TAHIR Versus State
MUHAMMAD ANWAR BHAUR, J .---Tahir, Tariq Javaid and Faazal sons of Ghulam Ahmad were tried by the learned Additional Sessions Judge, Faisalabad for committing murder of Adnan-ul-Haq deceased son of Ikram-ul-Haq-complainant, in case F.I.R. No.233, dated 1-5-2003, registered with Police Station Thikriwala, District Faisalabad for an offence under section 302/34, P.P.C. The learned trial Judge by virtue of his judgment, dated 4-9-2004 found them guilty of the charge, convicted them under section 302(b)/34, P.P.C. and sentenced Tahir to death and Tariq Javaid and Faazal to imprisonment for life each with further direction to pay a sum of Rs.50,000 each to legal heirs of the deceased as compensation under section 544-A, Cr.P.C. or in default there-of to undergo rigorous imprisonment for six months each. Benefit of section 382-B, Cr.P.C. was, however, extended to Tariq Javaid and Faazal-convicts.
2. Tahir-convict by filing Criminal Appeal No.1555 of 2004, whereas Tariq Javaid and Faazal-convicts by filing Criminal Appeal No.1556 of 2004 have called in question the conviction and sentence awarded to them through the impugned judgment, whereas the learned Additional Sessions Judge has sent the Murder Reference No.916 of 2004 seeking confirmation or otherwise of the death sentence awarded to Tahir-convict/ appellant. Ikram-ul-Haq-complainant by filing Criminal Revision No.870 of 2004 has sought enhancement in the sentence of Tariq Javaid and Faazal-appellants to the maximum. During pendency of these matters, Tariq Javaid-appellant had passed away in DHQ Hospital, Faisalabad while in custody on 19-12-2007, which fact has been verified by Superintendent, Central Jail, Faisalabad through his report, which is available on the record, so Criminal Appeal No.1556 of 2004 has abated to his extent. Qua rest of the matters, we propose to dispose the same of together through this single judgment.
3. Occurrence in the instant case took place on 30-4-2003 at 10-30 p.m., within the revenue estate of Chak No.84/JB, situate at a distance of eight kilometers from Police Station Thikriwala, District Faisalabad. Ikram-ul-Haq complainant (P.W.4) reported the matter to Sultan Sikandar Khan, S.-I (P.W.7), at Chak No.76/JB, Faisalabad on 1-5-2003 at 2-00 a.m., who as per his dictation reduced into writing complaint (Exh.PD) and dispatched it to the police station for formal registration of F.I.R. On receipt thereof, Muhammad Arshad, MHC (P.W.3) drew up F.I.R. (Exh.PD/1) on the same night at 2-20 a.m. without any addition or alteration on his part.
4. Succinctly the prosecution story as unfurled in the complaint (Exh.PD), on the basis whereof F.I.R. (Exh.PD/1) was registered, was that Ikram-ul-Haq complainant (P.W.4) was resident of Chak No.84/JB Sirshumeer and was a pensioner from police department; on the fateful night, he along with Sarfraz son of Muhammad Siddique, Muhammad Saleem son of Muhammad Boota, residents of the same village and other inmates was present in his house at 10-00 p.m.; Tahir-appellant came there and asked his son Adnan-ul-Haq that he is being called by Tariq Javaid and Faazal-appellants at their house, whereupon Adnan-ul-Haq left the home with Tahir, but did not return home for half an hour; then the complainant along with Sarfraz and Muhammad Saleem went to the house of Tariq Javaid in order to inquire about Adnan-ul-Haq; when they reached near the house of Tariq Javed-appellant, they heard some commotion from inside the house and in the meanwhile they saw Adnan-ul-Haq coming out of Tariq Javaid's house towards outer door; within their sight, Tariq Javaid, Tahir and Faazal-appellants, who were carrying Chhurris, assaulted upon Adnan ul-Haq; Tariq Javaid inflicted a Chhurri blow on the back of Adnan-ul-Haq; second Chhurri blow was caused by Tahir appellant, which landed on the left flank of Adnan-ul-Haq; thereafter, Tariq Javaid gave a Chhurri blow on the left elbow of Adnan-ul-Haq, who on receipt of injuries started running towards nearby school in order to save his life; the appellants while extending threats of life to the complainant and his companions followed Adnan-ul-Haq; when Adnan-ul-Haq was running in the vicinity of school, Tahir again inflicted a blow with his Chhurri on his left thigh; then Faazal-appellant caused successive Chhurri blows on the backside of right shin, who on receipt of injuries fell down; although the complainant along with his companions has witnessed the occurrence, but did not step forward due to fear of life; the appellants while brandishing their Chhurris fled from the scene; after departure of the appellants, the complainant along with his companions went forward to attend Adnan-ul-Haq, but he had breathed his last.
Motive behind the scene was that Tariq Javaid, Tahir and Faazal-appellants had a suspicion that Adnan-ul-Haq had illicit liaison with Mst. Riffat alias Nanni, wife of Tariq Javaid and due to that grudge, the appellants have killed Adnan-ul-Haq by calling him at their house; leaving Muhammad Sarfraz and Muhammad Saleem to guard the dead body of Adnan-ul-Haq in the school area, the complainant left for the police station and came across Sultan Sikandar Khan, S.-I (P.W.7) at Chak No.76/JB at 2-00 a.m., where he got recorded his statement (Exh.PD), on the basis of which F.I.R. (Exh.PD/1) stood registered at 2-20 a.m. on the same night.
5. After registration of the case, investigation into the crime was carried out by Sultan Sikandar Khan, S.-I (P.W.7), who after completing the same submitted Challan against the appellant before the court for their trial in accordance with law.
6. On receipt the Challan, the trial court proceeded to frame a charge against the appellants, to which they pleaded not guilty and claimed to be tried. The prosecution in order to prove its case produced as many as ten witnesses, namely, Irshad-ul-Haq (P.W.1), Dr. Alam Zafar (P. W.2), Muhammad Arshad, MHC (P.W.3), Adnan-ul-Haq complainant (P.W.4), Muhammad Saleem (P.W.5), Abdul Jabbar (P.W.6), Sultan Sikandar 'Khan, S.-I (P.W.7), Akbar Ali Nizami, Draftsman (P. W. 8), Dilshad Ahmad, constable (P.W.9) and Khalid Mahmood, constable (P. W.10).
7. Learned Prosecutor closed the case of prosecution by giving up rest of the witnesses and tendering in evidence reports of Chemical Examiner (Exhs.PL and PM) and those of the Serologist (Exhs.PN and PQ).
8. Thereafter, the trial court examined the appellants under section 342, Cr.P.C., who denied the allegations brought against them and claimed their absolute innocence in the matter. Their consistent stand while answering question "Why this case against you and why the P.Ws. made statements to involve you?" was that it was a blind murder and the complainant falsely implicated them merely on the basis of guess work and having nourished grudge against them prior to this occurrence as they were supporting one Rashid Naeem in a case under section 337 registered against the deceased, who (the deceased) was not having a good character and had enmity with many persons; that the complainant being police employee has falsely implicated them on his personal whim and intent and that the witnesses except the police officials being related inter se have deposed on the line adopted by the complainant. They did neither opt to make statements on oath under section 340(2), Cr.P.C. nor to adduce evidence in defence.
9. Upon culmination of trial, the trial court proceeded to pronounce verdict of guilt against the appellants, convicted and sentenced them as aforementioned.
10. Learned counsel for the appellants in support of these appeals argued that in the instant case the F.I.R. was registered after due deliberations and consultation and preliminary inquiries as is clear from the following circumstances:
(a) that according to the Investigating Officer (P.W.7), he reached the place of occurrence on 1-5-2003 at 3-00 a.m. whereas Khalid Mahmood, constable (P.W.10), who accompanied the Investigating Officer when he went to the place of occurrence and also escorted the dead body from the place of occurrence to the mortuary, stated that he reached the place of occurrence at about 11/12-00 night on 30-4-2003;
(b) that the Investigating Officer (P.W.7) stated that the dead body was dispatched to the mortuary from the place of occurrence at about 7-00 a.m. on 1-5-2003 and Khalid Mahmood, constable (P.W.10) stated that it was dispatched from the place of occurrence at 7/8-00 a.m. on 1-5-2003, whereas the complainant (P.W.4) stated in his cross-examination that the dead body was dispatched to the mortuary from the place of occurrence at 5/5-30 a.m.;
(c) that as per complainant (P.W.4), he got recorded his statement (Exh.PD) at 2-00 a.m., therefore, it is clear that before dispatching the dead body to the mortuary preliminary inquiries were conducted;
(d) that Dr. Alms Zafar (P.W.2), who conducted autopsy on the dead body stated that at the time of conducting of postmortem examination, only inquest report and injury statement was along with the dead body.
The learned counsel for the appellants contended that all these circumstances suggest that it was an un-witnessed occurrence because the complainant, who is a retired police official and also remained associated with the court as Naib Court, is real brother of Police Inspector, did not lodge this F.I.R. immediately, as according to him, this occurrence took place roundabout at 11-00 p.m. on 30-4-2003, whereas admittedly he reported the matter to the police at 2-00 a.m. on 1-5-2003 and has accepted during cross-examination that the place of occurrence is at a distance of eight kilometers from Police Station Thikriwala and the said police station is connected with the village with a metalled road and facility of telephone and transportation was also available; that the eye-witnesses of the case, namely, Adnan-ul-Haq complainant (P.W.4), Muhammad Saleem (P.W.5) and Sarfraz (given up P.W) are closely related to the deceased, being father of the deceased, nephew of the complainant and paternal cousin (Phuphizad) of the deceased, respectively, but their conduct at the time of occurrence is highly improbable as none of them tried to save the deceased from the appellants and even none made any attempt to shift him to the hospital in an injured condition, as according to the doctor (P.W.2), time between injury and death was half an hour, despite the fact that Muhammad Saleem (P.W.5) has admitted that doctors are also available in the village and even no effort was made to call the doctor from the village; that the eye-witnesses are admittedly chance witnesses, as they have no business or residence close to the place of occurrence and Muhammad Saleem (P.W.5) admitted that he went to the house of the complainant per chance and there was no occasion for him to go to the house of the appellant and even otherwise story of the prosecution that the deceased was firstly called in their house by the appellants and thereafter he was attacked outside their house' is highly improbable; that it is the case of the prosecution that when the deceased came out of the house of the appellants, he was attacked by the appellant and they caused three injuries on his person, one on the back, second on the left flank and third on the left elbow, whereas according to the postmortem report injury on the flank is mentioned as injury No.3 and it is one of the fatal injuries and thereafter as per prosecution case, the deceased ran and was chased by the appellants, who again caused him injuries, whereas according to point I shown in the site plan (Exh.PJ), distance between the place where the deceased was firstly attacked and the place where he was subsequently fell is 476 feet, which is not only improbable rather impossible because after receiving such injuries, it was not possible for the deceased even to walk especially when he as per prosecution witnesses was being chased by the appellants; that the prosecution story is belied from another circumstance, which is that if the deceased was injured at point 2 and fell at point 1, there must be a trail of blood between the two points, but no such blood was found available, because the Investigating Officer of the case, namely, Sultan Sikandar Khan, S.-I (P.W.7) in his cross-examination stated that there was no trail of blood between these two points as also point No.3; that recovery of Chhurri (P1) at the instance of Tahir-appellant is not believable because of the reasons, firstly, that the place from where it was allegedly recovered does not belong to the appellant as it was premises of the school and, secondly, the Investigating Officer has admitted that he observed that fact in the Zimni that the said Chhurri was not blood stained and it was washed; that it is also on record through evidence of Abdul Jabbar (P.W.6) that it was an ordinary Chhurri, which is used in kitchen and is easily available in the bazaar and was rusted, therefore, report of the Serologist (Exh.PP) to the effect that the Chhurri was blood stained is of no avail to the prosecution; that the prosecution has not produced any evidence to substantiate the motive as alleged in the F.I.R. and even otherwise the story of the prosecution that the deceased was first called from his house and taken to the house of the appellants and thereafter the was murdered while coming out of the house is highly improbable; that in the F.I.R. the complainant has specifically stated that Faazal-appellant caused two Chhurri blows, which landed on the backside of the shin of the deceased, whereas while appearing before the court as P.W.4 stated that one Chhurri blow was inflicted by Faazal-appellant and he was duly confronted his statement recorded by the police, and this dishonest improvement was made to bring the ocular account in line with the medical evidence and that as the prosecution case is full of doubts, infirmities and improbabilities, the appellants are entitled to clean acquittal. In support their contentions, the learned counsel for the appellant placed reliance on the cases of Irshad Ahmad v. The State 2008 SCMR 72, Liaqat Ali v. The State 2008 SCMR 95, Pathan v. The State 2008 SCMR 123, Allah Bachaya and another v. The State PLD 2008 SC 349 and Muhammad Akram v. The State 2009 SCMR 230.
11. Learned Additional Prosecutor General Punjab for the State resisted this appeal on the grounds that the story of the prosecution as set out in the F.I.R. is natural, probable and conduct of the complainant and the eye-witnesses, in the circumstances of the case, is highly natural and probable; that the ocular account furnished by the prosecution witnesses is duly supported by the medical evidence available on record and nothing adverse was brought on record despite lengthy cross-examination; that the delay in lodging the F.I.R. in the circumstances of the case is not fatal to the prosecution case because prosecution has proved its case through confidence inspiring evidence and especially when there is no enmity between the appellants and the complainant, this delay will carry no significance and substitution in such like cases is a rare phenomenon and a father will not substitute an innocent person with the real culprit.
12. We have heard the arguments addressed by learned counsel for both the sides and also gone through the record with their able assistance.
13. In this case the occurrence had taken place on 30-4-2003 at roundabout 10-30 p.m. within the revenue estate of Chak No.84/JB and the matter was reported by the complainant (P.W.4) to Sultan Sikandar Khan, S.-I (P.W.7) at 2-00 a.m. on 1-5-2003, when he was available at Chak No.76/JB, i.e. about three hours after the occurrence.
14. The prosecution in order to prove its case has produced ten witnesses, out of whom Dr. Almas Zafar (P.W.2), Ikram-ul-Haq-complainant (P.W.4), Muhammad Saleem (P.W.5), Abdul Jabbar (P.W.6), Sultan Sikandar Khan, S.-I (P.W.7) and Khalid Mahmood, constable (P.W.10) are material and relevant.
Dr. Almas Zafar (P.W.2) had conducted autopsy on the dead body of Adnan-ul-Haq deceased on 1-5-2003 at 11-00 a.m. and had observed the following injuries on his person:--
(1) A contusion mark 11 cm x 4 cm at the top of right shoulder 3 cm outer to neck.
(2) A stab wound 2.5 cm x 1 cm at the back of left forearm 5 cm from the elbow. It was muscle deep.
(3) A stab wound 3 cm x 2 cm at the outer side of left lower chest 17 cm from the midline 19 cm from left nipple and 19 '/2 cm from umbilicus DNP.
(4) A stab wound 3.5 cm x 1.5 cm x muscle deep at the front of left thigh 17 cm above the knee joint.
(5) A stab wound through and through, muscle deep at the back of right leg 18 cm lower to knee joint. Wound of entry was 4 cm x 3 cm. Wound of exit 3 cm x 3 cm. Distance between entry and exit wound was 2 cm.
(6) A stab would 4 cm x 1.5 cm DNP at the back of left abdomen (Lumber region) 5.5 cm from the posterial midline 17.5 cm above the anal grove.
According to his opinion, death in this case has occurred due to haemorrhage leading to shock and cardiopulmonary arrest resulting from injuries Nos.3, 5 and 6, which were collectively sufficient to cause death in the ordinary course of nature. Probable duration between injury and death was within half an hour and between death and postmortem was about 10 to 15 hours.
Ikram-ul-Haq complainant (P.W.4) and Muhammad Saleem (P.W.5) have appeared to furnish ocular account and they in a nutshell reiterated the story of the F.I.R.
Abdul Jabbar (P.W.6) was the witness of recovery of Chhurri (P1) at the instance of Tahir-appellant, which was taken into possession by the Investigating Officer through memo. Exh.PF and he has appeared to prove the same.
Sultan Sikandar Khan, S.-I (P.W.7) was Investigating Officer of the case. He stated about the acts done and duties performed by him during the course of investigation.
Khalid Mahmood, constable (P.W.10) was a witness, who accompanied the Investigating Officer to the place of occurrence and therefrom he escorted the dead body to the mortuary for autopsy purpose.
15. The first question, which needs determination by this court, is whether this F.I.R. in the circumstances of the case, was promptly lodged. We have noted that the complainant while appearing before the court as P.W.4 has admitted in his cross-examination that his village is connected with the Police Station Thikriwala through all kinds of transports and even with a metalled road and the distance between the two places is about eight kilometers. He stated that he was going to the police station, when he met the police officer at Chak No.76/JB Jodan, which is at a distance of five kilometers from the place of occurrence. It has also been noted by us that the complainant has admitted that he remained present with the dead body till 12-30 a.m. and he has not assigned any reason for his being present there.
16. Another circumstance, which creates doubts about the time of the registration of F.I.R., was that as per complainant (P.W.4) the dead body was dispatched to the mortuary at 5-00/5-30 a.m., whereas according to the Investigating Officer (P.W.7), it was dispatched for postmortem examination at 7-00 a.m. under the escort of Khalid Mahmood, constable (P.W.10) on a private Dallah and said Khalid Mahmood, constable in his cross-examination stated that dead body was handed over to him at 7/8-00 a.m. for its postmortem. If all the above noted circumstances are taken into consideration, then possibility of deliberations and consultation, prior to the registration of the case cannot be ruled out.
17. The next most important questions are whether the story of the prosecution as stated in the F.I.R. and as unfolded before the trial Court is probable and whether the witnesses (P.Ws.4 and 5) were present at the place of occurrence as they claimed. The prosecution case is that the deceased was called from the house of the complainant at 10-00 p.m. by Tahir appellant and at that time Muhammad Saleem (P.W.5) and Sarfraz (given up P.W.) were also present. Muhammad Saleem (P.W.5) in his cross-examination stated that he had visited the house of the complainant per chance, reached there at about 9/9-30 p.m. on 30-4-2003. Sarfraz (given up P.W.) reached there after 5-10 minutes. They remained sitting in the Baithak of the complainant along with wife of the complainant, however, at about 10-30 p.m., they left for the house of the appellants to find out Adnan-ul-Haq deceased, who had not come back and in their view the deceased was coming out from the house of the appellants, who caused three injuries to the deceased, one landed on his back, the other on the left flank and the third on the left elbow and thereafter he ran away, but was chased by the appellant, and then again he was given injuries. We have gone through the site plan (Exh.PK). Point 2 is place where as per witnesses the deceased for the first time suffered injuries and even he received injury on the left flank, which was subsequently declared as one of the fatal injuries by the doctor (P.W.2). Now the question arises as to whether the deceased, after receiving three injuries on his person and especially when he was being chased by the three persons can go to another place, which as per site plan (Exh.PK) was at a distance of 476 feet from that point. In these circumstances, it is not probable. Moreover, presence of these witnesses (P.Ws.4 and 5) at the place of occurrence is also doubtful, as they have not assigned any valid reason for their presence at the venue of crime and even otherwise if it is accepted that the deceased was called by the appellants in their house, then the question arises as to why he was not killed by the appellants inside the house?
18. Another circumstance, which creates dent in the prosecution story, is the conduct of the prosecution witnesses as the deceased was injured in their presence. The doctor, who conducted autopsy on the dead body, stated that time between injury and death was half an hour, but no attempt was made by the witnesses to save life of the deceased despite the fact that the complainant has admitted during cross-examination that the doctors and facilities of transport and telephone etc. are available in the village. The relevant portions of his statement are reproduced as under:--
" ..Our village is connected with the all kind of transports, with P.S. Tikriwala .."
" .Our village is connected with facility of telephone...."
" .. There are many private doctor and dispenser in our village, who practiced there...."
This conduct of the complainant (P.W.4), who is father of the deceased, is not understandable because an ordinary person in such like cases would first make an attempt to save life of the deceased, but in the instant case he remained with the dead body for about two hours without any explanation.
19. As far as the recovery of Chhurri (P1) at the instance of Tahir-appellant is concerned, Abdul Jabbar (P.W.6), in whose presence recovery was effected, stated in his cross-examination that it was an ordinary Chhurri, mostly used in the kitchen and it was rusted and easily available in the market for its use in every house for domestic purpose, whereas the Investigating Officer (P.W.7) stated that he observed in his case diary that this Chhurri was not blood stained and it had been washed. The relevant portions of the statements of both the witnesses, i.e. P.W.6 and P.W.7 are reproduced as under:
Abdul Jabbar (P.W.6).
" .P.1 is a ordinary Churri mostly used in the kitchen. P.1 is rusted. It is available in the market and in used of at every house for domestic use..."
Sultan Sikandar Khan, S.-I (P.W.7).
"....The said Chhurri was blood stained, but the accused stated before me that it was buried by me after washing it. It is correct that I mentioned this fact in my Zimni D No.6 dated 9-5-2003, Androoni Zimni No.5 that the said Chhurri was not with blood stained and it was washed..."
Moreover, the said Chhurri was recovered from the place, which is admittedly not owned by the appellants, therefore, in these circumstances of the case, no reliance can be placed on the positive report of the Serologist (Exh.PP).
20. Another important point to be considered is that the complainant of the case (P.W.4) is not an ordinary villager, but is a retired police official and also remained associated with court as Naib Court and that one of his real brothers is a Police Inspector, but he did not lodge the F.I.R. immediately after the occurrence, although there was a metalled road leading towards police station from the venue of crime, so judging his conduct while keeping in view his service career and status, his conduct appears to be improbable and creates doubt in the prosecution story. It is' settled principle of law that it is duty of the prosecution to prove its case beyond any shadow of doubt and when the doubts occurred from the evidence available on the record, then the accused is entitled to the benefit of the same as a matter of right and not as a matter of grace. Reliance in this behalf has been placed on the case of Muhammad Akram v. The State 2009 SCMR 230, wherein the honourable apex Court proceeded to observed as under:
"13....It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which crated reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
21. Accordingly, following the principle of law in the afore-cited judgment, we extend the benefit of doubt to the appellants and by setting aside their conviction and sentence acquit them of the charge. They are in custody and shall be released from jail forthwith, if not required in any other case. These appeals stand allowed.
22. Death sentence awarded to Tahir appellant by the learned trial court is not confirmed and Murder Reference is answered in the negative.
23. Insofar as Criminal Revision No.870 of 2004 is concerned, the same is dismissed in view of the observations made hereinabove.
N.H.Q./T-23/L Appeals accepted.