MUHAMMAD ANWAR Versus THE STATE Muhammad Usman and Muhammad Ishaq Khan , Mian Sarfraz-ul-Hassan for the State

MUHAMMAD MUNIR KHAN, J. --This Criminal Appeal No. 218 of a 1987 and connected Murder Reference No. 3 of 1988 arise from the judgment of learned Additional Sessions Judge Pakpattan, whereby he on 25-11-1987, while acquitting afar Iqbal and Azhar Iqbal accused, convicted Muhammad Anwar (48) under section- 302; P.P.C. for the murder of Abdul Hameed and sentenced him to death and a fine of Rs.5,000, in default thereof 6 months R.I. He was also directed to pay Rs.10,000 as compensation or in default thereof further R.I. for six months.

2. The occurrence took place on 25-13.-1985 at 1-00 p.m. in front of the house of the appellant in Chak No. 55/S.P., at a distance of 20 k.m. from Police Station Chak Bedi of District Sahiwal. The F.I.R. Exh. P.A. was lodged by Nazir Ahmad P.W.1, father of the deceased on the same day at 2-30 p.m. and was recorded by Zakir Hussnin, Moharrir Head Constable P:W:4.

3. The complainant, deceased, Muhammad Anwar appellant and the two acquitted accused are the residents of Chak No. 55/S.P. The house of Nazir Ahmad complainant is adjacent to the house of Muhammad Anwar appellant. Azhar Iqbal and War Iqbal; acquitted accused are the sorts of Muhammad Anwar appellant.

4. The motive as stated in the F.I.R. was that Muhammad Anwar appellant had lodged a case under, section:. 440/148/149,, P.P.C, against the deceased, complainant and others and the incident of damage to their wheat crop was simply made a pretext, to kill the

5. According to the F.I.R. at the eventful day; Nazir Ahmad complainant; Abdul Hameed deceased, Muhammad Rafiq and Abdul Latif after taking cotton sticks from their lands where placing the same in their house when Muhammad Anwar appellant and his son Zafar Iqbal, acquitted accused, came there and started abusing them stating that they had damaged their wheat crop by passing through it. On this War Iqbal ran into his house and brought out .12 bore gun and while passing on the same to his father asked him to fire at the deceased: On this Muhammad Anwar appellant took gun from his son and fired at Abdul Hameed hitting on his left iliac crest who fell down on the ground and expired on' the spot. The occurrence,, was also seen by Muhammad Yousaf P.W.2-and Naseer Ahmad P.W.3.

6. After the registration of the case Shahamat Ali, S.I., P.W.7 carne to the place of occurrence. Muhammad Anwar appellant was present on the spot under private arrest. So he arrested him. Muhammad Anwar was found injured at the time of his arrest and was got, medically examined. At the time of his arrest by the police, Muhammad Anwar appellant produced gun Exh. P:6 -containing crime empty Exh.P.7 in its barrel and four live cartridges Exh. P.8/1-4, which were taken into possession vide memo. Exh. PJ attested by Muhammad Yousaf P.W.2, Naseer Ahmad P.W.3 and Shahamat Ali, S.I. P.W.7. It may be noted here that no empty was recovered from the spot. Crime empty Exh.P.7 and gun Exh.P.6 were sent to Forensic Science Laboratory for test but no definite opinion could be given as to whether crime empty Exh.P.7 was fired from gun Exh. P.6, so the report was neither exhibited nor placed on- record and it remains on the police file. Nothing incriminating was recovered from the co-accused namely Zafar Iqbal and Azhar Iqbal.

7. During investigation of the case, Mst. Balqees, wife of Muhammad Anwar appellant made an application to S.S.P.; Sahiwal, for reinvestigation of the case. In the course of re-investigation, the police appointed arbitrators to find out the truth. The arbitrators came to the conclusions that in fact Azhar Iqbal had fired fatal shot and killed the deceased. Resultantly Anwar and Zafar Iqbal were placed in column No. 2 of the challan and Azhar lqbal was placed in column No. 3 of the challan. Feeling aggrieved 'thereby, Nazir Ahmad filed complaint against Muhammad Anwar and afar lqbal which was entrusted to the learned Additional Sessions Judge (trial Court), who issued process against them. As War lqbal and Muhammad Anwar were placed in column No. 2 of the challan, so the trial Court summoned them in the challan case as well to try them alongwith Azhar Iqbal, accused.

8. On 26-12-1985, Dr. Muhammad Nasir Dilshad P.W.12 conducted post mortem examination on the dead body of Abdul Hameed deceased. He found following injuries on the dead body:

(1) "A gun shot wound 2 x 2 c.m. x blind deep with inverted margins on right iliac crest in its middle part going deeply inwards. On dissection, the iliac bone was perforated in its upper part. Two pellets were found in this wound, i.e. wound of entry.

(2) A fire-arm wound 4 x 3 c.m. with averted margins on the left side of prominence of public bone on the lower part of abdomen. Loop of the intestine which was injured at places was protruding through the wound.

(3) A fire-arm injury 2 x 2 c.m. about 1-3/4 c.m. left to the injury No. 2 with averted margins and apart of omentum coming out of the injury.

(4) Four adjacent gun shot wounds about 1 x 1 c.m. each with averted margins in an area of 6 x 5 c.m. above and left to the injuries Nos. 2 and 3. On dissection of injuries Nos. 2, 3 and 4 abdominal cavity was full of blood. Left kidney was torn. Bladder was pored through small intestines large intestine and omentum were pierced through at several places. Right kidney was damaged. One pellet,, and a cover plastic piece of Kartoos found in the abdominal cavity".

In his opinion, the death was due to acute shock and haemorrhage was a result of injuries 1 to 4. Injury No. 1 was the entry wound whereas 2 to 4 were the exit wound. The injury was caused by fire-arm and was sufficient to cause death in the ordinary course of nature.

On the same day at 12-30 p.m., he examined Muhammad Anwar appellant and found following injuries on his person:

(1) "A lacerated wound 1 x .5 c.m. x skin deep into oblique in between the middle finger and ring finger of right hand.

(2) An abrasion 1 x 1 c.m. on the outer side of left knee joint.

(3) An abrasion 1 x.5 c.m. on the front of left knee.

(4) An abrasion 2 x .5 c.m. on the back of left thigh at lower part.

(5) An abrasion 4 x 2 c.m. on the back of left buttock.

(6) An abrasion .5 x .5 c.m. on the outer side of right knee.

(7) An abrasion half c.m. x quarter c.m. on pinna of the right ear.

(8) An abrasion 1 x 1/2 c.m. on the right side of fore-head

(9) Two abrasions 1 x 1 c.m. each on the back of left elbow joint.

(10) Multiple abrasions in an area of 30 x 30 c.m. on all over the back:"

The injuries were simple and caused by blunt weapon within 24 to 36 hours of the examination.

9. To prove its case, prosecution examined 111 witnesses. Nazir Ahmad P.W. 1, Muhammad Yousaf P.W. 2 and Naseer Ahmad P.W.3 have given the ocular account of the occurrence. They claim to have seen Muhammad Anwar appellant firing at the deceased hitting on his person resulting in his death. The eye witnesses have supported the prosecution version of the occurrence as given in the F.I.R. According to their statements at trial Azhar Iqbal was not present on the spot and it was on the direction given by Muhammad Anwar that Zafar Iqbal went inside his house and brought out gun and gave the same to his father, the appellant, to teach lesson to the deceased and others. The witnesses claim to have arrested Muhammad Anwar appellant on the spot alongwith his gun. Muhammad Yousaf P.W.2 and Naseer Ahmad P.W.3 have also supported the recovery of gun Exh.P.6 from the appellant. Dr. Nasir Dilshad P.W.12 has proved the medico legal report of the injuries of the appellant and the post-mortem examination report of the deceased. Haji Muhammad Hassan P.W. 8, Muhammad Akram P.W.9 and Muhammad Khan P.W.10, were appointed as arbitrators in the matter of the murder of Abdul Hameed deceased. Haji Muhammad Hassan P.W.8 stated that he was the sole arbitrator from both the parties. On the strength of the information collected by him he found that Azhar Iqbal had caused the death of the deceased by fire-arm. Muhammad Akram P.W.9 stated that he was one of the arbitrators and that there was a difference of opinion between the arbitrators about the actual place of occurrence. Muhammad Khan P.W.10 stated that 6 persons were appointed as arbitrators by the police. After thorough probe, they came to the conclusion that the complainant party had trespassed into the house of the accused and assaulted Muhammad Anwar appellant and his wife Mst. Bilqees. Azhar Iqbal was outside the house and when he came there, he fired at the deceased in order to save his parents and that Muhammad Anwar and Zafar Iqbal were innocent. Muhammad Ashraf, S.I., P.W.11 stated that on the direction of S.P. Sahiwal, he arrested Azhar Iqbal and challaned him in the case whereas Muhammad Anwar -and Zafar Iqbal were placed in column No. 2 of the challan. Haji Habib-ur-Rehman, S.S.P., Sahiwal was examined as C.W.1. He stated that under his order, the case was reinvestigated by Muhammad Ashraf, S.I., P.W.6 and that he (S.S.P.) had neither verified the reinvestigation nor had he specifically directed the Investigating Officer to challan Azhar Iqbal or to get Muhammad Anwar and Zafar Iqbal discharged and that he had simply directed that reinvestigation be conducted purely on merits. The rest of the evidence is of formal nature.

10. When examined under section 342, Cr.P.C., Zafar Iqbal denied his presence and participation in the occurrence. Azhar Iqbal raised plea of self, defence. In answer to Q. No. 3, he stated:

"I am innocent. We have been falsely involved after fabricating a false prosecution version. In fact, Abdul Hameed deceased was damaging our newly grown wheat crop while passing through it taking his cotton sticks to his house from the fields, when he was forbidden by my father, he abused him and also attacked with a sota and on his alarm when my mother came to his rescue, she was also being beaten by the deceased. I, apprehending danger to the lives of my parents, brought out the licensed gun of my father and fired with it, which hit the deceased on his right flank which resulted in his death. I acted in exercise of the right of self defence of my parents to save their lives at that time, the deceased was causing injuries to my parents with a sota."

Muhammad Anwar appellant denied to have fired at the deceased. In answer to Q. No.7, he stated:

"The case is false. I and my sons have been falsely roped in this case due to enmity. All the P.Ws. are partisan of the complainant. On the day of occurrence at about Noon, time Abdul Hameed deceased damaged my newly grown wheat crop by passing through it again and again with the load of cotton sticks on his head. I forbade the deceased from damaging my wheat crop by passing through it who abused me and I abused him in reply, whereupon the deceased assaulted me with a sota near my house and started causing injuries to me. I raised alarm, which attracted my wife Mst. Bilqees Akhtar who tried to rescue me but she was also given blows by the deceased with sota. We raised alarm and in the meanwhile, my son Azhar Iqbal accused seeing his parents being beaten by the deceased with sota, brought out my licensed gun from my house and he, in order to save our lives, fired with it, which hit the deceased. My son Zafar Iqbal accused was not present at the spot at the time of occurrence. My son Azhar lqbal accused acted in the exercise of self defence of me and my wife Mst. Bilqees Akhtar apprehending danger to our life".

All the three accused including the appellant gave evidence on Oath in disproof of the charge against them. They produced Lady Doctor Mst. Kaneez Fatima D.W.1 in their defence. She stated that she had examined Mst. Bilqees Akhtar, wife of Muhammad Anwar appellant on 27-12-1985 and had found following injuries on her person:

(1) "Swelling on the medial side of right upper arm in an area of 6 x 4 c.m.

(2) She complained of pain in the right shoulder joint and was unable to move her arm freely although no injury was visible:

(3) Both lips (upper and lower) were swollen on the lateral side. There were small lacerations and contusions on the inner side of both lips.

(4) Contusion with swelling involving the outer and front part of the left thigh in an area of 20 x 15 c.m.

(5) Small contusion in an area of 6 x 4 c.m. on the outer side of left upper arm.

(6) She complained of pain in the chest on back although there was no visible mark of injury".

The injuries were caused by blunt weapon within 3 days of the examination, and were simple.

11. Believing the ocular account of the occurrence furnished by the witnesses and disbelieving the defence version disclosed by Muhammad Anwar and Azhar Iqbal appellants, the trial Court has convicted and sentenced Muhammad Anwar appellant as stated above. Giving them the benefit of doubt, the trial Court has acquitted the co-accused.

12. Learned counsel for the appellant argued that the prosecution has failed to prove its case beyond reasonable doubts; that the F.I.R. was recorded on the spot after investigation; that the motive was in fact with the complainant party to attack; that the eye-witnesses are closely related to the deceased; that they were not present on the spot at the time of occurrence; that the story told by the P.Ws. is highly improbable; that the injuries suffered by Mst. Bilqees Akhtar, wife of the appellant have not been explained by the eye-witnesses and that in the circumstances of the case, there is a reasonable possibility of the defence version being true. Learned counsel for the State was of the view that since Muhammad Anwar was arrested on the spot alongwith gun, therefore, no exception could be taken to the conviction of the appellant for the murder of Abdul Hameed decease.

13. We have anxiously attended to the arguments addressed by the learned counsel for the parties and have carefully reviewed the entire evidence that has been produced by the prosecution, the statements made by the appellant and his co-accused under section 342, Cr.P.C., the statements given by the accused under section 340(2), Cr.P.C. and the defence evidence. On our independent assessment of evidence and the circumstances appearing in the case, we fell persuaded to agree with the learned counsel for the appellant for the reasons that the F.I.R. does not seem to be genuine document. Muhammad Yousaf P.W.2 stated that Shahamat Ali, S.I./I.O. had recorded the statement of Nazir Ahmad, first informant, at the spot. He verified the facts in detail from everyone of them and also recorded the statement of Nazir Ahmad in detail about the occurrence in his presence and then got signatures thereon. Although the prosecution case cannot and should not be rejected on account of this flaw alone, yet this Court has to be very careful in appreciating the prosecution evidence more particularly the ocular, evidence. The motive alleged by the prosecution against the appellant and his co-accused does not appeal to reason. After having got a criminal case registered against the complainant party including the deceased, the accused had no motive, to kill the deceased. It seems to us that on realising that the motive was rather i with the complainant party to harm the accused, Nazir Ahmad complainant at trial stage stated that during investigation the case lodged by Muhammad Anwar appellant was cancelled. So he felt humiliated and bore a grudge against them. This was not only a dishonest improvement but also an afterthought attempt to strengthen the weak motive stated in the F.I.R.

14. The eye-witness Nazir Ahmad P.W.1 is father of the deceased. No doubt Muhammad Yousaf and Naseer P.Ws. are not related to the deceased but this does not mean that their statements should be accepted as gospel truth. Since the facts of two cases seldom coincides so there can be no specific rule for the appreciation of evidence. The general rule of the appreciation of the evidence i$" that the absence of enmity or want of interest does not stamp the statement of a particular witness of truth and what should be seen by the Court while appreciating the evidence of an independent witness is as to whether or not the statements made by him is in consonance with the probabilities, materially fits in with the circumstances of the case and is capable of inspiring confidence of truth in a' reasonable and prudent mind. In the instant case, we find that the F.I.R. I having been recorded on the spot after preliminary investigation and the witnesses being not injured, there is no judicial guarantee or circumstantial certainty of their presence on the spot at the time, of occurrence. The story of the prosecution that Zafar Iqbal son of the appellant went running to his house and after a shot-while came out with a loaded gun, handed over it to his father asking him to fire at the deceased and others runs counter to the natural probabilities. In the normal course of events, a son armed with a gun would not allow his father to be involved as principal accused. Dishonest attempts have been made by the eye-' witnesses to change the version of the occurrence given in the F.I.R. At trial stage it has been introduced that Muhammad Anwar appellant got furious and asked his son Zafar lqbal to go inside the house and bring gun so that he may teach lesson to the deceased and others although it is not so stated in the F.I.R. Mst. Bilqees Akhtar, wife of Muhammad Anwar was medically examined by Dr. Kaneez Fatima, D.W.1 on 27-12-1985. There were 5 injuries on her person caused by blunt weapon within 3 days of the examination. The occurrence in this case took place on 25-12-1985 The time of the receipt of her injuries tallies with` the time of the occurrence. According to the defence version Mst. Bilqees had' received injuries during the occurrence but those injuries have been suppressed by the eye-witnesses. The prosecution version was found false during j investigation. At trial stage, Azhar Iqbal has given evidence on Oath stating that in fact he had killed the deceased in order to save his father, the appellant and his mother Mst. Bilqees. The circumstance of injuries on the person of Mst. Bilqees and Muhammad Anwar appellant lends support to the defence version. for all these reasons, we are convinced that the prosecution has failed to prove its case through reliable evidence against the appellants and there is also a reasonable possibility of the defence version being true. Muhammad Anwar appellant has t not denied his presence at the time of occurrence. It goes without saying that being present at the time of occurrence or being in injured during the occurrence, does not mean that he has murdered the deceased. If the arguments, of the learned counsel for the State is accepted then it would mean as if being present at the time of occurrence or being injured during the occurrence is an offence.

Pursuant to the above discussion, the appeal is accepted and while giving him benefit of doubt, Muhammad Anwar appellant is acquitted of the charge. He shall be released forthwith, if not required to be detained in any other case.

N.H.Q./M-2397/L Appeal accepted.