MUHAMMAD NAWAZ Versus THE STATE
This judgment will dispose of Criminal Appeal No. 1476 of 2001, Criminal Appeal No.319-J of 2001 filed by Muhammad Nawaz through Jail and Criminal Revision No. 801 of 2001 directed against the judgment dated 31-8-2001 passed by the Additional Sessions Judge, Faisalabad, whereby he convicted the appellants under section 302(b), P.P.C. and sentenced them to undergo life imprisonment with further direction to pay Rs.20,000 each payable to the legal heirs of the deceased as required under section 544-A, Cr.P.C. or in default six months' S.-I.
2. The brief facts of the case as narrated by the complainant Moray Khan are that on the fateful night he alongwith Manak, Masson and Melinda was sitting in their Dhari. Bhai Khan deceased his cousin was going to guard the route of his water. At 9-30 p.m. when he reached the Watt of Khal in Khasra No.30/11, it was moon lit night. All of a sudden Nawaz; Said, Anara, Amanat and Imran alongwith two unknown persons ambushed from the northern wall of the Dhari of Manak. They started raising Lalkaras upon which the complainant, Manak and Melinda ran to climb up the roof of the Dhari. Manak raised Lalkara for not letting Bhai Khan escape and that murder of Ijjan Bibi was to be avenged. Nawaz fired with his gun hitting Bhai Khan in front of his chest below the right shoulder who fell down. Then Said accused fired with his gun hitting the front of the chest of Bhai Khan. The complainant and his companions witnessed the occurrence in the moon-lit night and also in the torch-light. Bhai Khan deceased died at the spot while the accused persons escaped from the spot after gathering the people from nearby Dharis.
Motive behind the present occurrence was that 20 years back Mst. Ijjan Bibi mother of Said appellant was murdered by father of Bhai Khan deceased and others. Matter was reported to the police.
3. The local police after getting information completed all the necessary formalities. Thereafter Inayat Ullah, S.-I. alongwith his subordinates proceeded to the spot and prepared the papers in the light of lantern. On 27-8-1999 he again went to the spot and he secured blood stained earth from the spot vide memo. Exh.P.B. He also received last worn clothes vide memo. Exh.P.C. on 12-9-1999 he arrested Karamat Ali and Anara and on 18-9-1999 he arrested the other accused Nawaz, Said and Amanat. Thereafter, investigation of the case was entrusted to Zaheer Ahmad, S.-I. On 24-9-1999 Karamat accused got recovered a .12 bore gun P.5 which was taken into custody by him vide memo. Exh.P.H. Muhammad Nawaz accused also got recovered .12 bore gun P.6 vide memo. Exh.P.J. Anara accused got recovered .7 mm rifle P.1 vide memo. Exh.P.C. Then the accused Said also got recovered P.2 the .12 bore gun vide memo. Exh.P.D. Ultimately the accused were challaned by Javaid Ali, Inspector and were sent to the judicial lock-up.
4. In order to prove its case the prosecution has produced as many as 15 witnesses including Doctor, Investigating Officers, eye-witnesses and other relevant persons. After tendering in evidence report of Chemical Examiner Exh. P. L. and that of Serologist Exh. P.L./1, learned SSP 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.
5. Learned counsel for the appellants submit that the complainant is not the permanent resident of the place of occurrence and he has not furnished any cogent reasons for his presence at the place of occurrence. Learned counsel submits that the learned trial Court has rightly held that prosecution has failed to prove the motive. As far as recovery evidence is concerned, that has also been discarded by the learned trial Court, that the occurrence had taken place during the dark hours of night and the electric light was not shown in the F.I.R. by the complainant, that as far as story of the prosecution that Bhai Khan deceased was watering his fields, prosecution has failed to prove the same through documentary evidence Even through circumstances this fact was not proved, that the Kassi' with which the deceased was watering his land was not taken into custody by the police, that the torch-light was introduced for the first time before the learned trial Court and such light was not produced during the course of investigation, that the identification of the accused persons is doubtful in this case. That plastic wades were found from the pleura which proves that the fire was shot from the very close range. Learned counsel submits that there is conflict between the distance from where the accused allege fired at the deceased. Learned counsel submits that according to the two eye-witnesses produced by the prosecution they had seen the occurrence from the roof of the Dhari One P.W. has stated that lantern was arranged while the other eye witness has stated that it was already there. Learned counsel submits that although, it was story of the prosecution that indiscriminate firing was made at the spot by the appellants and their co-accused but not a single crime empty was recovered from the spot and there was no mark of pellets or bullets on the wall of the Dhari. He submits that on the same evidence three accused have been acquitted by the learned trial Court, that in fact it was an un-witnessed occurrence and presence of the eye witnesses is doubtful. Both the eye-witnesses are real brothers inter se and cousin of' the deceased. No independent witness from the surrounding area has been produced, that the deceased had many enmities with different people and was involved in so many other cases, that possibility of false involvement of the appellants on suspicion cannot be ruled out.
6. On the other hand learned State Counsel assisted by the learned counsel for the complainant submits that appellants are named in the F.I.R. Recovery of guns have also been effected from both the appellants. Learned counsel submits that presence of both the eye witnesses is natural as they were present there to irrigate their land, that it was in the knowledge of the appellants and their co-accused about the turn of water of the deceased and so they came there with premeditated plan to commit the murder of the deceased, that the F.I.R. was lodged promptly.
7. Learned counsel for the complainant submits that the motive has been proved by the prosecution though the learned trial Court has made reference to that by saying that it was a case of weak motive. Learned counsel submits that motive is always in the mind of the accused. Adds that on the day of occurrence it was 14th of the lunar month and it was moon-lit night and one could have seen and identified the assailants, that this is not a case of mistaken identity because parties were known to each other. Learned counsel submits that Moray Khan was permanently residing at the place of occurrence.
7. I have head the learned counsel for the parties at a great length and also have gone through the evidence with their assistance. In the instant case occurrence had taken place at 9-30 p.m. on 12-9-1999 when it was dark one. Moray Khan complainant has admitted during cross- examination that he was resident of Chiniot while the occurrence had taken place in Chak Jhumrah. Moray Khan has also admitted that he is voter of Chiniot. It may also be stated here that Moray Khan and Mehnda who are brother inter se had only one Kanal of land. They could not produce any documentary evidence of their ownership at the place of occurrence. Seven persons were mentioned in the F.I.R. as, accused persons including the present two appellants. Three co-accused were acquitted by the learned trial Court while two were named in the F.I.R. as unknown accused. According to the prosecution they all fired in discriminately but not a single crime empty was recovered from the spot although police reached there at 11 p.m. In the examination-in-chief the complainant introduced the torch for the first time by stating that the accused were identified in the said light. It was a big improvement and this shows the anxiety of the complainant so that the identification of the accused be proved through this improvement. There was no mention of the torch in the F.I.R. nor any torch was produced before the police during the investigation. It was also the case of the prosecution that Bhai Khan deceased was having a 'Kassi' for irrigation purpose but neither any 'Kassi' was shown to the Investigating Officer nor the same was produced before the police. According to the statement of the complainant i.e. at page 5, he has stated that fire was shot from a distance of 10 Karams while plastic wade was found from the cavity of the deceased. To make in line the ocular account with medical evidence the next witness namely Melinda introduced the fact in his statement that the fire shot was made by Nawaz from two feet. This all shows the dishonesty on the part of the prosecution. Even no marks of pellet or bullets were observed by the Investigating Officer on the wall of the Dhari. The complainant stated that Investigating Officer had inspected the place of occurrence on the same night but the Investigating Officer had admitted that he could not inspect the spot same day and he postponed the spot inspection for the next day. The story of the complainant is that the Dhari was consisting of three rooms but according to the prosecution it had got one room. The land which was being irrigated was never shown to the Investigating Officer. According to the complainant he went straight towards the Police Station on motorcycle" when the Investigating Officer met him in the way at Adda, but the statement of the Investigating Officer was that the complainant met him when he had arrived at the Adda in the Hi-Lux. It has also come on record during the cross-examination of the complainant that the deceased had enmity with so many other people.
As far as motive is concerned the occurrence for the murder of Mst. Ijjan Bibi mother of the appellant Said took place 20 years back. During this period no untoward incident had taken place although both the parties were residing in-the same village. Even that murder ended into a compromise. Prosecution also failed to prove the motive. As far as recoveries of gun are concerned, it cannot advance the prosecution case because no crime empty was recovered from the spot. The presence of the eye-witnesses seems to be a doubtful matter.
After having heard the learned counsel for the parties and going through the record, I am of the considered view that it is a case which is full of doubts. In this view of the matter, this appeal is accepted, conviction and sentence awarded to the appellants is set aside. Appellants are behind the bars. They are ordered to be released forthwith if they are not required in any other case. Criminal Revision is dismissed.
N.H.Q./M-1615/L Appeal accepted.