MUHAMMAD IQBAL Versus THE STATE

Muhammad Iqbal son of Ashiq through Criminal Appeal No.920 of 2001, Mumta7 Hussain son of Maqbool and Muhammad Bilal son of Hamza appellants through Criminal Appeal No.912 of 2001 have directed their appeals against the judgment dated 10‑11‑2001 rendered by Mr. Muhammad Khalil Chaudhry, Judge Anti Terrorism Court No.II, Multan in case F.I.R. No.332 of 2000 registered at Police Station Makhdoom Rasheed on 24‑8‑2000 for offences under sections 302/392, P.P.C. whereby the appellants were convicted under sections 302(b)/34, P.P.C. and sentenced to life imprisonment each. Compensation amounting to Rs.50,000 was also imposed on each of the appellants and in default of payment they were to further undergo six months S.I. each. The amount of compensation if recovered was to be paid to the legal heirs of the deceased. The appellants were also convicted under section 392, P.P.C. and were sentenced to undergo ten years' R.I. each with a sentence of fine amounting to Rs.20,000 each and in case of non‑payment of fine to further undergo 2‑1/2 years R.I. each. The benefit of section 382‑B, Cr.P.C. was extended to the appellants.

2. As both the appeals arise out of the same occurrence they are being decided by this single judgment.

3. P.W.1, Wahga brother of deceased Irshad Ali lodged complaint Exh. PA before Fazal Karim (PW‑12), Inspector/S.H.O., Police Station Makhdoom Rasheed at 8‑00 a.m. on 24‑9‑2000 who was present near Chauki Adda Larian, Multan. Formal F.I.R. No.332 of 2000 Exh. PA/1 was recorded at 8.50 a.m. on the same date i.e. 24‑9‑2000 by Naik Muhammad, HC, Moharrir, P.W.9.

4. According to the F.I.R. Wahga, PW1/complainant and his brother had agricultural land in Mauza Jhoke Lashkar. Irshad Ali deceased younger brother of the complainant lived at Multan in House No.34, Street No. 10, Z‑Block, New Multan alongwith his children who were studying. One day earlier at evening time the complainant alongwith Hakim Ali his nephew and Ahmad Ali his maternal nephew went to the house of Irshad Ali due to some personal errend and spent night there. In the morning Irshad Ali in routine left for Jhoke Lashkar on his Motorcycle No.2725‑MNW in order to fetch milk. The, complainant alongwith Hakim Ali and Ahmad Ali also left along with Irshad Ali on a different motorcycle. Irshad Ali was going ahead at a distance of about 1‑1/2 furlong from the complainant. At about 6‑00 a.m. near Bhainee School Wali within the vicinity of Mauza Bhainee all these persons were on a metalled road when a white coloured car registered No.5934‑LOV overtook the motorcycle driven by the complainant and P.Ws. Muhammad Iqbal, Muhammad Bilal and Mumtaz Hussain appellants were inside the car. It was further stated that these three persons used to live with Irshad Ali Gujjar, traffic constable in New Multan and that is why the P.Ws. knew them. It was added that the accused parked the car on the road and stopped the motorcycle of Irshad Ali brother of the complainant. It was further stated in the F.I.R that the accused tried to snatch motorcycle from Irshad Ali who resisted and on his resistance Bilal and Mumtaz accus5,rl fired at him with their respective pistols. The fires hit Irshad Ali on his right arm and chest and he fell on the ground. Thereafter Muhammad Iqbal took away the purse from the pocket of Irshad Ali. The purse contained I. D. Card and some amount. The complainant and his companions tried to apprehend the accused but allegedly Muhammad Iqbal who was armed with a .12 bore gun fired towards the complainant party while Mumtaz accused drove away the motorcycle belonging to Irshad Ali and the other two accused namely Iqbal and Bilal (now appellants) board the car and escaped. The complainant and his companions proceeded towards Nishtar Hospital, Multan alongwith Irshad Ali who had received injuries. When the complainant reached near Safti Chowk, Irshad Ali lost his life. The complainant left Hakim Ali and Ahmad Ali, P.Ws. near the dead body and left for police station when he met P.W.12 on his way and report the matter.

5. After registration of case PW 12 reached the place of occurrence and took into possession blood‑stained earth vide memo. Exh.PB. He also took into possession four empty cartridges P1‑1 to 4, five empties of .30 bore P2‑1 to 5 and took the same into possession vide memo. Exh.PC. A leather holster of .30 bore pistol P.3 alongwith four live rounds and two missed rounds P.4‑1 to 6 were also taken into possession vide memo. Exh.PD. All these memos. were signed by Hakim Ali, P.W.2 and Ahmad Ali who was not produced during trial. All the accused were arrested by PW11, Ghulam Mustafa, Inspector, Police Station New Multan on 24‑9‑2000 but their formal arrest was shown on 25‑9‑2000 by Fazal Karim, Inspector/S.H.O. (P.W.12). On 24‑9‑2000 Ghulam Mustafa, Inspector, P.W.11 recovered pistol P.10 alongwith five bullets P.11‑1 to 5 from the fold of his shalwar worn by Mumtaz Hussain appellant and took the same into possession vide memo Exh. PI which was attested by Muhammad Idrees, A. S.‑I., P.W.10 and one Muhammad Anwar, Constable who was not produced during trial. Motorcycle No.2725‑MNW P.12 was also allegedly recovered from Mumtaz Hussain accused vide memo. Exh.PJ in the presence of the witnesses mentioned above.

6. While Mumtaz Hussain appellant was under arrest in some other case P.W.12, Fazal Karim, Inspector took his physical remand and during physical remand on 9‑10‑2000 Mumtaz appellant led to the recovery of a leather belt broken into two pieces P.8‑1 to 2 and four bullets of .30 bore pistol P.9‑1 to 4 which were lying in a 'Jawar' field. These articles were taken into possession vide memo. Exh.PH which was attested by Sultan Mahmood, Constable, PW8. The other witness who was also a constable was not produced during trial.

7. On 24‑9‑2000 a Car No.5934‑LOV P.16 which was allegedly being driven by Muhammad Iqbal was also taken into possession vide memo. Exh.PL. On the same date a .12 bore double barrel, P17 alongwith 22 cartridges P 18‑122 and a belt P.19 was recovered from inside the car vide memo Exh.PM. On the same date purse P.13, Rs.120 P.15 and I.D. Card of the deceased P14 were recovered from the pocket of the shirt of Muhammad Iqbal and taken into possession vide memo. Exh.PK. On the same date i.e. 24‑9‑2000 pistol .30 bore P.20 and six bullets P‑21‑1 to 6 were allegedly recovered during the search of Muhammad Bilal appellant and the articles were taken into possession vide memo. Exh. PN. All the afore‑referred recoveries were affected by Ghulam Mustafa, Inspector, Police Station New Multan, PW 11 and the memos. were attested by Muhammad Idrees, A.S.‑I., Police Station New Multan, P.W.10. Muhammad Anwar, Constable who was also cited as a witness in the afore‑referred memo. was not produced.

8. After the completion of investigation the appellants were sent up to the Special Court to face trial. During trial the prosecution produced 12 witnesses to support its case. P.W.1 and P.W.2 Wahga and Hakim Ali appeared as eye‑witnesses. Dr. Wasim Sarwar appeared as P.W.6 and stated about the post‑mortem examination. Muhammad Idrees, A.S.‑I., P.W.10, Ghulam Mustafa Inspector, P.W.11, and Sultan Mahmood, constable PW8 stated about the arrest and recoveries from the appellants. Fazal Karim, P.W.12 stated about the recording of complaint and the investigation of the case. The rest of the witnesses were formal in nature. Report of Forensic Science Laboratory Exh.C1 was also brought on record.

9. After the closure of prosecution case statements of the appellants were recorded under section 342, Cr.P.C. who denied the Commission of occurrence and stated that they were falsely involved. None of the appellants appeared as witness in accordance with section 340(2), Cr.P.C. However, Iftikhar Ahmad, A.S.‑I., Police Station Makhdoon, Rasheed was produced as D.W. 1 who stated that there was no entry in the despatch register in the month of September, 2000 about the despatch of any Zimni relating to this case to the Superintendent of Police office. The documents Exhs. DW‑A, DW1/B and DW1/C were also brought on the record.

10. The learned counsel for the appellants have based their arguments on the following points. That P.Ws.1 and 2 were related to the deceased: they were residents of a place which was situated at quite a different place; no reason was advanced to go to the house of the deceased; no independent witness was produced; F.I.R. was lodged after considerable delay and preliminary investigation; the P.Ws. contradicted each other on material points; medical evidence did not support the prosecution version; that recoveries were neither trustworthy nor proved and were planted; and in nutshell the prosecution has failed to prove its case against the appellants. Conversely, the learned counsel appearing on behalf of the State have argued that the P.Ws. had no enmity with the appellants. It was a daylight occurrence and not a case of mistaken identity. Mere relationship of the P. Ws. with the complainant could not be made basis for acquittal. They have lastly argued that the recoveries and medical evidence fully corroborate the prosecution version.

11. I have heard the learned counsel for the parties at length and have gone through the whole evidence as well as the impugned judgment. It has been noticed that P.A. Wahga, real brother of the deceased acid P.W.2 Hakim Ali real nephew of the deceased and P.W.1 appeared as eye-witnesses. The 3rd eye‑witness cited in the F.I.R. Ahmad Ali, maternal nephew of the deceased was not produced. The occurrence took place on a wide road in Mauza Bhani wala near Bhani School within the area jurisdiction of Police Station Makhdoom Rasheed. The first question to be determined is whether the P.Ws. were present at the time of occurrence. Admittedly, the P.Ws. resided in Mauza Jhoke Lashkarpur while the deceased resided at Multan. The distance between the house of the deceased and the house of the P.Ws., as admitted by P.W.I, was 13/14 k.m. Both the witnesses admitted that they reached the house of deceased after one hour from the time they left their houses. No plausible reason has been brought forward to justify why the P. Ws. left their house one day prior to the occurrence and spent the night in the house of the deceased. P. W. 1 stated that he had gone to the house of the deceased as he wanted to marry daughter of the deceased with his son, while P.W. gave a vague answer when asked the same question. It has also been admitted by the P. Ws. that the deceased used to go to Mauza Jhoke Lashekarpur daily for taking milk, a place where P.Ws. resided. In these circumstances there was no justification for the P.Ws. to go to the house of the deceased when they used to meet daily at Mauza Jhoke Lashkarpur. On the fateful day, according to P.Ws. Irshad deceased left his house on a motorcycle for Mauza Jhoke Lashkarpur early in the morning. P.W.1 in examination‑in‑chief stated that he alongwith the other P.Ws. left the house on a separate motorcycle alongwith the deceased. The P.Ws. were 3 in number and it does not appeal to reason that three P.Ws. would sit on one motorcycle while the deceased real brother and uncle of the P.Ws. would go alone on one motorcycle. However, during cross‑examination P.W.1 stated that he and other P.Ws. left the house 5/7 minutes after the departure of deceased. It is also stated that the P.Ws. and deceased did not take breakfast together and the deceased had asked the P.Ws: to stay behind but they refused. P.W.2 also stated that breakfast was not taken. Both the P.Ws. have stated that the deceased was ahead of them by a distance of more than one furlong. It was a wide road and the deceased and P.Ws. were closely related. There is no plausible reason as to why the P.Ws. keep a distance of more than a furlong between the deceased and themselves. According to the P.Ws. the appellants who were in a car overtook them and then parts the car and then stopped motorcycle and then tried to snatch the same. No other motive has been brought on record. If the appellants were after the motorcycle of the deceased then it was easier for them to snatch the same from the P.W. to whom they have overtaken. It is nowhere in evidence that motorcycle of the deceased had some special features. In these circumstances normally the accused who wanted to snatch a motorcycle would snatch the first available specially when they knew that they have overtaken a motorcycle and had stopped the motorcycle which was being followed. The accused would not like to attract the witnesses at the scene of occurrence to get themselves caught. It is true that mere relationship cannot be made basis for disbelieving the eye‑witnesses but in the instant case the P.Ws. are not only related but are also chance witnesses. Firstly, they spent the night at the house of the deceased one day prior to the occurrence by chance and then on the fateful day followed the deceased brother on a different motorcycle by chance and the 3rd chance is that they kept a distance of more than a furlong between the deceased and themselves and the 4th chance is that the accused did not snatch the motorcycle from the P.Ws. and opted to snatch the motorcycle which was going ahead. In these circumstances very strong independent corroboration is needed to believe the version B of the eye‑witnesses. It is also noteworthy that the P.Ws. were not accompanied by their women‑folk to the house of the deceased. In normal circumstances women‑folk would accompany their husbands if some marriage relationship was to be discussed between the children of the parents.

12. According to the evidence the deceased lost his life when he was on his way to Nishtar Hospital being taken in a Dalla (truck) and the complainant left the dead body there and left for the Police Station Makhdoom Rasheed to report the matter to the police but instead of going to the police station he met the S.H.O. at the Bus Stop by chance. It is also admitted by P.W.1 that the S.H.O. had already received a wireless message about this case when he met him. According to this P.W. they went to the place where the dead body was lying and at that time no other police official accompanied the S.H.O. and from there they left for the scene of occurrence and even at that time none from the police accompanied them except S.H.O. accompanying them. P. W .12, S. H.O. Fazal Karim who recorded the statement of P.W.1 stated that he received wireless message about snatching of a motorcycle and then he reached the place of occurrence alongwith other employees of the police station at that place some persons told this incident to the S.H.O., their statements were not recorded, they also informed him that the injured had been transported to the hospital. It is no where in the evidence that the standers by informed the S.H.O. about the P.Ws. According to P.W.12 he met Wahga, P.W.1 the complainant by chance at General Bus Stand, Multan and recorded his statement. He also stated that he sent his subordinates police officers for formal registration of F. I. R. from the General Bus Stand. P.W.9, Naik Muhammad, Head Constable who recorded the formal F.I.R. gave a totally different story and stated that he received the information through the complainant regarding this occurrence earlier than he received the complaint Exh.PA and it was on the basis of that information that a wireless message was communicated in the District. He also admitted that when he received the information the S.H.O. was not present at the police station and that the complainant did not tell the names of any accused when he gave telephonic information about the occurrence to this P.W: It was also admitted by him that the formal F.I.R. was recorded in the evening when the S.H.O. met him. According to D.W.1, Iftikhar Ahmad, A.S.‑I., who had brought the relevant record no zimni relating to this case were despatched to the S.P. Office in the month of September, 2000 and there was no entry vis‑a‑vis the same. In these circumstances. it can be logically concluded that the F.I.. was registered much after the occurrence and after deliberations and preliminary investigation. It is also of prime importance that allegedly the appellants were arrested on the same date i.e. 24‑9‑2000 by Ghulam Mustafa, Inspector, P.W.11 and yet they were not taken into custody by P.W.12/Investigating Officer of this ease in the instant case. If the accused were known and named in the F.I.R. then normally the accused would be apprehended and taken into custody on murder and dacoity charge immediately. All these circumstances cast a great shadow on the veracity of the F. I. R.

13. P.W.6, Dr. Waseem Sarwar conducted autopsy on the body of the deceased. According to his post‑mortem report Exh.PF the injury on the chest was not the result of a direct fire and in fact it was a wound of re‑entry of injury No.2 which after hitting on the right arms of the deceased pierced the skin and re‑entered into the chest of the deceased causing his death. It was further stated by the doctor that the injuries could have been caused at about 4‑30 a.m. A perusal of report Exh. PF shows that the stomach contained semi‑digested food.

14. The upshot of the discussion is that the medical evidence supports the version of the prosecution to the extent that the deceased lost his life due to fire‑arm injuries but it belies the version of the P.Ws. that the deceased was directly fired at chest. Similarly, the presence of semi‑digest food in the stomach when considered in the light of the statement of the P. Ws. that no breakfast was taken leads to a conclusion that the occurrence perhaps had taken place much earlier than at the time stated by the P.Ws.

15. The appellants were arrested in the case by P. W .11, Ghulam Mustafa, Inspector/S.H.O., Police Station New Multan and according to him he had reached Madni Chowk, a place where allegedly the recoveries were effected at 8‑00 a.m. and remained there for three hours. All the material recoveries were also allegedly affected by P.W.11. Strangely enough, the S.H.O. Police Station Makhdoom Rasheed who was investigating the instant case and who had supposedly recorded the F.I.R. at 8‑00 a.m. and also received a message on wireless never approached P. W.11 for the arrest of the appellants in the instant case. P.W.11 has admitted that he had also wireless apparatus with him. In normal circumstances he should have already heard the wireless message about the dacoity and the dacoits but he has not mentioned in any zimni dated 24‑9‑2000. It is admitted that all the appellants were sent to judicial lock‑up on 25‑9‑2001 and were never given in the custody of P.W.12, the Investigating Officer of the instant case. P.W.11 had arrested the, appellants only in case registered under section 13 of the Arms Ordinance and he had also mentioned the recoveries vis‑a‑vis the Arms Ordinance in the F.I.Rs. registered against the appellants. According to P.W.12 although he came to know about the arrest of the accused yet he did not visit police station New Multan till 25‑9‑2000. He could offer no explanation for such a conduct. P.W.12 has admitted that when he visited the Police Station New Multan on 25‑9‑2000 they were in custody and on the same date the appellants were sent to judicial lock‑up and he did not obtain remand of the appellants in the instant case as he felt no necessity for the same. Not only this, P.W.12 also admitted that he prepared the sealed parcel on 27‑9‑2000 three days after the recoveries and that too in the absence of the appellants. He further admitted that he received motorcycle P.12 and car P.16 from the Moharir of the Police Station, New Multan on 30‑9‑2000 6 days of the alleged recovery and no explanation has been offered for such a long delay. P.W.11 also admitted that he did not hand over the accused to P.W.12 who was posted as S.H.O., Police Station Makhdoom Rasheed where the case was registered. All these facts lead to only one conclusion that the name of the culprits who had committed the dacoity were not known at least till 25‑9‑2000. P.W.10. Muhammad Idrees, A.S.‑I. and P.W.11. Ghulam Mustafa who allegedly recovered material articles from the appellants admitted that the place of recovery was a densely populated area yet none from the locality and public was associated with the recovery proceedings in utter violation of section 103, C. P. C. P.W.11 blatantly admitted that he did not ask anybody from the public to become a witness to the F recovery. It was laid down in the case of Muhammad Azam v. The State (PLD 1996 SC 67) by the honourable Supreme Court that the provisions of section 103, Cr.P.C. were mandatory in nature. There is nothing on record to show that the car allegedly recovered from the appellant Iqbal belonged to whom and whether it was stolen or not. According to the report of Forensic Science Laboratory Exh.C1 the empties recovered from the scene of occurrence did not tally with the pistols recovered from the appellants Mumtaz and Bilal .12 bore empties recovered from the spot did tally with the gun allegedly recovered from Iqbal appellant but there is no allegation that he fired at the deceased. There is another aspect of the case that although the recoveries were effected on 24‑9‑2000 yet the pistols and the gun .12 bore were handed over to Muhammad Jamil Constable, P.W.I on 2‑10‑2000 for onward transmission to the Forensic Science Laboratory who deposited the afore‑referred articles in the laboratory on 6‑10‑2000. No explanation has been offered why the recovered weapons were kept at police station till 2‑10‑2000 when the same had been recovered allegedly on 24‑9‑2000 and received by the concerned S.H.O. on 25‑9‑2000. The cumulative effect of all the afore‑referred circumstances that the evidence relating to recoveries is not believable and the same cannot be used to corroborate the prosecution case.

16. Admittedly, the appellants were not on visiting terms with the P.Ws. An attempt has been made to show that the appellants were previously known to the P.W. by introducing evidence that the appellants used to live with one Irshad Constable at New Multan but the P.Ws. admitted that they never visited the house of afore‑referred Irshad Constable. Even otherwise, according to the prosecution case the accused who were boarding a car overtook and passed the P.Ws. who were on a motorcycle. It is most unlikely that during this brief period that inmates of the car could be identified by the P.Ws. who were riding a motorcycle. It was also admitted by P.W.1 that the appellants never visited the house of deceased which was situated in New Multan and that New Multan was thickly‑populated area containing of more than one lac inhabitants. P.W.2 stated that, his house was at a distance of 12/14 miles from the house of Irshad Constable where allegedly the appellants used to go. He also stated that he was not on visiting terms with Irshad Constable. According to P.W.1 the occurrence lasted only 40 seconds or more minute and according to P.W.1 he was about one furlong behind the deceased. According to the F.I.R. the distance between the deceased and the P.W.1 was about 1‑1/2 furlong. However, during trial, P.W.1 reduced the distance to one furlong and P.W.2 stated that he saw the occurrence from the distance of 27 'karams' (that is about 150 ft.). In these circumstances the presence of the P.Ws. at the time of occurrence and their identification of the accused is not free from doubts.

17. The nutshell of the whole discussion is that the prosecution has failed to prove its case beyond doubt. I therefore, allow these appeals, set aside the conviction and sentences passed by the learned trial Court and acquit the appellants of all the charges. They would be released from jail forthwith if not required in any other case.

Appeals accepted.

N.H.Q./M‑1249/L