MUHAMMAD RIAZ Versus THE STATE

This judgment will dispose of Criminal Appeal No. 188 of 1998 filed by Muhammad Riaz, appellant, who was convicted and sentenced by learned Additional Sessions Judge, Hasilpur for the murder of Muhammad Aslam under section 302(b), P.P.C. to undergo life imprisonment with compensation of Rs.25,000 as required under section 544‑A, Cr.P.C. and in default six months' R.I. with the benefit of section 382‑B, Cr.P.C.

2. Occurrence in this case had taken place at Maghrabwela on 13‑5‑1996 within the revenue estate of Basti Bagh Wali Mauza Badar Din, 5 kilometres away from Police Station, Qaimpur, District Bahawalpur while the matter was reported by Surbland (P.W.4) through Exh. P. D. at 12‑05 a.m. on 14‑5‑1996 and the F.I.R. (Exh. P.D) was recorded by Muhammad Safdar, S.I./S.H.O. (P.W.7) on the same day.

3. Briefly stated facts of the prosecution case were that at evening time on 13‑5‑1996 complainant alongwith Muhammad Aslam, his brother and Rafaqat Ali was going to his land and when reached near Basti Maharan, Hafiz Riaz Ahmad, armed with carbine, Muhammad Hussain and Sher Ali armed with Lathis, came in front of them and caught hold Muhammad Aslam. All the accused dragged Muhammad Aslam to their house. Complainant and Rafaqat Ali raised hue and cry and tried to rescue Muhammad Aslam but they were threatened with dire consequences. Thereafter, accused took Muhammad Aslam into the courtyard of their house while Hafiz Riaz Ahmad fired a shot with his carbine hitting on the chest of Muhammad Aslam. On the hue and cry, Muhammad Asghar and Muhammad Akhtar alongwith some other persons reached there and on seeing them, the accused ran away. Muhammad Aslam became senseless, he was taken to hospital, where he succumbed to the injuries.

Motive behind the occurrence was that few days prior to the occurrence, the complainant and Hafiz Riaz Ahmad had quarrelled over a dispute of water and due to this grudge, all the accused in furtherance of their common intention had committed the murder of Muhammad Aslam.

Three co‑accused of the appellants were acquitted by the learned trial Court.

4. It may be noted here, that when the trial was in progress, Muhammad Hussain one of the accused on 12‑9‑1997 filed a complaint under sections 302/452, 148 and 149, P.P.C. against Sarbuland, Muhammad Asghar, Muhammad Ashraf, Muhammad Irshad son of Rahim Bakhsh, Muhammad Irshad son of Allah Bakhsh, Muhammad Yousuf, Kala, Muhammad Aslam, Muhammad Akhtar, Raffaqat Hussain, Muhammad Irfan, Muhammad Sultan and Muhammad Shafique. After recording the preliminary evidence of the witnesses, respondents in this complaint case were summoned to face the trial under the aforesaid sections. Both the complaint case and the Sessions case were consolidated and disposed of through the single judgment. Accused/respondents in the complainant case were acquitted by giving them the benefit of doubt.

5. After registration of the formal F.I.R., Muhammad Safdar, S.H.O., P.W.7, firstly went to hospital then proceeded to the place of occurrence and took the blood stained earth into possession vide memo. Exh. P.E. On 9‑7‑1996, he arrested accused Muhammad Hussain, Falak Sher, Muhammad Riaz and Ali Sher. Muhammad Riaz while in police custody on 15‑7‑1996 led to the recovery of pistol P.1 which was taken into possession vide memo. Exh. P.F. On 20‑7‑1996, Muhammad Hussain led to the recovery of Soti P.2 which was taken into possession vide memo. Exh. P. G. I. O. submitted incomplete challan to the Illaqa Magistrate, who forwarded the same to learned trial Court.

6. Prosecution in order to prove its case produced seven witnesses in all, out of whom, Surbland P.W.4 and Raffaqat Ali P.W.5 were eye‑witnesses and the doctor, who conducted post‑mortem examination on the dead body of Muhammad Aslam was examined as P. W.1. Thereafter, the statements of the appellants were recorded under section 342, Cr.P.C.

7. After reading the prosecution evidence and statement of the appellant recorded under section 342, Cr. P. C., learned counsel for the appellant submits that on the basis of same evidence three co‑accused of the appellant, who are real brothers of the appellant have been acquitted; occurrence had taken place in the house of appellant; the story put forward by the appellant before the trial Court and also in his statement under section 342, Cr.P.C. is more plausible and convincing one; no empty was recovered form the spot; there is no report of the fire arm expert; the two eye‑witnesses produced by the prosecution namely Surbland and Raffaqat are real brothers and first cousin of the deceased; no independent witness has been produced; there are no dragging marks on the body of the deceased; in the F.I.R., the motive which was furnished by real brother of the deceased, that some days prior to the occurrence, there was an altercation between the deceased and the appellant while Raffaqat Ali P. W. stated before the trial Court that he had a dispute with the appellant over the turn of water; then according to learned counsel why Raffaqat was spared and the deceased was done to death, and that during the course of investigation appellant was found innocent by the police.

8. On the other hand, learned A. A. G. submits that the appellant is the main accused in this case; the fatal injury was attributed to him, ocular account is corroborated by the medical evidence and there is no question of false implication.

9. I have heard the learned counsel for the parties at a great length and have also gone through the prosecution evidence and the statement of the appellant recorded under section 342, Cr.P.C. In the instant case, occurrence took place on 13‑5‑1996 at' Maghrabwela, while the matter was reported to the police at 12‑05 mid‑night with a delay; of about 6/7 hours, although the police station was at a distance of five K.Ms. without any proper explanation. On the same set of evidence, three co‑accused of they appellant were acquitted by the learned trial " Court. According to the prosecution case, the deceased was taken into the house of the appellant by his co‑accused while dragging him but according to post‑mortem report there were no marks of dragging on the body of the deceased. Appellant in his statement recorded under section 342, Cr.P.C. has taken the plea which is reproduced, while III replying to question No.6: '

"Muhammad Hussain complainant in this case is an accused in connected State case which was registered on the report of Sarbuland. I rely upon the written statement mark‑A cat Sarbuland co‑accused."

10. After going through the statement of the appellant under section 342, Cr.P.C., if both the versions, i.e. of the prosecution and the appellant are put in juxtaposition then the story put forth by the appellant can be termed as truthful and confidence‑inspiring. Raffaqat Ali eye‑witness of the occurrence, had swore an affidavit Mark, although he denied execution of the same before the trial Court but the same had been proved through the evidence of D. W.1 and D. W.2. The cycle on which the deceased was going on was never taken into possession by the I.O. There are material discrepancies un the statement of both the eye‑witnesses on important points.

11. Taking into consideration the, overall facts and circumstances of the case, I am of the considered opinion, that prosecution has failed to prove its case against the appellant and he has been successful in creating dents in the prosecution story, the benefit of which is extended to the appellant by setting aside the conviction and sentence recorded by the learned trial Court, this appeal is accepted. Appellant is acquitted from the charge of murder of Muhammad Aslam. He is behind the bars. He shall be released forthwith if not required in any other, case.

H.B.T./M‑56/L

Appeal accepted.