' ASIF SAEED KHAN KHOSA, J.--- Muhammad Inaam alias Inamul Haq alias Nomi appellant was convicted for an offence under section 302(b)/ 34, P.P.C. And was sentenced to death by way of Ta'zir vide judgment, dated 6-10-1996 passed by the learned Additional Sessions Judge, Multan.
Through the same judgment Akhtar Parvez alias Kaddu appellant was also convicted for an offence under section 302(b)/34, P.P.C. And was sentenced to imprisonment for life and to pay a fine of Rs,10,000 or in case of default in payment thereof to suffer simple imprisonment for one year.
He was also extended the benefit under section 382-B, Cr.P.C. Both the appellants have challenged their convictions and sentences before this Court through Criminal Appeal No,306 of 1996. We have heard the said appeal alongwith Murder Reference No,412 of 1998 seeking confirmation of the sentence of death passed against Muhammad Inaam alias Inamul Haq alias Nomi appellant. We propose to decide the abovementioned appeal and the connected Murder Reference together through the present consolidated judgment.
2. The prosecution case unfolded in the F.I.R. Is that Muhammad Asif complainant was doing timber business alongwith his father Muhammad Yousuf in the Timber Market, Multan. On 15-2-1993 elections to the Anjuman-i-Tajran Timber Market, Multan were held wherein the complainant's father Muhammad Yousuf was elected as President of the said Anjuman after defeating his rival candidate namely Kh. Muhammad Shafiq with a margin of thirteen votes. In order to celebrate the said victory of the complainant's father a procession was taken out which started at about 6-00 p.m. And ended at the Timber Market at about 10-00 p.m. After that the complainant and Zaheer Ahmad riding on one scooter and the complainant's father Muhammad Yousuf and Haji Muhammad Yaqoob riding on another scooter started for going to the complainant's home and when they reached the railway-crossing at Lakkar Mandi the scooter of the complainant's father was stopped by both the appellants. The complainant's father alighted from the scooter and in the meanwhile Haji Muhammad Yaqoob stopped the scooter on the opposite side of the railway- crossing. Muhammad Inaam appellant raised a Lalkara that the complainant's father Muhammad Yousuf is to be taught a lesson for becoming the President and also for stopping the appellant from their undesirable activities in his capacity as a Member of an Islahi Committee. Akhtar Parvez appellant then took the complainant's father in his clasp and Muhammad Inaam appellant gave two dagger blows to the complainant's father one of which landed on his right buttock and the other on the lower part of his left buttock. Another blow was then given by Muhammad Inaam appellant to the complainant's father on his front side which landed at his left groin area. On receipt of those injuries the complainant's father fell down in-between the railway-crossing. The complainant and Zaheer Ahmad then tried to apprehend the culprits but both of them managed to make good their escape. Thereafter, Muhammad Yaqoob hurriedly put the complainant's father in a rickshaw and took him to Nishtar Hospital, Multan. After their failure to apprehend the culprits the complainant and Zaheer Ahmad also went to Nishtar Hospital, Multan whereat the complainant's father had already succumbed to his injuries before he could be provided any medical aid. The motive set up in the F.I.R. Was that 10/12 days prior to the abovementioned election Sh. Muhammad Umar accused and his younger brother Muhammad Inaam appellant had approached the complainant's father and in the presence of the complainant, Zaheer Ahmad and Abdul Ghaffar they had asked the complainant's father not to contest the election to the Anjuman- i-Tajiran Timber Market, Multan and had demanded that he should withdraw in favour of his rival candidate namely Kh. Muhammad Shafiq. They had also threatened him that if he did not do that then he will face dire consequences. It was also mentioned in the F.I.R. That the complainant's father was a Member of the Islahi Committee and he used to forbid the appellants from their nefarious activities and from teasing women. According to the F.I.R. The appellants had committed the murder of the complainant's father on the basis of the said motives and also at the behest of Sh. Muhammad Umar co-accused.
3. After the death of his father Muhammad Asif complainant went to the Police Station Railway Police, Multan Cantt. And lodged F.I.R. No,20 at 1-30 a.m. During the night between 15/16-2-1993 for offences under sections 302/34/109, P.P.C. Which was recorded by Muhammad Munsif Khan, S.- I./S.H.O. (P.W.12). After recording the said F.I.R. Muhammad Munsif Khan, S.-I./S.H.O. (P.W.12) took up the investigation of the said criminal case and proceeded to Nishtar Hospital, Multan whereat he prepared an inquest report and an injury statement in respect of Muhammad Yousuf deceased and then dispatched the dead body to the mortuary for autopsy.
4. Post-mortem examination of the dead body of Muhammad Yousuf deceased was conducted by Dr. Muhammad Altaf Hussain (P.W.13) at 1-00 p.m. On 16-2-1993. The doctor found the following injuries on the dead body:--
(1) A stab wound 2-3/4 c.m. x 1 c.m. x going in at the lower fold of left buttock in vertical direction.
(2) A stab wound 3 c.m. x 1 c.m. x going in at the middle part of right buttock invertical direction 5 c.m. Away from middle.
(3) Two incised wounds 1 c.m. x 3/4 c.m. And 1/2 x 3/4 c.m. With bluish area surrounding on the left groin and lower part of left abdomen respectively. The distance between both injuries was 2 c.m.
(4) Two liner super fiscal incion 4 c.m. And 5-1/2 c.m. Long on the front of left abdomen obliquely, 4 c.m. Below and outer to umbilicus.
' In the opinion of the doctor the death had been caused due to haemorrhage and shock (bleeding from femoral vessel) caused by injury No,1 which was sufficient to cause death in the ordinary course of nature. All the injuries were found to be ante-mortem and were opined to have been caused by a sharp-edged weapon. According to the doctor the probable time elapsing between the injuries and death was about half an hour and the same between the death and post-mortem examination was about 12 to 18 hours.
5. After post-mortem examination of the dead body Muhammad Munsif Khan, S.-I./S.H.O. (P.W.12), the Investigating Officer, received the last-worn clothes of the deceased and then visited the place of occurrence whereat he collected blood-stained earth and prepared a rough site plan of the place of occurrence. He arrested both the appellants on 16-2-1993. On 21-2-1993 he recovered blood-stained clothes of both the appellants, a motorcycle and ,a blood-stained dagger at the instance of the appellants. He also got a formal site plan of the place of occurrence prepared by a draftsman. In March, 1993 Sh. Muhammad Umar accused was also arrested by him. The record of the elections to the Anjuman-i-Tajiran Timber Market, Multan was also secured by him. Thereafter, upon completion of investigation he prepared the necessary challan in this case. Sh. Muhammad Umar accused was found by the police to be innocent and he was discharged.
6. At the commencement of the trial the learned trial Court framed a charge under section 302/34, P.P.C. Against the appellants to which they pleaded not guilty and claimed a trial'.
7. During the trial the prosecution produced as many as thirteen witnesses in support of its case against the appellants. Muhammad Asif complainant (P.W.8) and Zaheer Ahmad (P.W.10) furnished the ocular account of the incident. Muhammad Ramzan (P.W.2), Muhammad Jamil (P.W.3), Abdul Ghaffar (P:W.5), Muhammad Asif complainant (P.W.8) and Zaheer Ahmad (P.W.10) deposed about the motive. Muhammad Sharif (P.W.6) and Muhammad Akram (P.W.7) stated about the recoveries effected from the appellants during the investigation. Dr. Muhammad Altaf Hussain (P.W.13) provided the medical evidence and Muhammad Munsif Khan, S.-I./S.H.O. (P.W.12) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature. The learned trial Court also summoned Syed Maqbool Hussain Gilani, D.S.P. As C.W.1 who deposed about verification of the investigation vis-a- vis Sh. Muhammad Umar accused.
8. In their statements recorded under section 342, Cr.P.C. Both the appellants denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They maintained that Muhammad Yousuf deceased had many enemies and that he might have been murdered by some of those. It was also maintained by them that they had been falsely implicated in this case due to business rivalry and enmity. Both the appellants opted not to make any statement on oath under section 340(2), Cr.P.C. But they produced Riaz Hussain (D.W.1) in their defence.
9. Upon conclusion of the trial the learned Additional Sessions Judge, Multan found the appellants to be guilty and convicted and sentenced them as mentioned and detailed above. Hence, the present appeal and the connected Murder Reference before this Court.
10. We have heard the learned counsel for the appellants as well as the learned counsel for the State and have gone through the record with their assistance. It has been maintained by the learned counsel for the appellants that it was a case of an unwitnessed occurrence which had taken place during a dark night and that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. As against that the learned counsel for the State has maintained that the prosecution had succeeded in proving the guilt of the appellants to the hilt and, therefore, the convictions and sentences of the appellants do not call for any interference by this Court.
11. After hearing the learned counsel for the parties and going through the record we have arrived at a confident conclusion that the prosecution had indeed failed to prove its case against the appellants beyond reasonable doubt. It was admittedly a case of a night occurrence and the night in question, according to the record, was cold, dark and windy. The F.I.R. In this case did not disclose any source of light at the place of occurrence and Zaheer Ahmad (P.W.10) had admitted in so many words that no light was available at the spot. Riaz Hussain (D.W.1) had described the said night to be a dark one. Muhammad Munsif Khan, S.-I./S.H.O. (P.W.12), the Investigating Officer, had conceded the fact that the eye-witnesses produced by the prosecution did not belong to the place of occurrence. Both the eyewitnesses produced by the prosecution were closely related to the deceased inasmuch as Muhammad Asif complainant (P.W.8) was the son of the deceased whereas Zaheer Ahmad (P.W.10) was the deceased's nephew. The conduct displayed by Muhammad Asif complainant during and soon after the occurrence was such that the same not only left much to be desired but we have found the same to be strange, unnatural and unbelievable. Despite being a son of the deceased admittedly he never intervened to save his father when he was under attack, did not handle his father after receipt of injuries by him and decamping of the culprits, did not even help Muhammad Yaqoob P.W. In handling the deceased and, strangely enough, did not even bother to take his injured father to the hospital. It is the prosecution's own case that it was Muhammad Yaqoob P.W. Who had taken Muhammad Yousuf deceased in an injured condition to Nisthar Hospital, Multan. Such a conduct of a son has appeared to us to be un understandable besides being unbelievable and the same points only towards a conclusion that as a matter of fact Muhammad Asif complainant was not present with his father at the time of receipt of injuries by him. As regards Zaheer Ahmad (P.W.10) we have found it to be unusual and strange that although he was statedly present with the complainant at the time of the incident as well as at the hospital and also at the time of lodging of the F.I.R. But his first statement in respect of the incident in question was recorded by the police at the place of occurrence when the police had visited the same on the next afternoon, i.e, on 16-2-1993. Thus, he too probably was not available with the deceased at the time of the occurrence and was procured and planted as an eye-witness subsequently, being a nephew of the deceased.
12. According to the prosecution the occurrence in this case had taken place at 10-45 p.m. On 15-2- 1993 and the F.I.R. In that regard was lodged by Muhammad Asif complainant (P.W.8) at Police Station Railway Police, Multan Cantt. At 1-30 a.m. During the same night. We have, however, found that various circumstances available on the record point towards a real possibility that the F.I.R. In this case had in fact been recorded some time during the afternoon of 16-2-1993 and not at the stated time mentioned in the F.I.R. And maintained by the complainant and the Investigating Officer. According to the complainant and the Investigating Officer the F.I.R. Had been lodged by the complainant at 1-30 a.m. On 16-2-1993 at the Police Station and it was thereafter that the Investigating Officer had gone to Nisthar Hospital, Multan for the first time to inspect the dead body. This is belied by Zaheer Ahmad (P.W.10) who had categorically stated that he and the complainant had proceeded from the place of occurrence to the hospital and had remained at the hospital till the arrival of the police. Abdul Ghaffar (P.W.5) had also stated that about two hours before the autopsy of the dead body he had met the complainant and the complainant had informed him that the F.I.R. Was being registered. The autopsy in this case had taken place at 1-00 p.m. On 16-2-1993. All this shows that the F.I.R. In this case had not been recorded at the time mentioned therein and in the circumstances narrated by the complainant and the Investigating Officer.
13. The ocular account' furnished by Muhammad Asif complainant (P.W.8) and Zaheer Ahmad (P.W.10) is completely shattered by the statement of Riaz Hussain (D.W.1). It is the prosecution's own case that the occurrence had taken place at a place close to a railway-crossing and there was a Duty Hut near the said railway-crossing. The site plan (Exh.P.G.) also confirms availability of the Duty Hut adjacent to the railway-crossing. Khan Bahadur, F.C. (P.W.1) had acknowledged in so many words that a Chowkidar remains on duty all the time at that railway-crossing. Availability of a railways official on duty at the said railway-crossing round the clock can also be inferred from the fact, which was also stated by Shaukat Hayat, Draftsman (P.W.9), that the said railway-crossing is a very busy crossing and the same remains busy round the clock because 1/3rd of the population of the city of Multan crosses the said crossing every day. Riaz Hussain (D.W.1) was the railways official who was on duty at the abovementioned Duty Hut at the said railway-crossing at the time of the present occurrence. While appearing as D.W.1 he had categorically stated that upon hearing of an alarm he had come out of his Hut. During the night in question and he had found Muhammad Yousuf deceased to be present at the said crossing all alone. According to D.W.1 the deceased had himself stopped a rickshaw and had proceeded to the hospital in that rickshaw all by himself. D.W.1 had also appeared before the Investigating Officer during the investigation of this case and had narrated before him what he stated before the Court as D.W.1. The said statement of D.W.1 was never shaken during his cross-examination. He was a public servant and completely an independent witness and we have found no reason to disbelieve him as he had no demonstrated interest in favouring one party to this case or the other.
14. Another crucial aspect of this case is that two witnesses who were critically important to the prosecution's case had been given up by the prosecution as unnecessary. Haji Muhammad Yaqoob P.W. Was the one who, according to the prosecution, had taken Muhammad Yousuf deceased from the place of occurrence to the hospital in an injured condition. Riaz Hussain (D.W.1) was in fact cited as a prosecution witness in the calendar of witnesses and he was the one who, according to the prosecution, was present at the place of occurrence on duty at the Duty Hut adjacent to the railway-crossing where the occurrence had taken place. For some strange reason the prosecution had given up both these witnesses as unnecessary. We have, however, found the reason for their being given up by the prosecution and that reason has been provided to us by the law itself according to which a witness who has been cited by the prosecution in its support and has been given up by it is presumed by the law to be a witness who would not have supported the prosecution's case had he entered the witness-box. For all these reasons the ocular account furnished by the prosecution has utterly failed to inspire our confidence.
15. The eye-witnesses produced by the prosecution had also failed to find sufficient corroboration from any other independent source or material in this case. The prosecution had set up three motives in this case: Firstly, about 10/12 days ago the appellants had threatened the deceased with dire consequences if he did not withdraw his candidature for the Presidentship of the Anjuman-i- Tajiran Timber Market, Multan against Kh. Muhammad Shafiq; secondly, the appellants had issued threats to the deceased during the polling for the said election on 15-2-1993; and thirdly, as a Member of an Islahi Committee the deceased had been forbidding the appellants from their undesirable activities. Upon an examination of the record of this case we have found that none of the abovementioned three motives had sufficiently been proved by the prosecution. Muhammad Ramzan (P.W.2) had stated that no quarrel between the deceased and the appellants had taken place on the election day, i.e, 15-2-1993 and also that he was not aware of existence of any Islahi Committee of the Timber Market, Multan. Muhammad Jamil (P.W.3) had also stated that no untoward incident had taken place during the polling on 15-2-1993 and also that no Islahi Committee of the Timber Market, Multan ever existed. Abdul Ghaffar (P.W.5) did not specify any particular date or time regarding the alleged threats issued by the appellants 10/12 days prior to the occurrence and he had gone on to admit that the alleged scuffle and issuance of threats by the appellants to the deceased on the polling day, i.e, 15-2-1993 had never been reported to the police which was present during such polling. Abdul Ghaffar (P.W.5) was a nephew of the deceased and admittedly he had made his first statement before the police in this case on the third day after the occurrence despite admittedly meeting the complainant on the night of murder before registration of the F.I.R. And also meeting the police on that occasion. He had also admitted that during those three days he had met the Investigating Officer of this case on various occasions and at various places but he had never informed him of the threats allegedly issued by the appellants or about the alleged scuffle on the polling day. Muhammad Asif complainant (P.W.8) had also admitted that he had never informed anybody about the alleged threats issued by the appellants prior to lodging of the F.I.R. Zaheer Ahmad (P.W.10) had categorically acknowledged that the alleged threats issued during the polling had not been issued in his presence and Muhammad Munsif Khan, S.-I./S.H.O. (P.W.12), the Investigating Officer, had conceded that the factum of issuance of threats by the appellants to the deceased on the polling day had not been told to him by the polling staff during the investigation. In view of these factors being available on the record we have felt that the motives set up by the prosecution had remained far from being proved.
16. As regards the alleged recoveries effected from the appellants during the investigation it has been noticed by us that Muhammad Sharif (P.W.6), one of the recovery witnesses, lived 2-1/2 kilometres away from the places of recovery and Muhammad Akram (P.W.7), another witness of the recoveries, had admittedly come from Lahore after the death of the deceased before becoming a witness of the recoveries. In these circumstances the provisions of section 103, Cr.P.C.
Clearly stood violated in respect of the alleged recoveries. It is also available on the record that the said recoveries had not been effected from the exclusive custody of the appellants as the dagger had been recovered from an open place which was accessible to all and the other articles had been recovered from houses which were inhabited by many others apart from the appellants. We have also found many contradictions between the statements of the recovery witnesses regarding the details of the alleged recoveries. Thus, even the recoveries allegedly effected in this case had failed to provide corroboration to the ocular account.
17. As regards the medical evidence we may only observe that three of the injuries found on the dead body of Muhammad Yousuf during its postmortem examination had never been explained by the prosecution. Even otherwise by its nature medical evidence cannot identify the perpetrator of the offence and, thus, in a case where the presence of the eye-witnesses at the place of occurrence is found by a Court to be unbelievable there the medical evidence looses all its supportive character.
18. For what has been discussed above we have found the prosecution evidence to be utterly unreliable so as to sustain a conviction of the appellants on a capital charge. This appeal is, therefore, allowed and the appellants are acquitted of the charge against them. They shall be released from jail forthwith if not required in any other case.
19. As the sentence of death passed against Muhammad Inaam alias Inamul Haq alias Nomi appellant has been set aside by us through acceptance of his appeal, therefore, Murder Reference No,412 of 1998 is answered in the negative.
20. Death sentence is not confirmed.