' Through this appeal, the appellants Fida Hussain, Faqir Bakhsh and Nazir Ahmad have challenged the judgment dated 31-7-2001 passed by learned Additional Sessions Judge, Rajanpur whereby they were convicted and sentenced under section 302-B, P.P.C. For causing the murder of one Bashir Ahmad and sentenced to imprisonment for life. A fine of Rs,50,000 each was also imposed on the appellants and in default of payment of fine, they were to further suffer S.I. For six months.
The benefit of section 382-B, Cr. P.0 was also extended to the appellants.
2. The complainant Ghulam Sarwar also filed Criminal Revision No,297 of 2001 against the afore- referred judgment seeking enhancement of sentence. As both matters arise out of the same judgment, therefore, they are being disposed of by this single judgment.
3. The occurrence in this case took place near the cotton field situated within the revenue area of Chak No,15 Mouza Muhammad Pur No,2 within the territorial jurisdiction of Police Station Muhammad Pur District Rajanpur. F.I.R. No,323 of 1998 Exh. P.L was registered at Police Station Muhammad Pur District Rajanpur for offences under section 302/34, P.P.C. By Inspector-S.H.O. P.W.14 on 21-1-1998 at 10-00 p.m. On the statement of Ghulam Sarwar P.W.11, brother of the deceased.
4. The brief facts as given in the F.I.R. Are that; Bashir Ahmad deceased who was a veterinary dispenser and brother of the complainant had gone to the house of one Hazoor Bakhsh on his motorcycle in order to inject his cattle and as he did not return till evening, the complainant alongwith his brothers Khadim Hussain and Shimla went to the house of Hazoor Bakhsh Ahmadani on motorcycle who informed them that after injecting his cattle, Bashir Ahmad had gone to the house of Saeed Ahmad son of Muhammad Bakhsh. Thereafter complainant and Shimla went to the house of Saeed Ahmad and inquired about Bashir Ahmad who informed them that Bashir Ahmad had come to his house to castrate his hegoat and had left for his house after having his meal shortly. It is further stated in F.I.R. That at about 9-00 p.m. When the complainant and P.Ws were passing through cotton crop near Chah Banjar Sakhani Wala, they saw in the light of motorcycles that the dead body of Bashir Ahmad was lying in a nearby watercourse. They also discovered that there were many wounds on the head of the deceased and clothes of the deceased were also bloodstained. According to F.I.R., the complainant party suspected that the appellants had murdered Bashir Ahmad as about two months prior to the occurrence Fida Hussain and Faqir Bakhsh appellants had a quarrel with Bashir Ahmad deceased and Bashir Ahmad deceased along with Yasin son of the complainant gave beating to the afore-referred persons with their shoes.
Later on an attempt was made to patch the matter but the appellants did not forgive the deceased and had been threatening many a time that they would murder Bashir Ahmad and on the night of occurrence the appellants took revenge of their disgrace.
5. After registration of the case, Ashiq Hussain, Inspector-S.H.O. P.W.14 reached the place of occurrence and lifted bloodstained earth lying underneath the dead body and took the same into possession vide memo. Exh.P.M the blood-stained earth which was lying at a distance of 80 karams (400 feet from the dead body) was also lifted and taken into possession vide memo. Exh.P.O; pieces of plastic glass of the headlight of the motorcycle driven by Bashir Ahmad deceased lying at a distance of 196 karams near Kacchi Patri Bridge seme nala were taken into possession vide memo. Exh. P.N. All the afore-referred memos. Were attested by Ghulam Sarwar P.W.11 and Saeed Ahmad given up P.W. A vomited waste lying near the dead body of deceased was also lifted from the watercourse by Ashiq Hussain, Inspector vide memo. Exh. P.P; similarly an iron cable wrapped by black plastic lying near head and neck of the dead body was also taken into possession vide memo. Exh. P.Q; motorcycle P.8 belonging to Bashir Ahmad deceased which was lying at a distance of 12 karams in a cotton field alongwith other articles were also taken into possession vide memo.
Exh. P.R; a pair of shoes P.9 lying at a distance of 5 karams from the dead body was also taken into possession vide memo. Exh. P.S All these memos. Were attested by Shimla. P.W.12 and Khadini Hussain who was given up. On the same date, Ashiq Hussain Inspector, also prepared site plan Exh.
P.I. According to which, the dead body was lying in the watercourse which was dry on the day of occurrence.
6. All the appellants were arrested by Ashiq Hussain Inspector P. W.14 on 12-11-1998. They remained on physical remand till 23-11-1998 but nothing was recovered from the appellants. The challan was sent up against the appellants before the Court and the learned trial Court framed charge under sections 302/34, P.P.C. And as the appellants denied the charges and claimed trial, the same commenced .
7. During trial, the prosecution produced 14 witnesses in support of their case and after tendering in evidence, reports of Chemical Examiner P.T and that of Serologist P.U, closed its case. P.W.2 Dr. Nasrullah Khan; P.W.5 Dr. Abid Bokhari and Doctor Ahmad Hassan furnished the medical evidence.
P.W.11 Ghulam Sarwar and P.W.12 Shimla improved their status and testified as eye-witnesses of the occurrence. They also stated about motive. P.W.8 Ghulam Akbar and P.W.10 Ahmad Bakhsh furnished the evidence of last seen, vajtakar and motive different as given in the F.I.R. Muhammad Akram D.S.P. And Ashiq Hussain, Inspector who appeared as P.Ws. 13 and 14 stated about investigation and spot recoveries. The rest of the P.Ws. Were formal in nature.
8. After conclusion of the prosecution case, statements of appellants under section 342, Cr. P.C.
Were recorded who pleaded innocence and stated that they were involved in the case due to their existing enmity with one Ghulam Qadir Jindani who was a friend of complainant Ghulam Sarwar and Allah Diwaya who ...Was related to the deceased. However, the appellants did not appear as witness in their own defence as contemplated by section 340(2) Cr. P.C. And also did not adduce any evidence.
9. Learned counsel for the appellants in support of this appeal, has raised following points during his arguments:-
(i) that no medical evidence was available relating to the cause of death;
(ii) that the F.I.R. Was disowned by the complainant during trial;
(iii) that the motive set up in the F.I.R. Was not proved and a new motive was introduced which too could not be proved;
(iv) that the P.Ws. Did not see the occurrence and the improved story put forward by P.Ws. 11 and 12 was not supported by the medical evidence or by surrounding circumstances of the case; and
(v) that it was case of no evidence. On the other hand, learned counsels appearing on behalf of the State has argued that although it appears that none had seen the appellants committing murder of Bashir Ahmad yet, circumstances lead to only one conclusion that appellants were responsible for the murder of Bashir Ahmad deceased.
10 I have heard learned counsel for the parties, have perused the record minutely and have also gone through the impugned judgment.
11. Admittedly, the night of occurrence was a dark and cold and the dead body was found more than 4/5 Bigas away from the Dera of Ghulam Sarwar P.W.11 as admitted by P.W.7 Muhammad Aslam who is maternal nephew of the deceased as well as P.W.11 and P.W.12 and normally the afore-referred P.Ws. Were not supposed to be there at that hour of the night. P.Ws.11 and 12 are real brothers of the deceased and according to the statement of Ghulam Sarwar complainant P.W.11 was given in the F.I.R. Which was lodged within thirty minutes of the occurrence, he along with other P.Ws. Namely Shimla P.W.12 and Khadim Hussain who was given up, they only saw the dead body of Bashir Ahmad lying in a watercourse and did not see any of the accused at that time. During the trial, these P.Ws. Tried to improve their statements and took 180 degree shifts from their statements recorded by the Police on the first date and they came out with a new version according to which, P.W.11 and P.W.12 reached the scene of occurrence along with Khadim Hussain and at that time Ghulam Sarwar was holding licenced gun and Shimla was holding a torch and they saw in the torch-light that Fida Hussain and Nazir Ahmad were lifting a person. Nazir Ahmad was lifting the afore-referred person from legs while Fida Hussain was lifting the afore-referred person from his neck and on the hue and cry of the P.Ws., the accused threw the said person on the ground. It was further stated that they saw in the light of the torch that Faqir Bakhsh appellant alongwith one unknown accused was standing near the motorcycle and after the accused left, the scene of occurrence they discovered that the dead body was of their brother Bashir Ahmad. Ghularn Sarwar P.W.11 during the trial, denied the contents of F.I.R. And stated that it was not read over to him and after 3/4 days, he came to know about the contents of F.I.R. And thereafter he moved an application stating the true. Facts to S.P. Rajanpur. Even these improvements in the statements made by P.Ws.11 and 12 do not improve the case of the prosecution as even according to these statements, the P.Ws. Did not see how the deceased was murdered by the accused and they only saw lifting and throwing of the dead body by two of the appellants. Similarly a 4th person was also included in the list of accused . These P.Ws. Were duly confronted with their previous statements.
These P. Ws. Also introduced a new fact during trial that the cable was found around the neck of the deceased. Incidentally there was no mark on the -neck according to post-mortem report Exh.
P.B. As well as according to inquest report Exh. P.0 and injury statement prepared on the spot which are duly exhibited as Exh. P.0 and Exh. P.C/1. A torch was also introduced by the P.Ws. During trial which was shown to be carried by Shimla P.W.12 but during cross-examination he admitted that neither he produced the torch before the Investigating Officer nor the same was taken into possession. There is no mention of torch in F.I.R. As well. The P.Ws. Also tried to change the time of occurrence. According to F.I.R., the occurrence took place at about 9-00 p.m. 'and it was further stated in F.I.R. That Saeed Ahmad a near relative of the deceased informed P.Ws.11 and 12 that the deceased left the house of Saeed Ahmad after having the meal. It was also stated in the F.I.R. That the P.Ws. Started search for their brother as he did not return to the house till evening. Admittedly Bashir Ahmad deceased lived in a separate house situated near the house of the P.Ws. The Police Officer who recorded the F.I.R. Could never know about the facts of the case as well as the name of the witnesses mentioned in the F.I.R. It is nobody's case that the appellants accused were present at the Police Station when the complainant went to get a case registered. The P.Ws. Have tried to change the time of occurrence from 9-00 p.m. To 7-30 p.m. In a desperate attempt to become eye-witnesses. It appears that the P.W.s have been making desperate attempt to turn an unwitnessed occurrence into a witnessed occurrence. During cross- examination, P.W.12 admitted that the accused had muffled their faces. I have checked the record written in Urdu so as to be sure about the afore-referred statement of P.W.12 Shimla and according to Urdu record also the accused had muffed their faces. )
' The sole basis for the presence of P.Ws. At the scene of occurrence was the fact that the deceased had gone to the house of Hazoor Bakhsh in order to treat his cattle and from there he left for the house of Saeed, a close relative of the deceased and it was Saeed who informed the P.Ws. That Bashir deceased had left the noose shortly after having meals. Neither Saeed nor Hazoor Bakhsh were produced during trial to substantiate the story of these P.Ws. Hazoor Bakhsh stated before the police that the deceased never visited his house which knocks out the very basis of the prosecution story.
12. The occurrence took place during night on 21-10-1998 and post-mortem was conducted by P.W.2 on 22.10-1998. According to post-mortem report there were five incised wounds found around head of the deceased, one of them was on the right cheek. There are also scratches on the head of the deceased. One incised wound was found in front of the right foot while multiple scratches were also found on the right foot above injury No,7. There were eight injuries in total and perusal of the post-mortem report Exh.P.B. Shows that there was no mark of ligature on the neck to support the story of the prosecution that a cable was wrapped on the neck of the deceased. At the time of post-mortem P.W.2 was unable to give his opinion and reserved the same till the receipt of report of Chemical Examiner. After receipt of report from the Chemical Examiner the medical officer opined as follows: "No cause of death could be found so in my opinion the death could be natural"
' This opinion is available on record as Exh.P.D.2. According to his report Exh P.E he opined that the sharp edged injuries found on the person of the deceased were postmortem. According to the report of Chemical Examiner Exh.P.F poison was not detected in the viscera. A Medical Board was constituted by Medical Superintendent, I). H. Q. Hospital, Ranjanpur on the application of the complainant and the dead body was exhumed on 22-4-1999 in the presence of Malik Rafiq Ahmad, Magistrate Jampur and after the disinterment of the dead body the postmortem was conducted by a Medical Board. According to the statement of Dr. Abid Bokhari, a Member of the Board, the features of the deceased were not recognizable. Even sex of the dead body was not identifiable and after consulting the reports of Bacteriologist as well as that of Chemical Examiner the Board was unable to give any opinion about the cause of death. The report of the Board is available in the shape of Exh.P.I. Dr.Ahmad Hassan, another member of the Board also appeared and gave the same statement as given by P.W.6. The third member of the Board Dr. Javed Akhtar was however given up. In short a perusal of the post-mortem reports makes it clear that the cause of death was not ascertained and according to P.W.2 the deceased might have met with a natural death. In any case P.Ws.11 and 12 were unable to explain incised injuries found on the persons of the deceased which according to P.W.2 were caused after the death and no ligature mark was found around the neck of the deceased. None of the Medical Officers who conducted the post-mortem opined that D the death was due to asphyxia, strangulation or throttling. So the medical evidence .Consisting of three doctors out of whom two are specialists knocks out the story of the prosecution in totality.
P.W.8 Ghulam Akbar and P.W.10 Allah Bakhsh also appeared during trial. P.W. Ghulam Akbar stated that on the day of occurrence at about Isha-wela he saw the appellants standing present at the bridge of seme nala along with another person who could not be identified., He further stated that all the four accused were armed with Sotas. He also stated that while he was on his way to the house of his maternal uncle who was coming from western side and was going towards east to his house but shortly thereafter he heard that Dr. Bashir Ahmad had been murdered. During cross- examination he admitted that he lived at a distance of 4/5 miles away from the spot. He also admitted that he has married with the sister of Muhammad Aslam P.W. Who was maternal nephew of the deceased and P.Ws.11 and 12. During cross-examination he was not sure as to whether his statement was recorded by the Investigating Officer or not. According to P.W.14, Ghulam Akbar and Allah Bakhsh P.Ws. Appeared before him for the first time on 13-11-1998 after about three weeks of the occurrence and the statement of Ghulam Akbar was not recorded at all, therefore, the statement of the P.Ws. Also become totally irrelevant. Even otherwise the deceased did not receive any injury on his person with a blunt-weapon and this P.W. Who lives at a distance of 4/5 miles away had no business to be present near the scene of occurrence.
13. A new motive was set up during the trial as against the motive which was set up in the F.I.R. And in support of that motive P.Ws.8, 10, 11 and 12 testified. According to P.W.8 the motive behind the occurrence was that Bashir Ahmad was suspected to have illicit relationship with Mst. Iqbal Mai wife of Nazir Ahmad. P. W.10 Allah Bakhsh stated that 3/4 days prior to the occurrence the appellants passed in front of the clinic of the deceased and made some angry gestures while touching their beards and mostaches. He further stated that Bashir deceased had informed him that the appellants were angry with the deceased. It was further stated that this P.W. That on asking of Bashir that he approached the appellants and advised them that fighting was not good for the parties and during the conversation one Qadir Bakhsh Jindani reached there and he also advised the accused. The said Qadir Bakhsh Jindani was never produced during the trial. The statement of Allah Bakhsh P.W. Was recorded for the first time, on 13-11-1998 after three weeks of the occurrence, therefore, it could not be considered. This P.W. Was friend of Bashir Ahmad deceased. He had nowhere stated as to why the appellants were angry with Bashir deceased.
During cross- examination he was also confronted with his earlier statement as he had made dishonest improvements. Now coming. To the motive as set out in the F.I.R; the appellants had a grudge against the deceased as about two months prior to the occurrence the deceased and his nephew Yasin had given shoe-beating to the appellants. Fida Hussain and Faqir Bakhsh but during trial a new motive was introduced through P, W.8 Ghulam Akbar who stated that Nazir accused suspected that Bashir Ahmad deceased had some relationship with his wife Mst. Iqbal Mai. This P.W. Kept quiet till three weeks of the occurrence and for the first time his statement was recorded on 29-1-1999 after a delay of more than three months. No importance can be attached to the statement of such a witness. During cross-examination he admitted that he had no personal knowledge about this and he had come to know about it from the general public and could not name anybody who informed about the motive, therefore, I rule out the statement of this witness out of consideration. P.'Ws.11 and 12 also tried to introduce the afore-referred new motive deviating from the F.I.R. P.W.11 could offer no explanation as to why he did not mention this motive while recording the F.I.R. Which was recorded without any delay. The only excuse given by him was that he never knew about the contents of the F.I.R. Exh.P.L and the moment he came to know about the contents of F.I.R. He made his application on 24-1-1998. A photo-stat of that application was shown to the Court but during the cross-examination of P.W.13 it .Revealed that the actual application was not available on record of the police at all. Neither the prosecution produced S.P. Rajanpur to prove that any such application was moved before him. P.Ws.11 and 12 were both, duly confronted with their earlier statements but they were unable to explain their 180-degree shifts vis- a-vis motive. P.
W.12 in his cross- examination stated that his statement was not recorded at all by the Investigating Officer although his thumb marks are available on the recovery memos. Prepared on the spot on the night of occurrence. During cross- examination it was admitted that one Mst.
Pathani who was wife of Muhammad Aslam maternal nephew of the deceased and son of Allah Dewaya obtained a divorce from Muhammad Aslam and married with Manzoor Bhanja of 'Nazir Ahmad appellant. It is also in evidence that Fida and Faqir appellants are also nephews of Nazir accused. It appears that Allah Dewaya and Aslam close relatives of the complainant party nursed a grudge against the appellants over this incident. P.W.12 in his cross-examination has named wife of Nazir Ahmad appellant as Mst. Saddo Mai while P.W.9 had named her as Iqbal Mai. The net result of the above discussion is that the motive as given in the F.I.R. Was too weak and, therefore, after a considerable time they chalked out a motive which appeared to be more serious and all the P.Ws..
Have totally failed to prove this motive. Even otherwise, motive by itself cannot be termed as substantive evidence.
14. No recovery was effected from the appellants. P.W.14 stated on oath before the trial Court that according to his opinion the appellants were innocent. He also stated that the appellants were also found innocent by Ch.Bashir Ahmad, D.S.P. This witness was not declared hostile and his statement in examination-in-chief whereby he stated that the appellants were innocent remained unchallenged. P.W.13 D.S.P., Rajanpur, admitted that Allah Baldish and Ghulam Akbar appeared before him for the first time on 29-1-1999 after about three months of the occurrence. It is in evidence that the P.Ws. Were advised to get the services of trackers and detective dogs to find out the real culprits. The story of the prosecution is replete with doubts and the P.Ws. Have not only deviated from their earlier statements but they have also made dishonest improvements and were duly confronted with their earlier statements. I am of the considered opinion that nobody had witnessed the occurrence and the cause of death could not be ascertained at all. The deceased according to P.W.2, could have died of natural causes. The prosecution has, therefore, miserably failed to prove this case beyond doubt. Resultantly, I allow this appeal, set aside the impugned judgment passed by the trial Court and acquit the appellants of all the charges. The appellants shall be released from jail forthwith if not required in any other case.
15. Criminal Revision No,297 of 2001 filed by the complainant has no merit and the same is dismissed