RAB NAWAZ Versus STATE

LEHRASAP KHAN, J. -The appellant Rab Nawaz alias Security aged 40 years, son of Sardar Ali caste Awan, resident of Kot Mahmood, Police Station, Sharaqpur, tehsil Ferozewala, was tried by the learned Additional Sessions Judge, Sheikhupura, under section 302, P. P. C. for causing the murder of Khurshid Alam on 4th January, 1978 at 1 .30 p. m. to the area of village Kot Mahmood, Police Station, Sharadpur, district Sheikhupura.

2. The learned trial fudge vide his judgment dated 16th December, 1979 convicted the appellant under section 302, Pakistan Penal Code and sentenced him to death and also to a fine of Rs. 5,000 or in default to one year R. I. It was directed that the fine, if recovered, would be paid to the legal heirs of the deceased.

3. The appellant has preferred this appeal against his conviction and sentence while the matter is also before us under section 374, Cr. P. C. for having been referred to for confirmation of the death sentence awarded to the appellant. The appeal as well as the murder reference shall be disposed of by this judgment.

4. The F. I. R. account of the prosecution version, briefly stated, is that on 4th January, 1978 at about 1.30 p. m. Mushtaq Ahmad, the first informant, (P. W. 10) and his brother Khurshid Alam deceased were coming back from Sikhanwala Distributory after watering their cattle to their land within the area of village Kot Mahmood. Khurshid Alan deceased was proceeding ahead of the animals while Mushtaq Ahmad was following the cattle. On their way to their land, Mushtaq Ahmad exchanged greetings with Imam Din (P. W. 11) who as also his son Munawar Ali (not produced) were cutting fodder (Shaftal) in their field. Imam Din accompanied Mushtaq Ahmad while talking with him. Khurshid Alam deceased had just crossed the culvert of the watercourse and proceeded by a few paces while Mushtaq Ahmad and Imam Din had reached near this culver that suddenly Rab Nawaz appellant emerged at the scene from the reeds while armed with a gun. He declared to the deceased and Mushtay Ahmad that they would not go alive as they had made his life miserable. While declaring so, he fired with his gun at Khurshid Alam deceased hitting him on his left hand. Munawar Ali son of Imam Din on hearing the report of the gunfire also came running to the scene of occurrence. Rah Nawaz appellant fired a second shot hitting the deceased on his chest. After receiving this second shot Khurshid Alam fell to the ground. Mushtaq Ahmad and his companions raised alarm whereupon Rab Nawaz appellant made good his escape alongwith his gun. The deceased in injured condition was taken to Sharaqpur hospital by Mushtaq Ahmad, Imam Din and Munawar Ali in a Rehra, but he succumbed to his injuries soon after his arrival in Sharaqpur hospital.

5. As regards motive, it is alleged that mother of Khurshid Alam deceased and Mushtaq Ahmad (P. W. 9) purchased agricultural land from Ayesha Bibi and Abid mother-in-law and brother-in-law respectively of the appellant. Mushtaq Ahmad had obtained possession of that land. The appellant asserted that the said land in fact belonged to his wife. He had also initiated proceedings as attorney of his wife before the Naib Tehsildar for correction of Girdawary entries. In the said proceedings the last date of hearing happened to be 2nd of January, 1978 and the next date of hearing in that case was fixed as 8th of January, 1978.

6. Mushtaq Ahmad deputed Imam Din and Munawar Ali to guard the dead body of Khurshid Alam deceased in the compound of Sharaqpur hospital while he himself proceeded to Sharaqpur Police Station where he lodged the F. I. R. Exh. P. F. on the same day at 310 p.m.

7. The F. I. R. was recorded by Fayyaz Mahmood (P. W. 12) the then S. I., S. H. O., Police Station, Sharaqpur. After recording the F, I. R., he went to Sharaqpur hospital where be prepared the Injury Statement Exh. P. G. and Inquest Report Exh. P. H. in respect of the dead body of the deceased whereafter he despatched the dead body to the mortuary at Sheikhupura for post-mortem examination. Then he went to the spot, procured the blood-stained earth and made the same into a sealed parcel vide memo Exh. P. B. He recorded the statements of the P. Ws. and inspected the spot. He got prepared the site plans Exh. P. C. and P. C./1. by Nazar Hussain Revenue Patwari (P. W. 7). He also recorded notes in red ink in the site plans.

8. P. W. 13 Bashir Hussain S. I. partly investigated the case. He arrested the appellant from Zamindara Hotel, Lahore on 21st January, 1978 and recovered licensed gun Exh. P. 7 and licence Exh. P. 8 from the posses sion of the appellant vide memo Exh. P. E. After completing the investiga tion, he submitted the challan.

9. Autopsy on the dead body of Khurshid Alam deceased was performed by Dr. Abdul Mujeeb, the then Medical Officer, D. H Q. Hospitz1, Sheikhupura, vide post-mortem report Exh. P. D. The said Medical Officer having gone abroad could not be examined at the trial and the post-mortem examination report was got formally proved by examining Muhammad Yasin (P. W. 8) Dispenser D. H. Q. Hospital, Sheikhupura, who claimed to be fully conversant with the handwriting and signatures of Dr. Abdul Mujeeb Khan as the witness served under Dr. Abdul Mujeeb Khan for 4 years. Following injuries were noticed by Dr. Abdul Mujeeb Khan on the body of the deceased at the time of post-mortem examination :-

(1) Eight fire-arm wounds on the upper part of sternum on the left side acid right side of chest 1" x 3/4" and 1/4" with slight burning and blackening, six of them entering into the chest cavity wound in an area of 5" x 4" with corresponding holes in the shirt, sweater and bunyan. Two pellets palpable on the right side of back 2" below the interior angle of right scapula, causing fracture of 4th, 5th (right) ribs anteriorly and 6th rib posteriority (right side). Pellets removed and sealed. One pellet was removed from left side of heart and chest cavity and two pellets from right side of chest cavity and two pieces of card-board.

(2) Fire-arm wound 3" x 1/3" on the back of proximal part of left hand, oblique in shape, at left angle. The left ring, middle and index finger hanging with small piece of skin.

(3) Multiple small fire-arm wound on the left side of neck (area 2 " x 2") and left side of face (area 2 " x 2"). In his opinion this injury was due to injury No. 2.

10. The Medical Officer opined that these injuries were ante-mortem. Injuries Nos. 1 and 2 were grievous while injury No. 1 was sufficient to cause death in the ordinary course of nature. He further opined that the time between injuries and death was immediate and between death and post-mortem examination was within 19 to 23 hours.

11. As already observed, Mushtaq Ahmad (P. W. 10) and Imam Din (P. W. 11) have been examined at the trial as eye-witnesses. Mushtaq Ahmad admittedly is the real brother of Khurshid Alam deceased while Imam Din did not admit his relationship with the deceased. Both these witnesses while furnishing ocular account of the occurrence- supported the version as narrated in the F. I. R. Exh. P. F. Mushtaq Ahmad, however, disclosed that the accused had fired the first shot at the deceased from a distance of 6 yards. The first fire had hit the deceased on the left hand on the back side. According to him, the second shot was fired by the accused at the deceased from distance of 4 yards. He stated that it was a single barrelled gun and the accused had re-loaded the gun after the first fire. Imam Din in this respect stated that the accused had fired the first shot from a distance of 12/14 Karams and be had fired the second shot from a distance of 10/2 Karams. According to him, the first shot had hit the deceased on the palm of his hand.

12. The medical evidence certainly does not furnish corroboration to the ocular evidence inasmuch as according to the medical evidence, injury on the chest of the deceased which is alleged to be the result of second shot, caused a wound measuring 1" x " x " with burning and blackening---A shot fired from a distance of 10/ f 2 Karams as stated by Imam Din (P. W. 11) or even from a distance of 4 yards as stated by Mushtaq Ahmad (P. W. 10) cannot cause burning and blackening. This can result only, if the victim is fired at within a point blank range.

13. The appellant of course did not plead guilty and his plea is that of complete denial. He claimed that he was arrested by the Police from his house and the gun recovered from him was his licensed gun. He alleged that 4 Acres of agricultural land belonging to his wife was wrongfully got mutated by Mushtaq Ahmad (P. W. 10) in the name of his mother Mst. Wazir Begum in collusion with Nazir Hussain Patwari (P. W. 7). The land factually happened to be in possession of his wife. The appellant submitted an application as attorney of his wife for correction of Khasra Girdawary entries. The Naib-Tehsildar recorded findings in his favour. The file was got removed from the office of A. C. Ferozewala, by Mushtaq Ahmad and Nazir Hussin aforesaid. The wife of the appellant submitted application in this behalf to the Collector. The enquiry about the missing file was pending. The complainant wanted to remove the appellant from the scene and, therefore, he got him falsely involved in the murder case. The appellant, however, did not examine any witness in his defence, but produced in his defence Exh. D. C., a copy of application submitted by his wife Abida about the loss of file, Exh. D. D.; copy of F.

1. R. No. 36 dated 24th March, 1969 under section 307/435/332/353/148/149, P. P. C. of Police Station, Sharaqpur registered against the deceased and Noor Ahmad P. W. and Exh. D. E. copy of entries maintained by Head Panjsal Nawees indicating closure of Sikhanwali Distributory in the month of January, 1978 as being a non perennial canal.

14. It is contended on behalf of the appellant that Mushtaq Ahmad and Imam Din, the only eye-witnesses examined at the trial against the appellant, deserved little credence on account of being relatives of the deceased. The learned counsel for the complainant and also that of the State, however, maintained that Mushtaq Ahmad (P. W. 10) happened to be the brother of the deceased but Iman Din was an unconnected witness. Merely because a witness has no enmity and appears to be independent does not necessarily mean that what he states is not untrue. Certainly the absence of malice is a factor which assumes importance in assessing the credit of a witness and places him in a favourable position but it is not the sole criterion by all means. The truth or falsity of the statement of witness largely depends upon the circumstances which provide the guideline. To accept the evidence, without considering the circumstances would be totally inconsistent with the safe dispensation of justice. The scrutiny of the evidence, in the light of the allied circumstances, only makes it possible to say that the evidence is immune from all taints and is worthy of belief. In Bashir Ahmad v. Muhammad Azam and another (P L D1969 S C 469) it has been ruled by the Supreme Court of Pakistan that the fact that the witnesses were not relation witnesses does not in all circumstances mean that they are witnesses of truth. Ultimately, the acid test of the veracity of witness is the inherent merit of his own statement.

15. As already observed, the ocular account of the prosecution version furnished by Mushtaq Ahmad and Imam Din P. Ws. does not find support from medical evidence.

16. Both these P. Ws stated that at the time of occurrence, the appellant had emerged at the scene from reeds where he was hiding himself. No such reeds have been shown in the site plans Exh. P.C. and P.C./1 pre pared by P. W. 7 Nazir Hussain Patwari on the pointation of these P. Ws.

17. According to the prosecution case, the appellant caused death of Khurshid Alam deceased with gun Exh. P. 7, a single barrelled gun P. W. 10 Mushtaq Ahmad, the brother of the deceased, has categorically stated that the accused had re-loaded the gun after the first fire. He however, admitted that the Police had not recovered any empty from the spot.

18. P. W. 12 Fayyaz Mahmood S I, the Investigating Officer, also admitted that no crime empty was recovered from the spot. In the site plans Exh. P C and P C/1 the place from where the appellant fired the gun shots at the deceased has not been shown. Nazir Hussain Parwari (P. W. 7) admitted that he had not indicated the point from where the shots were fired at the deceased as the same was not pointed out to him. He also admitted of having not shown any Sarkanda (reeds) or any other hiding place from where the accused allegedly emerged at the time of occurrence.

19. We have also noticed that according to the entries of post-mortem report Exh. P. D. dead body of Khurshid Alam deceased was taken to the mortuary on 5th January, 1978 at 7.00 a. m. The autopsy was conducted on the same day at 9.30 a. m. The death according to prosecution's case occurred on 4th January 1978 at 1.30 p., m. and the matter was reported at the Police Station on the same day at 3.10 p. m. The Investigating Officer soon after recording the F. I. R. proceeded to Sharaqpur hospital where the dead body was lying and prepared the Injury Statement and Inquest Report. It is surprising as to why the dead body was taken to the mortuary at Sheikhupura on the next day and under what circumstances, the post-mortem was inordinately delayed by more than 20 hours after the death. Such an unexplained delay in the performance of post-mortem examination certainly casts doubts about the correctness of the prosecution version.

20. We have noticed yet another shortcoming in the prosecution case. Muhammad Aslam F C (P W 1) who escorted the dead body of the deceased to the mortuary has stated that the dead body of the deceased was taken from the place of occurrence to the mortuary at Sheikhupura. Fayyaz Mahmood, S. 1. (P. W. 12) in his examination-in chief disclosed that after recording the F. I. R. he went to,, the spot and prepared Injury Statement Exh. P. G. and Inquest Report Exh. P. H. in respect of the dead body of Khurshid Alam deceased but in his cross-examination he has stated that dead body was taken to the mortuary from Hospital and not from the spot.

21. The statement of Mushtaq Ahmad (P. W. 10) the brother of the deceased and Imam Din (P. W. 11) who is seemingly an uncon nected person when seen and scrutinized in the light of above circum stances, we find that their testimonies are not free from all taints are unfortunately unworthy of belief.

22. In view of the foregoing shortcomings noticed in the prosecution case, we are of the view that the findings of the learned trial Judge to the effect that the guilt has been brought home to the appellant beyond any reasonable doubt cannot be upheld. We, there fore, extending the benefit of doubt to the appellant allow his appeal, set aside his conviction and sentence and acquit him. He shall be released forthwith, if not required to be detained in any other case.

23. The death sentence is thus not confirmed.

Appeal allowed.