JAFFAR ALI ALIAS ZAFAR HUSSAIN Versus THE STATE
Jaffar Ali alias Zafar Hussain (25) was convicted under section 302, P.P.C. for the murder of Muhammad Anwar (35) by learned Additional Sessions Judge, Sheikhupura, vide judgment, dated 31-5-1992 and sentenced to imprisonment for life and a fine of Rs.10,000 or in default to undergo six months' R.I. He was also directed to pay a compensation of Rs.10,000 to the heirs of the accused. His to-accused Muhammad Anwar and his sister Mst. Balqees Bibi were acquitted. The convict has come up in appeal.
2. Muhammad Ibrahim complainant (P.W.4) has filed Criminal Revision (No.736 of 1992) against acquittal of the two accused and another Criminal Revision (No. 495 of 1992) for the enhancement of the sentence of the appellant. All the three matters are being disposed of by a single judgment.
3. The occurrence took place in the area of village Sikhanwala Bungalow at 2-00 a.m. on 22-6-1990 at a distance of 4 miles from Police Station Sharaqpur. Muhammad Anwar son of Muhammad Ibrahim complainant, (P.W.4) was injured in the occurrence. He was firstly carried to hospital at Sharaqpur and from there shifted to Mayo Hospital, Lahore. Muhammad Ibrahim complainant (P.W.4) made statement (Exh.P.E.) before Munir Ahmad, A.S.I. (P.W.13) in Mayo Hospital, Lahore at 7-00 a.m. on the same day and it was sent to the police station where formal F.I.R. (Exh.P.E./1) was registered at 8-30 a.m. the same day.
4. According to the F.I.R. Muhammad Anwar deceased wanted to have round of fields to check up irrigation water and when he did not return the complainant started towards the fields and was going on a bank of Rajbah Sikhanwali. He saw found unknown persons going along the Rajbah and his son Anwar confronted them and asked them who they were. One of them fired with his carbine hitting him (Anwar) on his abdomen. The four persons ran away. Complainant raised alarm attracting Muhammad Ramzan and Muzaffar Hussain (not produced) and others who witnessed the occurrence. Anwar fell down on the receipt of the shot and was taken to the hospital to Sharaqpur. The doctor advised him to take him to Mayo Hospital, Lahore. It is also in the F.I.R. that Muhammad Anwar was married to Mst. Balqees Bibi accused who was not living with him and had rather filed a maintenance petition with the Union Council Sajuwal and obtained a decree which was now under appeal with Deputy Commissioner, Sheikhupura. She and her brother Muhammad Anwar accused had even previously extended threats of murder 2/3 times. Suspicion was expressed that they (Mst. Balqees Bibi and her brother Muhammad Anwar) had got the deceased fired upon from the four unknown persons.
5. - Dr. Bashir Ahmad (P.W.10) was the Medical Officer in Rural Health Centre, Sharaqpur ,Sharif. On 22-6-1990 he medically examined Anwar deceased at 2-15 a.m. when he was brought by Muhammad Abbas Constable (P.W.11). He was in a grievous condition with a fire-arm injury in abdomen. The fire had made an entry wound in front with exit on the back. He was referred to May Hospital, Lahore. The injury was declared dangerous to life. The weapon was fire-arm. The deceased was brought within half an hour.
6. Dr. Syed Zia-ud-Din (P.W.12) performed the post-mortem examination on the dead body on 25-6-1990.
7. Munir Ahmad, A.S.I. (P.W.13) after recording statement (Exh.P.E.) of the complainant in Mayo Hospital, Lahore reached the spot. He collected blood-stained earth from the spot vide memo. (Exh.PA.) and an empty cartridge made into sealed parcels vide memo. (Exh.PA/1). He received the information on 24-6-1990 that Muhammad Anwar had expired in the hospital at Lahore. He reached there and got the autopsy done. In cross-examination he admitted that according to the F.I.R. Muhammad Ramzan and Zafar Hussain and many other persons of the village had witnessed the occurrence. He made inquiry but nobody supported the version of the complainant nor any eye-witness appeared before him.
8. Abdul Ghafoor, Inspector (P.W.14) took over the investigation of the case on 24-6-1990 from Munir, A.S.I. He visited the spot. He recorded the supplementary statement of the complainant. He arrested War accused on 22-7-1990 when he was in possession of .12 bore gun and three cartridges (Exh.P.5/1-3) which he took into possession vide memo. (Exh.P.D.) He arrested Anwar accused on that very day and joined Mst. Balqees Bibi in the investigation. In cross-examination he admitted that on the very day of arrest Anwar accused raised the plea of innocence and so did Mst. Balqees Bibi on 2-8-1990 when she was treated under arrest while on bail before arrest. Many persons appeared in support of their plea. He had declared both of them to be innocent.
9. The appellant in his statement at the close of the trial stated that he had been falsely involved on account of suspicion and party faction in the village.
10. The eye-witness account of the occurrence is given by Muhammad Ibrahim complainant, Muhammad Hayat and Muhammad Hanif (P.Ws.4, 5 and 6). Muhammad Ibrahim is the father of the deceased and Hayat is his nephew. Hanif is also from their brotherhood. The version of the occurrence as given in the F.I.R. was completely disowned by the -complainant and he was confronted and contradicted with the whole of the same. Their version at the trial was that Muhammad Hayat had gone to visit Ibrahim complainant, Hanif had come to take rupees two thousand from the complainant, they were talking at night whether deceased went out to have a round of the fields at 10/11 p.m. according to Muhammad Hayat and at dead of night according to other two. When he did not return for 1-1/2 or 2 hours they went in his search, the complainant was on one bank of the canal and the other two on the other, at a distance of about two acres from the Dera of the appellant they heard the report of a gunshot, a person passed from near them and it was identified as the appellant and when they further proceeded they found the deceased lying injured. This was not the version of the complainant before the police and he was properly confronted and contradicted. It is clear from the statements of the three witnesses that the injured was soon taken to hospital at Sharaqpur where the police also reached. But the statement of Muhammad Hayat and Muhammad Hanif were, according to their own version, recorded on the 3rd day. Why the appellant was not named when just after the occurrence in the hospital the police had come across the complainant and the witnesses and the identification of the culprit i.e. War appellant was well-known. The version having been completely changed and that too it seems, after the death of the deceased, the witnesses cannot be relied upon. The only evidence with the prosecution is recovery of the crime empty from the spot and gun from the appellant which have matched according to the Forensic Expert Report. Even if the evidence is fully believed in this respect, it will only mean A that the shot was fired at the spot from the gun recovered from the appellant. There being no other connecting link, the charge could not have been concluded against the appellant. The contention of the learned counsel for the appellant is accepted.
11. The upshot is that the appeal succeeds, the conviction and the sentence of the appellant are hereby set aside and he is granted the benefit of 8 doubt. He is acquitted of the, charge. He be set at liberty forthwith, if not required to be detained in any other case. The revision petitions consequently fail and are hereby dismissed.
N.H.Q./J-52/L ???????????????????????????????????????????????????????????????????????????????????? Appeal accepted.