State Versus QAMAR-UZ-ZAMNAN
IJAZ AHMAD CHAUDHRY, J.--- We, through this consolidated judgment, intend to dispose of Murder Reference No.604 of 2001 sent by the learned Trial Court seeking confirmation of death sentence awarded to Qamar-uz-Zaman convict-accused and Criminal Appeal No.384-J of 2001 filed by Qamar-uz-Zaman appellant together as both these matters have arisen from the same judgment, dated 12-9-2001, delivered by the Additional Sessions Judge, Faisalabad whereby Qamar-uz-Zaman accused-appellant has been convicted under section 302(b), P.P.C. and sentenced to death as Tazir for committing Qatal-e-Amd of Eido Pervaiz deceased. Qamar-uz-Zaman accused-appellant was also directed to pay Rs.50,000 to the heirs of the deceased by way of compensation under section 544-A, Cr.P.C. or in default of payment thereof to further undergo six months' S.-I.
2. Concisely the facts of the prosecution case set up in the F.I.R. (Exh. PD/1) got lodged by Muhammad Sharif complainant (P.W.3) are that on 28-11-1999 at about 4-00 p.m. Eido Pervaiz deceased along with is brother Muhammad Jamshed (C.W.1) was seeing the T.V. in the house of Attiq-ur-Rehman where Mst. Misbah and Mst. Anjum two sisters of Qamar-uz-Zaman accused-appellant were also present. The complainant reached home to have his meal while Amanat Ali son of Meraj Din and Maqsood-ul-Hassan son of Jamal Din were also present there, in the street when the complainant reached in front of the Baithak of Attiq-ur-Rehman, he heard the sound of fire shot as well as shrieks of the deceased whereupon he along with Amanat Ali (P.W.4) and Maqsood-ul-Hassan (nor produced) rushed to the Baithak and found Qamar-uz-Zaman accused-appellant armed with .30 bore pistol who had murdered Eido Pervaiz by making fire and also threatened the P.Ws. not to intervene otherwise, he would also kill them. The P.Ws. did not go near while Qamar-uz-Zaman accused-appellant fled away from the spot. The complainant and P.Ws shifted the deceased to Allied Hospital where he succumbed to the injuries.
3. The motive behind the occurrence was alleged to be that the accused-appellant had suspicion that the deceased used to deliver the Ruqas (love letters) of his sister Mst. Anjum Akhtar to her paramour. Leaving the dead-body of the deceased under the guard of Amanat Ali (P.W.4) and Maqsood-ul-Hassan (not produced), the complainant proceeded to report the matter to the police but.he met Ghulam Hassan, (P.W.10) at Zafar Chowk and made statement (Exh. P.D.) before him in respect of the present incident at 5.30 p.m. on 28-11-1999, on the basis of which formal F.I.R. No. 957 (Exh.PD/1) was subsequently drafted by Muhammad Abad District Faisalabad the same day at 5.45 p.m. for offence under section 302, P.P.C.
4. The investigation of this case was conducted by Ghulam Hussain. S.-I. (P.W.10), and during the investigation, the dead-body of the deceased was inspected, injury statement and inquest report were prepared statements of the witnesses under section 161, Cr.P.C. were recorded, the place of occurrence was inspected, blood-stained earth was secured, rough site-plan of the place of occurrence was prepared, the dead-body of the deceased was sent to the mortuary for autopsy, the last-worn clothes of the deceased were received, a formal site-plan of the place of occurrence was got prepared, the appellant was arrested on 12-12-1999; recovery of weapon from the appellants possession was effected and after completion of the investigation report under section 173, Cr.P.C. was submitted in the Court.
5. The learned Trial Court after supplying copies of the documents required under section 265-C, Cr.P.C. to the appellant framed the charge against him to which he pleaded not guilty and claimed to be tried.
6. The prosecution in order to prove the guilt of the appellant produced as many as ten witnesses. The ocular account of the incident in question was furnished by Muhammad' Sharif complainant (P.W.3) and Amanat Ali (P.W.4) who also deposed about the motive while the medical evidence was provided through the statement of Dr. Ghulam Mustafa (P.W.2). The investigation of this case was conducted by Ghulam Hassan, S.-I. (P.W.10) who had stated about the various steps taken by him during the investigation of this case. Jamshed aged about 10 years, another son of the complainant appeared as C. W.1 who claimed that within his view the appellant had fired hitting his brother Eidu Pervaiz. The other witnesses are of formal nature.
7. In his statement recorded under section 342, Cr.P.C. the appellant had denied the allegations levelled against him by the prosecution and professed his innocence. However, to a question that "Why this case against you and why the P.Ws. deposed against you?, Qamar-uz-Zaman appellant replied in the following terms:
"The case is false. The P.Ws. are inter se related to each other and deposed falsely against me."
And to a question that "have you anything else to say?" the following stand was taken:--
"I am innocent, that actually it was an accidental case in which the police in connivance with the complainant party turned it into an intentional murder."
However he had not opted to make statement under section 340(2), Cr.P.C. nor he had produced any evidence in his defence.
8. The learned Trial Court, after hearing the arguments of the learned counsel for the parties, had passed the impugned judgment of conviction and sentence against the appellant as detailed in para. 1 ante. Hence, both these matters before this Court.
9. The learned counsel for the appellant contends that there was no eye-witness in the present occurrence produced by the prosecution and it was a case of no evidence; that the prosecution had miserably failed to prove the case against the appellant beyond any shadow of doubt; the evidence of C. W.1 is not worthy of reliance as he was a tutored witness while the complainant P.W.3 and Amanat Ali P.W.4 were only chance witnesses, who failed to furnish any reason for having been attracted to the spot immediately of the occurrence, that motive was not proved; that no empty was recovered from the spot and as such the recovery was useless, hence, the appeal may be accepted and the appellant may be acquitted of the charge.
10. On the contrary, the learned counsel for the State have vehemently opposed the appeal on the ground that heinous offence had been committed by the appellant; that the appellant was found in possession of pistol when the complainant and other eye-witnesses entered in the room immediately after hearing the sound of firing; that Jamshed who had appeared as C.W. had narrated the whole story and his statement cannot be discarded and that the prosecution had succeeded in, proving the case against the appellant beyond any shadow of doubt, whose appeal may be dismissed.
11. We have heard the learned counsel for the parties and perused the record with due care and caution.
12. The occurrence in the present case had taken place on 28-11-1999 at 4 p.m. in the `Baithak' of the house of Attiq-ur-Rehman within the area of Zafar Hotel Chowk, situated 2 k.ms. away towards south from Police Station Ghulam Muhammad Abad District Faisalabad and the matter was reported by Muhammad Sharif complainant (P.W.3) father of the deceased while making his statement (Exh.PD) before Ghulam Hassan, S.-I., Incharge Chowki Raza Abad (P.W.10) the same evening at 5-30 p.m., on the basis of which formal F.I.R. (Exh.PD/1) was subsequently drafted by Muhammad Aslam, A.S.-I. (P.W.5) at 5.45 p.m. under section 302, P.P.C.
13. In the F.I.R. it was specifically stated by Muhammad Sharif complainant (P.W.3) that he heard sound of firing coming from the `Baithak' of Attiq-ur-Rehman and he also heard shrieks whereupon he along with Amanat Ali (P.W.4) and Maqsood-ul-Hassan went inside the said `Baithak' and saw that the appellant was holding pistol in his hand who had already murdered his son Eidu Pervaiz deceased. Then the appellant also threatened him with dire consequence that if anybody came near he would not be spared and succeeded in running away from the spot.
14. To prove his story, the prosecution had produced Muhammad Sharif complainant (P.W.3) father of the deceased and Amanat Ali (P.W.). Both the them had supported the story of seeing the appellant while armed with pistol after the alleged occurrence. So both these witnesses were not the eye-witnesses and they had not seen the appellant while firing at the deceased. Muhammad Sharif complainant (P.W.3) father of the deceased during the cross-examination admitted that he was working at powerlooms and his duty hours were 7-00 a.m. to 6-00 p.m. Similarly, Amanat Ali (P.W.4) was also working at a place which was in the Sana Park though during the cross-examination he had tried to show that there was no specific working hours but he used to go on different times and the work was being done there on contract and the contractor used to work there. However, it is established that he was also a chance witness. Both P.Ws. 3 and 4 failed to give any plausible explanation for their being attracted to the spot immediately after the occurrence at the time on which they could normally not be present there. Even otherwise we are not satisfied that the F.I.R. had been recorded at the given time i.e. 5.45 p.m. the same day of the occurrence as according to the version of the P.Ws. till that time the dead-body was already in the hospital and the Investigating Officer also inspected the dead-body and completed other formalities while present in the hospital, but it is strange the post-mortem examination had been conducted on the next day and the probable time between the death and the post-mortem examination was reported to be within 24 hours. The delay in conducting the post-mortem examination leads to draw an inference that the F.I.R. was not recorded with promptitude and the time was consumed in concocting the prosecution story. A serious doubt has been created in the prosecution version and we are not inclined to accept the version of P.Ws. 3 and 4 about seeing of the appellant armed with pistol while fleeing from the spot immediately after the occurrence. Moreover, the F.I.R. cannot be used as corroborative piece of evidence to the ocular account.
15. It is significant to note that when the prosecution had closed his evidence, an application was moved to produce Jamshed as a Court witness. The said application was accepted by the learned Trial Court and Jamshed appeared as C.W.1, who stated that he was also watching T.V. when the appellant had fired at his brother Eido Pervaiz with pistol. No doubt, C.W. was a child witness and conviction could be recorded on his sole statement, but in the present case we have found many reasons for discarding his evidence. He had made improvements in his statement on material points. He was duly confronted with his previous statement. It is strange that according to C.W. he had witnessed the occurrence and was present at the spot when his father and the other P.Ws. reached there, but the factum of presence at the spot was never disclosed by Amanat Ali (P.W.4) in this examination-in-chief. During the cross-examination C.W. stated that "The statement which I have made today, I had remembered that statement today." The reply of the witness was also reproduced in verbatim, which is in the following terms:--
In such circumstances, C.W. 1 was a tutored witness and it is not safe to rely upon this statement for maintaining the conviction against the appellant in a case entailing capital sentence.
16. Motive in the present case could also not be established as neither the name of the person to whom Mst. Anjum sister of the appellant was sending love letters had been disclosed by the witnesses nor any letter had been produced during the investigating and no person had been shown in the investigation by the Investigating Officer in this connection. Moreover, the same motive was also available to the appellant against his sister, who allegedly was sending letters through the deceased, but there is nothing in the prosecution evidence that what had happened with her. As such it can be inferred that a false motive was set up by the prosecution to make it a case of intentional murder.
17. The recovery of pistol from the appellant's possession is also doubtful as the appellant according to the eye-witnesses while raising pistol had succeeded in running away from the spot but subsequently pistol was known to have been recovered from the room of the house where the occurrence had taken place. When the appellant had been seen by the eye-witnesses while running away from the spot with the pistol, it was not possible for him to bring back pistol and keep it in the same house. The occurrence had taken place near the house of the complainant as well as other witnesses and the appellant was nominated accused. It cannot be expected that the appellant would have visited the same house again only for keeping the weapon in the safe custody for subsequently getting it recovered during the investigation to create a piece of evidence against him. The recovery of the pistol from the same house where the occurrence had taken place on the one hand has contradicted the version of the P.Ws. that they had seen the appellant armed with pistol while fleeing from the spot immediately after the occurrence and on the other it clearly suggest that the occurrence had not taken place in the manner narrated by the P.Ws. 3 and 4 and C.W. Even otherwise no empty was recovered from the spot, which could match with the said pistol. In such circumstances the recovery of pistol from the appellant was legally inconsequential and it cannot be used as a corroborative piece of evidence to the ocular account, which has already been found by us shaky and not confidence-inspiring.
18. It is settled law that the prosecution is bound to prove its case beyond any shadow of doubt and the lapses on the part of the defence cannot be taken into consideration to fill up the lacunas in the prosecution evidence. In the present case, the prosecution had not stood on its legs and resultantly we have no option except to accept the version of the appellant that it was a case of accidental fire and he had been falsely implicated. He had not stated the details of accidental firing. He had also not stated that pistol was in his hand when it accidentally went off and hit the deceased. Even if the statement of the appellant made under the section 342, Cr.P.C. is accepted in toto he cannot be blamed for occurrence in any manner. The appellant had no motive to commit the murder of a young boy of 13/14 years. Both the parties were on visiting terms with each other. Even according to the prosecution version, the sons of the complainant and other children used to watch T.V. with the sisters of the appellant in the latter's house and there was no apprehension for committing murder of the deceased. It also clearly suggests there was no previous ill-will or enmity between the parties for committing such a heinous crime. The appellant was also a boy of tender age as in the statement made under section 342, Cr.P.C. the appellant got recorded him 20 years of age on 10-9-2001 while the occurrence had taken place about two years earlier on 28-11-1999. It was the duty of the prosecution to produce evidence of unimpeachable character to connect the appellant with the commission of the crime, which is lacking in the present case.
19. In view of above discussion we have no hesitation in holding that the prosecution had not been able to bring home guilt to the appellant beyond any shadow of doubt. Hence, Criminal Appeal No.382-J of 2001 is hereby accepted, the impugned conviction and sentence recorded by the learned Trial Court against the appellant is set aside and the appellant is acquitted of the charge of Qatl-I-amd of Eidu Pervaiz by extending him the benefit of doubt, who shall be released from jail, if not required in any other criminal case.
20. Consequently, the death sentence awarded to Qamar-uz-Zaman is not confirmed and Murder Reference No.604 of 2001 is replied in the negative.
H.B.T./S-179/L Appeal allowed.