SARDAR MUHAMMAD DOGAR, J.-Javed Iqbal was fired at, with the revolver by Ijaz Ahmad alias Jajji which hit the former on the forehead near the Bakery of Murtaza in the Circular Bazar of Lala Musa Town at a distance of two furlongs from Police Station Lala Musa at 4.30 PM on 27.11.1983, when he had reached there while on way to purchase vegetable. Ijaz Ahmed was accompanied by Allah Ditta alias Billa and an unknown empty-handed boy. The occurrence was seen by Raja Muhammad Rafiq uncle of Javed Iqbal, who was following him and by Muhammad Arshad and Muhammad Abdullah PWs who were present around there. Ijaz had run away riding a motor cycle of one Arshad.
Ijaz Ahmad used to tease Javed Iqbal for committing unnatural offence-The deceased had scolded him. The accused had launched murderous assault on him on that account.
2. Javed Iqbal was shifted to Civil Hospital, Lala Musa by Raja Muhammad Rafiq (PW.9) where he was medically examined by Dr. Muhammad Latif Qureshi (PWA) at 8.00 PM. The doctor had sent intimation to the SHO PS Lala Musa vide Ruqqa Ex.PD.
Muhammad Sadiq Head Constable (PW. 11) arrived at the hospital on receiving information from some source. He recorded the statement Ex.PF/1 of Raja Muhammad Rafiq at the hospital at 8.50 PM on the basis of which formal FIR Ex.PF was registered at the Police Station by Banaras Khan ASI(PW.7).
3. Muhammad Sadiq after despatching statement Ex.PF/1 to the police station submitted application Ex.PE/1 to the doctor to solicit opinion whether Javed Iqbal was fit to make a statement or not. Vide Ex.PE, the doctor opined that he was not fit to make a statement. Thereafter, the Head Constable proceeded to the spot, where from he collected blood-stained earth vide memo Ex.PB.
He also prepared rough site-plan Ex.PK and recorded statements of the PWs. The investigation was thereafter taken-over by Muhammad Hanif SI(PW.12).
4. Javed Iqbal died at CMH Lahore at 2.05 AM on 28.11.1983. Muhammad Hanif SI on receipt of information reached there and prepared injury statement Ex.PL and inquest report Ex.PM.
The autopsy was performed by Dr. Captain Muhammad Naqeeb (PW.14) at CMH on the same day i.e. 28.11.1983. After completion of necessary investigation, challan was put to Court.
5. Ijaz Ahmed was tried and convicted by Addl: Sessions Judge, Gujrat, under section 302 PPC vide judgment dated 29.9.1988 and sentenced to death plus to pay a fine of Rs.10,000/- in default whereof to undergo SI for six months. He was also directed to pay a sum of Rs.25,000/- as compensation to the heirs of the deceased in default whereof to further suffer SI for one year.
Pervaiz Iqbal and Allah Ditta co-accused of Javed Iqbal were tried earlier by a Special Military Court and acquitted.
6. The appeal filed by the convict and the Reference made by the trial Judge for confirmation of death sentence are being disposed of together.
7. Statements of 14 PWs were recorded at the trial.
Dr. Muhammad Latif Qureshi who had medically examined the deceased on 27,11.1983 appeared as PW.4. He had noted following injuries on his person:-
1. A firearm wound of the size of 5x,5x2 cm situated at right side of fore head 3 cm above eyebrow.
Margins of the wound were inverted and some blackening was present. He was semi conscious.
Plus rate was 75 per minute. He was in a state of shock. He was having weakness of left side of the body movement. He was also having vomiting. Blood was coming from the wound.
2A A fire arm wound of the size of lxlxl.5 cm at right side of fore head 2 cm lateral and above the injury No.1\ which was having communication.
The injuries which were opined to have been caused by fire-arm within six hours were kept under observation. During cross-examination, he stated that the police had arrived soon after the arrival of Javed Iqbal in the Hospital. Iii answer to another question he stated that there was no blackening around injury No.2 and so the shot would have been fired from beyond six feet.
8. Dr. Captain Muhammad Naqeeb (PW.14) had performed autopsy at Lahore while being posted as Pathologist in CMH on 28.11.1983. He had noted following injuries on the body of the deceased:-
1. A circular gapping wound .5 cm in diameter on the forehead "above the medical third of right eye brow.
2. 1 cm diameter with irregular margins 3 cm above and lateral to the first wound (2" above the lateral third of right eye brow).
On examination of the central nervous system he had noted haemotoma beneath the right parietal scalp. There was a gapping wound 2x1 cm on the right frontal bone with a linear frame are extending backward through the right temporal (sic) occipital bone. The brain was congested. A flat piece of bullet found lodged in the substance of right occipital lobe was removed.
Death was opined to have occurred due to trauma resulting from bullet injury which was sufficient to cause death in the ordinary course of nature. He expressed the opinion that injury No.1\ was opposite the entry of bullet through skull bone and injury No.2 as due to fractured piece of skull bone. During cross- examination, he admitted that he had not noted the duration between injuries and death. According to him seven hours and twenty minutes had passed between the death and post-mortem. In answer to another question he stated that he had not been shown the medico- legal report of the deceased before performing autopsy. He expressed inability to state as to when Javed Iqbal was admitted to CMH Lahore. He stated that operation had been performed before the death.
According to him, there was blackening around injury No.1\ but he had not mentioned the same in Ex.PO.
9. Ocular account was deposed to by Nazar Hussain Shah (PW.1) and Raja Muhammad Rafiq complainant (PW.9).
Raja Muhammad Rafiq while repeating the facts given by him in the FIR did not name any one to have witnessed the occurrence apart from him. He did not mention even Arshad and Abdullah to have witnessed the occurrence although he had stated about them while lodging FIR. He also did not mention the fact of Ijaz having run away from the place of occurrence riding a motor cycle of one Arshad.
Both these witnesses were mentioned in the calendar of witnesses but they were not produced at the trial for having been won over. The witness denied the suggestion that they had protested soon after lodging the FIR as to why they were named as eye witnesses even though they had not witnessed the occurrence. In answer to another question, he expressed inability to state, the.
Number of brothers and sisters of Ijaz. He also expressed inability to state the name of any one of them. While stating that the deceased was a student of first year, he denied the suggestion that he had been rusticated from the school by the Head Master for bad conduct. The suggestion that he had been rusticated from the Middle School as well while being a student of sixth class was also denied by him. While expressing unawareness about the two factions being led by Manzoor Hussain Shah MNA and Haji Asghar MPA, he further denied the suggestion that he had lodged the FIR against the accused at the instance of Haji Asghar MPA. He stated that Police Station Lala Musa fell on way to the Civil Hospital. He claimed that while taking the deceased to Civil Hospital in a Suzuki he had stopped in front of the Police Station and had informed the police officer about the occurrence who instructed him to go to hospital extending promise that he will reach there. In answer to another question he stated that the Investigating Officer had not recorded the statement of Nazar Hussain (PW.1) in his presence. While denying the suggestion that he had set up a false motive, he stated that neither he had seen the appellant committing sodomy with the deceased nor had he named any person before whom the appellant had attempted to commit sodomy with the deceased.
10. Nazar Hussain Shah (PW.1) claimed to have seen the appellant firing at the deceased while accompanied by one Qasab. Neither he remembered the name of the Qasab who was accompanying Ijaz nor did he remember the name of the deceased. However he stated that Ijaz had fired at the son of Iqbal. During cross-examination, he admitted that due to advanced age his memory had become weak (he was 82 at the time of trial). He gave out that the occurrence had taken place near his shop where he used to sell cigarettes. He expressed inability to state that the appellant was the supporter of Manzoor Hussain Shah MNA. While denying that he had supported Asghar MPA against Tahir Zaman he volunteered that he was also a supporter of Manzoor Hussain Shah. The suggestion that he had made the statement at the behest of Asghar MPA was denied by him. He also denied the suggestion that he had demanded a sum of Rs.10,000/- from the father of the accused for not making statement against him. He also denied the suggestion that he had told the father of the accused that the complaint had offered him Rs.8000/-for making statement as a PW. He admitted that he had not made statement before the police on the first day. However, he claimed that the police had recorded his statement on the following day at his shop. He gave out that the father of the deceased was serving in the Army. He stated that even after the deceased had fallen after being injured he had kept sitting in his shop and had not gone to the hospital either. The suggestion that he had not witnessed the occurrence was denied by him.
11. Muhammad Aslam who had witnessed the recovery of pistol P5 at the instance of the appellant appeared as PW.8 During cross-examination, he admitted that father of the deceased was the son of his sister. He gave the distance of bis village from Lala Musa as 8/9 miles. He denied the suggestion that he had made a false statement.
12. Muhammad Sadiq Head Constable (ASI at the time of trial) who had recorded Ex.PF/1 and collected blood-stained earth from the spot appeared as PW. Ll and deposed those facts. During cross-examination, he stated that during the days of occurrence, he was posted as HC/IO at Police Post Lala Musa and Muhammad-Hanif ASI was his incharge. According to him, Police Post was at a distance of one furlong from the Police Station. He stated that while going from the spot to the hospital Police Post falls first and then the Police Station. He gave out that he had gone to the Civil Hospital on having received information from some source while being on patrol duty. He gave out that he had not recorded the statement of Murtaza near whose shop the occurrence had taken place nor of Nazar Hussain who appeared as PW at the trial. He denied the suggestion that he had conducted proceedings-------- at the Police Post at the behest of Asghar Gujjar MPA who was inimical to the family of the appellant.
13. Muhammad Hanif SI who' had partly investigated the case, arrested the accused on 4.12.1983, taken into possession pistol P5 got recovered by the appellant and submitted challan to Court after completion of necessary investigation, appeared as PW.12 and deposed those facts. He also claimed to have recorded the statement of Hazar Hussain on 28.11.1983. During cross- examination, he denied the suggestion that pistol P5 was not got recovered by the appellant and that he had planted the same to strengthen the prosecution case.
14. It is worthwhile noticing here that the appellant had escaped from jail in August 1984 and was arrested again on 31.3.1986 by Ghulam Haider ASI who appeared as PW-13.
15. The appellant during his statement u/s 342 Cr.P.C, denied the prosecution case as a whole and pleaded innocence.
While answering the question that he had run away from jail during the pendency of trial before the Military Court, he stated as follows- "I was forced out of jail by my co-accused at gun-point when the Jail was broken open and subsequently, I was taken to Afghan Border by my co-accused and remained a captive there and after I had escaped from the clutches of Afghans I surrendered myself before the police."
In answer to question why this case against you, he stated "Due to enmity with the complainant."
He declined to make statement u/s 340(2) Cr.P.C, and did not adduce any evidence in defence.
16. Learned counsel for the appellant after having taken us through the evidence contended that none of the two eye-witnesses examined at the trial appear to have witnessed the occurrence.
Learned counsel contended that Raja Muhammad Rafiq who had lodged the FIR was interested, being first cousin of the father of the deceased, and so had made a false report while Nazar Hussain Shah(PW.1) was not even named in the FIR. Learned counsel contended that the medical evidence is contradictory to the ocular account and the evidence of recovery of pistol was of no consequence as no proof was led-at the trial of the same having been used in the commission of crime. Learned counsel submitted that on the basis of same evidence two co-accused of the appellant were acquitted by the Special Military Court.
17. Learned counsel for the State/Complainant defended the judgment of the trial court and pleaded that there was no reason to discard the ocular account.
18. According to the prosecution, the occurrence had taken place in the Bazar at 4.30 PM which was thickly populated. The Police Post was at a distance of one furlong from the spot while the Police Station was at a distance of two furlongs. The Police Post as well as the Police Station fell on way to the Civil Hospital, Lala Musa. In spite of that no report was lodged till 8.50 PM when Muhammad Sadiq Head Constable came there.
The claim of PW.9 that while taking the deceased in injured state to the hospital he had gone to the police station and informed the police officer there about the occurrence stands rebutted from the material on record. In that, neither any police officer had visited the hospital till 8.50 PM nor any report had been recorded at the Police Station till the receipt of statement Ex.PF at 9.00 PM. The claim of the witness also stands rebutted from the deposition of Muhammad Sadiq Head Constable who stated that he had gone to the hospital on coming to know of the occurrence through some source while being on patrol duty. The fact that the doctor had found it necessary to inform the SHO through Ruqqa(Ex.PD) also lends support to the argument that by that time none had gone to lodge the report at the police station.
19. Although Muhammad Rafiq (PW.9) claimed that he had taken the deceased to the hospital in injured state within 45 minutes the fact remains that the medical examination of the deceased was done by Dr. Muhammad Latif Qureshi, Senior Medical Officer, Incharge Civil Hospital, Lala Musa, at 8.00 PM: It is no body's case that the doctor before formally preparing the medicolegal certificate at 8.00 PM had been giving any medical aid to the deceased. In fact, he stated that he had examined the deceased/ no sooner he was brought to the hospital. According to him, the police had reached the hospital soon after the arrival of the injured in the hospital. It is highly improbable rather impossible to believe that the deceased could have-remained lying unattended in the hospital for more than 2\ hours without any medical examination or medical aid. If the argument advanced by the learned counsel for the State that the doctor might not have been available till 8.00 PM is accepted it will have to be granted that the relatives of the injured who had taken him to the hospital would not have kept on watching the injured in that precarious condition without making any alternative arrangement. They would have certainly removed him to CMH Kharian which was at a distance of 8 miles from Lala Musa or shifted him to District Headquarters Hospital which was at a distance of 10/12 miles. This would have been positively done if Raja Muhammad Rafiq complainant was available and had taken the deceased to hospital. It is in evidence that the deceased was removed to CMH Lahore during the same night. If the relatives of the deceased could have thought of that, after his medical examination at 8.00 PM, they would have easily conceived that idea before 8.00 PM if the doctor was not available at Lala Musa. All that can be assumed in such state of affairs is that either Raja Muhammad Rafiq was not available to do that or the occurrence had not taken place at the time stated by him. The fact of not, reporting the occurrence to the police by Raja 'Muhammad Rafiq (PW.9) till 8.50 PM and that, too, at the hospital also lends support to the argument that he was not available and that the report was lodged after un-explained delay due to the efforts being made for waiting some relative to become complainant. It is in evidence that father of the deceased was serving in the Army and was not in the town. In the circumstances, we find lot of weight in the argument of the learned counsel for the appellant that Raja Muhammad Rafiq had not witnessed the occurrence and was set up as a false witness.
20. Nazar Hussain Shah (PW.1) is not named in the FIR. He had not appeared before the police on the first day when the police had gone there. He made statement to the police on the following day claiming himself to be an eyewitness. While deposing at the trial, he did not state that Raja Muhammad Rafiq had also witnessed the occurrence. In fact, he did not name any one particularly to have witnessed the occurrence. He candidly admitted that because of advanced age his memory had become weak. He was 82 at the time of trial. His statement, as such, also does not inspire confidence.
21. Still, another aspect of the case is that Dr. Muhammad Latif Qureshi who had medically examined the deceased, whilst alive, had noted two independent fire-arm injuries on his person.
The tenor of his deposition during examination-in-chief as well as while answering questions during cross- examination clearly denotes that according to his opinion the deceased had suffered two independent fire-arm injuries. Such a position is obviously contradictory to the ocular account. Although the doctor who had performed autopsy stated that injury No.2 might have resulted due to the breaking of the skull yet that does not explain the inconsistency in a manner which can be safely acted upon for maintaining conviction on a capital charge. The accepted principle of the criminal jurisprudence is that when there are two views/opinions, the one favouring the accused has to be acted upon.
22. The evidence of recovery of pistol is of no consequence as it does not lend any corroboration to the ocular account, for the reason, that neither any empty was recovered from the spot nor the pistol was sent to the Forensic Science Laboratory, to see if the same had been used in the commission of the crime or was even in working order.
23. The evidence of motive is also very weak but even if that was believed, the conviction cannot be maintained on that account alone.
24. In the circumstances, grave doubts have arisen in our minds about the appellant having committed the crime. This appeal is, therefore, allowed and the appellant is acquitted. He shall be released forthwith if not required in any other case.