' SH. NAJAM UL HASAN, J--- Muhammad Amin Appellant along with Sana Ullah Co-accused was tried by a learned Additional Sessions Judge, Nanakana Sahib in case F.I.R No, 218 dated 5-8-2003 under section 302/109/34, P.P.C. Registered at Police Station Syedwala and District Nankana Sahib.
During trial legal heirs of Mazhar Iqbal deceased compromised the matter with Sana Ullah co- accused for the murder and waived their right of Qisas in the name of Almighty Allah to his extent.
They, however, prosecuted Muhammad Amin appellant. At conclusion of trial, the learned trial Court vide judgment dated 21-12-2006 acquitted Sana Ullah accused on the basis of compromise.
However, the appellant was found guilty and consequently convicted under section 302(b), P.P.C.
And sentenced to suffer death.
2. Feeling aggrieved of the conviction and sentence, Muhammad Amin, appellant has filed Criminal Appeal No,43-J of 2008 through jail. The State has also approached this Court by way of Murder Reference No,144 of 2007 seeking confirmation of death sentence of Muhammad Amin convict.
Both these interconnected matters are being disposed of together through this single judgment.
3. Occurrence in the present case took place on 4-8-2003 at 7-00 p.m. At bridge Jame ki of watercourse Syed Wala within the vicinity of village Machora Sarang within the jurisdiction of Police Station Syedwala of District Sheikhupura in which Mazhar Iqbal brother of Zafar Iqbal complainant (P.W.7) was murdered statedly by Muhammad Amin, appellant along with others and the matter was reported by the complainant through statement (Exh.PH) which was sent to the police station where formal F.I.R. (Exh.PB) was registered on 5-8-2003 at 8-25 a.m.
4. The prosecution story in brief as narrated by the complainant P.W.7 in the F.I.R. (Exh.PB) is that on 4-8-2003 at about 6-00 p.m. He along with his brothers Mazhar Iqbal (deceased) and Azhar Iqbal (P.W.8) and brother-in-law Karamat Ali were present in the house when Mahammad Saleem accused called them out. The complainant along with his brothers and brother-in-law came out of house and saw Muhammad Amin, appellant armed with .244 bore rifle,. Sana Ullah and Muhammad Saleem empty-handed. They took Mazhar Iqbal (deceased) along with them on the pretext to participate in some marriage ceremony. On feeling doubt Azhar Iqbal and Karamat Ali, P.Ws. Followed them. When they reached at Raj Bah (watercourse) Syedwala near bridge Jame ki, Muhammad Amin, appellant fired two shots with his rifle at Mazhar Iqbal hitting him on backside of neck and right thigh, who fell down and died at the spot. The appellant hurled a threat to the P.Ws.
Not to come nearer and the accused party took dead body with them. The P.Ws. Informed the complainant of the occurrence and all three of them started searching the dead body and found it lying at the bank of Rajbah. The complainant alleged that his brother had been murdered by the accused persons at the instigation of one Muhammad Younis son of Surshata.
' Motive for the occurrence was that the complainant was fisherman by profession and 5/6 days prior to present occurrence a quarrel took place between the deceased and Muhammad Amin, appellant over fishing.
5. Dr. Iqbal Hussain, (P.W.5) conducted post mortem examination on dead body of Mazhar Iqbal on 5-8-2003 at 5-00 p.m. And found the following injuries:-- (i-A) An oval shaped wound of entry 1/2 x 1/2 cm on the back of neck. Blackening was present.
(i-B) An oval shaped wound of exit 2-1/2 x 2-1/2 cm on the left side of neck, 7 cm from and below left ear. Exit of injury No, 1.
(ii-A) A wound of entry 1/2 x 1/2 cm on front of right thigh, 16 cm below the right iliac crest.
(ii-B) A wound of exit 2 x 2 cm on posteric medial right thigh upper part. This wound was the exit wound of injury No,2-A.
' In the opinion of the doctor all the injuries were ante-mortem and were caused by fire-arm weapon which resulted into death as the same were sufficient to cause death in ordinary course of nature. Probable time which elapsed between injuries and death was half an hour and between death and post mortem was 18 to 24 hours.
6. Riasat Ali Sub-Inspector (P.W.11) investigated this case. On 5-8-2003 at about 7-30/8-00 a.m. He was patrolling in the area of his police station when the complainant met him and got recorded his statement (Exh.PH) which was sent to the police station for registration of F.I.R. Thereafter he reached at Pull Rajbah Syedwala near Pulli Jameke where dead body of Mazhar Iqbal was lying. He took into possession the same, prepared injury statement and inquest report and dispatched it to the mortuary for post mortem examination. He also took into possession blood-stained earth from the place of occurrence and conducted other formal investigation.
' Mushtaq Ahmad, Sub-Inspector P.W.10 also investigated this case. On 15-8-2003 he arrested Amin appellant and Sana Ullah acquitted accused. On 27-8-2003 the appellant made a disclosure and thereafter led to the recovery of rifle (P.1) from his house which was taken into possession vide memo Exh.PA. Rest of the accused were not available as such they were declared P.O. After completion of investigation the appellant and Sana Ullah accused were challaned to Court to face trial.
7. At commencement of trial charge was framed against the accused persons to which they pleaded not guilty and claimed trial. At trial the prosecution produced 11 witnesses in all to prove the case against the accused out of which Zafar Iqbal and Azhar Iqbal, P.Ws.7 and 8 provided ocular account of the occurrence. Dr. Iqbal Hussain, (P.W.5) provided medical evidence. Riasat Ali, Sub-Inspector (P.W.11) and Mushtaq Ahmad Sub-Inspector (P.W.10) proved their investigation. Rest of the witnesses were formal in nature. At close of prosecution case the accused were examined under section 342, Cr.P.C. They denied and dismissed each piece of prosecution evidence. To a question as to why this case against you, the appellant replied as under:- "I have been falsely involved in this case due to suspicion and enmity. Prior to the occurrence, complainant party had demanded the hands of my sister which was denied by us and on the basis of this grudge, complainant party has falsely involved me in this case. In fact, it was an unseen occurrence which was committed during the commission of decoity by some unknown persons. I did not participate in the occurrence. I have no motive to kill the deceased Mazhar Iqbal as I have no enmity with him."
' The appellant however neither enter into witness box under section 340(2), Cr.P.C. Nor produced evidence in defence.
8. At the close of trial, the learned trial Court convicted and sentenced the appellant and acquitted Sana Ullah co-accused as noted above.
9. Learned counsel for the appellant states that the whole prosecution story is unnatural and not believable at all. In support of his contention he submits that motive alleged by the prosecution in the F.I.R. For the occurrence was that 5/6 days prior to the present occurrence a quarrel had taken place between Mazhar Iqbal deceased and Muhammad Amin appellant. If this be so, then it was not believable that the deceased would accompany the appellant knowingly that at that time the appellant was carrying .244 rifle with him. Learned counsel further elaborates his contention that it is prosecution claim that after departure of the appellant party with the deceased, the complainant directed Azhar Iqbal and Karamat (P.Ws.8 and 9) respectively brother and brother-in- law of the deceased to follow the accused party who consequently chased them for more than one hour and within their view the appellant killed the deceased by firing two shots and then the accused party took his dead-body to some unknown place and the witnesses returned back to inform the complainant who instead of informing the police started searching the dead body and when it was found thereafter reported the matter to the police at 7-30 a.m. Next day. Learned counsel contends that such a cock and bull story is not believable to a prudent mind. Learned counsel claims that said novel story has only been created to cover the delay in lodging the F.I.R.
And it was in fact an unseen occurrence; the dead body was found lying on the bank of canal and thereafter a story was cooked up and reported to the police with a delay of 12 hours which makes the prosecution case highly doubtful. Learned counsel contends that there are material contradictions between ocular account and medical evidence. Post-mortem was conducted after 22 hours of the occurrence and such a delay in post-mortem examination leads to only inference that assailants were not known and after recovery of dead body the complainant kept on guessing and ultimately story was concocted and after preparation of documents post mortem was got conducted at such a belated stage. Learned counsel contends that as per post mortem examiner, one of the injuries on the deceased was blackish which mean that fire had been made from a close range whereas as per eye-witnesses firing was made from a distance of 21 karams i.e, 144 feet and such a circumstance contradicts claim of the eye-witnesses that they were present at the place of occurrence at relevant, time. Even otherwise F.I.R. Was registered after recovery of dead body and as such seat of injuries was in knowledge of the complainant so the medical evidence is of no help to the prosecution case. Learned counsel also contends that recovery of rifle from the appellant in absence of any crime empty does not provide any support to the prosecution case.
Learned counsel further contends that motive of quarrel between deceased and the appellant 5/6 days earlier to the occurrence is not worth reliance as the same has not been proved through evidence and further it is negated by the circumstance that in existence of such motive there was no possibility for the deceased to accompany the appellant when he was having rifle with him.
Learned counsel submits that as against the prosecution case, the appellant has given plausible reason for his false involvement. Lastly contends that the witnesses are closely related and no independent or unconcerned witness has been produced so the ocular account brought on record through closely related witnesses based on unnatural story cannot be accepted without the same being corroborated by other circumstance or evidence brought on record through independent source which is lacking in this case and the appellant deserves acquittal.
10. On the other hand learned Law Officer states that the appellant is duly named in the F.I.R. With specific role of causing two firearm injures. The same were found available on the body by the doctor who conducted post mortem. Further states that delay of 12 hours in lodging the F.I.R. Has been explained as the witnesses and the complainant kept on searching dead body of the deceased and after recovery of the same case was got registered. Learned Law Officer submits that no doubt one of the injuries on the deceased was blackish but such a minute discrepancy does not affect the prosecution case and that there is sufficient material brought on record through statements of P.Ws.8 and 9 who was eye-witnesses of the occurrence and have no reason to falsely involve the appellant so the appellant is not entitled to any exception.
11. We have heard learned counsel for the parties and have gone through the record.
12. It was stance of the complainant in the F.I.R. And even at trial that he along with Azhar and Karamat P.Ws.8 and 9 was present in his house when Muhammad Amin appellant along with his co-accused came to their house and took Mazhar deceased with them and at that time the appellant was having .244 rifle with him. It was also claim of the complainant that 5/6 days prior to the present occurrence the deceased and the appellant had a quarrel regarding fishing. If this was the position it is not understandable as to why the deceased accompanied the appellant who was armed at that time and even the witnesses/complainant did not bother to stop him. If it be presumed for the sake of argument that relations between the parties had become cordial and dispute of fishing had been patched up, then there was no need at all for the complainant to direct P.Ws.8 and 9 to follow the accused party.
13. There is also another strange circumstance of the case. The alleged eye-witnesses remained on following the accused party and after watching murder incident came back and informed the complainant and even then none of them considered it appropriate to inform the police rather chose to search for the dead body. This part of the story is also flimsy as it does not appeal to mind that when the eye-witnesses had seen the appellant killing the deceased even then they would not like to report the matter to the police and even the complainant did not consider it appropriate to inform the police and preferred to search for the dead body. There is another thing which also creeps into mind. It was claim of the eye-witnesses that the accused party when reached at watercourse Syed Wala about 3/4 acres away from Jame ki bridge at 7-00 p.m. Killed the deceased and thereafter took the dead body to unknown place and the eye- witnesses along with complainant came back to the said place and kept on searching the dead body whole night. A careful perusal of site plan Exh.PG would show that the place of alleged occurrence and the place from where dead body was recovered are not of much distance. Keeping in mind the distance it is not difficult to understand that as they searched the deadbody so they must have located it within shot span of time. The delay of 12 hours in reporting the matter to the police clearly indicate that the, dead body was found lying on the bank of water channel thereafter the whole story was concocted and reported to the police. Such a delay of 12 hours in lodging the F.I.R. Makes the prosecution case highly doubtful.
14. Three persons were nominated by the complainant out of them Saleem brother of the appellant was statedly empty-handed and the allegation against him is that he called the deceased and later on took him along with other co-accused. Sanaullah, the third accused was arrested and during trial legal heirs of the deceased compounded the offence with him and he was ultimately acquitted. One Yousaf was also implicated and statedly he was accused of abetment. He was declared P.O.
15. This is a case in which the post mortem was conducted after 22 hours of the occurrence. Such a delay in the post mortem examination has not been explained. One of the injuries on the deceased was blackish and the doctor stated that the same could have been result of fire made from a close range whereas the prosecution story as brought on record through statements of P.Ws.8 and 9 indicate that firing was made from a distance of 21 karams i.e, 144 feet. The complainant is not eye- witness of the occurrence and this circumstance also negates presence of other witnesses at the place of occurrence. So far as contention of learned Law Officer that the injuries described by the complainant in the F.I.R. Were found present on the dead body by the post mortem examiner; is concerned suffice it to say that the complainant was not an eye-witness of the occurrence. Even otherwise case was registered after recovery of dead body and as such seat of injuries was in knowledge of the complainant so the medical evidence is of no help to the prosecution case.
16. Although the deceased died because of firearm injuries and it was claim of the witnesses that the appellant fired two shots with his rifle but during spot inspection the investigator did not find any crime empty at/around the place of occurrence. During investigation, a rifle was allegedly recovered from the appellant but in absence of any crime empty the same does not provide any strength to the prosecution case.
17. It was claim of the complainant that a quarrel had taken place between the deceased and the appellant 5/6 days prior to the present occurrence but no witness was produced in support of this assertion. Even otherwise the same is not worth reliance as in existence of such a reason there was no possibility of the deceased to have accompanied the appellant especially when he was having rifle with him. No source of light has been described by the prosecution during investigation or even at trial and keeping in view that the occurrence was reported to the police at 7-30 a.m. Possibility of the occurrence having taken place at mid of night cannot be ruled out. The complainant and Azhar Iqbal P.W.8 were brothers of the deceased whereas P.W.9 Karamat Ali was brother-in-law of the deceased so all the three witnesses are closely related and not independent or unconcerned witnesses. In these circumstances one has to examine the ocular account very carefully and should only accept if the same is corroborated by other attending circumstances of independent source but the same is lacking in this case.
18. As discussed above, the prosecution story is highly improbable. Motive has not been-proved.
Medical evidence is in contradiction with the ocular account and the recovery of rifle from the appellant is of no help to the prosecution. So keeping in view that the occurrence took place at an isolated place possibility of its being unseen occurrence cannot be ruled out. So convicting the appellant only on the basis of F statements of P.Ws.8 and 9 who are related and unnatural witnesses and who brought on record no plausible reason for their presence at the time and place of occurrence is not sustainable.
19. The upshot of the above discussions and observations is that the prosecution has failed to prove its case beyond reasonable doubts and as Appeal No,43-J of 2008 is accepted. Conviction and sentence of the such the appellant is entitled to benefit of doubt. Resultantly, Criminal appellant are set aside and he is acquitted of the charge. He be released from jail if not required to be detained in any other case.
20. Since the appellant has been acquitted, as such there is no question of confirmation of death sentence. Murder Reference No,144 of 2007 is, therefore answered in negative. Sentence of death is not confirmed.