MUHAMMAD ASLAM Versus THE STATE M.B. Zaman , Shah Nawaz Khan for the State.,Ijaz Hussain Batalvi

MUHAMMAD RAFIQ TARAR, J. ‑‑Muhammad Aslam (25) and his father Ghulam Jilaiii (80/85), cultivators, residents of Gunjial Town were tried by the learned Additional Sessions Judge, Khushab, on the allegation that on 16‑2‑1981 at 3‑00 p.m. they committed the murder of Muhammad Afzal deceased and made murderous assault on Sarfraz P.W. By judgment dated 25‑1‑1983 Ghulam Jilani accused was acquitted on benefit of doubt while Muhammad Aslam accused was convicted under section 302, P.P.C . and sentenced to death, subject to confirmation by this Court The convict has appealed. The case is also before us on reference for confirmation of his death sentence. Muhammad Hayat complainant has filed Criminal Revision No.774 of 1983 praying for a direction to the convict to pay compensation under section 544, Cr.P.C. All these matters shall be disposed of by this judgment.

2. The brief facts of the prosecution case, as narrated by the complainant at the trial, are that Muhammad Afzal deceased was first married with Mst. Hayat Bibi, daughter of acquitted accused Ghulam Jilani and sister of the appellant. he had no issue from tier. About two years prior to the occurrence, he deserted her and later on contracted second marriage with Mst. Lai Bibi, daughter of Ghulam Haider P.W., who gave birth to a child about five months after the occurrence. The appellant was annoyed with the deceased due to the desertion of his sister.

On 16‑2‑1981 at about 3 p.m. the complainant, the deceased, Naseer Ahmad and Sarfraz PWs. were present in front of the shop of Muhammad Inayat near Chowk Ghalla Mandi, Quaidabad for making some purchases. Acquitted accused Ghulam Jilani and Muhammad Aslam appellant also came there. Ghulara Jilani exhorted the appellant to take revenge of his sister's desertion, on which tie took out a carbine. On seeing this, the deceased tried to run away, but the appellant fired at him hitting the right side of his back. Sarfraz P.W. was standing near the deceased. He was also hit by a pellet. On receiving the fire, the deceased fell down. The P.Ws. tried to apprehend the appellant, but he threatened them with death, and then both the accused fled away from the spot. The P.Ws. took Afzal deceased in an injured condition to Quaidabad Hospital, but on reaching there they found that he had already expired. Leaving Naseer Ahmad and Sarfraz P.Ws. with the dead body, Muhammad Hayat complainant went to Police Station and reported the occurrence to Tariq Ijaz Qureshi S.H.O., at 3‑30 p.m. vide Ex.PH.

3. After recording the F.I.R., the S.H.U. reached Civil Hospital, Quaidabad. He prepared injury statement Ex.PJ/1 of Sarfraz P.W. tie also prepared injury statement Ex.PL and inquest report Ex.PK of the dead body and sent it to the mortuary for post‑mortem examination. Then he reached the spot and took blood‑stained earth into his possession vide memo. EX.PJ. On 18‑2‑1981 one Gul Sher produced both the accused before him at Police Post Quaidabad. Muhammad Aslam appellant produced carbine Ex.P.6 containing empty cartridge (P611) which was taken into possession vide memo Ex.PF. After the investigation both the accused were challaned.

4. On 16‑2‑1981 Dr. Muhammad Alam Shah, Medical Officer, Civil Hospital, (Quaidabad conducted the autopsy on the dead body of Muhammad Afzal deceased and found the following injuries on it:‑

"(1) 6 fire‑arm lacerated wounds of entry each edge invested " x " through and through on the back of right side of chest in an area on 2" x 3" in the middle.

(2) 3 circular fresh burn wounds of 1" x 1" circular of card board of cartridge on the lateral side of wound of entry on the back right side of chest.

(3) 5 fire‑arm wounds of exit of injury No.1 each measuring x x through and through, edges averted on the front of right side of chest in an area of 3" x 2" at the level of medical to right breast."

In the opinion of the doctor the death was due to shock and haemorrhage resulting from injuries 1 and 3 which caused damage to the right lung and heart and were sufficient to cause death in the ordinary course of nature. Injury No.2 was simple.

The same doctor examined Sarfraz P.W. and found a bruise x " circular with reddish ring around on the front of right arm, 1" below the level of the axila. The injury was simple, "caused by blunt weapon and could be by fire‑arm."

5. In support of its case the prosecution examined two eye witnesses namely Muhammad Hayat complainant and Naseer Ahmad P.W. Injured P.W. Sarfraz and Muhammad Inayat, in front of whose shop the murder was committed, were given up by the prosecution as having been won over by the accused. The prosecution also relied on the evidence relating to recovery of weapon of offence and the report of Fire Arms Expert.

6. The appellant pleaded not guilty to the charge and denied the prosecution allegations. No evidence was led in defence.

7. After examining the evidence on tire record, the learned trial Judge carne to the conclusion that the motive alleged by the prosecution was not established. However, relying on the remaining evidence he convicted and sentenced the appellant as mentioned above. His father Ghulam Jilani was, however, acquitted..

8. Learned counsel for the appellant contends that the motive alleged by the prosecution has not been substantiated, the recovery is fake, the presence of eye‑witnesses at the spot is not established and in any case both of them being inimical towards the appellant, their uncorroborated evidence was not at all sufficient to warrant the conviction.

Learned counsel for the complainant, on the other hand, submits that the F.I.R. was lodged very promptly within half an hour of the occurrence and the appellant is named therein as the assailant of the deceased which fact completely rules out the possibility of false implication. It is submitted that the ocular evidence finds substantial support from the recovery of unlicensed carbine from the appellant.

9. The prosecution version of the occurrence is supported by Muhammad Hayat complainant P.W.7 and Haji Naseer Ahmad P.W.8. Sarfraz and Inayat P.Ws. were given up by the prosecution as having been won over by the accused. Muhammad Hayat complainant is the husband of the sister of the deceased. Haji Naseer Ahmad complainant is also related to the deceased and the complainant. His brother Fateh Muhammad is married with the daughter of the complainant and niece sister's daughter of the deceased. Evidence on the record shows that the families of the deceased and the appellant were at loggers head since long. In the year 1974 deceased's father Sher Muhammad was murdered. The deceased lodged FIR against three brothers of Muhammad Aslam appellant. Muhammad Hayat complainant was a PW in that case. These facts are admitted by the complainant. However, in order to show that hostility between two families had ceased, he volunteered that "the said case was compromised". Except this bald statement there is nothing on the record to suggest that the parties had compromises. The evidence rather shows that hostility between the families continued. The complainant admitted that only four months prior to the occurrence, on information supplied by him, an unlicensed gun was recovered from Khuda Bakhsh brother of Muhammad Aslam appellant. The' said gun was licensed in the name of Alam Sher, maternal uncle of the appellant, and a case under the Arms Ordinance was registered against aforesaid Khuda Bakhsh and Alam Sher.

The complainant further admitted that his sister Mst. Daulat Khatun was residing in his house and his wife's sister Mst. Sadi Bibi was also living with her parents. When asked whether Mst. Daulat Khatun was married to lqbal, brother of the appellant, 24 years back, she stated: "it must be known to my father." Similarly he was asked if Mst. Said Bibi was married to Ahmad Khan, another brother of the appellant and he stated that he did not know about it. His evasive replies speak volumes and it is not difficult to find out that the brothers of the appellant had deserted the aforesaid ladies. In view of the background of enmity between the parties the evidence of the alleged eye‑witnesses would require corroboration from an independent and un‑impeachable source which is not coming forth in this case.

10. The occurrence took place in a thickly populated bazar in Quaidabad Town. Muhammad Hayat complainant is a resident of Gunjial and his house is three miles away from the place of occurrence. About seven‑eight thousand people reside in Gunjial Town and adjacent town Utra has a population of 5/7 thousand. The explanation offered by the complainant for his presence in Quaidabad Bazar was that he had gone there to purchase "Desi sugar". He admitted that "Desi sugar" was available at many shops in Gunjial and Utra Town and tried to explain that he had chosen to purchase sugar from Quaidabad because it was very costly at Gunjial and Utra Town. This explanation is too clumsy to merit any consideration. Similarly Haji Naseer Ahmad PW is resident of a place situate 1 miles away from the place of occurrence. It is really astonishing that he happened to be in the bazar exactly at the moment when the deceased was fired at.

11. Admittedly the bazar in which the occurrence took place is thickly populated. It is about 1 furlongs long with shops on both sides. According to the complainant so many customers making purchases were present at the time of occurrence but strangely enough no un‑connected person was examined by the prosecution in support of its case.

12. Muhammad Inayat was the Most natural witness of the occurrence as it took place in front of his shop. According to the prosecution, Sarfraz P.W. was injured during the occurrence by a pellet. Both of them were given up as having been won over by the accused. Sarfraz PW being the real brother of the complainant, it cannot be reasonable believed that he was won over by the accused. It appears that Sarfraz and Muhammad Inayat shop‑keeper were not prepared to support the present version and were given up on the pretext that they had been won over.

13. The conduct of the alleged eye‑witnesses was quite unnatural. In the police record age of Ghulam Gillani accused is mentioned as 70‑75 years. He was admittedly empty handed. He has been present at the spot, the eye‑witnesses (if they were also here) would not have allowed him to escape. The ocular evidence against Ghulam Gillani was rejected and the same could be accepted against the appellant only if corroborated from an unimpeachable source but no such corroboration is available.

14. The learned trial Court has held that the motive alleged the F.I.R. could not be established as the prosecution failed to prove that the deceased was married with the sister of the appellant] The finding is based on cogent reasons detailed in para 19 of the impugned judgment which need not be repeated here. It may however, be, mentioned that Nikahnama Ex. P.7 produced by Ghulam Haider P.W.2, father of Mst. Lal Bibi, makes no mention that the deceased was already married with Mst. Hayat Bibi (sister of appellant).

15. The recovery of carbine is supported by Muhammad Hayat complainant and two police officials namely Muhammad Akhtar S.I. (P.W. 4) and Tariq Ijaz S.I. The complainant's evidence regarding recovery can lend no support to the ocular account' furnished by him. Furthermore, the carbine allegedly recovered from the appellant is not shown to be connected with the occurrence of murder.

For the foregoing reasons we are of the view that the case of the prosecution is fraught with serious doubts and it would tie highly unsafe to maintain the conviction of the appellant ors the interested evidence of Muhammad Hayat and Naseer Ahmad P.Ws. Accordingly, we allow this appeal, set aside the conviction and sentence of the appellant and acquit him of the charge. He shall be set at liberty forthwith if not required to be detained in any other case.

His death sentence is not confirmed.

M.Y.H./M‑560/L Appeal allowed.