The Appellant has impugned judgment dated 15.12.2011 passed by the learned 1st Additional Sessions Judge, Ghotki. In terms of the said judgment the appellant was convicted and sentenced as follows: (a)Imprisonment for life and Rs, 100,000 fine (RI. for six months more in default) for an offence u/S. 302, PPC.
(b)Payment of Rs, 200,000 'as compensation to the heirs of the deceased (R.I. For six months more in default) u/S. 344-A, Cr.P.C. Through this judgment I will dispose of the captioned appeal.
1. Brief facts of the case as narrated in the F.I.R are that on 19.4.2010 at 8:30 a.m. the appellant along with three others committed the murder of Ali Nawaz by inflicting knife injuries to him over a dispute on money. Further facts are narrated in the body of the judgment and hence not repeated here. A FIR bearing number 42/2010 u/S. 302 and 114, PPC was registered against, inter alia, the appellant on 19.4.2010. The appellant was arrested on 20.4.2010.
2. The charge against the appellant was framed on 21.10.2010 to which he claimed not guilty and claimed trial.
3. In order to prove its case, the prosecution examined nine witnesses. PW-1 Ali Muhammad was the complainant. PW-2 Ali Murad was an eye-witness. PW-3 Dr. Moula Bux was the doctor who performed the post-mortem. PW-4 Mohammad Moosa was a witness to all the memos that the police made. PW-5 Abdul Waheed way the tapedar who made the sketch of the place of incident. pw-6, Muhammad Yousuf was the arresting officer and the author of the memo. of arrest and recovery. PW-7 Abdul Qadir was the police officer who handed over the dead body to the incentives of the deceased. PW-S Azizullah was. the Investigating Officer and the author of the memo. of injuries, seizure of blood-stained clothes and the one who blood-stained earth. PW-19 Muhammad Baksh was the police officer who wrote the FIR.
4. The Appellant recorded his statement, u/S; 342 on 18.7.2011 and then again his statement on oath u/S 340 (2), Cr.P.C. on 27.7.2011. He deposed that the sister of the complainant Jannat was engaged to him and it is a matrimonial dispute that led to this false case being filed against him. The details he gave are a part of the record and thus not reproduced for the sake of brevity.
5. On 15.12.2011 the judgment impugned in these proceedings was announced.
6. I have heard the learned advocate for the appellant as well as the learned APG. The complainant and his counsel remained absent. My observations are as follows.
7. Events as narrated by the complainant in his testimony are as follows:-
(i) He, along with his brothers, namely, Ali Gohar, All Murad and Ali Nawaz left their village together on foot after having tea at their home at 5:30 a.m. on 19-4-2010. The place of incident was one kilometer away and Ali Nawaz had a vegetable stall there. They all reached the place of incident at 6:00 a.m.
(ii)At 8:30 a.m., the appellant along with three others, namely, Abdul Sattar, Abdul Jabbar and one unidentified person arrived at the place of incident on two motorcycles. Jabbar and the unidentified man carried Kalashnikovs while the Appellant and Sattar Carried knives.
(iii)Upon the instigation of Jabbar, the appellant and Sattar stabbed/cut Ali Nawaz with knives. In the FIR, the complainant stated that Ali Nawaz was hit on the chest with a knife by the appellant whereas Sattar stabbed him near the left armpit. A total of three injuries were seen by the complainant on the body of Ali Nawaz; one on the right side of the chest, one on the left side of the chest and one near the left armpit. In his testimony in Court, the complainant changed his statement regarding the seat of injuries and deposed that the appellant "inflicted knife injury to deceased on right side of abdomen, accused Abdul Sattar inflicted knife injuries on left side of stomach" and then the appellant cut the deceased again below the chest. Ali Nawaz died on the spot and the assailants left the scene on their motorcycles chanting slogans.
(iv)The complainant's companion Muhammad Moosa hired a vehicle after thirty to forty five minutes of remaining on the scene with the dead body. All three brothers along with the deceased and two other villagers boarded the vehicle and brought the deceased to the hospital in Ghotki.
They reached the hospital at 9:30 a.m.
(v) The doctor on duty, namely, Dr. Maula Bux Waso started the post-mortem. The complainant informed the police over the phone of the incident and consequently at 10:00 p.m. (perhaps a mistake in typing and should have been 10:00 a.m. as the complainant deposed that the police had arrived while the post-mortem was ongoing) a police man, namely, Waseem Subedar, arrived at the hospital.
(vi) The complainant party took the dead body of Ali Nawaz from the hospital between 10:00 a.m. and 11:00 a.m. for his last rites and burial. After the burial, the complainant arrived at the police station at 7:30 p.m. on 19.4.2010 and lodged the FIR of the murder.
(vii) On 20.4.2010, the police came and inspected the place of incident.
8. PW-2 Ali Murad is a brother of the deceased and the complainant and was said to be an eye- witness to the occurrence. In his examination-in-chief he deposes more or less what his brother PW1 did. In his cross-examination however, some material contradictions with the testimony of PW-1 appear.
9. Ali Murad deposed that all the brothers had not left their house together. According to him, the deceased had left the house to go towards his vegetable stall alone at 5:00 a.m. without having tea with the rest of the brothers. The rest of the brothers left their house an hour later at about 6:00 a.m. According to this witness, they stayed at the place of incident for not thirty to forty five minutes as deposed by PW-1 but for ten to fifteen minutes before taking off to the hospital. Further, this witness PW-2 does not mention the two unnamed villagers who PW-1 said also accompanied the brothers with the dead body to the hospital. This witness also deposed that two to three policemen came to the hospital at about 12:00 p.m. (contrary to PW-l's deposition that one police man came at 10:00 a.m.), Muhammad Moosa deposed that the complainant brought him to the hospital whereas PW-2 deposed that Moosa was driving the vehicle in which the deceased was brought to the hospital. Complainant deposed that his statement and that of his brothers was recorded at the hospital by the police the same day. To the contrary, PW-2 deposed that his statement was recorded the next day by the police at the police station.
10.Contrary to what the complainant and his brother Ali Murad deposed, PW-3 Dr. Moula Bux deposed that the dead body was brought to the hospital by PC Abdul Qadir Lakhan at 11:00 am.
That neither of the brothers, but two other persons, namely Nazir and Muhammad Shareef identified the body and that he conducted the post-mortem from 11:10 a.m. to 12:55 p.m. It is pertinent to reiterate that the complainant had deposed that the post-mortem had ended and that they had taken the body away between 10:00 -a.m. and 11:00 a.m. According to the doctor's testimony the body had not even been brought to the hospital till 11:00 a.m. The complainant also deposed that the doctor conducted the post-mortem in thirty minutes whereas Dr. Moula Box records that the post-mortem took one hour and forty five minutes. It is also odd that in spite of two brothers of the deceased being on the spot why was it felt necessary for two other people to identify the body. Those two witnesses were not examined in trial. What is also odd is that according to the complainant the FIR was registered in the evening time on 19-4-2010 after the burial of the deceased; however, the post-mortem report issued by the doctor states the crime number of the present crime. The doctor confirms the same and deposed that he had received the body via the police under cover of a letter of the Investigating Officer.
11.The complainant deposed that PW-4 Muhammad Moosa was an eye-witness to the whole occurrence. Moosa however in his testimony does not ,depose regarding the incident at all. All he deposes in his examination-in-chief is that he is the witness to the memos of inspection of injuries, the danishnama, site inspection, seizure of the blood-stained clothes as well as the memo. of arrest and recovery of the appellant. In the presence of two brothers of the deceased and two other persons who identified the body. Muhammad Moosa's involvement as witness in all the memos made in the case casts a suspicious light' on the entire prosecution case.
12.An observation on the memo. of examination of dead body to which PW-4 Muhammad Moosa is witness. The body is said to have been examined at 10:00 a m. By ASI Azizullah (when according to the complaint the postmortem was ongoing and according to the doctor the body had not even reached the hospital). This memo. also records that three injuries are found on the dead body - on the left side of the chest, the right side of the chest, and near the left armpit. The memo. is in complete conflict to the medical evidence as well as the testimony of the eye-witnesses. Similarly, the memo. of blood-stained clothes of the deceased to which Moose is also a witness records that the dead body wore a brown slodwar and a brown kameez. The post-mortem report records-that the dead body wore a black shalwar and a brown kameez.
13.PW-6 police constable Abdul Qadir gives another side to the story. As mentioned above, the complainant deposed that he was at the hospital when he informed the police of the murder on the telephone after which the police arrived there at 10:00 a.m. PW-6 Abdul Qadir deposed that it was about 1:00 p.m. when the complainant arrived himself at the police station to report the incident; that he along with the complainant then proceeded towards the village of the complainant from where the dead body of the deceased was brought by him to the hospital in.
Ghotki. Contrary to the deposition of all other witnesses, Abdul Qadir deposed that the body was brought to the hospital at 2:00 p.m.
14.PW-7 A.S I. Azizullah's deposition is in line with that of PW-6 Abdul Qadir but in complete contradiction to the version given by the eye-witnesses. According to him, he was informed that the dead body of Ali Nawaz was lying in his house when he was informed of the death. This witness in his cross-examination tows a different line. He deposes that the body was in the hospital when he got to know about the death. This witness could not produce departure and arrival entries for his visits from and to the hospital. He could also not produce departure and arrival entries for the ostensible visits to author the various memos he wrote.
15. The memo. of arrest and recovery records that when the appellant was arrested he had the blood-stained knife with him in his shalwar. While it is surprising that a person who had murdered another the previous day would be carrying the knife together with blood-stains on it, even if it were true, it was more the reason for the police to match the blood on the knife with the blood allegedly collected from the spot. This was not done.
15A. When the version advanced by the appellant is put in juxtaposition with the story of the prosecution, it is the defence version that inspires more confidence and appears truthful. The prosecution witnesses have not corroborated each other. It appears that the witnesses were not present on the scene as claimed by them.
16. In my view the, prosecution failed to prove its case beyond reasonable doubt. The eye- witnesses and some of the police witnesses have been obviously dishonest and the whole prosecution appears to be tainted with malice. The unfortunate murder of a person appears to have been falsely used for the purposes of retaliation in an ongoing enmity between the parties.
For the observations made above, the appeal is allowed and the appellant acquitted of the charge(s). He may be released forthwith if not required in any other case.