SIKANDAR Versus State

MUHAMMAD AHSAN BHOON, J .---This judgment shall dispose of Criminal Appeal No.971 of 2002 filed by Sikandar against the judgment dated 30-5-2002 passed by the learned Additional Sessions Judge, Sargodha whereby he convicted the appellant under section 302(b), P.P.C. and sentenced him to death in case F.I.R. No.291 dated 30-5-1996, offence under section 302, P.P.C. registered with Police Station, Sillanwali District Sargodha while Criminal Revision No.646 of 2002 filed by Saleh Muhammad, petitioner-complainant for the payment of compensation to the heirs of the deceased, as both arise out of the same judgment.

2. Apart from the above appeal, the learned trial Court has submitted Murder Reference No.543 of 2002 as contemplated under section 374, Cr.P.C. for confirmation of death of Sikandar accused.

3. The prosecution story in brief is that on 29-9-1996 Muhammad Sultan complainant along with Saraj Ahmad and Baqir went to Chak Nos.147-148-NB for condolence of his deceased brother-in-law (Behnoi) namely Salehun Muhammad and on 30-9-1996 he along with Saraj Ahmad and Baqir were coming back, when they reached near the railway line at 7-30 a.m. Baqir was ahead of them, meanwhile, accused Sikandar appeared there from eastern side with rifle and raised Lalkara to teach a lesson to Baqir for snatching Mst. Sattan from him forcibly. After this he fired at Baqir deceased with his rifle, which hit him on, left side of his abdomen. Second fire was shot which hit Baqir deceased on right side of his flank. Third fire was shot which hit Baqir deceased on his buttock and Baqir fell down. Fourth fire was shot, which landed below the umbilicus near the penis of Baqir deceased. On hue and cry raised by the complainant and witnesses the accused decamped from the spot. They have also attended Baqir who succumbed to the injuries.

Motive behind the occurrence was that four months ago Sikandar accused abducted Mst. Sattan and she was got returned by the deceased Baqir from the accused.

4. After due investigation report under section 173, Cr.P.C. was submitted in the learned trial Court. Charge was framed against the appellant and his co-accused who denied of the charge, pleaded not guilty and claimed trial. The prosecution produced as many as 16 prosecution witnesses. The appellant was examined under section 342, Cr.P.C. He did not opt to appear as his own witness in disproof of the allegation levelled against him as required under section 340(2), Cr.P.C. but placed on record copy of judgment passed by learned Sessions Judge Exh.D.B.; certified copy of F.I.R. relating to the murder of Mst. Sattan Exh.D.C. and copy of Nikahnama of Mst. Sattan with the accused Exh.D.D. The learned trial Court after hearing the parties passed the above said conviction and sentence, which is being assailed through this criminal appeal.

5. Learned counsel for the appellant has contended that the eye-witnesses produced by the prosecution are chance witnesses and were not present at the scene of occurrence; that it was blind and un-witnessed occurrence; that injuries Nos.1 to 3 show that there was blackening whereas no blackening was found on injury No.5 as per statement of Dr. Rana Muhammad Riaz (P.W.3) and contra to the ocular account; that occurrence in this case took place in dark hours of night as, according to the postmortem report, examination was conducted within 7 to 14 hours and same shows that the occurrence took place about 1-00 a.m. (night). In view of the above, he prayed for acquittal.

6. Conversely, the learned D.P.-G. assisted by the learned counsel for the complainant has defended the impugned judgment of conviction and sentence by arguing that the motive of occurrence is admitted as Mst. Sattan Bibi, niece of the complainant as well as deceased Baqir got her returned, which fact is evident from the evidence available on record; that Mst. Sattan Bibi had not contracted Nikah as there is no evidence in this respect nor copy of Nikahnama has been placed on record; that all the three eyewitnesses are very natural as they had gone Chak Nos.147/148-NB to attend funeral ceremony of Saleh Muhammad, brother-in-law (Behnoi) of the deceased and prayed for dismissal of the instant appeal.

7. We have heard the learned counsel for the parties and perused the record.

8. The complainant of the present case was Saleh Muhammad (P.W.7), who is real brother of the deceased Baqir, who reiterated the story of F.I.R., according to which the appellant made four fire shots hitting the deceased at his left abdomen, left flank,' left buttock and below the umbilicus near the penis. He also stated the motive of the occurrence of abduction of Mst. Sattan Bibi, niece of complainant as well as the deceased, by the appellant and she was got returned back by Baqir deceased from the appellant. P.W.7 is complainant and brother of the deceased while P.W.6 is relative inter se to the complainant as well as to the deceased. P.W.5 is admittedly nephew (Bhanja) of the deceased. The above said P.Ws. were interested and inimical witnesses inter se towards the appellant, as, according to the prosecution, he eloped Mst. Sattan Bibi, niece of the complainant and the deceased and also first cousin of P.W.5 relative of P.W.6 but according to the defence and Nikahnama placed on record as Exh.D.D. the appellant had contracted marriage with Mst. Sattan Bibi on 20-6-1996 and thereafter Mst. Sattan was murdered by one Sikandar son of Raja, nephew of Baqir deceased of present case. The P.Ws. in that case resiled from their statements and the said accused Sikander son of Raja was acquitted from the charge. P.W.5 and P.W.7 have admitted the above said facts in evidence. As far as acclaimed marriage of the appellant with Mst. Sattan Bibi, niece of the complainant was not denied by P.W.7 rather he gave evasive answer, relevant portion of the statement of the complainant P.W.7 is reproduced below:--

"It is correct that my other brother Barkhurdar alias Barkha got a case registered against Sikandar son of Raja for having murdered Mst. Sattan. It is correct that he committed the murder of Mst. Sattan as she had eloped with the accused. I do not know if there was Nikah of Mst. Sattan with the accused since 20-6-1996."

So the enmity and ill-will of the all the three eye-witnesses is visible from evidence. Another important aspect of the case is that Baqir deceased was done to death near Railway line in the area of Chak No.133-NB at 7-30 a.m. as per the story of the prosecution but P.W.7 admittedly was resident of Chak No.76/SB, which was at a distance of 25/30 miles from the place of occurrence similarly, it was admitted by P.W.6. Siraj that he was resident of Chak No.76/SB which is the same Chak where the complainant was residing. Ahmad Yar P. W'5 was residing at a distance of 2-1/2 Kms. from the place of occurrence. As per F.I.R. they have stated that the deceased as well as other P.Ws: had come to offer Fatehkhawani of one Saleh Muhammad, brother-in-law (Behnoi) of the deceased and complainant whereas in evidence they changed the version by stating that in fact they had come for funeral ceremony of said Saleh Muhammad but they were unable to record any evidence qua the death of the above said Saleh Muhammad. So in our view all the three eye-witnesses were chance witnesses. The case of the defence as decipherable from the suggestion is that Baqir deceased was done to death by relative of Mst. Sattan Bibi. It was admitted by the complainant Saleh Muhammad P.W.7 that three brothers of Mst. Sattan Bibi, who had already been murdered were residing in Chak Nos.147/148-NB where Baqir deceased of present case had come to attend the funeral ceremony of Salehoon of the said Chak where the statements of three brothers of Mst. Sattan Bibi were recorded by the police, it was also admitted by the complainant that there was rumour in the village that the above said brothers of Mst. Sattan Bibi had killed the deceased Baqir. Relevant portion of statement of complainant P.W.7 is reproduced below:--

"Three brothers of Mst. Sattan namely Muhammad Yar, Muhammad Yousaf and Muhammad Sher reside in Chak Nos.147/148 where Baqir deceased and ourselves had come to attend the funeral ceremony of Salehun of the said Chak. The Police also called Muhammad Yar, Muhammad Yousaf and Muhammad Sher and recorded their statements. There was a rumour in the village that the above brothers of Mst. Sattan had killed the deceased Baqir.''

P.W.5 further admitted this fact that he was one of the witnesses of murder of Mst. Sattan Bibi but he denied this fact and also did not give clear answer about the resiling of witnesses from their statements. He further admitted that he is the first cousin of Mst. Sattan Bibi. So he was not ready to speak truth, P.W.6 also admitted the fact that brothers of Mst. Sattan Bibi deceased, wife of the appellant, were also joined police investigation and relevant portion of statement of P.W.6 Siraj is re-produced below:--

"The brothers of Mst. Sattan are also residents of Chak Nos.147/148. Muhammad Yar, Muhammad Yousaf and Muhammad Sher brothers of Mst. Sattan were also joined by the police during the investigation."

The above quoted portion of evidence would show that all the three P.Ws. being inimical towards the appellant were not ready to speak truth and made an effort to justify their presence at the spot. Even they have not clearly stated the admitted facts. So we can safely hold that none of the eyewitnesses saw the occurrence, coupled with the fact that doctor stated that time between death and postmortem examination was 7 to 14 hours whereas, according to the prosecution the occurrence took place at 7-30 a.m. If the time is calculated to 14 hours then occurrence might have taken place at 1-00 a.m. (night) or if the time is started from two hours then the occurrence might had taken place prior to sunset. The place where occurrence took place was deserted one because there was no residence of any individual around it and the deceased was done to death at Katcha path near Railway line.

9. As far as medical evidence is concerned, Dr. Rana Muhammad Riaz stated that there was blackening available on injuries Nos.1, 2, 3 whereas no blackening was found on injury No.5 but as per statement of eyewitnesses the appear it fired at the deceased from some distance. The description of injuries negates the ocular account. Similarly, according to the doctor the duration between death and postmortem examination was 7 to 14 hours, which also negates the ocular account.

10. As far as recovery of Rifle is concerned, no empty was collected from the spot by the Investigating Officer and similarly the same was also not sent to the office of Forensic Science Laboratory. So that is of no consequence.

11. The motive is always double-edged weapon and in this case after the murder of Mst. Sattan, niece of the deceased, by her own family the motive for implication of the appellant in the present case was available to them. So the same can be taken as motive for the murder of the deceased on the basis of suspicion, which could be used for false implication of the appellant as well.

12. For what has been discussed above, we are of the considered view that the prosecution has failed to discharged its onus, which shows that none of the eye-witnesses was able to justify his presence at the scene of occurrence, and particularly when they are interested and inimical witnesses towards the appellant-accused, it cast serious doubt to the prosecution case. Consequently, we allow this appeal, set aside the judgment of conviction passed by the learned trial Court vide judgment dated 30-5-2002 and acquit the appellant by giving him benefit of doubt. He is in custody. He be released forthwith if not required in any other case. Criminal Revision No.646 of 2002 filed by the petitioner-complainant being without merit is dismissed.

Murder Reference No.543 of 2002 is answered in negative.

N.H.H. Q. /S-39/L ?????????????????????????????????????????????????????????????????????????????? Appeal accepted.