Ch. Mushtaq Ahmad, J.--Muhammad Ramzan, Rustam and Allah Ditta appellants were tried by learned Additional Sessions Judge, Layyah in case FIR No, 53 dated 04.03.2012 registered under Sections 302/324/337-A(i)/337-F(vi)/34, PPC at Police Station Saddar Layyah, District Layyah.
2. Learned Additional Sessions Judge, Layyah vide judgment dated 28.05.2013 convicted and sentenced the appellants as under: RUSTAM Convicted u/S. 337-A(i), PPC and sentenced to undergo one year R.I as Tazir with payment of Rs.
20,000/- as Daman. If recovered to be paid to the victim, in default to be dealt with u/S. 337-Y(2), PPC.
ALLAH DITTA Convicted u/S. 337-F(vi), PPC and sentenced to undergo three years R.I as Tazir with payment of Rs.
35,000/- as Daman. If recovered to be paid to the victim, in default to be treated u/S. 337-Y(2), PPC.
MUHAMMAD RAMZAN Convicted u/S. 302(b), PPC and sentenced to Death with fine of Rs. 3,00,000/- as compensation to the legal heirs of deceased in terms of Section 544-A, Cr.P.C. and in the event of default of payment of fine to undergo further simple imprisonment for 06 months S.I.
Benefit of Section 382(b), Cr.P.C. was given to them.
3. On receipt of guilty verdict they challenged, their conviction and sentence through titled appeal whereas state sought confirmation of death sentence awarded to Muhammad Ramzan. Mushtaq Ahmad complainant/appellant filed appeal against acquittal of respondent/ accused Alam Sher and criminal revision for enhancement of sentence awarded to appellants Rustam and Allah Ditta which was ordered to be heard along with these matters. We propose to dispose of all the above matters through this judgment.
4. FIR (Ex.P.A/1) was registered on the statement of Mushtaq Ahmad complainant who alleged that his son Izhar-ul-Haq was running a grocery shop at Maqsood Chowk who told him that he had been invited by Alam Sher Chatri accused on feast (Sohbat) who alongwith Ejaz Ahmad (injured PW-9) left to join "Sohbat"/feast/dinner arranged by Alam Sher accused. At 01.30 a.m. (night), he was informed by Khan Muhammad Pathan through telephone that his son had been murdered, whereas Ejaz Ahmad (PW9) was lying in injured condition near Peer Wala Hospital. He alongwith Bashir Ahmad reached at the spot and saw dead body of his son lzhar-ul-Haq (deceased) on the road side of Peer Wala Hospital and Ejaz Ahmad (PW-9) was lying there in injured condition.
Meanwhile, Ghulam Fareed (PW-11) and Muhammad Ramzan (since given up PW) also reached at the spot. Ejaz Ahmad injured (PW-9) disclosed that he and Izhar-ul-Haq (deceased) when reached near the hospital, Muhammad Ramzan alongwith four others raised lalhara that he be taught a lesson for developing illicit relations with his sister Nazeer Mai. Muhammad Ramzan (appellant) armed with pistol and Alam Sher Chatri accused armed with sota ran towards Izhar-ul-Haq (deceased) who did try to flee but Muhammad Ramzan (appellant) fired 3/4 pistol shots hitting the deceased Izhar-ul-Haq who collapsed. Alam Sher Chatri accused inflicted sota blows on his person. Rustam (appellant) inflicted Bahin of cot on his head. Allah Ditta (appellant) inflicted sota blow causing fracture of his arm.
5. Investigation was conducted by (PW-13), Muhammad Anwar S.I and (PW-14), Shahid Hussain S.I who after completion of investigation submitted report under Section 173, Cr.P.C. Accused were charged on 23.05.2012 but they denied the charge and claimed trial. Prosecution in order to prove charge produced 14 witnesses. (PW-12) Dr. Muhammad Aslam SMO provided medical report of Izharul-Haq (deceased). After tendering in evidence report of Chemical Examiner (Ex.P.Q & Ex.P.R), report of Punjab Forensic Science Agency Ex.P.S and report of Serologist (Ex.P.T), prosecution closed its evidence after giving up Bashir Ahmad, Muhammad Ramzan, Khan Muhammad PWs being won over; whereas Aziz Ahmad and Muhammad Moosa as being unnecessary.
6. Thereafter statements of accused were recorded under Section 342, Cr.P.C.
7. Learned trial Court after hearing arguments, recorded conviction and awarded sentence to the appellants as mentioned in the opening paragraph of this judgment, whereas co-accused Alam Sher was acquitted from the charge.
8. Learned counsel for the appellants submits that ocular account stands contradicted by medical evidence; that post-mortem examination was admittedly got conducted on the next day; that the instant case was registered after due consultation and deliberation by falsely implicating the accused/appellants; that MLC of Ijaz Ahmad (PW-9) was fake and that learned trial Court has not correctly appreciated the evidence, hence the appellants are entitled to acquittal.
9. On the other hand, learned Additional Prosecutor General assisted by learned counsel for the complainant argued that deceased Izhar-ul-Haq was done to death on suspicion of having illicit relations with the sister of Alam Sher accused; that medical evidence fully supported and corroborated the ocular account; that learned trial Court convicted and sentenced the appellant Muhammad Ramzan to death, whereas awarded lesser punishment to appellants Rustam and Allah Ditta and acquitted Alam Sher accused; that sentence awarded to appellants Rustam and Allah Ditta should be enhanced and accused Alam Sher be convicted and sentenced in accordance with law.
10. Arguments heard. Record perused.
11. This case relates to an occurrence which took place at odd hours of night (at 1.30 a.m.) on 4.3.2012 in Chah Peer Wala Mauza Bhand Nashaib falling within territorial jurisdiction of Police Station Saddar, District Layyah. Prosecution case is based on ocular account furnished by PW-9 Ijaz Ahmed and PW-10 Mushtaq Ahmed who was also architect of First Information Report. However, complainant was not the eye-witness of occurrence as he had reached at the place of incident on telephonic information conveyed by one Khan Muhammad Pathan and this fact is very much reflected from Tard Bayan' (Exh.PA) recorded by Shahid Hussain, S.I./PW-14 on 4.3.2012. As per prosecution version PW-9 at the relevant time was with the deceased. During occurrence he also sustained blunt weapon injuries on his skull and arm at the hands of Rustam and Allah Ditta, appellants. So, the entire prosecution case is based on the statement of PW-9 as he was the sole eye-witness of main incident.
12. Certainly, presence of injured witness cannot be doubted at the place of incident but the question is as to whether he was truthful witness or otherwise, because mere injuries on the person of a witness would not stamp him as truthful witness. While appearing before the Court PW-9 improved his statement when he was confronted with his previous statement got recorded u/S. 161, Cr.P.C. qua salient features of the incident. In cross-examination PW-9 stated he had cell No, 0343- 4218781 with him at the time of occurrence. Further stated that-- "I sustained two injuries on this occurrence one at the head and other on left arm. I was in senses at that time and I remained in senses throughout till my medical examination. My clothes were not stained with blood. Volunteered same were stained with soil."
It is amazing to note that a person who himself admitted that after receiving blunt weapon injuries he remained in senses, then, why he did not inform the complainant about the occurrence from his cell phone who came to know about the incident through Khan Muhammad Pathan (not produced). As per record incident took place at 1.30 a.m. (night) whereas PW-9 was medically examined at 11.00 a.m. on 4.3.2012 vide MLC (Exh.PL) issued by Dr. Awais Fareed. Record shows that PW-9 did not record his statement to the police at the spot rather it was recorded in hospital after his medical examination. First Investigating Officer in his cross-examination stated so while appearing before the Court as PW-14. In cross-examination I.O. stated that he had not declared accused persons guilty in his investigation. Likewise duration of injuries sustained by PW-9 did not coincide with the timing of occurrence. Moreover Muhammad Jamal, Constable-515 who, as per prosecution, brought PW-9 for examination to Peerwala Hospital, Layyah did not appear before the Court to support prosecution version. From withholding of material witnesses (Khan Muhammad Pathan and Muhammad Jamal, 515-C) presumption under Article 129(g) of Qanun-e-Shahadat Order can fairly be drawn that they were not ready to support the prosecution. PW-9 in cross- examination, as mentioned above, stated that his clothes were not stained with blood after receiving injuries but his MLC (Exh.PL) shows that at the time of examination doctor noted multiple blood spots on his Shalwar and Kameez. The post-mortem report of deceased revealed that fire shots were made from close range as Dr. Awais Fareed who conducted autopsy on dead body of deceased noted blackening around the wounds. It is not believable that appellants after killing the deceased with fire-arm weapon, would have spared PW-9 to become a witness against them. On prosecution own showing it was a night time occurrence with no source of light except moon light.
As per site-plan (Exh.PB) PW-9 witnessed the occurrence from a distance of 27 Karams. In that situation from any stretch of imagination or methodology a human being cannot identify the culprits from such a distance. Besides this, particulars qua name, age and caste of PW-9 contained in MLC (Exh.PL) as well as in his statement recorded before the Court are altogether different from each other. In presence of different particulars, it cannot be said with certainty that PW-9 Ijaz Ahmed was the same person who witnessed the incident. For an injured witness whose presence at the occurrence is not disputed it can safely be concluded that he had witnessed the incident. However, in this case we have noted more than one circumstances creating doubt qua presence of PW-9 at the spot.
13. It is settled proposition of law that at first Court has to see whether prosecution evidence is reliable and sufficient to record conviction. If it is concluded that prosecution evidence is trustworthy 5 then, version of defence, if any, is to be considered in juxta position with prosecution version to see as to which of the two is correct and more reliable. If prosecution evidence itself is doubtful and unreliable, in that eventuality plea taken by the accused regarding different mode of occurrence will not be of much relevance.
14. So far as other pieces of evidence like, blood stained Sota (Exh.PE), Baheen (Exh.PC), etc. those do not advance the prosecution case in any manner. During investigation .30 bore Pistol (P1) was recovered from Muhammad Ramzan, appellant but in absence of any crime empty, the forensic report of Ballistic Expert is of no avail to prosecution case.
15. From the overall analysis of prosecution evidence, it is abundantly clear that occurrence did not take place in the manner as alleged by the prosecution.
16. On re-appraisal of evidence as discussed above, we are of the view that charge against appellants in this case was not proved by the prosecution beyond reasonable doubt. The findings of conviction recorded by learned trial Court are not in line with the facts established on record.
Consequently, Criminal Appeal No, 253 of 2013 filed by appellants Muhammad Ramzan, Rustam and Allah Ditta is allowed. The conviction and sentences of the appellants vide judgment dated 28.5.2013 passed by learned Additional Sessions Judge, Layyah are set aside. They are acquitted of the charge. Appellants Rustam and Allah Ditta are on bail. Their bail bonds are discharged from the liability. Appellant Muhammad Ramzan shall be released from jail forthwith, if not required in any other case.
17.As a natural corollary to the above, Murder Reference No, 37 of 2013 for confirmation of death sentence awarded to convict Muhammad Ramzan is answered in Negative.
18.Likewise Criminal Appeal No, 286 of 2013 filed by Mushtaq Ahmad, appellant/complainant against acquittal of respondent Alam Sher and Criminal Revision No, 219 of 2013 for enhancement of sentence of respondents Rustam and Allah Ditta are dismissed in the light of findings given above.