This appeal has been directed against the judgment dated 11-10-2000 passed by learned Additional Sessions Judge, Pakpattan who has convicted the appellant under section 302, P.P.C.
And sentenced him to life imprisonment with imposition of compensation amount of Rs.10,000 payable to the legal heirs of the deceased and in default to further undergo R.I. For six months.
Benefit of section 382-B, Cr.P.C. Was extended to the appellant. This conviction and sentence has been passed in case F.I.R. No.717 registered on 14-11-1998 at 12-20 a.m. With Police Station, City Pakpattan on the statement of Haji Muhammad Sharif P.W.7 brother of Musthaq Ahmad deceased recorded by Muhammad Masood-ul-Haq, S. H. O./Inspector P.W.8.
2. Brief facts as narrated by Haji Muhammad Sharif P.W.7 are that he was resident of Makhdoom Ali, Tehsil Dunianpur District Lodhran. His brother Mushtaq Ahmad resided at Dhakki Mohalla, Baba Sahib, Pakpattan. He came to see his brother. On 17-11-1998 at about 10-30 p.m. He was saying prayer in the mosque. All of sudden he heard hue and cry, he came out and saw that his brother Mushtaq Ahmad was grappling with an unknown person to whom he can identify. Mushtaq Ahmad had caught hold of the accused when Khalid Mehmood given up P.W. And Javaid Arshad P.W.6 also attracted to the spot and witnessed the occurrence. On seeing the witnesses unknown person took out the pistol and fired at Mushtaq deceased which hit him on his left shoulder. The above said accused ran away from the spot. Mushtaq Ahmad was taken to the hospital but he died in the way.
After registration of the case the investigation was going on when the appellant was arrested on 14-2-1999. He was sent to judicial lock-up and identification parade was held on 18-2-1999 wherein both the P. Ws. Identified the accused as real culprit. He also led to the recovery of pistol.
3. After the conclusion of investigation challan was submitted in the Court. Charge was framed which was denied by him and he claimed to be tried. The prosecution in order to prove the guilt of the accused has produced nine witnesses. Material evidence consists of the statements of P.W.6 Javaid Arshad and P.W.7 Haji Muhammad Sharif who had witnessed the occurrence and also identified the appellant as the person who took part and fired at Mushtaq. Ahmad deceased while Masood-ul-Haq, S.-I. Had conducted the investigation. P.W.9 Muhammad Qasim, Magistrate had conducted the identification parade in the Central Jail. Other P.Ws. Are formal in nature except Dr. Muhammad Rafique who conducted the post-mortem examination. After the close of prosecution evidence the accused in his statement under section 342, Cr.P.C. Denied the allegation and took the specific plea which is reproduced as under:-- "I am innocent. The real fact is that on 11-2-1999 I was sitting at Darbar of Hazrat Baba Farid-ud-Din and was counting money. In the meanwhile Masood-ul-Haq, Investigating Officer came there forcibly he took me to the police station where he asked me to give him Rs.37,000. On my refusal he falsely challaned me in this case, in fact I was arrested on 11-2-1999 at 6-00 a.m. From Darbar Baba Farid."
4. After hearing both the learned counsel for the parties impugned judgment has been passed.
5. Learned counsel for the appellant has contended that it was a blind murder being not witnessed by any person but subsequently story was concocted and the witnesses introduced falsely while accused/appellant has been made scapegoat; no material has been recovered from the appellant; the recovery of pistol from the appellant is of no value as the same was not sent to Forensic Science Laboratory for its opinion and even otherwise no empty was recovered from the place of occurrence. It is also contended that identification parade which is important piece of evidence against the appellant is not reliable as P.W.6 and P.W.7 have admitted during the cross- examination, that the persons who were standing alongwith accused in row were different in age, colour and height and they were wearing different clothes, and accused had raised an objection that he was shown to the P.Ws. But in spite of that this identification parade has been relied upon: It is further contended that it is not fit case for conviction, hence appellant tray be acquitted.
6. On the other hand learned counsel for the State has opposed this appeal and has contended that sufficient material is on the record to connect the appellant with the commission of crime and the appeal is liable to be dismissed.
7. I have heard the learned counsel for the parties and also gone through the evidence on record minutely. P.W.7 Muhammad Sharif is resident of Lodhran. Admittedly he is not the resident of the same locality where the occurrence had taken place. His presence at the spot is doubtful. Similarly P.W.6 Javed Arshad is also resident of half kilometre away from the place of occurrence. The occurrence had taken place in the Abadi but nobody who could be a natural witness nearby the place of occurrence was introduced as a witness. The presence of laved Arshad P.W.6 is also doubtful (at 10-30 p.m.) as he was not the neighbourer or resident of the place where the occurrence had taken place. 'There is nothing on the record that where Mushtaq Ahmad was residing at the time of occurrence and the place of occurrence was at what distance from his residence. From the perusal of the site plan it is crystal clear that the occurrence had taken place in front of house of Muhammad Iqbal near the house of Muhammad Amir, Sarwar Khan and Raja Chishti etc. But nobody who was immediate neighbourer of the place of occurrence had been joined in the investigation. The story narrated by P.Ws.6 and 7 is also doubtful as P.W.1 Dr. Mian Muhammad Rafique Azam when examined the deceased for the purpose of post-mortem examination has stated as under:-- "that it was the dead body of young male. Rigor mortem staining were present on the back of the body condom lying on the penis. There was a fire-arm wound on the left side of the chest near anterior axillary fold. Margins of the wound were black. A bruise 2 c.m. x 1/2 c.m. Just below inner 1/2 of left eyebrow.
Multiple small abrasions on both the knees.
An abrasion 1 c.m. x 1/2 c.m. On the anterior aspect of lower 1/3rd of left leg. Semen like secretion came out of penis when condom was put of.
Cranium and spinal cord, larynx and tracheas right lung, walls of abdomen, mouth pharynx and Oesophagus, stomach, pancreas, small and large intestines, spleen and bladder were found healthy.
Organ of generations were found healthy. There was a fire-arm wound on the left side of anterior chest wall near the left axillary fold. Plurea was ruptured on the left side below the entrance fire- arm wound.
Left lung was lacerated. Pericardium and heart were congested and lacerated. Descending, thoraces sorta were ruptured. Peritoneum was ruptured from above below the diaphragm was ruptured in the middle.
Liver was lacerated inferiorly and posteriorly. Right kidney was congested. Left pectoral muscles were lacerated due to fire-arm injury. "
Hence the possibility cannot be ruled out that the post-mortem examination was got conducted with an inordinate delay of more than 12 hours without any explanation which is sufficient to draw an inference that P.W. Muhammad Sharif who is resident of Lodhran was not present at the time of occurrence who was called for from Lodhran and then he was made a witness, whereafter dead body was sent to the mortuary and the post-mortem examination was conducted. P.W.6 Javet Arshad is admittedly Peer-Bhai of P.W.7 and might be made a witness due to this reason in the case in hand. The conduct of both the witnesses is also doubtful as the accused quarrelled with the deceased before the firing of shot at him which continued for some period but the complainant and the other witnesses did not try to separate them or to save the deceased from the clutches of the appellant. Another factor which casts serious doubt in the prosecution case is that condom was lying on the penis. According to the post-mortem report which is reproduces above narrates:- - "Condom lying on the penis."
The doctor also gave the opinion that the semen like secretion came out of penis when condom was put of. He was unmarried man and the presence of condom on his penis at the odd hours of the night leads to an inference that the occurrence had not taken place in the manner as narrated by the P.Ws. And there is possibility that the deceased might be murdered anywhere else but his dead body was thrown at the place or occurrence and 'on finding the same the witnesses were subsequently introduced by the police after concocting a false story. Ocular account is also not in conformity with the medical evidence as the doctor has found a fire-arm injury and also multiple abrasions on both the knees and an abrasion on the anterior aspect of lower left leg. The doctor in cross-examination admitted that the injuries were caused with two weapons and the possibility cannot be ruled out that two persons had participated in the occurrence. One was armed with blunt weapon and the other was with fire-arm. In such circumstances the medical evidence is in contradiction with the ocular account and the prosecution has miserably failed to prove the guilt of the appellant. Another aspect of this case is that P. W.3 Muhammad Iqbal who was present at the time of arrest of the appellant stated that at the time of arrest no catheter was attached with the body of the accused for passing out the urine while P.W.8 Muhammad Masood-ul-Haq, S.H.O.
Stated that when the accused was arrested he was sent to Central Jail, Sahiwal when the catheter was attached to the urine passage which itself shows that the appellant who was aged about 60 years and his urine was to pass through catheter was not in a position to quarrel with the deceased who was a young man and such features were also not mentioned by both the P. Ws. In their statements under sections 154 and 161, Cr.P.C. The other important piece of evidence is the identification parade by both the P.Ws. 6 and 7 who have admitted that the other persons standing with the accused at that time were not of the same structure, age and they were wearing the clothes of different colours while P.W.9 E Muhammad Qasim Siddiqui, Magistrate has stated that they were in dresses of different colours but were of the sane structure. The consistent stand of the appellant is that he was kept in the Police Station for three days and then was sent to Central Jail and he was also shown to the witnesses. The identification parade has lost its sanctity due to the above reasons and also that it was held after more than three months and features of the culprit were not mentioned in the statements before the police by the witnesses. Mere claiming that they could identify the culprit if appeared before them cannot be held sufficient to believe that they were in a position to correctly identify the accused. In such circumstances the identification parade is also of no use and cannot be relied upon. The recovery of pistol is of no use too as no empty was recovered from the spot and even the pistol recovered from the appellant was not sent to the Forensic Science Laboratory to ascertain whether it was in a running condition. The stand taken by the appellant seems to have some substance in the circumstances of this case that Rs. 37,000 were recovered from him at the time of his arrest which .He refused to give to the Investigating Officer and consequently he has been got involved in this case as a revenge by the police.
8. From the above discussion I am of the view that the prosecution has miserably failed to bring home guilt against the appellant. This appeal is accepted, impugned judgment of conviction and sentence is set aside and the appellant is acquitted of the charge. He shall be set at liberty if not required in any other criminal case. The learned trial Court shall ensure that the amount of Rs.37,000 alongwith other articles took into possession vide recovery memo. Exh. PF from the appellant is returned to him at the time of his release.