissed and the Criminal Revision No.269 of 2005 filed by the complainant be accepted.
13. We have heard the arguments advanced by the learned counsel for the parties at length and perused the record minutely.
14. This occurrence took place on 29-10-2003 at bout 11-00 a.m., whereas Muhammad Hanif, complainant lodged the report with police at 2-50 p.m. With the delay of 3-hours and 50-minutes whereas the distance of police station from the place of occurrence is only 12-miles. This delay has not been explained by the prosecution in F.I.R. Exh.PK, so possibility cannot be ruled out that this was an unseen occurrence and the prosecution was busy in consultation and deliberation regarding the culprits. It has also been noticed that Muhammad Hanif, complainant resides at Multan and according to his evidence he was serving in Pak Army and his duty pertains to sensitive matters and that he was attached with Garrison Engineering at that time. Muhammad Hanif, complainant is real brother of the, deceased, Muhammad Sharif, in the given circumstances possibility can not be ruled out that at the time of occurrence complainant, Muhammad Hanif received information regarding the murder of his brother at Multan and after the receipt of information he rushed to the police station and thereafter F.I.R. Was lodged and due to this reason the matter was reported to the police with such inordinate delay. It is pertinent to mention here that according to the complainant, prior to lodging of this F.I.R. The dead body of Muhammad Sharif, deceased was taken to Civil Hospital, Kacha Khoh but surprisingly his post mortem examination, was not conducted on that day rather it was conducted. On 30-10-2003 at 8-00 a.m. With the delay of about 22-hours. This inordinate delay in conduction of post mortem examination is suggestive of the fact that inquest report and relevant papers were not prepared on that day. The prosecution is silent that why the post mortem examination was not got conducted on the same day. The delay in conduction of post mortem examination also gives rise to the presumption that F.I.R. Was lodged after consultation and deliberation and the prosecution was not certain about the real culprits of the occurrence.
15. The Motive of the occurrence as given in the F.I.R. Exh.PK is that two years back Muhammad Sharif, deceased entered into the marriage with Mst. Saqlain, Mamoonzad of Riffat Hussain, appellant who died one year prior to the occurrence and Muhammad Sharif, deceased contracted another marriage, which caused annoyance to Riffat Hussain and others and that 3/4 days prior to the occurrence an altercation took place between the deceased Muhammad Sharif and Ijaz Hussain brother of Riffat Hussain. During the trial P.W.8 Muhammad Hanif improved the motive part of prosecution story and stated that about four days before the occurrence an altercation took place between deceased Muhammad Sharif and Ejaz Hussain and Riffat Hussain accused and that Ijaz Hussain had extended threats of dire consequences and this portion of evidence of P.W.8 Muhammad Hanif was confronted with his previous statement Exh.PK (F.I.R.). Except sole assertion of the complainant regarding the motive, no witness was produced by the prosecution to prove this fact that due to second marriage of the deceased, after the death of Mst. Saqlain, Riffat Hussain and others was annoyed. There is nothing on the record that in whose presence Riffat Hussain or Ijaz Hussain appellants expressed that they were annoyed due to the second marriage of the deceased after the death of Mst. Saglain. It is not believable that if deceased contracted second marriage after the death of Mst. Saqlain, appellants were annoyed due to this reason. Had deceased contracted second marriage during the life time of Mst. Saqlain then it might had caused any annoyance to the relative i.e. Appellants, of Mst. Saqlain. Perusal of statement of Nazar Muhammad S.-I. (P.W.11) reveals that murder was committed by the appellants as they were demanding the return of articles of dowry but deceased has refused to do so. This reason has neither been given in the F.I.R. Nor by the complainant during trial stated before the learned trial Court that the appellants were demanding for the return of articles of dowry, so in our view the prosecution has failed to prove the motive part of the prosecution story.
16. Now coming to the ocular account, it has been furnished by P.W.8 Muhammad Hanif, who is the real brother of the deceased and P .W .9 Bashir Ahmad, paternal cousin of the deceased. According to the evidence, the occurrence took place at a distance of 1-kanal from Chak No.39/10-R comprising of Abadi of 1000/1200 persons but no person from the vicinity was associated as a witness of the occurrence. The name of Ijaz Hussain, appellant has not been mentioned in the F.I.R.
According to the contents of the F.I.R. Exh.PK the complainant along with other witnesses were coming from their house to Dera and on the way they heard the report of fire and saw Riffat Hussain, appellant armed with gun along with two unknown persons running towards south.
This story given in the F.I.R. Was improved by the witnesses who afterwards implicated Ijaz Hussain, appellant and also improved the details of the occurrence. The perusal of evidence of P.W.8 Muhammad C Hanif reveals that he changed his whole version given in the F.I.R. And his evidence was confronted with his previous statement Exh.PK given in the F.I.R. The relevant portion of evidence of P.W.8 Muhammad Hanif, during his cross-examination, is reproduced as under:--- "In my statement Exh.PK I stated that accused Ijaz extended threats that he will see him.
(confronted with Exh.PK wherein it is not recorded). In my statement. Exh.PK I had mentioned that Riffat accused was carrying shot gun and he had fired at Sharif. (confronted with Exh. PK where it is mentioned that he (witness) had heard the fire shot and then saw accused Riffat was having a gun and two other persons were also accompanying him to whom he could not Identified). In my statement Exh.PK I had mentioned that accused fled away on southern side. (confronted with Exh.PK wherein it is so recorded). In my statement before police I had mentioned that on receiving fire shot Sharif deceased fell down on ground (confronted with Exh.PK wherein it is mentioned that when I entered the dera I found Sharif in injured condition lying on the ground). In my statement Exh.PK had stated that accused Ijaz was also accompanying accused Riffat when Riffat had fired at Sharif. (confronted with Exh.PK wherein it is not so recorded and there is recorded that two unknown persons were accompanying Riffat who could not be identified at that time). In my statement Exh.PK I had mentioned that Ijaz was armed with carbine when he was accompanying with Riffat.
(confronted with Exh.PK wherein it is not so recorded)."
17. As whole of the evidence of Muhammad Hanif, complainant was confronted with his previous statement as mentioned above, it cannot be believed as it was confronted. This witness is not believable as his evidence is based on mala fide improvements particularly when during cross- examination he admitted that it is correct that I had signed Exh.PK (F.I.R.) in token of its correctness.
So far as the evidence of Bashir Ahmad P.W.9 is concerned, his statement under section 161 of Cr.P.C. Was fabricated afterwards. When Bashir Ahmad and Muhammad Hanif were coming together at the time of occurrence and according to the F.I.R. (Exh.PK) Bashir Ahmad also witnessed the same as per their version in F.I.R. So the whole improved statement of Bashir Ahmad can not be believed, in any manner. The house of Muhammad Hanif P.W.8 is about 14-15 acres away from the place of occurrence but at the time of occurrence he was serving in Pak Army at Multan, whereas, the house of Bashir Ahmad P.W.9 is 5-acres away from the place of occurrence. They have not explained the reason that why they were coming from their house to the Dera, where the incident took place and chance witnesses can not be believed until and unless he furnishes explanation regarding their presence at the time of occurrence at place of occurrence.
18. It is pertinent to mention here that according to F.I.R. Exh.PK Muhammad Hussain given up P.W.
Was available with the deceased at the time of occurrence and he was natural and independent witness of the occurrence but the prosecution did not produce him rather he was given up as E having been won over by the accused persons. The presumption would be that Ghulam Hussain the only witness of the occurrence was not ready to support false prosecution version so he was given up.
19. Though during cross-examination P.W.8 Muhammad Hanif through his voluntarily statement stated that he had given a supplementary statement before the I.O. But the supplementary statement regarding the same occurrence is not admissible in evidence. This statement can neither be equated with the F.I.R. Nor be read as its part. Reliance is placed on 2002 YLR 497. The perusal of the evidence of P.W.8 shows that he had signed the F.I.R. Exh.PK in token of its correctness, when it was read over to him. The complainant is an educated person. His duty pertains to sensitive matters as he was attached with Garison Engineering so it is very much clear that he himself lodged the F.I.R. Exh.PK and thereafter changed his version on the basis of mala fide.
It is also pertinent to note here that complainant did not approach any high police official or any Court of Law that the F.I.R. Was lodged on wrong facts. Even no private complaint was filed, if in the opinion of the complainant his statement was not recorded according to his on dictation.
20. So far as the contention of P.W.8 Muhammad Hanif in F.I.R. That he and other P.Ws. Witnessed the appellant Riffat Hussain running towards South also cannot be believed as the site plan Exh.PE was prepared at the instance of Muhammad Haneef, complainant and other P.Ws.
Mentioned in the F.I.R. The perusal of site plan Exh.PE reveals that the witnesses were available on point No.2 in the street whereas Riffat Hussain, appellant was allegedly shown running at point No.4, on a different direction at a distance of 110 feet. It is very much clear in the site plan Exh.PE that between Point No.2 and point No.4 there is a residential room and witnesses from Point No.2 could not see any assailants, at Point No.4. During cross-examination P.W.8 stated that he witnessed the occurrence from a distance of 80-feet but it is contradicted by the site plan where this distance is shown as 110 feet.
21. Now lastly coming to the evidence of recovery of gun from the possession of Riffat Hussain, appellant which was allegedly recovered on 23-1-2004. No empty was secured from the place of occurrence on the first day and according to the evidence, police also recovered one empty P-5 along with gun P-4 from the possession of the appellant so gun and empty were received in the office of the Forensic Science Laboratory, Lahore, simultaneously, on 28-1-2004. In these circumstances positive report of Forensic Science Laboratory, Lahore would be inconsequential and it cannot be used as a corroborative piece of evidence against the appellant.
22. For what has been discussed above, we are of the considered view that this was an unseen occurrence. P.Ws were not present at the time occurrence, at the place of occurrence and the appellants were implicated afterwards on the basis of suspicion and that the prosecution has failed to prove its case beyond reasonable doubt so we set aside the judgment dated 19-4-2005 passed by the Additional Sessions Judge, Khanewal and acquit both appellants namely Riffat Hussain and Ijaz Hussain from the charges. Both appellants are in jail. They be released forthwith, if not required in any other case. Criminal Appeal No.282 of 2005 of the appellant is accepted.
23. As it has been held above, that prosecution has failed to prove its case against the respondents Nos.2 and 3 and we have acquitted both the appellants, thus, Criminal Revision No.269 of 2005 for enhancement of sentence of Ijaz Hussain is dismissed.
MURDER REFERENCE IS ANSWERED IN NEGATIVE. DEATH SENTENCE IS NOT CONFIRMED.