' RAUF AHMAD SHEIKH, J.---Appellant Maqsood has assailed the vires of judgment dated 29-5-2006 passed by Mr. Manzoor Hussain, learned Additional Sessions Judge, Multan, in case F.I.R. No.155 of 2005 dated 23.7-2005 under section 302, P.P.C. Police Station Qadirpur Ran, District Multan (Sessions Case No.14/S of 2005 and Sessions Trial No.13 of 2005), whereby he was convicted under section 302 P.P.C. And sentenced to death with an order to pay a sum of Rs.3,00,000 to the heirs of the deceased as compensation under section 544-A, Cr.P.C. And in case of default to undergo S.I.
For six months. The learned trial court has also submitted Murder Reference No.463 of 2006 under section 374, Cr.P.C. Seeking confirmation or otherwise of death penalty awarded to the appellant.
As both these matters are inter-linked and inter-connected so are being decided through this single judgment.
2. Briefly stated the prosecution version as set-forth in the F.I.R. (Exh.PA/1) recorded on the statement (Exh.PA) of Muhammad Yaseen son of Muhammad Hussain, caste. Arain, aged 22 years, Businessm an, resident of House No.159/P, Gali No.3, Mohallah Harchanpura No.2, Faisalabad, is that on the day of occurrence i.e. 23-7-2005, he along with Tariq Ali and Abdul Wahid sons of Imdad Ali, caste Arain; residents of Chak No.30/J.B., Tehsil and District Faisalabad, had come to the Dera of Mian Muhammad Ishaq, son of Muhammad Hussain, caste Gujjar, resident of Chah Ganguwala, Mauza Tataypur, Police Station Qadirpur Ran, to take his brother Muhammad Amin, who had been living at the said Dera for the last one month. At about 12-00 noon, an altercation took place between Muhammad Amin deceased and Maqsood Ahmad son of Muhammad Aslam, caste Arain, resident of Chak No.277/R.B. Salyan, Police Station Dijkot, District Faisalabad and they hurled abuses to each other. The complainant and others tried to patch up the matter but in the meanwhile Muhammad Amin deceased gave a slap on face of Maqsood Ahmad appellant, who went away in rage. The complainant and others slept in the Dera of Muhammad Ishaq. At about 3- 00 p.m. Maqsood Ahmad came there with a hatchet and gave repeated blows to Muhammad Amin, who was sleeping in a room of the Dera, which landed on different parts of the body i.e. Nose, mouth, neck, left side of the chest and right thumb of Muhammad Amin deceased., The complainant and others raised alarm and many persons of the village arrived there. They tried to apprehend Maqsood appellant but he fled away along with weapon of offence i.e. Hatchet towards the sugarcane crop. They tried to give support to Muhammad Amin but he had succumbed to injuries. The motive was stated to be a slap given by Muhammad Amin on face of Maqsood and hurling of abuses.
3. After investigation, the appellant was sent up to face the trial. He was charged under section 302, P.P.C. He pleaded not guilty and claimed the trial.
4. The prosecution has examined 10 witnesses in addition to documentary evidence in support of its version.. The medical evidence is adduced through Dr. Muhammad Akram (P.W.8), who had conducted the autopsy of the dead body of Muhammad Amin deceased on 24-7-2005 at about 10-15 a.m. In Nishter Hospital,' Multna. He found following injuries on his person:--
(1) An incised wound 3 x 1 c.m, bone exposed, on the central aspect of the forehead, one c.m. Above from base of nasel bone, collated bone was present in the wound.
(2) An incised wound (slice cut) 13 x 3 c.m, bone exposed and nose was cut along with both sides muscles of upper jaw.
(3) An incised wound 14 c.m x 3 c.m, bone cut with mandible, teeth were on right side of mouth and mouth was to left side of neck.
(4) An incised wound 16 c.m x 4 c.m cutting seven cervical vertebra cutting the thyroid cartilage.
(5) An incised wound 9 c.m x 4 c.m x cutting right clavical bone with muscles.
(6) An incised wound 5 x 1.5 c.m, bone exposed on the medial side of back of right thumb.
(7) An incised wound 2 x 1 c.m, bone exposed on the backside of right index' finger, middle part. All injuries were ante mortem.
' He opined that the death was caused due to injuries on vital organs. A survival spiner area connected with brain, caused sudden neurological damage, shock and haemorrhage. Injuries Nos.1 to 4 were sufficient to cause 1 death in the ordinary course of nature. The probable time between injuries and death was immediate and the time between death and postmortem examination was 18 to 20 hours. He proved the postmortem report (Exh.PF) and pictorial diagram (Exh.PF/1).
5. The ocular account of the occurrence was furnished by Muhammad Yaseen complainant (P.W.1), Tariq Ali (P.W.2) and Abdul Wahid (P.W.3). Complainant Muhammad Yaseen (P.W.3) almost reiterated the contents of his complaint (Exh.PA) and added that the same was read over to him and he put his signatures on the same in token of its correctness. Tariq Ali (P.W.2) stated that on 23-7-2005, he, Abdul Wahid (P.W.3) and Yaseen complainant had come to Dera of Mian Muhammad Ishaq at Multan to take back Muhammad Amin, brother of the complainant, who had come there one month ago. They arrived at about 12-00 noon. The appellant and Amin deceased indulged in an altercation. They tried to separate thetn. Muhammad Amin deceased gave a slap on face of the appellant. The appellant went back in rage. Thereafter they went to beds. At about 3-00 p.m. Maqsood Ahmad appellant returned, while holding hatchet in his hands and went to the room, where Muhammad Amin was sleeping. He gave repeated blows of hatchet on various parts of the body of Muhammad Amin i.e. Nose, mouth, neck, chest and thumb of right hand. They tried to overpower Maqsood but he decamped from the place of occurrence while waving the hatchet.
Abdul Wahid (P.W.3) stated similar facts.
6. The recoveries have been proved through Tariq Ali (P.W.2), Abdul Wahid (P.W.3) and Inspector/S.H.O. Rehrnat Ali (P.W.9). P.Ws.2 and 3 have stated that, the blood-stained earth, blood- stained cot and last worn clothes of the deceased were secured by the I.O. In their presence.
Through memos of recovery (Exh.PB), (Exh.PC) and (Exh.PD). It was further stated that they joined the investigation of the case on 24-7-2005 and in their presence the I.O. Took into possession hatchet after making the same into sealed parcel through memo of recovery (Exh.PE), which was attested by them. Raja Muhammad Iqbal Janjua (P.W.10) proved the site plans (Exh. P. W 10/1), (Exh .P. W. 10/2) and (Exh.P.W.10/3) whereas Abdul Qadir (P.W.5) proved the formal F.I.R. (Exh. PA/1).
7. The investigation of this case was conducted by Rehmat Ali, Inspector/S.H.O. (P.W.9).. He stated that on receiving an information about the occurrence, he reached at the spot where Yaseen complainant got recorded statement (Exh.PA) and after hearing the same, he put his signatures on it in token of its correctness. It was sent to the Police Station for registration of the case. He has proved the injury statement (Exh.P.W.9/2), inquest report (Exh.P.W.9/3), memo of recovery (Exh.PB), whereby secured the blood-stained earth, site plan without scale (Exh. P. W 9/5), memo of recovery (Exh.PC) whereby he secured the blood stained cot P.1 and memo of recovery (Exh.PD) whereby he secured the last worn clothes of the deceased. He added that he arrested the accused, who led to the recovery of hatchet P.3 from the cattle-shed of Asghar Gujjar, which was secured through memo of recovery (Exh.PE). The prosecution has also produced the reports of Chemical Examiner (Exh.PP/3 and Exh.PP/4) and reports of Serologist (Exh. PP/1 and Exh. PP/2) .
8. The appellant in his statement under section 342, Cr.P.C. Has denied the veracity of the prosecution allegations against him and truthfulness of the witnesses produced by it. It was contended that it was an unseen occurrence and blind murder. The deceased was leading a wayward life and was killed by unknown persons at the Dera of Mian Ishaq, who called the complainant from Faisalabad. The deceased was a criminal and used to deal in narcotics and commit dacoaties. The Police failed to unearth the actual culprits so falsely involved him. It was added that the accused and two others tried to commit zina with a woman and on-resistance his companions had killed him. It is contended that nothing was recovered from him and false recovery was planted. He, however, opted neither to appear as witness under section on oath 340(2), Cr.P.C. Nor to produce the defence evidence.
9. After conclusion of the trial, the learned trial court proceeded on to convict and sentence the appellant as above.
10. We have heard Haji Muhammad Tariq Aziz Khokhar, Advocate, learned counsel for the appellant, Rana Abdul Majeed, learned Additional Prosecutor-General for the State and Ch. Bashir Ahmad Gujjar, Advocate, learned counsel for the complainant and have also perused the record with their able assistance.
11. Learned counsel for the appellant has contended that it was an unseen occurrence; that the P.Ws. Were not present and they were called from Faisalabad and made witnesses by the local Police on furnishing incorrect and misleading information; that their presence is ruled out by inordinate delay in the postmortem examination as the dead body was kept in the cold storage and the postmortem was conducted on arrival of the complainant and other heirs; that no independent person from the people, who usually remain present at the Dera and Darbar was included during recovery proceedings and none of them has also come forward to support the prosecution version regarding the occurrence and that the witnesses are not natural as the complainant resides at Faisalabad and the P.Ws-2 and 3 are residents of Chak No.30., Faisalabad, so their presence at the time of occurrence was not natural as no plausible justification in this regard is given.
11A. On the other hand, learned Additional Prosecutor-General and learned counsel for the complainant have contended that P.Ws. Muhammad Yaseen, Tariq Ali and Abdul Wahid though are closely related to the deceased but they have no animosity with the appellant so their evidence has rightly been believed by the learned trial court; that Yaseen was real brother of the deceased whereas Tariq is his sister's husband so they had come along with Abdul Wahid to take him back from Multan as he was living here for a period of one month prior to the occurrence; that it was a broad day light occurrence and was promptly reported to the Police; that the weapon of offence i.e. Hatchet was recovered on the disclosure and pointation of the appellant and the same was found to be stained with human blood and that the postmortem could not be conducted on 23-7-2005 as this facility was not available in. RHC, Qadirpur Ran and this delay does not affect, the prosecution case in any manner.
12. The prosecution case mainly hinges on the evidence of Muhammad Yaseen (P.W.1), Tariq Ali (P.W.2) and. Abdul Wahid (P.W.3). Muhammad Yaseen is resident of Mohallah Harchanpura No.2, Faisalabad, whereas P.Ws.2 and 3 are residents of Chak No.30/J.B., Tehsil and District Faisalabad.
Their contention that they had jointly come to take Muhammad Amin deceased back to Faisalabd as he was living in the Dera of Muhammad Ishaq for a period of one month does not provide a justifiable explanation for their presence in Basti Ganguwala Tataypur, where the occurrence had taken place because it is not contended or proved that there was any dispute between the complainant and the deceased so their coming together to take him back does not appeal to the rational mind. It is not the case of the prosecution that there was any dispute between the two brothers or the deceased had any annoyance so it was required that the relatives should come together from Faisalabad to take him back. P.W.2 Tariq Ali, who is sister's husband of the deceased and is brothek of Abdul Wahid live at a distance 2-1/2 miles from the house of the complainant, who had stated that they had come to accompany him to Tataypur. Tariq Ali stated that on the same day, they came to see Yaseen. They left for Tataypur. He further stated that they had arrived at the house of Yaseen at 9-00/10-00 a.m. According to him, they had come to Tataypur on 23-7- 2005 so as per statement of this witness they had come to house of Yaseen at 9-00/10-00 a.m. On the same day and then left for Tataypur. There is distance of about two miles between the house of Yaseen and the Bus Stop from where they had statedly come on public transport to Multan and from there had gone to Tataypur. Ili view of these facts, their presence in Tataypur at 3-00 p.m. Is highly doubtful. Their coming to A the house of the complainant Yaseen and then coming to Multan per chance and witnessing the occurrence does not appear to be correct and there is big question mark about veracity of these witnesses. The occurrence, according to the prosecution, had taken place at about 3-00 p.m. On 23-7-2005 but the postmortem was conducted on 24-7-2005 at about10-15 a.m. It appears that the dead body was kept in the cold storage and an intimation was given to the relatives of the deceased including the complainant and P.Ws. And on their arrival, the postmortem was conducted. The occurrence took place in the month of July and Police Station Qadirpur Ran is hardly 30 Kilometers from Multan and the postmortem could have easily been 'conducted on the same day. This fact is further fortified from the fact that name of the accused was not mentioned in the injury statement. Though the omission on part of the I.O. To mention the name of the accused in the injury statement is not fatal but in the present case due to inordinate delay in conducting the postmortem and the fact that P.Ws. Are residents of District Faisalabad, this fact has also become significant. It is clearly visible from the record that tampering has been made on the site plans. The names had been rubbed and dates have been over written. According to the F.I.R., the occurrence had taken place in the Dera of Mian Muhammad Ishaq whereas in the site plan (Exh.P.W.10/1), it is shown that the occurrence took place in the Dera of Mian Asghar Ali..
13. Above all, the recovery of hatchet is also very doubtful. P.Ws.2 and 3 have not categorically stated that the appellant had made a disclosure and got it recovered from the place shown in the site plan (Exh.P.W.9/9). The place of occurrence in Exh.P.W.10/1 and place of recovery in Exh.P.W.9/9 are exactly the same and if the prosecution version was true that it was recovered from the said places, it should have been recovered on. The first day at the time of inspection of the place of occurrence by the I.O. Even the memo of recovery (Exh.PE) does not show that this hatchet was recovered on the pointation or disclosure of the appellant rather it shows that it was recovered from the cot where Amin was allegedly murdered by Maqsood appellant while lying on it. This clearly shows that the recovery has been planted. Moreover according to. The P. Ws. 1 to 3 the appellant had fled away from the place of occurrence along with hatchet so its recovery from the cot of deceased shows that either the P.Ws. Had not seen the occurrence or the recovery was planted against the appellant.
14. Due to non-availability of natural witnesses, reasonable doubt about presence of P.Ws.1 to 3 at the time of place of occurrence, inordinate delay in postmortem examination and doubtful recovery, we are of the considered view that the prosecution has failed to prove the case against the appellant beyond reasonable doubt and the learned trial court has erred in recording conviction and awarding sentence to him.
15. For the reasons supra, Criminal Appeal No.605 of 2006 is accepted. .The conviction recorded and sentence awarded to the appellant are set aside. He be released forthwith from Jail if not required to be detained in any other case. Murder Reference No.463 of 2006 is answered in the negative.