MUHAMMAD IQBAL Versus THE STATE Sh. Masud Akhtar , Pervaiz Alamgir for the State.,Mehr Ghulam Ali Mubashir

MUHAMMAD MUNIR KHAN, J. -- This Criminal Appeal No. 559 of 1985, Murder Reference No. 181 of 1985 and Criminal Revision No. 655 of 1985 filed by Fateh Muhammad complainant for the enhancement of compensation, arise from the judgment of learned Additional Sessions Judge, Sargodha, whereby he on 10-6-1985 convicted Muhammad lqbal (50) for the murder of Mst. Bhag Bhari, wife of the complainant and sentenced him to death and a fine of Rs.5,000 or in default thereof 6 months' R.I., with the direction that the fine if recovered be paid to the legal heirs of the deceased.

2. The occurrence took place in the evening of 29-8-1983 in the Dera of Iqbal, nephew of Fateh Muhammad complainant situate in Chak No. 9 Remount Depot, Sargodha, five kilometres from Police Station Saddar Sargodha. The F.I.R. Exh.P.B. was lodged by Fateh Muhammad P.W.4, husband of the deceased on the same day at 11-00 p.m. and was recorded by Muhammad Afzal Khan, A.S.I., P.W.7.

3. The motive allegedly was that Mansab Khan, brother of the appellant was killed four years back by Muhammad Afzal and others. The appellant suspected the hand of Fateh Muhammad and his wife Mst. Bhag Bhari in that murder. There was also land dispute between Fateh Muhammad and the appellant.

4. As far the main occurrence it has been stated that at the eventful time Mst. Bhag Bhari and Fateh Muhammad complainant were present in the Dera of Muhammad Iqbal, when Muhammad lqbal appellant armed with gun came there and fired shot at Mst. Bhag Bhari hitting her person. She fell down and succumbed to the injury on the spot.

5. The appellant could not be arrested immediately after the occurrence, so the police prepared incomplete challan against him on 18-10-1983. On 10-11-1983, the appellant voluntarily appeared before the police. He was taken into custody and sent to judicial lock-up. The case was then thoroughly investigated and the appellant was found innocent. On 26-8-1984, D.S.P./S.D.P.O. Headquarters, Saddar recommended for his discharge from the case. On 19-9-1984, Fateh Muhammad filed complaint against the appellant. After preliminary inquiry, the learned Additional Sessions Judge summoned the appellant to face trial. The appellant denied the charge and claimed to be tried.

6. To prove its case, prosecution examined as many as 10 witnesses. Dr. Muhammad Khalid Qureshi appeared as P.W.1. He had conducted post-mortem examination on the dead body of Mst. Bhag Bhari on 30-8-1983 and found following injury.

"Lacerated wound oval in shape 1 " x 1" x depth to be dissented as quite deep. Margins of wound are inverted blackened, margins on left cheek 1" from angle of mouth."

In his opinion, the death, was due to shock and haemorrhage caused by the -injury found on her person which was sufficient to cause death in the ordinary course of nature. The injury was caused by fire-arm. The death was immediate and the time between death and post-mortem was 16 hours. Muhammad Ashraf P.W.3 and Fateh Muhammad P.W.4 have given the ocular account of the occurrence. They claimed to have seen Muhammad Iqbal appellant firing shot from his gun hitting the deceased. Fateh Muhammad has also deposed about the alleged motive. Muhammad Afzal, A.S.I. P.W.7 had recorded the F.I.R. Mian Khan, Inspector, P.W.10 had partly investigated the case. Atta Muhammad F.C., P.W.6 was produced to prove the abscondence of the accused /appellant after the occurrence. He stated that he searched for the accused but could not arrest him. He proved his report Exh.P.E./1 on the warrant of arrest against the appellant. The rest of the evidence is of formal nature.

7. When examined under section 342, Cr.P.C. the appellant denied all the incriminating circumstances. He raised the plea of false implication on account of enmity with the nephew of the complainant. Explaining his non-appearance after the occurrence, he stated that he was residing in village Ganjyal at a distance of 60 miles from Sargodha and when he came to know of this case, he voluntarily appeared before the police. In defence he produced Ch. Zahoor-ud -Din, Inspector, D.W.1, Faiz Muhammad, S.I., D.W.2 and Muhammad Jamil, D.S.P., D.W.3 in support of the plea of his alibi and innocence raised during investigation. The defence witnesses supported him.

8. The learned trial Court while believing the ocular evidence furnished by Fateh Muhammad and Muhammad Ashraf, motive disclosed by Fateh Muhammad and the circumstance of the absconsion of the appellant, convicted and sentenced him as stated above.

9. Learned counsel for the appellant contended that the prosecution has failed to prove its case beyond reasonable doubt; that Fateh Muhammad and Muhammad Ashraf are not reliable witnesses; that Fateh Muhammad was related to the deceased and inimical towards the appellant; that Muhammad Ashraf was a chance witness; that the appellant was innocent and as such, the circumstance of his disappearance after the occurrence cannot be used against him. Conversely, the learned counsel for the State assisted by the learned counsel for the complainant supported the judgment of the trial Court. Learned counsel for the complainant was of the view that Muhammad Ashraf was independent witness and his statement was supported by the circumstance of the absconsion of the appellant and as such, conviction was rightly recorded by the trial Court.

10. We have anxiously attended to the arguments of the learned counsel for the parties and have reviewed the entire evidence produced by the prosecution, statement of the accused/appellant recorded under section 342, Cr.P.C. and the defence evidence, carefully: We fins that the appellant was found innocent during investigation; that the D.S.P./S.D.P.O. had recommended for the discharge of the appellant on 26-8-1984; that on 29-9-1984 i.e. after more than a year of the occurrence, Fateh Muhammad filed complaint under section 302, P.P.C. against the appellant wherein the appellant was summoned to face proceedings; that prosecution produced two eye-witnesses namely Muhammad Ashraf P.W.3 and Fateh Muhammad P.W.4 who stated that it was within their view that the appellant came to the house of Iqbaz armed with a gun and shot Mst. Bhag Bhari dead. Fateh Muhammad is the husband of deceased. The occurrence took place in the Dera of one 'Muhammad lqbal and not in the house of Fateh Muhammad so' he was not the natural witness of occurrence. The appellant had a direct motive against this witness as the former suspected that the latter had a hand in the murder of his brother. Fateh Muhammad stated at trial that the appellant suspected that he and his wife were responsible for the murder of his brother Mansab Khan. In the F.I.R. as well as in the complaint it has not been stated that the appellant had any suspicion against the wife of the complainant namely Mst. Bhag Bhari deceased. It seems to us that Fateh Muhammad has made dishonest improvement at the stage of to create motive for the murder of the deceased. So there are reasons to doubt that Fateh Muhammad P.W.4 was present at the time of occurrence because had he been there then he would have been the first target and the appellant would not have allowed him to live to depose against him. So, his presence is not in consonance with the probabilities. Fateh Muhammad stated that the appellant had serious enmity with his nephews namely Muhammad Aslam and Muhammad Iqbal and he had lodged a case under section 307, P.P.C. against them. He also admitted his 4/5 years' long enmity with deceased. His evidence does not fit in with the rest of the evidence and also suffers from infirmities such as contradictions and dishonest improvements. He does not seem to be confidence inspiring person. We are convinced that he was not present at the spot at the time of occurrence, as such the question of his seeing the occurrence does not arise. This brings us to Muhammad Ashraf P.W.3. No doubt, he is neither related to the deceased nor inimically deposed towards the appellant but this does not necessarily mean that his evidence should be accepted as a Gospel truth. It is by now well-settled that want of relationship of witnesses with the deceased or absence of his enmity with the accused will not stamp his statement with truth. It is a matter of common experience that in our country it is not much difficult to procure false witness for love, money, influence of Zamindar and unimaginable pressures which cannot be proved by the accused. So, it would be highly unsafe to place implicit reliance on the statement of a particular witness simply because he is neither related to the deceased nor is inimical towards the appellant. The credibility of a witness has to be adjudged from the inherent value of his statement. Mohammad Ashraf is certainly a chance witness. His Dera is 2/3 squares from the place of occurrence .l As for reason for his presence on spot, he stated that Islam Din had to pay money as loan to him in Sargodha Cantt. So on their way to Cantt. Sargodha they saw the occurrence near the Dera of Muhammad Iqbal, whereas it has been stated in the F.I.R.

Islam Din has been withheld by the prosecution. There is no evidence on record to show that the place of occurrence really falls on the way from his Dera to Sargodha. We have already observed that Fateh Muhammad was not present on the spot. This means that he has introduced a false witness and has shown reckless disregard for the truth. To us, he is not a dependable person. In any case, the rule of prudence requires independent corroboration of his statement qua the appellant which we do not see. No crime weapon was recovered from the appellant. He had no motive against Mst. Bhag Bhari. The circumstance of abscondence proved by P.W.6 does not help the prosecution in any manner. The appellant was found innocent during investigation. He had voluntarily appeared before the police. In his statement recorded under section 342, Cr. P. C . he has explained the circumstances in which he could not appear before the police at an early date. There is nothing on record to controvert his explanation of later appearance before the police. So, there is no corroboration of the statement of Muhammad Ashraf P.W.3 qua the appellant. For all these reasons, we are of the view that the prosecution has not been able to prove its case against the appellant beyond reasonable doubts.

As consequence of the above discussion, the appellant is acquitted of the charge. He shall be released forthwith, if not required to be detained in any other case. Resultantly, the connected revision fails.

Death sentence is NOT confirmed.

M.Y.H./M-756/L Appeal allowed.