' MAZHAR IQBAL SIDHU, J. This judgment will dispose of above captioned criminal appeal filed by Naazim Hussain appellant as well as Murder Reference for confirmation of his death sentence or otherwise, who was convicted by learned Addl. Sessions Judge, Daska in a case registered vide F.I.R. No.87 of 2005. Dated 19-6-2005 under sections 302/34, P.P.C. At Police Station Begowala, Distt.
Sialkot vide impugned judgment dated 21-1-2007 and sentenced as follows:-- ' NAAZIM HUSSAIN, APPELLANT.
' Death under section 302(b), P.P.C. As Tazir and to pay Rs.50,000 as compensation to the legal heirs of the deceased Muhammad Inayat under section 544-A, Cr.P.C. And in default whereof to further undergo imprisonment for sfx months. Likewise Criminal Revision No.311 of 2007 filed by Nazir Ahmad petitioner/ P. W.4 against ,the respondent/appellant Nazim Ali for enhancement of compensation amount shall also be disposed of by this composite single judgment.
2. Pithily the prosecution story as disclosed by complainant Khalid Hussain (P.W.4) in F.I.R. Exh.PC/1 is that on 19-6-2006 he has gone to village Mallianwala Jattan to attend 'the marriage ceremony of his maternal cousin/ Mamoonzaad. At about 2-00/2-30 p.m. He was returning to his village Bagal Sharqi and when reached near Hussain Pur village, Fayyaz son of Muhammad Azam stopped him and abused him as a result whereof a quarrel ensued between them, thereafter, he went home. On the same day at about 6-30 p.m. The complainant alongwith his father Muhammad Inayat', uncle.Nazir Ahmad and Faisal Noman cousin were coming from the Dera of cousin towards the Dera of Bahawal Bakhsh resident of Hussain Pur. When they reached in their field near the afore- said Dera, Muhammad Naazim appellant armed with rifle, Muhammad Fayyaz (since acquitted) armed with rifle, Altaf Hussain (since acquitted) had crouched themselves towards south of the Dera of Bahawal Bakhsh. On seeing the complainant party, appellant Altaf Hussain raised Lalkara that Muhammad Inayat etc. Be not escaped today whereupon Muhammad Nazim appellant and Muhammad Fayyaz co-accused (since acquitted) made straight firing on the complainant party.
The complainant, his uncle Nazir Ahmad and Faisal Noman took recumbentory position. The fire- shots hit on Muhammad Inayat, who on receipt of injuries fell on the ground. The accused persons then while raising Lalkaras fled away from the spot alongwith their weapons. Muhammad Inayat succumbed to the injuries at the spot. The occurrence in question was committed by the accused on the conspiracy and abetment of Muhammad Khalid son of Boota Khan. Hence, this case.
3. Tahir Naeem Inspector (P.W.11) deposed that on 19-6-2005, he was posted at Police Station Begowala. He after the receipt of information proceeded to the place of occurrence. He inspected the dead body while reaching at the spot, prepared inquest report Exh.PH, injury sheet Exh.Ph/1 and application for post mortem examination Exh.PH/2 and the dead body was entrusted to Muhammad Arif 145/HC and Ghulam Mohi ud Din 407/C for post mortem examination. Then he prepared rough site plan Exh.PK. He secured bloodstained earth from the place of occurrence, made the same into sealed parcel and took into possession vide memo Exh.PD attested by the P.Ws. He recorded the statements of the P.Ws. At the spot. He on 20-6-2005 took into possession last-worn togs of the deceased i.e. Shirt P-1, Vest P-2, Tehband P-3 produced by Ghulam Mohi ud Din. Constable vide recovery memo Exh.PA attested by the P.Ws. He also got prepared scaled site plan from the draftsman Exh.PG and Exh.PG/1. He handed over the investigation to Muhammad Fazil S.-I. On 24-6-2005.
' Muhammad Fazil (retired S.-I.) P.W.12 deposed that on 25-6-2005 he was posted as SI at Police Station Begowala. On the same day, investigation of this case was entrusted to him. On 29-7-2005 he caused arrest of Nazam Hussain appellant, co-accused Fayyaz and Altaf Hussain (since acquitted). On 2-8-2005 appellant Nazim made disclosure and got recovered rifle 7 MM P-4 along with 10 live bullets P-5/1-10 from residential house of Muhammad Nawaz in village Rohaila, made the same into sealed parcel and took into possession vide recovery memo Exh.PB attested by the P.Ws. And prepared its site plan Exh.PB/1 and the appellant to Judicial Lock Up. On 5-8-2005 co- accused Fayyaz made-disclosure and got recovered rifle 7 MM P-6 and 8 live bullets P-7/1-8 made the same into sealed parcel and took into possession vide recovery memo Exh.PE attested by the P.Ws. And prepared its site plan Exh.PE/1. He recorded the statements of the P.Ws. Step-wise. He handed over the case property to the Moharrar of Police Station.
' Shehzad Ashraf Inspector (CW-1) deposed that on 1-8-2005 he was posted as in charge investigation, Police Station Begowala. He investigated the case and found appellant Muhammad Nazim, co-accused Muhammad Fiaz and Altaf Hussain as real culprits of the case whereas co- accused Muhammad Khalid was exonerated. Investigation culminated in preparing the report under section 173, Cr.P.C.
4. Learned trial Court after observing all the pre-trial codal formalities, indicted the appellant and his co-accused to which they did not plead guilty and claimed trial. Thereafter, the prosecution was directed to lead its evidence in order to substantiate the charge.
5. At the trial, prosecution, in order to prove its case, produced 13 witnesses in all, out of them 12 witnesses were examined as P.Ws. While one witness was examined as CW.
6. Dr. Shoukat Ali Bhatti, M.O. (P.W.7) deposed that on 20-6-2005 while posted at civil hospital he conducted the post mortem examination on the dead body of Muhammad Inayat deceased and observed infra:- ' INJURIES
(i) A firearm lacerated wound 3/4 x 3/4 cm, grazing wound on upper and inner aspect of left lower lip, close to mid line, D.N.P. Slight blackening present around the wound. Margins were inverted.
(ii) A firearm lacerated wound 2-1/2 x 1 cm. Oblique D,N.P. Margins everted on back and outer aspect of left side of neck, upper part.
' REMARKS ' In his opinion, the sole injury was the cause of death, causing damage to a spinal cord at C-2 level and damped to major neck vessels, leading to excessive external haemorrhage, which resulted in severe shock and eventually death of the deceased. The injury was ante-mortem, homicidal in nature and caused by firearm weapon.
' Probable time that elapsed between injury and death was within about half an hour and between death and post mortem, was within 12 to 16 hours.
' Exh.PF was the correct carbon copy of the post-mortem report of deceased and Ex. PF/1 and Exh.PF/2 were the diagrams showing the location of the injuries, the same bore his signatures.
7. Learned DDPP left off P.Ws. Namely Tariq Mehmood, Faisal Noman, Ansar Muhammad and Shehzad Ashraf Inspector/P.W. As being de-drop and thereafter he in his statement dated 29-6- 2006 tendered in evidence reports of Chemical Examiner Exh.PL and that of Forensic Science Laboratory Exh.PL/1 and also another report of Forensic Science Laboratory Exh.PM and closed the prosecution case.
8. Statement of the appellant under section 342, Cr.P.C. Was recorded wherein he gainsaid the charges and professed his innocence. He neither opted to make statement on oath as required under section 340(2), Cr.P.C. Nor opted to produce defence evidence. He while answering to the question "why this case against you and why the P.Ws. Have deposed against you?" stated as follows:- "I have been falsely involved in this case due to enmity. It is a blind murder. P.Ws. Are inter se related. They have deposed falsely and have also changed their version during investigation."
9. On the conclusion of trial, appellant was convicted and sentenced as mentioned op-cit whereas his co-accused namely Muhammad Fayyaz, Altaf Hussain and Muhammad Khalid were acquitted.
Hence, instant appeal.
10. In support of this appeal learned counsel for the appellant submits that as per prosecution version, the appellant has no motive to commit the murder of Muhammad Inayat as on the day of incident, before befalling of the incident at about 3-00 p.m., incident of quarrel/ exchange of abuses had taken place in between the complainant Khalid Hussain P.W.4 and Muhammad Fayyaz co-accused (since acquitted). Further argued that at the time of occurrence neither Muhammad Fayyaz nor Muhammad Nazim appellant made any fire shot at the complainant against whom the motive existed. Further submitted that no independent person has been produced by prosecution to establish the motive whereas prior to incident of motive, no enmity of any sort has been brought on record between the parties. In these circumstances, it is highly difficult to rely upon the motive part of the prosecution.
11. Learned counsel further submits that P.Ws. Were not present at the place of occurrence at the time of occurrence and in order to strengthen his arguments, he has referred to the statement of P.W.4 available at page No.38 of the paper book wherein it has been admitted in cross- examination that "F.I.R. Was got lodged "after our return from hospital to Police Station Begowala.
My statement was recorded in police station for the purpose of registration of the case when he reached the police station at about 11/12-00 p.m. On the day of occurrence" whereas according to narration of the F.I.R. Complainant submitted written application at Baghal Masharqi at about 7-00 p.m. Before Investigating Officer thereafter the F.I.R. Exh.PC/1 was chalked out at about 7-45 p.m., in this way, it has been concluded that F.I.R. Was recorded after due deliberations and consultations.- Another aspect has been highlighted that as per F.I.R. Statements of eye-witnesses under section 161 Cr.P.C. And in brief facts of inquest report Exh.PH, prosecution story is consistent that Muhammad Nazam appellant and Muhammad Fayyaz co-accused (since acquitted) both made firing upon complainant and complainant, Nazir Ahmad and Faisal Noman who made recumbentory position on the ground, remained unscathed and fire shot hit Muhammad Inayat deceased, father of the complainant who fell to the ground seriously injured whereas during the trial complainant and Nazir Ahmad P.W.5 have taken different stance that out of firing of both accused persons fire of Muhammad Nazam appellant hit the deceased which went through and through. This fact shows that firstly complainant party tried to involve both the real brothers and thereafter by eliminating the acquitted co-accused Muhammad Fayyaz, the appellant was nominated for causing injuries to the deceased. Further submits that this act of the backtracking of the complainant party uproots the case. Further submits that had the P.Ws. Been present at the spot, then this situation has occurred in this case might not have befallen. Further submits that learned trial Court has disbelieved the statements of the P.Ws. Vis-a-vis co-accused namely Muhammad Fayyaz, Altaf and Muhammad Khalid who have been acquitted by the learned trial Court and appeal against their acquittal has also been dismissed by this court.
12. Learned counsel further submits that infact occurrence took place during dark hours of night but the complainant patty has stretched it to daylight. Further submits that P.W.4 Khalid Hussain complainant is real son of Muhammad Inayat deceased whereas Nazir Ahmad has also been found related to the deceased as well as the complainant. No independent person has supported the prosecution version. Further submits that both the eyewitnesses have specifically been cross- examined regarding their stances when the case was set up and the stand taken by them before learned trial Court, in the cross-examination of both the P.Ws., it has been proved that both the P.Ws. Have improved upon their statements before learned trial Court :dishonestly and for the first time before learned trial Court after the sufficient period, therefore, such like improvements which have been found dishonest and were duly confronted with the previous statements of the P.Ws. Is required to be taken care of seriously and cannot be spared casually. Lastly, it has been submitted that even if statement of P.W.4 is admitted, then the same lacks independent corroboration from any other quarter. In the given circumstances, it is highly horrible to rely upon statement of single person.
13. So far as recovery of weapon of offence of the appellant is concerned,, it has been submitted that it is featherweight as - no positive report exists in this case except that of working order of the weapon, the same does not advance the prosecution case and has thus prayed for acceptance of appeal.
14.Learned DDPP assisted by learned counsel for complainant has submitted that F.I.R. Was lodged in a prompt way, motive cannot be taken into consideration always but it may be taken as relevant factor, during investigation it has transpired that Muhammad Nazam appellant alone caused injuries to the deceased whereas learned trial Court while applying principle of sifting the chaff from grain has rightly appreciated the prosecution evidence whereas the recovery of crime weapon also corroborates the prosecution case because doctor has explicitly opined that death of the deceased had occurred because of the fire-shot injuries. Lastly, it has been submitted that P.Ws. Have been searchingly cross-examination by the learned defence counsel but no material has been brought on record to dislodge the statement of the P.Ws. And has, therefore, prayed for dismissal of appeal and for confirmation of the murder reference sent by the learned trial Court.
15. We have heard learned counsel for parties at some length and have also gone through the record.
16. As per F.I.R. And statements of P.Ws. Recorded before court, on the day of incident before the woeful incident a quarrel had taken place in between the complainant and Muhammad Fayyaz co-accused (since acquitted). Even the question of motive asked through statements recorded under section 342, Cr.P.C. Was same that Muhammad Fayyaz acquitted accused had indulged in abusing the complainant. In these circumstances, it has been found crystal clear that no direct or indirect motive has been alleged, brought and proved by the prosecution against Muhammad Nazam appellant. So much so in the incident of motive, presence of appellant Nazam has not been asserted, therefore, prosecution has not been able to prove its motive against the appellant.
17. The occurrence befallen on 19-6-2005 at about 6.30 PM, the complainant made a written application before Investigation Officer at Bagal Masharqi at about 7-00 p.m., the same was converted to F.I.R. On the same day at about 7-45 p.m., in this way, the reflection through the time adjustment shows that F.I.R. Was lodged promptly whereas in the cross-examination of Khalid Hussain complainant P.W.4, it has been found available that the matter was reported to the police at about 11/12-00 p.m. After his return from hospital. Now the irresistible conclusion is drawn that F.I.R. Was not recorded at the place and time as narrated by the complainant and if time calculation is made, then safely it is inferred that F.I.R. Was lodged by the delay of reasonable time and in this way, possibility of deliberations and consultations cannot be ruled out.
18. So far as ocular account is concernment, P.W.4 Khalid Hussain is real son of the deceased whereas Nazir Ahmad P.W.5 is the uncle of the complainant. It has gone unchallenged that both the P.Ws. Are related with the deceased as well as complainant. Now another aspect to appreciate version of the P.Ws. Is that as per contents of F.I.R. Muhammad Nazam appellant and Fayyaz co- accused (since acquitted) made firing at the complainant party and the complainant, Nazir Ahmad P.W.5 and Faisal Noman (given up P.W.) laid on ground and unscathed whereas the fire shots hit Muhammad Inayat. Case of the complainant party remained consistent so far as F.I.R.
And statement of eyewitnesses recorded under section 161, Cr.P.C. Is concerned whereas before learned trial Court P.W.4 Khalid Hussain and P.W.5 Nazir Ahmad both have took their stances otherwise that firing was made by Nazam appellant and Muhammad Fayyaz co-accused (since acquitted) But the fire shot of Muhammad Nazam hit deceased on his neck and went through and through to his death. When P.W.5 Nazir Ahmad was questioned about this particular stance, then at page No,45 of paper took it has been found mentioned as infra:-- "I am 7th class pass. I cannot read my statement recorded even in Urdu. I have been studying in Govt. School. It is incorrect that I had not deposed before police that Fayyaz had also made firing at the deceased. Volunteered, that I had deposed as stated today but do not know as to whether the same stood incorporated in my statement or not (Confronted Exh.DB wherein it is not recorded that Fayyaz made firing at the time of occurrence). I had got recorded before the police during investigation that the fire made by Nazam hit the deceased and went through and through (Confronted with Exh.DB where not so recorded). The deceased had suffered only one fire. I had not stated before the police that fire shots made by Nazam and Fayyaz had hit the deceased.
Volunteered, the afore-said both the accused had fired at the deceased but fire of Nazam hit the deceased. After the occurrence, I had observed the dead body of the deceased".
' P.W.4 Khalid Hussain complainant has also improved upon his statement and pin-pointed that fire shot .Of Nazam Hussain appellant hit the deceased but his version in the F.I.R. As well as through cross-examination it has become manifested that he has changed his version before learned trial Court and this fact has been proved that appellant as well Muhammad Fayyaz co-accused (since acquitted) both made firing. Appeal against acquittal of Muhammad Fayyaz has been dismissed by this court. Now conclusion has safely been drawn that prosecution case has not been believed as to involvement of Muhammad Fayyaz despite the recovery of weapon of offence rifle 7 MM was effected from this accused and others since been acquitted by the learned trial Court as well as by this Court. Now in the field, only statement of P.W.4 remains, the same has been found uncorroborated by any independent evidence.
19. So far as recovery of 7 MM rifle allegedly effected on 2-8-2005 from the appellant is concerned, the same is insignificant because no positive report exists as no crime empty was taken into possession from the spot by the police whereas P.W.4 Khalid Hussain states that 7/8 crime empties were taken into possession by the police from the spot but Investigating Officer does not accept this version.
20. In these circumstances, the court has come to the conclusion that presence of both the eye- witnesses at the place of occurrence is highly doubtful. Their version has been found dishonestly improved, tainted one and is disbelieved. Thus, the prosecution has miserably failed to prove its case against the appellant beyond shadow of reasonable doubt. Hence, instant appeal is allowed.
Consequently, conviction and sentence imposed upon the appellant is set aside and he is acquitted of the charge by extending him benefit of doubt. He is in jail and is directed to be set at liberty, in a trice, if not required in any other case. Murder reference sent by the learned trial Court under section 374 is answered in the negative. The sentence of death of the appellant is not confirmed.
21. So far as Criminal Revision No.311 of 2007 filed by Nazir Ahmad petitioner against the respondent/appellant Nazim Ali for enhancement of quantum of compensation amount is concerned, as far the reasons mentioned above the respondent/appellant has been acquitted, therefore, the same has lost its relevance and is dismissed accordingly.