AAMAR ARSHAD Versus STATE
KHALIL-UR-REHMAN RAMDAY, J. --- Amar Arshad and Zia-ud Din appellants had been tried by a learned Additional Sessions Judge of Jhang for the murder of one Irfan Hussain. Through a judgment, dated 24-10-1991 both of them were found guilty of the charge and upon their conviction under section 302/34, P.P.C. Amar Arshad was punished with death and a fine of Rs.50,000 and five years' R.I. in default while Zia-ud-Din was punished -with imprisonment for life and a fine of Rs.50,000 and five years' R.I. in default. Half of the amount of fine was directed to be paid to the heirs of the deceased, as compensation.
2. Murder Reference No.485 of 1991 seeks confirmation of the above mentioned sentence of death whereas the two convicts have filed Criminal Appeal No.1115 of 1991 to impugned the above-noticed conviction and sentences recorded against them. Both these matters are being disposed of together through this single judgment.
3. The occurrence in question had taken place on 26-4-1991-at about Doparhair Wela in the graveyard located at Gojra Road about four miles away from Police Station Sadar of District Jhang. The said occurrence had been reported by Imran Hussain (P.W.7) to Babar Anwar, S.I. (P.W.11) at Police Post Satellite Town, Jhang at about 5-45 p.m. on the day of occurrence in pursuance of which a formal F.I.R. had been registered at the above mentioned police station at about 6-25 p.m.
4. The complainant had informed the said Police Officer that he had a younger brother by the name of Irfan Hussain who was running a Muniari shop in Chambeli Market of Jhang Sadar and had friendly relations with Amar Arshad and Zia-ud-Din. He had added that the said Amar Aishad and Zia-ud Din had recently opened a T.V./V.C.R. shop and had taken Rs.50,000 from Irfan Hussain and had committed to pay profit to the said Irfan Hussain on the said amount of loan. The complainant had further claimed that whenever the said Amar and Zia required to make purchases in connection with their above mentioned shop, they used to consult Irfan Hussain in the matter. The complainant had further disclosed that on the day of occurrence he was present in the house of his brother Irfan Hussain at about Dopahair Wela when the said Amar and Zia took Irfan Hussain with them on the pretext of purchasing a VCR and all three of them had left the house of Irfan on his motorcycle. The complainant had further alleged that after, about an hour one Khalid informed him that he had gone to the graveyard on Gojra Road alongwith the complainant's other brother, namely, Kamran Hussain where they had heard alarm raised by Irfan and on being attracted Khalid and Kamran had seen Amar and Zia dragging the said Irfan towards the graveyard and just as Khalid and Kamran had rushed to rescue the said Irfan, Zia accused held Irfan while Amar fired a shot with a pistol which landed above the heart of the said Amar who succumbed to the said injury at the spot. Imran complainant had further reported that the said Khalid P.W. had further told him that he had left Kamran to guard the dead body of the deceased which was lying at the place of occurrence. The complainant had claimed that Amar and Zia accused had done Irfan deceased to death in order to misappropriate the abovementioned amount of money.
5. On receiving this information, Babar Anwar S.I./I.O., reached the place of occurrence and besides the dead body, found the motorcycle (P.17) at the spot which was seized vide memo. Exh.P.J. On searching the dead body he had found an amount of Rs.1,737 in the pocket of the deceased. He had also found a gold ring (P.10) and a watch (P.11) and had taken all these articles into possession vide memo. Exh.P.E.
6. During the course of investigation he had arrested both the appellants on 3-5-1991 whereafter Amar appellant had allegedly led to the recovery of revolver (P.12) with four live cartridges (P.13/1-4) and one empty (P.14) which he had taken into possession vide memo. Exh.P.F. On the same day Zia had led to the recovery of a revolver (P.15) with five cartridges (P.16/1-5) which he had secured vide memo. Exh.P.G.
7. As per the report of the Forensic Science Laboratory (Exh.P.J.) the empty (P.14) had been found to have been fired from revolver (P.12) recovered at the instance of Amar appellant.
8. Dr. Muhammad Zafar Iqbal Khan (P.W.1) conducted the post mortem examination of the dead body of the deceased on 27-4-1991 at about 7-50 a.m. He found four abrasions including multiple abrasions on the outer side of right upper part, on the outer and back of right fore-arm upper part, on the back of right ring-finger and on the back lower lumber region. Besides these injuries he had also found a fire-arm wound of entry on the front of left chest of the deceased, the margins of which wound had blackening around them.
9. This doctor had also found a bullet which he had recovered from the body of the deceased and had handed over the said bullet in the shape of sealed phial to Ghulam Shabbir F.C. (P.W.3), who in turn handed over the same to the Investigating Officer on 27-4-1991. This bullet found in the body of the deceased had never been sent to the Forensic Science Laboratory and only crime-empty (P.14) which had 'been found in the chamber of the revolver (P.12), had been sent to the Laboratory for examination.
10. When confronted with the prosecution case, both the appellants pleaded innocence and denied their participation in the occurrence in question. Amar Arshad appellant had further claimed that the deceased had married one Mst. Shahida against the wishes-of his family on account of which the relations of the deceased with his brothers and parents had become strained as a result of which the deceased had started living separately; that the deceased had even filed a civil suit against his brother Imran Hussain complainant which had been decided in favour of the deceased on 24-4-1991 that a daughter of an uncle of the complainant was getting married on 26-4-1991 and while all the P.Ws. were attending the said wedding the deceased and his in-laws had not participated in the same due to strained relations; that the dead body of the deceased had been found lying in the graveyard and it was through the I.D. Card of the deceased that he had been identified whereupon the family of the deceased had been traced out who then falsely involved the appellant because a day prior to the occurrence the deceased had come to the shop of the appellant to sell a pistol which he was carrying and had been seen at the shop by the complainant and that it was on account of mere suspicion that the appellant and his co accused, namely, Zia appellant had been involved in the occurrence in question.
11. Canvassing acquittal for the two appellants their learned counsel argued that the two eye-witnesses were chance witnesses of the occurrence in question; that the said occurrence was an unwitnessed occurrence and the appellants had been falsely involved merely on account of suspicion; that the prosecution had failed to prove the motive and that in the circumstances it could not be said that the prosecution had succeeded in proving the guilt of the two appellants.
12. It is true that both the eye-witnesses out of whom Kamran (P.W.9) was a brother of the deceased and Khalid (P.W.10) was a brother-in-law of Imran complainant, had no enmity whatsoever with the appellants but this fact alone is not by itself sufficient to warrant a blind reliance upon their testimony. The intrinsic worth of the evidence offered by these witnesses has to be evaluated and it is only when their statements inspire confidence that they can be credited with reliance.
13. It has come on record that all the family members of the deceased lived jointly in one and the same house while the deceased was the only one who was living separately from other members of his family. Aar appellant had claimed that a daughter of an uncle of the complainant was getting married on 26-4-1991 and that all the P.Ws., were attending in the said marriage and the deceased was the only one from their family who was not attending the same.
14. Imran Hussain complainant admitted, though reluctantly, that the marriage of a daughter of Muhammad Qaisar who was a brother of his uncle Sultan, had taken place on 26--4-1991 i.e. on the day of occurrence but claimed that it was only his father who had attended the said wedding having gone there at about 9/10 a.m. and having returned home in the evening and that he had not attended the said marriage. It may be mentioned here that Sultan abovementioned whose brother's daughter was getting married on the day of occurrence was the one at whose grave Kamran P.W. had gone to offer Fatiha besides the grave of his grandmother. It is not readily believable that while the complainant party would be so close to the said Sultan that the members of his family would go to his grave to offer Fatiha, at the same time they would be so distant from a brother of said Sultan that only the father of the complainant, the deceased and Kamran P.W. would attend the wedding of the daughter of the said brother of Sultan and other members of the complainant's family would stay away from the same. Kamran and Khalid P.Ws. claimed that they just happened to have gone to the graveyard in question to offer Fatiha at the grave of paternal-grandmother and of Sultan when the deceased was also brought there and had been done to death. This is too much of a coincidence which is hard to digest. People going to the graves of their elders is not unknown but then no explanation was offered by these two eye-witnesses as to how they happened to go to the graveyard to offer Fatiha on the day of occurrence at Dopairwela. From the record it appears that the day of occurrence was the only day when the two eye-witnesses had decided to perform this ritual.
15. If the two appellants had decidcd to eliminate the deceased then it is not understood as to why they had selected a broad daylight time to do him to death. It is also not understood as to why the two appellants had to drag the deceased for about 25 Karams into the graveyard to shoot at him and why this ceremony could not be performed at the point from where they had started dragging the deceased to the graveyard. It is not denied that the two appellants were known to the complainant party. If they had taken away the deceased from his house then they appear to have planned to kill the deceased secretly. The eye-witnesses claimed to have reached the place of occurrence on hearing the alarm and the two appellants would have obviously realised that two close relatives of the deceased had witnessed them with the deceased and thereafter the appellants having shot at the deceased is not digestable which would, be in contrast with the alleged plan of the appellants to stealthily do away the deceased. If the two eye-witnesses had witnessed the occurrence then it is difficult to comprehend as to why a real brother had decided to stay back with the dead body and as to why Khalid P.W. had been sent to report the occurrence. The police post was not very far away from the place of occurrence and it is also mysterious that Khalid had decided not to rush to the said police post for lodging the report and had instead chosen to establish contact with Amar appellant and to report the occurrence to him.
16. All the above-noticed facts cast rather serious doubts about the presence of the two eye-witnesses at the place of occurrence at the relevant time. Further doubt is cast on the prosecution case when it is noticed that the bullet recovered from inside the dead body had not been sent to the Forensic Science Laboratory.
17. Then there is delay in the lodging of the F.I.R. which in the above mentioned circumstances becomes quite material. The two eye-witnesses had a motorcycle with them. Even if it be presumed for the sake of arguments that B Khalid (P.W.) had first gone to the house of the complainant and from there they had gone to the police post to lodge the report even then it should not have taken them more than 40/45 minutes to reach the said police post. The eye-witnesses appear to be educated persons living in the city who are expected to be in possession of wrist-watches, yet the time of occurrence mentioned above was Dopairwela which appears to have been done only to cover the delay in the lodging of the F.I.R. Although it was an improvement nevertheless, it had been claimed that the two eye-witnesses had gone to the graveyard after Juma prayer. Judicial notice can be taken of the fact that Juma prayers are held latest by 2 p.m. in the month of April. Even if this was presumed that the occurrence had taken place after Juma prayer even then there was a delay of about four hours in the lodging of the report about the occurrence in question:
18. Then there is the absence of the presence and the consequent non recovery of blood-stained earth from the place of occurrence in spite of the fact that both the chambers of the heart of the deceased had been found empty. No explanation could be offered by the prosecution for non-availability of the blood at the spot where the deceased had been allegedly shot dead. This C fact and circumstance has further comfounded the confusion already created about the prosecution case.
19. From the above-noticed facts, the possibility of the occurrence having gone unwitnessed and the assailants having escaped unidentified could not be D ruled out. Such doubts having emerged about the prosecution case, we would find it unsafe to base any conviction on the strength of such a prosecution testimony.
20. Consequently, the impugned conviction and sentences recorded against the appellants through the judgment, dated 24-10-1991 of the learned Additional Sessions Judge of Jhang are set aside. Both the appellants, namely, Amar, Arshad and Zia-ud-Din are acquitted of the charge under sections 302/34, P.P.C. and shall be set at liberty forthwith if not required to be f detained in any other case.
21. Criminal Appeal No.1115 of 1991 is, therefore, allowed and Murder Reference No.485 of 1991 is accordingly answered in the negative.
N.H.Q./A-656/L Appeal allowed.