ARSHAD ALIAS KAUSAR Versus THE STATE

Criminal Appeal No.555 of 1993 titled "Arshad alias Kausar v. The State" and Criminal Appeal No.612 of 1993 titled "Ghulam Mustafa v. The State" arising out of the same judgment are proposed to be disposed of together.

2. Case F.I.R. No.240 of 1991 under sections 302, 379 and 34 PT was registered at Police Station Hujra Shah Muqeem, District Okara on the report of one Muhammad Ashraf. According to first informant case F.I.K No.311 of 1990 under sections 302, 148 and 149, P.P.C. was registered at Police Station Hujra Shah Muqeem about 10 months prior to registration of case F.I.R. No.240 of 1991 regarding murder of his mother Ghulam Fatima and his brother Muhammad Aslam at the hands of Ghulam Mustafa and others. Ghulam, Mustafa alongwith co-accused was challaned and he was on bail in that case. It was alleged that about 15/16 days prior to the incident, Ghulam Mustafa had asked (Muhammad Ashraf) and his brother Muhammad Arshad not to pursue the earlier murder case otherwise the consequences would follow. The first informant reported that on 14-6-1991 he alongwith Muhammad Arshad, Muhammad Sher had gone to village Ram Parshad to pay an outstanding amount of Diesel Oil and they were returning home through a pacca link road from Rajowal. His brother Arshad was ahead of-tem and was carrying his licensed 7 m.m. rifle with him. Muhammad Sher followed him. When Muhammad Arshad and others reached near Dhari of Muhammad Yasin at Rajowal Road at 7-30 p.m. Faiz Ahmad son of Mehmood armed with .30 bore pistol, Arshad alias Kausar (appellant) armed with .12 bore shot gun, Ghulam Mustafa son of Muhammad Din (appellant) armed with 7 m.m. rifle, Ghulam Mustafa son of Muhammad Hayat armed with .12 bore pistol resident of Kharal Kalan, emerged at the spot. Ghulam Mustafa raised Lalkara that complainant party, all the three brothers, be not allowed to escape and be taught a lesson for pursuing the case. Faiz fired with his .30 bore pistol hitting Muhammad Arshad in his abdomen. Ghulam Mustafa fired with rifle which shot hit Arshad near his left knee. Arshad alias Kausar fired with .12 bore shot gun hitting Arshad on his left arm and buttock. Ghulam Murtaza fired with .12 bore pistol which shot hit Arshad on his right leg and right knee. Muhammad Arshad fell down and on raising alarm by his brother Muhammad Sher, Sana Ullah and Shoukat Ali resident of Jan Pura, who were passing by, were attracted to the spot and also witnessed the occurrence. The accused while shouting went towards Kharal Kalan. The complainant and witnesses approached Muhammad Arshad after the accusP1 had left the spot and found him dead. They also found that the accused had taken away the licensed rifle belonging to the deceased.

3. All the four accused were challaned and later tried in the Court of an Additional Sessions Judge, Okara.

4. The prosecution examined 10 persons as witnesses to prove its case. Abdul Rehman a Deputy Superintendent of Police and Nazar Hussain Inspector of Police were examined as Court-witnesses.

5. Dona, P.W.1 had identified the dead body of Arshad at the time of post-mortem examination of the dead body. Muhammad Ashraf, the complainant appeared as P.W.2 and reiterated the contents of F.I.R. and added that accused had taken away the rifle as well as Chadar belonging to the deceased. Faqir Muhammad P.W.3 is a formal police witness. Muhammad Sher P.W.4, a brother of the deceased supported Muhammad Ashraf qua motive as well as the incident. He also deposed that the accused had taken away Chadar .of the deceased. He also deposed about the motive which was to the effect that Zulfiqar, his brother had abducted daughter of Faiz Ahmad for which a criminal case was registered against Zulfiqar, Muhammad Sher, P.W.4, and others and later daughter of Faiz Ahmad, accused, was restored and later Ghulam Fatima mother of the deceased and the witness and Muhammad Aslam, brother of the deceased were murdered by Muhammad Anwar son of Faiz Ahmad, Ghulam Mustafa, Muhammad Arshad and one Abbas and others who were challaned in that case and Muhammad Arshad was witness in that murder case, due to which grievance Muhammad Arshad was murdered. Shoukat Ali P.W.5 stated that he alongwith Sana Ullah were returning from Qilla Sadha Singh and saw Muhammad Arshad, Muhammad Ashraf, Muhammad Sher coming from Ram Parshad and when they leached in front of Dhari of Yasin the accused armed as stated above emerged and fired at the deceased. Nawab Ali P.W.6 prepared site plan Exh.PC.

6. The post-mortem examination on the dead body of deceased was conducted by Dr. Saugheer Ahmad P.W.7. He found the following injuries on the dead body:--

(1) A fire-arm lacerated wound 1 c.m. x 8 c.m. going on the medial and upper part of left forearm, 2 c.m. below to left below joint. Margins of wound were inverted blackening around the wound was present (Entry wound).

(2) A fire-arm lacerated wound 2.2. c.m. x 1.5 c.m. on the interior and upper part of left forearm. Margins of the wound were evened. (Exit wound of injury No. 1).

(3) A tire-arm lacerated wound .8 c.m. x 7 c.m. x in going on lateral and upper part. of left thigh. Margins of wound were inverted. Blackening around the wound were presented.

(4) A fire-arm lacerated wound 2.5 c.m. x 6 c.m. on the middle and right side of abdomen, 11.5 c.m. lateral to umblicous and 25.5 c.m. below to right nipple. Intestine was coming out from the wound. Margins of the wound were everted. (Exit wound of injury No.3).

(5) Fire-arm lacerated wound 1.8 c.m. x .9 c.m. x bone deep on the lateral and lower part of left knee joint. Margins of the wound were inverted. A bullet was recovered from the would (Entry wound).

(6) A linear abrasion 15 c.m. x 1.5 c.m. on the posterior and lower part of left thigh.

(7) An abrasion 5 c.m. x 2 c.m. on the medial and lower part of left knee? joint.

(8) Bruise 11 c.m. x 1:5 c.m. on the lateral and lower part of left thigh.

(9) Multiple burn wound 7 c.m. x 1.2 c.m. on the front of both testes, scrotum were swollen and lower end were black in colour.

(10) A burn wound 1 c.m. x 8 c.m. ca the lateral and lower part of right knee-joint.

According to witness death was caused by haemorrhage and shock due to injuries Nos.l, 2, 3 and 4 which were sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem and were caused by fire-arm.

7. Muhammad Yasin P.W.8 recorded F.I.R. Exh.PA at the instance of Muhammad Ashraf P.W.2. Muhammad Sharif P.W.9 escorted the dead body of Muhammad Arshad to mortuary. Noor Ahmad P.W.10 is a formal police witness.

8. Abdul Rehman a Deputy Superintendent of Police was examined as C.W.1. The witness deposed that he had investigated the case under the orders of Deputy Inspector-General of Police, Lahore Range. According to witness he had agreed with the three investigations conducted earlier in the matter and found the accused innocent as was concluded in the earlier investigations. He also deposed that according to investigation conducted by him the deceased who was a vagabond and a criminal had illicit relations with daughter of one Roshan Kumhari and that he had opined that the deceased might have been done to death by some one else or by son of Roshan.

9. Nazar Hussain Inspector of Police appeared as C.W.2. He deposed that he had conducted the investigation between 25-9-1991 and 5-12-1991 and found the accused as innocent in the case.

10. After the prosecution evidence stood recorded the accused were examined under section 342, Cr.P.C. They denied the prosecution case against them and stated that they were implicated in the case on account of long-standing enmity between the parties and they were innocent.

11. Learned trial Court, believed the prosecution case to the extent of Muhammad Arhsad alias Kausar and Ghulam Mustafa son of Muhammad Din and held them guilty for causing Qatl-e-Amd of Muhammad Arshad deceased and convicted them under section 302(b), P.P.C. and awarded imprisonment for life to both of them. They were also given benefit of provisions of section 382-B, Cr.P.C.

12. Muhammad Arshad alias Kausar filed-Criminal Appeal No.555 of 1993 while Ghulam Mustafa filed Criminal Appeal No.612 of 1993 against the conviction and sentence awarded to them by learned Additional Sessions Judge, Okara by judgment dated 4-9-1995. Learned counsel for the parties have been heard in the matter today.

13. Learned counsel for the appellants submitted that it was a night time occurrence and was not witnessed by anybody. It was submitted that Muhammad Ashraf complainant and Muhammad Sher were allegedly accompanying Muhammad Arshad at the time of attack and motive for the incident was stated to be that Muhammad Ashraf and Arshad were pursuing the murder case against the accused and since the motive against all the three brothers was common, there was no occasion for sparing Muhammad Ahsraf and Muhammad Sher who were not attacked by the assailants at the time of incident. It was argued that it was sufficient indicator of the fact that both Muhammad Ashraf and Muhammad Sher were not present at the spot. It was argued that the motive was improved at the trial and the story put forward by the witnesses was belied and contradicted by the medical evidence on record. It was submitted that F.I.R. was lodged belatedly on the next morning of the incident and no mention was made of the fact that the deceased was fired upon at his private parts or that the accused had taken away the Chadar while, after registration of the case, the police found the deceased to be naked and had injuries on his private parts which were described as injuries Nos.9 and 10 by the examining Medical Officer, and it was argued that omission which was very material went a long way to support the contention of the defence that 'the occurrence was not seen by the complainant or the witnesses. It was argued that according to Investigating Officer only deceased had gone to the Diesel Oil Dealer and none of the witnesses had accompanied the deceased at the relevant time. It was contended that Shoukat Ali P.W., according to his own showing was a chance witness and he belonged to brotherhood of the deceased and as such his testimony ought to be rejected. It was submitted that there were four residential houses situated near the place of occurrence and no one from the place was examined. Learned counsel further submitted that appellants and their co-accused were implicated falsely and each one of them was assigned a 'single shot and there was no hurdle in the way of the accused to repeat the shot and this factor too went against the prosecution. It was further submitted that recoveries were not effected from the appellants and the investigating Officer P.W.8 had exonerated the appellants as well as their co?-accused. It was next submitted that case of the appellants was not distinguishable from that of the acquitted co-accused and their conviction was recorded unjustifiably.

14. Learned counsel for the complainant on the other hand submitted that motive against the accused stood proved and accused as a matter of fact were all out to eliminate the entire family of the deceased as earlier, they had murdered their mother and brother. It was argued that opinion of the Investigating Officer or of the Court-witnesses did not carry any weight and at any rate was not binding on the Court. It was submitted that case against the appellants stood proved beyond any shadow of doubt and conviction was, recorded, in their case, justifiably. Learned counsel for the State also supported the impugned judgment and stated that the appellants were assigned the specific roles which were supported by the medical evidence and non-recovery of crime weapon was not material in the case.

15. The occurrence took place at 7-30 p.m. on 14-6-1991 on a public road. According to complainant he alongwith his brother Arshad, deceased, and a third brother Muhammad Sher had gone to a Diesel Oil Dealer at village Ram Parshad to make payment- against an outstanding bill and after making the payment they were returning home on foot when they were attacked by the present appellants as well as two co-accused. Each of the four assailants had statingly fired once at the deceased. The matter was reported to police next day at 6-00 a.m. and the injuries caused by each of the assailants were specifically mentioned in the F.I.R. No mention whatsoever was made of injuries received by the deceased on the private parts of his body or knee which injuries were later noticed as injuries Nos.9 and 10 in the post-mortem report. The Investigating Officer, after registration of the case reached the spot and found the dead body as covered with a Chadar and he was found naked. The complainant had nowhere mentioned that the accused had also made the deceased naked and had taken away Chadar worn by him. Injuries Nos.9 and 10 having burns were caused by fire-arm from a close distance when deceased in all probability was naked. If Muhammad Ashraf and Muhammad Sher had seen the incident as claimed by them, they could not have missed this aspect of the incident particularly when the matter was reported to police after about 10 hours of occurrence. The witnesses introduced this part of the story at the time of trial and stated that the accused had taken away Chadar of the deceased but no reason has been advanced as to why this fact was not mentioned earlier.

16. The motive for the incident was that mother and brother of the deceased and the P.Ws. were murdered at the hands of the accused and Ghulam Mustafa had asked Muhammad Arshad and Muhammad Ashraf to desist from prosecuting that case. If Muhammad Ashraf and Muhammad Sher were accompanying their brother it is not comprehensible as to why the assailants or the appellants did not lauch any attack on them and spared them. The complainant or Muhammad Sher nowhere stated that at the time of assault they took shelter behind any object or had run away from the spot. This aspect of the matter as well as the reason that medical evidence contradicts original story given in the F.I.R., makes presence of complainant and Muhammad Sher at the place of occurrence at the relevant time highly doubtful.

17. The only independent witness produced at the trial is Shoukat Ali P.W.5. He admittedly was a chance witness and was resident of a village situated several miles away. His testimony suffers from the same defects as that of Muhammad Ashraf P.W.2 and Muhammad Sher P.W.4.

18. Arshad alias Kausar appellant was alleged to have caused an injury to buttock of the deceased which was also not found by the Medical Officer on the time of post-mortem examination. It has also been noticed that the witnesses tried to improve upon the prosecution case during trial and there is contradiction in the testimony of P.W.2, P.W.4 and P.W.5 as regards injuries attributed to present appellants particularly- Muhammad Arshad alias Kausar.

19. In a case involving capital punishment the evidence brought forth by the prosecution has to be of unimpeachable character, the presence of witnesses at the spot has to be proved beyond any reasonable shadow of doubt and the ocular account has to find support from ambience of the case and has to be corroborated by all the other material brought on record by the prosecution. In the case in hand presence of complainant and other eye-witnesses Muhammad Sher P.W.2 and P.W.4 is suspect for the reasons that their testimony is not supported by the medical evidence. Shoukat Ali P.W.5 was a wayfarer and a chance witness at the most. The crime weapons were also not recovered from the appellants and their is not distinguishable from that of the co-accused who have been acquitted the complainant and benefit of all these factors has to go to the appellants .

For the foregoing reasons the appellant are given benefit of doubt and are acquitted of the charge by allowing the appeals filed by them. They may be released from the jail if not in any other criminal case.

N.H.Q./A-177/L ????????????????????????????????????????????????????????????????????????????????? Appeal accepted.