MUHAMMAD RAFIQ Versus THE STATE

JDUGMENT

This judgment will dispose of Criminal Appeal No.434/J of 2001 filed by Muhammad Rafique, appellant who was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life with further direction to pay Rs.30,000 as compensation, in default R.I. for six months by learned Additional Sessions Judge, Sheikhupura vide judgment dated 3-11-2001.

Criminal Revision No.859 of 2001 filed by the complainant for enhancement of sentence of convict shall also be disposed of through this single judgment.

2. Briefly stated the facts of the case are that at 10/11 p.m. on 20-11-1999 Muhammad Hussain, the complainant alongwith Abdul Sattar, Ishfaq, Javed and Irshad was returning on two bicycles after leaving tractor at the Dera of one Liaqat. The complainant and Abdul Sattar was, on one bicycle whereas Ishfaque, Javed and Irshad, were on the other bicycle. When they reached near the Dera of Rafique Rajput, Rafique armed with .12 bore gun, Majid armed with rifle 222, Ayub armed with carbine and Allah Ditta armed with Sots encircled Abdul Sattar and the P.Ws. The accused started abusing. The complainant and the P.Ws. beseached before the accused but Muhammad Rafique accused fired with his gun which hit on the forehead and mouth of Abdul Sattar. The accused also caught hold of Javed Iqbal while the complainant, Ishfaq and Irshad saved their lives by hiding in the nearby houses of the relatives: After that the P.Ws. heard the noise of Lalkara and fire shots and ran towards the canal bank where the dead body of Abdul Sattar was found lying. Javed Iqbal was confined in a room and was released on intervention of the people. The occurrence was alleged to have taken place on the abetment of Mahmood accused.

3. The motive alleged was that four years prior to the occurrence Rana Ehsan leased out his land to the complainant who is father of Abdul Sattar deceased. The land was previously being cultivated by the accused. The accused damaged the crop of the complainant by cutting the canal and due to this grudge the accused committed the murder of the deceased.

4. Investigation of the case was taken over, by Muhammad Amin, S.-I. (P.W.8). He went to the place of occurrence, took into possession the blood-stained earth vide memo. Exh.P.F.; one crime-empty P.4 was also secured vide memo. Exh.P.S., two bicycles P.5 and P.6 were taken into possession vide memo. Exh.P.H. and Exh.P.J.; site plan Exh.P.O. was also prepared by the Investigating Officer and on 24-11-1999 Muhammad Rafique, Abdul Majid and Muhammad Ayub were arrested. Muhammad Rafique while in custody on 27-11-1999 led to the recovery of gun 7 mm which was taken into possession vide memo. Exh.P.K. On the same day Abdul Majid accused got recovered rifle P.8 which was secured vide memo. Exh.P.L. On 30-11-1999, Muhammad Ayub also led to the recovery of carbine P.10 which was seized vide memo. Exh.P.M. Mahmood and Allah Ditta accused were arrested on 9-12-1999. After completion of investigation all the five accused were challaned to face the trial.

5. At the trial, prosecution in order to prove its case produced 8 witnesses in all. Then the learned D.D.A. tendered in evidence report of the Chemical Examiner Exh.P.Q., report of the Serologist Exh.P.R., report of the Forensic Science Laboratory Exh.P.S. and closed the prosecution case. Thereafter, statements of the accused were recorded under section 342, Cr.P.C. in which they pleaded false implication. After conclusion of the trial, Allah Ditta, Abdul Majid, Ayub and Mahmood accused were acquitted while Muhammad Rafique was convicted and sentenced as stated above.

6. Learned counsel for the appellant after having read the entire prosecution evidence and other material available on record submits that the occurrence took place in dark hours of the night and without any source of light it was not possible for the P.Ws. to have identified the assailants, there are material contradictions in the statements of two eye witnesses; there is conflict between ocular account and the medical evidence; according to P.W.7 Muhammad Hussain, he alongwith Javed was injured but no medical examination of any of the said injured P.W. is on record; the number of the F.I.R. is not given in the inquest report though the inquest report was prepared after registration of the F.I.R.; there is also no mention of names of the witnesses in the inquest report, the place where Javed Iqbal P.W. was allegedly detained has not been shown in the site plan; neither any empty nor the bicycles were also shown in Column Nos.22 and 23 of the inquest report; according to P.Ws. Muhammad Rafique appellant was arrested on the night of occurrence while according to Investigating Officer, Rafique was arrested on 24-11-1999; the witnesses of recovery are closely related to the deceased; none from the vicinity from where the recovery was effected was associated as a witness; both the crime-empty and the weapon of offence recovered on the pointation of the appellant were sent together to the Office of the Fire-arms Expert, no evidence was produced by the prosecution to prove the motive; no evidence whatsoever was brought on record to prove that the crop was destroyed or the watercourse was broken by the accused and that the prosecution has miserably failed to prove its case against the appellant rather case of the prosecution is full of doubts entitling the appellant to clean acquittal.

Concluding his submissions learned counsel submits that on the same set of evidence four co-accused of the appellant have been acquitted by the trial court.

7. Learned counsel for the complainant submits that it was a case of promptly lodged F.I.R.; specific role was attributed to Muhammad Rafique appellant; gun was recovered on the pointation of the appellant; the testimony of the eye-witnesses is worthy of credence; merely on the basis of motive, prosecution case cannot be brushed aside; both the eye witnesses were unanimous in deposing before the trial Court that the deceased died due to fire of Muhammad Rafique appellant; in fact it was a case of death and that the trial Court was wrong in awarding life imprisonment to the convict and this, is the reason that the complainant had filed revision petition for enhancement of sentence of the convict. Further submits that report of the Fire-arm Expert is positive in nature.

8. Learned counsel for the State adopts the arguments advanced by learned counsel for the complainant.

9. I have heard learned counsel for the parties and have gone through the record. According to the prosecution, the occurrence had taken place at 10/11 p.m. on 20-11-1999 and the matter was reported to the police at the police station at 11-40 the same night. Admittedly the inquest report was prepared after registration of the F.I.R. but there is no mention of the F.I.R. in the said report. Had the F.I.R. been registered prior to preparation of the inquest report, the number of the F.I.R. must have been mentioned in that, so it can be easily inferred that the matter was reported to the police after due deliberation consultation. Four co accused of the appellant have been, acquitted by the trial Court on the same set of evidence. An appeal bearing No. 1949 of 2001 was filed against the acquittal of co-accused of the appellant but the same was dismissed on 23-1-2002.

According to F.I.R. , Muhammad Rafique appellant fired two shots which hit on the face and head of the deceased but according to doctor who conducted post-mortem examination on the dead body of the deceased there was one injury on upper part of the nose while the other was on back side of the right hand. Had the eye-witnesses been present at the spot, they must have stated the correct seat of injuries. According to P. W.7 Muhammad Hussain the accused gave butt and Danda blows to the P.Ws. but none of the P.W. was got medically examined. laved Iqbal who was allegedly tied down by the accused in a room though was star witness of the prosecution but was not produced before the trial Court. The presence of Javed Iqbal (given up) was not shown by the Investigating Officer in the site plan prepared on his first visit to the spot. Names of the eye-witnesses are also not mentioned in the rough site plan prepared by the Investigating Officer. The Investigating Officer had admitted that the prosecution had failed to prove the motive. Nothing was brought on record to prove that either the crop or the watercourse was damaged. The crime-empty and the bicycle have not been shown in the Columns Nos.22 and 23 of the inquest report. According to the statements of two eye7witnesses namely Muhammad Hussain and Muhammad Ishfaq, P.Ws.6 and 7 respectively, Muhammad Rafique appellant was arrested on the night of occurrence while according to Investigating Officer examined as P.W.8 the appellant was arrested on 24-11-1999. Crime-empty was taken into possession from the place of occurrence on the same night that is, 10-11-1999 while the gun was recovered on 27-11-1999 but both were received in the office of the Fire arm Expert on 5-1-2000 with a delay of one month. The report of the Fire-arm Expert is not positive in nature. Even sending both crime-empty and the weapon of offence together to the Fire-arm Expert loses its evidentiary value. The witnesses of recovery are also closely related to the deceased. No independent witness was joined with recovery proceedings.

For what has been discussed above, it is clear that the F.I.R. was got recorded after due deliberation and consultation, there is clear conflict between ocular account and the medical evidence as to seat of injuries; the eye-witnesses are contradicted by the Investigating Officer on material points, the motive has also not been proved by the prosecution by not producing any evidence with regard to damaging crop or changing the watercourse and the recovery of empty from the spot and gun on the pointation of the appellant having been sent together to the Fire-arm Expert and the report of the Fire-arm Expert being negative. Thus, the prosecution has miserably failed to prove its case against the appellant rather the defence has been able to create dents in prosecution story. While extending the benefit of dents created by the defence in prosecution story, I accept the appeal and set aside the conviction and sentence recorded against the appellant by the trial Court. He is acquitted of the charge and shall be released forthwith if not required to Del detained in any other case.

Criminal Revision No.859 of 2001 is dismissed.

N.H.Q./M-1620/L Appeal accepted.