MUHAMMAD SALEEM Versus State
IJAZ AMHED CHAUDHRY, J .---This judgment will dispose of Criminal Appeal No. 334-J of 2001 filed by Muhammad Saleem appellant against his conviction and sentence along with Murder Reference No. 655 of 2001 sent by the learned trial Court under section 374, Cr.P.C. for confirmation of death sentence as both these matters have arisen from the same judgment, dated 29-9-2001 passed by the learned Addl. Sessions Judge, Kasur through which he has convicted the appellant under section 302(b), P.P.C. and sentenced him to death with compensation of Rs.50,000 payable to the legal heirs of the deceased Sarja or in default of payment thereof to further undergo S.-I. for six months.
2. The occurrence in the present case allegedly had taken place on 9-8-1999 at 3-00 p.m. within the area of Pial Kalan, situate 9 kilo-meters away from Police Station Khudian District Kasur and the statement (Exh.PB) of the complainant Muhammad Ashiq (P.W.2) was recorded by Abdul Haq, S.-I. (P.W.6) at 4-15 p.m. at the spot on the basis of which formal F.I.R. (Exh.PB/1) was recorded by Ghulam Hussain Head Constable (P.W.9) at 5-05 p.m. on the same day.
3. The brief facts as narrated in the F.I.R. (Exh.PB/1) by Muhammad Ashiq (P.W.2) son of the deceased Sarja are that he was a resident of village Pial Kalan and a labourer by profession. According to him on 9-8-1999, at about 3-00 p.m. he and his father Sarja had taken cattle to the tubewell of Zafar Ali for watering the cattle and witnessed Muhammad Saleem appellant armed with a carbine, Muhammad Mansha acquitted accused armed with a gun and Muhammad Sharif acquitted accused armed with a rifle sitting in an ambush in the crop of Master Muhammad Sharif, they raised a Lalkara that Muhammad Ashiq (complainant) and Sarja (deceased) should not go scot-free and they should be taught a lesson for murder of Bashir Muhammad and Shan Muhammad P.Ws. said that they were also reaching and Muhammad Saleem appellant fired with his carbine at Sarja his father in the presence of the P.Ws. hitting Sarja at the right shoulder, who fell down in an injured condition and Muhammad Mansha acquitted accused fired with his gun, at the complainant but he luckily escaped by dropping to the ground and Shah Muhammad and Shan Muhammad P.Ws. raised a Lalkara and chased the accused persons, who ran away by raising the fire-arms and firing in the air: Sarja injured succumbed to the injuries and died at the spot.
4. The motive behind the occurrence was alleged that about two years ago, father of Muhammad Saleem appellant was murdered and a criminal case was registered against Haider and Hameed brothers of the complainant, at the instance of Muhammad Saleem appellant, hence father of the complainant was murdered by Saleem appellant, Muhammad Mansha and Master Muhammad Sharif acquitted accused and this criminal case was registered.
5. After the recording of the statement of the complainant Muhammad Ashiq (P.W.2), Abdul Haq, S.-I. (P.W.6) prepared the inquest report (Exh.PD) and injury statement (Exh.PE) of the deceased Sarja and sent the dead-body to Mortuary for post-mortem examination and then collected blood-stained earth from the spot vide memo. Exh.PC. After the post-mortem examination on the dead-body of the deceased, the police constable produced before him last-worn clothes of the deceased shirt P.1., Chaddar P.2 and one phial containing pellets P.3 which were taken into possession vide memo. Exh. PH attested by the P.Ws. and he handed over the case property to the Moharrar. On 16-8-1999 he arrested Saleem appellant and during police custody after disclosure on 22-8-1999 Saleem appellant led to the recovery of carbine P.4 which was sealed into a parcel and taken into possession vide memo. Exh.PJ. He got prepared scaled site-plan from Patwari. However, Master Muhammad Sharif and Mansha acquitted co-accused were found innocent during the investigation.
6. After the completion of the investigation report under section 173, Cr.P.C. was submitted in the Court. Mansha and Master Muhammad Sharif co-accused were summoned to face the trial. Then copies of the documents required under section 265-C, Cr.P.C. were supplied to the appellant and his co-accused, the charge was framed which was denied by them and they claimed to be tried. The prosecution in order to prove its case produced as many as nine witnesses. The medical evidence had been furnished through the statement of Dr. Muhammad Arshad Khan (P.W.10) who conducted the post-mortem examination of Sarja deceased. The ocular account had been provided by Muhammad Ashiq (P.W.2) and Shan Muhammad (P.W.3) while the investigation had been conducted by Abdul Haq, S.-I. (P.W.6). The remaining witnesses are of formal nature and need not to discuss here.
7. After the close of the prosecution evidence the statements of the appellant and his co-accused were-recorded under section 342, Cr.P.C. in which they denied the allegations and professed their innocence. However, to a question that "why the case has been registered against you and why the P.Ws. deposed against you?" Muhammad Saleem appellant made the following reply which is reproduced as under:--
"Three years ago, father of Muhammad Saleem accused was murdered and Sarja and his sons were challaned. They had been convicted by the learned Trial Court and due to that enmity Muhammad Saleem, his brothers Mansha and Sharif have been falsely implicated in this case. The P.Ws. are also inimical and due to this reason, they have deposed against me and my co-accused. Sarja deceased had also enmity with other persons."
The appellant did not opt to make statement under section 340(2), Cr.P.C. and also denied to produce any defence evidence.
8. The learned Trial Court after hearing arguments of both the parties had passed the impugned judgment of conviction and sentence against the appellant which is being assailed through the instant appeals. However, through the same judgment Muhammad Mansha and Master Muhammad Sharif accused were acquitted.
9. Learned counsel for the appellant contends that it was an un-witnessed occurrence; that both the eye-witnesses namely Muhammad Ashiq and Shan Muhammad (P.Ws. 2 and 3) were not present at the spot; that the medical evidence was in contradiction with the ocular account; that the eye-witnesses were inimical and there is nothing on the record to corroborate the ocular account and the prosecution had miserably failed to prove the case against the appellant beyond any shadow of doubt.
10. Learned counsel for the State on the other hand have opposed the appeal on the ground that the appellant was the only accused who had fired at the deceased hitting on the back of his right shoulder. The said injury had been observed by the doctor on the person of the deceased caused by fire-arm so the medical evidence supported the prosecution version. Carbine had been recovered from the appellant and the motive was also proved against the appellant. It was a daylight occurrence and there was no question of mis-identity of the appellant and the appeal may be dismissed.
11. We have heard the arguments advanced by the learned counsel for the parties and also perused the record, with due care and caution.
12. The occurrence in the present case allegedly had taken place at 3-00 p.m. on 9-8-1999 and it was claimed that on the same day the statement of Muhammad Ashiq (P.W.2) was recorded at the spot. We have considered that there is always likelihood of registration of the F.I.R. after preliminary investigation when an F.I.R. is registered at the spot or outside the Police Station.
13. To prove the ocular account the prosecution had produced two eye-witnesses namely Muhammad Ashiq (P.W.2) who was real son of the deceased while Shan Muhammad (P.W.3) was his brother-in-law. So both the eye-witnesses were closely related inter se and with the deceased. It is settled law that mere relationship of witnesses is not sufficient to discard their evidence and declare them interested witnesses unless there was any enmity between the parties to falsely implicate the accused in a case. We have noticed that the motive of the incident itself had disclosed the enmity between the parties as two years before the incident father of Muhammad Saleem appellant was murdered and two brothers namely Haider and Hanif of the complainant and sons of the deceased Sarja were accused in the said murder case and Sarja deceased was also one of the accused. So the previous enmity existed between the parties and the witnesses can be termed as interested witnesses. No doubt the statements of interested witnesses can be relied upon for recording the conviction of an accused if the said witnesses satisfy the Court that they had witnessed the incident and they had spoken the whole truth coupled with their statements were corroborated by some independent piece of evidence. In the present case the occurrence had not taken place or near the house or place of residence of the deceased or the witnesses, but it had taken place in the fields. Muhammad Ashiq (P.W.2) claimed that his father, was looking after the cattle at the tubewell of Zafar Ali, when Saleem appellant armed with carbine, Mansha co-accused armed with 12 bore gun and Sharif co-accused armed with rifle came out of "chari" crop of Hashmat Ali and Sharif co-accused raised a Lalkara on which Saleem appellant fired at his father hitting on the back of right shoulder and Mansha co-accused fired at P.W.2 but he sat down and escaped. Shan Muhammad (P.W.3) also stated in the same manner that the accused came out from "chari" crop and raised a Lalkara but this witness stated that Mansha and Sharif co-accused fired at Muhammad Ashiq complainant, who laid down and escaped. So there was contradiction in the statements of both the eye-witnesses regarding the role ascribed to Master Muhammad Sharif as according to the F.I.R. and the statement recorded under section 161, Cr.P.C. Master Muhammad Sharif co-accused had been ascribed only the role of Lalkara though he was armed with rifle according to the complainant but he had not fired at him. According to the witnesses the accused had come out of the "chari" crop which fact was also belied by Muhammad Refique Patwari (P.W.1) who had prepared the site-plan. According to P.W.1 he had visited the place of incident at 2-00 p.m. but the field was plain and there was no "chari" crop. He had been specifically asked about the place where the accused at point `E' was standing, but he did not notice "chari" crop which according to the complainant was 5/6 feet in height.
14. Both the eye-witnesses also claimed that the deceased had been fired at from the back by putting the carbine over his body but the medical evidence contradicted the ocular account as there was no burning or blackening on the injury which was received by the deceased. On the other hand Dr. Muhammad Arshad Khan (P.W.10) categorically stated that the injury had been caused from a distance of more than 10 feet. Even otherwise the site-plan had been prepared on the instructions of the witnesses as per Muhammad Rafique Patwari (P.W.1). The latter had shown point "E" where the accused were standing and point "A" where the deceased had received the injury. The distance between both the places had been specifically mentioned by him about 25 feet. So the claim of the witnesses that the appellant had fired at the deceased by putting his gun over his body has been found in contradiction with the medical evidence and the site-plan (Exh.PA).
15. We have also noticed that Muhammad Ashiq (P.W.2) was real son of the deceased and if the occurrence had taken place due to the involvement of the two sons of the deceased in murder case then the same motive was available against the complainant as well who also claimed that he was fired at but he saved himself. Though the complainant was at the mercy of the accused who were three in number and were armed with gun, rifle and carbine and there was no hindrance in their way to achieve their goal, yet they did not make any effort to take the life of the complainant even the fire made by Mansha co-accused could not hit him. There was also contradiction in the statements of both the witnesses regarding this role as according to the complainant one shot had been fired by Muhammad Saleem appellant hitting the deceased and Muhammad Mansha co-accused also tired a shot but he sat down and escaped but P.W.3 Shan Muhammad claimed that after the firing of shot by Muhammad Saleem appellant to Sarja he fell down and succumbed to the injuries. Then Mansha and Sharif co-accused fired at his brother-in-law i.e. the complainant. On this point both the eye-witnesses had contradicted each other. Moreover, Muhammad Ashiq complainant (P.W.2) during cross-examination stated that he had raised an alaram that Saleem appellant had fired at his father by saying that the accused had killed his father. According to him, he raised hue and cry for about thirty minutes and then Shah Muhammad has come there followed by Shan Muhammad. P.W.2 further explained that Shah Muhammad and Shan Muhammad reached the spot within five minutes after hearing his alarm and the accused were running from the spot when the P.Ws. came. So both the eye-witnesses Shah Muhammad and Shan Muhammad according to the complainant's own stand had reached the spot when the accused had already fired at the deceased and fired ineffective shot on the complainant (P.W.2) and they were running from the spot but Shah Muhammad (P.W.3) made a different statement while claiming that he had witnessed the occurrence of firing by Saleem appellant at Sarja. According to P.W.3 they were at a distance of about two karams at the time of the occurrence and asked Muhammad Ashiq complainant to be firm as they (witnesses) were coming. P.W.3 further explained that Ashiq complainant had laid down in the khal when the accused fired at him while Sarja deceased had succumbed to the injuries at the spot. P.W.3 also stated that Sharif, Mansha and Saleem appellant continued firing at Ashiq and ran away. No such statement was made by Muhammad Ashiq (P.W.2) and such statement was also not made by Shan Muhammad (P.W.3) before the police. We have considered that if the three accused had repeatedly fired at the complainant although ineffectively, the Investigating Officer, who had come at the spot, as per prosecution case, immediately after the incident, must have found empties which were not available at the spot at the time of inspection by the I.O. As such both the eye-witnesses are not found trustworthy and reliable witnesses and their evidence does not inspire confidence to be relied upon for maintaining conviction in a case entailing capital sentence. 'Even otherwise, both the eye-witnesses were interested being inimical, but no independent piece of evidence is available on the record to corroborate their statements.
16. We are also not satisfied that the F.I.R. was recorded with promptitude as claimed by the prosecution. Allegedly the statement of the complainant under section 154, Cr.P.C. was recorded at 4-15 p.m. on 9-8-1999 but the post-mortem had been conducted on the next day i.e. 10-8-1999 at 10-15 a.m. The delay in the post-mortem of the deceased leads to draw an inference that the F.I.R. was not recorded with promptitude. It appears that the dead-body had not been sent for post-mortem examination immediately, otherwise the same would have been conducted on the same evening or night of 9-8-1999 or early in the morning of 10-9-1999. The possibility cannot be ruled out that the police papers were not ready for production before the doctor and the time was consumed to concoct the story and introduce the close relatives of the deceased as witnesses. Such an F.I.R. cannot be used as a corroborative piece of evidence.
17. The motive is not sufficient to connect the accused with the commission of the offence as the motive is always a double-edged weapon. If the accused had a motive to commit the specific offence, at the same time the same motive is also available to the complainant party to falsely implicate their opponents in the occurrence. In the present case the complainant party had also the motive to falsely implicate the appellant due to previous enmity. As such merely because of motive the appellant cannot be held responsible for the offence.
18. The recovery of carbine from the appellant Saleem was useless as the said recovery had been effected from the place which was not exclusively owned and possessed by the appellant. Even otherwise no empty had been recovered from the spot and the report of Forensic Science Laboratory is only to the effect that the weapon so recovered was in working condition which is not sufficient to hold that the said weapon had been used in the incident. Such recovery cannot be used as a corroborative piece of evidence to the ocular account, which in the present case has already been found by us untrustworthy and not confidence inspiring.
19. As a result of the above discussion we have no hesitation in holding that the prosecution had failed to prove the case against the appellant beyond any shadow of doubt. Hence Criminal Appeal No.334-J of 2001 filed by Muhammad Saleem appellant is accepted, the impugned judgment of conviction and sentence is set aside and he is acquitted of the charge of Qatl-i-Amd of Sarja deceased by extending him the benefit of doubt, who shall be set at liberty forthwith if not required in any other criminal case.
20. Murder Reference No.655 of 2001 is replied in the negative and the death sentence awarded by the learned trial Court to Muhammad Saleem convict-appellant is NOT confirmed.
H.B.T./M-264/L Appeal accepted.