IFTIKHAR HUSSAIN CHAUDHRY, J.- Muhammad' Ramazan alias Boota son of Barkat Ali was convicted for offence under Section 302, PPC for causing qatl-a-and of Muhammad Asif and was awarded death sentence and a fine of Rs.20.000/- by judgment dated 24.11.1991 passed by Additional Sessions Judge. Lahore in case FIR No. 20l, dated 27.3.1991 registered at Police Station Mughalpura, Lahore.
2. The prosecution case as reported by Javed Iqbal complainant PW-7 was to the effect that on 27.3.1991 at about 6/(S. 15 p.m. He alongwith his brother, Sohail Butt was proceeding to their house after purchase of eatables for "Iliari". Muhammad Asif deceased, brother of the complainant was going ahead of them. When Muhammad Asif reached in front of the house of Sana Ullah, Rashid son of Barkat Ali and his brother Muhammad Ramazan alias Boota came there. Muhammad Rashid accused raised a lalkara and asked his brother Muhammad Ramazan alias Boota to do away With Muhammad Asif and to take revenge of the quarrel having taken place two days earlier.
Muhammad Ramazan alias Boota brought out mouser and started firing on Muhammad Asif. The shots find by Muhammad Ramazan alias Boota hit Asif on the back of his head, chest, right arm- pit, front and back of the left upper arm and waist, who fell down. Muhammad Rashid .And Muhammad Ramazan alias Boota accused left the place while raising "lalkara" and firing in the air towards street No. 8. The complainant and his brother Sohail But1 removed the injured to the hospital but he died on the way to the hospital.
Motive for the occurrence as set up by the prosecution was that two days prior to the occurrence Muhammad Ramazan alias Boota and Muhammad Asif quarreled with one another at Majjawala Adda due to business rivalry and due to that grievance both the accused murdered Muhammad Asif Butt.
3. Muhammad Siddique, Sl-PW. Ll, after receiving information about the incident, went to the place.
Of occurrence, recorded statement of Javed Iqbal Ex.PF and sent the same to the police station for formal registration of the ease. He inspected the spot, prepared injury statement Ex. P.I and inquest report Ex.PH The Investigating Officer prepared rough-site plan of the place of occurrence-Ex. P.L and took into possession three crime empties from the spot-vide Memo. Ex.PD, and blood-stained earth from the place of murder of Muhammad Asif Butt vide memo.
Ex PC. He sent the dead-body to the mortuary for post-mortem examination. He arrested Muhammad Ram/an alias Boota accused and recovered at his instance pistol P.4 which was secured vide Memo. IIX.PG. He also arrested Rashid, accused, on 7.4.1991 and recorded the statement of witnesses. The Investigating Officer, challaned the accused to Court after completion of investigation.
4. Prosecution examined 12 witnesses at the trial to prove its. Case against the accused.
5 Dr. Muhammad khalid-P.W. I conducted post-mortem examination on the dead-body of Muhammad Asif Butt and found the following injuries on the body:
(I) A lacerated wound circular in shape 0.7.x 0.7 cm in size into going deep with inverted margins with collar of abrasion on left side of the back of the head situated 5.5. Cm from the root of left ear and 10 cm from the external occipital protuberance.
(2-A) A lacerated wound circular in shape 0.7 x 0.7 cm in size into going deep with inverted margins with collar of abrasion on outer side of the left arm situated 5 cm above the elbow and 22 cm below the top of the shoulder.
(2-B) A lacerated wound 2 cm x 1 cm x going deep with inverted margins on the medial side of left arm situated 12 cm above the elbow and 9 cm below the axilla.
NOTE: Humerus, the bone underlying injury No. 2-A and 2-B fractured.
(2) A lacerated wound 2.5 x 1.5 cm x going deep with inverted margins with collar of abrasion on the outer side of left chest situated 14 cm from the axilla and 20 cm above the iliac bone.
(3) A lacerated wound 0.7 x 0.7 cm x going deep with inverted margins with collar of abrasion on the left side of the front of chest, blackening was also present all around the wound. This wound was situated 9.5 cm from the left nipple-9 cm from the midline. 14 cm from the top of the shoulder and 9 cm from the anterior axillary fold.
(4) A lacerated wound 1.5 cm. x 0.7 cm x going deep with inverted margins with collar of abrasion on the right anterior axillary line situated 1.5 cm from the axilla. 13 cm from the right nipple. 13 cm from the lop of right shoulder. There was peppering on an area of 20 cm x 13 cm around this wound.
All the injuries were ante-mortem and caused by fire-arm. Probable time that elapsed between injures and death was about half-an-hour and - between death and post-mortem examination was-about 12 to 24 hours. The Medical Officer tendered in evidence post-mortem examination report. As Ex.PA.
0. Iftikhar Ahmad PW4 testified about the motive of incident.
7. Muhammad Asghar PW:> furnished the eye witnesses account of the , incident and supported the prosecution case.
8. Younas Ali Draftsman prepared site-plan Ex.PE and Ex.PE.
9. Iqbal Javed complainant PW-7 reiterated the narrative contained in the NR. He also witnessed the recovery, of blood-stained earth from the place of murder of Muhammad Asif But1 deceased In the police vide Memo. Ex.PC and three crime empties .Vide Memo. Ex.PD. The witness attested both the memos. The complainant also witnessed the recovery of. Pistol-Ex. P.4 which was recovered at that instance of Muhammad Ramazan alias Boota.
10. Muhammad Siddique. SI. PW.1 1 testified about the various steps taken bv him during investigation as noted above.
11. Abdul Ha lee/. PW-12, identified the dead-body of Muhammad Asif deceased at the time of .Post- mortem examination.
12. Muhammad Naseeb. H.C. PW-2, Muhammad Aslant, constable PW-3. Mohammad Rafique, SI PW-8. Muhammad .Laved. E.C. PW-9 and Muhammad .Javed. F.C. PW-10 were formal police witnesses.
13. The accused in their examination. Under Section 342, Cr.P.C, denied the prosecution case and professed innocence. Muhammad Ramazan alias Boota took the following stand: "The case against me and my brother was registered on the basis of suspicion as one month prior to the present occurrence my father Barkat Ali requested Muhammad Asif Butt deceased not to indulge in evil activities at the shop of Labna which as situated near our house, Muhammad Asif deceased was a criminal involved in many criminal cases and suspicion were raised against us hence, the PWs. Deposed against us in the Court." The accused also examined six witnesses in defence who testified in terms that the accused were present in and "Iftar" function at the time of occurrence. Munir Ahmad. DW-6 produced First Information Reports Register of P.S. Mughalpura to show registration of 5 criminal eases against the deceased between the year 1979 to 1985 for offences under 'Sections--380. 506/307/380 P.P.C, and under Section 13 of the Arms Ordinance.
1965.
14. Learned trial Court believed the prosecution case to the extent ol Muhammad Ram/an alias Boota and convicted and sentenced him as noted above. Muhammad Rashid however, was acquitted from the case. The convict tiled tilled appeal against the conviction and sentence awarded to hint by judgment dated 24.11.1991 passed by Additional Sessions Judge. Lahore, while the complainant find Criminal Revision No. 130/1994 against Muhammad Ramazan on the ground that the trial Court had not specified the period which the convict was to undergo in the event of default. Learned trial Court also referred the matter under Section 374, Cr.P.C, vide Murder Reference No. 489/1992 lor confirmation or otherwise ol sentence of death awarded to Muhammad Ram/an alias Boota.
15. Learned counsel for appellant contended that the appellant was implicated in the case on account of suspicion alone and the incident as a matter ol fact w-as unwitnessed one and neither the complainant nor Muhammad Asghar PW- 5 had witnessed the occurrence. It was submitted that incident took place shortly before "Iftari" and the time of occurrence really did not admit, of presence of PWs. Or other persons living in that, locality to have seen the same. It was submitted that according to prosecution the accused and Asif Butt deceased had quarrelled with one another on account of business rivalry but no evidence worth the name was led at the trial to show that Asif Butt. Deceased, was doing anything for living or had any business premisses or did any business at all, It was argued that the deceased had considerable criminal record and that pointed to his vocation and lie could have done to death by any of his disgruntled enemies, It was argued that neither the complainant nor Asghar were residents of that street in which the occurrence had taken place and by no stretch of imagination they could have been present at the spot which was located considerably away from their houses at the time of "lftari" when the occurrence had taken place. It was also argued that medical evidence clearly showed that deceased was find at by weapons of different calibre and that showed that number of assailants was larger and different types of weapons were used in the incident and this fact went a long way in smashing the prosecution version. It was argued that the evidence on record was too deficient qualitatively and quantitatively to have connectec the appellant within the commission of offence.
16. Learned counsel for the State supported the impugned judgment.
17. Learned counsel for the complainant submitted that substitution was a rare phenomenon and the contentions being raised on behalf of the defence were hollow and did not merit any consideration, It was argued that motive incident was proved by Iftikhar Din PW-4 while the actual incident was proved by Iqbal Javed PW-7 and Muhammad Asghar PW-5 who had absolutely no enmity with the appellant and it has not been shown as to why they would have deposed against him in a serious case involving capital punishment. It was argued that the accused had taken a specific plea of alibi which was to the effect that he was present at a religious ceremony arranged by one of his relatives but this plea was not proved and adverse inference had to follow against the accused-convict, It was submitted that case against the convict was proved to the hilt by the prosecution and conviction and sentence awarded to him by the learned trial Court deserved to be maintained, It was submitted that trial Court had not prescribed the sentence which the convict was to undergo in the event of default in payment of fine and that the judgment of the trial Court needed to be revised in this regard.
18. Substitution in criminal law means replacement of the real offender by another person who might be wholly unconnected with the crime or might have played a role different than the one assigned to him. Substitution of the real offender by another person is .Said to be It rare phenomenon. This concept is essentially based on human psychology that retributive instinct of the victim or aggrieved person would prompt him to go only for the blood of the actual perpetrator and not the innocent. The rule has no empirical foundations and the question whether there has been substitution or not has to be determined on case to case basis because in actual practice substitution has not been found to as rare as one would have you believe. Substitution is of two kinds: Conscious, calculated and well-thought-of; and the other kind is non-del berate. Where parties are not at loggerheads prior to an incident which lakes place suddenly or due to an isolated cause or motive, and the complainant party has no time to reflect on the issue and the registration of case is free from extraneous or external influences, there would be little likelihood of substitution. But where deep-rooted enmity exists between the parties. And internecine feud is going on between the two for sometime, the complainant party would have every desire to see the heads of the mighty roll, In such a situation, persons of the opposite camp who are more influential, more important or more dangerous are likely to 'face the brunt of vendetta .Of the wily and scheming complainant. Considerable substitution in such situations is likely to occur. Another case scenario admitting of-Such a possibility is where hired assassins tire employed to commit a crime.
Real culprits or the mafioso arc sometimes let of and instead actual enemies \who hire the assassins are assigned the effective roles or roles played by accused are swapped. A large scale substitution is resorted to by the complainant in such cases. This phenomenon is noticeable in North Western part of the Punjab. Non-deliberate substitution on the other hand occurrence where the incident is unwitnessed one or is not witnessed by the concerned people and there is no apparent motive for the incident. The accused in such cases is picked out or involved on suspicion, guesswo rk or information provided by others. Choice of the accused being suspicion-based, can be equally wrong or fallacious. The substitution or more correctly, false involvement in such a case, might not be motivated but nonetheless is a real possibility but surprising aspect of the matter is that the complainant party would stick with dogmatic rigidity to the ill-conceived story pieced together by it. The reasons might be various or divers but hard tael and unpalatable reality is that role-swa pping and substitution in criminal cases does take place May be crime culture of the society lias undergone at change or the moral fibre of Society has decayed. The- case in hand appears, to tail in the last category ol cases w here substitution is result of guesswork.
19. The. "triggering event" or "initiating circumstance" lor the occurrence, according to prosecution was .a quarrel hav ing taken place two days before the incident between Asif Butt deceased and Boota, appellant and others having occurred due to business, rivalry, It this not been shown by the prosecution as to what business Asif Butt was engaged in or that lie had any shop or business premises out of which he operated any particular sort of business. Iftikhar Din PW-4 was produced at the trial to testily about the motive incident. His testimony was to the effect that two days .Before the murder. Asif But1 and Boota, etc. Quarreled over "some business matter" near Dera Ntowaishian" in street 5-B. This witness no where elaborated tis to what that "some business matter" was over which Asil Bull and Boota fell out with one another: He had not elaborated tis to who. Were the persons other than Boota who had sided with Boom, In cross examination he slated that lie was just passing by the street and had seen the incident. 'the witness had not given the background or nature of dispute over which quarrel took place, lie was not resident of that locality in which the occurrence took place and obviously was a chance witness and was introduced only to create evidence against the accused .That they had a motive to commit the murder of Asif Bull. No. Douht it is not the requirement of law that prosecution must show that accused had a motive to commit the offence but where a particular motive is set up. The prosecution is under an obligation to prove happening of the triggering event'. Muhammad Rahan or his brother were junkmen and plied their trade by cycling around the City. What kind of business rivalry they could have with deceased is hard to imagine. The motive incident appears to have been introduced in order, to show that the accused had some grouse to attack the deceased but prosecution had failed to lead effective, reliable and believable evidence qua "triggering event" having happened and this aspect of the case is hound to react on the prosecution case.
20. The case against the appellant was sought to be proved through eyewitness-account provided by Iqbal Javed PW-7 anti Muhammad Asghar PW-5. Muhammad Asghar PW-5 was resident of Abdul Hameed Colony and according to him lie had gone to meet his friend in street No. 7 and that at about ft,-ft. 15 p.m. He was returning to his house when lie saw the accused Boota pick up a position hire the same at Asif But1. The occurrence had taken place in the month of "Ram/aii". Flic sun-set on the day of occurrence had |alien place at ft. 19 p.m. The occurrence according-to prosecution had taken place at about ft. 15 p.m. Meaning thereby that the same had taken place just before "Iftari". Muhammad Asghar claims that he had gone to meet a friend but if lie actually had a friend in the vicinity lie would not have been allowed to go away by the friend without taking Iftari. This we do not say as of notional thinking but by keeping in view the normal and natural conduct of people in such matters, it has not been shown by Asghar PW-5 as to what emergent nature of work he had which prompted to see his friend in another locality at the lime of "Iftari" or to leave his place at that time. It is a matter of common knowledge and of common observation and lor that no evidence is needed to he led at the-time of trial that at the lime of "Iftari" few people remain away from their homes and considerably before time of "Iftari" members of the family converge on their homes and then intently waif for the "Alaan" or the municipal sirens. Asghar PW-5 by all contents and measures is a chance w itness and his testimony being that of a chance witness cannot form the basis lor conviction of the accused: There is another aspect of the matter. According to site plan IA PI Muhammad Asghar had seen the occurrence while standing at point Both the accused staringly had decamped from the spot and had ran towards street No. 8 and in the process h$! Passed by Muhammad Asghar PW-5. Rashid one of the alleged accused was not armed none of the accused had threatened the persons standing by the place of occurrence in any manner and Asghar PW-5, witness did not react in a manner in which a friend should have when both the accused were passing by him. He newer tried even to apprehended the accused.
21. Iqbal Javed complainant, claims that he had gone to purchase certain eatables and was returning to his house located in street No. 3. Site plan 1-appeal; does not show that house of Iqbal Javed. Complainant was located in street No. 3. House of complainant has been shown to be located in a side street. The site plan also shows that bazar was towards north of the place of occurrence and if Javed w as to purchase eatables he would have gone to street No. 8 and then to bazar. On the western side of place of occurrence only a link road existed and Ho'ble.Ar or shops have been shown to exist. The complainant in order lo show his presence at the spot had coined story that he was coming from the eastern side and w as proceeding to his house when he had seen the incident. He too. Was a chance witness and his presence at the spot is not supported by other physical evidence on record. His conduct at the spot was also quite unnatural.
22. The medical evidence does not support the prosecution case. Injuries Nos. I. 2-A, 2-B. 3. 4 and 5 were shown to be the entry wounds caused by missile/foreign bodies. Injuries Nos. 2-A and 4 have dimensions of 0.7 x 0.7 cm And apparently were caused by a small .Bore weapon such as a mouser or .30 bore pistol. Dimensions of injuries No. 2-B were 2 cm x I cm. Of injury No. 3, 2.5 cm x' 1.5 cm and that of injury No. 5, 1.5 cm x 0.7 cm. The aperture of wounds _ described under injuries Nos. 2-B, 3 and 5 were larger than the other injuries. If the shooting had taken place with one weapon and one go. The dimension of all the injuries ought to have been almost the same or there should have been a marginal difference in the sizes or dimensions of the injuries. According to witnesses shots were find at the deceased by Muhammad Ramazan in quick succession and thereafter he had decamped from the spot. Neither the assailant nor the victim hail changed the position at the time of shooting. Weapon of offence remained to be the same and that would have obviated the possibility of incidence of wounds ol different sizes on the body of the victim. The contention of the defence that deceased was possibly shot at by two different types of weapons and b\ two persons is not farfetched.
Js. The accused had pleaded alias and liad led evidence to support that plea, It has vehemently been argued on behalf of the complainant that since the defence evidence led by the accused/convict was tenuous and insipid the plea of alias raised by convict had fallen to ground and adverse inference therefore, had to be drawn against the convict-accused, It is essentially duty of the prosecution to pro\e its case against the accused beyond any reasonable doubt. All the facets am1 aspects of the prosecution case have to be highlighted and proved by the prosecution in order to bring the guilt home to the accused. Weakness of defence is no\cr a ground for convicting an accused of a criminal offence.
24. We have weighed and assessed the material on record with meticulous care in the light of submissions made at the bar. We have found that prosecution billed to prove existence of "triggering event" or the motive incident. Ocular account was furnished by chance witnesses whose presence at the spot was extremely doubtful and medical evidence did not support the case of the prosecution. The prosecution failed to lead probative, tangible and independent evidence to prove its case against the convict-appellant. The incident appears to be a hit-and-run allairs. The deceased who had criminal history and did nothing for living possibly had enemies whom the complainant did not know, and was find at by one or more of them w hile he was trudging home- at the time of "Iftari" and by taking advantage of the deserted streets, the accused escaped unnoticed. The present appellant was brought into the picture by the complainant by guesswork alone, or due to previous bickering, witnesses were set up and then the case was made. Procuring of services of PWs. Such as Iftikhar Din and Muhammad Asghar-PWs. 4 and 5 who were brought in from elsewhere to become witnesses for the prosecution is lair indication ol the spare-work reccused to by the prosecution in this regard. Consequently, the appeal submitted by Muhammad Ramazan is allowed and by extending benefit ol doubt to him we set aside the conviction and sentence awarded to him and acquit him from the case.
Murder reference and criminal revision petition fail.