MUHAMMAD ASGHAR Versus THE STATE
The way in which this appeal arises is this. Muhammad Asghar son of Abdul Latif was tried by a learned Additional Sessions Judge at Sheikhupura for the murder of Mst. Nasreen Bibi, daughter of Sharaf Din- complainant. The learned trial Judge, by virtue of his judgment dated 26‑5‑2000, found him guilty of the said charge, convicted him under section 311 P.P.C. and punished him with rigorous imprisonment for fourteen years. He was also directed to pay a sum of Rs.1,40,000 as Diyat to parents of the deceased according to their respective shares and till the recovery of said amount he was ordered to remain in jail. Benefit of section 382‑B Cr.P.C. was, however, extended to him.
2. The convict has approached this Court by filing Criminal Appeal No.850 of 2000 to call in question conviction and sentence passed against him by the said learned Judge, whereas Sharaf Din- complainant has instituted Criminal Revision No.507 of 2000 seeking enhancement of sentence awarded to the convict to the maximum provided under the law. I propose to dispose of both these matters together through this single judgment.
3. Occurrence of the alleged incident had taken place on 31‑1‑1999 at about 3‑30 p.m. within the revenue estate of Chak No.87 Mirpur, falling within the territorial jurisdiction of Police Station Shahkot, District Sheikhupura. Distance between the two places is about five kilometers. The said occurrence was reported by Sharaf Din -complainant (P.W.10), father of Mst. Nasreen Bibi deceased, to Farmaish Ali, S.I. (P.W.11) at the police station on the same day at 4‑00 p.m. The said police official as per dictation of the complainant drew up F.I.R. (Exh.P.1.) correctly without any addition or subtraction on his part.
4. Sharaf Din‑complainant (P. W .10) puts the matter succinctly by stating in F.I.R. (Exh.P.I) that he is a peasant by profession. On the fateful day he had come to see his daughter; Mst. Nasreen Bibi wife of Zulfiqar in Chak No.87 Mirpur, Police Station Shah Kot. At about 3‑30 p.m., he alongwith Muhammad Akram son of Bashir Ahmad, and Zulfiqar Ali son of Muhammad Latif, residents of the village was available in the courtyard of the house. They were busy in talking with each other. In the meanwhile, Muhammad Asghar son of Abdul Latif appellant armed with rifle entered into the house and exhorted a lalkara that he will teach a lesson to Mst. Nasreen Bibi, who used to reproach him. Then he fired a shot through his rifle hitting Mst. Nasreen Bibi on right side of her chest, who fell prone and succumbed to her injuries spontaneously. Besides complainant, Muhammad Akram and Zulfiqar Ali also witnessed the occurrence. The appellant levanted from the spot while still firing aimlessly. That is how the complainant set the police machinery into motion by getting above‑said case registered against the appellant.
5. Since it was a heinous crime of murder, so Farmaish Ali, S.I.‑ (P.W.11) forthwith took up investigation in his hand and left for the spot without further loss of time, where he set at the uphill task of investigation. Summary of investigation proceedings performed by him is as under:‑
He upon reaching the spot, carried out spot inspection, during the course of which he collected blood‑stained soil and an empty of 44‑bore rifle, made the same into separate sealed parcels and prepared recovery memo. Exh.P.F, duly attested by Muhammad Afzal (P.W.9) and Muhammad Din P.W. (not produced). He prepared rough site plan (Exh.P.J) of the place of occurrence. He then inspected dead body of Mst. Nasreen Bibi, prepared her inquest report (Exh.P.D), injuries statement (Exh.P.E), and dispatched the dead body to the mortuary for autopsy purpose under the escort of Ali Zulqarnain, constable (P.W.6). He called upon Tahir Naeem, Draftsman (P.W.7) to inspect the spot in the presence of the eye‑witnesses and prepare the site plan as per their statements and pointation. Accordingly, he visited the spot and prepared site plans in duplicate (Exhs.P.A and P.A/1) as per pointation of the witnesses, duly signed by him. He examined all the relevant witnesses under the relevant provisions of section 161 Cr.P.C. This witness, on 8‑2‑1999 arrested the appellant and subjected him to interrogation, during course of which he expressed his willingness to get the weapon of offence recovered. He accordingly got recovered rifle a (P.4) from his residential house, which is made into a sealed parcel and taken into possession through memo. Exh.P.H., duly attested by Muhammad Afzal (P.W.9) and Muhammad Din P.W (not produced). After finalization of investigation, he prepared. challan and submitted the same to the Court for trial of the appellant in accordance with law.
6. The trial Court on receipt of challan immediately subjected the same to necessary scrutiny, found it fit in all respects and proceeded to initiate the trial. After fulfilling all the legal formalities, charge was framed and put to the appellant, who vehemently controverted the accusations brought against him and claimed to be tried as such. In this eventuality, last resort with the trial Court was to call upon the prosecution to adduce the best possible evidence available within its power and domain.
7. The direction of the trial Court was faithfully complied with. Prosecution ventured to produce as many as eleven witnesses in all to achieve success in the trial. Thereafter, the trial Court examined Zulfiqar Ali as C.W.1.
8. Most prominent of all these witnesses are Zulfiqar Ali (P.W.1), Muhammad Akram (P.W.2), Dr. Zahida Parveen (P.W.8), Muhammad Akram (P.W.9) and Sharaf Din‑complainant (P. W.10).
Zulfiqar Ali and Muhammad Akram (P.Ws. 1 and 2) were named in the F.I.R. as eye‑witnesses of the occurrence, but they denied their presence at the spot at the relevant time of occurrence. They were declared hostile by the prosecution.
P.W.8‑Dr. Zahida Parveen, W.M.O conducted autopsy on dead body of Mst. Nasreen Bibi deceased and observed two fire arm injuries, one entry and the other exit wound on her person. According to the Doctor. Mst Nasrren Bibi died because of shock, asphysia, haemorrhage and cardio respiratory arrest resulting from injury No.1, which was sufficient to cause death in the ordinary course of nature. She prepared post mortem examination report (Exh.P.B) and pictorial diagram (Exh.P.B/1).
Sharaf Din complainant and Muhammad Afzal (P.Ws.10 and 9), respectively, furnished ocular account of the occurrence. In addition to this, Muhammad Afzal (P.W.9) also testified to the factum of recovery of weapon of offence at the instance of the appellant.
Evidence of remaining witnesses is of formal nature, so their statements do not require to be brought under discussion.
9. Learned prosecutor gave up remaining witnesses being unnecessary and after tendering in evidence reports of the Chemical Examiner, Forensic Science Laboratory and Serologist (Exhs.P.K, P.L and P. M), respectively, declared the prosecution case close.
10. The appellant was then examined under section 342, Cr. P.C. to enable him to offer handsome explanation with regard to his involvement in the case. He proclaimed his absolute innocence in the matter and alleged his false involvement in the case. He opted not to make statement on oath as envisaged by the relevant provisions of section 340 (2) Cr.P.C., in disproof of the accusations levelled against him. He did not produce evidence in defence.
11. The learned trial Judge after hearing both the sides pronounced verdict of guilt against the appellant and punished him as aforementioned.
12. Learned counsel for the appellant in his attractive arguments to this Court has highlighted following points for my consideration:‑
(i) That ocular account is in serious conflict with the medical evidence which makes the prosecution version extremely doubtful. The ocular account in view of this glaring discrepancy ceases to be worthy of credence.
(ii) That two of the eye‑witnesses, namely, Zulfiqar Ali and Muhammad Akram (P.Ws.1 and 2) Have not supported the prosecution version, which also creates a serious dent in the prosecution case.
(iii) That prosecution adopted wavering motive, which led to the occurrence and the same has been discarded by the learned trial Judge.
(iv) That recovery of rifle (P.4) is a patent fabrication. Empty as well as rifle were dispatched; to the office of Forensic Science Laboratory on 9‑2- 1999, meaning thereby that empty was prepared after firing through the rifle in question. This recovery has lost its evidentiary value and cannot be considered as a corroborative piece of evidence.
(v) That the complainant belongs to a different village, which is about 20 miles from the place of occurrence, yet, the other witness, namely, Muhammad Afzal (P.W.9) is resident of some other district, not less than 150 miles from the place of occurrence.
(vi) That chance witnesses cannot be relied upon without strong corroboration. Name of Muhammad Afzal (P.W.9) also does not find mention in the first information report. It would not be safe to place explicit reliance on testimony of the aforementioned witnesses.
(vii) That the prosecution case is full of several doubts, benefit of which is to be extended to the appellant keeping in view the golden principle of benefit of doubt regarding appreciation of evidence.
13. On the contrary, learned counsel for the complainant assisted by learned State counsel submits that motive is proved; that prosecution (story is natural and is supported by the evidence of Sharaf Din‑complainant (P.W.10) and Muhammad. Afzal (P.W.9); that rifle (P.4) stood recovered at the instance of the appellant and empty did match with the same; that report of the Forensic Science Laboratory (Exh.P.L) is in the positive; that the appellant could not be convicted by dint of application of section 311 P.P.C. and that he deserves to be convicted under section 302 P.P.C. and be awarded death sentence.
14. I have courteously heard and soberly considered respective arguments of learned counsel for both the sides and have also, gone through the evidence with their able assistance. Facts of prosecution version contemplated in the first information report (Exh. P.1) tells us that the appellant fired by means of his rifle and the shot struck right side of chest of Mst. Nasreen Bibi deceased. A careful scrutiny of contents of post‑mortem examination report indicates that the injury available on right side of the chest of deceased is an exit wound. Entry wound is located at back of chest of the deceased. In this view of the matter, statement of complainant is fully contradicted by the medical evidence. This patent inconsistency between ocular account and the medical evidence renders testimony of the complainant incredible. Had Sharaf Din complainant (P.W.10) been available at the spot and seen the occurrence, then this glaring contradiction between ocular account and medical evidence could not have occurred at all. In addition to this, names of Muhammad Afzal (P.W.9) and Muhammad Din P. W (not produced) do not figure in the first information report. Presence of eye witnesses, namely, Muhammad Afzal (P.W.9) and Sharaf Din‑complainant (P.W.10) at the spot is unbelievable. In order to overcome this serious conflict between the two species of evidence, both .the witnesses did not mention locale of injury, in their statements before the Court, but learned defence counsel wisely enough confronted the complainant with the F.I.R. (Exh.P.I).
15. In column No. 3 of the inquest report Exh. P. D) date is mentioned, but time is not mentioned. In Column No.12 thereof, name and kind of weapon is also not mentioned. It is pertinent to note that it is no where mentioned in the inquest report (Exh. P. D) that s crime empty was lying available at the spot. Had empty been available at the spot, then the same should have incorporated by the Investigating Officer in the relevant column Nos.22 and 23.
It is the bounden duty of the Investigating Officer to record all the articles/things, which are found lying near the dead body. It is in evidence that one empty was secured by the police on the day of occurrence from the spot. It is also in evidence that many shots were made by the appellant while fleeing away from the spot. Where did those empties go and why those empties could not be secured by the police during spot inspection are the questions which were never answered by the prosecution during course of investigation or trial.
16. Study of the site plan (Exh.P.A) reveals that the shot was made from a distance of about 21 feet, but the doctor who performed autopsy noticed burning and blackening around the wound, which stands mentioned in the post‑mortem report. Burning and blackening occurs, when the shot is made by a rifle from a very close range not exceeding six to twelve inches. No burning or blackening could occur when the fire is made from a distance of 21 feet. There are two serious defects/inconsistencies of a high magnitude in between the ocular account and the medical evidence, which makes the presence of witnesses extremely doubtful. The complainant affected deliberate dishonest improvements in previous statement with which he was confronted by the learned defence counsel. He introduced presence or Muhammad Afzal (P.W.9) and Muhammad Din P.W (not produced) as eye-witnesses. Muhammad Afzal (P.W.9) is his maternal nephew, who is driver by profession living at a distance of 150 miles from the place of occurrence. Had Muhammad Afzal (P.W.9) and Muhammad Din P. W been present at the spot with the complainant, then the complainant could never omit to mention their names in the first information report. Both the witnesses did not sign the most important document, i.e. inquest report, as eye witnesses. Muhammad Afzal (P.W.9) did not accompany the complainant to the police station for lodging of F.I.R. Then the complainant and Muhammad Afzal (P.W.9) made serious improvements with regard to motive. Wavering motives are not to be believed so lightly. Under these circumstances testimony of both these witnesses is rejected. They are wholly unreliable witnesses.
17. An empty of rifle 44 bore was secured by the police from the spot, during the course of spot inspection, on 31‑1‑1999 and was kept in the Godown of the police station by Moharrir alongwith more parcels allegedly containing blood‑stained soil. Rifle was recovered on 8‑2‑1999. Parcel of rifle, empties and blood‑stained soil were dispatched together to the respective quarters on one and the same day. The only conclusion which can be drawn from this fact is that empty was prepared by firing a bullet through the rifle to create corroboration in the case. Recovery of rifle was witnessed by Muhammad Afzal (P.W.9) and Muhammad Din P.W. Muhammad Din was dropped by the prosecution. Muhammad Afzal is resident of another District and was residing at a distance of about 150 miles from the place of recovery. No independent, disinterested witness was associated in the recovery proceeding to demonstrate that these were not the sham proceeding. Evidence regarding recovery of rifle and empties is disbelieved. Muhammad Afzal P. W is the same, who appeared as an eye‑witness.
18. Zulfiqar Ali (P.W.1) and Muhammad Akram (P.W.2) have given a complete go bye to the prosecution story which strikes at the very root of the case. Had the first information report been recorded on 31‑1‑1999 at 4‑00 p.m. then this time should have been mentioned by the Investigating Officer in Column No.3 of the inquest report (Exh.P.D). This F.I.R. is a fabricated piece of document prepared much later after building up story in the present form. The story of F.I.R. is neither true nor legitimate. Name of. Muhammad Afzal (P.W.9) does not figure in the first information report whereas two other witnesses Zulfiqar Ali (P.W.1) and Muhammad Akram (P.W.2) also did not support the prosecution version. The very presence of P. W. 9 and P. W. 10 is not believe able account is not in consonance with Recovery of rifle and smacks of padding and is not worthy of credence.
19. After fullest evaluation of facts and circumstances of the case I am of the firm view that prosecution has miserably failed to bring home guilt to the accused. By accepting this appeal I quash conviction and sentence passed against the appellant. He is directed to be released from custody forthwith if not required to be detained in any other criminal case.
20 In view of the above observations, Criminal' Revision No.507 of 2000 stands dismissed.
H.B.T./M‑1152/L Appeal Accepted.