' M. BILAL KHAN, L--- This Criminal Appeal No,40 of 1999 is directed against the judgment. Dated 27- 2-1999 passed by the learned Addl. Sessions Judge, Islamabad whereby he convicted Arshad Ali accused under section 302. P.P.C. And sentenced him to death and a fine of Rs,20,000 or in default in payment of fine to undergo six months' S.I. And acquitted Muhammad Sadiq co-accused of the appellant from the charge under section 302/34, P.P.C. Muhammad Riaz complainant has filed Criminal Appeal No,65 of 1999 against the acquittal of Muhammad Sadiq and for his conviction in accordance with law. Muhammad Riaz has also filed Criminal Revision No,35 of 1999 against Arshad Ali accused/appellant for awarding adequate compensation as required under section 544-A. Cr.P.C. The learned Addl. Sessions Judge, Islamabad has also sent Murder Reference No,257 of 1999 to this Court for confirmation of death sentence awarded to Arshad Ali accused/appellant.
All these matters are being disposed of through this judgment.
2. Briefly stated the facts of the prosecution case as disclosed in the F.I.R. By the complainant Muhammad Riaz are that his father had two wives and he is the offspring from one wife alongwith a sister while from the second wife Muhammad Sadiq, Muhammad Arshad and Muhammad Razzaq were horn. About one year ago the three brothers demanded land from the complainant as according to them he had land in excess of his due share as a result of which the demanded piece of land was given to them in the presence of the people of the village. A few days before the occurrence the uterine brothers again demanded some land from the complainant as according to them the complainant still had land in excess of his share. On 10-5-1996 Muhammad Sadiq and his son Arshad Ali accused/appellant started measuring complainant's land without permission and at that time Zahid Mehmood deceased son of the complainant who had brought flour from a flour machine came there. He was asked by the accused to help them in measuring the land with the help of a measuring tape. Dr. Muhammad Razzaq was also present there, who asked Zahid Mehmood deceased as to whom that land belonged whereupon Zahid Mehmood replied that his uncle Sadiq was the owner of that piece of land. The accused Arshad Ali grappled with the deceased because he did not like the calling of his father's name by him. Meanwhile the complainant arrived there separated both of them and asked Zahid Mehmood to proceed towards his house with the flour and the complainant and his son Imran followed him. When they reached near Aziz Market at 11-00 a.m. They saw Sadiq and Arshad accused sitting in a taxi by the side of the road. Sadiq accused asked his son Arshad Ali to finish Zahid Mehmood and both of them alighted from the taxi whereupon Arshad Ali who was armed with .7 mm rifle fired at Zahid Mehmood hitting him on the lower part of the right side of the chest. Zahid Mehmood fell down. After the incident the accused tied from the venue of the occurrence. The occurrence was also witnessed by Muhammad Imran son of the complainant. Zahid Mehmood was removed to the Poly Clinic.
Hospital but he died there.
3. Regarding this incident F.I.R. No,80 was recorded under section 302/34, P.P.C. At Police Station Sihala, Islamabad on 10-5-1996. After the lodging of F.I.R., Allah Yar, Inspector/1.0. (P.W.10) reached.
Poly' Clinic Hospital, recorded the statements of the complainant Muhammad Riaz and sent the complaint Exh.P.H. To the police station for formal registration of F.I.R., prepared the inquest report, collected the bloodstained earth and blood-stained clothes of Muhammad Riaz complainant and sent the dead body for post-mortem examination. He also recorded the statements of witnesses under section 161, Cr.P.C. On 13-5-1996 Tajamal Hussain, S.H.O. Police Station Sihala took over the investigation due to the transfer of the former Investigating Officer. The latter I.O. Arrested Arshad Ali accused on 18-5-1996 who led to the recovery of .7 mm rifle, one empty of .7 mm rifle alongwith three live bullets. He also arrested Muhammad Sadiq accused on 29-5-1996. Tajammal Hussain S.H.O. Got prepared site plan and after completion of necessary investigation challaned the accused. On 10-5-1996 Dr. Muhammad Arshad Khan conducted post-mortem examination on the dead body of Zahid Mehmood and found the following injuries:--
(1) A wound of entry measuring 1.3 c.m. Diameter on the left lower chest front just lateral to the sternum. It is 11 inches lateral to the sternum and 2 inches from the right nipple. There was no burning blackening or tattooing around the margins of the wound.
(2) Wound of exit 1.8 c.m. Diameter on the right chest back in lower third region. It was 5 inches from the spine and 3 inches from the mid axillary's line.
' In the opinion of the doctor the cause of death was extensive injury to the liver and injury to the right lung. The injury was due to the fire-arm and was ante-mortem. Such injuries are sufficient to cause death in ordinary course of nature. Probable time between injury and death was 1 to 2 hours while between death and post-mortem was within 36 hours.
4. On 9-4-1997, charge under section 302/34, P.P.C. Was framed against both the accused to which they pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case produced 12 witnesses including P.W.1 Muhammad lrshad, P.W.2 Malik Muhammad Munir, P.W.3 Muhammad Fayyaz, P.W.4 Muhammad Abbas, P.W.5 Nasir Mehmood Constable, P.W.6 Muhammad Riaz, P.W.7, Muhammad Imran, P.W.8 Sultan Ahmad, P.W.9 Dr. Muhammad Arshad P.W.10 Allah Yar, P.W.11 Muhammad Shabbir and P.W.12 Dr. Shehzad Ali.
P.W.6 Muhammad Riaz complainant and P.W.7 Muhammad Imran furnished the ocular account of the incident in question. Both the said witnesses also deposed about the motive. P.W.1 Muhammad Abbas stated about the recovery of .7 mm rifle and its licence during the investigation of the case.
The medical evidence was provided by P.W.9 Dr. Muhammad Arshad and P.W.12 Dr. Shehzad Ali. Dr. Shehzad Ali medically examined the injured and found two wounds of entry and exit on the anterior side and 'backside of the chest before post-mortem examination. Dr. Muhammad Arshad conducted post-mortem examination. P.W.10 Allah Yar Inspector who investigated the case deposed about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
6. After the close of prosecution case the accused were examined under section 342, Cr.P.C. They pleaded not guilty and professed their innocence. To a question as to why this case against you and why the P. Ws. Have deposed against you, Arshad Ali accused stated as under:-- "P. Ws. Are related inter se and inimical towards me.
' Muhammad Imran never appeared before the police concededly for four long days. Both the P.Ws.
Were not present. F.I.R. Was recorded after due deliberation on the spot. The complainant himself conceded that the police reached the spot at 6-30 p.m. And thereafter the police recorded his statement at the spot and he signed his statement at the spot. Time of recording of F.I.R. Is padding of the police. The complainant by his own showing/saying is a chance witness. My father who is blind and an old man of 87 years was also assigned the role of directing me to fire at the deceased. The complainant reached at the spot 15 minutes of the occurrence. The complainant had grudge and grouse against me as I refused to marry his daughter Shabnum who is 27 years of age and as I broke my engagement nobody is ready to marry his daughter and due to this, I have been made scapegoat in this case and after breaking of the engagement with the daughter of the complainant. I married elsewhere and due to this enmity I was falsely implicated. This is concededly my first version even before the police. The story of the flour bag is incorrect. Dr. Muhammad Razzaq who is important witness of the prosecution was not examined by the 1.0. As he was belying the version of the prosecution. The assailant was not known and none was ready to support the false version qua our false implication in the case and that is why Roznamcha was seized and Muhammad Imran P.W. Was introduced first time in this case on 13-5-1996 i,e, on the 4th day of occurrence. The complainant wants to pressurize us by this case to snatch our landed property."
' Similarly Muhammad Sadiq accused deposed that:-- "I am old man of 87 years of age. My eyesight is very weak. I cannot identify anybody. Complainant wants to snatch my landed property. My co-accused broke the engagement with daughter of the complainant and married elsewhere. Deceased was done to death by some unknown assailants, I and my co-accused are innocent and have been falsely implicated."
' Both the accused did not make any statement on oath under section 340(2), Cr.P.C. And did not produce any witness in their' defence.
7. At the conclusion of the trial 'the learned trial Court found the prosecution case against the appellant Arshad Ali to have been proved beyond reasonable doubt and thus, the appellant was convicted and sentenced as mentioned in detail hereinabove. His co-accused, namely Muhammad Sadiq son of Mansabdar was however, acquitted of the charge by extending to him the benefit of doubt. Hence the present ppeal bearing No,40 of 1999, connected Murder Reference No,257 of 1999 under section 374, Cr.P.C. Criminal Appeal No,65 of 1999 filed against the acquittal of the co-accused Muhammad Sadiq and Criminal Revision No,35 of 1999 for enhancement of compensaiion under section 544-A. Cr.P.C.
8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance.
9. It has been argued by the learned counsel for the appellant that the prosecution had miserably failed to prove its case against the appellant beyond reasonable doubt and thus, the conviction and sentence of the appellant recorded by the learned trial Court warrant setting aside by this Court.
' As against that, the learned counsel for the complainant as also the learned Assistant Advocate- General appearing for the State have maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt and, therefore, his conviction and sentence recorded by the learned trial Court does not warrant any interference by this Court.
10. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has been noticed that the story of the complainant was that on the day of occurrence his deceased son Zahid Mehmood was bringing flour from machine: that Sadiq accused had asked him to join him in measuring the land with the help of a measuring tape; that while the process of measurement was on the deceased and Arshad accused started quarrelling with each other and during the quarrel the complainant reached at the spot and separated them.
The reason advanced by the prosecution for presence of Muhammad Riaz complainant and his son Imran at the spot was that they had gone there for collecting their wheat crop. Muhammad Imran who appeared as P.W.7 stated in his cross-examination that he had gone to the land alongwith his father for collection of wheat crop which had been harvested 4/5 days before the occurrence. However, both the witnesses during the cross-examination admitted that they did not carry any sack, rope or other necessary item or implement for collecting the wheat crop. We have also noticed that the incident of grappling which allegedly took place between the deceased and Arshad appellant took a couple of minutes and according to the complainant he separated both of them and reprimanded his son Zahid Mehmood directing him to go home. The complainant has not put forward any explanation for his returning home and following his deceased son without doing the job which he had gone to perform i,e, collection of wheat crop. In this scenario Muhammad Riaz P.W. Had become a chance witness at the place .Of actual occurrence, which statedly had taken place 10/15 minutes after the first occurrence of quarrel/grappling. According to this witness he heard Sadiq co-accused commanding his son Arshad appellant to do away with Zahid Mehmood deceased and Arshad accordingly did everything on the dictation of his father Sadiq co-accused. Surprisingly Sadiq co-accused did not ask his son to cause any harm to the complainant against whom he had the real motive having been involved in a dispute relating to land. This conduct of Sadiq accused does not appear to be natural inasmuch as if Muhammad Riaz P.W. Had been present at the scene of actual occurrence, it was natural for Sadiq to have directed his son to fire at the complainant too. This circumstance causes serious dent in the story of the prosecution qua the presence of Riaz P.W. At the scene of occurrence.
11. According to the prosecution case, the deceased Zahid Mehmood was carrying a 20 Kgs. Bag of flour when he was attacked upon at the place of occurrence and Riaz complainant says that the bag was lying at the spot and was shown to the police. In cross-examination he stated that "I pointed out flour bag at the spot when the police visited the spot on 10-5-1996. I also disclosed to the Draftsman/Patwari the place where the flour bag was lying. The I.O. Did not take into possession the bag of flour from the place of occurrence". The Investigating Officer namely, Allah Yar Inspector (P.W.10) when cross-examined on this aspect stated that the inspection note Exh.D.B. Did not show the bag of flour lying at the spot and that he did not mention in rough site plan (Exh.P.I) the fact that the bag of flour was lying there. Likewise, the Patwari in his site plan has also not mentioned about the bag of flour. In the inquest report (Exh.P.K.) the Investigating Officer did not observe that the particles of flour were present on the body of the deceased. As such the story that the deceased was carrying a bag of flour does not get any support from the facts and attending circumstances and appears to have been concocted later on to strengthen the prosecution case.
We have noticed that the demeanour and conduct of the eye-witnesses namely, Muhammad Riaz (P.W.6) and his son Muhammad Imran (P.W.7) do not appear to be natural inasmuch as according to both the witnesses neither they forewarned the deceased Zahid Mehmood to change his direction or to get away from the assailants although they' had seen the car at a distance of 40/50 yards nor did they raise any hue and cry when Arshad appellant fired at his brother. According to Imran P.W. The report of the fire was audible at the place of their residence from the place of occurrence but none came from the village after the fire shot. The complainant had also initially stated that his house was situated within the hearing distance from the place of occurrence but later on when he was recalled for cross-examination after a gap of considerable time he changed his stance and stated that gunshot could not have been heard at his place of residence. It is an admitted position on record that the statement of Imran P.W. Was recorded on the 4th day of occurrence i,e, 13-5-1996. No explanation whatsoever is forthcoming as to why such an important witness of the prosecution was not examined on the 10th of May when the F.I.R. Was recorded and subsequently on 11th and 12th May, 1996 when according to the record, the Investigating Officer had been regularly visiting the house of the complainant as also the place of occurrence. The non- recording of the statement of Imran P.W. In our view is a serious flaw in the prosecution case and as such the testimony of this witness cannot be taken on its face value. It remains mystery as to why neither he appeared before the Investigating Officer himself nor he was produced by his father till 13-5-1996. This circumstance alone makes his testimony doubtful and tainted. Needless to add that Imran P.W. Is the son of the complainant and the real brother of the deceased. Apart from this there is no justification on the record as to why Imran P.W. Who was admittedly a school going boy had not gone to school on the fateful day; what made him accompany his father to the place of occurrence and why he and his father came back without completing the erraned for which they had proceeded. It has also to be kept in mind that Imran P.W. Was 11 years of age and thus, obviously being under the strong influence of his father, he stated what he was asked to state. If the testimony of Imran P.W. Is ruled out of consideration we are left with the solitary statement of Muhammad Riaz P.W. Who admittedly is an inimical witness inasmuch as according to his own showing he was having a dispute of land with Muhammad Sadiq co-accused. His testimony, therefore, has to be scrutinized with a lot of care and caution. In this connection we would like to quote a judgment of the apex Court reported in the case titled Haroon alias Harooni v. The State and another 1995 SCM R 1627, wherein it was held that the statement of a prosecution witness must be in consonance with the probabilities fitting in the circumstances of the case and must also inspire confidence in the mind of a reasonable and A prudent man. It was held that if these elements are present, then the statement of the worst enemy, of the accused may be accepted and relied upon without corroboration, but if these elements are missing, then the statement of a pious man may be rejected without second thought. We have noticed that the statement of Muhammad Riaz complainant (P.W.7) suffers from material infirmities inasmuch he has tried to improve his case on various material aspects. This inherent weakness in his evidence negates his presence at the time of occurrence. The mere fact that his clothes were smeared with blood will not advance the case of the prosecution as his clothes could be smeared with blood later on when he found out about the occurrence, went to the spot and handled the body of his deceased son.
Imran P.W. Also stated that he touched the body of his deceased brother, but the prosecution does not claim that his clothes got stained with blood.
12. Insofar as the recovery of crime weapon is concerned, the prosecution claims that the same was recovered from a jungle lying underneath grass nearby the place of occurrence on 25-5-1996 i,e, 15 days after the occurrence. Admittedly no empty has been recovered from the place of occurrence and it was stated that the empty was found in the chamber of the rifle.. The rifle as also the empty were sent to the Forensic Science Laboratory together. As such the prosecution has not been able to establish any nexus between the empty and the place of occurrence. The rifle was admittedly licensed rifle of Muhammad Arshad appellant. In this view of the matter it cannot be said that it was the same empty which was fired at the place of occurrence and resultantly C recovery of licensed rifle does not offer any corroboration to the ocular account.
13. We have also noticed a number of serious lacunae in the investigation of the case. The inquest report (Exh.P.K.) does not contain the description of the weapon although according to the F.I.R. It was a .7 mm rifle which was used in the occurrence. If the I.O. Knew about the description of the weapon of offence used he ought to have mentioned the weapon. The absence of description of the weapon leads us to the inference that when the inquest report was prepared the weapon was not in the knowledge of the S.H.O. And that the F.I.R. Was drafted subsequently. Likewise there is some doubt in recording of the F.I.R. As well. The complainant has conceded in cross-examination that the police had reached the spot after 6-00 p.m., his statement was recorded and he signed the same. The learned counsel for the complainant argued that it was a recovery memo. Of blood- stained earth which the complainant had signed at the spot and not the statement on the basis of which his F.I.R. Was recorded. However, the complainant in his cross-examination stated that he was literate and he signed the recovery memo. As well as his statement. This circumstance also casts a shadow of doubt on the prosecution story and possibility that the F.I.R. Was recorded after the " initial investigation had been carried out cannot be ruled out.
14. The motive as set up by the prosecution that the accused party wanted certain land from the complainant which according to the former the complainant was retaining in excess of his entitlement, is also not borne out from the record. It is the bald statement of the complainant which has not been corroborated by any other witness. Muhammad Imran (P.W.7) had totally denied any dispute regarding the land. Similarly immediate motive for the occurrence as set up by the prosecution that the deceased Zahid Mehmood had given offence to the co-accused Muhammad Sadiq by addressing him in an insolent manner furnishing motive to the accused to do away with the deceased also appears to be highly improbable. It does not appeal to reason that a man who was about 80 years of age according to the prosecution's own showing would command his son to kill his real nephew on such a trivial provocation. We hold that the prosecution has not been able to prove the motive part of its story as well.
15. We have come to the inescapable conclusion that the alleged eye-witnesses were not present when the occurrence had taken place. In the case of Riaz Masih and Mithoo v. The State 1995 SCM R 1730, the Honourable Supreme Court had held that one single reason would be sufficient to discard the statement of a witness if it creates reasonable doubt in a reasonable mind regarding his presence at the spot. Since the very presence of the eye-witnesses at the scene of occurrence is doubtful, therefore, the evidence of recovery, motive or the doctor deposing about the injury suffered by the deceased even if proved cannot in any way advance the case of the prosecution. It would be totally unsafe to rely on the testimony of the sole eye-witness who admittedly is closely related to the deceased being his father and whose conduct throughout the alleged transaction had been quite doubtful, unnatural and improbable.
16. For what has been discussed above we have arrived at a confident conclusion that the prosecution had failed to prove its case beyond reasonable doubt against the appellant. His appeal is, therefore, allowed and the conviction and sentence recorded by the learned trial Court is set aside. The appellant is acquitted of the charges. He shall be released forthwith if not required in any other case. As a result thereof Criminal Appeal No,65 of 1999 and Criminal Revision No,35 of 1999 are dismissed. Death sentence awarded to the appellant by the learned trial Court vide its judgment dated 27-2-19099 is not confirmed.
' Murder Reference No,25 of 1999 is answered in the negative.