MUHAMMAD TUFAIL Versus THE STATE
This judgment will dispose of Criminal Appeal No. 1077 of 2000 and Criminal Revision No.497 of 2000 directed against the judgment, dated 25‑5‑2000 passed by Muhammad Irshad Sipra, Additional Sessions Judge, Faisalabad, whereby he convicted the appellants under section 302(b), P.P.C. and sentenced them to undergo life imprisonment with fine of compensation amount Rs.5,000 each required under section 544‑A, Cr.P.C. Benefit of section 382‑B, Cr.P.C. was also granted to the appellants.
2. The brief facts as narrated by the complainant through Exh.P.A. are that he has shifted his residence from Chak No.355‑G.B. to Chak and his real nephew, Muhammad Nawaz also used to live he owns a donkey cart. Muhammad Aslam accused was also the house situated at Mughal Pura, Mohr 240. Muhammad deceased. On 26‑2‑1997 Muhammad Nawaz deceased went to Chak No.355‑G.B. to demand his amount from Muhammad Tufail, the brother of accused Muhammad Aslam. There a quarrel took place between Muhammad Nawaz deceased and Muhammad Tufail, Muhammad Aslam and Waqar but due to intervention of Muhammad Aslam son of Yaqub the dispute ended. The same day at Deegar Wela, Muhammad Aslam accused came to the complainant and his nephew and asked Muhammad Nawaz deceased to go with him and to receive his amount. Muhammad Aslam took Muhammad Nawaz with him. The complainant also accompanied them. Muhammad Aslam accused asked them to wait for him in their house at Chak No.355‑G.B. At about 10 p.m. at night when Muhammad Nawaz and the complainant were sitting in the room, Muhammad Aslam empty‑handed, Muhammad Ayyub armed with .7 mm rifle, Waqar Ahmad armed with carbine came there and Muhammad Aslam raised a Lalkara that they will teach him a lesson for disgracing them in the morning. The complainant and the deceased started running and when they reached in the street Muhammad Tufail armed with 7 mm rifle and Ibraheem armed with mouser were standing there who fired with their respective weapons hitting chest and right arm of Muhammad Nawaz who fell down. Muhammad Ayyub and Waqar Ahmad accused also fired with their weapons on the face of Muhammad Nawaz. The complainant raised hue and cry which attracted Mehran, Muhammad Anwar and they saw the occurrence. The motive behind this occurrence was a dispute on loan money and in this regard a day prior to the occurrence a quarrel had taken place between the parties.
3. After completing all the necessary proceedings Muhammad Hanif Khan, S.‑I., P.W.10 alongwith his subordinates proceeded to the spot. He prepared injury statement Exh.P.L., inquest report Exh.P.M. He collected the blood‑stained earth vide memo. Exh.P.B. He also received last‑worn clothes of the deceased vide memo. Exh.P.H. Thereafter, investigation of this case was transferred to different Police Officers. On 20‑11‑1997, Falak Sher, A.S.‑I. arrested Muhammad Ibraheem and on 30‑11‑1997 he got recovered pistol .30 bore P.4 from him vide memo. Exh.P.H. He initiated the proceedings against Muhammad Aslam and Waqar accused. Investigation of the case was also conducted by Sardar Muhammad S.‑I. who on 13‑7‑1997 had arrested Tufail and Ayyub accused in this case. On 2‑7‑1998 Jahangir Khan, A.S.‑I. on spy information arrested Muhammad Aslam and Waqar and sent them to judicial custody on 16‑7‑1998. Ultimately the accused were challaned and were sent to Court for trial.
4. The prosecution in order to prove its case has produced as many as 14 witnesses including Investigating Officers, Doctor, eye‑witnesses and other relevant persons. After tendering the evidence report of Chemical Examiner Exh.P.O., report of Serologist Exh.P.O./1 learned A.D.A. closed the prosecution evidence. Thereafter, statements of the accused were recorded under section 342, Cr.P.C. in which they pleaded not guilty and claimed to be tried. Two D.Ws. were also produced by the defence.
5. Learned counsel for the appellants in support of this appeal submits that appellants have been falsely implicated in this case, that the story narrated in the F.I.R. and even before the learned trial Court is most unnatural, unconvincing and improper. Learned counsel submits that there is conflict between ocular account and the medical evidence. Adds that according to P.W.2 matter was reported to the police on 27‑2‑1997 by Muhammad Hayat, Lamberdar of the area. He submits that the police station was at a distance of six miles from the place of occurrence, that the occurrence had taken place on 26‑2‑1997 at 10 p.m. but the matter was reported after 12 hours without any proper explanation. Adds that no crime‑empty was recovered from the spot, that the complainant was not the resident of the place of occurrence. He used to live 10 miles away from the place of occurrence which makes his presence at the spot doubtful. Adds that as far as motive is concerned, prosecution has failed to prove the same. He submits that no independent witness has been produced from locality, although the place of occurrence was surrounded by inhabited houses. Lastly he submits that no case is made out against the appellants.
6. On the other hand learned counsel for the complainant who has also filed a Criminal Revision No.497 of 2000, submits that appellants are named in the F.I.R. with specific roles, that ocular account is corroborated by medical evidence, that if there are minor discrepancies i.e. due to simplicity of the P.Ws. Learned counsel for the complainant submits that Jehangir Khan, A.S. ‑I. P.W.11 has stated before the learned trial Court that Muhammad Aslam and Waqar P.Os. were arrested by him on 2‑7‑1998 and after getting their remand he sent them to judicial lock‑up on 16‑7‑1998. Learned counsel further submits that P.W.13 Falak Sher, A.S.‑I. arrested Ibraheem appellant on 30‑11‑1997 while Muhammad Tufail and Muhammad Ayyub were arrested on 13‑7‑1997 by P.W.14. Learned counsel for the complainant submits that this is very strong circumstance against the appellant. Adds that the ocular account is also corroborated through abscondence of the present appellants.
7. Learned counsel for the State, on the other hand, submits that this case is of doubtful nature.
8. I have heard the learned counsel for the parties. The motive behind the present occurrence was that deceased Muhammad Nawaz used to reside in Chak No.240 Mohr alongwith the complainant Nosher. He used to run a donkey cart to earn for his livelihood. Muhammad Aslam accused had taken a loan of Rs.10,000 from Muhammad Nawaz. On 26‑2‑1997 i.e. day of occurrence, Muhammad Nawaz demanded his loan amount on which a quarrel took place between the parties and the matter was patched' up by Muhammad Aslam son of Yaqub caste Kharal. This witness was never produced by the prosecution to prove the motive. The story further proceeded that at evening time Muhammad Aslam accused came to the house of‑the complainant where the complainant and Muhammad Nawaz deceased were sitting. Muhammad Aslam appellant asked Muhammad Nawaz deceased that he has got the loan money with him at his residence situated at Chak No.355‑G.B. and he should come with him to get the same. According to Nosher Muhammad Aslam accused and Muhammad Nawaz deceased went together. First of all question arises that when Nosher complainant was in the knowledge of quarrel between Aslam accused and Muhammad Nawaz deceased which had taken‑place in the earlier part of the same day, then why he allowed the deceased to accompany Muhammad Aslam appellant. Further, contention of the complainant in the F.I.R. is that he also followed both of them and in fact went alongwith them because he had some apprehension in his mind as the quarrel had taken place on the same day. This story of the prosecution is totally unnatural and unconvincing. In fact the complainant should not have allowed the deceased to accompany the appellant Muhammad Aslam. The complainant was residing in Chak No.240 Mohr while the occurrence had taken place 10 miles away from his residence i.e. in Chak No.355‑G.B. I am not going to believe his statement. He was not present at the spot. According to him his real nephew was murdered before his eyes but he did not report the matter to the police for the long 12 hours though the police station was at a distance of 6 miles. Mettled road was there on which vehicle used to ply. This shows that neitheTthe complainant nor Mehram P.W. were present there. Even Muhammad Anwar another eye‑witness (not produced) who was closely related to the complainant and cousin of the deceased, did not report the matter to the police.
9. Doctor Tahir Mehmood who had conducted the post‑mortem examination on the dead body of the deceased at 4‑30 p.m. on 27‑2‑1997 i.e. next day of the occurrence. I am fully convinced that the matter was not reported to the police even at 10 p.m. on 27‑2‑1997. Had the matter been reported to the police on 27‑2‑1997 the post‑mortem examination at such a late stage could not have conducted because Maghrab Prayer used to take place at about 4‑45 or 5 p.m. in those days. Doctor had stated in his cross‑examination that at the time of post‑mortem examination he I found food in the stomach of the deceased and according to him the said food was taken by the deceased 1 or 1‑1/2 hours prior to the occurrence while on the other hand complainant in his statement had stated that he and the deceased had not taken the dinner. This also shows non‑presence of the complainant alongwith the deceased. Mehram who claims to be the neighbour of the house of the deceased where the occurrence had taken place, has stated in his statement while appearing as P.W.2 that on the next morning the matter was reported to the police by Muhammad Hayat, Lambardar, although, later on stated that matter was reported to the police by one P.W. No crime‑empty was recovered from the spot. The occurrence had taken place in thickly‑populated area having houses around it. Neither single witness from the locality was cited nor any witness was produced by the prosecution. I would also refer some lines from the statement of P.W.10. Investigating Officer who had stated that he alongwith other police party reached at the spot at 10‑30 a.m. He took 15 minutes in making injury statement and inquest report. F.I.R. No. came to his knowledge at 5 p.m. at the place of occurrence. If F.I.R. No. came to his knowledge at 5 p.m. and the post‑mortem was conducted at 4‑30 p.m. on 27‑2‑1997 on the same day, how he came to know the number of F.I.R. before the post‑mortem examination and wrote the same in the injury statement. He also admitted that at the time of preparation of injury statement F.I.R. was not received by him. Appellants had produced two D.Ws. also namely Ijaz Ahmad, Inspector D.W. 1 who had stated in his cross‑examination that neither he found present appellants guilty or innocent in this case, then D.W.2 Muhammad Aslam, A.S.‑I. was examined, who stated that he was acquainted with the Handwriting and signatures of Mehr Taj Muhammad, S.H.O. who was killed in a Police encounter. According to him Mehr Taj. Muhammad S.H.O. had conducted the investigation. He had written the case diaries in this case, according to his investigation the occurrence had taken place at night and the accused were falsely involved in this case. The complainant came to know about the occurrence on the following day.
10. As far as abscondence of the appellants is concerned, it cannot be taken into consideration in the instant case and merely on the abscondence no person can be convicted. If other incriminating evidence is not available on record then abscondence has no relevancy. In this regard 1995 SCMR 1373 titled as Rasool Muhammad v. Asal Muhammad and 3 others is very much clear, specially headnote, D, of said judgment which is reproduced below:‑‑
"‑‑‑S.302/34‑‑‑Abscondence‑‑Abscondence per se is not proof of the guilt of an accused person‑‑‑Disappearance of a person named as a murderer/culprit after the occurrence is but natural, whether named rightly or wrongly."
11. After having heard the learned counsel for parties and also gone through the record available on the file, I am fully convinced that both the eye‑witnesses were not present at the spot. They are fabricated witnesses, they had not witnessed the occurrence. This case is full of doubts and benefit of doubt is always given to the accused not as a matter of grace but as a matter of right. In this view of the matter, this appeal is accepted and the conviction and, sentence is set aside. The appellants are behind the bars, they are ordered to be released forthwith if they are dot required in any other criminal case. The Criminal Revision No.497 of 2000 filed against the appellants for the enhancement of their sentence, is dismissed.
N.H.Q./M‑1012/L Appeal accepted.