MUHAMMAD AFZAL AND 3 OTHERS Versus THE STATE

Muhammad Afzal, Arshad Mahmood, Muhammad Iqbal and Hameed Masih, all residents of Kotli Machrawan, Police Station Saddar, Gujranwala were tried by the Additional Sessions Judge, Gujranwala on a charge of murdering their co‑villager Muhammad Jamil on the night between 16th‑17th November, 1984 near the Dera of Inayat Gondal in the area of village Machrawan. Learned Additional Sessions Judge, vide judgment, dated 18th September, 1985 found all the accused guilty of the charge, convicted them under section 302/34, P. P. C. and sentenced each of them to life imprisonment with a fine of Rs.2,000 each and in default to undergo two years' further R.I. It was directed that the amount of fine, if recovered shall be paid to the heirs of the deceased under section 544‑A, Cr.P.C. All the convicts have filed separate appeals. Rehmat Ali complainant had also filed Criminal Revision No.557 of 1985 seeking enhancement of the sentences awarded to the convicts. Appeals filed by the convicts (Criminal Appeal No.545 of 1985 by Muhammad Afzal, Criminal Appeal No.637 of 1985 by Muhammad Iqbal, Criminal Appeal No. 638 of 1985 by Hameed Masih and Criminal Appeal No. 590 of 1985 by Arshad Mahmood) and the Criminal Revision of the complainant have been heard together and are being disposed of by this judgment.

2. The occurrence in this case took place on the night between 16th, 17th November. 1984 in the area of village Kotli Machrawan at a distance of 4 miles from Police Station Saddar, Gujranwala. Rehmat Ali father of the deceased reported the occurrence to Manzur Hussain, A.S.I. who me him on his way to the Police Station at Pul Nehr Chhichherwali on 17th November, 1984 at about 7‑45 a.m. A.S.I. recorded his statement Exh.P.H. The version narrated by the complainant was that Hameed Masih and Arshad Mahmood accused were friends of his son Muhammad Jamil. On the night between 14th/15th November, 1984, they hired a V.C.R. and played it at the Dera of Muhammad Younas. Muhammad Jamil, too, was present there alongwith some others who had gathered to see the V.C.R. Muhammad Jamil came back soon. It was alleged that some one had removed the 'Dees, from the transformer with the result that the V.C.R. stopped functioning. Hameed Masih and Arshad Mahmood suspected the deceased of having removed the 'Dees'. On 15th November, 1984 at about 'Digarwela', they made a grievance of this to Muhammad Jamil and gave him threats at the shop of Muhammad Ishaq whereupon an altercation took place between them. Muhammad Ishaq and Muhammad Saeed separated them and they left for their respective houses.

It was further alleged by the complainant that on 16 th November, 1984 at about evening time, Arshad Mahmood and Jamil were seen together near 'Chhapper' of the village by the complainant's brother Barkat and thereafter Jamil did not return home and on the following day viz. 17th November, 1984, Abdul Aziz P.W. came to the complainant's house early in the morning and informed him that he had seen the dead body of Jamil lying near the Dera of Inayat Gondal. On this information, complainant and his brother Barkat went to the spot and saw the dead body of Jamil lying over 'Parali'. Complainant expressed his suspicion that his son was done to death by Arshad Mahmood and Harneed Masih along with some others.

3. Manzur Hussain, A.S.I. sent the complainant's statement (Exh.P.H.) to the police station for formal registration of the case and he himself proceeded to the place of occurrence for investigation. On reaching the spot, he prepared the inquest report and injury statement and then despatched the dead body to the hospital for post‑mortem examination which was conducted by Dr. Manzur Hussain Medical Officer, District Headquarters Hospital, Gujranwala on 18 th November, 1984. The A.S.I. took into possession from the spot blood‑stained 'Parali' and earth vide memo. Exh.P.E. and recorded the statements of the witnesses present there. Ghulam Sarwar, S.H.O. then took over the investigation himself. The S.H.O. took into possession the last worn clothes of the deceased (P.5 to P.8) vide memo. Exh.P.J. He again handed over the investigation to Manzur Hussain, A.S.I. who arrested all the four accused on 26th November, 1984 from the Dera of Younus. On interrogation Arshad Mahmood accused on. 3rd December, 1984 while in police custody led to the recovery of blood‑stained Dagger P. 1 from his house which was taken into possession vide memo. Exh.P.C. He also got recovered a pair of shoes of the deceased (P.2/1/2) from his house vide memo.Exh.P.D.

On the same day, at the instance of Iqbal accused, a blood stained 'Chhuri' (P.3) was recovered from his Dera which was taken into possession by A.S.I. vide Exh.P.B. Hameed Masih accused, too, on that day got recovered blood‑stained Chhuri' P.4 from his house which was taken into possession vide memo. P.F.

Muhammad Afzal accused got recovered 'Chhuri P.5 from his house on 6th December, 1984 which was taken into possession vide memo Exh.P.G.

The sealed parcels of blood‑stained 'Parali' and earth as also of the weapons of offence were sent to the Chemical Examiner, positive reports were received from the Chemical Examiner and the Serologist showing that all these articles were stained with human blood.

4. After the completion of investigation, all the accused were sent up for trial.

5. Prosecution case rested on the evidence of last seen, the recoveries, medical evidence and the motive. It produced as many as 12 P.Ws. to prove its case.

Medical evidence was furnished by Dr. Manzur Hussain who had conducted the post‑mortem examination of the deceased. He appearing as P.47. 3 deposed that he found the following injuries on the person of the deceased:‑‑

(1) Incised wound 2 x 1 c.m. x going deep in the fourth intercostal space front of the right chest 5 c.m. medial to the right nipple.

(2) Incised wound 3 x 1 c.m. x muscle deep back of the left shoulder.

(3) Incised wound 3 x 1 c.m. x going deep back of the middle of the left chest 6 c.m. from mid line in the 5th intercostal space.

(4) Incised wound 3 x 1 c.m. x going deep back of left chest 2 c.m. below injury No.3 in the 7th intercostal space.

(5) Incised wound 3 x 1 c.m. x muscle deep back of the lower part of chest 4 c.m. below and lateral to injury No.4.

On internal examination of the dead body, it was found that the stomach contained about 2 ounces of digested liquid food. Small intestines were empty. Large intestine contained faecal matte, and gas. Bladder was empty.

In the opinion of the Doctor, death was caused by haemorrhage and shock as a result of injuries Nos.l, 3 and 4 which collectively and individually were sufficient to cause death in the ordinary course of nature. All the injuries were ante‑mortem caused with sharp‑edged weapons. The duration of injuries and death was immediate and between death and post‑mortem was about 24 to 48 hours. Doctor stated in cross‑examination that most probably all the injuries could be caused by one weapon.

6. Abdul Aziz P.W.1, Mst. Inayat Bibi P.W.2 and Muhammad Ishaq P.W.4 are the main witnesses of the 'last seen'. Mst. Inayat Bibi P.W.2 is the mother of the deceased. She stated that on the evening preceding the night of occurrence, Jamil deceased was present in the house. Iqbal accused called him out. She followed him upto the door and saw the remaining three accused standing outside on the road. All the accused then took away Jamil with them. She stated that she told the accused that Jamil had yet to take the food whereupon the accused told her that he would come back and have his food but thereafter Jamil never returned home. She was confronted with her police statement (Exh. D. B .) where the conversation between her and the accused about Jamil not having taken food was not recorded. She admitted that she know that Jamil deceased had a quarrel with the accused a day before the occurrence at the shop of Ishaq P.W. when he was threatened with dire consequence for having removed the 'Dees' from the electric pole but despite this she did not warn her son to remain cautious of the accused. She further stated that her husband returned from the city at 12‑00 in the night and she told him that Jamil had gone along with the accused.

Muhammad Ishaq P.W.4, the next witness of the 'last seen' is a shopkeeper in the village. He deposed that on 16th November, 1984, all the four accused alongwith Jamil came to his shop in the evening. Iqbal accused purchased one killo of sweet from him and thereafter all of them went away. He also gave evidence of motive by stating that a day before i.e. on 15th November, 1984 all the four accused came to his shop when Jamil was already present there. An altercation took place between them regarding the removing of electric 'Dees' and they grappled with each other. The witness was confronted with his statement before the police (Exh.D.C.) wherein the names of Muhammad Iqbal and Afzal accused were not mentioned regarding the altercation which allegedly took place at his shop on 15th November, 1984.

Last witness in the series is Abdul Aziz P.W.1. He deposed that on the night of the occurrence at about 8‑00 a.m. he accompanied Inayat Bajwa P.W. (not produced) to have a round of the latter's paddy crops. They passed near the Dera of Inayat Gondal. They heard a noise and reaching there, they saw all the accused and Jamil deceased sitting on the 'Parali'. Again on returning from the fields, the witness found them sitting at the same place. Next morning, he went for his exercise and found the dead body of Jamil lying at the aforesaid spot. He was confronted with his statement before the police (Exh . D . A .) wherein it was not recorded that while passing near the Dera of Inayat Gondal, he heard a noise and then reached near the accused. It was also not recorded in Exh.D.A. that while returning to the Dera, the witness again saw the four accused sitting with Jamil at the same place. The witness stated in cross‑examination that when going back to the place of occurrence with Rehmat complainant and Barkat P.W. he told them that the previous night, he and Inayat Bajwa had seen the four accused sitting with the deceased at the place of occurrence and that it was, thereafter, that Rehmat Ali complainant left for the police station. The witness also deposed that the Dera of Inayat Gondal was an abandoned place and there was no arrangement of light there.

Barkat Ali P.W. 5 who was examined to prove the recoveries also stated in cross‑examination that before the occurrence, he had seen Jamil with Arshad accused near a 'Chhapper' at about sun‑set when it was neither dark nor bright. He also deposed that before the complainant left the police station, Aziz P.W.1 had narrated to him what he had seen during the preceding night.

7. Recoveries, the next item of evidence relied upon by the prosecution were sought to be proved by Barkat Ali P.W. 5 and Manzur Hussain A.S.I. P.W.12. Barkat Ali P.W. is a real brother of the complainant. He deposed that the recoveries aforementioned were effected in his presence. He stated in cross‑examination that except for the P.W. none else from the village was joined by the police to witness the recoveries and the Thanedar did not call either the Sarbarah Lambardar or the member or the Chowkidar of the village to join the investigation. He admitted that Iqbal accused alongwith his parents had constructed a house on the Chhapper and in order to protect his possession, Iqbal had filed a civil suit before the occurrence to restrain them from interfering with the construction of the house. Manzur Hussain A.S.I. P.W.12 supported the recoveries mentioned hereinabove. He admitted in cross‑examination that he did not examine anybody regarding the incident of V.C.R. at the Dera of Younus.

8. Rehmat Ali complainant, the father of the deceased and Muhammad Ishaq P.W. 4 deposed about the motive. Rehmat Ali appearing as P.W.10 stated that on the night of 4th November, 1984, all the four accused had brought a V.C.R. at the Dera of Muhammad Younus. His son Jamil and some other residents of the village went there to see V.C.R. Jamil came back soon and informed him that some one had removed the 'Dees' from the electric pole to disrupt the electric supply for which he was suspected. He further deposed that on the next day, Jamil had an altercation with all the four accused at the shop of Ishaq P.W. He went on to state that his son was murdered by the accused as they suspected him of having removed the 'Dees' from the electric pole as a result of which they could not run the V . C . R . He was confronted with his statement before the police (Exh . P. H .) wherein the names of Iqbal and Afzal accused were not mentioned either in connection with the bringing and playing of the V.C.R. or regarding the altercation at the shop of Ishaq P.W. It was also not stated in Exh.P.H. that the deceased had informed the complainant about the incidents relating to the V.C.R. and the altercation at the shop of Muhammad Ishaq. The complainant admitted that when he returned to his house from the city at about 11‑00 p.m. his wife told him that all the four accused had taken away Jamil who had not returned. Evidence of Ishaq P.W. regarding motive has already been referred to above.

9. Accused when examined under section 342, Cr.P.C. denied the prosecution case. Iqbal accused attributed the case against him to the dispute between him and the complainant party over the construction of the house at the village pond. He tendered in his defence certified copies of the plaints Exh.D.D. and Exh.D.E. and the written statement Exh.D.E./1. He also produced copy of the writ petition filed by his brother against S. H.O. , Police Station Saddar Exh.D.F. Remaining accused stated that they were falsely involved in the case on account of suspicion. The accused also made statement under section 340, Cr.P.C. denying the prosecution case.

10. Learned trial Judge held that the motive though not strong was proved against all the four accused by Rehmat complainant and Ishaq P.W. who, it was observed, was an independent witness. He also believed the evidence of 'last seen' which according to him was corroborated by incriminating recoveries effected at the instance of the accused. Thus, the learned trial Judge came to the conclusion that all the accused were reasonable for causing the murder of Jamil and accordingly convicted and sentenced them as aforesaid.

11. I have heard the learned counsel for the appellants as also the learned counsel appearing for the State and complainant.

12. It was contended on behalf of the appellants that all the prosecution witnesses are related to the deceased and the prosecution has not produced any independent witness to prove its case. Grievance was particularly made that Inayat Bajwa who allegedly was accompanying Abdul Aziz P.W. when they saw the appellants sitting with Jamil at the Dera of Inayat Gondal at 8‑00 p.m. was not produced. Similarly, Muhammad Rafiq who alongwith Barkat P.W. was stated to have witnessed the recoveries was not examined. Learned counsel for the appellants also assailed, the evidence of last seen and submitted that it was fabricated by the prosecution after the registration of the case. It was argued that in any case, evidence of last seen by itself is not sufficient to sustain the charge of murder. It must be supported by further material such as incriminating recoveries, strong motive and promixity of time between the last seen and the death. Reliance for this was placed on P L D 1977 SC 515. Learned counsel vehemently contended that the evidence of recoveries and motive in the present case was not such as could furnish corroboration to the prosecution case. Medical evidence was also of no avail to the prosecution as it left too wide a margin between the death and the post‑mortem examination and, therefore, it was not possible to fix the exact hour of death.

Recoveries were assailed on the ground that they were not proved by any independent witness. Moreover, the fact that they were said to have been effected more than seven days after the arrest of the appellants also rendered them highly doubtful. It was also urged that it was incredible that the appellants who were arrested ten days after the occurrence would have kept the blood on the weapons in tact during all this period. Another circumstance pointed out was that the places of recoveries of the crime weapons not shown to be in exclusive possession of the appellants.

As for the motive, it was argued by the learned counsel for the appellants that the motive suggested by the prosecution was extremely inadequate for the crime perpetrated in this case. Learned counsel appearing for Arshad Mahmood appellant submitted that the motive which the prosecution alleged was not duly proved by direct evidence. He pointed out that there was no direct evidence that the V.C.R. as alleged was hired or was being run when the electricity was disrupted as a result of which suspicion was cast on Arshad and Hameed Masih appellants.

On behalf of Muhammad Afzal and Muhammad Iqbal appellants, it was additionally contended that their names were not mentioned in the F.I.R. and Muhammad Ishaq P.W. also in his statement before the police did not talk of their presence or participation in the altercation which took place at his spot. Argument thus raised was that the implication of these two appellants was clearly an afterthought.

13. Learned counsel appearing for the State and the complainant, on the other hand, contended that none of the witnesses produced by the prosecution had any enmity against the appellants and as such they have been rightly believed by the trial Court. As regards the evidence of recoveries, it was urged on the authority of ruling of this Court reported in 1974 Cr.LJ 6 that reliance could well be placed on the solitary statement of Investigating Officer who was as good a witness as any other member of the police. It was argued by the learned counsel appearing for the complainant that keeping in view the mental caliber of the accused persons, the motive alleged by the prosecution was sufficient for them to kill the deceased whom they had suspected of having played mischief with them. It was also submitted on behalf of the complainant that the appellants had absconded after the crime and they were arrested by the police 9/10 days after the occurrence. This circumstance, according to the learned counsel also provided corroboration to the prosecution case.

14. I have given my thoughtful consideration to the submissions made by the learned counsel for either side. In the instant case, there is no direct evidence of the actual murder and the conviction has been based on the circumstantial evidence consisting of the motive, the recoveries and the fact that the deceased was last seen alive in the company of the appellants. It is an accepted principle of criminal jurisprudence that in a case resting entirely on circumstantial evidence, an accused person cannot be held guilty of the charge unless the circumstances are such as cannot be explained on any hypothesis other than that of his guilt. In other words, for basing a conviction, the evidence should lead to the inevitable conclusion that it is the accused and only the accused who has committed the crime. Keeping this principle in view, I now proceed to examine the prosecution evidence to see whether the conviction based thereon can be sustained or not.

15. The first important circumstance pressed against the appellants is the motive. The two witnesses examined to prove it are Rehmat Ali, the complainant and Muhammad Ishaq P.W.4. Rehmat Ali is the father of the deceased and Muhammad Ishaq P.W. is also closely connected with the family as his real uncle Muhammad Bashir is the husband of the complainant's sister. No independent evidence has thus been produced to establish the motive. It is also in evidence that the police did not examine anybody regarding the incident of V.C.R. at the Dera of Younus with the result that no direct evidence with respect thereto has been produced. It is also proved on record that before the police, the motive was alleged only against Arsha and Hamid Masih accused. Afzal and Iqbal accused were neither named in the F.I.R. nor were they mentioned in the statement of Ishaq P.W. before the police regarding the incident of altercation/grappling at his shop. The witnesses clearly made improvements in Court in attributing motive to Afzal and Iqbal accused. Apart from these infirmities in the evidence, the motive alleged by the prosecution is extremely weak and this has been so accepted even by the learned trial Judge. No doubt, ordinarily absence or inadequacy of motive is no ground for disbelieving the prosecution story but in a case of circumstantial evidence like the present one, motive constitutes an important circumstance and, therefore, motive must be very strong for drawing inference of guilt.

16. I am also not pursuaded to attach any importance to the recoveries which have been used as incriminating circumstance against the appellants. It is in evidence that all the appellants were arrested on 26th November, 1984 i.e. 9/10 days after the occurrence and the blood‑stained Chhuris/dagger were recovered from three of them namely Arshad Mahmood, Iqbal and Hameed Masih on 3rd December, 1984 and from Muhammad Afzal appellant on 6th December, 1984. It is difficult for me to believe that the appellants would not remove the blood from the Chhuris/dagger during the long interval of 9/10 days and would keep them blood‑stained for presentation to the police. The places of recoveries were also not shown to be in exclusive possession of the appellants. Prosecution has also not examined any independent witness to prove the recoveries. The only witness of the recoveries apart from the Investigating Officer is Barkat Ali P.W.5 who is the real brother of the complainant. Implicit reliance cannot be placed on his interested testimony in the facts and circumstances of the case It may be pertinently noted that in almost similar circumstances, recoveries of incriminating weapons of offence were ruled out of consideration in 1985 SCMR 160 and 1986 P Cr. L J 687 (Lah.). As regards the recovery of pair of shoes P.2/1‑2 belonging to the deceased from Arshad accused, suffice it to observe that has not been shown to have any particular mark of identification and, therefore, it cannot be used as incriminating evidence against the said appellant.

17. I now take up the evidence of 'last seen' which, as note above, was furnished by Abdul Aziz P.W.1, Mst. Inayat Bibi P.W.2, Muhammad Ishaq P.W.4 and Barkat Ali P.W.5 all inter‑related. Mst. Inayat Bibi is the mother and Barkat Ali P.W. is the real uncle o the deceased, Muhammad Ishaq and Abdul Aziz P.Ws. are also connected with the family of the complainant. Relationship of Muhammad Ishaq P.W. has already been indicated in para 15 ante when examining hi evidence qua the motive. Abdul Aziz P.W. is the real brother of Nazir, a son‑in‑law of Barkat Ali P.W. It is quite significant that Inayat Bajwa, apparently the only independent witness of the last seen who together with Abdul Aziz P.W. allegedly saw Jamil decease and the appellants sitting together at the Dera of Inayat Gondal a 8‑00 p.m. on the night of occurrence has not been examined on the plea that he was won over. Prosecution has thus relied upon the interested testimony to prove that before the occurrence Jamil decease was taken away by the appellant and he was seen in their company. The evidence of all these P.Ws. in material respects has been referred to in para 6 above. The version given by P.W.1 and P.W.2 on the prosecution's own showing appears to have been fabricated after the registration of the case. It is in evidence that Mst. Inayat Bibi had told her husband Rehmat Ali on the night of the occurrence when he came back from the city that all the four accused had taken away Jamil who had not returned. It is also admitted that Abdul Aziz P.W. had informed the complainant before he left for the Police Station that the previous night, he and Inayat Bajwa had seen Jamil and the four accused sitting together at the place of occurrence. It is really intriguing that despite this information, the complainant did not impart it to the police when making his statement Ex.PH though he informed the police that his brother Barkat Ali had seen Jamil and Arshad accused together in the evening before the occurrence. This omission is significant and it leads one to the conclusion that the version given by P.W.1 and P.W.2 at the trial was an afterthought. These two witnesses also appear to have made some material improvement in that P.W.1 stated at the trial that while passing near the Dera of Inayat Gondal he heard a noise and then reached near the accused and that while coming back to the Dera he again saw the accuse Jamil at the same place but these facts he had not narrated in his statement before the police Ex.DA. Mst. Inayat Bibi when appearing as a witness introduced the conversation with the accused which she had not mentioned in her statement before the police Ex.DB. This conversation was purposely brought in so as to create an occasion for her to have seen the accused. Her statement that despite the knowledge that her son Jamil had been threatened by the accused with dire consequences only a day before and yet she did not warn him to be cautious of the accused does not carry conviction. A mother ordinarily in such circumstances would dissuade her son to accompany the accused. Evidence of Muhammad Ishaq P.W.4 regarding the 'last seen can also not be readily accepted as he is an interested witness and his interest in the prosecution is amply exhibited in implicating Muhammad Afzal and Muhammad Iqbal accused regarding the incident of altercation at his shop although in his police statement, he had not named them. As regards Barkat P.W., it may be stated that he named only Arshad accused and that, too, in his cross‑examination. In any case, his statement left to itself is not sufficient for drawing an inference that Arshad accused was responsible for the death of Jamil. On closer examination, the whole evidence of 'last seen' appears to be improbable. It does not stand to reasons that Jamil deceased who, as alleged, was suspected by the appellants of having done mischief with them and was given threats by them of dire consequences a day before would accompany them on friendly sojourn. For all these reasons, I am of the view that the evidence of 'last seen' in this case is not such as can form the basis for conviction on a murder charge. Apart from this, evidence of 'last seen' even if accepted is not by itself sufficient to sustain the charge of murder as held in (1) Karamat Hussain v. The State 1972 SCMR 15 and (ii) Rehmat v. State PLD 1977 SC 515. In the present case, I have not accepted the recoveries and the motive has also been held to be inadequate. Medical evidence, too, has been found wanting in providing the requisite corroboration. The learned counsel for the complainant sought to draw corroboration from the abscondence of the accused. According to him, the appellants were absconders and were arrested ten days after the occurrence. I am afraid, there is no merit in this contention. It was not the case of the prosecution at any stage that the appellants had absconded nor was put to them when examined under section 342 Cr.P.C. There is also nothing on the record to show that the police made efforts to apprehend the appellants and they were not traceable.

Upshot of the above discussion is that the prosecution has failed to establish its case beyond reasonable doubt. Resultantly, the conviction of the appellants on the charge of murdering Jamil deceased cannot be sustained. Their appeals are accordingly allowed and the impugned judgment of the learned Additional Sessions Judge, Gujranwala, dated 18th September, 1985 is set aside and it is ordered that the appellants shall be set at liberty forthwith unless required in some other case. Since the convictions and sentences of the appellants have been set aside, revision filed by the complainant for enhancement of sentence is dismissed.

S.A./M‑682/ L Acquitted