JAVED IQBAL Versus STATE

The appellants herein, namely, Javed Iqbal, Muhammad Ashraf and Arshad were tried under section 302/34, P.P.C. for the murder of Yasin alias Allah Rakha by the learned Additional Sessions Judge, Faisalabad. The learned trial Judge vide his judgment, dated 26-11-1990, convicted them thereunder and sentenced them to imprisonment for life and fine of Rs.10,000 each or in default to undergo further R.I. for two years. Half of the fine, if recovered, was ordered to be paid to the legal heirs of the deceased. Benefit of section 382-B, Cr.P.C. was also given to the accused.

The convicts have filed separate appeals against their conviction and sentences i.e. Javed Iqbal has filed Criminal Appeal No.793 of 1990, whereas Muhammad Ashraf and Arshad have filed Criminal Appeals Nos.799 of 1990 and 907 of 1990, respectively. Muhammad Sadiq, father of the deceased has filed Criminal Revision No.84 of 1991, for enhancement of sentence of the appellants from imprisonment for life to death, which was ordered to be heard alongwith the connected appeals. As the three appeals and the revision petition arise out of the same judgment, these are being disposed of by this judgment.

2. The prosecution case, in brief, is that on 3-2-1989, at about 3-00 p.m. Bashir Ahmad complainant (P.W.6), alongwith his brother Rehmat (given up P.W.), Shaukat (P.W.5) and his nephew Yasin deceased, was sitting in the Bazar in front of his house. At that time the appellants came there and persuaded the deceased to accompany them to Chak No.137/R.B., the deceased did so. After a short while, the complainant suspected that as a dispute is going on between the deceased and Arshad and Ashraf appellants, they might not cause him any harm. The complainant, his brother Rehmat (given up P.W.) and Shaukat P.W.5 set out from Kotla to pursue them. When the party at about 5-00 p.m. reached the house of Arshad appellant, they heard out cries emanating from his house The door of the house was opened and Yasin was tied with ropes on a cot. Muhammad Ashraf and Javed Iqbal appellants were pulling the ropes around the neck of Yasin, whereas Arshad, who was armed with a Motehar dealt blows with it within the view of the witnesses which landed on the back of head of the deceased. The witnesses tried to intervene, but the appellants threatened the witnesses of dire consequences. Badar-ud-Din, Lambardar, Muhammad Munir (both given up witnesses) and Muhammad Din were attracted to the spot and on their intervention, the appellants decamped from the scene while raising Lalkaras. Thereafter, the witnesses entered the house and found Yasin dead due to strangulation by ropes.

The motive for the occurrence as stated by the complainant was that there was dispute of mutual dealing between the deceased Yasin and Arshad appellant.

3. Bashir Ahmad complainant (P.W.6) leaving the dead body of Yasin under the care of Badar Din etc. was on his way to Police Station Chak Jhumra, when he met Safdar Ali, Inspector (P.W.8) at Bridge Rakh Branch, Salarwala. The Police Officer recorded the statement Exh.P.D. at 10-00 p.m. of Bashir Ahmad P.W.6 and sent the same to the police station, where formal F.I.R. Exh.P.D./1 was recorded by Muhammad Aslam M.H.C. (P.W.7).

4. The investigation was conducted by Safdar Ali, Inspector (P.W.8). After recording the statement Exh.P.D. of Bashir Ahmad P.W.6, be proceeded to the spot. He prepared the injury statement Exh.P.I. and inquest report Exh.P.J. and entrusted the dead body to Muhammad Nawaz F.C. (P.W.4) for escorting it to the mortuary at Chak Jhumra for post-mortem examination. He collected blood-stained earth from the spot vide memo. Exh.P.E. and rope P.5 vide memo. Exh.P.F. and another rope P.6, vide memo. Exh.P.G. On 5-2-1989, he took into possession the last-worn clothes of the deceased vide memo. Exh.P.C. He got prepared site plan Exhs.P.B. and P.B./1 by Aurangzeb P.W.2. He arrested the appellants on 5-2-1989. On the same day, Arshad appellant led to the recovery of Motehar P.7 from his house which was taken into possession vide memo. Exh.P.H.

After completing legal formalities; the Inspector submitted the challan in the Court.

5. Dr. Iqbal Ahmad Javed (P.W.1) conducted the post-mortem examination on the dead body of Yasin deceased on 5-2-1989 and found the following injuries thereon: --

(1) ??????? A well-defined ligature mark with abrasion over it and of bluish colour in middle of front of neck, extending to both sides of neck and back of neck, 14" x 1/2". On dissection extravasation of blood beneath the ligature mark was seen.

(2) ??????? A lacerated wound on the back of head, on the middle line, 3/4" x 1/4" scalp deep. The direction was oblique.

(3) ??????? A swelling on the middle of top of head on the mid line, extending on both sides of head, 5" x 4". On dissection, right and left parictal bones were found fractured.

Death, according to the doctor, was due to shock and asphyxia as a result of injuries Nos.l and 3. Injury No.3 caused shock whereas injury No.l caused asphyxia due to strangulation. Both these injuries could cause death collectively as well as independently. Injury No.l was caused by strangulation whereas injuries Nos.2 and 3 by blunt weapon.

6. The appellants in their statements under section 342, Cr.P.C., denied the prosecution allegations, professed innocence. They deposed that it was an unseen occurrence and some unknown persons had committed the murder and they had been implicated falsely due to suspicion. Five witnesses, namely, Nazar Muhammad D.W.1, Ghulam Sarwar D.W.2, Ch. Hamidullah Qureshi, D.S.P. (D.W.3), Mukhtar Ali, Inspector (D.W.4) and Ijaz Ahmad, Junior Clerk (D.W.5) appeared in defence. The first four witnesses testified the innocence of Javed Iqbal appellant. Mukhtar Ahmad, Inspector (D.W.4)'further deposed that Nasar Ahmad Khan Durrani, Additional Superintendent of Police has recorded in Zimni that the complainant party had failed to establish the presence of the accused at the scene at the time of occurrence. Ejaz Ahmad (D.W.5) Junior Clerk, Rural Health Complex, Chak Jhumra produced the Attendance Register for the month of February, 1989 and according to this Register on 4-2-1989, Dr. Iqbal Ahmad Javed, as Senior Medical Officer was on duty.

7. Believing the prosecution evidence, the learned Judge convicted the appellants and gave them the sentences as indicated above.

8. In appeal, it has been argued on behalf of the appellants that the murder was not seen by any of the two eye-witnesses, it was, in fact .an unseen occurrence which took place when it was dark and none of these two witnesses saw the real culprit(s); that the eye-witnesses are the close relatives of the deceased, as one is the paternal-uncle and the other maternal-uncle of the deceased and testimony of these highly interested witnesses cannot be accepted unless it stands corroborated in material aspects, which is lacking in the instant case; that both the eye-witnesses are the chance witnesses and explanation given by them for their presence at the scene is neither reasonable nor plausible; that the prosecution has not examined any independent eye-witness, which shows that the case is not free from doubt; that the prosecution could not produce independent witness of recovery of Mohtair P.7, as Bashir Ahmad P.W.6 who testified the recovery memo. is an interested witness; that ocular testimony of these highly interested witnesses also stands contradicted by the medical evidence; that possibility cannot be ruled out that some other persons who were inimical to the deceased might have killed him, because the defence has established on the record that the deceased was a bad character and was involved in numerous criminal cases; that motive, though alleged, was not proved, which adversely reflects on the prosecution case as a whole; hence the prosecution evidence cannot be accepted without there being independent corroborative evidence.

In the end, it was argued on behalf of the appellants that it is a case of dishonest investigation, and the Investigating Officer has recorded the F.I.R. after preliminary investigation; hence no sanctity can be attached to this dubious document.

9. Learned counsel appearing for the State has supported the judgment under appeal.

10. I have critically examined the respective submissions of the learned counsel for the parties and have gone through the record of the case carefully with their able assistance.

It is apparent from the record, that both the eye-witnesses, namely, Shaukat Ali P.W.5 and Bashir Ahmad P.W.6 are not the residents of the locality where murder was committed as such on their own admission they are chance witnesses, who followed the deceased on account of the motive and also on account of their apprehension that the appellants may not cause harm to their nephew. There is force in the submission of the learned counsel for the appellants that the motive, though set up in this case, has not been proved from independent evidence. Bashir Ahmad P.W.6 has only direct knowledge of the motive, but he has failed to establish how the deceased who was a student and doing no independent business, was in a position to advance Rs.6,500 to Arshad appellant which ultimately led to his murder. The prosecution has thus utterly failed to prove the motive in this case.

10-A. After discarding the motive, I am left with the ocular evidence. The sole question which needs consideration is whether these two eye-witnesses were present at the scene or not. According to Shaukat Ali P.W.5 and Bashir Ahmad P.W.6, they are the residents of Chak No.43/R.B., Police Station Sangla Hills; they followed the deceased and reached in village Audodada, which is approximately few miles away from the place of their residence due to the motive which has been disbelieved by me. If the motive is disbelieved then I find no ostensible reason for these witnesses to be present at the scene. The occurrence took place in a deserted house which is situated in the middle of the village having a population of more than 3,000 persons, but nobody has come forward to depose in the Court with respect to the occurrence. Badar-ud-Din Lambardar and Muhammad Munir, who were the witnesses from the locality were not examined by the prosecution on the plea that they have been won over.

The manner in which the deceased is alleged to have suffered the injuries shows that the assailants had sufficient time at their disposal; they first roped the deceased with a Charpoi and thereafter caused two injuries on his head with blunt weapon. According to the doctor injury, No.l caused by strangulation and No.3 caused by blunt weapon were sufficient to cause death in the ordinary course of nature. Keeping in view the nature of injuries, referred to above, I find there was nobody to check the assailants, that is why they chose the most abnormal way of killing the deceased i.e. first tied him with the Charpoi and thereafter caused injuries to him with blunt weapon, which shows the extent of animus which they had against the deceased.

There is lot of force in the submission of the learned counsel for the appellants that if these five persons, nominated as eye-witnesses, would have been present at the scene then in all probability they would have undoubtedly come to the rescue of the deceased, who is a close relation of Shaukat Ali and Bashir Ahmad P.Ws., and in that eventuality apprehension of the accused persons at the spot could not be ruled out. According to the ocular evidence, only Arshad appellant was armed with a Mohtair, a big wooden Danda, which is not a formidable weapon as that of fire-arm. The way they stood at the scene like a silent spectators shows that they were not present at the relevant time otherwise the assailants would not have committed the murder in the manner, 8 referred to above. According to the evidence of Aurangzeb Draftsman (P.W.2), the place of occurrence is situated in the village Abadi and is surrounded by houses. In the present case, unfortunately, none from the neighbourhood was attracted to the scene and only these two eye-witnesses have deposed about the ocular version, whose presence at the spot is due to the motive, referred to above, which has been disbelieved. The evidence of these two eye-witnesses also stands contradicted by the medical evidence. In the F.I.R. the version given is that Arshad appellant caused one injury with the Mohtair, whereas Javed Iqbal and Muhammad Ashraf were holding the ropes in their hands while the deceased was tied down with the Charpoi. Later on, in their statements at the trial, they changed their stance and deposed that in their presence Arshad appellant gave three blows with the blunt weapon. In these circumstances, there is material contradiction between the ocular version and the medical evidence, which makes the presence of these witnesses at the spot further doubtful. These witnesses did not try to apprehend the accused while they were running after the commission of crime, which shows their unnatural behaviour, because in villages, the people do their best to apprehend the assailants of their near kith and kins. According to Aurangzeb Draftsman (P.W.2) the height of the wall was not more than 4/5 feet and in this position the villagers could easily witness the crime, but the learned trial Judge has erred in law while discarding the defence plea on the sole ground that Badar?ud-Din and Muhammad Munir, witnesses from the locality were not examined by the appellants in their defence.

11. Safdar Ali, Inspector (P.W.8), who investigated the case admitted in his cross-examination that there were some Kikkar trees in the courtyard of the house and the room in which the occurrence took place could not be seen by a person standing in the Bazar, i.e. at the point mentioned in the F.I.R. Over and above this, the occurrence took place on 3-2-1989, whereas the post-mortem examination was conducted on 5-2-1989, which gives credence to the defence version that it was an un-witnessed crime. It appears that when the dead body of the deceased was found at the spot, the police on mere guess work imported the eye-witnesses from the village, referred to above, and these eye-witnesses on the basis of some strong suspicion lodged the F.I.R. nominating the appellants as accused persons. Had Bashir Ahmad P.W. lodged the F.I.R. on 3-2-1989, as deposed .by him before the police, then there would have been no excuse left with the Investigating Officer or the prosecution not to send the dead body on 4-2-1989, for post-mortem examination, because the doctor categorically deposed that he conducted the post-mortem examination on 5-2-1989, at 9-00 a.m., as and when he received the dead body. The statement of Muhammad Nawaz P.C. (P.W.4) is being contradicted by the statement of Ejaz Ahmad D.WS, who deposed that according to the Attendance Register, Dr. Iqbal Ahmad Javed was on duty on 4th February, 1989, as S.M.O., which clearly demolishes the prosecution version that post-mortem examination could not be conducted on 4-2-1989, as the doctor in charge was on leave.

There is divergent version given by Bashir Ahmad P.W.6 and Safdar AIL Inspector (P.W.8) with respect to the recording of the F.I.R. According to E Bashir Ahmad P.W. after the occurrence he went towards the bridge of village Proppian, where a police wagon was parked and he made statement Exh.P.D. there, whereas according to Safdar Ali, Inspector he recorded the statement of the complainant at Bridge Rakh Branch, Salarwala. The learned Judge has erred in law while not taking into consideration this apparent contradiction. Over and above this, the F.I.R. was not recorded at the police station, but was recorded on the basis of statement recorded in the way by Safdar Ali, F Inspector. This Court in many cases has observed that same sanctity cannot be attached to the F.I.R. which was recorded on the basis of Fard Bayan, because the Police Officer can conveniently give any time suitable to him while recording the statement of a person on the basis of which the formal F.I.R. is recorded. The statement was made before the Inspector after six hours of the occurrence which also supports the defence plea that the occurrence was unwitnessed and the witnesses were summoned from their village and they consumed much time to reach the spot, this caused the delay which remained unexplained.

12. The upshot of the above discussion is that in view of the infirmities, referred to above, the prosecution has miserably failed to prove its case against the appellants beyond reasonable doubt. Hence while accepting the three appeals viz. Criminal Appeals Nos. 793, 799 and 907 of 1990, filed by Javed Iqbal, Muhammad Ashraf and Arshad, respectively, I set aside their conviction and sentences and acquit them. They shall be set at liberty forthwith, if not required to be detained in any other case. The revision petition automatically fails and is dismissed in limine.

N.H.Q./J-67/L ???????????????????????????????????????????????????????????????????????????????????? Appeals accepted