' Ahmad Nawaz son of Said Amir, Aurangzeb son of Muhammad Khan and Sarfraz son of Noor Din through Jail Appeal No,9/J of 2000 and Ahmad Nawaz and Sarfraz alias Shutri have also through Criminal Appeal No,1317 of 1999 laid challenge to the judgment, dated 11-11-1999 passed by the Sessions Judge, Khushab, whereby all three of them were convicted under section 302(b)/34, P.P.C.
For causing murder of Qasim Khan and were sentenced to imprisonment for life by way of Tezir and further directed to pay a sum of Rs,50,000 in equal share to the legal heirs of the deceased and in default to undergo six months' R.I. Each. They were also convicted for committing lurking house trespass into the house of Qasim Khan and sentenced to three years' R.I. And a fine of Rs,5,000 each; in default thereof to further undergo six months' R.I. Lastly all of them were convicted for theft into the house of the deceased and sentenced to three years' R.I. Each and a sum of Rs,5,000 each by way of fine or in default whereof to undergo six months' R.I. Each.
2. Criminal Revision No,67 of 2000 has been filed by Fateh Muhammad complainant seeking enhancement of sentence of the appellants. I intend to deal with all the matters through this single judgment.
3. The occurrence which resulted in the death of Qasim Khan took place on the night between 5th and 6th of April, 1999 in the house of the deceased situated in Mauza Chanki at a distance of 25 Kms. From Police Station Jauharabad, District Khushab. The complaint was made by Fateh Muhammad maternal uncle of the deceased and was recorded by Tahir Abbas, S.-I. At the police station on 6-4-1999 at 10 a.m.
4. Contents of the First Information Report, authored by Fateh Muhammad, are that he is a retired employee of the Police Department and on 5-4-1999 at 8 a.m. He went to his sister's house Amir Khatun in Mauza Chanki where Karam Elahi his brother and Yar Muhammad son of Gul Muhammad were already present. On arrival he asked his sister Amir Khatun about her son Qasim Khan and his nephew and was told that he was in his Choubara upstair watching T.V. He alongwith Yar Muhammad and Karam Elahi reached the Choubara through the stairs and found Qasim Khan watching T.V. Alongwith Aurangzeb son of Muhammad Khan and two unknown persons sitting on the cot. After coming down from the Choubara they slept on their respective cots in the courtyard.
At 7 a.m. On 6-4-1999 he went to deliver breakfast to Qasim Khan but found the door of the Choubara locked from outside which caused him anxiety and after breaking upon the lock he saw the dead body of Qasim Khan lying on the cot, and signs of strangulation were visible around his neck and his hands were lying at the back of his head whereas blood was oozing from his nose and mouth. On search he found .12 bore licensed gun of Qasim Khan missing alongwith an amount of Rs,11,000. On his hue and cry Yar Muhammad and Karam Elahi also reached. He had strong suspicion that Qasim Khan was done to death by Aurangzeb and two unknown persons and while going away they took the gun alongwith the amount.
5. Motive of the occurrence is that Qasim Khan and Aurangzeb had a brawl over raising of Chappar in the street by Aurangzeb which was stopped by Qasim Khan and due to this grievance Aurangzeb alongwith two other persons in furtherance of their common intention put Qasim Khan to death by strangulating him.
6. Investigation was conducted by Tahir Abbas, S.-I. Who was posted as S.H.O. Of the police station at the time when the occurrence took place but could not be examined in the Court as he had left on official duty for Bosina. Consequently, Nazar Hussain, his successor, who, also conducted part of investigation, was examined as P.W.11 and stated that he worked with Tahir Abbas and as such is aware and can recognize the handwriting of Tahir Abbas. He endorsed the complete investigation conducted by Tahir Abbas. On 19-4-1999 Tahir Abbas arrested Aurangzeb and Sarfraz appellants.
On 30-4-1999 Aurangzeb while in police custody got recovered Rs,11,000 in the form of 11 currency notes of Rs,1,000 each P.9/1-11, which were secured in possession through memo. Exh.P.M. On the same day Aurangzeb also led to the recovery of .12 bore gun from his residential house. No recovery memo. For this gun was prepared and the same has to be ruled out of consideration. On 4-5-1999 Ahmad Nawaz who was arrested on the same date while in police custody got recovered .30 bore pistol P.3 which was taken in possession vide memo. Exh.P.G. On 11-5-1999 investigation of the case was transferred to this witness. Ahmad Nawaz while in custody led to the recovery of .12 bore gun P.5 allegedly belonging to the deceased and also a rope P.6 from the graveyard located near the village and both these articles were taken in possession vide memo. Exh.P.C. This .12 bore gun was identified by Qasim Khan vide identification memo. Exh.P.F.
7. Dr. Umar Ali Shah, Medical Officer, District Headquarters Hospital, Jauharabad on 6-4-1999 performed the post-mortem examination on the dead body of Qasim Khan aged 24 years and found a mark of ligature just at upper left of neck sprited at places into three separate marks, i.e, anteriorly and one extending all around the neck and only missing in posterior 3 c.m. Of the back of neck. In the opinion of the doctor Injury No,1 was ante-mortem and was caused with a soft string/rope. Death in this case occurred due to asphyxia and this injury was sufficient to cause death in the ordinary course of nature. Probable time that elapsed between injury and death was within few minutes and time between death and post-mortem was within 20 hours.
8. After completion of the investigation challan was submitted in Court. Appellants were indicted, they denied the charge, pleaded not guilty and claimed a trial. Prosecution examined as many as 11 witnesses. The case revolves around the last seen evidence deposed by P.W.8 Atta Muhammad, P.W.6 Yar Muhammad and complainant Fateh Muhammad as P.W.5, Recovery of .12 bore gun from the custody of Ahmad Nawaz was witnessed by Muhammad Yunus P.W.4 and recovery of Rs,11,000 from Aurangzeb stated to have been stolen from the house of Qasim Khan deceased.
9. Appellants when examined under section 342, Cr.P.C. Denied their participation in the crime and the recoveries made from them. All of them stated in reply to the question as to why the prosecution has brought against them that P.Ws. Are related to the deceased, Qasim Khan was murdered by some unknown assailants which occurrence has not been seen by anybody, they were illegally challaned due to enmity and political rivalry.
10. Learned counsel for the appellants has lambasted the prosecution version and strenuously argued that it was a case of no evidence, the padding done by the prosecution to bolster its case has no parallel and, therefore, the conviction and sentence suffers from a grave illegality.
Conversely State Counsel assisted by the counsel for the complainant supported the conviction and sentence recorded by the trial Judge.
11. Fateh Muhammad complainant appeared as P.W.5 and stated that Aurangzeb was interested to construct a Chapper in the street jointly owned by Aurangzeb and Qasim Khan deceased which led to the altercation two months earlier to the present occurrence but the matter was got patched up between the two by this witness. The evidence of motive was not probed by the Investigating Officer. The street where Chapper was desired to be constructed by Aurangzeb was not examined.
If Aurangzeb had grouse against Qasim Khan, the deceased would not have invited him to his Choubara to jointly watch the T.V. Late at night, therefore, the prosecution has failed to prove motive.
12. Fateh. Muhammad P.W.5 did not identify the two unknown persons watching the T.V. With Aurangzeb and the deceased. The said persons were not put to identification test to enable this witness to identify them. This witness is a retired police employee, his house is located at a distance of three miles from village Chanki and visited his sister Amir Khatun 16 days earlier. Going once again to his sister's house at 8 p.m. Without any reason and thereafter having reached the house curiously inquiring about Qasim Khan and then going upstair to his Choubara to check him defies human conduct. The witness is 65 years old as admitted, and Qasim Khan his maternal nephew is 25 years of age. Once told by his sister that he is in his Choubara watching T.V. There was no emergency to find out the presence of Qasim Khan deceased. Being a retired police employee it seems in all probability that he was informed about the dead body of Qasim Khan in his Choubara next morning and only after his arrival that facts were deliberated and thereafter at 10 a.m. Report was lodged. No attempt has been made by the prosecution. To explain this delay after discovery of the dead body of Qasim Khan in his room. Villagers get up early in the morning and after having their breakfast they go out for their work. This delay in lodging the F.I.R. Only took place to await the arrival of Fateh Muhammad as he was aware of the ins and outs of police machinations.
13. Yar Muhammad P.W.6 admitted his relationship with Qasim Khan. Ghulam Muhammad was his maternal grandfather and the same gentleman was the father of Qasim Khan deceased. His house was at a distance of 300 yards form the house of Qasim Khan and he had come just to see Qasim Khan and not for any other business. Why he slept at the house of Qasim Khan and why he did not go back to his house after meeting Qasim Khan is a mystery. Further he only went up to inquire the presence of Qasim Khan but did not sit with him or requested Qasim Khan that since he has come to meet him, sometime should be spent between them. The excuse given by the witness for his presence at the house of Qasim Khan, therefore, seems illusory and not for good reasons.
Muhammad Iqbal is his brother. Rab Nawaz is the brother of Ahmad Nawaz appellant and this witness admitted that Said Amir father of Ahmad Nawaz got a sodomy case registered against the brother of this witness i.e, Muhammad Iqbal and Muhammad Sher under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with section 377, P.P.C. For having committed carnal intercourse with Rab Nawaz. He further admitted that Muhammad Iqbal and Muhammad Sher remained in jail for about two years as undertrial prisoners but later on the victim having received Rs,25,000 the matter was compromised by Said Amir. Statement of this witness has to be considered with a pinch of salt. His brother Muhammad Iqbal was implicated for committing sodomy with the brother of Ahmad Nawaz appellant for which his brother was incarcerated in jail for two years. Because of this enmity no reliance can be placed on the testimony of this witness. The last sentence uttered by this witness in his cross-examination drove the final nail in the coffin of the prosecution case when he stated that the two unknown persons sitting with the deceased and Aurangzeb watching T.V. In the Choubara of the deceased were not known to him and were not seen in the Court on the date when he was examined. He further clarified the above statement by saying that these two unknown persons were not Ahmad Nawaz and Sarfraz appellants.
14. Ata Muhammad P.W.8 stated that on 5-4-1999 Muhammad Iqbal P.W. Came to his house located in village Chanki as he had some work with Muhammad Hayat, he was asked to accompany him, therefore, they proceeded towards the house of aforesaid Muhammad Hayat where they remained till midnight and when they were coming back near the Baithak belonging to Muhammad Khan Mochi they saw Nawaz, Aurangzeb and Sarfraz coming from the roof of Verandah of Qasim Khan deceased and went across to the roof of Baithak of Ahmad Nawaz, their houses being adjacent to each other. At that point of time the witness says that Ahmad Nawaz was armed with .12 bore gun and next morning when he learnt at Dupaharwela that Qasim Khan had been murdered he alongwith Muhammad Iqbal reached the place of occurrence where their statements were recorded by the Investigating Officer. He admits that Muhammad Sher one of the accused in the sodomy case instituted by Said Amir, father of Ahmad Nawaz appellant, is his Chachazad. He also admits registration of case against Iqbal and Muhammad Sher. Mst. Zarina a distant relative of this witness was divorced by Muhammad Iqbal uncle of Ahmad Nawaz accused.
Similarly Mst. Fozia Bibi was divorced by Muhammad Aslam who is Chachazad of Ahmad Nawaz appellant. He admitted that he had no work whatsoever with Muhammad Hayat and he just accompanied Muhammad Iqbal. It was further admitted that Muhammad Iqbal who accompanied him to the house of Muhammad Hayat lived in his house at a distance of 6/7 miles from village Chanki. It is surprising that Muhammad Iqbal would come from a distance of 6/7 miles when it had become dark to the house of this witness to take him to Muhammad Hayat for his personal work. No reliance could be placed on the testimony of this witness firstly because of enmity and secondly he has not given good reasons for his presence while coming back from the house of Muhammad Hayat.
15. I am now left with the recoveries of Rs,11,000 from Aurangzeb and gun P.5 from Ahmad Nawaz.
Muhammad Yunus P.W.4 is the recovery witness of the gun P.5 recovered from Ahmad Nawaz from the graveyard of village Chanki. He is son of Mst. Sehat Khatun, sister of Imam Bibi who is the step- mother of the deceased. This witness is resident of village Jabbi at a distance of 2 Kms. From village Chanki and in presence of Lambardar and Chowkidar of village Chanki why he was made recovery witness is anybody's guess, not being resident of the locality, no reliance can be placed upon his testimony particularly when he is related to the deceased and his presence clearly seems to be procured. Recovery of .12 bore gun from Ahmad Nawaz alleged to have been stolen from Qasim Khan deceased at the time of his murder has some interesting features. P.W.5 Fateh Muhammad complainant admits that licence of the gun belonging to Qasim Khan was not produced by him before the Investigating Officer although he was in possession of the licence at the time when his evidence was recorded. No record of the Post Office where the licence was registered was produced before the Investigating Officer and that licence number was not detailed in the F.I.R. And neither the dealer of the shop from where .12 bore gun was purchased by Qasim Khan was associated in the investigation. The F.I.R. Does not mention whether the gun was double- barrel or single barrel. He admits that during investigation another gun was recovered from Aurangzeb appellant. Gun P.5 itself does not contain any number and it was stated that the same had been rubbed out. The witness did not state in the F.I.R. That when he proceeded to the Choubara he observed the gun lying there. The Investigating Officer Nazar Hussain, S.-I. Admitted that the recovery memo. Relating to recovery of .12 bore gun at the instance of Aurangzeb is not available on the judicial file. He admitted that licence relating to the gun of Qasim Khan was not produced before him and he did not make any efforts to get verification from the office of the District Magistrate about the licence belonging to Qasim Khan. The identification memo. Through which the gun was taken in possession is undated. Ahmad Nawaz though arrested on 4-5-1999 did not make any disclosure about the recovery of gun to the earlier Investigating Officer Tahir Abbas but it is only on 11-5-1999 when Nazar Hussain took up the investigation that the recovery was affected. The fact that recovery of .12 bore gun also effected from Aurangzeb shows that the police and the complainant were double minded as to who should be burdoned with the planting of the gun and subsequently the gun was planted on Ahmad Nawaz and Rs,11,000 on Aurangzeb so that the complicity of both the appellants was established. No reliance can be placed on such a recovery and it is ruled out of consideration.
16. Rs,11,000 was recovered from Aurangzeb. The currency notes are in circulation in abundance, they have no special marks to identify and it is G very strange that if the notes were removed on the night between 5th and 6th April, 1999 the thief will retain the amount till it was recovered from him on 30-4-1999. Again from 19-4-1999 to 30-4-1999 Aurangzeb appellant in custody of Tahir Abbas, S.-I. And during this period no disclosure was made by the appellant that he can get the amount recovered. Surprisingly when the investigation was changed to Nazar Hussain, S.-I. He on the very first day got the amount recovered. Recovery is clearly tainted and is of no use for reasons stated.
17. There being no other item of evidence produced by the prosecution which could implicate the appellants with the commission of the offence, the case of the prosecution is not free from doubt and I agree with the learned counsel for the appellants that the prosecution brought a case of no evidence to connect the appellants with the murder of Qasim. I, therefore, accept the appeal, set aside the conviction and sentence recorded by the trial Judge vide his judgment, dated 11-11-1999 and acquit the appellants. They shall be released forthwith if not required in any other case.
18. Criminal Revision No,67 of 2000 for reasons rendered in the judgment is dismissed.