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Criminal Appeal No.209 of. 1985, decided on 9th June, 1987.

---S.302--Motive shaky and not established--Glaring contradictions existing in testimony of eye-witnesses and their presence at spot doubtful--Wife of deceased who was admittedly present at time of occurrence not associated in investigation and her side of story suppressed--Evidence of Wajtakkar witness not free from suspicion- Such witness was stated to be sleeping on roof of house near place of occurrence, heard report of gunshot, came down and had seen accused and acquitted co-accused but he was riot examined by police" till seven or eight days after the occurrence--Medical evidence by itself not sufficient to bring home case of prosecution against accused--Conviction and sentence set aside in circumstances.

Sh. Muhammad Yaqoob for Appellant.

S.D. Qureshi for the State.

Date of hearing: 3rd June, 1987.

Riasat Ali and Muhammad Shafi were tried by a learned Additional Sessions Judge of Sialkot under section 302/34 PPC for the murder of Nur Muhammad, deceased. Riasat Ali was convicted under section 302 PPC and sentenced to imprisonment for life whereas Muhammad Shafi, accused, was given the benefit of doubt and acquitted. The appeal (Cr.A.209 of 1985) preferred by Riasat Ali, convict, is now before me for disposal.

2. The prosecution case in brief is that on the night between 24/25-7-1984 Bura Khan, complainant PW8, his son Shamas-ud-Din PW9 and his nephew Qamar Din were chatting with Nur Muhammad, deceased, nephew of the complainant, on the roof of the house of the deceased on domestic matters. Nur Muhammad, deceased, went to his cot in order to sleep. Mst. Naziran Bibi DWI, the wife of the deceased, was also sleeping on another cot on the same roof. The electricity had gone off and a lantern was burning. After a short while, when Noor Muhammad, deceased, went to sleep on his cot and the complainant and the witnesses were to leave the house of Noor Muhammad, deceased, Riasat Ali, accused, all of a sudden appeared at the spot from the house of Mst. Bandi Bibi, armed with a .12 bore carbine, who fired at Noor Muhammad, deceased, which shot hit him on the back of his head on the left side. He ran away via the same route by which he had come. Noor Muhammad died at the spot.

3. Abdul Hamid ASI PW 13 having received information of the occurrence, reached the spot and recorded the statement Ex.PE of Bura Khan PW8 at 00.15 a. m. on 25-7-1984. Within a short moment, Bura Khan complainant PW8 also got recorded a supplementary statement in which he involved Muhammad Shafi as an accused in the case, alleging that he had also accompanied Riasat Ali, accused, when he appeared at the spot. On the basis of the said statement, formal FIR Ex.PE/1 was recorded at Police Station Satrah at 00.30 a.m. by Muhammad Siddique ASI (not produced).

4. The Police Officer, after preparing the necessary papers, sent the dead body of Nur Muhammad, deceased, for post-mortem examination.

5. On 25-7-1984 at 11.00 a. m. Dr. Mumtaz Ahmad Bhatti PW1 conducted the post-mortem examination on the dead body of Nur Muhammad, deceased, and found a lacerated wound 15 cm x 4 cm brain cavity deep on the left side of the head, just above the left ear. The injury was found to be of a fire arm, as eleven pellets and three wads were recovered from the skull. Parietal and occipital bones were found fractured and the damaged brain matter was found coming out of the craneal cavity. Death was due to shock and haemorrhage as a result of the fire arm injury to the skull, which was found to be fatal and sufficient to cause death in the ordinary course of nature. Probable time between injury and death was instantaneous and that between death and post-mortem examination about thirteen hours.

6. On 3-8-1984, Riasat Ali, accused, was arrested by Abdul Hamid ASI PW 13. Muhammad Shafi, accused, was not arrested, as he was found to be innocent.

7. On 15-8-1984, Riasat Ali, accused, led to the recovery of a carbine P3, with an empty cartridge in its chamber, which was taken into possession vide memo Ex. PD in the presence of Chhuttan Khan PW6, Bashir Ahmad PW7 and Abdul Hamid ASI PW13. After completing the necessary investigation, the challan against Riasat Ali, accused, was sent up; the name of Muhammad Shafi, accused, being shown in column No.2 thereof.

8. At the trial, the prosecution produced Bura Khan complainant PW8 and Shams-ud-Din PW9 in support of the motive and the ocular account, Sher Muhammad PW12 in support of the Wajtakkar account, Chhuttan Khan PW6, Bashir Ahmad PW7 and Abdul Hamid ASI PW13 in support of the recovery and Dr. Mumtaz Ahmad Bhatti PW1 in corroboration of the medical testimony.

9. At the trial, both the accused denied all the accusations that were levelled against them. Riasat Ali, accused, denied the recovery of the carbine P3, alleged to have been recovered at his instance. Both stated that the murder was un-witnessed and that they had been falsely implicated on account of suspicion. Riasat Ali, accused, produced Mst. Naziran Bibi DW1, his father Ghulam Muhammad DW2, Muhammad Iqbal MHC DW3 and Riasat Ali DW4 in. his defence.

10. The learned trial Judge, relying upon the motive and the ocular account, convicted and sentenced Riasat Ali, accused, as stated in para 1 above and acquitted Muhammad Shafi.

11. I have heard the arguments of the learned counsel for the appellant and the State and have perused the record. The evidence as regards motive is furnished by Bura Khan complainant PW8 and Shams-ud-Din PW9, who happen to be the paternal uncle and paternal cousin of Nur Muhammad, deceased. According to their version, Ghulam Muhammad DW2, the father-in-law of Nur Muhammad, deceased, had taken a loan of Rs.10,000 from the deceased, which he refused to pay and when a few days before the occurrence the deceased demanded the return of the said amount, hot words were exchanged between Ghulam Muhammad DW2 and Nur Muhammad, deceased. At that time, Riasat Ali, appellant, the son of Ghulam Muhammad DW2, was also present and he threatened the deceased with dire consequences. According to Bura Khan PW8, the said loan had been taken by Ghulam Muhammad DW2 to build his house and that he had also executed a written document in favour of the deceased, though he could not say who was the witness to that deed. However, Muhammad Shafi was present there when the document was executed. He further stated that he had not accompanied Nur Muhammad, deceased, when he had gone to demand the loan back from Ghulam Muhammad DW2, though Shafi Butt, Nur Muhammad and Mst. Naziran Bibi DW1 (the deceased's wife) had accompanied the deceased on that errand. Shafi Butt and Nur Muhammad have not been produced by the prosecution. Mst. Naziran Bibi DW1, who happens to be the wife of Nur Muhammad, deceased, appeared as a defence witness. However, according to her story, it was her deceased husband who owed money to her father Ghulam Muhammad DW2. According to Bura Khan PW8, Ghulam Muhammad DW2 had executed a deed when taking the loan. Unfortunately, the said deed was not produced. In these circumstances, the evidence as regards motive is shaky and it cannot firmly be stated that the motive stands established in the case.

12. The ocular account in this case is furnished by Bura Khan PW8 and Shams-ud-Din PW9, who happen to be the paternal uncle and paternal cousin of Nur Muhammad, deceased. Their version of the occurrence already stands reproduced in pars 2 above and need not be repeated. As against this story, Mst. Naziran Bibi DW 1 has appeared in defence to state that she was sleeping with her husband on the roof of her house, along with her younger son aged thirteen years, when she was awakened by report of a fire arm and found her husband dead. Bura Khan PW8, Shams-ud-Din PW9 and Qainar-ud-Din (given up PW) were not present at her house at the time of occurrence. Rather, she had called Bura Khan PW8, who, after some time, told her that if she appeared before the police and stated that he and the others were not present at her house at the time of occurrence, he would implicate her in the murder of her husband. She also stated that the complainant asked her to disappear from the spot, which she did for .six-seven days. In view of the two contradictory stories, the first question that arises is whether Burs. Khan PW8 and Shams-ud-bin PW9 were present at the spot at the time of occurrence. According to Bura Khan PW8, he, Shams-ud-Din PW9 and Qamar-ud-Din (given up PW) used to visit the deceased's house each day and that he and his son had taken Qamar-ud-Din (given up PW) from his house and had gone to the deceased's house, as Qamar-ud-Din (given up PW) had to take Rs.200/- or Rs.300/ from the deceased, which Qamar-ud-Din (given up PW) had lent to him. According to the complainant PW8, Qamar-ud-Din (given up PW) had called them to accompany him to recover the amount from the deceased and during the conversation the deceased had promised to repay the amount a day after that day. According to the complainant, they had reached the house of the deceased at about 9.00 or 10.00 p.m. According to Shams-ud-Din PW9, he and his father used to visit the house of the deceased daily, that on the day of occurrence, Muhammad Ishaq, the younger brother of Qamar-ud-Din (given up PW) had to take back an amount of Rs.10,000/- from Nur Muhammad, deceased, that Muhammad Ishaq and Qamar-ud-Din (given up PW) had taken him and his father Bura Khan PW8 to the house of the deceased for securing the return of his loan, that they had reached the house of the deceased at the evening and that when demand for the return of the loan was made from the deceased, the deceased made no promise for repayment, on the pretext that he had no money with him. Glaring contradictions in the testimony of both these witnesses as regards the purpose for which they went to the house of the deceased an-d. what transpired there clearly show that they had actually not been there and that a story had to be made up to justify their presence at the deceased's house. According to both these witnesses, they used to visit the. house of the deceased daily. It is not imaginable they over-stayed daily uptil 11.00 p.m., that being the time given by Bura Khan.PW8 to be the time of occurrence. According to Bura Khan PW8, they had reached the deceased's house at about 9.00 p.m., whereas according , to Shams-ud-Din PW9 they had reached his house by evening. There was no occasion for them to be present till 11.00 p. m. Taking all circumstances into consideration, their presence at the spot at the time of occurrence appears to be doubtful. It is also alleged that a lantern was burning when the occurrence took place, as the light had gone off some time in the evening. No lantern is shown in the, site plan Ex.PC/1; nor was any lantern taken into possession by the Police Officer. It is admitted by both sides that Mst. Naziran Bibi DW1, the wife of Nur Muhammad, deceased, was present at the time of occurrence. Strangely, she was not associated in the investigation by Abdul Hamid ASI PW13 and it is, therefore, apparent that her side of the story was to be suppressed. Taking all circumstances into consideration, it appears that Bura Khan PW8 and Shams-ud-Din PW9 were not present at the house of the deceased on the day and time of occurrence and their position as eye-witnesses appears to be open to doubt and it is not possible for me to accept their testimony with any degree of safety.

13. The evidence of the Wajtakkar witness Sher Muhammad PW12 is not free from suspicion. According to his testimony, he was sleeping on the roof of his house, which was across the eastern street from the house of the deceased, on the day of occurrence. When he heard the report of the gun shot, he came down from the roof, opened the door of his house and came out into the street and saw Riasat Ali, appellant and Muhammad Shafi, acquitted accused, running away. In cross-examination, he admitted that he was not examined by the police till seven or eight days after the occurrence. It is surprising that he did not inform anybody about the occurrence immediately after the occurrence, or have his statement recorded by the police the very next day. Since his statement stands recorded seven-eight days after the occurrence, no reliance can be placed on his testimony.

14. The upshot of the above discussion is that neither the motive, nor the ocular account, nor the Wajtakkar account, can be relied upon with any degree of safety. The medical evidence by itself cannot bring home the case of the prosecution against the appellant. Riasat Ali, appellant, is, therefore, entitled to the benefit of doubt.

15. For the foregoing reasons, this appeal is accepted and the conviction and sentence of Riasat Ali, appellant, is set aside. He shall be released forthwith, if not required in any other case.

M.Y.H./R-32/L Appeal accepted.

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