' KHAWAJA MUHAMMAD SHARIF, J.---Imtiaz Ahmad alias Mumtaz alias Taza son of Muhammad Yousaf was tried by learned Sessions Judge, Man& Bahaud-Din for the murder of one Muhammad Aslam. The learned trial Judge through his judgment, dated 13-9-1997 found him guilty of the said charge, convicted him under section 302(b), P.P.C. And sentenced him to death.
2. Murder Reference No,225 of 1997 seeks confirmation of said sentence of death awarded to Imtiaz Ahmad alias Mutntaz alias Taza-convict, whereas he by filing Criminal Appeal No,433 of 1997 has challenged his conviction and sentence. We propose to dispose of both these matters together through this single judgment.
3. Occurrence of the alleged incident took place on 22-4-1995 at 4-00 a.m. Within the revenue estate of Chak No,16, situate at eight kilometers from Police Station Kuthiala Sheikhan. It was reported by Muhammad Asghar-complainant (P.W.6) to Ashiq Sarwar, Inspector/S.H.O. (P.W.12) at the police station, who as per his statement recorded F.I.R. (Exh.P.E) on the same day at 7-35 a.m.
4. Brief facts of the case as enumerated in F.I.R. (Exh.P.E) are that Muhammad Asghar-complainant is resident of Chak No,16 and is a peasant by profession. On the fateful night at about 4-00 a.m., he and Muhammad Aslam, his paternal cousin, were fast asleep in the eastern room of his house and the door was open. Electric light was on All of a sudden, Mumtaz alias Taza son Muhammad Yousaf-appellant armed with a Toka came there and while raising a Lalkara delivered a Toka blow to Muhammad Aslam, which landed below his left eye and nose. Muhammad Aslam in order to save his life woke up, but the appellant caught hold of him and by pressing his neck raised a Lalkara to the effect that if anybody came near him, he would be killed. The complainant did not raise commotion because of fear of life. In the meanwhile, Nazar Muhammad son of Mirza (P.W.6) and Muhammad Akbar. Father of the complainant, reached the spot, and witnessed the occurrence. Muhammad Aslam succumbed to his injuries at the spot.
' Reason for the outbreak of this incident was that about 30/32 years back father -of Muhammad Aslam died and his mother Mst. Rehmat Bibi contraeted second marriage with Muhammad Yousaf, father of Mumtaz , alias Taza accused., Mumtaz alias Taza used to reside in the house of Muhammd Aslam. Mumtaz alias. Taza developed illicit relations with Mst. Zahida daughter of Muhammad Aslam, who had also suspected the same and on 21-4-1995 while abusing the accused asked him to leave his house. In this background, the accused felt annoyed and committed mactation of Muhammad Aslam.
5. After registration of the above-said, case, Ashiq Sarwar, Inspector/S.H.O. (P.W.12) took over the investigation, immediately reached the venue of occurrence, carried out spot inspection, collected bloodstained soil therefrom, prepared injury statement (Exh.P. I ) , inquest report (Exh.P.C) of the deceased and despatched the dead body to the mortuary for autopsy purposes under the escort of Liaqat Ali, Constable (P.W.1). He also prepared rough site plan (Exh.P.J) of-'. The place Of occurrence. The appellant was arrested by him on 5-5-1.995. During course of interrogation, he got recovered bloodstained Toka (P.3) from a room of Dera of one Ghulam Haider which was secured by him through memo. Exh.F, duly attested by Ghulam All (P.W.8) and Abdul Aziz P.W (not produced). He got prepared site plans of the place of occurrence in duplicate (Exhs.PD & PD/1) from Muhammad Siddique, Draftsman (P.W.5). He recorded statements of the relevant witnesses under section 161,/ Cr.P.C, He handed over the case property to the Muharrir for its onward transmission to the concerned quarters. After completion of investigation, challan was prepared and submitted before the Court for trial of the appellant in accordance with law.
6. The trial Court framed charge and , put the same to the appellant, ,to which he pleaded not guilty and claimed to be tried. Thereafter, the prosecution produced as many as twelve witnesses to bring home guilt of the appellant. Out of the whole lot, evidence of Dr. Shamim Hussain (P.W.3), Muhammad Asghar-complainant (P.W.6), Nazar - Muhammad (P.W.7), and Ghulam Ali (P.W.8) is of most significance. Thereafter, learned prosecutor closed case of, the prosecution by tendering in evidence reports of the Chemical Examiner (Exh.P.K & 'PL) and those of Serologist (Exhs.P.M. & PN).
7. Statement of the appellant under section 342, Cr.P.C. Was recorded, wherein he proclaimed his absolute innocence in the matter and denied his involvement in the case. The appellant opted not to make statement under section 340(2), Cr.P.C. He also did not produce evidence in defence.
8. After consideration of the whole evidence available on record, the trial Court proceeded to convict the appellant as aforementioned.
9. Learned counsel for the appellant in support of this appeal submits that it was a night time occurrence and nobody was present at the spot; that the eye-witnesses are living in one and the same house, whereas the deceased was living in the other street; that no electric bulb has been shown in the site plan prepared. By Muhammad Siddique, Draftsman (P.W.5) nor it was so pointed out by the eye-witnesses; that no place has been shown in the site plan where the cattle were tethered, by Nazar Muhammad (P.W.7) and Muhammad Akbar P.W.(not produced); that Muhammad Asghar-complainant, Nazar Muhammad (P.Ws.. 6 & 7) and Muhammad Akbar, father of the complainant, resided in the same house with their wives and children, .Therefore, there was no need on the part of. Muhammad Asghar-complainant to sleep, in the house of the deceased; that as far as Na,zar Muhammad (P.W.7) and Muhammad Akbar, father of the complainant, are concerned, they " have got their own house, in which they could have tethered their cattle and not in the street of the deceased; that they have become false eye-witnesses; that' the deceased was married person having 7/8 children, but- neither his wife nor any of the children, who were available in the adjoining room of the house and are the natural witnesses_ and could be produced by the prosecution; that leaving the natural witnesses, unnatural Witnesses have been cited; that it is duty of the prosecution to prove its case against the appellant beyond any shadow of doubt, but it failed to do so; that outer wall of house of the deceased was of eight/nine feet height and it was difficult for the appellant to cross that wall and ' specially for Nazar. Muhammad (P.W.7) and Muhammad Akbar P.W. {not produced); that airing these days, the people take precautionary measures before sleeping in the night, not only by closing the outer gate, of the house, but also doors of their bed rooms', that the complainant after playing fraud had got the land of Mst. Rehmat Bibi, mother of -the appellant, mutated in his name; that as far as motive is concerned, Mst. Zahida, daughter of the deceased was not interrogated during investigation by the Investigating Officer nor any inquiries were conducted by the Investigating Officer from the people around, that the deceased and the appellant are step brottlers because after death of Muhammad Din, ex-husband of Mst. Rehmat Bibi, she married Muhammad Yousaf and Muhammad Aslam deceased as well as the appellant were living in the same house; that the appellant established sexual connection with Mst. Zahida, daughter of Muhammad Aslam deceased; that motive is totally false because during the examination-in-chief none of the witnesses, named Mst. Zahida before the trial Court, with whom the appellant had illicit connection; that the motive according to learned counsel for the appellant, was with the complainant, who usurped land of mother of the appellant; that the prosecution has totally failed to prove its case against the appellant, especially motive part and ocular account; and that as far as recovery of Toka (P.3) is concerned, that was planted on the appellant because according, to the prosecution, it was not in the exclusive possession of the appellant, but it was recovered from a room of Dera of one Ghulam Haider'in Chak No,16, so no reliance can, be placed on the said recovery.
10. On the other hand, learned counsel for the complainant submits that the appellant is the only accused in this case; that he has been- named by the independent witnesses; that there is no background of litigation between the parties; that ocular account is corroborated by the medical evidence; shat the appellant was rightly convicted by the trial Court; that motive has also been proved beyond any shadow of doubt; and that the prosecution has proved its case against the appellant-beyond any shadow of doubt. At the end, he supports judgment of the trial Court.
11. Learned counsel for the State submits that he has nothing to add of the arguments addressed by learned counsel for the complainant before this Court.
12. We have heard learned counsel for the parties at length and have gone through the relevant record with their able assistance. Occurrence of the alleged incident has taken place at 4-00 a.m.
On 22-4-1995. According to the F.I.R., the matter was reported to the police at the police station at 7-35 a.m. According to the Investigating Officer, after registration of the case, he came at the spot and prepared inquest report of the deceased. In column No,3 of the inquest report, the digit "7" has been manipulated and there is over-writing Case F.I.R. Number is not mentioned therein. Had the F.I.R. Been registered before preparation of the inquest report, as the prosecution wants us to believe, then number of the F.I.R. Should have been there in the said report. It shows that the F.I.R.
Was recorded after due deliberations and consultation.
13. In the site plan (Exh.P.D) got prepared from Muhammad Siddique, Draftsman (P.W.5), he has not shown any electric bulb. He had also stated in cross-examination that the same was not pointed to him by the eye-witnesses. He also admitted that there was a boundary wall as well as the gate of the house, which was 8/9 feet of height. A person present outside cannot see inside through a boundary wall. He had also admitted that the prosecution witnesses had not pointed out to him any place of their presence before their arrival at the spot.
14. Even in the rough site plan Exh P J) , prepared by the Investigating Officer, at point No,2, he has added "Bijli Ki Raushni Mein" later on. The concerned eyewitnesses, namely, Muhammad Asghar complainant (P.W.6), Nazar Muhammad (P.W.7) and Muhammad Akbar, father of the complainant (not produced) are residing in the same house situate in another street. They are all married. We are unable to understand that why they had not slept in their house with their wives and children.
We are not going to believe that P.W-Muhammad Asghar complainant in the room of the deceased at the time of occurrence while Nazar Muhammad (P.W.7) and Muhammad Akbar were outside the house of deceased in order to look after their cattle, which were tethered there according to him. In the rough site plan, neither their cots have been shown nor the place of tethering the cattle has been shown. The presence of these so-called eyewitnesses at the spot is highly doubtful.
15. As far as the complainant is concerned, no reason has been given by him that why he was sleeping inside room of the deceased, who was a married man having 7/8 children. They were the most natural witnesses. They were available in the adjacent room of the house. None of them was either produced before the Investigating C Officer, nor before the trial Court to prove charge against the appellant. We are not going to believe presence of these so-called eye-witnesses.
16. Now we would like to examine the medical evidence. According to Dr. Shamim Hussain (P.W.3) , who has conducted postmortem examination on dead body of Muhammad A.Dam, the time between the death and post-mortem was 6 to 24 hours. He also found semi-digested food in the stomach of -the deceased. Occurrence took place at 4-00 a.m., whereas the post-mortem was conducted on the same day at 1-30 p.m., but the duration given by the doctor was six to twenty four hours. It means that the occurrence took .Place at any time in the night, like 9-00, 10-00 and 11- 00 p.m. Semi digested food in the stomach of the deceased also suggests that the occurrence had not taken plane at 4-00 a.m. And even earlier to that because the food takes two to four hours to become semi digested. Place of occurrence is situated hi a thickly populated area, but not a single disinterested independent witness has been produced by the prosecution to proye its case.
17. In order to come to a just conclusion, we would like to reproduce the answer of the appellant to Question No,7 of his statement under section 342, Cr.P.C., which is as under: - "I have been falsely implicated in this case. P.Ws. Are related inter-se. Muhammad Asghar complainant got land of Rehmat Bibi, mother of deceased and accused to be transferred in his own name by fraud. Deceased and 1 (accused) demanded our property from complainant Muhammad Asghar. Muhammad Asghar made a plan to kill Muhammad Aslam and to falsely rope in myself in this case so that in this way he can be able to grab this property and to eliminate both the claimants of property."
After perusing the same, we are of the opinion that this version of the appellant is nearer to the truth and convincing as well. Muhammad Asghar-complainant (P.W.6) while being cross- examined admitted as under:- "Muhammad Aslam deceased was not owner of any agricultural and in the village. I am owner of 414 acres of land in the village. It is correct that the land measuring 12 kanals. Of Mst. Rehmat Bibi, which she inherited from her father, had been gifted away, to me and a mutation in this respect has been attested. I had not stated at the time of attestation of mutation of inheritance in favour of Rehmat Bibi, mother of the deceased, that she had already died. Volunteered that it was stated by some other person. At the time of attestation of mutation in my favour, it was pointed out by some person that I got the gift mutation attested in my favour by producing some lady in place of Mst.
Rehmat Bibi,"
These answers of the complainant during the course of cross-examination would corroborate the version of the appellant as stated above. It also renders his testimony incredible. A man with these credentials should not be believed by this Court.
18. We are of the considered opinion that the prosecution has failed to prove the ocular account in this case and also the medical evidence, because the same are not corioborated with each other.
19. As far as recovery of Toka (P.3) is concerned, we do not believe this piece of evidence because it was not recovered from house of the appellant or from the place, which is in his exclusive possession, but from a the of one Ghulam Haider. Planting of the Toka also cannot be ruled out.
20. After considering totality of facts and circumstances of the case, we are of the firm view that this case is full of doubts. Accordingly,' while granting benefit of doubt to tie appellant, we accept his appeal, set aside his conviction and sentence and acquit of tie charge. He is directed to be released from custody forthwith if not required to be deta1ned in any other case.
21. Death sentence awarded to the appellant is not confirmed and Murder Reference is answered in the negative