' Khizar Hayat, J.--Muhammad Ibrahim son of Piran Ditta caste Drigh resident of Samma Satta, Tehsil and District Bahawalpur has been tried and convicted by learned Sessions Judge, Bahawalpur under section 302, P.P.C. (two counts) for having committed double murder of Allah Wasaya and his son Allah Bakhsh on the night between 3rd/4th july, 1979 and sentenced him to death and fine of Rs, 2,000 in default of payment of fine to undergo further 3 months' R.I. It was further directed to pay compensation Rs, 2,000 each to the heirs of Allah Wasaya deceased as well as to the heirs of Allah Bakhsh deceased in default whereof to undergo 3 months'. R.I. Each.
2. The convict has filed appeal (Criminal Appeal No, (2/80/BWP) challenging both his conviction and sentence. The learned trial Court has also made reference to this Court under section 374, Cr.P.C. For confirmation of the death sentence passed against the appellant. This judgment shall dispose of appeal as well as the reference.
3. The incident took place on the night between 3rd/4th july, 1979 in the house of Allah Ditta complainant situated in village Januwala at a distance of 4 miles from Police Station Naushehra Jadid, District Bahawalpur which was reported to the police by P.W.2, Allah Ditta son of Allah Wasaya deceased and brother of Allah Bakhsh deceased at 4-00 a.m. On 4th July, 1979 through F.I.R. Exh. P.L. Recorded by Bashir Ahmad A.S.I. (not produced).
4. The prosecution case as disclosed in F.I.R. Exh. P.L. Is that Shams-ud-Din brother of Ibrahim appellant was married to Mst. Ghulam Jannat (P.W.14), sister of Allah Ditta complainant and in exchange Mst. Shammo sister of the appellant was married to Allah Bakhsh (deceased) brother of the complainant. Six months before the occurrence Mst. Ghulam Jannat complained to her father Allah Wasaya that the appellant had made amorous advances towards her, who in turn complained to Piran Ditta father of the appellant, whereupon Piran Ditta turned the appellant out of his house. About a fortnight before the occurrence, Mst. Ghulam Jannat came to village Januwala to meet her parents and Mst. Shammo, sister of the appellant went to see her parents in Samma Satta.
5. On the night falling between 2nd/3rd July, 1979 at 10-00 p.m. Allah Ditta complainant was irrigating his fields, when Ibrahim appellant came there and started pleading his innocence regarding the allegation of teasing Mst. Ghulam Jannat by him. While discussing the matter both Allah Ditta complainant and Ibrahim appellant came to the former's house where Allah Bakhsh and Allah Wasaya both admonished him and stopped him, from visiting their house in future. At about 4-00 a.m. The appellant while leaving the house of the complainant said that he had come there to beg pardon and also to prove his innocence but they have dishonoured him, and so, he threatened them that he shall avenge the insult. On the following night (night of occurrence) Allah Ditta complainant and his other family members including Allah Wasaya his father, Mst. Faizan, his mother and Mst. Ghulam Jannat and Mst. Fazlan his sisters were sleeping in the courtyard, when at mid-night Allah Ditta complainant woke up on hearing report of f:re. He flashed his torch and in its light saw Ibrahim appellant with revolver in his hand firing at his father who was asleep on a cot nearby. Allah Wasaya got up and fell down at a little distance. Allah Bakhsh brother of the complainant also woke up hearing report of fire who was at that time sleeping on the back side of the Kotha of his father. He too was fired at by Ibrahim appellant. Allah Bakhsh ran to catch hold of him but the appellant pumped two more bullets in his chest, as a result he fell down. The occurrence was witnessed by Mst. Faizan, Mst. Fazlan and Mst. Chulam Jannat besides Allah Ditta complainant. Ibrahim appellant while leaving the scene of offence declared that he had avenged the insult inflicted on him a day earlier. Leaving the dead bodies under the care of his neighbours Allah Ditta went to Police Station Naushera Jadid and lodged report Exh. P.L. Having recorded F.I.R.
A.S.!. Bashir Ahmad left for the scene of offence. Reaching there he collected the blood-stained earth, prepared injury statement Exh. P.N. And inquest report Exh. P.O. Of Allah Wasaya deceased and also injury statement Exh. P.Q. And inquest report Exh. P.R. Of Allah Bakhsh deceased and sent both the dead bodies for post-mortem examination under the escort of Fayyaz Ahmad F.C. (P.W.3).
He collected blood-stained earth separately from near the dead bodies of Allah Wasaya and Allah Bakhsh. He secured torch produced by Allah Ditta under memo. Exh. P.G. He also got prepared site- plan from Nazir Ahmad Draftsman and gave thereon his notes in red ink. The case was investigated by Saeed Ahmad Khan S.I. (P.W.6) and Nazir Ahmad S.H.O. (P.W.5). As Muhammad Ibrahim appellant could not be arrested, therefore, twin-bailable warrants of arrest were issued against him and entrusted to Ghulam Rasul F.C. (P.W.11) for service, who searched for him in Samma Satta, District Bahawalpur but could not find him. He made report Exh. P.J/1 on the back side of the said warrants. Thereafter, the appellant was declared proclaimed offender. At last he was arrested on 29th February, 1980 by Nazir Ahmad S.H.O., Police Station Bahawalpur. Muhammad Ali A.S.I. (P.W.7) obtained his custody from the District Jail Bahawalpur on 19th March, 1980.
Muhammad Nawaz S.H.O. (P.W.10) interrogated him in the presence of the witnesses. The appellant got recovered revolver (P-8) and 4 bullets P.9/1-4 from the Bhana of his house in Samma Satta on 28th March, 1980, which was seized under memo. Exh. P.M. Attested by Muhammad Akram (P.W.8) and others.
6. At the trial the prosecution examined 10 witnesses in support of its case and relied on the testimony of two eye-witnesses, namely, Allah Ditta (P.W.12) and Mst. Ghulam Jannat (P.W.14), who also deposed about the motive; recovery of revolver (P-8) deposed to by Muhammad Nawaz S.H.O.
(P.W.10); and the evidence of absconsion and arrest of the appellant sought to be proved through Ghulam Rasul F.C. (P.W.11) and Nazir Ahmad S.H.O. (P.W.5) besides the medical evidence provided by Dr. Ahmad Nawaz Bhatti (P.W.1).
7. Dr. Ahmad Nawaz Bhatti (P.W.1) Medical Officer Ahmadpur East conducted autopsy on the dead bodies of both the deceased in the afternoon of 14th July, 1979. He found one entrance wound on the dead body of Allah Wasaya and 3 entrance wounds on the dead body of Allah Bakhsh, caused with a firearm which were in the opinion of the doctor sufficient in the ordinary course of nature to cause their death. He also noted charring around the circular wounds of entrance.
8. The appellant when examined under section 342, Cr.P.C. Denied the circumstances appearing against him and professed innocence. He examined his father Piran Ditta as (D.W.1) in his defence, who stated that about 6/7 months before the occurrence the appellant had left his house and started living at Bahawalnagar. He also stated that he got published an Aak-Nama in the daily "Mashriq" against this appellant.
9. Learned trial Court believing the prosecution case convicted and sentenced the appellant as indicated in paragraph 1 of this judgment.
10. Learned counsel appearing on behalf of the appellant inter alia argued that no reliance could be placed on the eye-witnesses for being partisan and also family members of the deceased; that it was a night occurrence and the indentification of the appellant in torch light was not possible; that the evidence of absconsion of the appellant has been illegally used against the appellant for he was only searched in Samma Satta, whereas he was living in Bahawalnagar months before occurrence. He further argued that the appellant did not have fair trial because the prosecution withheld two most important witnesses, namely, Nazir Ahmad Draftsman and Investigator Bashir Ahmad A.S.I. This A.S.I. Had registered the case, conducted the initial investigation on the spot, held inquest and also recorded statements of the eye-witnesses. Nazir Ahmad, Draftsman prepared the site plan Exh. P.S. Showing the position of the assailant, victims and the eye-witnesses. On the other hand learned counsel for the State submitted that it was a foolproof case against the appellant, supported by the evidence of most natural witnesses like the inmates of the house where the occurrence had taken place. He further submitted that the fact of absconsion of the appellant can be legally considered as a circumstance against the appellant as held in various judgments of the Superior Courts. Replying to the objections of the learned counsel for the appellant, learned State counsel submitted that because Bashir Ahmad A.S.I. Had gone to Fort Sandeman according to the report of Ghulam Yasin P.W.13, therefore, his attendance could not be procured without unnecessary amount of delay and expenses, therefore, the learned trial Court rightly allowed the production of secondary evidence, and consequently supplementary statement of Habib Ullah Head Constable (P.W.9) was recorded who proved all the documents namely F.I.R. (Exh. P.L), injury statements (Exhs. P.N. And P.O.) inquest reports (Exhs. P.O. And P.R.) of the two deceased and recovery memos., Exh. P.E., Exh. P.F. And Exh. P.G.) and also the notes on siteplan (Exh. P.S. And Exh.
P.S. /1) to be in the handwriting of Bashir Ahmad A.S.I. And bore his signatures whom he had been seeing writing and signing. In short he vehemently supported the impugned judgment.
11. We have carefully considered the submissions of both the learned counsel and also perused the record.
12. We may express at the outset that we are convinced in our minds that due to non-production of A.S.I. Bashir Ahmad and Nazir Ahmad Draftsman immense prejudice has been caused to the appellant and the appeal must succeed on this short ground. Therefore, we shall refrain from commenting upon the remaining argument lest it should prejudice the case of any party.
13. We have noted that no serious attempt to procure the attendance of the aforesaid two witnesses had been made. There is nothing on record indicating as to why Nazir Ahmad Draftsman had not been examined. Summons of retired A.S.!. Bashir Ahmad Exh. P.M. Were entrusted to Ghulam Yasin F.C. (P.W. 13) for service. On the back of this summons, Ghulam Yasin reported on 18th August, 1980 that Bashir Ahmad had gone to Fort Sandeman for the last 2 months for passing summer season there. This report clearly disclosed his present address in Pakistan and also indicated that the witness was expected to be back home towards the end of summer season, presumably by the middle of September. Learned Court could have easily got him served at Fort Sandeman for any date or postponed the hearing for a few weeks till return of the witness from hills.
14. Learned counsel has argued that the eye-witnesses' claim is that they saw the appellant firing at Allah Bakhsh while standing at the gate of their Haveli, but it was not at all possible because boundary wall of house of the deceased intervened the two places. This is a very important point for decision of the case but we are constrained to remark that we are unable to get any assistance from the record on this point because the two witnesses whose testimony could clarify the position were Nazir Ahmad Draftsman and Bashir Ahmad, Investigating Officer, but they have not entered the witness-box. It goes without saying that Investigating Officer in a murder case is generally regarded as the most important witness both from the prosecution as well as defence point of view and, therefore, failure of prosecution to examine him results in causing serious prejudice to the accused facing capital charge. We are fortified by the dictum laid down in 5 D L R 14 and approved by a Division Bench in A.K.M. Reza and others v. State PLD 1958 Dacca 111. The relevant portion is reproduced below for facility of reference:-- "failure by the prosecution to examine the Investigating Officer deprived the defence of their very valuable right of opportunity of shaking the credit of the prosecution witnesses by bringing out the contradictions between their statements to the police during investigation and their evidence in Court."
15. We respectfully adopt the view expressed in the above-quoted authority and conclude that due to non-examination of Nazir Ahmad and Bashir Ahmad (retired A.S.I), the case of the appellant has been seriously prejudiced, therefore, we allow this appeal, set aside conviction and sentence passed against the appellant and remand the case to the Sessions Judge, Bahawalpur who shall record the evidence of the aforementioned two witnesses and proceed further with the trial in accordance with law.