ABAIDULLAH alias HABIB Versus State
ARSHAD MAHMOOD TABASSUM, J.--- This judgment will dispose of above captioned criminal appeal filed by Abaidullah @ Habib appellant as well as Murder Reference for confirmation of his death sentence or otherwise, who was convicted by learned Addl. Sessions Judge, Burewala in a case registered vide FIR No.236/05, dated 26.8.2005, under section 302, P.P.C., registered at Police Station Sadar, Burewala, vide impugned judgment dated 25.09.2009 and sentenced as follows:-
Death under section 302(b), P.P.C. as Tazir for committing murder of deceased Subhan with fine of Rs. 100,000/- and in default whereof to further undergo R.I for one year. The half of amount of fine, if recovered, would be paid to the legal heirs of the deceased as compensation under section 544 -A, Cr.P.C.
2. Briefly, the prosecution story as divulged by complainant Nazar Muhammad (PW.06) in FIR Exh.PF, registered on 26.8.2005 at 6.30 a.m., is that during the preceding night at about 11.00 PM, he along with Muhammad Subhan, his brother (deceased) came from the baithak of Dr. Rehmat Ali, Naib Nazim; that he (complainant) fell asleep in his cattle shed while Muhammad Subhan fell asleep in his house, located near the said cattle shed; that at about 3/4 a.m on hearing the alarm raised by Subhan, he along with Muhammad Nawaz son of Ali Muhammad (PW not produced) and Noor Muhammad son of Bholla (PW.7) and other inhabitants of the village reached in front of the house of Muhammad Subhan and saw in the light of the bulb that Abaidullah alias Habib, appellant , was inflicting blows of hatchet on the body of Subhan, who was lying at the cot; that on raising alarm by them Abaidullah alias Habib fled away towards the west along with his hatchet, taking benefit of darkness of the night; that they attended to Muhammad Subhan and found that his neck had been seriously injured from left side while he had also sustained injuries on the fingers of his both hands and on his back which were bleeding and that Muhammad Subhan had succumbed to the said injuries.
3. The motive of the occurrence was that Abaidullah alias Habib appellant used to have a bad eye on Mst. Naziran Bibi, wife of brother-in‑law of the deceased (Sala) and oftenly used to tease her; that in this regard the respectables of the locality had summoned him and his father had forbidden him from doing so, but he did not desist; that on the preceding day i.e. 25.8.2005, at about 9 a.m., the appellant came to the house of Mst. Naziran Bibi, regarding which, she had disclosed to the deceased, whereupon, the deceased had gone to the house of Mst. Naziran Bibi and had asked Abaidullah appellant to desist from his misdeeds. whereupon, he got furiated and went away while extending threats to murder him and that due to the said grudge he committed the murder of the deceased.
4. Sajid Ali Inspector (PW.08), while being posted as SHO at P.S. Sadar, Burewala, recorded statement Exh. PF of Nazar Muhammad complainant read it over to him and secured his thumb impression in token of its correctness. He then proceeded to the spot and inspected the place of occurrence. He also prepared inspection note in this regard. During course of inspection, he collected blood stained earth from the spot, made the same into a sealed parcel and took into possession vide memo. Exh. PH, attested by the PWs. He also collected blood stained cot P-4, bed P-5, pillow P-6 and secured the same vide recovery memo. Exh.PI, attested by the PWs. He handed over the dead body Muhammad Subhan deceased to Muhammad Din 150/C for post-mortem examination. He also took into possession last worn clothes of the deceased Subhan including Vest P-1 and Chader P-2, produced before him by above said constable and secured the same vide recovery memo. Exh.PE, attested by the PWs. He also prepared rough site plan Exh.PD, injury sheet Exh.PG and inquest report Exh.PC. On 01.9.2005, he arrested the appellant Abaid Ullah, who on 3.9.2005 made disclosure and got recovered blood stained hatchet P-3 which was taken into possession vide recovery memo. Exh.PG, attested by the PWs. On 4.9.2006, he got prepared scaled site plan Exh.PD through Muhammad Arshad Draftsman. He recorded statements of the PWs stage-wise, and handed over the case property to the Moharrar of the P.S for its safe custody in the Maalkhana.
5. After culmination of usual investigation, appellant was found guilty and was challaned to the court.
6. Learned trial court, after observing all the pre-trial codal formalities, indicted the appellant to which he did not plead guilty and claimed trial. Thereafter, the prosecution was directed to lead its evidence in order to substantiate the charge.
7. At the trial, prosecution, in order to prove its case, produced 8 witnesses in all.
Dr. Abdul Ghaffur (PW.1) deposed that he, on 26.8.2005 at 12.30 PM, conducted post-mortem examination on the dead body of deceased Subhan and observed the following:‑
INJURIES i) A huge incised wound 23 cm x 17 cm into bone deep. Bones underneath were cut on top of the shoulder and left side of neck. ii) An incised wound 5 x 2 cm (rib cut) bone deep on left side of back of chest in middle part. iii) An incised wound 11 cm x 1 cm x bone deep (bone underneath was cut) on front and middle part of right side of chest. iv) An incised wound 4 cm x 2 cm going across the length of right thumb. v) An incised wound 1.5 cm x 1 cm x amputating tip of right of index finger. vi) An incised wound 2.5 cm x 0.5 cm into bone deep (bone cut) on right middle finger. vii) An incised wound 2 cm x 1 cm amputating left little finger. viii) An incised wound 2 cm x 0.5 -cm x amputating distal pharynx of left ring finger.
REMARKS
After conducting the postmortem examination on the dead body, he was of the opinion that the death occurred in this case by shock due to severe haemorrhage caused by injury No.1 which was ante-mortem and caused by sharp edged weapon. This injury was sufficient to cause death in the ordinary course of nature. All other injuries were caused by sharp edged weapon and were ante mortem.
Probable time that elapsed between injury and death was immediate and between death and post mortem was 8 to 10 hours.
Exh. PA was the correct carbon copy of the post-mortem report and Exh.PA/1 was the diagram showing the seat of injuries, the same also bore his signature. He also endorsed inquest report Exh.PC and injury sheet Exh.PB.
8. Learned DDPP renounced PWs, namely Muhammad Nawaz and Hashmat Ali being unnecessary and thereafter by tendering in evidence reports of Chemical Examiner Exh.PJ and Exh. PK vide his statement dated 17.3.2008 closed the prosecution case.
9. Thenceforth statement of the appellant was recorded under section 342, Cr.P.C., wherein he gainsaid the charges and professed his innocence. He did not opt to make statement on oath as required under section 340(2), Cr.P.C., however, opted to produce defence evidence, but thereafter did not produce the same. He while answering the question "why this case against you and why the PWs have deposed against you? stated as follows:-
"PWs are interested inter se, related to the deceased and are inimical towards me. They have deposed falsely against me. It was a blind murder. PWs Noor Muhammad and Nazir Muhammad are living away from the place of occurrence. They have failed to explain their presence at the place of occurrence. Muhammad Subhan deceased was sleeping all alone in his house. He was done to death in odd hours of the night. His death came into the knowledge of his family in morning time. It was a dark night. Prosecution has failed to show and source of identification at the place of occurrence. None of the residents of place of occurrence and family members were cited as witness. Sakina is only daughter of deceased. She has not been cited as witness in this case. Prosecution has failed to prove motive against me. Prosecution witnesses were not present at the time of alleged motive. No impartial and independent witness of motive was produced by prosecution. I am a married person. I have been roped in this case as an scapegoat. PWs have deposed against me due to enmity and made intentional improvements. My father is a blind man since long. I am an only bread earner of my family. FIR had been lodged after deliberation and consultation. I am innocent. I have been falsely implicated in this case".
10. At the conclusion of trial, the appellant was convicted and sentenced as mentioned supra. Hence, instant murder reference as well as appeal.
11. Learned counsel for the appellant has argued that the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt, but the learned trial court without considering this fact has illegally convicted and sentenced the appellant; that the prosecution has set a specific motive, but has failed to prove the same. Moreover, the said motive is neither plausible nor convincing; that the PWs are chance witnesses, who miserably failed to establish their presence at the spot at the relevant time; that the occurrence having taken place during darkness of night, and it was not possible for the so-called eye-witnesses to have identified the culprit; that the eye-witnesses not being residents of the place of occurrence could not reach the spot during the time, the culprit was causing injuries to the deceased, hence, their claim that they had witnessed the occurrence is absolutely false; that the medico-legal evidence does not corroborate the ocular account of the occurrence and the recovery has also been falsely planted upon the appellant, hence, the appellant deserves to be acquitted while extending benefit of doubt to him.
12. Conversely, learned DPG assisted by the learned counsel for the complainant have fully supported the impugned conviction and sentence.
13. In this case, the motive of the occurrence is that the appellant used to tease Mst. Naziran Bibi, but she has not entered the witness box to depose in favour of the motive as set out by the prosecution. What to talk of her entering the witness box, she even did not appear before the I.O. during investigation of the case. In this regard, a portion of the statement of Sajid Ali Inspector, (PW.8) who happens to be the I.O. of the case is quite relevant:-
"I did not join Mst. Naziran in this case during the course of investigation nor I made any attempt to record her statement. I did not direct the complainant and PWs and legal heirs of Naziran to produce her for investigation purpose. During the course of investigation it came to my knowledge that Mst. Nazeeran is an advanced aged lady having four/five children. I did not summon husband of Mst. Naziran and father of Mst. Nazeeran namely Akbar Ali for the purpose of investigation. It is correct that no statement of independent witnesses was recorded about motive. No direct evidence regarding motive was produced by the complainant party in this case. During the course of investigation it did not come to my notice that Abaidullah accused is married on 11.4.2004 with Mst. Mumtaz Bibi in chak No. 251/E.B. From this wedlock one baby is also alive. No statement of any PW from the place where Mst. Nazeeran used to reside was recorded about motive".
Similarly, he further states during cross examination:-
"I reached at the spot within half an hour after the registration of FIR. Twenty one persons of the same chak including two lamberdars and one Naib Nazim Dr. Rehmat Ali were present at the spot. None of the above mentioned respectable deposed before me about the motive of this case."
Likewise the complainant Nazar Muhammad while appearing as PW.6 states during cross-examination:-
"I was not present there. I do not know if the husband of Mst. Nazeeran was present there on 25.8.2005 at 9 a.m. Volunteered that I was not present there."
He further states:-
"Mst. Nazeeran Bibi did not appear before the I.O to narrate the occurrence on 25.8.2005. Volunteered one daughter namely Sakina Bibi of Nazeeran Bibi appeared before him and stated about the altercation which took place on 25.8.2005. Sakho husband of Mst. Naziran Bibi never appeared before police during investigation to narrate the occurrence of 25.8.2005."
Noor Muhammad (PW.7) also states during cross-examination that he was not an eye-witness of the motive. In the above circumstances, it is quite evident that the prosecution has failed to prove motive of the case as set up by it.
14. As regards the ocular account of the occurrence, it is claim of the prosecution that the occurrence took place at 3/4 a.m. It is in the FIR itself that the accused fled away from the spot along with his hatchet by taking benefit of darkness of night. The exact wording of the FIR in this regard is as under:-
15. The PWs claim to have witnessed the occurrence in the light of bulb, but no such bulb was taken into possession by the I.O. during investigation. In this regard Nazar Muhammad complainant states:‑
"No bulb was taken into possession in my presence by the police."
Similarly, Noor Muhammad (PW. 7) states:-
"I do not remember whether the bulb was taken into possession by the police or not."
"It was a dark night but the electric bulb was on".
The IO states:-
"I have not shown the installation of electric bulb at the place of occurrence in the house of Subhan".
He further states:-
"None from the PWs pointed out the direction of running of assailant after occurrence in the street."
16. Coming to the possibility of the eye-witnesses who claimed to have witnessed the occurrence it is observed that Nazar Muhammad (PW.6) during cross-examination states:-
"The Ihata of Noora PW is situated at the distance of 15 karams from the place of occurrence but I cannot tell the direction on which it is situated from the place of occurrence as I am an illiterate person. My house is situated at the distance of one killa from the place of occurrence but I cannot tell the direction in which my house is situated."
Thus, none of the PWs resides adjacent to the place of occurrence. It is unbelievable that they would have reached the spot while the accused was inflicting injuries upon the deceased. There appears to be no fun that the assailant should have kept on waiting till arrival of the eye-witnesses to accomplish his task. It may take spur of the moment to inflict injuries and then to flee away from the spot before arrival of the eye-witnesses. The injury on the neck of the deceased even otherwise casts a serious doubt as to whether he was in a position to raise alarm. In this regard what has been stated by Dr. Abdul Ghafoor (PW.1) is quite relevant. He states:-
"It is correct that if spume, Trachea and larynx is fully cut, then the voice system is fully collapsed. Breathing system is not fully collapsed. After receiving injury No.1 the deceased was not capable to speak loudly."
PW.7 has himself negated having identified the accused at the time of occurrence by stating:-
"I saw the accused murdering the deceased but when he ran away I saw him from his back."
17. The PWs have contradicted each other on the point as to whether it was a moon lit night or dark night. In this regard, Nazar Muhammad complainant (PW.6) states:‑
"It was a moon lit night."
As against this Noor Muhammad PW7 states:‑
"It was a dark night but electric bulb was on."
18. The circumstances suggest that the PWs had not witnessed the occurrence and that they came to know about the murder of the deceased early in the morning. Though, they claimed that the occurrence took place at 3/4 a.m. and the deceased died then and there, yet what has been stated by Dr. Abdul Ghafoor (PW.1) who conducted the post-mortem examination, suggests otherwise. He states:-
"Police mentioned the time of death at 6.30 a.m. on 26.8.2005. I have mentioned time 6.30 a.m in post mortem report on 26.8.2005. The time of death at about 6.30 a.m. was furnished by the police, through their papers."
Sajid Ali Inspector (PW.8) during cross-examination states:-
"None from the surrounding has supported the time of occurrence mentioned in the FIR."
Thus, the prosecution's own witnesses are not consistent regarding the time of occurrence. It appears that claim of the accused in this regard is correct that "His death came into the knowledge of his family in the morning."
19. It was the primary duty of the I.O. of the case to investigate as to whether there was any probability of the eye-witnesses to reach the spot during the occurrence and to witness the same but the I.O. states:-
"I have not mentioned the place from where Nazar Muhammad son of Shameera PW were attracted after hearing hue and cry of deceased Subhan. I have not shown the separate places of Nazar Muhammad, Muhammad Nawaz and Noor Muhammad in my rough site plan. It is correct that point No.4 is not visible from point No.2. I have not inspected the houses of Noor Muhammad PW and Muhammad Nawaz PW. I have no knowledge about their situation in chak No. 271/EB Burewala. I have no knowledge about the residential houses of Noor Muhammad and Muhammad Nawaz about their direction from the place of occurrence."
20. As discussed above, it does not appear probable that the eye witnesses had reached the spot during the occurrence and had witnessed the same. Leaving apart this aspect of the case, it is worth mentioning that daughter of the deceased namely, Mst. Sakina Bibi was aged about 10/11 years as per claim of Nazar Muhammad PW6, but according to Sajid Ali Inspector PW.8, she was aged about 17/18 years. When the police reached the spot she was present with the dead body. Thus, she must have been residing in the same house, hence, she could be the best and natural witness of the occurrence. The I.O. states:-
"I do not remember that Mst. Sakina resides in the same house."
It is strange to note that the I.O. states during cross-examination:‑
"Shoes of the deceased were not found at the spot."
The missing of shoes suggests some other story which due to the lethargy and inefficiency of the I.O. could not come on record.
21. The recovery of hatchet has been attributed to the appellant which was allegedly got recovered by him on 3.9.2005 from the fields of cotton belonging to Shamim Akhtar Bhutta. The recovery of hatchet from such a place which is accessible to every body has hardly any corroborative value more so when the ocular account of the occurrence has been disbelieved.
22. As pointed out earlier, the doctor has stated that the police has mentioned time of death at 6.30 a.m on 26.8.2005. The perusal of inquest report Ex. PC shows that in column No.3 i.e. it is mentioned as 26.8.2005 at 6-1/2 a.m. This is the document which was prepared by the I.O. at the spot and if in the said document the date of knowledge about the death has been mentioned as 6.30 a.m. then the claim of the prosecution that the PWs had witnessed the occurrence at 3/4 a.m. falls to ground. This document leads to infer that even witnesses came to know about the occurrence at 6.30 a.m. This document also creates serious doubt as to whether the FIR was lodged at the time as given therein or the same was registered after preliminary inquiry at the spot as claimed by the defence and suggested to the eye-witnesses and the I.O. Keeping in view the above circumstances, the defence plea of the accused appears to have a ring of truth in it, wherein, he has stated that the deceased was done to death during odd hours of the night and that the death came into the knowledge of his family in the morning.
23. In the light of the above discussion, we are constrained to hold that the learned trial court has not appreciated the prosecution evidence keeping in view the well settled principles governing appreciation of evidence and has thus fell in error while convicting the appellant. The impugned conviction and sentence, therefore, cannot sustain which is hereby set aside by accepting this appeal. The appellant is acquitted of the charge. He shall be released forthwith if not required in any other case.
24. Resultantly, the death sentence awarded to Abaidullah alias Habib appellant is not CONFIRMED and Murder Reference No. 135-2009 is answered in NEGATIVE .
MH/A-141/L Appeal accepted.