' MIAN MUHAMMAD NAJUM-UZ-ZAMAN, J.--- The appellants were tried by the Additional Sessions Judge, Sialkot for the murder of one Muhammad Iftikhar in case F.I.R. No,117 of 1998 dated 2-3-1998 under sections 302/148/149, P.P.C. Registered at Police Station Ugoki, District Sialkot. The learned trial Judge vide judgment dated 11-7-2001 convicted all the appellants under section 302(b)/34, P.P.C.
Muhammad Sarfraz appellant was sentenced to death and to pay compensation amounting to Rs,1,00,000 to the legal heirs of the deceased as provided under sections 544-A, Cr.P.C. Whereas the other appellants were awarded imprisonment for life and were also directed to pay Rs,50,000 each as compensation to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. Or in default whereof to further undergo four months' S.I. They were also given the. Benefit of section 382- B, Cr.P.C.
2. Being aggrieved by the said judgment the appellants have filed Criminal Appeal No,1093 of 2002 while the complainant has filed Criminal Revision No,791 of 2001 seeking enhancement of sentence of the appellants whereas a reference (Murder Reference No,467 of 2001) has been made by the trial Court under section 374, Cr.P.C. Seeking confirmation of the sentence of death awarded to Sarfraz appellant. All these matters are being disposed of through this judgment.
3. The F.I.R. Exh.P.A./1 was entered in the Police Station Ugoki upon the statement of one Rafique Hayat son of Nazir Ahmad, P.W.1 about the murder of his brother which took place within the area of village Korowal falling within the jurisdiction of the above said police station.
4. Brief facts of the prosecution case are that on 1-3-1998 at about, 10-00 a.m. The complainant Rafique Hayat was standing at the Dera of Village Korowal and his brother Muhammad Iftikhar who had come from Saudi Arabia was going to the fields for easing himself and when he went to some extent from the Dera towards west side suddenly Muhammad Sarfraz son of Ghulam Qadir and Muhammad Yousaf armed with mauser .30 bore (automatic), Ghulam Qadir, Ghulam Rasool sons of Lal Din armed with .30 bore pistol as well as Muhammad Safdar son of Ghulam Rasool armed with mauser .30 bore (automatic) alongwith five unknown persons who were also armed with fire- arms came from the house of Muhammad Yousaf and stopped the brother of the complainant.
Muhammad Yousaf accused asked the brother of the complainant as to why he had filed an application in the police station against them and when he was going to reply the said Muhammad Yousaf accused fired at Iftikhar from his fire-arm which hit him on the abdomen and ne fell down on the ground. Thereafter Sarfraz accused fired at Muhammad Iftikhar. One fire hit him on the spinal cord and the second on right buttock. The fires made by Muhammad Safdar accused hit Muhammad Iftikhar on the right arm. Ghulam Qadir accused also fired at Muhammad Iftikhar which hit him on the supper side of the right arm. Muhammad Yousaf raised a Lalkara that Iftikhar had filed an application against him, therefore, he may be taught a lesson for filing the application and be done to death. Under the said command other five unknown persons also fired at Iftikhar which hit him on different parts of his body. On hearing hue and cry of the complainant party Muhammad Safdar son of Muhammad Nazir, Muhammad Ashiq son of Ahmed Khan and Hakim Tariq Mahmood also reached at the spot and witnessed the occurrence. After the occurrence all the accused fled away from the spot. Statedly injured Muhammad Iftikhar was shifted to the hospital for medical treatment.
' The motive behind the occurrence was that Muhammad Iftikhar deceased had filed an application against the accused party in the police station and in retaliation of the same, the accused persons in furtherance of their common intention formed an unlawful assembly and caused injuries to Muhammad Iftikhar, The matter was reported to the police at about 8-00 p.m.
On the next day i,e, 2-3-1998. This case was investigated by Tariq Mehmood, S.-I. (absconder in some other case), Muhammad Younas, S.-I., P.W.11, Waqar Javed, Inspector P.W.14 as well as by Saeed Ahmed Gondal, D.S.P./D.W.4. During the investigation Muhammad Sarfraz appellant led to the recovery of pistol P.5 from his residential house. The said pistol was taken into custody vide recovery memo. Exh.P.E. The Police Officers after complying with legal formalities submitted the challan before the trial Court.
5. Before the trial Court the prosecution produced 14 witnesses to prove the charge against the appellant.
6. Rafique Hayat P.W.1 and Muhammad Safdar P.W.2 being the eye-witnesses of this occurrence narrated the circumstances under which allegedly the appellants committed the murder of Muhammad Iftikhar. Both of them supported the prosecution in verbatim.
7. Dr. Shabbir Hussain Janjua (P.W.3) conducted the post-mortem examination on the dead body of Muhammad Iftikhar deceased on 6-4-1998 and found the following injuries on his person:--
(1) 0.5 c.m. Lacerated circular wound on right side of chest, 1 c.m. Below the right collar bone.
(2) Lacerated wound .3 c.m. .2 c.m. Oval shape 1 c.m. Below injury, No,l.
(3) Black lacerated wound .3 c.m. x 0.1 c.m. In front of right chest 2 c.m. Below and lateral to injury No, 1.
(4) Two lacerated wounds blackish on right forearm 1 c.m. x 0.7 c.m. On posterior aspect of middle 1/3rd.
(5) Lacerated black wound .7 c.m. x .5 c.m. Upper 1/3rd right forearm on its medial side.
(6) Lacerated' black wound .7 c.m. x .5 c.m. Upper 1/3rd of right forearm on its lateral aspect.
(7) A stitched wound 18 c.m. Extending from right hopichontrium to epigastrium on horrizental direction in front of abdomen.
(8) A stitched wound 12 c.m. Extending vertically from epigastrium to Umbilical area in front of abdomen.
(9) Oval wound 1 c.m. x .5 c.m. On left lumber region in front of abdomen.
(10) Oval wound 1 c.m. x 1/2 c.m. On lateral bodal of abdomen in left lumber region.
(11) Oval lacerated wound 1 c.m. x 1 c.m. On back of left lumber region 3 c.m. Lateral to midline.
(12) Lacerated wound 1 c.m. x 1 c.m. On the back of right chest 5 c.m. Lateral to midline on the medial border of scapula.
(13) Lacerated wound 2 c.m. x 1-1/2 c.m. In right lumber region 3 c.m. From the midline.
(14) Circular wound 0.8 c.m. Blackish in colour on right border of abdomen in right hypochondric region.
' In the opinion of the doctor all the injuries on the person of the deceased were ante-mortem and caused by fire-arm except injuries Nos.7 and 8 which were operative wounds. Reportedly seven injuries fall within the category of Ghayr Jaifah Damiah whereas rest of the injuries were Jaipha in nature.
9. Muhammad Asif, foot constable/P.W.4 formally received the dead body of Muhammad Iftikhar deceased after getting the post-mortem examination, Abdul Razzaq, Head Constable/P.W.5 kept the parcels (case property) in Mal Khana in safe custody and later on delivered the same to the constables for onward transmission to the relevant officers. Masood Ahmed Bhatti, Draftsman/P.W.6 prepared the site plans Exh.P.D. And Exh.P.D./1. Manzoor Hussain constable No,47- C/P.W.7 was present when the appellant Muhammad Sarfraz led to the recovery of pistol P.S. He also signed the recovery memo. Exh.P,E. In this regard Zafar Iqbal constable/P.W.8 was present when the last-worn clothes of the deceased were produced before the Investigating Officer. He also signed the recovery memo. Exh.P.B. This witness also took the sealed parcels of the blood- stained earth as well as of the pistol and delivered the same to the relevant offices intact.
Muhammad Ajmal, Dispenser appeared as P.W.9 as well as P.W.12. He proved Exh.P.F. Dated 1-3- 1998 i,e, the M.L.R. Of Muhammad Iftikhar (when he was alive) which was prepared by Dr. Muhammad Azam as well as Exh.P.L./1, prepared by Dr. Javed Anjum i,e, certificate about the fitness of Muhammad Iftikhar to make a statement. Muhammad Zahid, S.-I./ P.W.10 entered the formal F.I.R.
Exh.P.A./1 at the police station. Muhammad Younas, A.S.-I./P.W.11 conducted the formal investigation of this case. Rana Muhammad Zahid, S.-I./P.W.13 proved the recovery memos prepared by Tariq Mehmood, S.-I. During the investigation. Waqar Javaid, Inspector/S.H.O. (P.W.14) prepared the final report under section 173, Cr.P.C.
' The learned trial Court also examined the appellant under section 342, Cr.P.C.`Muhammad Yousaf, Ghulam Qadir and Muhammad Safdar appellants while denying the charge pleaded their innocence whereas Muhammad Sarfraz appellant while answering to the question "have you to say anything else" replied as under:- "The deceased had a number of enemies in village and area. He has committed Zina-bil-Jabr with Mst. Nagina daughter of Sadiq Rajput of village. A case under section 10/7/79 was registered against him and he was prosecuted. One Sarwar an ex-army man was murdered in the village in the year 1995. One of the accused Boota in that Sarwar murder case was the real brother of Safdar.
P.W. Ashiq P.W. Is a maternal-uncle of Boota accused in that case. In that murder case the complainant party in this case supported the accused while our party supported the complainant party. There is a bitter party faction in the village Myself and my co-accused had effected a compromise with Iftikhar deceased in this case. In the course of investigation of this case police had concluded that about 3/4 months before this occurrence Iftikhar deceased had committed Zina-bil-Jabr with Mst. Shamim Akhtar daughter of Ghulam Qadir, my co-accused but due to intervention of respectables and begging of pardon by the deceased no criminal action was initiated. The respectables had exterminated the residing of Iftikhar deceased from the village for two years but the deceased had returned to the village after two days. On the day of occurrence the deceased forcibly caught hold of said Mst. Shamim Akhtar, launched an outrageous assault on her modesty and attempted to kidnap her on the pistol point. Mst. Shamim Akhtar raised alarm, attracting myself, and five others from our relatives and the relative of Mst. Nagina Bibi. I had sought the help of the five said persons to frustrate the attempt of Iftikhar deceased in kidnapping of Mst. Shamim Akhtar. The five persons who were described as unknown culprits by the complainant party had fired shots at Iftikhar deceased and killed him at the spot. As the complainant party did not know the names and particulars of the five assailants of the deceased, they falsely implicated me and my co-accused in this case. As a matter of fact we are all innocent.
The Investigating Officer/Police Officer had come to the same conclusion as narrated by me by declaring all the four of my co-accused as innocent. I was shown in column No,3 because I happened to be present at the spot and had only invited the help of the aforesaid five persons to save Mst. Shamim Akhtar from the deceased as I was myself empty-handed."
10. The appellants did not make statements under subsection (2) of section 340, Cr.P.C. However, they produced four witnesses in their defence.
11. Mst. Shamim Akhtar, D.W.1 narrated that at the time of the occurrence the deceased being armed with a mauser caught hold of her from her hands in order to forcibly take her away but upon her hue and cry her real brother Muhammad Sarfraz alongwith other five unknown persons who were armed with mausers and had wrapped their faces came there. They fired at Iftikhar deceased and injured him and thus she was saved from the clutches of the deceased.
12. Muhammad Mushtaq D.W.2 and Faqir Sain D.W.3 narrated that at the time of the occurrence they had seen five unknown persons with muffled faces running away from the place of occurrence after firing at the deceased.
13. Saeed Ahmed Gondal, D.S.P./D.W.4 had narrated that Rana Ahmed Hassan, D.S.P. *agar Javaid, Inspector/S.H.O. Were the Investigating Officers. Both the officers had declared Sarfraz appellant guilty whereas rest of the appellants were declared innocent and on the basis. Of the material available on record he verified the investigation conducted by the said Police Officers.
' The learned trial Court after appraisal of evidence available on record vide judgment dated 11-7- 2001 convicted and sentenced the appellants as narrated in the earlier part of the judgment.
13-A. The learned counsel for both the parties have been heard at length and with their assistance we have also minutely gone through the record of this case.
14. It is a case of two versions. Time and place of occurrence as well as weapons with which the deceased Muhammad Iftikhar was done to .Death are the admitted facts. The only question to be resolved is whether the story narrated by the defence is to be relied upon or the statements of the eye-witnesses are to be accepted as a gospal truth.
14-A. This occurrence admittedly took place at a thoroughfare at about 10-00 a.m. On 1-3-1998 whereas the matter was reported to the police on the next day i,e, on 2-3-2001 at 8 p.m. Almost after 34 hours of the occurrence. The stand of the prosecution is that this delay occurred because the complainant remained busy for the medical treatment of Muhammad Iftikhar deceased. On the other hand a careful examination of the evidence available on record reveals that at the time of occurrence besides the complainant many other people were also present at the spot who had witnessed this occurrence. Rafique Hayat P.W.1 while deposing before the trial Court had admitted that Ashiq Hussain and Hakeem Tariq Mahmood as well as Muhammad Safdar were also present but none of them bothered to inform the police about the occurrence. It is also evident from the statement of Rafique Hayat (P.W.1) that when he went to the police station to lodge the report, he was directed by the S.H.O. Concerned to file a written application and in lieu of the said direction he got prepared an application (Exh.P.A.) through one Mazhar outside the police station. Admittedly at the same time the brother of the complainant Zulfiqar, Dr. Anwar and two/three persons were also present when the said application was being prepared. It means that F.I.R. Was prepared after deliberation. In the light of said circumstances of the case, the explanation of the complainant about the delay in lodging the F.I.R. Is of no value and this delay in lodging the F.I.R. Gives strength to the argument of the learned counsel for the appellant that time was consumed by the prosecution to concoct and fabricate the story for the false implication of innocent people.
' In support of its case, prosecution has relied upon two eyewitnesses namely Rafique Hayat P.W.1 and Muhammad Safdar P.W.2. Both the witnesses were related to the deceased. Though they have supported the prosecution case but the inordinate delay in lodging the F.I.R. Is sufficient to doubt their presence at the spot, as well as their credibility. Even otherwise the story narrated by the said witnesses on the face of it is not plausible. It is humanly impossible to observe with particularity, as stated by eye-witnesses, the location of each and every injury on the person of the deceased when 9/10 persons were firing simultaneously at the same target. The story of prosecution case is also belied by its own witnesses i,e, the Investigating Officers. It is clear from the statement of Muhammad Younas, A.S.-I./P.W.11, Waqar Javaid Inspector, P.W.14 and Saeed Ahmed Gondal, Deputy Superintendent of Police/D.W.4 that Muhammad Iftikhar deceased was done to death under different circumstances than narrated by the above said eye-witnesses. During the investigation by these witnesses Muhammad Yousaf, Ghulam Qadir and Muhammad Safdar appellants were found innocent and about Muhammad Sarfraz the finding of these police officials was that he alongwith other unknown persons caused injuries to Muhammad Iftikhar deceased in order to save the honour of his sister Mst. Shamim Akhtar, D.W.1.
15. On the other hand, the defence plea that at the time of the occurrence the deceased Muhammad Iftikhar who was a man of bad character, attempted to forcibly abduct Mst. Shamim Akhtar D.W.1, the real sister of appellant Sarfraz and at the nick of time, the appellant Muhammad Sarfraz alongwith five unknown persons intercepted and got released Mst. Shamim Akhtar, D.W.1 from the clutches of Muhammad Iftikhar deceased after causing fire-arm injuries to him, stands established from the statements of the Investigating Officers as well as from the statements of Mst.
Shamim Akhtar, D.W.1. And other defence witnesses.
16. While placing both the versions in a juxtaposition one would come to an irresistible conclusion that under the circumstances of this case the story narrated by the defence is closer to the truth and the same should be accepted while ignoring the prosecution case. In this view of the matter we are persuaded to allow this appeal to the extent of Muhammad Yousaf, ,Ghulam Qadir and Muhammad Safdar appellants. The conviction and sentence of these appellants is set aside and all of them are acquitted from the charges.
' With regard to Muhammad Sarfraz, appellant the charge under section 302(b), P.P.C. Is not made out. His conviction and sentence under the said charge is set aside. However, he stands convicted under section 302(c), P.P.C. And sentenced to 7 years' R.I. With the benefit of section 382-B, Cr.P.C.
17. As far the award of compensation to the legal heirs of the deceased under section 544-A, Cr.P.C.
Is concerned the facts of this case reveal that deceased Muhammad Iftikhar at the time of the occurrence was involved in an immoral activity and was not a Masoom-ul-Dam, the legal heirs of the deceased are not entitled to any compensation.
18. With the modification in the impugned judgment appeal i,e, Criminal Appeal No,1093 of 2001 to the extent of Muhammad Sarfraz appellant otherwise stands dismissed.
19. In the light of the above discussion, Criminal Revision No,791 of 2001 seeking enhancement of the sentence of respondents is also dismissed.
' Murder Reference No,467 of 2001 is answered in the negative.