AHMAD YAR Versus THE STATE
This judgment will dispose of Criminal Appeal No. 1959 of 2000 and Criminal Revision No. 129 of 2001 directed against the judgment dated 27-11-2000 passed by the learned Additional Sessions Judge, M.B.Din, whereby he convicted both the appellants under section 302(b), P. P. C. and were sentenced to life imprisonment with further direction to pay Rs.50,000 (Fifty thousand) each to the heirs of the deceased as compensation required under section 544-A, Cr.P.C. or in default six months' S.I. Benefit of section 382-B, Cr.P.C. was also granted to the appellants. All other co-accused mentioned in the F.I.R. were acquitted through the same judgment.
2. This occurrence took place on 5-11-1995 at 11-30 a.m. in the area of village Bhallar situated at a distance of 13 k.m towards south-east from Police Station. Matter was reported to the police the same day at 1 p. m.
3. The facts in brief as narrated by the complainant are that on the day of occurrence, the complainant was sprinkling water on his Dera when he was informed by Ahmad son of Afir that Ahmad Yar and others while armed with weapons were on their way to this house with a view to forcibly abduct Mst. Musarrat Bibi alias Farri, his daughter. The complainant rushed to his house and saw Ahmad Yar armed with rifle 303, Riaz Ahmad with rifle, Nawaz armed with rifle, Sikandar Hayat, Mirza son of Roshan armed with .12 bore guns were standing, Umar Hayat and Nazira both armed with Sotas, Khan son of Roshan armed with rifle were present outside the Haveli. They required forcibly Mst. Musarrat Bibi the daughter of the complainant to go with them. On refusal Muhammad Riaz fired straight with his rifle on Musarrat Bibi hitting on her right upper arm. The second fire was shot by Ahmad Yar on Musarrat Bibi hitting on right side of her back. She fell down. Muhammad Nawaz fired straight on Asif the son of the complainant who luckily escaped. Then all the accused resorted to a general firing. The rifle of Ahmad Yar was snatched by the complainant party. The motive behind this occurrence was that 4/5 years before the occurrence the deceased was married with Ahmad Yar while Mst. Nusrat Bibi sister of Ahmad Yar was married with Farooq son of the complainant which rukhsti had not taken place. The accused wanted the rukhsti while the complainant did not want her daughter to join her husband. Hence this occurrence.
4. After getting information about the occurrence the police completed all necessary formalities. Then Nazir Ahmad Inspector in the company of his subordinates proceeded to the spot, where he prepared the injury statement Exh.P.G. and also prepared the inquest report Exh. P. G/ 1. He collected the blood-stained earth from the place of occurrence and secured the same vide memo. Exh.P.E. He also collected two crimes empties P.12/1-2 from the place of occurrence vide memo. Ex-P.F. He also took into possession rifle 3.3 bore P.8 alongwith empty bag P.9 and Chaddar P.10 produced by the complainant, vide memo. Exh.P.D. On 4-12-1995 he arrested Ahmad Yar appellant. All the remaining accused were produced by one Liaqat Hayat before him. The challan after completion was submitted for trial.
5. The prosecution in order to prove its case has produced as many as 10 witnesses including eye-witnesses, Investigating Officers, Doctor and other relevant persons. After tendering in evidence, report of Chemical Examiner Exh.P.K, report of Serologist Exh.P.D/1 and that of Forensic Science Laboratory Exh.P.L, learned D.A closed the prosecution evidence. Thereafter statements of the accused were recorded under section 342 Cr.P.C. in which they pleaded not guilty and claimed to be tried.
6. Learned counsel for the appellants in support of this appeal submits that story narrated by the prosecution is totally unreasonable and improper. He submits that in fact the deceased was a woman of bad character and she was killed by her brother Farooq and not by her husband and in order to falsely involve the appellants this case was concocted and fabricated in collusion with the Investigating Officer. He submits that according to the post-mortem examination which was conducted by Dr. Shafique Ahmad, there was ligature mark around the neck of the deceased but there is nothing on the record from the prosecution side in this regard. Adds that the occurrence according to the prosecution had taken place on 5-11-1995 at. 11-30 a.m. Matter was reported to the police .at 1 p.m. but the post- mortem was conducted on the next day i.e. 6-11-1995. Further submits that duration given by the Doctor between the time of death and post-mortem is 8 to 36 hours which also does not coincide with the prosecution story i.e. the time of occurrence. He submits that possibility of the occurrence having been taken place in the dark hours of night on 5-11-1995 cannot be ruled out. He submits that delay in the post-mortem examination also suggested that in fact prosecution had yet to concoct a story so the delay occurred in conducting the same. He submits that no crime empty has been shown in Column No.23 of the inquest report. He also adds that in fact injuries No.2,3 and 4 were result of injury No.l. He submits that two vaginal swabs were taken by the Doctor at the time of post-mortem examination but till today the prosecution due to their bad intention and in order to conceal the facts from the trial Court did not accept the same and also did not bring on the record. Learned counsel submits that it was the. version of the prosecution that two accused had caught hold the deceased from her arms while Ahmad Yar and Muhammad Riaz appellants caused one shot each. The possibility of these shots having been received by the accused persons who had caught hold the iIcceased from her arms cannot be ruled out. He further submits that two crime empties recovered from the spot matched th the rifle of Ahmad Yar appellant while there is no evidence on the record that Ahmad Yar fired second shot. He submits that it is all concoction. Lastly he submits that it is a case which is full of doubts and the benefit of doubt must be granted to the appellants.
7. On the other hand learned counsel for the State assisted by the learned counsel for the complainant submits that Ahmad Yar appellant had specific motive to commit the murder of the deceased, that he was named in the F.I.R., specific role was attributed to him, that two crime empties recovered from the spot matched with the rifle which was snatched from Ahmad Yar by the complainant party at the time of occurrence, that ocular account is fully corroborated by the medical evidence, that there are two injuries which are specifically attributed to the appellants each and that the prosecution has proved its case against the appellants beyond any shadow of doubt. They both support the judgment of the learned trial Court. ,
8. I have heard the learned counsel. for the parties very carefully. For the just, decision of the case, it may be mentioned here that the prosecution story starts from the fact that 11 accused persons while armed with fire-arm came at the spot in order to. abduct Mst. Musarrat Bibi alias Farri who was married to Ahmad Yar appellant, though, rukhsti had not taken place. Some of the accused persons entered into the house i.e. they criminally trespassed into. the house of the complainant. Two of the co-accused caught hold Mst. Musarrat Bibi alias Farri from her arms thereafter, first of all Muhammad Riaz the real brother of Ahmad Yar fired a shot hitting on the left upper arm of the deceased which also created an exit wound. Thereafter, Ahmad Yar fired a shot which hit on the left right scapula of the deceased which also created an exit wound on the left side of nipple. First of all I may mention here that the intention of the appellant and their co-accused was to abduct Mst. Musarrat Bibi alias Farri and not to kill her. The main obstacle in their way were the brothers and parents of Musarrat Bibi. Eleven persons came while armed with weapons from such a long distance to abduct Mst. Musarrat Bibi. Nobody caused any injury to any inmates of the house, including, father, mother and brothers of the deceased. Muhammad Riaz had no motive to kill the deceased. The story of the prosecution further reveals that two of the acquitted accused caught hold the deceased from her arm and then first fire was shot by Muhammad Riaz which hit on the left arm of the deceased. The possibility of that fire being hit to the two co-accused who were holding the deceased from her arms, cannot be ruled out. This chance could not have been taken by the co-accused (acquitted) who had caught hold the deceased from her arms because they could have also received fire?arm injury. It was also stated that complainant himself and his wife snatched the rifle from. Ahmad Yar who is an army personnel. It is not believable and unimaginable that a woman could have snatched the rifle from him. If this was the training of Ahmad Yar appellant in the army then he could not have been an employee of army. This all seems to be unnatural. Story of the prosecution further negates by the fact that Ahmad Yar fired one shot and there should have been only one crime empty. Other fire was shot by Muhammad Riaz appellant. Two empties were recovered from the spot which according to the report of Fire-arm Expert, is been exhibited on the record, matched with the rifle of appellant Ahmad Yar which was snatched by the complainant party from him at the time of occurrence. This also falsifies the prosecution story and shows that complainant has falsely implicated the appellants in this case. No recovery was effected from Muhammad Riaz appellant. Moreover, according to the post-mortem examination, there was ligature mark on the neck of the deceased. There is no evidence whatsoever on the record, that any body from the accused persons had caught hold the deceased from her neck or some cloth was put around her neck. This shows that the occurrence had not taken place in the way, which the prosecution wants me to believe. The duration given by the Doctor between death and post-mortem is 8 to 38 hours. This also does not coincide with the time of occurrence. There is possibility that the occurrence had taken place on the night of 5-11-1995. There is delay in conducting the post-mortem examination as per report of Doctor, which was conducted on the next day of the occurrence i.e. on 6-11-1995. This also cast doubt on the prosecution case. No crime empty has been mentioned in Column No.23 of the inquest report. On the same evidence '9 accused have already been acquitted. According to the F.I.R. 11 persons were armed with fire-arm and they fired in discriminatory but only two crime empties were recovered. It may also be mentioned here that two vaginal swabs were taken from the vagina of the deceased but till today no report has been placed on the record by the prosecution. In order to reach at a just conclusion of the case I had asked the State counsel to make efforts to bring on record the report of Chemical Examiner. Now the report has been received according to this report, which has been placed on the record, the swabs taken from the vagina of the deceased were stained with semen. The version of Ahmad Yar appellant which he has given in his statement recorded under section 342 Cr.P.C. while replying question No.4 finds support from the report of the Chemical Examiner that the deceased who was though married with Ahmad Yar but not rukhsti had taken place. The reply to question No.4 is reproduced below:-
"It is correct that. Nikah of Musarrat Bibi deceased was contracted with me and Nikah of my sister was contracted with Farooq brother of Musarrat Bibi the deceased and rukhsties were still pending. Rest of the portion is incorrect. Actual facts were that Mst. Musarrat Bibi was not of good character and I did not want her rukhsti and I also refused to send my sister Mst. Nusrat Bibi to the house of Farooq Ahmad the brother of Mst. Musarrat Bibi. Farooq Ahmad wanted the Rukhsti of my sister Mst. Nusrat Bibi to his house. Farooq Ahmad due to this fact that his wife is not coming to his house on account of bad character of his sister Mst. Musarrat Bibi the deceased murdered his sister Mst. Musarrat Bibi. The complainant party after due deliberation in order to save Farooq Ahmad got this false case registered against me. "
Keeping in view the report of Chemical Examiner the above said version of Ahmad Yar appellant seems to be plausible and convincing one.
10. After having heard the learned counsel for the parties at a great length and going through the evidence recorded by the learned trial Court, I am of the opinion that this case is full of doubts and benefit of doubt is always granted to the appellants. In this view of the matter, appeal is accepted and the conviction and sentence awarded to the appellants by the learned trial Court is set aside. The appellants are behind the bars, they shall be released forthwith if they are not required in any other case.
N.H.Q./A-390/L ????????????????????????????????????????????????????????????????????????????????? Appeal accepted.