MUHAMMAD ASIF Versus State

ORDER

MUHAMMAD FARRUKH MAHMUD, J --- Muhammad Asif appellant, aged, 18/19 years was booked in case F.I.R. No.86, dated 27-3-1996 (Exh.P.A./1) under sections 302/109, P.P.C. of Police Station City Jhang at the instance of Javed Iqbal Zafar (P.W.7) whose statement (Exh.P.A.) was recorded by Abid Ghani, S.-I./S.H.O. (P.W.10) at 11-30 a.m. at Bab-e-Umar where P.W.7 met him while he was going to the police station.

2. The appellant was convicted by the learned trial Court for offence under section 302(b), P.P.C. and sentenced to death vide judgment, dated 13-11-1997 which on appeal (Criminal Appeal 54-J of 1997) was affirmed by the learned Division Bench of the Lahore High Court, Lahore answering the Murder Reference (M.R.No.305 of 1997) in the affirmative vide judgment, dated 6-2-2002.

3. Against which the appellant preferred jail Petition for Leave to Appeal No.51 of 2005 which was granted on 17-6-2005 hence the captioned appeal. The leave granting order was as under:---

"Leave to appeal is granted, inter alia, to re-evaluate evidence produced by the prosecution in the interest of justice."

4. Briefly, according to the prosecution story Javed Iqbal Zafar, first informant P.W.7 was an employee of Insurance Company while his brother Mazhar Hussain deceased used to ply Riksha. At about 9-30 a.m. on 27-3-1996 P.W.7 was sitting in his office along with his cousin Ghulam Yasin (not produced). Safdar Ali (not produced) and Muhammad Bakhsh P.W.8 reached there and informed him that a short while ago they were sitting at a tea stall near Ayub Chowk where Muhammad Shafi son of Labu Khan and Asif-appellant were also present and were talking with each other in low tones. Muhammad Shafi instigated Asif-appellant that he should murder Mazhar Hussain and take revenge of his insult as two days earlier an altercation took place between Mazhar Hussain-deceased and Muhammad Shafi and Asif. Thereafter complainant and other P.Ws. left on motorcycle to inform Mazhar Hussain. They reached Ayub Chowk and were informed by a Riksha driver that Mazhar Hussain had taken a passenger in his Riksha towards Basti Gogaywali. The P.W. proceeded towards the Basti and spotted the Riksha on a Katcha road. Riksha stopped at a short distance ahead of Bhatta of Malik Abdullah. Mazhar Hussain deceased and Asif-appellant alighted from the Riksha. Within the view of P.Ws., Asif fired twice with his pistol which hit on the left side of the face of Mazhar Hussain who fell down. The P.Ws. tried to apprehended Asif who made good his escape while firing in the air. Mazhar Hussain was put on a cot but he lost his life before he could be taken to the hospital.

5. The motive behind the occurrence was that two days earlier to the occurrence, an altercation took place between Muhammad Shafi and Asif-accused and Mazhar Hussain deceased as the deceased refused to carry a lady passenger. Though the matter was patched-up between the parties but the accused kept the grudge in their heart. The prosecution produced Javed Iqbal P.W.7 and Muhammad Bakhsh P.W.8 in support of its story. Javed Iqbal P.W.7 also stated about the motive. Their statements before the Court are in accordance with the story given in the F.I.R. and need not be reproduced.

6. Dr. Atiq Ahmad appeared as P.W.9 and stated that on 27-3-1996 at 4-50 p.m. he conducted post-mortem examination on the dead body of Mazhar Hussain deceased. He found following injuries on the person of the deceased:---

"(1) A fire-arm wound of entrance with inverted margin 1.3 c.m. x 1.3 c.m. on left cheek, 1.5 c.m. lateral to left angle of mouth.

(2) A fire-arm wound of entrance with inverted margins 0.9 c.m. x 0.9 c.m. on left cheek, 1.2 c.m. above injury No.1. There was tattooing of skin in an area 10 c.m. x 8 c.m. on left cheek and left side of neck upper part.

On examination of scalp, skull and vertebrae, there was fracture of left side of mandible.

There was fracture of left upper two teeth (molar and pre molar)

There was fracture of hyoid bone.

On examination of embranees it was found intact and healthy spinal card was not opened.

On examination of thorax perforation at the right wall side of the pharynx. A metallic body (de shaped bullet) was removed, sealed and handed over to police from right side of the neck. Ear was empty, left facial artery was perforated right external carotid was perforated other/visceras were intact and healthy."

7. In his opinion it was caused by haemorrhage and shock and injuries Nos.1 and 2 both were anti-mortem and caused by fire-arm. Injuries Nos. 1 and 2 were sufficient to cause the death in ordinary course of nature.

8. He further opined that the deceased lost his life within a few minutes of receipt of injuries while the post-mortem was conducted within 6 or 7 hours after the death. During cross-examination he stated that he started post-mortem examination immediately after the receipt of dead body. He also explained that the tattooing was possible from a distance of less than one yard.

9. Abid Ghani, S.-I. P.W.10 stated that Javed Iqbal complainant met him on the fateful day at 11-30 a.m. when he and other police officials were present at Bab-e-Umar Jhang city in lieu of patrol duty. After recording statement of Javed Iqbal, P.W.10 proceeded to the spot and conducted the initial investigation. He also sent the dead body to the hospital for post-mortem examination. He secured blood-stained earth from the spot and also took into possession the Riksha P.6 from the spot. On 20-5-1996 he arrested the appellant and recovered pistol P.4 and 3 live cartridges from his possession vide memo. Exh.P.E. During cross-examination, he conceded that Ayub Chowk was big Chowk from where different roads started for different cities and that traffic police remained present during the daytime. He further stated that the Abadi was at some distance from the place of occurrence, on questioning he explained that there were different houses at distance of half or one furlong from the place of occurrence and Basti Gogaywala was at the distance of about one and a half or two furlongs from the place of occurrence.

10. After completion of prosecution case, statement of Asif appellant was recorded under section 342, Cr.P.C. He denied all the allegations levelled against him and claimed to be innocent. The appellant did not appear as a witness in his defence under section 340(2), Cr.P.C. and also did not produce any defence evidence.

11. The learned counsel appearing on behalf of the appellant has submitted that P.Ws. were chance witnesses and were not present at the time of occurrence, that it was an un-witnessed occurrence and the complainant came to know about the murder of his brother after 4 p.m. and thereafter the story was cooked-up, that the statements of chance witnesses were not corroborated by reliable independent evidence while on the other side it has been argued that it was a day light occurrence, the appellant was known to the P.Ws. and that the P.Ws. had no personal enmity against the appellant and that the statements of P. Ws. were corroborated by the evidence of recovery of pistol and medical evidence.

12. Arguments have been heard and record has been perused.

13. Un-deniably, the occurrence took place near Basti Gogaywala which was quite at a distance from the office of the complainant. Ordinarily, there was no occasion for him to be present at the scene of occurrence. The sole reason for his proceeding to the scene of occurrence was the information furnished to him by Muhammad Bakhsh P.W.8 and Safdar Ali. Out of the two Safdar Ali was not produced. Muhammad Bakhsh admitted during cross-examination that he earned his living as carpenter and mason and usually left for his job at 8-00 a.m. but per chance he did not leave for his job on the fateful day and met Safdar Ali at Ayub Chowk. It was also a chance that he and Sardar went to the hotel where Shafi accused, who was not tried, and appellant were sitting and talking about the murder. In one breath, Muhammad Bakhsh stated that Shafi was not known to him and in the second breath, he stated that Shafi was known to him as a famous person of Jhang city previously. He admitted that there was a Chowk in front of the hotel where the police was normally present, he could not find out any reason as to why he did not inform the police about the conspiracy. It may be mentioned here that Shafi accused was never sent up to face trial and no complaint was filed against him, so the story of abetment falls on the ground. P.W.7 stated before the Court that after receiving the information from Sardar Shah and Muhammad Bakhsh, he and other P.Ws. went to Ayub Chowk and inquired about Mazhar deceased. One Riksha driver, who was not named, informed the P.Ws. that the deceased had taken a passenger in his Riksha and proceeded towards Gogaywali Basti. It is not in the evidence that the Riksha driver had informed the P.Ws. the name of the passenger hence there was no occasion to sense any danger and follow the Riksha. The statement of Zafar Iqbal was recorded at Bab-e-Umar at about 11-30 a.m. by Abid Ghani S.H.O. who was per chance present there. The matter was not reported at the police station which according to F.I.R. and inquest report, was at a distance of one and a half kilometer from the place of occurrence. P.Ws. were on motorcycle and the matter could be reported to the police within five minutes yet there is a delay of about two hours which has not been explained. Similarly P.W.7 stated during cross-examination that the police reached the spot at twelve noon and about half an hour was consumed in conducting inquest proceedings and thereafter the dead body was sent to the hospital. He further stated that he accompanied the dead body which was taken in a wagon to the hospital and that it took only 15 or 20 minutes in reaching the hospital. In that case the dead body would have been received at the hospital by 1-00 p.m. On the contrary, the doctor, who is an independent witness, stated that he immediately started post mortem examination after the receipt of body and the time of post-mortem given by him was 4-50 p.m. that means that the body remained at the spot for quite some time. The F.I.Rs. which are not recorded at the police station suffer from the inherent presumption that the same were recorded after due deliberations. The above noted circumstances reveal that the P.Ws. failed to explain their presence near the place of occurrence in a satisfactory manner. It is also noteworthy that the appellant could easily take the life of deceased without getting him and the deceased out of the Riksha. The statements of P.W.7 and P.W.8 are neither trustworthy nor confidence inspiring. It was observed by this Court in the case of Zafar Hayat v. The State 1995 SCMR 896 as follows:---

"We have observed that P.W.8 is a chance witness and the explanation offered by him is not at all convincing P.W.7 as discussed above could not be believed without any strong corroborated evidence."

14. As far as medical evidence is concerned, it supports the prosecution case to the extent that the deceased lost his life due to fire-arm injuries but not beyond.

15. Coming to motive, no independent witness was produced in whose presence the altercation had taken place between Shafi and appellant at one side and Mazhar Hussain deceased on the other side. Furthermore Shafi was never sent-up to face trial and no complaint was filed against him. It appears that motive was created after the occurrence.

16. A .30 bore pistol and 3 live cartridge were shown to have been recovered from the possession of the accused at the time of his arrest on 20-5-1996 but the evidence of recovery of pistol is of no consequence and cannot be used against the appellant for following reasons:---

(1) No empty was recovered from the spot.

(2) That the recovered pistol was never sent to any expert to ascertain whether it was in working order or not.

(3) The recovery of pistol was shown to have been effected on 20-5-1996 after about seven weeks of the occurrence and not immediately after.

(4) That the recovery memo. reveals that the same was signed by two subordinate police officers and no independent witness was associated.

17. The upshot of whole discussion is that it was highly doubtful that P. W.7 and P.W.8 were present at the time of occurrence. They failed to explain their presence in a satisfactory manner. Their statements are not corroborated by any confidence inspiring independent evidence. It appears that the appellant was roped in the case due to suspicion, however, it is settled law that the suspicious however strong it may be, cannot take the shape of proof.

18. The learned Courts failed to appreciate the above noted circumstances of the case. For all what has been said above, we are inclined to allow this appeal. The conviction and sentences recorded by the learned Courts below are set aside. The appellant is acquitted of all the charges and would be released forthwith if not required in any other criminal case.

M.B.A./M-15/SC Appeal allowed.