The appellants Muhammad Younas and Javad Iqbal, along with Ghulam Nabi, Atif Abbas and Muhammad Muavia, were tried by Ch. Javed Iqbal Saif, learned Additional Sessions Judge, Burewala, in a private complaint filed by Mst. Balqees Ihsan for offences under Sections 302/364/143/149, PPC. Vide judgment dated 27.11.2004, the learned trial Court Judge, while acquitting the aforesaid co-accused, convicted and sentenced the appellants as under :--
(a) Muhammad Younas & Javed Iqbal for offence under Section 302(b)/34, PPC each to imprisonment for life plus payment of Rs, 50,000/- each as compensation to the legal heirs of the deceased, in default whereof to further undergo S.I. for one year each;
(b) Muhammad Younas for offence under Section 203 PPC to suffer R.I. for two years and to pay a fine of Rs, 10,000/-, in default whereof to further undergo S.I. for six months.
Both sentences inflicted upon Muhammad Younas were to run concurrently.
2. Aggrieved by their above noted conviction and sentence, convicts/appellants have filed the instant appeal.
3. Brief facts of the case are that one Muhammad Younas lodged FIR No, 171 on 15.6.2002 with Police Station Sadar Burewala for offences under Section 324/34 against Mukhtar Ahmad and Abdul Majeed alias Majeeda and after death of Ihsan Ahmad deceased offence under Section 302, PPC was added. During investigation, both the aforesaid accused were declared innocent and report u/S. 173 Cr.P.C. against Javed lqbal/accused was sent to the Court for trial within the ambit of Section 319, PPC.
4. After about six months of the occurrence, private complaint was filed by Mst. Balqees Ihsan, wife of the deceased, against Muhammad Younas, Ghulam Nabi alias Mahya, Atif Abbas alias Mithu, Muhammad Muavia and Javed Iqbal, alleging therein that on 15.6.2002 at about 5.00 p.m., the above noted accused came to the house of the complainant. Muhammad Muavia/acquitted accused knocked at the door, and asked for the husband of the complainant. The complainant awoke her husband, who sat along with the accused in the Baithak. After some time, her husband came inside the house and told her that the accused wanted to take him to Chak No, 523/EB for some purpose., The complainant forbade him from accompanying them stating that an altercation had already been taken place between him and Javed Iqbal/appellant on account of debt but the deceased accompanied the accused. At about 12.00 mid night, Mst. Sughran Bibi/PW- 9 and Muhammad Insha/PW-10 came to her house and told her that her husband had sustained fire-arm injury and was admitted in Burewala Hospital, whereupon the complainant along with the aforesaid PWs went to the hospital, where her husband, who was in injured condition, told them that the accused took him to Chak No, 523/EB where Javed Iqbal/appellant, while threatening him for the demand of debt, aimed his .7-mm rifle towards him, upon which the deceased stood up from the cot and tried to run away towards the east but he was encircled by the other accused.
Javed Iqbal fired which hit him on his hack. He requested the accused to take him to the hospital as he did not have any intention to initiate any proceedings against them. Then the accused took him to the hospital. It was further alleged that Ihsan Ahmad was shifted to the operation room but subsequently at about 2.30 a.m. he succumbed to the injuries. It was also alleged that in order to save their skin, Muhammad Younas/appellant, one of the accused, deceitfully got lodged the above noted FIR on 15.6.2002 for the murder of the deceased against Mukhtar Ahmad and Abdul Majeed. It is mentioned in the private complaint Ex.PB that the complainant repeatedly approached the police and told about the dying declaration of her husband but without any success, rather the police of its own recorded the statements of the complainant as well her witnesses according to their own wishes and subsequently declared the accused persons nominated therein as innocent and treating the death of the deceased as an accidental one submitted the challan against Javed Iqbal for offence under Section, 319, PPC, Hence, the instant complaint.
5. The learned trial Court, after recording preliminary evidence of the complainant and her witnesses summoned all the accused. Charge was framed against them. As they denied the charge; therefore, the trial commenced.
6. In support of her case, the complainant produced eleven witnesses, including her own statement as PW-8. The complainant reiterated the story as given in the complaint Ex. PB. Mst. Sughran Bibi PW-9, sister of the complainant and Muhammad Insha/PW-10 stated about, the information given by them to the complainant and dying declaration made by the deceased before them in the hospital.
7. Mst. Balqees Ihsan/PW-8, while narrating the story, stated that her husband told her in the hospital that the accused took him to the land of Younas in Chak No 523/EB where he came to know the conspiracy and the ill-will of the accused. She admitted that the police arrested Mukhtar Ahmad and Abdul Majeed, accused nominated in the FIR lodged at the instance of Muhammad Younas and did not record her version in regard to dying declaration made by the deceased before them. She further admitted that due to Iddat she could not approach the police and after Iddat period, she went to the police but her statement was not recorded. She also admitted in cross examination that no application was efer made by her before the higher police officers against the I0 for not recording her statement. She admitted that she appeared before the DSP, Burewala, but stated that her statement was also not recorded by him. When she was confronted that she made a statement before the DSP on 30.9.2002, she disowned that statement, rather she denied to appear before him on the aforesaid date. She denied the fact of her appearing before the DSP stating that she never made the statement before the DSP that at the time of her arrival at the hospital, her husband had already died. She was confronted with her earlier statement before the police Ex. DC, wherein it is stated by her that she remained in the house on the fateful night and at about 1.30 a.m. her sister Mst. Sughran Bibi, brother Muhammad Insha and Muhammad Ishtiaq came to her house and gave the information that her husband having sustained fire-arm injury was admitted in the hospital, whereupon she along with them went to the hospital and her husband had already died by that time.
8. As far as the last seen evidence is concerned, the same was disbelieved by the learned trial Court by observing that there were many, improvements made by the complainant in this regard, while making statement as PW-8. Even otherwise, both the appellants Younas and Javed Iqbal did not disown their presence at the place of occurrence in their statements recorded under Section 342, Cr.P.C. but the question arises whether the dying declaration as narrated by the three PWs can be given any weight when the doctor/PW-1, who remained in the hospital and the deceased was under his treatment, denied this fact. On the other hand, he stated that the deceased was unable to speak, when he reached at the hospital and he died in the same situation within half an hour. For the period of six months, all the three witnesses remained silent and they did not approach the 10 or the higher police hierarchy or any Court of law about the dying declaration of the deceased.
Admittedly, all of them are educated persons. PW-8 is wife of the deceased, while PW-9 and PW-10 are her real sister and brother respectively. If the story as narrated by them was true, then they could easily approach, the police or any Court for the redressal of their grievance. Silence for such a long period on their part by itself shakes the evidence of the prosecution. On the other hand, CWs-1 and 2 namely Muhammad Nawaz, ASI and Najawat Khan, SI, negated the story of complaint, as Muhammad Nawaz/ASI stated that when he reached at the Hospital at Burewala on receiving information of the occurrence, Muhammad Younas got recorded his statement as complainant of the FIR, which was sent to the police station for registration of the case and at that time, the deceased had already expired meaning thereby he did not verify the presence of the three witnesses, i,e, PW-8, PW-9 and PW10 in the hospital at that time. He stated that he recorded the supplementary statements of Muhammad Insha and Muhammad Ishtiaq, PWs, on the same day.
They received the dead body of the deceased and made their statements on 16.6.2005, wherein they did not disclose the factum of dying declaration. Similarly, CW-2 also negated the version of the complainant. As such, mere presence at the place of occurrence does not involved the appellant in the commission of murder, when they made specific allegation against Mukhtar and Abdul Majeed by making fire upon the deceased in their presence. Not even a single witness was produced by the complainant who had seen the occurrence so as to connect the appellants in this case as accused. The dying declaration which was not made before the Medical Officer, or the police officer or any other independent witness cannot be believed, especially when Insha and other PW, who was given up by the prosecution, had appeared before the police on the same night to receive the dead body and they got recorded their statements under Section 161, Cr.P.C., without disclosing the factum of dying declaration. The motive as set up by the prosecution was also disbelieved by the learned trial Court. As far as the recovery of rifle is concerned, though it was found workable but the same cannot be used as an incriminating piece of evidence against the appellants, as no crime empty was procured from the place of occurrence by the IO.
9. Such weapon of offence was primarily shown in the hand of Mukhtar Ahmad nominated accused of the FIR and lastly, it is worth mentioning to note that both the appellants have been convicted by the learned trial Court by observing (at page 14 of the impugned judgment) "No doubt that no eye-witness of the murder has been produced in the witness-box but it was very much difficult for the complainant because they were perhaps the accused of the occurrence." It was further observed at page 16 of the judgment by the learned trial Court. "There is of course no direct inculpating evidence against accused Javed Iqbal but his presence at the house of deceased and his departure from there to the land of occurrence and then his escape has fully connected him with commission of offence."
10.In view of the above facts and circumstances, I am of the view that the prosecution has failed to prove its case against the appellants beyond any doubt and conviction cannot be sustained merely on the basis of presumptions. The only evidence of dying declaration, which was going to be based as if it were incriminating evidence against the appellants, cannot be believed and the same is the result of concoction. There was no corroboration of any kind available on record.
Consequently, this appeal is allowed; the impugned judgment of the learned trial Court is set aside and the appellants are acquitted of the charge. Muhammad Younas appellant is on bail. He shall stand discharged of the liability of bail bonds. Javed Iqbal appellant shall be released forthwith, is not required in any other case.