UMAR DRAZ Versus STATE

SARDAR MUHAMMAD DOGAR, J. --- Umar Draz (30), Sherbaz (27) and Ghulam Muhammad alias Gulla (23/24) were tried by Additional Sessions Judge, Bhalwal, District Sargodha, for having murdered Bhai Khan during the night between 3rd and 4th of February, 1989, in the area of Village Fatehpur, Purana Bhalwal within the jurisdiction of Police Station, Bhalwal, District Sargodha.

Vide judgment, dated 11-4-1990 they were convicted under section 302/34, P.P.C. and sentenced as follows:--

Umar Draz Death

Sherbaz and Ghulam Muhammad Imprisonment for life each. alias Gulla.

All of them have also been sentenced to pay a fine of Rs.20,000 each, in default whereof to undergo R.I. for 3 years each. Whole of the amount of fine on recovery has been directed to be paid as compensation to the heirs of the deceased.

2. The reference made by learned trial Judge, the appeal filed by the convicts and the revision petition filed by the complainant for enhancement of sentences of Sherbaz and Ghulam Muhammad, with a prayer to enhance the sentence of fine of each convict, are being disposed of together, having arisen out of the same judgment.

3. F.I.R. Exh.P.E. was registered at the Police Station by Riaz Ahmad, A.S.I. P.W.9 at 12-30 p.m. on 4-2-1989, on the statement of Javed Iqbal P.W.7.

According to F.I.R. the deceased was serving as a Gunman in the Sarafa Bazar National Bank Branch, Bhalwal. He had gone to his house in Village Nari on 1-2-1989 and returned the same evening. He had asked his son Javed Iqbal to visit him at Bhalwal on 4-2-1989. Javed lqbal came to Bhalwal on that day in the morning accompanied by Umar Draz son of Muhammad Amir and Sherbaz son of Umar Hayat. The Bank employees told him that they had found the bank locked in the morning and Bhai Khan was missing. The complainant set out to inquire about his father. At 10-30 a.m. he came to know that a dead body was lying in the Saim Nalla in the area of Purana Bhalwal he went there alongwith his companions and identified the dead body to be that of his father Bhai Khan. He appeared to have been murdered. The complainant stated that they had no enmity with anyone and nor he could lay suspicion on anybody.

4. Riaz Ahmad, A.S.I. after registering the case, reached the spot, and despatched the dead body for post-mortem examination, after preparing necessary papers. Blood-stained earth was also collected by him from the spot, vide memo. Exh.P.C. The investigation was thereafter taken over by Ahmad Khan, S.I. P.W.13.

Ahmad Khan, S.I. arrested Umar Draz, Sherbaz and Ghulam Muhammad alias Gulla (appellants) on 18-2-1989. Wagon No.5264/BUA produced before him on the same day by the father of Umar Draz, was taken into possession vide memo Exh.P.B. .12 bore carbine P.1 alongwith empty cartridge P.2 in the chamber, got recovered by Umar Draz on 21-2-1989 was taken into possession by the S.I. vide memo. Exh.P.D. After completion of investigation, challan was submitted to Court.

5. Statements of thirteen P.Ws. were recorded at the trial.

Dr. Aman Ullah Khan who had performed autopsy on 4-2-1989 at 3-00 p.m. appeared as P.W.10. He had noted following injuries on the body of the deceased:--

(1) A lacerated wound measuring 3.5 c.m. x 2.5 c.m. with burning with inverted margins on the left lateral aspect of left chest. It was a wound of entry.

(2) A lacerated wound measuring 0.5 c.m. x 0.5 c.m. on the front of chest with margins everted and it was a wound of exit.

(3) A lacerated wound measuring 0.5 c.m. x 0.5 c.m. on the front of rightchest 1 c.m. above the right nipple. It was a wound of exit.

On opening, 3rd, 4th and 5th ribs were found fractured. Pleura was punctured, and there was exit wound on the right side. Pericardium was also punctured. Eight pellets were removed from within the body. ijeath was opined to have occurred due to shock and haemorrhage, resulting from injuries Nos.l to 3, which had resulted from a fire-arm. Probable time between the injuries and death was opined to be immediate while the time between death and post-mortent was opined to be within 18 to 24 hours.

During cross-examination he stated that he had noted the time of death in the post-mortem report as 9/10-00 p.m.

6. Out of the remaining P.Ws., Malik Fazal Elahi P.W.4 and Muhammad Hanif P.W.8 deposed about the extra judicial confession made by the appellants before them, while Haji Muhammad Nawaz P.W.5 claimed that he had seen the appellants sitting with the deceased a day before the deceased was found murdered. He also claimed to have witnessed the collection of blood stained earth from the place, where the dead body was found lying, as well as recovery of carbine and empty, at the instance of Umar Draz appellant on 21-2-1989.

7. Javed Iqbal son of the deceased, who had lodged the F.I.R., while appearing as P.W.7, repeated the facts given by him in the F.I.R: and also added that the three accused had informed him on 3-2-1989, that they were going to Sargodha in connection with the repair of their Wagon No.5264/BUA, which was jointly owned by them alongwith his father. He stated that he had asked Umar Draz to take him along but the accused had told him to stay back. He also claimed to have witnessed the collection of blood-stained earth from the spot as well as recovery of carbine and empty cartridge, at the instance of Umar Draz appellant on 21-2-1989.

8. Riaz Ahmad, A.S.I. who had registered the case, appeared as P.W.9. While deposing that fact he also claimed to have visited the place where the dead body was lying and of having despatched the same for post-mortem after preparing injury statement and inquest report.

9. Haji Ahmad Khan, S.H.O. who had also investigated the case, while appearing as P.W.13, stated that he had arrested all the accused on 18-2-1989 and had taken into possession carbine P.1 and empty cartridge P.2 got recovered by Umar Draz on 21-2-1989. He stated that the challan was submitted to' Court by him on completion of necessary investigation.

Statements of the remaining P.Ws. are more or less of a formal nature.

10. The appellants during their statements under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence. They neither adduced any evidence in defence nor opted to make statements on oath under section 340(2), Cr.P.C.

11. Javed Iqbal son of the deceased had not named any of the appellants as accused while lodging the F.I.R. He had not even expressed any suspicion against them.

Although the prosecution led evidence at the trial, in the form of extra-judicial confession by the appellants, before P.W.4 and P.W.8, that there was some dispute over repayment of loan of Rupees one lac, obtained by Umar Draz appellant from the deceased, but the son of the deceased did not state anything in that regard. He did not claim that Umar Draz appellant had obtained a loan of Rupees one lac from his father and that he was trying to find excuses for non-payment of same. The statement made by him at the trial that the accused had left their village a day before the dead body of his father was found in the Saim Nallah, on the pretext that they were going to Sargodha for getting the wagon repaired, apart from being an improvement, even otherwise does not lend any corroboration to the other evidence produced, to connect the accused with the commission of crime. He did not state that the accused had told him that they will take his father alongwith them, for getting the wagon repaired. Even if they were to go to Sargodha for repair of the wagon, the purpose of that journey would not connect them with the commission of crime.

12. Malik Fazal Elahi P.W.4 and Muhammad Hanif P.W.8 were not only present when the inquest report was prepared on 4-2-1989 but had attested the same as well. The police had reached the place where the dead body was lying at 2-00 p.m. on that day. The Investigating Officer must have taken about 2 hours to inspect the spot, prepare the injury statement and draft the inquest report. P.Ws. Fazal Elahi and Muhammad Hanif would have been free to move away from the place, after the dead body would have been despatched to the mortuary for post-mortem examination. Both of them were residents of Village Nari, which according to P.W.4 was at a distance of 60 miles from the place of occurrence. Both claimed that the accused had come to them at their houses one after the other and confessed of having committed the murder, on 4-2-1989 at 4-00 p.m. Since apart from the oral statement of the Investigating Officer there is documentary evidence also that they were present with the police at the spot, when the inquest report was prepared, it has got to be granted that they could not have reached their houses in their village, which was at a distance of 60 miles, at 4-00 p.m. Their very claim of being in their houses at that time, is therefore, highly doubtful.

The manner in which they claimed that the accused made confession before them, is also unnatural. According to them, the accused came one after the other, to each of them with intervals and made confession. If the accused were to go to the same person on the same day at the same places, round about the same time, they could have gone together as well. There would have been no necessity for them to have gone one after the other to the same places and the same persons, at short intervals to make same type of statement, for the same purpose, i.e. seeking help.

As noted above, no body appeared at the trial from the family of the deceased to say that Umar Draz owed a sum of Rupees one lac to the deceased. Even his son who had lodged the F.I.R. did not state that. In the circumstances, there would have been no reason for the accused to have divulged that fact.

13. Muhammad Hanif P.W.8, apart from being cousin of the deceased, was also brother of Lai Khan, who was father-in-law of the son (complainant) and daughter of the deceased. He was thus an interested witness due to being close relative.

He had faced trial for the murder of Gul Muhammad uncle of Umar Draz appellant. Although he claimed that he was acquitted in that case due to compromise, yet his claim was challenged. He would, thus be unhappy with Umar Draz and might be inimical to him.

Sherbaz appellant was alleged to have abducted his (Muhammad Hanif's) sister's daughter and married her. Although he denied that Sherbaz had abducted his sister's daughter, yet he did not deny that he was married to his sister's daughter. He thus, would not be having smooth relations with him as well. He was neither a Lumberdar nor a Councillor, nor had any influence with the police, even according to his own sayings. There would, thus, have been no reason for the appellants to have gone to him to make confession.

14. Malik Fazal Elahi P.W.4 had once been challaned under section 302, P.P.C., convicted thereunder and sentenced to death as well. Although he was acquitted in that case yet according to his own sayings, he had been challaned in quite a few criminal cases. He had appeared as a P.W. also in quite a few criminal cases. He was thus not a person of clean antecedents. He was co accused of the deceased in a case under section 307, P.P.C. He would, thus be having soft corner for his deceased friend.

Both, i.e. Malik Fazal Elahi and Muhammad Hanif did not care to take into custody the accused when they had confessed their guilt before them. As mentioned above, one of them was closely related to the deceased while the other was friendly to him. If the accused had confessed before them, they would not have let them go away. they could even by way of manipulation, have told them that they would help them, in case they accompany them to surrender before the police. There would, thus have been no difficulty for them to have got them arrested.

Keeping in view all the facts, grave doubts have arisen in our mind about the veracity of the evidence of extra-judicial confession. The same has got to be excluded from consideration for safe administration of justice.

15. As noted above, there is no ocular account in this case. No evidence regarding motive for the occurrence was produced. The son of the deceased also did- not state anything in that regard. The evidence of extra-judicial confession stands discarded.

16. In the circumstances, the evidence of recovery of carbine with empty cartridge in the chamber, does not advance the prosecution case, in any manner, particularly so when the statements of the witnesses regarding recovery, are not confidence inspiring, apart from the fact that the same has been deposed to by a son of the deceased and by a brother of wife of the deceased. Their statements are even otherwise discrepant regarding the manner in which the recovery was effected.

For all the reasons noted above, we are convinced that the prosecution has failed to prove the case against the appellants beyond reasonable shadows of doubt. The appeal filed by them is, therefore, allowed, and the appellants are acquitted. Sherbaz and Ghulam Muhammad appellants are already on bail. Their bail bonds and the sureties stand discharged.

17. Since the respondents (in revision petition) have been acquitted, the question of enhancement of their sentences does not arise nor the question of enhancement of sentences of fine arises. The revision petition, which is still at motion stage is, therefore, dismissed.

N.H.Q./U-20/L Appeal allowed.