Zameer Hussain was tried by the Additional Sessions Judge, Lahore under section 302/34, P.P.C. For the murder of Mian Mushtaq Ahmad. Nasir named as the accused alongwith him could not be arrested. He was declared absconder and was proceeded against under section 512, Cr.P.C.
Learned trial Judge vide judgment dated 1.4-5-1986 convicted Zameer Hussain under section 302, P.P.C. And sentenced him to undergo imprisonment for life plus to pay a fine of Rs.5,000 in default whereof to undergo R.I. For one year.
2. The convict has filed appeal.
3. F.I.R. Exh.P.C./1 was registered at Police Station Gulberg, Lahore at 9-40 p.m. On 26-1-1984 by Sherdil, A.S.I. P.W.5 on receipt of statement Exh. P.C. Of Murad Ali P.W.3 recorded by Qamar-uz- Zaman, S.I. P.W.15 on the same day at 9-30 p.m.
According to F.I.R. The complainant was sitting at his shop at 8-00 p.m. On 26-1-1984. He saw the car of Mian Mushtaq Ahmad (deceased) passing from, there at a high speed. As he knew that Mian Sahib was not used to driving the car so fast, he immediately went to the bungalow of Mian Mushtaq and rang the bell, but none responded. He started knocking at the door. Mst. Bashiran who was residing in the quarter of the bungalow, came out and asked, what the matter was. On being told by the complainant, both of them started knocking at the door of Mian Mushtaq. In the meantime, Gulzar Hussain Bokhari also came there. As none opened the door, the complainant alongwith Gulzar Shah Bokhari went to the house of Mst. Shamim daughter-in-law of Mian Mushtaq. She told them that Mian Sahib had not come to her house. Thereafter they went on a rickshaw to the house of Mst. Rifat (P.W.9) in the Cantonment. She enquired on telephone from other relatives about Mian Mushtaq but nobody knew anything. They came back. In the meantime, Zahoor Shah, Mst. Mumtaz Shahnawaz and Dr. M.N. Hussaini had also arrived at the house of the deceased. All of them broke open the door and entered the room. They saw Mian Musthaq lying on the bed with his mouth gagged with a cloth. Both the arms and legs were tied with electric were. Dr. M.N. Hussaini after examination, observed that Mian Sahib was still alive. The electric wires were cut and Mian Mushtaq was removed to the hospital in a car. The doctor declared him dead. The dead body was brought back to the house. Parvez, cook of the deceased and Muhammad Ashraf, his Chowkidar were found missing. Muhammad Ashraf was employed 16-17 days prior to the occurrence, while the cook was employed 3-4 days prior to the occurrence. Identification marks of both of them were also given in the F.I.R.
4. Qamar-uz-Zaman, S.I. After despatching statement Exh. P.C. To the police station for registration of case despatched the dead body for post-mortem examination after preparing necessary papers. He took up the investigation and recorded statements of the P.Ws. On his transfer on 5-2- 1984 the investigation was entrusted to Gul Zaman, A.S.I. (P.W.16). On receiving information through Murad Ali P.W. He went to Galaxy Cinema at Ferozepur Road and took into possession car P.1 belonging to the deceased, parked in front of Galaxy Cinema, vide memo. Exh. R.D. Zameer Hussain was arrested by him on 4-4-1984. Identity card P.6 recovered from his pocket at the time of arrest was taken into possession vide memo. Exh. P.F. Although photograph of Zameer Hussain was pasted on the card, yet the particulars noted therein were of one Zafar Parvez son of Banaras Khan.
He contacted Zafar Parvez and joined him in the investigation, who told him that he had deposited the identity card with one Anwar Beg and he had lost the same. When Anwar Beg was contacted, in that regard, he identified the photograph affixed on P.6 to be that of Zameer Hussain son of his paternal-aunt. He took the A.S.I. To his village in Murree District Rawalpindi and after apprehending Zameer Hussain, handed him over to the police. The Investigating Officer also went to the Registration Office of identity cards, and was informed that identity card P.6 had been issued to one Parvez and that the photograph pasted thereon was not the one, which had been supplied to the office at the time of issuance of identity card to Parvez. The original photograph of Parvez lying in the office in that regard was shown to the Investigating Officer: After completion of necessary investigation, the challan was submitted to Court.
5. Statements of seventeen P.Ws. Were recorded at the trial. Mian Sajjad Rafi son of sister of the deceased had identified car No.LES/4134 taken into possession during the investigation, to be that of his deceased maternal-uncle. P.W.2 was the Draftsman. Murad Ali who had reported the matter to the police vide statement Exh. P.C., appeared as P.W.3 and narrated the facts given by him in the F.I.R. He also claimed to have informed the police after having seen the car of the deceased, parked near the cinema at Ferozepur Road and of having witnessed the taking into possession of car by the police. He had also identified the dead body at the time of post-mortem.
During cross-examination he stated that the deceased was living alone in the bungalow with four of his servants, three of whom resided in the bungalow. He disclosed that the deceased had many relatives. When asked, why the case was not got registered by some relative of the deceased he stated that the police wanted him to make statement about the occurrence.
6. Khan Zaman, Head Constable who had been entrusted the warrants of arrest of Muhammad Nasir co-accused, appeared as P.W.4. He stated about his failure to effect the arrest of Nasir. In that regard he produced the warrants (Exh.P.W.4/1).
7. Sherdil, A.S.I. P.W.5 stated about the registration of case while Muhammad Nawaz, Constable P.W.6 claimed having witnessed the recovery of identity card P.6, from the person of the appellant at the time of arrest.
8. Mst. Shamim Shahnawaz who was the first relative to be contacted by Murad Ali, appeared as P.W.7. While disclosing that Murad Ali P.W. Had come to her on the day-6f occurrence and that she had told him to contact her cousin Mst. Rifat Bashir (P.W.9), she expressed inability to identify the accused. She was declared hostile and was cross-examined. During cross-examination on behalf of the accused, she stated that her husband had purchased the house from Mian Mushtaq Ahmad and he was living in the same house without paying any rent to her husband. She also stated that heirs of deceased had refused to abide by the agreement and her husband had filed a suit for specific performance, which was pending.
9. Mst. Bashiran, a servant of the deceased who was the first to be contacted by Murad Ali P.W., appeared as P.W.8 and stated that the appellant who had given his name as Parvez, had taken up service with the deceased 2-3 days prior to the occurrence. She stated that on the day of occurrence she was running temperature in the evening and that the accused had come to her and administered her 2 tablets with tea, as a result of which she had vomitted and lost consciousness. She verified the statement made by Murad Ali that they had been knocking at the door of the deceased, and that when door of the deceased was broken in the presence of the P.Ws.
The deceased was found lying on the bed with mouth gagged with cloth. She identified the accused to be the servant of the deceased. She stated that he was the only one in the house on the day of murder of the deceased.
10. Mst. Rifat, a niece of the deceased, appeared as P.W.9. She corroborated the statement made by Murad Ali that he had contacted her and that she had also come to the house of the deceased and that they all had found the deceased lying murdered in his room. She also deposed that the deceased had come to her house alongwith the appellant on the day of occurrence and had remained there till 6-00 p.m. She deposed that as she had no cook at that time, the appellant had helped her in cooking food and in laying the carpets. She stated that the deceased had left her house during the car at 6-00 p.m. With the appellant sitting in car with him.
11. Nadir Khan whose maternal-grandmother had entered into second marriage with the deceased, appeared as P.W.10, and stated that the appellant used to work as a cook with the deceased. He deposed that on the day of occurrence he had gone to the house of the deceased upon learning about the mishap, where other relatives were also present and had found the deceased lying dead.
During cross-examination he expressed inability to give the names of servants of the deceased except that of Mst. Bashiran. He stated that he had not given the name of the accused in his statement, as he did not know his name.
12. Asghar Ali, Constable who had escorted the dead body of the deceased to the mortuary, appeared a P.W.11 and deposed those facts.
13. Anwar Beg resident of Jandaat, Police Station Murree, District Rawalpindi, maternal-uncle's son of the appellant, appeared as P.W.12. He stated that Parvez had deposited his identity card with him in 1978, on having failed to make full payment of the dates that he had purchased from him and that he had not turned up thereafter to get back the card. He identified card P.6, recovered from the appellant and also identified the photograph pasted on P.6 to be that of the appellant. He disclosed that the said identity card in fact belonged to Zafar Parvez. He stated that he had taken the A.S.I. To his village and had apprehended the accused there during night and then handed over his custody to the police. He denied the suggestion that the photograph of the appellant was pasted on the identity card of Zafar Parvez, by the police, and that it was done to save Zafar Parvez from being prosecuted in the case as the Police officials were friendly to him.
14. Dr. M.N. Hussaini who was one of the relatives of the deceased who had found him lying dead and gagged in the room, appeared as P.W.13 and deposed those facts.
15. Wilayat Khan, who was serving as the District Registrar in the Registration Office at Abbottabad, appeared as P.W.14 and stated that identity card P.6 had been issued to one Zafar Parvez and that the photograph pasted on P.6 was different from the one which was lying in their office. He disclosed that the photograph pasted on P.6 did not bear the seal of the Registration office.
16.Qamar-uz-Zaman, S.I. Who had registered the case and initially investigated the same, appeared as P.W.15 and deposed those facts.
17. Gul Zaman, A.S.I. Who had arrested the appellant, recovered identity card P.6 from his possession and submitted the challan to Court after completion of investigation, appeared as P.W.16 and deposed those facts.
18. Dr. Sardar Fakhar-i-Imam who had performed autopsy of the deceased, on 27-1-1984, appeared as P.W.17. He had noted 9 injuries on the body of the deceased. All of them were abrasions. The injuries were on the right cheek, chin, left forearm, left lower leg, right forearm, left forearm and right leg.
According to, his opinion cause of death was asphyxia resulting from gagging. Time between injuries and death was opined by him to be within 3 minutes. While the time between death and post-mortem was opined to be a day.
19. Muhammad Jamil, Constable who was entrused the service of summons upon Muhammad Saleem P.W. And had failed to do so, while being examined as C.W.1 verified that fact.
20. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. He admitted that Anwar Beg P.W. Was his relative but added that he had strained relations with him. He explained- that the police had obtained his photograph after arrest and had pasted the same on Exh.P.6. He denied the allegation that he had been posing as Zafar Parvez. He took up the stance that as the police had mixed up with Zafar Parvez, they involved him in the case in order to let of Zafar Parvez. Although, initially he opted to make statement on oath under section 340(2), Cr.P.C. Yet later declined to do so.
21. The appeal has been filed through the Superintendent of Jail, as such nobody represents the appellant. Therefore, I proceed to decide the same with the assistance of learned counsel for the State.
22. I have gone through the evidence with the assistance of learned counsel for the State and have considered the points raised by the appellant in the memo. Of appeal.
23. There is no direct evidence against the appellant in the form of ocular account, or recovery of any incriminating article from him. Out of the statements of all the witnesses, the depositions of Murad Ali P.W.3, Mst. Bashiran P.W.8, Mst. Rifat P.W.9, Anwar Beg P.W.12 and Gul Zaman, A.S.I. P.W.16, appear to be only relevant which require consideration about complicity of the appellant in the commission of crime.
24. Murad Ali P.W.3 who had reported the occurrence did not state anything against the appellant, by virtue of which he could be connected with the crime.
25. The portion of the statement of Mst. Bashiran P.W.8 that the appellant was serving as a cook with the deceased, on the day of occurrence and that he had administered her two tablets sometime in the evening with tea which had made her unconscious after vomitting, is the only relevant deposition worth consideration about connection of the appellant with the crime.
She had not mentioned the fact of the appellant having administered her 2 tablets, which had made her unconscious, to Murad Ali P.W. He was the first man, with whom she had come in contact.
Both of them had exchanged informations and had helped each other, in knocking at the door, and had also joined hands with the relatives of the deceased in getting the door broken. Had she mentioned such facts to Murad Ali P.W., he would not have failed to state the same while lodging the F.I.R. Murad Ali P.W. Not only had not mentioned such facts in Exh. P.C. But also had not referred to the same while making statement at the trial. Although during cross-examination Mst. Bashiran stated that the appellant had served with the deceased for 2-3 days, yet in the Examination-in--- Chief at the very opening she had stated that he had served with the deceased only for one day.
Apart from the fact that it is difficult to assume that she could have remembered that man such statement even otherwise cannot be termed as a strong connection of the appellant with the crime. It cannot be gathered that since the appellant was working with the deceased, he must have murdered him.
26. The claim of Mst. Rifat P.W.9 that the deceased had brought the appellant to his house on the day of occurrence and (the appellant) had been working in her house till 6-00 p.m. And thereafter had accompanied the deceased in the car, does not find corrboration from the testimony of any other witness. It is worth noticing that Murad Ali before lodging the F.I.R. Had gone to the house of Mst. Rifat P.W. In fact, Mst. Rifat P.W. Had learnt about the mishap from him. Murad Ali P.W. Did not state in Exh. P.C. Nor did he mention while deposing at the trial that Mst. Rifat P.W. Had told him that the appellant had come to her house on the day of occurrence and had accompanied the deceased when he had left her house at 6-00 p.m. That amounts to negation of the statement of Mst. Rifat P.W.
27. The testimony of Anwer Beg P.W. Also does not strongly connect the appellant with the 'crime. All that he stated at the trial, is that identity card P.6 recovered from the appellant, was the one, which Zafar Parvez had deposited with him. He never said that the identity card had been stolen from his possession by the appellant.
28. There is no evidence that the appellant had been put to identification parade before he was challaned. In fact, the P.Ws. Who deposed about the appellant having taken up service with the deceased as a cook did not claim that they had ever been joined in the identification parade or had ever been asked by the Investigating Officer to take part in such proceedings. In fact, Mst.
Bashiran P.W. Clearly stated during cross-examination that she had not been asked to identify the appellant after arrest or after having been lodged in jail. Although there is no exhibited document in this regard on rile, yet there is on record the application dated 5-4-1984 submitted by Gul Zaman, A.S.I. P.W.16 to the effect that the accused had been arrested in the case and he be lodged in jail as he was to be put to identification parade. This application is at page 57 of the file. There is another application from the same A.S.I., which is dated 18-6-1985 and is at page 55 of the file. It is mentioned therein that the proceedings of the identification parade of Zameer Hussain had been conducted. He should, therefore, be allowed to examine the proceedings of identification parade.
29. Such recorded facts cast grave doubts about the genuine intentions of the'' Investigating Officers. It is also worth noticing that while according to Anwar Beg P.W. He had apprehended the appellant at night in his village situated somewhere within the area of Police Station Murree, District Rawalpindi and had handed him over to the police, Gul Zaman, A.S.I. P.W.16 claimed that he had arrested the appellant from Mozang Chungi. This vast discrepancy leads to an inference that the appellant might have been taken into custody and kept without being formally arrested, and later challaned after arrest. The inference that the police does not appear to have been acting in the manner they have put the facts before the Court, can also be drawn from the fact that autopsy on the dead body of the deceased was not got performed before 3-25 p.m. On 27-1-1984, in spite of the fact that the police had seized the dead body by 9-30 p.m. On 26-1-1984. Such delay in ordinary cases would be of absolutely no importance but in the circumstances of tile case where the deceased belonged to an educated family and was found murdered in the posh area of Lahore, such a delay could not have occurred in the performance of post-mortem. Yet the other aspect is that the doctor who had performed autopsy at 3-25 p.m. On 27-1-1984 had noted the duration between the death and post-mortem to be `one day'. If `one day' was calculated from the time of autopsy, the deceased would have been murdered at 3-25 p.m. On 26-1-1984. Even if the concession of two hours on both sides is given, at the best he could have been alive till 5-25 p.m. At the latest, or 1-25 p.m. At the earliest. If he was not alive after 5-25 p.m. Then how could he have been in the house of Mst. Rifat P.W. At 6-00 p.m. Which was two miles away?
30. It is on record in the depositions of the P.Ws. That the deceased was a well to do person and had no issues. His shares in investment were more than 30 lacs of rupees. He was living alone in a big bungalow with a telephone installed and four servants in service. He was maintaining a car. The suggestion put at the trial on behalf of the accused, in the circumstances, that some of his relative were interested in his early end to inherit property, might not only be a hoax. One of his relatives who claimed that her husband had purchased the house from him, while appearing at the trial stated that heirs of the deceased had refused to fulfil the agreement entered into by the deceased and that there was litigation about his property.
31. Another aspect of the case is that there is nothing on record to consider that the appellant had a motive to commit the murder. No evidence has been led at tile trial that he had developed unhappiness with the deceased. No allegation was levelled that anything except the car was found stolen r decoyed, from the house of the deceased. Nothing belonging to the deceased was recovered from the appellant. The car of the deceased said to have been removed from his house, was found parked in front of the cinema on a public thoroughfare. There is no evidence that the said car was ever in the possession of the appellant or that he had been seen driving it, or sitting therein after the expiry of the deceased. None turned up, at the trial to state that he was seen parking the car at the place of recovery. As such, no motive can be imputed to the appellant for the commission of offence.
As a result of the above discussion, I have come to irresistable conclusion that the prosecution has not been able to prove the case against the appellant beyond reasonable shadows of doubt. This appeal is, therefore, allowed and the appellant is acquitted. He shall be released forthwith if not required in any other case.