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صرف 1000 روپے میں 10 وکلاء تک کی براہِ راست رابطہ تفصیلات حاصل کریں اور کال یا واٹس ایپ کے ذریعے موزوں قانونی ماہر سے رابطہ کر کے اپنا معاملہ پورے اعتماد کے ساتھ آگے بڑھائیں۔
Criminal Appeal No.268 of 1983 and Criminal Revision No.519 of 1984, decided on 9th June, 1987.
---S.302/34--Report of occurrence of police grossly belated and explanation given for delay besides being discrepant was too flimsy and unreasonable to merit any reliance--In first information report first and fatal blow was alleged to have been given by accused on head of deceased with his hatchet and it was not mentioned that while inflicting said injury accused had used wrong side of hatchet--At trial, however, it was stated that accused had used wrong side of hatchet--Such narration was obviously made to bring ocular account in accordance with medical evidence--Motive as alleged by prosecution not sounding plausible--Hatchet produced not stained with blood and as such recovery evidence was of no avail to prosecution--Eye witnesses closely related to deceased and their testimony not susceptible to credence--Circumstances leading to conclusion that eye-witnesses were not present at spot at time of .occurrence--Delay occurring in performing post-mortem examination, which further accentuated inference that it was an unwitnessed occurrence and delay occurred because considerable time was consumed in speculations and building up a case--Accused given benefit of doubt and acquitted in circumstances.
Shah Sarwar etc. v. The State P L J 1975 Cr.C, Baghdad-ul Jadid 333 and Muhammad Ali v. The State 1971 P Cr.L J 1181 ref
Sardar Muhammad Latif Khan Khosa for Appellant.
Miss Yasmin Saigal for the State.
Syed Ehtesham Qadir Shah for the Complainant
-Mumtaz, aged 28 years and Sarfraz, aged 27 years, husband of his sister, were tried for the murder of Rehmat, aged 37 years, by the learned Sessions Judge, Sargodha who vide his judgment dated 12th of February, 1984 convicted them under section 302/34 PPC and while Mumtaz was sentenced to death, Sarfraz was awarded imprisonment for life. They were further sentenced each to pay a fine of Rs.2,000 or in default to undergo R.I for a further period of one year. It was directed that the fine if realized, would be paid to the heirs of the deceased as compensation. Benefit of section 382-B Cr.PC was extended to Sarfraz alone. Mumtaz and Sarfraz have filed an appeal against their conviction and sentence while the trial Court has submitted a reference under section 374 Cr.PC for confirmation of the death sentence imposed on Mumtaz appellant. The complainant also has filed a revision petition for enhancement of the sentence awarded to Sarfraz, for enhancing the sentence of fine of Mumtaz as well as Sarfraz and for awarding compensation under section 541-A Cr.PC separately. This judgment shall dispose of the appeal, the reference and the revision petition.
The deceased was real paternal uncle of Mumtaz, appellant.
2. The occurrence took place on 16th of January, 1983 just after Khuftan wela at the Dera of the deceased situate in square No.46 of Chak No.137/S B. about three miles away from Police Station Sillanwali, District Sargodha. It was reported by Muhammad P.W. 8 brother of the deceased, on the next day viz. 17-1-1983 at 1.00 p.m. .at the Bus Stop of Chak No.137-SB about four squares away from the spot vide statement Ex. PC to ASI Muhammad Latif PW 11 who happened to come there in a wagon from Chak No.58-SB. On the basis of this statement a case under section 302/34 PPC was registered -at Police Station Sillanwali on 17th of January, 1983 at 1.30 p. m. vide formal FIR Ex., PC /1 drawn by Moharrir Head Constable Manzoor .Hussain PW.3.
3. The prosecution case briefly was that on the evening of 16th of January, 1983, Muhammad PW 8, a resident of Chak No.139-S.B., went to the Dera of the deceased, his brother, situate in Chak No.137-S.B. to see him. Muhammad PW and Mst. Fatima PW 9, wife of the deceased, sat in front of the residential Kotha near the burning fire. A lantern was also burning outside. The deceased was busy in tethering his cattle. When the deceased was present near the manger, both the appellants armed with hatchets came there and raised a lalkara that they would not leave the deceased alive. The deceased started running when his loin-cloth fell down. Mumtaz appellant chasing him gave a hatchet blow on his head as a result of which he fell to the ground. Then both the appellants inflicted on him injuries with the wrong sides of their hatchets. On the alarm of Muhammad and Mst. Fatima PWs. both the appellants made good their escape. The alarm attracted Saee, another brother of the deceased, who came to the spot running. He informed that he had seen both the appellants running away towards the village with hatchets. The deceased succumbed to the injuries at the spot.
4. The motive for the crime was that one Mst. Shamim, daughter of Ahmad, had been engaged to Mumtaz appellant. The said Ahmad was also the brother of the deceased. On the death of Ahmad, the deceased became her guardian. He instead of marrying her to Mumtaz, married her to Muhammad Khan, son of his sister. This incensed the appellant and he alongwith Sarfraz committed the murder.
5. A.S.I. Muhammad Latif after recording the statement Ex.PC and sending it to the Police Station proceeded to the spot. On reaching there he collected blood-stained earth vide memo. Ex. PD and made it into a sealed parcel and also loin-cloth P.5 and shoes P. 6/1-2 the deceased vide memo. Ex. PF. He prepared injury, statement Ex. P.1 and inquest report Ex. PK in respect of the deceased and sent his dead body to the mortuary for post-mortem examination. He arrested Mumtaz accused on 18th of January, 1983. He got prepared from Dost Muhammad Patwari PW 6 site plan Exs.PE and P E/1 .of the place of occurrence.
6. On the transfer of A.S.I. Muhammad, Latif the remaining Investigation was conducted by S.I. Muhammad Anwar Khan PW 10 who was then posted as S.H.O. Police Station Sillanwali. On 23rd of January 1983. Mumtaz appellant. while in custody got recovered blood stained hatchet P.7 from his residential Kotha situate in Chak No.139-SB and the S.I took it into possession vide memo. Ex. PG and made it into a sealed parcel. He arrested Sarfraz appellant on 26th of January, 1983. At the time of arrest, Sarfraz produced hatchet P.8. The S.I. took it into possession, vide memo. Ex.PH. It was not blood stained. The recovery memo. Ex. PG and' PH were attested by Muhammad son of Wahab PW 7 and Sardara PW who was given up at the trial as unnecessary.
7. The Chemical Examiner vide his reports Ex. PL and P.M and the Serologist vide his reports Ex. PN and PO observed that the blood-stained earth and blood-stained hatchet recovered in this case were stained with human blood. After the conclusion of the above investigation,. both the appellants were challaned.
8. On 18th of January, 1983 at 10.00 a.m. Dr. Muhammad Iqbal Zafar PW 1, Medical Officer, Primary Health Centre Farooka performed post-mortem examination on the dead body of the deceased and observed the following injuries:-
(1) A lacerated wound 7 c.m. x 31 c.m. on front and right side of head on the front part. Margins were lacerated 6 c.m. on the right side of the eye-brow and bone of the skull corresponding to the wound was fractured. No foreign particle was present.
(2) A lacerated wound 3 c. m. x 2 c. m. on the right middle malleolous. Margin were lacerated.
(3) A lacerated wound 4 c.m. x 3 c.m. on the right foot on the inner side 5 c.m. from injury No.2. Margins were lacerated.
(4) A lacerated wound 3 c. m. x 21 c. m. on the left middle malleolus on inner side.
(5) Multiple contused area 15 c.m. x 10 c.m. on the left leg on the outer aspect 10 c.m. from the knee joint measuring 2 c. m. x 1 c. m. each.
(6) A lacerated area 5 c. m. x 4 c. m. on left knee joint on the back of the joint.
(7) Contused area 6 c.m. x 4 c.m. on the right knee joint.
(8) Lacerated area 3 c.m. x 2 c.m. on the right leg on the outer aspect 7 c. m. from the right iliac crest. Margins were lacerated and irregular.
9. In the opinion of the Medical Officer, the death of the deceased had occurred due to internal brain haemorrhage and shock as a result of injury No.1 which was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and had been caused by blunt edged weapon. Injury No.1 was grievous while the other injuries were simple. The probable interval between the injuries and the death was immediate and between the death and the post-mortem examination 30 to 36 hours. Ex. PA is the post-mortem examination report and Ex.PA/1 is the diagram showing the locale of the injuries.
10. The appellant pleaded not guilty to .the charge framed against them under section 302/34 PPC. When examined under section 342 Cr. PC they denied the prosecution case and the recoveries attributed to them. Mumtaz appellant pleaded that he had a land dispute with Muhammad complainant and other P.Ws. and on that account, he had been falsely implicated in this case due to enmity. According to Sarfraz appellant, his false implication was due to his relationship with Mumtaz. Both of them, however, did not produce any evidence in defence.
11. At the trial, prosecution examined eleven witnesses including Muhammad PW 8 and Mst. Fatima PW 9 who deposed to the motive as well as the occurrence. The learned trial Court after appraising the evidence held the appellants guilty of the murder of the deceased and convicted and sentenced them as above.
12. Learned counsel for the appellants has assailed the conviction of the appellants on the grounds that the prosecution has failed to substantiate the motive, that the evidence of recoveries is unreliable, that inordinate delay with which the occurrence was reported to the police and the autopsy on the dead body was conducted smacks of deliberation and fabrication and that the ocular account furnished by the eye-witnesses fails to provide safe basis for conviction on a capital charge.
13. As regards the motive, the case in the FIR Ex. PC was that Mst. Shamim was betrothed to Mumtaz appellant. On the death of her father, the deceased became her guardian. He refused to marry her to Mumtaz appellant and instead married her to Muhammad Khan, his maternal nephew. Mumtaz appellant was harbouring a grudgs against the deceased on this account. Muhammad PW 8 testified to this motive. Ghulam PW 5, a cousin of the deceased, also supported this motive, Mst. Fatima PW 9 did not make any statement as regards the motive in her examination-in-chief. However, in her cross-examination, she said that Ahmad, father of Mst. Shamim, and Muhammad complainant PW were residents of Chak No.139-SB. She admitted that Muhammad complainant kept Mst. Shamim with himself at his dera and arranged her marriage with Muhammad Khan, his maternal nephew. According to Mukhtaran, elder sister of Mst. Shamim was married to Umar, a brother of Muhammad Khan. Both Muhammad Khan and Umar were not strangers but are the sons of the sister of Ahmad deceased and Muhammad complainant. The statement of Mst. Fatima falsified the prosecution case that it was the deceased who had married Shamim to Muhammad Khan. Moreover, as stated by Muhammad PW in his cross-examination, Mst. Shamim was married to Muhammad Khan about six or seven years ago. There is no assertion from anyone that Mumtaz appellant had demonstrated any indignation at the time of marriage of Mat. Shamim with Muhammad Khan. No explanation has been furnished by any witness as to what happened after the expiry of a fairly long period of six or :.even years that triggered such violent reaction from Mumtaz appellant. In the circumstances, the motive as alleged by the prosecution does not sound plausible.
14. Mumtaz appellant was arrested on 18th of January, 1983 and Sarfraz appellant was arrested on 26th of January, 1983. S.I. Muhammad Anwar Khan PW 10 deposed that on 23rd of January, 1983, Mumtaz appellant while in custody led to the recovery of hatchet P. 7 from his residential Kotha and on 26th of January, 1983, Sarfraz appellant at the time of his arrest produced hatchet P.8 which was not stained with blood. According to memo. Ex.PG the blood-stained hatchet was got recovered by Mumtaz appellant from his residential Kotha situate in Chak No.139-SB. This Kotha is .:situate adjacent to the -house of Muhammad PW 8, according to 3.1. Muhammad Anwar Khan PW 10 in his cross-examination. It is intriguing that the blood stained hatchet was preserved intact for seven days after the occurrence as if it was a souvenir of some bravery. Moreover, the persons who were associated to attest the recovery were Muhammad son of Wahab PW 7, who is the brother of the widow of the deceased and Sardara (given up at the trial as unnecessary), a cousin of Muhammad son of Wahab PW 7. S.I. Muhammad Anwar Khan has given no reason for omission to include respectable and independent person of the localities to attest the recoveries. Such recoveries as held in Shah Sarwar etc. v. The State (P L J 1975 Cr C., Baghdad-ul-Jadid 333 are tainted. Besides, the hatchet produced by Sarfraz was not blood stained. Therefore, this recovery is of no avail to the prosecution) on this ground also.
15. Muhammad PW 8 and Mst. Fatima PW 9, as mentioned above, provided ocular account of the occurrence. According t them, on the night of occurrence at Isha-wela/Khuftan-wela, when they were sitting by the fire outside the Kotha of the deceased, Moth the appellants armed with hatchets came there and challenged the deceased. The deceased tried to run away but the appellants overtook him. Mumtaz appellant dealt the first blow on his head from the wrong side of his hatchet felling him down. Thereafter both the appellants with the wrong sides of their hatchets caused him more injuries as a result of which he died at the spot.
16. Muhammad and Mst. Fatima PWs are respectively not only the brother and widow of the deceased but also the uncle and aunt of Mumtaz appellant. Mat. Fatima was not ascribed any animus against the appellants. A suggestion was, however, made to Muhammad PW in his cross-examination that Sher Muhammad father of Mumtaz appellant, had a dispute with him and other brothers over land left by their father but he denied the same. This suggestion not pursued and there is nothing on record in support thereof. No other malice or grudge was attributed to Muhammad PW. Ordinary credibility attaches to such witnesses. But when jaxta-posed with the ambient circumstances, their testimony bristles with doubts and infirmities, it loses its' veracity.
17. Muhammad PW 8 stated in his cross-examination that his house was situate in Chak No.139-SB about two miles away from the spot and that he had no special purpose or any piece of work with the deceased and he had gone to his dera on the evening of the day of occurrence just to see him. Obviously, therefore, he was a chance witness. The presence of Mst. Pathani PW also at the spot at the time of occurrence does not appear to be indubitable. She admitted in her cross-examination that the deceased had built a house in five marlas colony near the Abadi of Chak but, according to her, the same was lying 'locked. No explanation for keeping the house locked was offered by her.
18. In the FIR Ex. PC it was alleged that the first and fatal blow was given to the deceased on his head by Mumtaz appellant with his hatchet. It was not mentioned that while inflicting this injury, Mumtaz had used the wrong side of the hatchet. At the trial, however, it was stated that Mumtaz had used the wrong side of the hatchet. This narration was obviously made to bring the ocular account in accord with the medical evidence.
19. The report of the occurrence to the police was undoubtedly grossly belated. The murder took place on 16th of January, 1983 at E Ishawela/Kuftanwela. According to Muhammad PW 8 in his cross examination, Police Station Sillanwali is at a distance of about four miles from the place of occurrence, connected by a metalled road. In .spite of the short distance, no attempt was made to immediately Report the occurrence at the police station. Muhammad PW 8 explained in his examination-in-chief that after the departure of the appellants he left the dead body with Mat. Fatima and Saee PWs and himself proceeded to village Abadi to inform Raja Ashfaq Ahmad PW about the occurrence as the deceased was his tenant and he was to accompany him to the police station to lodge the report. He did not find Raja Ashfaq Ahmad in the village and sent for him from Sargodha where he had gone. . He came to the spot on the next day at about noon. They proceeded to the police station but on the way they came across the A . S . I at the bus-stop of Chak No.137-SB where his statement was recorded. In his cross-examination he said that when after the occurrence he went to the village Abadi to inform Raja Ashfaq Ahmad and did not find him there, he did not contact the other residents of the village including the Lambardar and the Chowkidar. According to him, he returned to the place of occurrence from the village Abadi before midnight and sat' there till about.. noon on the next day till the arrival of Raja Ashfaq Ahmad PW. ' Mst. Fatima PW 9, however, .said in her examination-in-chief that after the occurrence, she and Saee remained with the dead body while Muhammad PW went to inform Raja_ Ashfaq Ahmad PW and came back with him at about a Sehr after sunrise. Therefore, the explanation for the delay besides being discrepant is too flimsy and unreasonable to merit any reliance.
20. The above circumstances clearly indicate that the two eye witnesses were not present at the spot at the time of occurrence and they came to know of it on the morning of 27th of January, 1987. The post-mortem examination on the dead body was performed on 18th of January, 1983 still one day later. This further accentuates he inference that it was an unwitnessed occurrence and the delay occurred because considerable time was consumed in speculations and building up a case. Such circumstances are sufficient to reject the whole case, as held in Muhammad Ali v. The State 1.971 P Cr. L ,1 1181.
21. For the foregoing reasons, we are of the view that the ocular, account also is not susceptible of credence and it would be unsafe to invoke conviction of the appellants on the basis thereof.
22. In the result we accept this appeal, set aside the conviction and sentence of the appellants and giving them the benefit of doubt in acquit them. They shall be released forthwith if not required in any other case.
23. The death sentence awarded to Mumtaz appellant is not confirmed.
24. The revision petition filed by Muhammad complainant also stands dismissed.
M.Y.H./M-406/L Appeal accepted.
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