' Jamshed Iqbal son of Asghar 'Ali through the present appeal has assailed the findings of the judgment of the Additional Sessions Judge, Lahore, dated 15th of June, 2000, whereby the appellant was convicted under section 302(b), P.P.C. And sentenced to life imprisonment, five years out of which he had to undergo by way of rigorous imprisonment and the rest simple imprisonment and the rigorous imprisonment imposed was ordered not to run for two years consecutively. He was further directed to pay compensation in the sum of Rs,1,00,000 under section 544-A, Cr.P.C. To the heirs of the victim, failing which he had to further undergo six months' R.I. And the compensation was to be recovered as arrears of land revenue. Benefit of section 382-B, Cr.P.C. Was, however, extended.
2. Taj Din, Amanat Ali and Aslam Ali were acquitted through the same judgment.
3. The occurrence which led to the murder of Muhammad Riaz took place on 18-11-1998 at 7-30 p.m.
In Chah Tamoli in the Veranda of the house of the deceased within the vicinity of the Police Station Manga Mandi. Ghulam Hussain, real brother of the deceased lodged a complaint which was recorded at the Jinnah Hospital, Lahore on 19-11-1998 at 4-00 a.m. By M. Afzal, A.S.-I. And the formal F.I.R. Was recorded by Munir Ahmad, A.S.-I. At Police Station Manga Mandi at 5-00 a.m.
4. Allegation contained in the first information report authored by said Ghulam Hussain is that he and his younger brother Muhammad Riaz were cultivators by professions. On the fateful day in the evening he alongwith his brother were coming from their work towards their house and when they reached the Provisions Store, Jamshed son of Asghar Ali, Amanat son of Barkat and Pappu son of Barkat in a loud voice were talking in an obscence language and M. Riaz his brother stopped them and for this reason there was exchange of hot words between the two sides, however, on his intervention, the matter was patched up. Some times later, he alongwith his brother Muhammad Riaz and one Riaz alias Bhola as well as Zulfiqar who were sitting in the Verandah of his Baithak when all of a sudden Jamshed armed with Mauzer and Amanat also armed with Mauzer accompanied by Pappu at about 7-00 a.m. Came. Amanat raised a Lalkara that Riaz should not be spared for having insulted them upon which Jamshed fired with his Mauzer which hit him in his abdomen upon which he fell to the ground followed by a blow by Pappu with his Danda. Jamshed and Amanat continued tiring in the air, whereafter, all of them ran away. Riaz alias Bhola and Zulfiqar also witnessed the occurrence. He alongwith Zultiqar and Riaz alias Bhola took his brother in an injured condition to the Manga Mandi Hospital, where doctor referred them to Jinnah Hospital, Lahore.
5. Muhammad Younas, S:-l. Of Police Station Manga Mandl stated that he was patrolling on an official vehicle when he received an information on wireless that a person after being injured was admitted in Manga Mandi Hospital, where he reached and found Ghulam Hussain brother of Riaz injured, Riaz alias Bhola and Zultiqar who were shifting Riaz in a tractor trolley. Medical Officer asked him about the injury statement but since Riaz was in an injured condition, the Medical Officer himself checked him and prepared the medical certificate and referred him to the Jinnah Hospital, Lahore. Ghulam Hussain and others took Riaz to Jinnah Hospital, Lahore and he went back to the police station since the S.H.O. Was transferred and he told the Moharrar on reaching the police station to send some officer to the Jinnah Hospital for investigation. Consequently, Afzal A.S.-1. And a constable went to Jinnah Hospital, Lahore from where he sent a written complaint for registration of the first information report at the police station. He again received a wireless message that Riaz succumbed to his injuries at Jinnah Hospital. Lahore. By that time new S.H.O. Had taken over the charge who informed him that an A.S.-I. Could not investigate a murder case and. That Younas should take over the investigation as a result of which he alongwith some constables left for Jinnah Hospital where he met the relatives of the deceased and M. Afzal A.S.-1. Who told him that the dead body was lying in Ward No,4 of the I.C.U. From where he sent the same to the mortuary through constables for post-mortem examination. Afzal A.S.-I. Handed him over report of the Medical Officer, made on his application regarding fitness and operation notes etc. He proceeded to the place of occurrence with Ghulam Hussain and other relatives of the deceased where he met Sardar Muhammad, father of the deceased Riaz. He saw blood-stains over the place of occurrence and two empties. Blood-stained earth was taken in possession vide memo. Exh.P.C. And the two empties vide memo. Exh.P.D. The appellant was produced on 23-12-1998 before him. On 3-1-1999 the accused appellant led to the recovery of a Mauzer (P.3) alongwith four cartridges P.4 to P.7 which he took in possession vide memo. Exh. P. E.
6. Dr. Tahir Ismail P.W.1 stated that on 18-11-1998 at 8-00 a.m. While posted at Manga Mandi he examined Muhammad Riaz aged 15 years brought in an injured condition by the police and observed the following injuries:-
(1) A penetrating lacerating wound about 0.8 c.m. x .8 c.m. With black margin inverted margin situated over lower abdomen towards right side which was 10 c.m. Lower from templical and 10 c.m. From anterior, superior iliac spine. Depth was not probed. Wound was bleeding profusely.
Emergency treatment was given and the patient was referred to Jinnah Hospital, Lahore for better treatment; there was corresponding hole present over Qameez which was bloodstained. Injury No,1 was kept under observation.
7. After the investigation was over, challan was submitted in the Coin where the appellant was indicted. He denied the charge, pleaded not guilty and claimed a trial. During trial prosecution examined as many as 14 witnesses. Ocular testimony account was furnished by Zulfiqar, P.W.4 and Ghulam Hussain, complainant, P.W.3. Dr. Tahir Ismail P.W.1 examined the deceased while in the injured condition Dr. Shakeel Ahmad, P.W.6 performed the post-mortem examination on the dead body of Riaz deceased.
8. Prosecutor tendered in evidence report of Forensic Science Laboratory (Exh.D.O.) wherein it was stated that two crime empties recovered from the spot were not fired through the .30 bore pistol produced by the appellant.
9. Appellant when examined under section 342, Cr.P.C. Denied his participation in the occurrence and recovery of crime empties. In reply to the question as to why the prosecution brought the case against him, he gave the following answer:-- ' "I am innocent. The complainant party originally belongs to Chah Tamoli, whereas, my father and grandfather purchased the land from Amin and Azeem which was in physical possession of the complainant Ghulam Hussain and his father. We forcibly ejected them from that land on which, an enmity developed between us. There is a party faction in the village. One group is led by Ghulam Hussain and the other is by Ghulam Farid. Ghulam Hussain contested election (B.D.) against Ghulam Farid in which we supported Ghulam Farid and in this way, the complainant bore a grudge against me and my family. One Rana Majeed contested B.D. Election against Gulab in which we supported Gulab and the complainant and his father were supporting Rana Majeed who was belongs to their brotherhood. In that election, a firing took place at the police station, in which Haji Sardar Muhammad was injured and my father and my brother were also members of the party who beat Haji Sardar Muhammad. The complainant and his family had an enmity with my other persons of the village. Aforesaid Rana Majeed was beaten by the sons of Ghulam Farid aforesaid in which, Haji Sardar Muhammad, father of the complainant appeared as a P.W. And the sons of Rana Majeed were convicted in the case. Mst. Rehana is the daughter of Ali Muhammad was engaged with the son of Sharaf Din namely Zulfiqar. Deceased wanted to marry her but Ali Muhammad had refused to give the hand of his daughter Rehana. Sharaf Din was murdered in 1998 at night.
Deceased alongwith one Liaqat were apprehended by the police and the family of Sharaf Din are opposing to deceased and his family. That M. Ramzan and his son Dr. Muhammad lqbal, Cobbler by Caste, were residing in front of the house of the deceased. Deceased and his family wanted to forcibly get their house to which they refused and the deceased prior to the occurrence, quarrelled with them on this account. After the death of the deceased, aforesaid Muhammad Ramzan and Muhammad Iqbal left their houses and now, the same is in occupation of the complainant, which they forcibly took.
' The deceased was injured at unknown place either by the police because of his notorious activities or he was found by the police in an injured condition and was subsequently taken to the hospital, where he died. The police after his death, located his relatives on 19-11-1998 and the police and the complainant after due deliberation concocted this false story, against me and I have been falsely involved on account of the enmity."
10. Learned counsel for the appellant bitterly criticised the prosecution case and stated that nobody had seen the occurrence and the deceased was done to death in the darkness of the night at a place other than which the prosecution alleged, therefore, the appellant is entitled to acquittal.
Conversely, learned counsel for the State supported the conviction and sentence recorded by the trial Judge.
11. I have given my serious consideration to the arguments raised by the respective counsels and have also gone through the record.
12. Occurrence took place on 18-11-1998 at 7-30 p.m. When it was sufficiently dark in the month of November and the statement of the brother of the deceased informing the police about the murder of Riaz was recorded on the subsequent day at 4-00 a.m. In the Jinnah Hospital, Lahore.
Earlier on the day of occurrence, the deceased was examined in an injured condition by P.W.1 at Manga Mandi Hospital/dispensary vide report Exh.P.A. Some startling revelations were made by the doctor examining the deceased before his death. Coming to the evidence of P.W.1 he categorically stated that the injured was brought to the hospital by the police and in the column of the medico- legal report "name of relative or friend" he had written the word "by police". He further stated that the police had brought the injured person and was identified by the police, so much so that the medico-legal report was handed over to Muhammad Younas, S.-I. Who signed it at the bottom for having received its copy, and is dated 19-11-1998. Another signature of Younus S.-I. Appears in the middle, towards left side of the medico-legal report which is marked as Exh.P.A./1. Statement of the injured was also taken to the effect that it was his first medical examination and he affixed his thumb-impression which is Exh.P.A./2. The injured, according to the doctor, was sent to Jinnah Hospital, Lahore in the company of M. Younas S.-I. In an ambulance through an official driver.
Doctor volunteered that after that all the relatives of the injured also arrived and accompanied the injured, however, attendance of relatives of the injured had not been marked in the report Exh.P.A.
Doctor admitted that by then no police case had been registered. On the other hand, Ghulam Hussain, P.W.3 admitted in his cross-examination that the police did not accompany them to Manga Mandi Hospital where they took the deceased in an injured condition in a tractor trolley.
13. Muhammad Afzal, A.S.-I. When examined as P.W.10 stated that when he reached Jinnah Hospital, Lahore at 1-00 a.m. On 19-11-1998 first of all he made an application to the doctor to ascertain whether the deceased before his death was fit to make his statement to which the doctor replied in the negative. Later on at 4-00 a.m. He recorded Fard Bayan of Ghulam Hussain outside the I.C.U. At 4 a.m. He admitted that from 2 a.m. To 4 a.m. Till the death of Riaz deceased, Ghulam Hussain complainant who had met him upon his arrival did not disclose any detail of the occurrence nor he asked him and it was only when Riaz died that he recorded the statement of the complainant. M.
Younas S.-I. When examined as P.W.11 admitted that Riaz was medically examined by the doctor at Manga Mandi Hospital in his presence and that as long as he stayed in the said hospital neither Ghulam Hussain recorded his statement about the occurrence nor he enquired from him because the injured was in a serious condition and further he stated that he did not feel necessity to record any F.I.R. As the relatives were extremely worried. Again this witness admitted that the Medical Officer at Manga Mandi Hospital had not marked the attendance of any relative of Riaz in his presence and he had not objected to the Medical Officer that since he had not brought Riaz injured why the word "by the police' has been mentioned in the relevant column.
14. From the resume of the discussion it seems very clear that the injured was taken to the hospital by M. Younas S.-I. In absence of relatives. If any relative was present at the time when the injured was being examined definitely name of the relative would have been given in the column to have brought the injured to the hospital. To the contrary, police have been mentioned as of having brought the injured to the hospital. Further, the medical report is usually given to the relation who brings the injured to the hospital and not to the police. Failure of the Investigating Officer to record the statement of the injured at the Manga Mandi Hospital for reasons given are not acceptable to a person of reasonable and prudent mind. It is very strange that in this case where the injured is in a precarious condition both complainant and the police are present, the police omits to record the statement. This also applies to the complainant who despite presence of the acting S.H.O. Of the Police Station fails to divulge names of the persons responsible for causing injuries to the injured..
Medical Officer of Manga Mandl Hospital is an independent person and there is no need for him to distort facts either to help the prosecution or the defence. Reading his statement in its entirety it becomes manifestly clear that M. Younas S.-I. Accompanied by his constables brought Riaz in an injured condition to Manga Mandi Hospital, where, after the completion of the medico-legal examination, relatives arrived and thereafter on the advice of the Medical Officer the injured was shifted to Jinnah Hospital, Lahore. M. Younas S.-I. Being in a hurry to go for patrolling duty as it has come on the record that many dacoities/robberies in those days were in vogue and many people had died in the police encounters, left the Manga Mandl Hospital assuring the complainant that he would be sending a Police Officer to the Jinnah Hospital, Lahore, for further proceedings. Afzal, A.S.-I.
It seems arrived after the death of the deceased because it looks palpably absurd that he had arrived at 2-00 a.m. He waited that the injured should die at 4-00 a.m. And then he records the statement of the complainant. Sum and substance of the discussion, therefore, is that none of the witnesses were present at the time of the occurrence. One significant fact deposed to by P.W.6 Dr. Shakeel Ahmad who performed the post-mortem examination in his cross-examination is that the bullet was fired from upward to downward and the assailant was at higher level and the victim was at a lower level and fire appeared to have been shot at 75 degree, again makes it evident that the occurrence did not take place at the site pointed out by the prosecution B witnesses because level of the ground where it is alleged that the killing took place was even.
15. No attempt was made to prove the motive, which was set up by the prosecution that at 5-00 a.m. On 18-11-1998 a brawl had taken place between the deceased and the appellant alongwith others near a Parchoon shop. Investigating Officer did not say in his cross-examination that he made any attempt to examine Maulvi Bashir, owner of the shop where the altercation had taken place or Shah Muhammad or Inayat who were present at the time of the fight as deposed to by Ghulam Hussain complainant. In view of this discussion, prosecution version becomes highly doubtful, therefore, there is no alternative left but to accept the defence version. A number of reasons have been given by the appellant in his statement recorded under section 342, Cr.P.C. In support of his plea as to why the prosecution has set up the case against him. The most important fact as admitted by Ghulam Hussain is that the land purchased by the father of Jamshed was in occupation of his father and other family members including the complainant, however, it was denied by the complainant that at the time of changing the possession some dispute took place and they were forcibly ejected by the father of the appellant. Appellant in his statement has forcefully urged that the land was purchased by them from Amin and Azeem which was in physical possession of the complainant and since they were reluctant to give possession his father forcibly ejected them on which an enmity developed. There are other reasons also given for foisting the case, however, change of possession after the purchase of the property by the father appellant seems to be a real bone of contention between the appellant and the complainant party. In nutshell the occurrence having taken place when it was dark, unwitnessed by any person, later on the complainant, it seems, deliberated when they came to know that Riaz was lying in an injured condition in Manga Mandi Hospital as a result of which the appellant was nominated as. The main perpetrator of the crime there being bad blood between the two sides.
16. The upshot of the discussion is that following the safest way of dispensation of justice when defence has succeeded in creating dents in the prosecution case, is to accept the appeal and acquit the appellant. Concomitantly, I in the interest of justice accept the appeal, set aside the conviction and sentence recorded by the trial Judge vide his judgment, dated 15th of June, 2000.
Appellant shall be released forthwith from the jail provided he is not required in any other case.