MUHAMMAD AFZAL Versus State

MUHAMMAD FARRUKH MAHMUD, J.--- Muhammad Afzal? appellant along with Muhammad Bashir was tried by the learned Sessions Judge, Gujranwala, in case F.I.R. No.791 registered at Police Station Sadar Gujranwala on 16-10-1995 for offences under section 302/109, P.P.C. Vide judgment, dated 22-9-2000, the learned trial Court, while acquitting Muhammad Bashir, convicted the appellant for offence under section 302(b), P.P,C. and sentenced him to death plus payment of Rs.2,00,000 as compensation to the legal heirs of the deceased, in default whereof to undergo S.-I. for six months.

2. Muhammad Afzal has challenged his conviction and sentence by filing the instant appeal, while Muhammad Ishaq complainant, has brought Criminal Appeal No,147 of 2000 questioning the acquittal of Muhammad Bashir, co-accused/respondent. Murder Reference No.654 0l' 2000 seeking confirmation or otherwise of death sentence imposed upon the appellant/convict has also been placed before us. We propose to decide all these matters through this consolidated judgment.

3. The brief facts of the case per statement/complaint Exh.PG/2 recorded by Nazir Ahmad, S.-1./P.W,15, at the instance of Muhammad Ishaq, complainant/P.W, 11, arc that about 5/6 months prior to the occurrence, Afzal alias Meenu had stolen six sacks of wheat belonging to the complainant. However, as a result of decision of Panchayat, the father of Afzal paid the price of the stolen wheat, which annoyed Muhammad Afzal, who oftently used to come to their Dera and demanded Rs.50,000 and also used to extend threats of dire consequences. On 15-10-1996 at about 8.00 a.m., the appellant met the deceased and asked him to pay Rs.50,000 by 8.00 p.m, .otherwise he would do away with him. Khushi Muhammad father of the complainant on the previous day at about 6.00 p.m., after selling a buffalo for Rs.20,000 came to the house and after taking meals, the complainant along with his father and his friend Zulfiqar alias Bhutto went to their Dera and after some time slept. In the meanwhile, Muhammad Afzal alias Meenu/appellant armed with a rifle and dagger came there. The appellant awoke the complainant and his friend Zulfiqar and confined them on gun point in the cattle-shed and bolted the door from outside. Then he asked the father of the complainant to hand over Rs.20,000 the sale proceed of the buffalo, to him. The latter told him that he had neither taken the said amount with him at the Dera nor would he hand over the same to him, whereupon Muhammad Afzal fired at Khushi Muhammad, hitting him near the umbilicus on the right side. Then he gave two dagger blows hitting him on the right side of his umbilicus and on backside of his left scapula. The appellant threatened the complainant and his friend that in case they came out of the cattle-shed, they would also meet the same fate and if they tried to take any legal action against him, he would kill the whole of their families. On the next morning at about 6.00 a.m., Khushi Masih/P.W.6, who reached the Dcra of the deceased, was called out and the'`door was got opened from him. They saw that Khushi Muhammad had succumbed to the injuries. The complainant, while leaving Zulfigar alias Bhutto to guard the dead-body, himself proceeded to report the matter and on the way near village Pipliwala he came across Nazir Ahmad, S.-L, who recorded his statement Exh.PG/2.

4. On 16-10-1996 after recording the complaint Exh.PG and sending it to the police station for registration of the F.I.R. Nazir Ahmad, S.-I./P.W.15, went to the spot; prepared injury statement Exh.PH/1 and inquest report Exh.PK of Khushi Muhammad deceased and sent the dead-body to the mortuary for post-mortem examination. Then he collected blood-stained earth from the spot and scaled the same into parcel vide memo Exh.PH. He took the last-worn clothes of the deceased, i.e. Shalwar P-1 and shirt P-2 through memo Exh.PD. He got prepared site-plan Exh.PA and Exh.PA/1 of the place of occurrence. On 19-10-1996, the investigation was taken over by Riaz Ali, retired S.-I./P.W.10. He arrested Muhammad Bashir, acquitted accused. Muhammad Afzal/appellant, despite his best efforts could not be arrested and was got declared proclaimed offender (PO). On 27-1-1997, the appellant was arrested and on 30-1-1997, while in custody, he led to the recovery of 7-mm rifle P-3 which was taken into possession vide memo Exh.PE, attested by Muhammad Farooq/P.W8 and one Muhammad Riaz. On the same clay, the appellant led to the recovery of blood-stained dagger which was taken into possession vide memo Exh.PF, attested by the same witnesses. P. W.10 also recorded the statement of Zulfiqar alias Bhutto/P.W. on 3-3-1997. After completion of investigation, both the appellant as well as the acquitted accused were sent up to face trial. The ocular account was furnished by Muhammad Ishaq, complainant/P.W.11. In addition to that he also stated about the motive. However, Zulfiqar alias Butto, another eye-witness/P. W.12, did not support the prosecution case and was declared hostile and was cross-examined by the learned DDA. Khushi Masih/P.W.6 stated about the opening of the door or the cattle-shed and release of the complainant and his friend. Muhammad Farooq/P.W.8 attested the recovery of weapons at the instance of the appellant. Nazir Ahmad, S.-I./P. W.15 stated about the drafting of complaint, its dispatch to the police station for registration of the case and the investigation thereafter. Riaz Ali, S.-I./P.W.10, also partly investigated the case. On 16-10-1996 Dr. Shabbir Hussain/P.W.9 conducted post-mortem examination op the dead-body of the deceased, He, while observing three injuries, i.e. one stab wound, one fire-arm entry wound and one exit wound, on the person of the deceased, opined that cause of death was due to haemorrhage shock under injuries Nos. 1 to 3. According to him, injuries Nos. 2 and 3, which were caused by fire-arm weapon, were sufficient to cause death in the 'ordinary course of nature. The duration between injuries? and death was about 1/2 to one hour and the time which elapsed between death and post-mortem examination was about 6 to 12 hours. The rest of the evidence, being formal in nature need not he discussed.

5. In his statement recorded under section 342, Cr.P.C. the appellant pleaded his innocence and false implication by stating that in fact, it was a blind murder. On the following day of the occurrence in the morning the close relations of the deceased reached the Dera as usual and found Khushi Muhammad lying dead. While flying kites an altercation took place between himself and Al'zal, P.W., which prompted the latter to get him involved in this false case. However, neither the appellant appeared as his own witness as contemplated by section 340(2), Cr.P.C. nor did he produce any witness in his defence.

6. Learned counsel for the appellant submits that it was an unwitnessed; that the statement of the complainant was not supported by any other evidence; that the statement of the complainant was contradicted by the medical evidence and the circumstances of the case; that the appellant has been roped in this case due to existing enmity between the parties merely on suspicion; and that the prosecution case is not free from doubt.

7. Conversely, learned counsel for the complainant submits that P.W.11 Muhammad Ishaq was an independent witness who had no motive to falsely involve the appellant in this case; that his sole testimony was supported by the medical evidence and the evidence of recovery was corroborated by motive. Learned counsel appearing on behalf of the State have adopted the line of arguments of the learned counsel for the complainant and have supported the judgment passed by the learned trial Court.

8. We have heard the learned counsel for the parties and have also gone through the record of the case.

9. As per F.I.R. Muhammad Ishaq complainant, his friend Zulfiqar alias Bhutto and his father Khushi Muhammad deceased after having dinner went to the Dera and all the three slept there. After some time, Muhammad Afzal appellant who was armed with a rifle and a dagger reached there and on the strength of weapons confined the complainant and his friend Zulfiqar alias Bhutto in the cattle shed and the door was bolted from outside. The appellant demanded Rs.20,000 from the deceased who refused to pay the same and stated that the cash was not with him. Thereafter, the appellant fired with his rifle at the deceased, which hit near the umbilicus on the right side. After causing firing, the appellant gave two stab wounds to the deceased: one landed near the umbilicus, while the other at the back of his left scapula. At about 6.00 a.m., Khushi Masih who was servant of the deceased reached the Dera, opened the door and released the complainant and his friend. During trial Zulfiqar alias Bhutto appeared as P.W.12 and stated that murder of Khushi Muhammad was not committed in his presence. He was declared hostile and was cross-examined by the learned Public Prosecutor. So the A only independent witness, according to the complainant, was his friend Zulfiqar alias Bhutto who had slept in the Dera but he did not support the prosecution. It is also in evidence that the statement of Zulfiqar was not recorded by Nasir Ahmad, S.-I./P.W.15, who initially investigated the case, though he stated before the learned trial Court that he had recorded the statements of Zulfiqar and others on 17-10-1996. P.W.10 Riar. Ali/S.-I. brought on record that P. W.15 had not recorded any statement of Zulfiqar and it was he who recorded the statement or Zulfiqar on 3-3-1997 Muhammad Ishaq complainant made dishonest improvement during trial by not stating that he and his friend were forcibly confined in the cattle shed. He also stated that at the time of occurrence, electric bulb was on. He was duly confronted with his earlier statements. During cross-examination, he admitted that there was only one entrance of the cattle shed, which, according to site-plan, was on the northern side. Perusal of the site-plan Exh.PA reveals that the cot was shown on the eastern side. There was no opening or window towards the east, so the witnesses could see the occurrence while locked inside the cattle shed. They could not sec the occurrence even if the cot would have been on the northern side as the door had been bolted from the northern side. The site-plan does not reveal that except for the cot of the deceased, any other cot was nearby, which belies the statement of the complainant that he and his friend were sleeping at about ten feet from the deceased. The complainant admitted that his friend Muhammad Yousuf used to sell milk and used to leave the cattle shed at 7.00 a.m. In that case, in routine, he would be there much earlier than as he had to milk the animals, collect the milk and then leave. The complainant stated that after his release he did not go to the village to inform about the death of his father, rather he left the Dcra in order to report the matter to the police at about 6-45/7.00 a.m. The Fard Biyan was recorded at 9-00 a.m. at Pipliwala which was at a distance of 1-1/2 miles from the place of occurrence. The complainant, who was on foot, could easily cover the distance by 7.30 a.m. The delay remained unexplained.

10. The medical evidence belies the statements of complainant. It was stated in the F.I.R. that the deceased received two dagger blows and one fire-arm injury. The complainant stuck to his statement before the learned trial Court, while according to the doctor the deceased did receive three injuries but out of the three, one was caused by a sharp-edged weapon, while the second injury was caused by fire-arm weapon from a very close range on the chest 11 cm from right nipple and injury No.3 was an exit would of injury No.2 which was on the left back of chest. The complainant described this injury as a second stab caused by the appellant.

11. As far as motive is concerned, it is a double edged "word which cuts both ways. According to the complainant, the appellant felt aggrieved over the allegation of stealing of wheat and payment of amount by his father; hence, he used to demand money from the deceased and he issued threats to the deceased earlier on the date of occurrence. The complainant was also annoyed over the behaviour of the appellant for his issuing threats to his father and as such, the possibility that the appellant was roped in this case due to existing enmity cannot be ruled out, C especially when the occurrence was not witnessed by any one.

12. The dishonesty of Nazir Ahmad, S.-I./P.W.15, who investigated the case is apparent from the record of the case. In his examination in chief, he stated before the learned trial Court that he secured blood-stained earth from the spot. During cross-examination he stated that he prepared the rough site-plan which was not available on the file. He admitted that it was not mentioned in the case diary that the rough site-plan was also prepared. Subsequently, he modified his statement by stating that he mentioned this fact in paragraph No.4 of case diary No.1, dated 16-10-1996. He denied that in his inspection note, he mentioned that the blood-stained earth was secured from the field. His statement is contradicted by the documentary evidence, i.e. inspection note Exh.DB, available at page 89 of the Paper Book. The perusal of Exh.DB reveals that blood-stained earth was collected from a vacant field near the sugarcane crop. It was also mentioned in the inspection note that the place from where the blood-stained earth was collected was shown in the site-plan at Point No.1. A line was added in the inspection note that site-plan was prepared which was to be annexed with the file after the end of the investigation. This dishonest police officer in collusion with the complainant removed the rough site-plan from the record, as it belied the prosecution case that the dead-body was lying on a cot in the Dera and E blood-stained earth was collected from there. Subsequently, he got the site-plan Exh.PA prepared from the Patwari, wherein it was shown that the dead-body was recovered from Point `A' where the cot was lying. This dishonest police officer laid murder trap against an innocent person.

13. As far as evidence of recoveries is concerned, that is not worthy of any credence. P.W.10, who had arrested the appellant and effected the recoveries of rifle and dagger, admitted that he did not seal the rifle. No inhabitant of the locality was associated with the recovery proceedings. Muhammad Farooq P.W.8, who was admittedly not the resident of the locality, had reached the police station on the date the recovery was effected. Riaz Ali/P.W.10 and Farooq/P.W.8 have contradicted each other on the material point of time of recovery of weapons.

14. As regards the abscondence 'of the appellant, the mere' abscondence which was not proved to judicial satisfaction would not be enough to warrant conviction, as the factum of abscondence would be a corroboratory piece of evidence and not substantial evidence.

15. The upshot of the whole discussion is that the prosecution case is replete with doubts; hence, we allow this appeal and set aside the judgment passed by the learned trial Court. The appellant is acquitted of H all the charges. He would be released forthwith if not required in any other case. The death sentence is NOT confirmed. The Murder Reference is answered in the negative.

16. As far as Criminal Appeal No.147 of 2000 is concerned, the same stands abated as Muhammad Bashir/respondent has died. Even otherwise, the learned trial Court for cogent reasons acquitted Muhammad Bashir whose name was added by the complainant in his supplementary statement.

17. A copy of this judgment be sent to the Inspector-General of Police, Punjab, Lahore, who would get the matter inquired into in the light of the observations made in para 12 of the judgment against Nazir Ahmad, Sub-Inspector/P. W.15 and would take suitable action against the aforesaid SI within three months under intimation to the Deputy Registrar (Judicial) of this Court.

H.B.T./M-688/L ????????????????????????????????????????????????????????????????????????????????? Appeal allowed.