' Nazir Masih son of Khushia Masih, aged 50 years was sent up by the Police Station, Jaranwala, District Faisalabad, to face a trial under section 302, P.P.C. For causing the murder of one Miraj Din alias Maja, in case F.I.R. No,131/90 dated 25-2-1990 registered at the instance of Niaz Muhammad son of Muhammad Din, for an occurrence which took place on 25-2-1990 at about 8-30 p.m. Near the Octroi Post No,8 in the area of Chak No,127/GB, District Faisalabad situated at the distance of one kilometre from the Police Station, Jaranwala, District Faisalabad. The learned Additional Sessions Judge, Faisalabad, vide his judgment dated 21-9-1991 convicted the accused/appellant under section 302, P.P.C., awarding him sentence to life imprisonment With a fine of Rs,10,000, in default thereof to further undergo one year R.I. The benefit of section 382-B, Cr.P.C. Was also extended to the accused.
' The appellant, through this appeal, assailed the abovesaid judgment.
2. Brief facts of the prosecution case, are that Miraj Din, aged about 49 years, was the younger brother of the complainant, Niaz Muhammad (P.W.3). He was residing in Katchi Abadi, Mohallah Shamaspura alongwith his family in Jaranwala. The deceased was indulging the ' Tavez Ganda'.
Miraj Din alias Maja deceased used to sit in a room of his house where he had laid a cot covered with green-sheet. He had also made a special sign of 'Ghaus Pak' in the eastern side of his residential room. He had sufficient members of his disciples and Nazir Masih accused/appellant was one of them. He used to live with the deceased most of his time for the last about 8/9 years.
The accused/appellant had been demanding the green-sheet from the deceased and on 25-2- 1990 at about 7-30 p.m., within he view of the complainant and witnesses, Nazir Masih accused took Miraj Din deceased alongwith him, left the house and went outside towards the 'Semnala'. This action of the accused caused a suspicion to the complainant and witnesses. They followed them.
Nazir Masih became emotional and started demanding the green-sheet with full vehemence from the deceased. On the refusal of Miraj Din, Nazir Masih pulled out a 'Churri' and gave a ' Churn' blow on different parts of the body of the deceased, who after sustaining the injuries fell down. When they ran to rescue him, they were threatened by the accused person. They had raised hue and cry.
The accused left the place of occurrence while brandishing his weapon of offence in the air. Al- through it was a dark night, yet there was a sufficient light of the lamp of the post of octroi. Miraj Din succumbed to his serious injuries at the spot.
3. The motive behind the murder of Miraj Din was that Nazir Masih accused had thought that the green-sheet was a sacred one and wanted to get it from his Peer (Miraj Din). On the denial, the murder of Miraj Din was caused. The statement (Exh.P.B.) was made by the complainant and the same was reduced into writing by Muhammad Nawaz, Sub-Inspector (P.W.11) when he was present at "Mor Buchiana", Mohallah Islampura. The statement Exh.P.B. Was sent by the said Police Officer to the Police Station for the registration of the formal F.I.R.
4. Muhammad Nawaz, Sub-Inspector, thereafter, assumed the investigation and proceeded to the place of occurrence. On reaching at the spot, he prepared inquest report Ex.P.II and the injury statement Ex.P.J. Of the deceased. He deputed Muhammad Iqbal, Constable, to escort the dead body to the Civil Hospital, Jarnawala for autopsy. The blood-stained earth was taken over from the place of occurrence and was secured vide memo. Exh.P.E. The recovery memo. Was got attested.
The statements of the witnesses were also recorded, under section 161, Cr.P.C., at the spot. On the next day, Chaddar P.3, shirt P.4 (both blood-stained), were presented before him and he took into possession vide memo. Exh.P.F. He arrested Nazir Masih on 2-3-1990. The accused while in custody led to the recovery of 'Chhuri' P.2 from his residential room which was taken into possession vide memo. Exh.P.D. The green-sheet P.1 was produced by the complainant and was also secured vide memo. Exh. P.C. The site plan Exh.P.D/1 of recovery was drawn by him. The site plan of place of occurrence Exh.P.A. And Exh.P.A./1 was got prepared from Aurangzeb, Draftsman, on the pointation of the P. Ws. Under his direction. He, on the finalisation of the investigation, challaned the accused to face the trial.
6. Dr. Muhammad Afzal (P.W. 9) Medical Officer, Civil Hospital, Jaranwala, on 26-2-1990 conducted the post-mortem examination on the dead body of Miraj Din and the following injuries were found on the dead body:---
(1) An incised wound 6 c.m. x 1.5 c.m. x 3 c.m. Deep on right side of neck.
(2) An incised wound 3 cm x 1/2 cm on left side of neck.
(3) An incided wound 5 cm x 0.5 cm, 3 cm below injury No,1 .
(4) An incised wound 3 cm x 1 cm on left thumb and left index finger.
(5) An incised wound 3 cm x 1/2 cm on left cheek.
7. All injuries except injury No,1 were superficial and skin deep. On dissection, injury No,1 cut the carotid artery on right side which caused bleeding, shock and death. All the injuries were simple except injury No,1 which was grievous. All injuries were caused by sharp-edged weapon, and were ante-mortem.
8. Heart was empty and healthy. Stomach was healthy and contained 300 ml of semi-digested food. Small intestine was healthy and contained 200 ml of semi-digested fluid. Large intestine was healthy and contained faucal matter. Bladder was healthy and empty. Rest of all the organs was found healthy. In the opinion of the doctor, injury No,1 cut the right carotid artery leading to blood loss, shock and death. This injury was sufficient to cause death in the ordinary course of nature.
9. The prosecution, in order to substantiate its case, produced 11 witnesses in all. Aurangzeb Draftsman, P.W.1 on 1-3-1990 under the direction of the Police and on the pointation of the (P.Ws.), visited the spot and on 4-3-1990 prepared the site plan Exh.P.A. And Exh.P.A./1. Muhammad Afzal, Head. Constable No,2736 on 25-2-1990 on the receipt of the complaint Exh.P.B. Formally recorded the F.I.R. Exh.P.B./1. Niaz Muhammad (P.W. 3), reiterated the version he had already given in his statement Exh.P.B. Muhammad Ali, P.W.4, deposed and supported the version of the complainant of this case and gave ocular account. Muhammad Iqbal, Constable, (P.W.5) deposed that he on 25- 2-1990 was handed over dead body of Miraj Din and he had escorted the same for autopsy to the Civil Hospital, Jaranwala. He also produced last worn clothes of the deceased Chaddar P.3, shirt P.4, both blood-stained, before the Investigating Officer. Akbar Ali, Constable (P.W.6) stated that 7-3- 1990 he was posted as Muharrir of the said Police Station and he was handed over two sealed parcels containing blood-stained earth and Churri (dagger), and he had transmitted the same to the office of the Chemical Examiner at Lahore. Muhammad Iqbal, Muharrir Head Constable (P.W.7) deposed that on 25-2-1990 he was handed over the sealed parcel containing blood-stained earth and he kept the same in the safe custody of Malkhana of the Police Station on 5-3-1995. A sealed parcel containing dagger was also kept for the custody in Malkhana by him. He, on 7-3-1990 handed over both the parcels intact to Akbar Ali, Constable for onwards transmission to the office of the Chemical Examiner. Muhammad Siddique (P.W.8) stated that he had identified the dead body of Miraj Din deceased at the time of the post-mortem examination. P.W.10 Ghulam Chishti, another eye-witness, supported the statements made by the complainant Niaz Muhammad P.W. 3 and gave ocular account. Muhammad Nawaz, S.I. P.W. 11 investigated the case and prepared the challan against the accused person. He gave all the details of his investigation.
10. On the conclusion of the evidence of the prosecution evidence, learned trial Court had put the same to the accused person, who refuted the allegations levelled against him and professed innocence. The statement of the accused/appellant was recorded under section 342, Cr.P.C.
Neither the accused/appellant appeared in the witness-box to make the statement in disproof of the allegations levelled against him on oath under section 340, subsection (2) of Cr.P.C. Nor any defence evidence was produced.
11. The learned counsel for the appellant has emphatically argued that the prosecution could not prove its case beyond any reasonable shadow of doubt; that there are major discrepancies among the statements of the P.Ws.; that the manner in which the occurrence had taken place; put forth by the prosecution, does not appeal to the man of ordinary prudence. He vehemently argued that it was an unseen occurrence and the witnesses were not present at the place of occurrence.
12. Conversely, the judgment of the learned trial Court was supported by the learned counsel for the State on the ground that although the minor discrepancies do exist in the statements of the eye-witnesses, yet it does not damage the case of the prosecution in toto. The accused committed a very heinous crime and he has rightly been convicted and sentenced. He is not entitled to have any leniency. Since the prosecution has proved its case beyond any doubt, the appeal of the accused/appellant is liable to be dismissed.
13. I have heard the learned counsel at full length and have also given my anxious consideration to the facts of the case. I have examined the record very minutely with the assistance of the learned counsel of the respective parties.
14. The prosecution has tried to prove its case against the accused/appellant on the basis of the ocular evidence, medical evidence and the motive behind the murder of Miraj Din deceased. First of all, I would like to deal with the ocular account given by the witnesses. Niaz Muhammad P.W.3 (complainant) in his examination-in-chief deposed that he, alongwith other witnesses, was present in the house of the deceased and had left the house following the appellant and the deceased after ten minutes as they had some suspicion in their minds. When they reached near the Octroi Post No,8, both the abovesaid persons were present there. The appellant took the 'Churri' out and gave a 'Churri' blow which launched on the right side of the neck of the deceased, second blow was inflicted on the left cheek near the eye and third was inflicted at the palm of the left hand of the deceased. It had happened in the light of the lamp of octroi post. The motive to cause the murder was to having a possession of green-sheet. After 5/6 days of the occurrence he had also witnessed the recovery of the crime weapon effected at the pointation of the accused while in custody. He was confronted with his statement Exh.P.B. Where he made the deliberate improvements. He very categorically stated that the lamp of octori post was lit in the veranda but none of the employee was present there in the room. Although about 100 persons had gathered at the place of occurrence on their hue and cry, but there was no Abadi nearby. The dead body was lying on the north side of the octroi post whereas the veranda was on eastern side. The Investigating Officer did not ask anything from the people who had gathered there after the occurrence. He very plainly stated that his statement and the statements of other witnesses were recorded in the Police Station, by the Police Officer after getting himself satisfied through spot inspection.
15. Muhammad Ali P.W.4 also made a similar statement regarding the injuries inflicted on different parts of the body of the deceased by the accused/appellant. He stated that all the three eye- witnesses had gone to the house of the deceased together. He supported the version of the complainant with regard to the motive of murder. He deposed that they were at the distance of one Killa from where they had seen the occurrence. He very frankly stated that there were two employees present in the room of octroi post at the time of occurrence. The lamp was lit inside the octroi post. Further stated that the employee had bolted from inside and none had reached there at the spot out of fear. There was not even a single person present near the dead body when the Police had reached there. He very categorically stated that they had taken the dead body to the hospital after staying half an hour there. They had gone to the Police Station where their statements were recorded by the Police Officer after having satisfied pertaining the murder of Miraj Din. The statement of the complainant was also recorded in the Police Station. His statement was recorded once in the case and after 4/5 days he had joined the investigation in the Police Station and thereafter he did not associate. He also admitted that complainant and Ghulam Chishti P.Ws.
Were his relatives. He further deposed that they had taken the lamp from inside the octroi post and, thereafter, had gone to the place of occurrence which was sorrounded by grown up trees and bushes. The door of octroi post was towards west.
16. Ghulam Chishti P.W.10, another eye-witness, who also gave the details of the injuries inflicted by the accused on the different parts of the deceased as it has already been given by the other two eye-witnesses. He further stated that Mohallah Shamaspura is at a distance of one mile from octroi post No,8. The distance between the accused person and the vitnesses was about 2/3 Killas but at the time of occurrence it reduced to 10 Karams only. They had heard the noise from the place of occurrence and had run towards that place after hearing the noise. There was only one employee present in the octroi post at that time. He was sitting inside of the room. He very categorically stated that they had taken a lantern from employee of 'Chungi' and went to the spot. It took 5/7 minutes in their running towards the place of occurrence and getting the lantern from the octroi post. He very frankly stated that they took the lantern as night was dark.
17. Now I revert to the medical evidence. Dr. Muhammad Afzal, Medical Officer, Civil Hospital, Jaranwala (P.W.9) who on 26-2-1990 at 10-00 a.m. Conducted the post-mortem examination on the dead body of Miraj Din son of Muhammad Din deceased and found five injuries on the person of Miraj Din deceased (i) on the right side of the neck; (ii) on the left side of the neck; (iii) on the right side of the neck below the injury No,4; (iv) left thumb and left index finger, and (v) on the left cheek. The eye-witnesses have very categorically stated pertaining to the three injuries and they have not given any detail of the other two injuries. If the statements of the eye-witnesses and the medical evidence is kept in juxtaposition, the statements of the eye-witnesses are not found in consonance with the medical evidence.
18. Muhammad Nawaz P.W. 11 after giving the details of his investigation during the trial, he also stated that when he had visited the spot, the octroi post was closed and no employee was present there. He further stated that lamp was lit and it was outside the octroi post. He further stated that he had not taken into possession the lamp. He made it clear that the lamp means electric bulb. He also stated that no person was present there at the spot except the P.Ws. When he had reached there. He also stated that he had not associated any other person except the P.Ws. In the investigation. He very categorically stated that the statements of Muhammad Ali and Ghulam Chishti were recorded at the spot. He stated pertaining to the recovery of crime weapon that the recovery was effected on the last date of the remand of the accused person and he had not shown in the site plan Exh.P.D./1 that the house from where the recovery was effected was surrounded or not. He had also not mentioned anything in his investigation about the neighbours of the house from where the recovery was effected. No respectable inhabitant of the area was asked to associate and to witness the recovery, though the recovery was effected from the populated area.
19. Despite the major discrepancies in the evidence of the eye-witnesses, one thing they have unanimously said that the statement of the complainant and other two eye-witnesses were recorded in the Police Station and that too after the spot inspection. The registration of the case, after the spot inspection creates a serious doubt in one's mind and the sanctity of the First Information Report loses its credibility. The registration of the case, after preliminary investigation, is not only an illegal action of the Investigating Officer but also casts a serious doubt.
20. In view of the statements discussed above, there are major discrepancies and deliberate improvements in the statements of the witnesses at the time of the trial. It makes quite clear from the statements of the eye-witnesses that the occurrence had taken place surrounded by the grown-up trees and bushes. It was a dark night. They could not see from a place they have stated to have seen. The statement of the witnesses that first they heard the noise and then they went to get the lantern from the octroi post and thereafter they reached the place of occurrence, it does not appeal to reasons that a person who had killed the deceased in the bushes and remained there till they reached there in the dark night. In view of the major discrepancies it makes abundant clear that the occurrence was not seen by the witnesses nor they were present nearby and it seems to be an unseen murder. Since I have disbelieved the ocular account produced by the prosecution, no other witness is required to be discussed.
21. In view of the above discussion, the prosecution has failed to prove its case beyond cluster of doubt. I accept the appeal, set aside the conviction and sentence and acquit the appellant of the charge by giving him the benefit of doubt.