Shahid Hameed Dar, J.--Ahmad Ali appellant was held guilty under Section 302(b) P.P.C. for the murder of Muhammad Naseem, by learned. Additional Sessions Judge, Kasur vide judgment dated 18.10.2008 and sentenced to imprisonment for life with direction to pay a sum of Rs,1,00,000/- to the legal heirs of the deceased by way of compensation under Section 544-A Cr.P.C. or in default thereof to undergo simple imprisonment for six months. Benefit of Secticn 382-B Cr.P.C. was, however, extended to him.
2. The convict/appellant has filed Criminal Appeal No: 1282 of 2008 against, his conviction/sentence, whereas the complainant preferred Criminal Revision No, 729 of 2008 seeking enhancement of the sentence awarded to the respondent-convict (appellant), which was admitted to regular hearing and notice was issued to the respondent on 4.6.2009. We propose to dispose of both the matters together through this single judgment.
3. The facts, as unfolded by Muhammad Sarwar-complainant (P.W.8) in F.I.R. (Exh.PG) were that he was a security guard at Allied Bank Kot Radha Kishan; about two months ago, his paternal nephew Muhammad Naseem (deceased) and Ahmad Ali (appellant) exchanged hot words, but the matter was patched up due to intervention of the elders; on the fateful day, i,e, 23.11.2002, at 4.00 p.m., he along with his brother Dildar Hussain, Muhammad Naeem and Muhammad Naseem (deceased) was going towards his house from the fields; in the meanwhile Ahmad Ali (appellant), while riding a motorcycle, reached there from behind and offered lift to Muhammad Naseem (deceased) to go to the village, whereupon, Muhammad Naseem sat on the rear seat of his motorcycle; on reaching a poultry farm near Rajbah Handal bridge, Ahmad Ali turned the motorcycle towards his haveli instead of going to the village; the complainant and his companions suspected some foul play so they rushed towards the haveli of Ahmad Ali (appellant); on reaching there, they saw Ahmad Ali carrying a rifle, and Muhammad Naseem (deceased) standing on path near a sugarcane crop; within their view, Ahmad Ali fired three successive rifle shots, which hit Muhammad Naseem, who fell onto the ground and breathed his last instantaneously; Ahmad Ali fled the scene; the occurrence was witnessed by the complainant and his above said companions; Ahmad Ali (appellant) committed murder of Muhammad Naseem due to previous grudge; leaving Dildar Hussain and Muhammad Naeem to guard the dead body, the complainant left for the Police Station and got registered F.I.R. (Exh.PG), on the same day at 6.00 p.m.
4. After registration of the F.I.R., Muhammad Ijaz Khan, Inspector (P.W.9) took over the investigation and immediately reached the spot; examined the dead body, prepared injury statement (Exh.P1), inquest report (Exh.PJ), an application for postmortem examination and despatched the dead body of the deceased to the mortuary for autopsy under the escort of Mukhtar Ahmad, C/590 (P.W.3) and Muhammad Anwar, C/925 PW (not produced); he inspected the place of occurrence and prepared visual site plan Exh.PH; secured blood stained earth vide memo. Exh.PD and three empties (P4/1-3) vide memo. Exh.PE; Mukhtar Ahmad, constable (P.W.3) produced before him last worn clothes of the deceased along with relevant papers, which were secured by him through memo. Exh.PL; he got prepared the site plan-in scale in duplicate (Exh.PB & Exh.PB/1) qua the place of occurrence, by Muhammad Latif, Patwari (P.W.2). He arrested the accused-appellant on 4.12.2002, who during course of interrogation, got recovered rifle .8-MM (P3) along with four live bullets (P2/1-4), which was secured by him vide memo. Exh.PF. On completion of investigation, he submitted challan against the accused-appellant for his trial in accordance with law.
5. At trial, prosecution in order to prove its case produced nine witnesses in all, whereas five persons were examined as Court Witnesses. The ocular account was furnished by Muhammad Sarwarcomplainant (P.W.8) and Muhammad Naeem (P.W.7). Both of them also stated about the motive part of the incident. Muhammad Naeem (P.W.7) also appeared to testify the factum of recovery of rifle (P3) vide memo. Exh.PF at the instance of Ahmad Ali-appellant. The Court witnesses (CW-1 to CW-5) were recorded by the trial Court, to assess the age of the appellant.
6. The medical evidence was presented by Dr.Mumtaz Ahmad (P.W.1), who, at 1.00 p.m., on 24.11.2002, conducted autopsy on the dead body of Muhammad Naseem (deceased), vide necropsy report Exh.PA (pictorial diagram Exh.PA/1) and found following injuries thereon:-
1. A penetrating lacerated wound measuring 4 cm x 4 cm, just above the right clavicle middle part on the front and most upper part of right chest.
2. A penetrating wound measuring 1 cm x 1 cm on the front and right side of chest 2 cm from midline and 7 cm below and medial to right nipple and 4 O'clock position to right nipple.
3 A penetrating lacerated wound measuring 5 cm x 3 cm on the left side of chest, 5 (1/2) cm below and in line with left nipple.
4 A penetrating lacerated wound 4(1/2) cm x 1(1/2) cm on the back of right chest, 4 cm on midline in right scapular area.
5. A penetrating wound measuring 4 cm x 2 cm on the back of left side of chest in lower part, 8 cm from midline and in mid scapular line.
6. A penetrating wound measuring 1 cm x 1 cm on the back side of left side of chest and abdomen, 3 cm from midline, 9 cm below and medical to Injury No, 5.
7. A penetrating lacerated wound measuring 4 cm x 2(1/2) cm on the inner side of the right wrist, underlying bones of right wrist were seen damaged.
8. A penetrating wound measuring 2 cm x 1 cm on the back of right wrist and communicating with Injury No, 7.
The cause of death, recorded by the medical officer was haemorrhage, shock and injury , to vital organs, i,e, heart, liver and spleen, due to Injuries No, 1 to 6, which were sufficient to cause death individually or collectively in the ordinary course of nature. The probable time that elapsed between injuries and death was "almost immediate", whereas between death and postmortem examination, it was within "20 hours approximately".
7. Learned Public Prosecutor by tendering in evidence the reports of Chemical Examiner, Serologist and Forensic Science Laboratory (Exh.PM, Exh.PN & Exh.PO), respectively, announced the prosecution case closed.
8. In his statement under Section 342 Cr.P.C, the appellant denied and controverted all the allegations of fact, alleged against him, by the prosecution and professed his innocence while responding to the question as to why this case against him and why the PWs had deposed against him in the following words:-- "In fact Muhammad Naseem was my fast friend had licence of Daood Corporation son of Inayat Ali allowed us to purchase the fertilizer. My father invested Rupees 23 lacs which was in the custody of the deceased and it was month of Ramzan and at the relevant time Muhammad Sarwar was performing duty on 13.12.2002 from 9.00 a.m. to 5.00 p.m. and at that time he was in the house and at the relevant time Muhammad Sarwar was performing duty on 13.12.2002 from 9.00 a.m. to 5.00 p.m. and at that time he was in the house and at the mid night father of the deceased who identified the dead body sent message that Naseem had been murdered and Muhammad Samar who is army personnel went in the Police Station and after shifting the dead body in the Police Station and observing injuries involved me in order to usurp Rupees twenty three lacs balance of my father. In fact first counsel was engaged by an advocate who belongs to Kot Radha Kishan is kith and kin of Sardar Muhammad Tufail, second counsel was engaged who was also close relative of Sardar Muhammad Tufail, Ex-MNA and they prolonged the case. Lateron they made the incorrect application for declaration of my insolvency and matter was agitated up to Supreme Court for the determination of my age. In fact according to my birth entry which is Exh.DB my date of birth is 12.01.1986 and in school certificate .my date of birth is 12.01.1986 which is Exh.DC and certificate of the manager of the Allied Bank in which he has mentioned that on 13.11.2002 Muhammad Sarwar was performing duty as security guard from 9.00 a.m. to 5.00 p.m. and that certificate is Exh.DD and attested copy of the Allied Bank is also Exh.DE in which it is clearly mentioned that at Column No, 23 there is a cutting which is Exh.DE/1 and these are five attested documents which are Exh.DE/2, Exh.DE/3, Exh.DE/4, Exh.DE/5 and Exh,DE/6. I also produced the original licence which is Exh.F which was produced before the Investigating Officer who with malafide intention did not obtain it and made part and parcel of the judicial file. I am innocent. No body from the vicinity and locality supported the prosecution version except Muhammad Sarwar and his nephew. My parents also produced respectable of the locality before the Investigating Officer Inspector Ijaz who did not try to obtain permission from the S.P. Investigation or DSP Investigation and conducted the investigation dishonestly due to fear of Sardar Muhammad Tufail Ex MNA, I sent many respectable to the complainant that in the month of Ramzan Naseem was coming with cash and robbery had been committed and his body lying dead in the field but Sardar Muhammad Tufail Ex MNA who was dead opponent to me and my family due to election friction compelled the complainant party not to compromise with me and my family. P.Ws and his nephew are greedy and they usurped Rupees 23 lacs of my father and involved me in this false case. It is pertinent to note here that six/seven F.I.Rs of robbery were produced and it was admitted by Muhammad Sarwar that on that road robbery has been committed in routine which is crystal clear that Naseem was murdered by unknown robberers and I have been falsely involved in this case."
The appellant did not opt to appear as his own witness under Section 340 (2) Cr.P.C. to repel the charge against him, nor he opted to adduce evidence in defence.
9. The learned Additional Sessions Judge on culmination of trial proceeded to convict/sentence the appellant as mentioned hereinabove.
10.Learned counsel assailing legality of the appellant's conviction and sentence contended it to be an un-witnessed occurrence, alleged to have taken place during the course of a dacoity, as such crimes were committed frequently in the area; the FIR was lodged belatedly after preliminary investigation, with a false timing recorded thereon in respect of its registration; all the eye- witnesses being relations of the deceased are inimically disposed towards the appellant thus they are interested and their statements do not find corroboration from any independent source; the case set up by the prosecution against the appellant is preposterous and presence of the eye- witnesses at the place of occurrence is highly improbable; the motive set up by the prosecution is unbelievable and gone un-established.
11.While learned counsel appearing on behalf of the state assisted by learned counsel for the complainant has supported the impugned judgment.
12.Having minutely perused the entire evidence with the assistance of learned counsel for the parties, we are not persuaded by the story, set up by the prosecution against the appellant as-we find that the eye-witnesses failed to establish their presence at the place of occurrence at the relevant time The previous heart-burning between the appellant and deceased if any, stood forgotten by the parties because of a patch up between them, hence the allegation that the appellant deceitfully took Muhammad Naseem (deceased) towards his haveli, after having offered him a lift on his motorcycle, does not appeal to reason. Muhammad Naeem (PW-7) is real brother of Muhammad Naseem (deceased) whereas Muhammad Sarwar complainant (PW-8) is an uncle of the deceased. Muhammad Sarwar complainant has contended that he along with his companions including Muhammad Naeem (PW-7) and Muhammad Naseem (deceased) were moving towards their house on foot from his haveli and the interse distance was around 3 kilometers. The relations between the parties were so cordial that nobody resisted the offer of Ahmad Ali appellant, to carry Muhammad Naseem (deceased) on his motorcycle so as to facilitate him in reaching his house. It was the month of Ramzan and Muhammad Naseem deceased was fasting on the day of occurrence. The haveli of the appellant was many acres away from the spot, wherefrom he took Muhammad Naseem with him on his motorbike. According to the statement of Muhammad Naeem (PW-7) and Muhammad Sarwar (PW-8), the appellant had driven his motorcycle for about 10 minutes when he took turn and instead of going to the village of the deceased adopted a course leading to his haveli. If none from the complainant side doubted the intention of the appellant at the time he offered a lift to Muhammad Naseem, it is highly improbable that mere turn of his motorcycle towards his haveli would have raised the eye-brows of the complainant and that of his companions so as to prompt them to give hot-pursuit to Ahmad Ali appellant. There was no reason to develop such suspicion as the alleged motive incident, stood compounded.
13. The statements of both the eye-witnesses are full of contradictions and discrepancies, which render their testimonies highly improbable and hard to believe. The deposition of Muhammad Naeem (PW-7) that Muhammad Sarwar complainant was on leave on the day of occurrence and that he had taken one day leave through a written application from his bank with a view to harvest the wheat crop is negated by PW-8 who categorically deposed in his testimony that he stayed in his bank during his duty hours till 2.30 p.m. and thereafter by leaving his cycle and uniform at the bank, he came to the bus stop where a passenger-packed bus was ready to leave, which he boarded and alighted at the relevant bus stop, wherefrom he directly went to his fields to assist his brothers who were busy working in the fields. Similarly PW-7 has deposed that Muhammad Sarwar complainant did not go to the Police Station directly from the place of occurrence rather he first went to Kot Radha Kishan and thereafter he went to the Police Station. The factum of shifting of dead body to the Police Station is very crucial and reflects on the timing of registration of FIR which has been shown as 6.00 p.m. on 23.11.2002. A strong impression arises from the testimonies of both the eye-witnesses that the FIR had been recorded much later than the time shown on the FIR (Exh.PG). The postmortem examination of the dead body was conducted at 1.00 p.m. on 24.11.2020, after about 21 hours of the occurrence and the delay in this regard has not been explained the prosecution witnesses in any manner. Muhammad Naeem (PW-7) and Muhammad Sarwar (PW-8) in their anxiety to show their presence at the place of occurrence have stated about many facts which are adverse to normal human conduct. The medical evidence does not render the required corroboration to the ocular account, for the reason, that the necropsy report (Exh.PA) reveals four firearm entry wounds on the body of Muhammad Naseem (deceased) as regards three stated by both the eye-witnesses who with a variation of distance qua their presence at the place of occurrence at the crucial hour, have stated to have witnessed the occurrence. The medical officer Dr. Mumtaz Ahmad (PW-1) deposed in his testimony that the probability could not be ruled out that three different kinds of weapons were used for the injuries, authored on the body of the deceased.
About. Injuries No, 7 and 8 on the body of the deceased, the medical officer stated that Injury No, 8 was an entry wound of Injury No, 7 and that for infliction of these injuries, the deceased had been fired at from his back. None of the eye-witness gave an account of 4th firearm entry wound.
14. The deposition made by Muhammad Naeem (PW-7) with following assertion is crucial.-- "The haveli of the father of Ahmad Ali is situated on the bank of Rajbah. The haveli is at a distance of about 13 acres from the poultry farms if some body travels on the bank of Rajbah. On motorcycle Naseem and Ahmad Ali covered the distance of one mile uptill haveli in about ten minutes. They might have reached over there at quarter to five. From in between the distance of the haveli is about 5/6 acres from the place where from Ahmad Ali had given right to deceased Muhammad Naseem. When we entered into the fields fro going upto the haveli we crossed the fields of Muhammad Mehdi. We crossed his one, two acres. Thereafter we crossed two three acres of Jaffar Ali, Chairman. Thereafter the land of Ahmad Ali started. That was about one acre which we crossed and then the haveli of Ahmad Ali came. We were three who were running towards the haveli, myself, my uncles Dildar Hussain and Muhammad Sarwar. We reached at the place of occurrence simultaneously."
Muhammad Sarwar complainant (PW-8) while giving a description of the place of occurrence contended that the road where the occurrence took place was a thorough fair whereon Dala, rickshaw, cycle, motorcycle and buses used to ply. He further stated that his house was at a distance of three kilometers from the fields and he further deposed with a contradiction that he and his companions were going to fields at the time of alleged occurrence. He however took another turn in his statement while deposing that they were going on foot from his haveli to his house at the time of occurrence. About the location of residential house of his brother Dildar PW (not produced), he contended that he lived in a separate house like that of Muhammad Naeem (PW-7) and Muhammad Naseem (deceased) and that fifteen streets separated their residential house and the abode of the deceased. The following assertion of PW-8 is important, therefore, reproduced:-- "Poultry farm is at a distance of three acres from where deceased took lift of motorcycle on asking the accused. I do not know at that time who were employees of the poultry farm owned by one person who belonged to Lahore. I do not know the numbers of the employees. 1 do not know whether the employees of the poultry farm were locals, or not. That poultry farm is consisting of 10/11 acres. There was no shop in front of the poultry farm. That poultry farm is at a distance of 20 kilometer from Kot Radha Kishan. That poultry farm is also at a distance of three kilometer from village Handal. There is a pacca road which leads to village Handal. Handal is a big village.
Accused is resident of village Handal,"
15. The conduct of PW-8 at the relevant time of occurrence is also important and helps in understanding whether or not he was present at the place of occurrence at the crucial hour or whether he had witnessed the occurrence or not:-- "It is correct that I, Dildar and Naeem are healthy and having a stitched body. I have not tried to apprehend accused as being army personnel before making fire at the deceased. We tried to apprehend the accused at some distance and other persons are also with me. We had not made a noise of seeing the accused armed with rifles. I have not tried to apprehend the accused from the back side after conceding myself before firing. When accused made first fire I reached near my nephew in order to save his life. No fire hit to me or any other witness at the alleged place of occurrence. I have not laid down on my nephew in order to save his life. I have not tried to lay on my nephew on the second and third fire. I have not tried to shift him in any hospital in order to save his life. Voluntarily stated he succumbed to the injuries at the spot. After receiving the fire shot he fell downward and trembling at that time. I saw the injuries of the deceased. I have not placed the deceased on the cot. I have not made any noise after it. I stayed ten minutes at the spot. I have not made arrangements of any vehicle. I have not taken cycle motor from the haveli to reach the hospital. I have not asked Jaffar chairman to provide me weapon or persons or vehicle to produce me in order reach the Police Station."
The divergent pleas of both the eye-witnesses transmit a clear signal that they had not seen the occurrence nor they had any purpose to be present at the spot where Muhammad Naseem (deceased) was murdered and their contention to have witnessed the occurrence is patently false.
The involvement of the appellant in the instant case appears to be skeptical and the allegations against him qua the murder of Muhammad Naseem (deceased), look speculative. The ocular account is brushed aside being false, highly discrepant and unreliable, having been rendered by the inimical and interested witnesses. The motive of the incident which took place about two months prior to the occurrence has also not been honestly setout by the prosecution which was disbelieved by the learned trial Court.
16.So far as the factum of recovery of rifle .8 mm (P-3) along with pistol P-4 and four live bullets vide memo. of recovery Exh.PF from a room of his house by the appellant is concerned, though there is a positive report (Exh.PO) issued by the office of Forensic Science Laboratory, Lahore hinting at wedding of the crime empties with the aforesaid weapon, it cannot be considered a conclusive circumstance to base conviction/sentence thereon against the appellant. The discrepant, and contradictory ocular account, not sufficiently corroborated by the C medical evidence and badly dented by the unproven motive, has already been disbelieved by us, therefore, the evidence of recovery of the mentioned items is of no consequence to the prosecution case.
17.The defence plea adopted by the appellant in his statement under Section 342 Cr.P.C, is a pileup of divergent circumstances, having no relevance, or conformity interse which divulges nothing but three facts, firstly, the case against the appellant-accused was false and consistorial, secondly, the deceased had been done to death in some occurrence of dacoity as the dacoits were on the rampant in the said area since long and thirdly, one MNA and his son were instrumental in construction of allegations against the convict. Both the eye-witnesses admitted in .their testimonies that the dacoits were active in the area of murder of the deceased and affirmed the positive suggestions in this regard. The available material however is not sufficient to believe the defence plea of the accused who has already been held by us to have been falsely involved in this case under a calculated move by the vested elements, bent upon in causing his annihilation.
18.The upshot of the above discussion is that in view of the defects and infirmities pointed out above, the prosecution has failed to prove its case against the appellant beyond reasonable doubt, hence we accept the appeal (Crl. A. No, 1282-2008), set-aside the conviction and sentences of the appellant and acquit him of all the charges. We direct that the appellant be set at liberty forthwith if not to be detained in any other case.
19. For the reasons noted hereinabove, the revision petition (Crl. Rev. No, 729-2008) filed by the complainant, for enhancement of sentence of the appellant is dismissed.