SARDAR MUHAMMAD DOGAR, J: - Muhammad Siddique, aged 22 years and Muhammad Saleem aged 25 years, were tried by Additional Sessions Judge; Gujranwala, under section 302/34, P.P.C., for having murdered Muhammad Rafiq, at 11 p.m. On 11-8-1983, in front of his house in Mumtaz Colony, at a distance of one and a half miles from Police Station Sadar Gujranwala and under section 392/34, P.P.C., for having committed robbery on the date and at the same time.
The learned trial Judge convicted both of them under section 302/34, P.P.C. Vide judgment, dated 17-11-1984 and sentenced both of them to undergo imprisonment for life, plus to pay a fine of Rs.5,000 in default whereof to undergo further R.I. For two years each. He also convicted them under section 392/34, P.P.C. And sentenced each of them to undergo R.I. For ten years, plus to pay a fine of Rs.2,000 each; in default whereof to undergo R.I. For one year each.
2. The convicts have filed appeal. Criminal Revision No. 621 of 1986 has been filed by Nazir Ahmad complainant, praying for enhancement of sentences of the accused under section 302/34, P.P.C.
The revision petition was admitted and notices for enhancement of their sentences had been issued. As both the matters arise from the same judgment, they are being disposed of by one judgment.
3. F.I.R. (Exh.P.E./1) was registered at Police Station Sadar, Gujranwala on 12-8-1983 at 7 a.m. By Muhammad Azam, M.H.C. (P.W.9), on receipt of statement (Exh.P.E.) of Nazir Ahmad (P.W.4), recorded by Muhammad Ismail, A.S.I. (P.W.7), on the same day at 6-30 a.m., on G.T. Road.
According to F.I.R., Muhammad Rafiq deceased who was dealing in scrap had gone to Lahore to collect a sum of Rs.15,000 from his customers. The complainant alongwith Munir Ahmad (P.W.5) and Khalil Ahmad (P.W.6) were sleeping in the upper storey of deceased's house. The deceased' returned at 11 p.m. After getting down from the bus at Bus-Stop Kangniwala. On reaching home, he started opening the door of his Baithak (Drawing Room). The complainant and the P.Ws. Woke up on hearing noise of the opening of the door. When the deceased was about to step in the Baithak, the appellants armed with Chhurisaccompanied by an unknown person, empty-handed, appeared there. The unidentified culprit caught the deceased from both the arms and pulled him out. Muhammad Saleem gave him seven blows with his Chhuri, on the cheek, face, near the eye, neck, abdomen, left flank and left temple, while Muhammad Siddique also gave him seven injuries with his Chhuri on the left wrist, left thigh, left ankle, left shoulder, back and backside of the head.
The complainant alongwith the witnesses came down running. The assailants ran away.
Muhammad Rafiq died at the spot.
For motive for the occurrence, it is mentioned therein that Muhammad Saleem knew that the deceased brings money on every Thursday evening from Lahore and that the deceased was murdered for decoying the money. The complainant also stated that the culprits had taken away driving licence of the deceased, Registration Book of the motor-cycle, his identity card, identity card of Mst. Kalsoom Akhtar, his wife and his Salooka.
4. Muhammad Ismail, A.S.I., after recording statement (Exh.P.E.) sent the same for registration of the case to the police station and deputed Mahmood Ahmad, A.S.I., (P.W.10) to go to the spot and himself proceeded to arrest the accused.
5. Mahmood Ahmad, A.S.I. (P.W.10), on reaching the spot, despatched the dead body for post- mortem examination, after preparing the injury statement (Exh.P.G.) and inquest report (Exh.P.H.).
He also took into possession blood--stained earth from the spot. Last worn clothes, i.e. Blood- stained Lachha (P.1) (loin-cloth) produced by Muhammad A.I Constable (P.W.12) on 13-8-1983, after post-mortem examination, was taken into possession vide memo. Exh.P.O.
6. The appellants were arrested by Malik Sher Bakhsh, S.H.O. (P.W.13) on 30-8-1983. Muhammad Saleem appellant on 5-4-1983, led to the recovery of Chhuri (P.7), which was taken into possession vide memo. Exh.P.D. He also got .Recovered identity card (P.2) of the deceased, identity card (P.3) of Mst. Kalsoom, widow of the deceased, registration took (P.4), driving licence (P.5) and a sum of Rs.611 (P.6/1-611). All these articles were found enclosed in a plastic envelope. These articles were taken into possession vide memo. Exh.P.G.
7. Statements of 13 P.Ws. Were recorded at the trial.
Dr. Najamul Hassan Kazmi, who had performed autopsy on the body of the deceased, at 9-30 a.m.
On 13-8-1983 appeared as P.W.8. He had noted 22 incised wounds and an abrasion on the body of the deceased. Four of them were on the backside of neck, three on the left side of the shoulder, two on the left side of the abdomen and the others on different parts of the body including right parietal, left side of scapula and left side of lumber region etc. On opening, 10th rib on left side and scapula were found fractured. Stomach was found empty.
There was cut on diaphragm. Except injury No.21, which was an abrasion on the knee cap, all other injuries were opined to have been caused by a sharp-edged weapon. Injuries Nos. 13 and 23, which were described as follows, were declared grievous:-
(13) Incised wound 4 x 1-1/2 c.m. Left side of abdomen, in the epigastrium area. .
(23) Incised wound 1-1/2 x 1 c.m. Right parietal region of skull.
Death was opined to have resulted due to shock and haemorrhage resulting from the said two injuries. Time between injuries and death was opined, `soon after' while time between death and post-mortem was opined within 28 hours. During cross-examination, he admitted of having noted time and date of death as 6-30 a.m. On 12-8-1983. He explained that it was noted on the information supplied by the police.
7. The ocular account was deposed to by Nazir Ahmad (P.W.4), Munir Ahmad (P.W.5) and Khalil Ahmad (P.W.6).
Nazir Ahmad repeated the facts given by him in the F.I.R. The only worth noting improvement he made during examination-in-chief is that he has specifically stated about the accused having taken away a sum of Rs.15,000 alongwith other documents. He also stated that he had gone to report the matter leaving Munir and Khalil to guard the dead body and had met Muhammad Ismail, A.S.I., at Kangniwala, on G.T. Road. During cross-examination, he stated that he had witnessed the occurrence from the roof of ground floor. He also stated that he had identified the third accused as Sufi Sharif son of Nur Ahmad, case Jat of Kangniwala, but the police have not challaned him. According to him, they had gone to the house of the deceased on the previous evening at 6 p.m. And had stayed there. He admitted to be brother of the deceased and also gave out that Khalil P.W. Was married to their sister while Munir P.W. Was son of his maternal-cousin. He admitted that Bashir, younger brother of Siddique accused, had worked with him for three years in his factory, but he denied the suggestion that Bashir had left his service on account of not having been paid for six months. He denied that Siddique had quarreled with him on that account. He also admitted that he was married person and had two sons. Khalil and Munir P.Ws., according to him, were also married persons and were living with their families. In answer to another question, he stated that his brother was wearing shirt, Salooka, loin-cloth and a pair of Mokaishan in his feet. The occurrence, according to him, lasted for half an hour. He denied that his brother had developed illicit relations with one Mst. Habiban.
Munir Ahmad (P.W.5) corroborated the statement made by Nazir Ahmad (P.W.4). During cross- examination, he stated that they had got up on hearing cries of the deceased and the opening of the iron door. He took up the stand that his statement under section 161, Cr.P.C. Was never recorded.
Khalil Ahmad (P.W.6) also corroborated the statement of the complainant. During cross- examination, he stated that they had seen the two accused infecting injuries to the deceased from the roof and an unidentified culprit holding hum from the arms. In answer to another question, he stated that at the time of receiving injuries, the deceased was wearing loin-cloth. According to him, 5/6 persons were attracted to the spot on hearing their hue and cry. He stated that he had not observed any blood in the Baithak or on the threshhold of the door of the Baithak. Nazir Ahmad, according to him, had left for reporting the matter at 5 a.m. He denied the suggestion that the deceased had illicit relations with Mst. Habiban and that he had left his shirt and Salooka alongwith the shoes in her house and that some unknown persons had followed him and murdered him, when he reached near his house.
8. Muhammad Ismail,- A.S.I., who had recorded Exh.P.E. Appeared as P.W.7. He admitted that he had left the police station at 7-45 a.m. On 11-8-1983, for patrol duty.
Muhammad Azam, M.H.C. Who appeared as P.W.9 stated that Mahmood Ahmad, A.S.I. (P.W.10) had deposited with him parcel of blood--stained earth on 14-8-1983 while Malik Sher Bakhsh, S.H.O.
(P.W.13) had handed over to him a parcel containing Chhuri on 5-9-1983. He stated that the parcel containing blood-stained earth was despatched by him in the Office e'' the Chemical Examiner on 7-9-1983 through Muhammad A.I Constable No. 637 (P.W.12) while the parcel of Chhuri was despatched by him to the same office on 1-11-1983 through Muhammad Yousaf Constable (P.W.11).
Mahmood Ahmad, A.S.I. (P,W.10) gave the account of the inspection of spot and part investigation conducted by him.
Muhammad Yousaf Constable (P.W.11), Muhammad A.I Constable (P.W.12) corroborated the statement made by Muhammad Azam, M.H.C. (P.W.9) about the entrustment of parcels to them for onward transmission to the Office of the Chemical Examiner. Muhammad A.I also stated about having received Lachha (P.1) (loin-cloth of the deceased) from the doctor and of the same having been given by him to the A.S.I.
Malik Sher Bakhsh, S.H.O. (P.W.13) stated about the arrest of the appellants and the recoveries effected at the instance of Muhammad Saleem appellant.
The statements of other witnesses are more or less of a formal nature.
9. Both the appellants during their statements under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. They took up the stance that they have been involved in the case due to enmity with the complainant and the P.Ws.
10. A strange aspect of the matter is that Mst. Kalsoom Akhtar, wife of the deceased, was also given up as won over by the State counsel alongwith P.Ws. Abdul Majeed and Muhammad Jamil.
11. Learned counsel for the appellants after taking us through the evidence, criticised the impugned judgment and contended that the ocular account in this case was incompatible with the state of the body of the deceased observed by the Investigating Officer and by the doctor, who had performed autopsy, that the eye--witnesses do not appear to have witnessed the occurrence, that the F.I.R. Was lodged after an unexplained delay and the evidence of recoveries is not worth giving any weight.
12. Learned counsel for the State as well as learned counsel for the complainant in the revision petition defended the judgment of the trial Court. However, none of them was able to explain as to how the deceased was found only wearing loin-cloth.
13. The occurrence, according to the eye-witnesses, had taken place at 11 p.m. In the month of August. The police station is at a distance of one and a half miles and connected with Pucca road.
The statement on the basis of which F.I.R. Has been recorded was, even according to the complainant, made by him at 6 a.m. No explanation has been given as to why the occurrence was not reported prior to that.
14. The most important aspect in this case is that according to the eye--witnesses the deceased was done to death immediately on his having reached his house on return from Lahore, where he had gone to collect money from his customers. The deceased had not succeeded even, in entering the house when the culprits had overtaken him. He was found only wearing a loin-cloth after the occurrence. This was not only noted by the Investigating Officer but was found by the doctor as well. In fact, one of the eye-witnesses also stated so. It is unbelievable, nay impossible to imagine even that the deceased would have gone to Lahore without wearing a shirt, shoes or anything else than the loin-cloth. It can also not be visualized that the culprits would have removed his clothing before causing him injuries. In fact, had that happened, the witnesses would have definitely stated that. The witnesses were not able to say anything in this regard. This situation clearly lends support to the idea that the deceased might have been, called out of the house while sleeping and done to death or that some intruders' had entered the house and he might have chased them in the position that he was and met the death at4heir hands outside the door of his house.
15. The conduct of the eye-witnesses apart from having failed to report the matter at the earliest to the police in spite of being related appears to be dubious for other reasons also. In that, it is on record that all of them were married persons and had children. Their houses were situated within distance of furlongs. Their claim, therefore, of having slept in the house of the deceased on the night of occurrence appears to be highly doubtful. The explanation given by them that they had been talking there about the marriage of one Shaukat and had come to consult the deceased in that regard is incompatible with the circumstances of this case. All of them knew the practice of the deceased of visiting Lahore on that day of the week and returning late. Therefore, if at all they had to consult him, they would not have gone on that evening. They would have gone to consult him on the following morning, or some other day.
16. The claim of the eye-witnesses that they had seen the occurrence from the roof also is not probable because while standing over the roof, they would perhaps not have been able to see the seats of the injuries inflicted individually by the appellants. They have also made discrepant statements about the presence of blood inside the Baithak, on the thrashhold and the street.
17. The conduct and manner of investigation in this case also creates doubts. The A.S.I. Who had recorded the statement of the complainant did not himself go to the spot even though he had recorded the statement while being on patrol duty and was at a distance of less than a mile from the spot. He could not properly explain about his departure from the police station and the reason of being at a place where the complainant claimed to have met him.
18. The Investigating Officer during whose custody Saleem had led to the recovery of Chhuri and the documents, i.e. Identity cards and the driving licence etc. Did not care to join the persons from the vicinity. No proper explanation has come forth as to how the witnesses happened to be with him at the time of said recoveries.
The other important aspect in this regard is that the Chhuri which was said to have been recovered on 5-9-1983 at the instance of Saleem appellant, was said to have been deposited in the Police Malkhana on the same day. The strange aspect is that although the parcel of blood-stained earth in this case was sent from the police station to the Office of the Chemical Examiner on 7-9-1983, but the parcel containing Chhuri was sent on 1-11-1983. If the Chhuri had been recovered on 5-9- 1983 and the parcel of the same was lying in the Malkhana, there should have been no difficulty for sending the said parcel also alongwith the parcel of the blood-stained earth through the same constable. No explanation is available for this disparity.
19. On having thoroughly considered the prosecution evidence, we feel convinced that the prosecution has not been able to prove the case against the appellants beyond reasonable shadow of doubt. The appeal filed by the appellants is, therefore, allowed and they are acquitted.
20. Since the convicts have been acquitted, the question of enhancement of their sentences does not arise. The revision petition filed by the complainant is, therefore, dismissed.
H.B.T./M-1263/L