MUHAMMAD AFZAL Versus THE STATE

This judgment will dispose of Criminal Appeal No.268 of 19.98 filed by Muhammad Afzal, appellant and Criminal Appeal No.347 of 1998 filed by Tariq Mehmood, appellant against the judgment, dated 28‑3‑1998 passed by Judge Special Court (STA) Gujrat whereby both the appellants were convicted and sentenced as under: ‑‑‑

Muhammad Afzal

Death with a fine of Rs.1,00,000 and in default 2 years R.I. under section 302/ 34, P.P.C.

Tariq Mehmood

Life imprisonment with a fine of Rs.1,00,000 and in default 2 years R.I. under section 302 read with section 109. P.P.C.

The fine, if recovered, was ordered to be paid to legal heirs of the deceased.

2. It may be noted here that Ansar, co-accused of the appellants had absconded at the time of announcement of judgment by Trial Court, so there is no appeal on his behalf.

3. Occurrence in this case had taken place at 6‑30 p.m. on 13‑12‑1996 in Mohallah Jamia Masjid, Lalamusa while the matter was reported to the Police by Muhammad Ishfaq, P.W.5 through complaint Exh.P.C. at 9‑00 p.m. the same night and the formal F.I.R. Exh.P.C./1 was recorded by Tasawar Ali, A.S.I.

4. Facts of the case as disclosed in the complaint Exh.P.C. were that on 13‑12‑1996 at about 6‑30 p.m. Muhammad Ishfaq, complainant was working on his tea stall. Javed and Muhammad Ishaq were also sitting on his tea stall for taking tea. Muhammad Azam (deceased) brother of the complainant was standing in front of the main door of his house in the lane. The distance from the door and the shop was 25/26 feet. In the meanwhile, Ansar armed with rifle .222 and Afzal armed with .30 bore pistol came there on a motorcycle (GTC/6426) from the side of Committee Road. Ansar stopped the motorcycle and raised a lalkara and fired 5/6 shots. Before resorted to firing Ansar and raised lalkara that Muhammad Azam should be taught a lesson for registration of a case. Afzal was sitting on the rare seat of the motor‑cycle when both Ansar and Afzal had reached at the spot. Firstly, Ansar had fired 4/5 shots in the air and then Afzal fired with his pistol at Azam which hit him at his abdomen and he fell down on the ground. The occurrence was witnessed by complainant, Muhammad Ishaq and Javed. After the occurrence, the accused fled away from the spot leaving their motorcycle. Muhammad Azam was taken to village Aid Hospital and the Medical Officer referred the deceased to C.M.H. Kharian where he succumbed to the injury on 17‑12‑1996.

The motive behind the occurrence was that there was an altercation with 5/6 persons between them and Muhammad Azam deceased and as a consequence thereof, Azam had got registered a criminal case in which Ansar and Afzal were arrayed as accused persons, so due to this grudge, Muhammad Azam was done to death and that the occurrence took place as a result of conspiracy hatched by Ansar and Afzal with Tariq.

4. After registration of the formal F.I.R., Exh.P.C./1, Muhammad Javed S.‑I. (P.W.8) proceeded to the place of occurrence, took into possession blood‑stained earth vide memo. Exh.PB, also took into possession motorcycle P.4 vide memo. Exh.P.E., last worn clothes of the deceased were taken into possession vide memo. Exh.P.D., prepared the rough site plan Exh.P.H., on the death of Muhammad Azam on 17‑12‑1996, offence was amended from sections 324 to 302, P.P.C., prepared injury statement Exh.P.J., and inquest report Exh.P.J./1, arrested Muhammad Afzal, appellant on 11‑1‑1997 who on 13‑1‑1997 he led to the recovery of pistol P.5 which was taken into possession vide memo. Exh.P.F. and the Investigating Officer arrested Tariq Mehmood appellant on 15‑1‑1997. After completion of the investigation, accused were challaned to face the trial.

5. Prosecution in order to prove its case produced 11 witnesses in all. Then the learned District Attorney tendered in evidence report of the Chemical Examiner Exh.P.J. and report of the Serologist Exh.P.O. and closed the prosecution case. Thereafter, statements of accused were recorded in which they pleaded innocence and Muhammad Afzal took the plea of false implication. On conclusion of the trial, all the three accused were convicted and sentenced as stated above.

6. After having read the entire evidence brought on record, learned counsel for Muhammad Afzal, appellant submits that there is delay in lodging the F.I.R., two eye witnesses produced by the prosecution are either related to the deceased or the complainant and that the version put forward by the appellant Muhammad Afzal while replying to question why this case against him is more plausible and convincing one as compared to the version stated by the prosecution. Further submits that according to Dr. Farooq Ahmad Bungash, P.W.10 who conducted post‑mortem examination on the dead body of Muhammad Azam there was blackening around the wound. Learned counsel has also drawn our attention to the recovery memo. Exh.P.E. Also submits that there is no report of the Fire Arms Expert.

7. Learned counsel for the appellant Tariq Mehmood submits that there is no evidence of conspiracy and that according to Javed S.I., Investigating Officer, P.W.B, allegation of conspiracy was found to be false.

8. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that Afzal appellant is the person who had caused fatal blow to the deceased, occurrence took place in front of tea‑stall of the complainant, ocular account is corroborated by the medical evidence and that motive alleged by the prosecution has been proved. Both the learned counsel support the judgment of the Trial Court.

9. We have heard learned counsel for the parties at length and have gone through the prosecution evidence and statements of the appellants recorded under section 342, Cr.P.C. In the instant case, occurrence took place at 6‑30 p.m., Police Station Sadar Lalamusa was opposite to the place of occurrence while Police Station City Lalamusa within the jurisdiction of which the occurrence took place was at a distance of one furlong but the matter was reported to the police with a delay of 2‑1/2 hours after the occurrence and not even in the Police Station but at C.M.H., Kharian. None of the witnesses went to Police Station to inform the Police. It seems that the F.I.R., was recorded after due deliberation and consultation.

As far as motive is concerned that earlier an altercation took place between the deceased on the one hand and appellants on the other hand and a case was registered against the appellants, so in our view now it was turn of the complainant party to take revenge.

Dr. Farooq Ahmad Bangash, P. W.10 who conducted post‑mortem examination on the dead body of Muhammad Azam found the following injury:‑‑‑

"Fire‑arm entry wound 3 c.m. x 3 c.m. on the front of left side upper abdomen in epigastric area. Blackening was present around the margin. Corresponding hole was present on sweater and shirt. Injury was caused by fire‑arm weapon. Nature of injury was Jaifa. Duration was fresh. Patient was referred to C. M. H. Kharian Exh.P.A. is the correct carbon copy of M.L.R. conducted and signed by me."

This injury in the person of Muhammad Azam deceased would show that it was caused from a very close range. It had blackening around edges of the wound.

Both the eye‑witnesses produced by the prosecution are closely related to the deceased and the complainant inasmuch as Muhammad Ishfaq, P.W.5 was brother of deceased Muhammad Azam while Javed P.W.6 is brother‑in‑law of Mushtaq who is real brother of the complainant and Muhammad Ishaq, P.W. It has also come on record that Mushtaq (Retired Captain) was Secretary of Ahmad Mukhtar ex‑Minister and owner of Service Industries, Gujrat and he must have prevailed upon the local administration.

Above all, for just decision of the case, reply to question No.7 given by Afzal appellant in his statement under section 342, Cr.P.C., would be most relevant which is reproduced hereunder:‑‑‑

"The real facts have been distorted prosecution. The fact of the matter is that Haji Tariq my co‑accused is a Contractor of Municipal Committee Lalamusa, in connection with loading and unloading of Trolies; mini trollas and other vehicles and I am his employee. Muhammad Azam deceased owned a mini trolla and some time prior to this occurrence, he wanted to load and unload certain material from his mini trolla. I asked him to pay the duty in this behalf and he refused to do so. There was an altercation in this regard between me and Azam deceased as he flately refused to pay any amount in this behalf. We had a grappling and I slapped and kicked him. Azam deceased nourished a grudge against me and he threatened me that he would pay me back in the same coin. On the day of occurrence I was passing while driving my M/Cycle near the shop of the complainant. The house of the complainant also lies close to the shop of the complainant. While I was on my way, the complainant and the other two P. Ws. of this case, who are close relatives stopped my M/Cycle and pulled me down from the same They were armed with Danda and with the same inflicted blows on the M/Cycle and damaged its lights as oil Tankee and other parts as well as they deflated the air from its tyres and completely damaged the same. I raised alarm and in the meantime, Muhammad Azam deceased armed with a pistol came running from his house and started firing at me. Some shots fired by him proved abortive and hit the walls. He approached me arid wanted to Fire at me from close quarters in order to save my life I started grappling with him and in this process, the pistol went off hitting the deceased. The occurrence took place in the manner as narrated by me as the brother of the deceased Captain Mushtaq was an ‑ influential person as described by me above. He manoeuvered this false case against me after being in connivance with the local police. I am innocent. The other two accused were not present at the time of occurrence. I am a poor man. The police also did not record my defence plea correctly and shut out my defence during the course of investigation. As described by me above, I have moved application to the higher police authorities as well."

A bare perusal of the above answer would show that the version put forward by the appellant Afzal is more plausible and convincing one than the version of the prosecution. This finds support from the recovery of motorcycle belonging to the deceased which is at page 112 of the paper book and the same was taken into possession just after the occurrence by the police. Exh.P.E. is reproduced hereunder:‑‑‑

URDU TYPING

The condition of the motorcycle would prove that version of the appellant is more plausible and‑convincing one because according to the appellant when the deceased wanted to fire at him from close quarters he in order to save his life, he started grappling with the deceased and in this process, the pistol went off hitting the deceased. Story of the prosecution as given in the F.I.R., was that Ansar co‑accused of Afzal appellant came at the spot on a motorcycle. First of all, Ansar fired with his rifle .222 and then Afzal fired a shot with pistol which hit the abdomen of the deceased. No empty was recovered from the spot though it has come on record that 4/5 shots were fired by Ansar, co‑accused of the appellant. There is no report of the Fire Arms Expert so no corroboration can be sought from the alleged recovery of pistol on the pointation of appellant Afzal.

For what has been stated above, we are of the considered opinion that the version put by the appellant Afzal is more plausible and convincing one than the story of the prosecution. So, while giving the benefit of doubt, we accept the appeal of Afzal appellant, set aside his conviction and sentence recorded by the Trial Court against him and acquit him of the charge. Afzal appellant is in jail and he shall be released forthwith, if not required to be detained in any other case.

Now we take up the case of Tariq Mehmood, appellant who was accused of conspiracy. In our view, there is no evidence having come from any unimpeachable source which could connect Tariq with the allegation of conspiracy. No time, place and names of the witnesses of conspiracy was given in the F.I.R. Moreover, according to Investigating Officer, Javed, S.I. (P.W.8), the allegation of conspiracy was found to be false and the same finding was verified by the S.D.P.O. So Tariq Mehmood appellant is also given the', benefit of doubt. His appeal too is accepted, conviction and sentence recorded against him by the learned Trial Court is set aside, he is in jail and shall be released forthwith, if not required to be detained in any other case.

H.B.T./M‑272/L

Appeal accepted.