MIAN MUHAMMAD NAJAM-UZ---ZAMAN, J.---Appellant was tried for the murder of one Muhammad Maqsood Ali in case F.I.R. No.81 of 1996 dated 2-4-1996 registered under section 302, P.P.C. At Police Station Langrana by the Sessions Judge, Jhang who vide judgment dated 18-6-1998 convicted the appellant under section 302(b), P.P.C. And sentenced him to death. He was also directed to pay Rs.50,000 as compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C. Or in default whereof to undergo six months' R.I.
2. Calling in question his conviction and sentence the appellant filed two appeals i.e. One through Jail (Criminal Appeal No.112-J of 1998) and the other through counsel (Criminal Appeal 528 of 1998) while the trial Court has made a reference (Murder Reference No. 289 of 1998) under section 374, Cr.P.C. Seeking confirmation of death sentence awarded to the appellant. All these matters are being disposed of together by the judgment.
3. Complainant Liaquat Ali lodged on 2-4-1996 at 10-15 a.m. About the murder of his brother which took place within the area of Chak No. 15-JB at about 18 kilometres from the said police station.
4. The facts of the prosecution case are that on 1-4-1998 at about 5-30 p.m. Complainant Liaquat Ali alongwith his brother Muhammad Maqsood Ali (deceased). Hashmat Ali along with Noor Sultan, Thiraj and Shafqat Ali were coming back home from their Dhari and in the village when they reached near the house of Muhammad Aslam Sargana, all of a sudden Arfan Ali appellant being armed with rifle came to the spot and while raising Lalkara that he had come to teach a lesson to Maqsood Ali for helping Muhammad Hassan Ali in the dispute of landed property, fired from his rifle which hit Muhammad Maqsood on the right thigh. The witnesses tried to apprehend the accused but he while firing in the air, managed to run away. The witnesses attended to the deceased and forthwith shifted him to Civil Hospital Bhowana where he succumbed to the injuries.
5. On 2-4-1996 matter was reported to Muhammad Aslam, Inspector when he was present at Adda Handlana in the area of Chak No.240/JB in connection with some patrolling duty. He recorded the statement Exh.P.G. Of Liaquat Ali complainant and sent a copy of the same to the police station for the registration of formal F.I.R., thereafter, he went to the hospital and after examining the dead body prepared necessary documents and sent the dead body to the mortuary for post-mortem examination. During investigation the said Police Officer in order to arrest the appellant, conducted raids at different places but did not succeed and ultimately moved application Exh.P.J. To secure non-bailable warrants and thereafter another application Exh.P.K. For the issuance of proclamation as required under the law. Allegedly, the appellant remained fugitive from law for about two months and ultimately was arrested on 3-6-1996. During investigation the appellant led to the recovery of rifle P.4 which was taken in possession vide memo. Exh.P.F. The Investigating Officer, after complying with legal formalities submitted challan before the trial Court.
6. To prove the charge against the appellant prosecution produced 11 witnesses before the trial Court.
7. Dr. Muhammad Sharif P.W.1 conducted the post-mortem examination on the dead body of Muhammad Maqsood Ali and observed the following injury on his person:-- "A lacerated wound 8 c.m. x 6 c.m. x bone deep on the back of lower part of right thigh. The underlying muscle and subcutaneous tissues were badly injured. The right femoral blood vessels were also injured."
8. Haji Ghulam Dastgir Draftsman P.W.2 prepared the site plan. Exh.P.D./A-B. Naseer Ahmad Constable P.W.3 took the parcel of blood-stained earth (case property) to the office of Chemical Examiner. Muhammad Akbar F.C. P.W.4 took the dead body to the mortuary for post-mortem examination and after the same produced last-worn clothes of the deceased before the Investigating Officer. Muhammad Akram F.C. P.W.5 was present when .7 mm rifle P.4 was recovered at the instance of the appellant. He also attested the recovery memos. Abdul Khaliq P.W.6 identified the dead body of Muhammad Maqsood Ali at the time of post-mortem examination. Shahbez Ali, A.S.-I. P.W.7 entered the formal F.I.R. Exh.P.G./1 at the Police Station Nesir Ali, H.C. P.W.8 kept the parcels (case property) in the Malkhana for safe custody and later on handed over the same to the concerned constables for onward transmission to the relevant offices. Liaquat Ali P.W.9 and Shafqat Ali P.W.10 being the eye-witnesses of this case narrated the circumstances, under which appellant committed the murder of Muhammad Maqsood Ali deceased. Both of them supported the prosecution case in verbatim. Muhammad Aslam, Inspector P.W.11 conducted the investigation of this case as narrated in the earlier part of the judgment.
Learned Public Prosecutor tendered in evidence reports Exh.P.N. And P.O. Of Chemical . Examiner and Serologist respectively and closed the case for prosecution.
9. Learned trial Court also examined the appellant under section 342, Cr.P.C. While answering to the question "why this case against you? The appellant replied as under:-- "All the P. Ws. Are closely related inter se. They are closely related to the deceased. They have pre- existing enmity with me. Deceased Muhammad Maqsood Ali was done to death by certain unknown assailants in the darkness of the night. The incident was not seen by anyone. The deceased's son Muhammad Ayub is a narcotic addict and on that account he got him interned in jail. Muhammad Ayub was a source of disrupts and grief for his father. Muhammad Maqsood Ali, being aggrieved by the said conduct of his son and also being annoyed with the conduct of his family members, left Mauza Kallari about five years before the incident and shifted to Chak No. 185/JB. The deceased had many enemies. So much so even his son, in order to get money to meet his heavy financial demands, wanted to remove him from his way. The deceased had kept one Mst.
Kaniz were of Ahmad Jaurra as his keep. The relatives of Mst. Kaniz were also highly aggrieved of the deceased. Some unknown person out of the said many enemies of the deceased, assassinated him in the darkness. The incident was un-witnessed by any. The P.Ws., who resided at a distance of 60/70 miles from the place of occurrence, got the information of the incident on the following day.
They concocting the facts and fictitiously showing their residences of Chak No. 185-JB, enroped me in the case for the crime on account of suspicion and enmity already existing. The complainant party in fact wanted thereby to pressurize us to renounce our claim to ancestral property left by my maternal grandfather."
The appellant neither made any statement under section 340(2), Cr.P.C. Nor produced any evidence in his defence.
10. The trial Court vide judgment dated 18-6-1998 convicted and sentenced the appellant as narrated in the earlier part of the judgment.
11. Learned counsel for the appellant submitted that it was an unseen occurrence; that Muhammad Maqsood Ali deceased was done to death by some unknown persons during dark hours of the night and both the eye-witnesses namely Liaquat Ali P.W.9 and Shafqat Ali P.W.10 being close relatives of the deceased were introduced later on by the prosecution to strengthen the case that both the said witnesses were resident of an area which was about sixty miles away from the place of occurrence and their presence at the relevant time in the circumstances of this case was doubtful; that during the investigation recovery evidence was fabricated that the motive for this occurrence was never proved by the prosecution before the trial Court; that the ocular account is in direct conflict with the medical evidence and that in the circumstances the appellant has earned the right of acquittal. Conversely, learned counsel for the complainant as well as the State while supporting the impugned judgment vehemently opposed the contentions raised by the learned counsel for the appellant.
12. With the assistance of learned counsel for the parties, we have minutely gone through the record of this case. The facts reveal that the entire case of the prosecution rests upon the statement of two eye-witnesses namely Liaquat Ali P.W.9 and Shafqat Ali P.W.10 as well as the evidence of recovery of .7 mm rifle. P.4 at the instance of the appellant, the motive for the commission of this offence and the medical evidence coupled with the evidence of abscondance of the appellant.
As far as the recovery of .7 mm rifle P.4 at the instance of the appellant is concerned, admittedly, during investigation no empty was recovered from the spot and there is no evidence on the record to show that this weapon was ever used during the occurrence. In this view of the matter, this I niece of evidence is of no significance and cannot take the case of the prosecution to any conclusion. This limb of the prosecution case has already been disbelieved by the trial Court.
The motive for the occurrence i.e. The dispute between the parties over some land, is not denied by the appellant. It is well-settled that the motive is a double-edged weapon which cuts both sides. In the present case appellant and the complainant party are related inter se, the possibility that the said motive has been used by the prosecution to falsely involve the appellant in this case, cannot be ruled out.
13. As narrated earlier prosecution has produced two eye-witnesses namely Liaquat Ali P.W.9 and Shafqat Ali P.W.10. Both these witnesses were closely related to the deceased and' their enmity with the appellant is also established from the record. This occurrence took place in the area of Chak No. 185-JB whereas the record of this case reveals that both the said witnesses were the residents of Mauza Kalari which is situated about 60/70 miles away from the place or occurrence and their presence at the spot is doubtful. Admittedly during days or occurrence Liaquat Ali P.W.9 (complainant) was posted as a school teacher in Mauza Kallari, the children of this witness were also studying in the same Mauza, this witness has the domicile as well as is enrolled as a voter in the electoral roll of the said Mauza. In the National Identity Card as well as the service record this witness has been shown as resident of the said Mauza i.e. Mauza Kalari. Statedly, Liaquat Ali P.W.9 was on leave on the day of occurrence and was present in Chak No. 185/JB as he owns residential and landed property in the Chak. It is interesting to note that there is nothing on the record to show that Liaquat Ali P.W.9 was in fact on leave from school as stated by him, on the day of occurrence which was not a holiday. Similarly, Shafqat Ali P.W.10 while deposing before the trial Court narrated his residence in Mauza Kalari.- Admittedly, he owns no land/property in Chak No.185/JB and while making statement under section 161, .Cr.P.C. He did not mention the cause of his visit to the Chak No. 185/JB but while deposing before the trial Court made improvements in his statement in this regard.
Statedly, both the above said eye--witnesses alongwith Hashmat Ali and Noor Sultan had witnessed this occurrence. The deceased was removed to the hospital by the eye-witnesses immediately after the occurrence and as stated by Dr. Muhammad Sharif P.W.1 "the deceased in an injured condition, was brought to me on 1-4-1996 at 8-00 p.m. And it was soon thereafter that he had expired in the course of examination". It is interesting to note that the complainant remained silent for almost seventeen hours and ultimately informed the police about this occurrence on the next day i.e. 2-4-1996 at about 10-15 a.m. The eye-witnesses were closely related to the deceased had they been present at the spot they must have informed the police well in time. The delay in lodging the F.I.R. In the circumstances of this case is fatal for the prosecution and is sufficient to doubt its credibility.
14. As far the evidence of abscondence of the appellant is concerned, it is clear from Exh.P.K./A i.e. The notice under section 87, Cr.P.C. By the concerned Magistrate, that the appellant was directed to appear before the Court on 26-6-1996. The record of this case reveals that appellant was taken into custody on 3-6-1996 and was produced before the Magistrate for physical remand. Thus the proceedings for the issuance of proclamation as required under section 87/88, Cr.P.C. Were never completed and this piece or evidence relied upon by the prosecution have no legs to stand.
14-A. The crux of the above discussion is that the presence of both the eye-witnesses at the spot is not beyond the shadow of doubt and even otherwise there is no corroborative piece of evidence on record in support of the ocular account narrated by interested witnesses. In this view of the matter, while extending the benefit of doubt in favour of the appellant, both the appeals (Criminal Appeal No.528 of 1998 filed through counsel and Criminal Appeal No. 112/J of 1998 filed through jail) are accepted, conviction and sentence of the appellant are set aside and he is acquitted of the charge. He shall be released forthwith, if not required to be detained in any other case.
15. Death sentence is not confirmed and the murder reference is answered in the negative.