' Rehmat Din alias Deenu and Muhammad Mahboob were tried by the learned Additional Sessions Judge, Islamabad, for the murder of Arshad Mahmood. Vide judgment, dated 26-5-1992, learned Additional Sessions Judge convicted both the accused under section 302/34, P.P.C. And sentenced each of them to imprisonment for life plus to pay a fine of Rs,40,000. In default of payment of fine, each of them was ordered to undergo R.I. For five years each. Benefit of section 382-B, Cr.P.C. Was, however, extended to them.
Both the convict/appellants have challenged their convictions and sentences through this appeal.
2. The facts of the case are that one Abdul Hamid (P.W.4) lodged report at Police Station Sihala on 25-12-1990 at 10-30 a.m. That on 24-12-1990 at 6-00 p.m. He alongwith his mother and two brothers, namely Arshad Mahmood alias Saddu (now deceased) and Shakeel Anwar were present in their house when Rehmat Din alias Deenu and Muhammad Mahboob (accused persons) while armed with .30 bore pistol and 7 mm rifle came there. They asked Arshad Mahmood alias Saddu to take out his .12 bore licensed gun and accompany them to village Dadocha Police Station Rawat to attend a marriage. Arshad Mahmood accordingly took out his gun and accompanied the accused.
However, the complainant, his mother and brother Shakeel Anwar took exception and told Arshad Mahmood not to accompany them as the accused were their enemies. This proposal was not accepted by Arshad Mahmbod deceased and instead he claimed that the accused were his friends and that he had been accompanying them many a times prior to that date. Arshad Mahmood while leaving the house told his brother and mother that he would be back some time at night, but he failed to do so. Next morning at 8-00 a.m. i,e, 25-12-1990, the complainant and his brother Shakeel Anwar proceeded towards village Dadocha in search of Arshad Mahmood.
Incidentally, when they reached near the shrine of Sain Choora Rakh Lal Hussain at about 9-00 a.m., they noticed Rehmat Din accused, while armed with pistol, firing 10/12 shots on Arshad hitting him on the left side of his abdomen. The complainant stated in the F.I.R. That he and Shakeel Anwar had seen the occurrence. They raised alarm. Arshad Mahmood started running towards them but Mahboob accused fired a shot with rifle hitting him on the back. Arshad Mahmood alias Saddu sustained number of injuries and succumbed to the injuries near Ziarat Chura Sain then and there.
' Motive for the offence mentioned in the F.I.R. Is that about two years prior to the occurrence a false case of abduction of sister-in-law of Rehmat Din accused was got registered against the deceased wherefor both the accused had warned the deceased that they would take his life.
3. To prove its case, prosecution examined 12 witnesses.
4.T.W.1 Muhammad Younis, A.S.I. Appeared and stated that on 25-1-1990 while he was posted as Moharrar at Police Station Sihala the Investigating Officer gave him sealed parcel of blood-stained earth and a sealed parcel of 7 mm empties and third sealed parcel of .12 bore empties seven in number, which he kept in the Malkhana. Sealed parcels of 7 mm rifle and .12 bore pistol were handed over to this witness on 1-1-1991 by the Investigating Officer, Which he kept in the Malkhana.
On the same date, he handed over these three parcels to Allah Ditta, Constable for transmission to the Office of Chemical Examiner and Forensic Science Laboratory, whereas two sealed parcels of rifle and pistol were delivered to Muhammad Arshad, Constable on 9-1-1991 for being taken to Forensic Science Laboratory. He stated that no body tampered with any of these parcels as long as the same remained in his custody.
5. P.W.2 Muhammad Riaz, Constable appeared and stated that on 25-12-1990 he escorted the dead body to D.H.Q. Hospital, Rawalpindi in the company of Arshad Constable. The dead body was handed over to Medical Officer. On 26-12-1990 the autopsy was conducted and the Doctor gave him last worn blood-stained clothes of the deceased, which he delivered to the Investigating Officer including one sealed phial containing pellets In cross-examination he has stated that dead body was given in his custody from the jungle of village Bunna Gurrha. He reached at the place of occurrence alongwith Safdar Hussain, S.I. In a private Suzuki, which was parked in the area of village Mughlan and from where we have covered one mile distance on foot and reached the spot.
Certain persons from public accompanied them reached the place where the dead body was lying. According to him the dead body was handed over to' him at about 5-00 p.m. The dead body was lying in a dense jungle. They were the persons who reached first of all at the place where the dead body was lying, while the other arrived there subsequently. He has admitted that except by walking on foot, one could not reach the said place by any other means. The village Mughian is towards south where the dead body was lying.
6. P.W.3 Dr. Muhammad Arshad Khan, conducted the post-mortem examination of the deceased on 26-12-1990 at 9-30 a.m. He noted the following injuries on his body:--
(1) There were nine wounds on left upper abdomen and lower chest in an area of 10 c.m. Diameter, out of which four wounds were of entry p.8 c.m. Diameter, five rounded abrasions 1 c.m. Diameter little large than pellets. No blackening/charring.
(2) Wound of entry 0.7 c.m. On mid chest back on left side surrounded by abrasion collar 8 c.m.
Away from mid line.
(3) Wound of exit 1 c.m. Diameter on chest front left side 5.5 c.m. From the left nipple.
' In his opinion the cause of death was due to injury No,2 which injured the heart and left lung, while injury No,1 also contributed towards death as it had injured the liver and gut. These injuries were described to be sufficient to cause death in the ordinary course of nature. The injuries were declared ante-mortem.
' Probable time between injuries and death was opined to be immediate while between death and post-mortem within 36 hours.
' In cross-examination, he stated that injury No,1 showing nine wounds was the result of single shot.
Injuries Nos.1 and 2 could not be caused by one and the same weapon because injury No,1 was the result of fire from cartridge while injury No,2 was caused by bullet fire. According to him, injury No,1 might have been caused from a distance of 2 or 3 yards and not beyond from 4 yards distance.
7. P.W.4 Abdul Hamid and P.W.5 Shakeel Anwar gave the ocular account of the occurrence. Both are real brothers of the deceased. Abdul Hamid P.W.4 lodged the and gave the details of the occurrence as narrated above.
8. P.W.6 Allah Ditta, Constable, who received two sealed parcels one blood-stained earth and the other of the empties from the Moharrar on 1-1-1991, which he took to Forensic Science Laboratory and Chemical Examiner Office. He deposited the same intact on 2-1-1991 in the respective departments.
9. P.W.7 Iftikhar Ahmad, Patwari, prepared the site plan of the place of occurrence. According to this witness Upper Gurha village, in the area of which the dead body was lying in a dense jungle, is towards east of village Dadocha and the intervening distance is three kilometres. Both these villages are linked by Katcha passage. The place of occurrence, as he stated is towards north from Upper Gurha and is away at distance of two furlongs. In the site plan the points Nos.1, 2, 3 and 5 are not situated on the passage but are aside therefrom. He showed ignorance about any passage at a distance of 118 paces from points Nos.1, 2, 3 and 5 leading to Miana Thub Shrine. He categorically mentioned in his cross-examination that he did not see any passage leading from Bunnah Gurha to the place of occurrence. He further stated that route from Bunnah Gurha to Dadocha is via Upper Gurha.
10. P.W.8 Muhammad Siddiq is a witness of recovery of .12 bore pistol belonging to Rehmat Din accused, which was taken into possession vide memo. Exh.P.E., signed by him and Munir Akhtar P.W.
He also witnessed the recovery of 7 mm rifle got recovered by Mahboob accused from his residential house which was taken into possession vide memo. Exh.P.F. Signed by this witness and Munir Akhtar.
11. P.W.9 Muhammad Banaras is a witness of seven crime empties Exh.P.9/1-7 of 7 mm rifle and seven empties of .12 bore Exh.P.10/1-7 taken into possession vide memo. Exh.P.G. From the place of occurrence.
12. P.W.10 Muhammad Siddiq, father of the deceased is witness of recovery of .12 bore pistol of the deceased which was taken into possession from the place of occurrence. He is also a witness of taking into possession blood-stained dry grass from the place of occurrence vide memo. Exh.P.J.
13. P.W.11 Safdar Hussain, S.I. Recorded F.I.R. Exh.P.C. On the statement of Abdul Hamid P.W. He also recorded the supplementary statement of Abdul Hamid because allegedly due to mental worry, he had wrongly described the bore of the weapon as .30 bore instead of .12 bore. He conducted the investigation partly of the case, prepared the inquest report Exh.P.L., injury statement Exh.P.M. And despatched the dead body for autopsy. Besides the crime empties, he also took into possession Chaddar P.11 of the deceased vide memo. Exh.P.H.
14. P.W.12 Muhammad Arshad, Constable stated that on 25-12-1990 he joined the investigation as prosecution witness. Safdar Ali, S.I. Directed him to escort the dead body of Arshad Mehmood alongwith Riaz, Constable to D.H.Q. Hospital Rawalpindi for its autopsy. His statement is of formal nature as that of P.W.2 Muhammad Riaz, Constable. He also mentioned that on 9-1-1991 he was given scaled parcel containing .12 bore pistol and other sealed parcel of 7 mm rifle, which he delivered to Forensic Science Laboratory, Lahore intact.
15. After the close of the prosecution evidence the statements of both the accused were recorded under section 342, Cr.P.C. As per statement of Muhammad Mehboob appellant he categorically took the plea of alibi that at the time of alleged occurrence he and his co-accused Rehmat Din were busy in construction of mosque in their village and they never visited the house of the complainant. Same is the statement of Rehmat Din. In addition to that Muhammad Mahboob appellant has stated that P.Ws. Are highly interested and inter se related to the deceased closely. It is a blind murder. He and his co-accused had a quarrel with the complainant with regard to the Suzuki fare/charges prior to the occurrence thus to take revenge he got them implicated in this case falsely being in league with the police. After the statements of the accused, defence evidence was produced by the appellants.
16. D.W.1 Ghulam Mustafa, appeared and stated that on 15-1-1990 he was getting constructed his house by Ghulam Muhammad Mason, who did not turn up on 24-12-1990, as such he left his house at at 6-30 a.m on 25-12-1990 for calling him from his house in village Miana Thub. When he reached near Ziarat Choora in Lal Rakh he found dead body of Arshad Mehmood lying there. He became frightened and returned when S.P. Tufail and 3/4 other persons met him in the area of village. Upper Gurha to whom he disclosed about the dead body of Arshad Mehmood. On their directions he informed about the incident to the relatives of the deceased. According to him, he informed Sadiq, Shakeel and Hamid father and brothers of the deceased respectively at about 7- 30 a.m.
17. D.W.2 Mehr Khan, was Lumberdar of village Chuchkal. He stated that on 24-12-1990 lie remained busy in getting construction of mosque in his village till 4-00 p.m. And also on 25-12-1990 as shuttering and lental work was being done during those days. According to him 10/12 persons of the village including the present appellants remained busy in the construction/shuttering work till 25-12-1990.
18. Learned counsel for the appellants/convicts seeks acquittal, inter alia, on the following grounds:-
(a) that the motive for the offence has not been proved because the alleged abductee has not been proved to be related, in any way, with the appellants;
(b) that the last seen alive evidence is of a nature that it does not lend any support to the prosecution evidence especially for the reasons that the deceased left the house a day prior to the alleged occurrence and went to village Dadocha as per version of the prosecution. Thus, the time- gap in between is such that it cannot be called that last seen alive evidence is worth consideration;
(c) that both the eye-witnesses are real brothers of the deceased. Admittedly, there is enmity between the appellants and the deceased family. The evidence of such like witnesses cannot be relied upon unless corroborated by some evidence coming forth from independent source, which lacks in this case;
(d) that as per story of the prosecution, both the eye-witnesses, real brothers, happened to see the incident of murder. Their presence at the alleged place of occurrence is highly unnatural and can be said that their presence has been shown with a view to make out some ocular evidence which is highly doubtful and unreliable. The place of occurrence. Is located at such a site that even if the story of the prosecution is believed that these witnesses were going to village Dadocha in pursuit of their deceased brother, their presence, especially at the alleged time of occurrence, cannot be accepted. The place of occurrence is located in deserted place where arrival of these witnesses in the given circumstances seems to be highly impossible. Learned counsel categorically stated that the deceased was done to death but the occurrence was unseen and for ulterior motive the complainant party in conspiracy with the police made the real two brothers as eye-witnesses with a scheme to make out some case against the convict/appellants;
(e) that the conduct of both the alleged eye-witnesses at the time of occurrence as narrated is such that it also creates doubt in their version. A real brother was done to death in their presence allegedly but in spite of that their clothes are not stained with blood. It was expected normally of the real brothers that they must have tried to move or carry their brother who was allegedly injured in their presence;
19. On the other hand, learned State counsel Raja Muhammad Ayub Kiani opposed the contentions of the learned counsel for the appellants and stated:--
(a) that in this case there are two eye-witnesses though they are real brothers of the deceased; and
(b) that the weapons of offences recovered at the instance of the accused, match with the empties of .7 mm rifle and .12 bore pistol.
20. Learned State counsel reluctantly opposed the prayer of the appellants, as at one stage he frankly stated that the prosecution case was full of weaknesses. Both the eye-witnesses are chance witnesses and in fact their presence at the place of occurrence at the critical time seems to be highly unnatural. Because the place of occurrence is located on the northern side whereas village Dodacha is located on eastern side of Bunna Gurha the residence of the complainant.
21. He also conceded that regarding type of weapons of offence, improvements have been made by the prosecution witnesses. In addition to that non-matching empties allegedly taken into possession from the place of occurrence, demonstrate that at least two other weapons of offence were also used in the incident. Alternatively it can be said that there were more than two accused who happened to commit the murder and left behind the empties 14 in number at the place of occurrence of different description.
22. I have heard the arguments of the learned counsel for the parties, gone through the statements of the prosecution and defence evidence minutely for the just decision of the case.
23. The prosecution has produced the following type of evidence.
(i) Ocular evidence.
(ii) Recovery evidence.
(iii) Medical evidence.
24. As far as the ocular evidence is concerned, there is no denial that both the eve-witnesses are real brothers of the deceased. They are residents of Burma Gurha while the place of occurrence was located in the northern side of their residence. According to the prosecution version both the brothers left their house on 25-12-1990 in the morning in search of their deceased brother for village Dadocha, which is located on the eastern side. Naturally, if they were to go to village.
Dadocha, they could not turn towards north to reach village Dadocha which was situated on the eastern side. Arrival of both these witnesses at the critical moment when allegedly the appellants were fighting firing at the deceased does not appeal to reasoning by any dint of imagination. Their arrival at that moment is such a chance which creates doubt and puts strong dent in reliability.
Lying of dead body in a dense jungle where no Pacca or Katcha path leads, compels. Me to be blunt in saying that the story of eyewitnesses of coming at the place of occurrence and going to police station, at the critical moment is afterthought with a view to make both these brothers as eye-witnesses of the occurrence. This belief gets further strength when the prosecution case is that 14 empties were recovered from the place of occurrence. Seven bullet empties of 7 mm rifle and 7 empties of .12 bore pistol. But out of seven bullet empties only one matches with the .7 mm rifle allegedly recovered from an accused and two .12 bore empties match with the .12 bore pistol allegedly recovered from the other accused. There is no explanation from the prosecution with regard to the other empties not matching with both the weapons and as to who happened to fire those. The outcome of this is that at least there were four weapons used in the occurrence. It can safely be said that there were more assailants than two but the version of two eye-witnesses is only with regard to the two. Here it may be stated that a person can tell a lie but the facts do not.
This circumstance also damages the veracity of the eyewitnesses.
25. Learned trial Court has mentioned that there is evidence of last seen alive of the deceased who left the previous night in the company of the accused from his residence. The time gap, the distance and the place of occurrence leave no scope to resort to the last seen alive principle of evidence.
26. As for as the recoveries are concerned, it is a case of the prosecution that the empties of the alleged weapons of offence were taken into possession from the place of occurrence on 25-12- 1990. The weapons were recovered on 1-1-1991. Both the weapons and all the recovered empties were despatched to the Forensic Science Laboratory on the same date i,e, 1-1-1991. This creates doubt in the prosecution case and also about the honest investigation. Why the empties were kept in the police station for about 6/7 days and sent to the Laboratory instantly when the accused were allegedly arrested and their statements recorded? Failing to do fairly belittles the honest working of the investigating agency and can be said that it was not fair and honest.
27. There is crude improvement regarding the bore of pistol. According to F.I.R., .30 bore pistol was used but later on it was changed to .12 bore. Obviously it was changed with a view to cover the lacuna and probably it was added after getting the deceased medically examined from the doctor who recovered the pellets from the dead body.
28. There is conflict between the medical and ocular evidence about the numbers of shots fired at the deceased. According to F.I.R. And the statement of the complainant 10/12 fires were shot at the deceased by Rehmat Din accused with his .30 bore pistol which hit him on his abdomen. On postmortem there were neither 10/12 fires shots injuries on the abdomen of the deceased nor of .30 bore. This also belies their presence as eye-witnesses.
29. The description of the place of occurrence has been given besides other by P.W.4 Abdul Hamid P.W.5 Shakeel Anwar and P.W.7 Iftikhar Ahmad, Patwari, Naqsha Navees. As per statement of P.W.4, I quote the relevant portion of his statement below:-- "The place of occurrence is much far away than the house of the accused from our house. None of members of our house contacted the houses of accused in the morning of 25-12-1990 to know about the deceased. Village Upper Gurha is a bigger village than their village and it is towards cast of our village. Village Dadocha is towards southeast of village upper Gurha. The place of occurrence is towards north of village Upper Gurha. I and Shakeel were not carrying any arm, when making search for the deceased. We started treading the passage straight away leading to the place of occurrence and did not go here and there."
' According to P.W.5 Shakeel Anwar the location of place of occurrence has been described in the following words:-- "Our village is towards west of the place of occurrence and not in the direction of west-south."
' Lastly, P.W.7 Iftikhar Ahmad, Patwari made detailed statement regarding the description of location of the place of occurrence. As per his statement, it is located on the northern side of village Upper Gurha, while village Dadocha is towards east. Thus the version of both the alleged eyewitnesses that they went out in search of deceased from their house-Bunna Gurha towards Dadocha and reached the place of occurrence on the critical moment does not appeal to reasoning. The place of occurrence is towards northern side of the village Upper Gurha while village Dadocha is located towards east-south side of this village. Going towards east and reaching at the place of occurrence, which is northern side, as stated by this witness is not understandable. Thus, the aforesaid diametrical conflicting statements cannot be believed.
30. Regarding motive, the prosecution miserably failed because alleged abductee and her relation has not been proved to connect the accused. The trial Court has also not relied upon the prosecution version of motive.
31. There is an important feature in this case brought to light by the Investigating Officer P.W.11, who admitted in cross-examination that the deceased stood involved as accused in 5 to 6 cases. He stated that he used to be associated in investigations of theft and dacoity cases. Once he resorted to firing while abducting a woman. In addition to that there was a case of murderous assault against the deceased. It was viewed by this witness that deceased was habitual in committing crime and used to conceal himself in jungle to save his skin from the legal process. Both the brothers (P.Ws.) of the deceased conceaka this part of the deceased's life. In addition to this, it is sufficient to quote here that prosecution case is that .12 bore gun was taken into possession from the place of occurrence on the very first day. While P.W.S Shakeel Anwar has categorically stated that .12 bore gun of the deceased was taken away by Rehmat Din after commission of crime. This all seems to be a fabrication which is further confirmed by the statement of P.W.10 father of the deceased, who stated that he produced the .12 bore gun of the deceased to the Investigating Officer, which was taken into possession at the place of occurrence. This sounds me to discredit the story of deceased's accompanying the accused with his gun in the presence of his two brothers and mother from his place of residence. Reality seems to be that father was made to produce the gun by giving out twisted story of the alleged occurrence.
32. With the aforesaid background, the statements of the accused and the defence evidence have important bearing in the matter. Persistently from the beginning the version of the accused remained that they were busy, on the day of incident, in their village in the construction of mosque building. To that effect D.W.2 Mher Khan corroborated their statements, who is Lumberdar of the village.
33. Critical analysis of the facts and circumstances make this Court to believe that it was unseen occurrence. D.W.1 Ghulam Mustafa disclosed the incident of murder to the relatives of the deceased, on which they came to the place of occurrence and then after consultation and deliberations reported the matter in the police station with a view to implicate the accused in this case falsely. The incident was unseen. Both the alleged eye-witnesses did not see the occurrence and have deposed falsely. In brief the prosecution evidence stands discredited for the following reasons:-
(a) that both the alleged eye-witnesses are closely related to the deceased being brothers and are inimical towards the accused. This fact stands admitted;
(b) that there are crude improvements in their statements regarding the type of weapon used in the commission of crime and also the manner in which they claim their presence at the place of occurrence at the critical moment. They are chance witnesses and their arrival in the jungle and witnessing the occurrence after covering the distance of few kilometres seems to be afterthought;
(c) that the last seen alive evidence is of no importance especially when there is gap of extensive time in between the occasion of seeing the deceased for the last time in the company of the accused, time of incident and the distance;
(d) that the recovery evidence cannot be trusted in the circumstances when crime weapons and empties were kept in the police station together by the investigating agency. In spite of the fact that about 6/7 days earlier the empties were taken in to possession from the place of occurrence;
(e) that the conflicting statements do go to the root of the prosecution case regarding which it can be said that crude improvements make the prosecution case highly doubtful;
(f) that the motive has not been proved as alleged to connect the accused with the crime; and
(g) that for the just decision of the case punishable, with capital punishment, the prosecution case must be going forthwith from the highly reliable sources which lack in this case.
34. In the given facts and circumstances of the case the statement of the accused coupled with their defence evidence do lend some support in doubting the authenticity of the prosecution version.
35. For the foregoing reasons, I accept this appeal, set aside the conviction ordered by the learned Additional Sessions Judge, Islamabad vide his order, dated 26-5-1992 and acquit the accused/appellants by giving them benefit of doubt.