BILAL AHMED Versus State

SHAHID HAMEED DAR, J.--- This appeal arises from the judgment dated 28.1.2012, whereby learned Additional Sessions Judge, Ferozewala, District Sheikhupura convicted Bilal Ahmad (appellant) under section 302(b), P.P.C. and sentenced him to imprisonment for life with a direction to pay Rs.2,00,000/- to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. or in default thereof to undergo simple imprisonment for six months. Benefit of section 382-B, Cr.P.C. was, however extended to him. It all happened on conclusion of his trial as a juvenile in case-FIR No.439/07, dated 18.7.2007, registered for an offence under section 302/34, P.P.C., at Police Station Sharaqpur Sharif (Sheikhupura).

2. Precisely, the prosecution story as narrated by Muhammad Ashraf (complainant/P.W.1) in the FIR (Exh.PA/1) is that he had set up a tailoring-shop at Murtaza Market Taridaywali, in front whereof he and his sons Muhammad Tayyab Kaleem (deceased) and Muhammad Shoaib Kaleem (P.W.2) slept at night between 17/18.7.2007, while Muhammad Yaqoob PW (not produced) slept at its roof-top; it was at about 12:30 a.m., he and his son Muhammad Shoaib Kaleem got up on hearing a little sound and saw Bilal Ahmad (appellant), being armed with .12-bore gun along with three unknown persons, armed with carbines, in the light of a lit electric bulb, standing close to the cot of his asleep son Muhammad Tayyab and he fired at his neck from point-blank range; the fire shot pierced across his body; Muhammad Yaqoob PW (not produced) also awoke on hearing report of fire-shot; he and his companions raised alarm, whereon the accused ran away waving their weapons; he, his son Muhammad Shoaib Kaleem and Muhammad Yacioob found Muhammad Tayyab Kaleem dead due to the injuries sustained; the motive behind the occurrence was professional jealousy, nurtured by the accused against his murdered son as he too ran a stitching shop in the same market and often quarrelled with him for this reason. The complainant reported the matter to Muhammad Nawaz SI (P.W.8) at 8.00 a.m. on 18.7.2007 at Taridaywali Road, who drew up complaint (Exh.PA) and despatched it to police station through Sabir Hussain 1410/C for registration of case, on receipt of which Iftikhar Ahmad 515/MHC drafted formal FIR (Exh.PA/1) at 8.35 a.m. the same day.

3. Dr. Khalid Bashir (P.W.9) performed autopsy on the dead body of Muhammad Tayyab Kaleem deceased at 2.50 p.m. on 18.7.2007. He observed vide postmortem examination report (Exh.PL), following injuries thereon:-

1. An entry wound, measuring 2 cm x 2 cm on the 10 anterolateral aspect of neck, inverted margins with a ring of about I cm blackening around it.

2. An exit wound, measuring I cm x 1 cm on lateral aspect of right side of neck with everted margins.

3. An exit wound, measuring 1 cm x 1 cm on right scapular region with everted margins.

The medical officer opined that death in this case occurred due to haemorrhage and shock, caused by injury No. 1, that led to cardiopulmonary arrest, which could terminate life in the ordinary course of nature and time. All the injuries were ante-mortem. The probable time that elapsed between injuries and death was "immediate" and between death and postmortem examination was within 16 hours.

4. Nawaz Ahmad SI (P.W.8) conducted the investigation of this case. He reached the spot, inspected dead body of Muhammad Tayyab Kaleem, prepared injury statement (Exh.PG), inquest report (Exh.PH), an application (Exh.P1) for its postmortem examination and despatched it to mortuary for autopsy under the escort of Taj Din 779/C (P.W.5); drew visual site-plan (Exh.PJ) of the place of occurrence; collected blood stained earth from underneath the cot of the deceased, made it into a sealed parcel, vide memo Exh.PB; secured an empty cartridge of .12-bore (P1), vide seizure-memo Exh.PC; after postmortem examination, Taj Din 779/C (P.W.5) produced last worn clothes of the deceased before him including shirt (P4), pent (P5) along with a plastic sealed phial and a copy of necropsy report, which he seized vide memo of recovery Exh.PE: he got prepared site-plan in-scale (Exh.PF and Exh.PF/1) of the place of occurrence by Ch. Zia-ud-Din draftsman (P.W.6); he recorded supplementary statement of the complainant on 21.7.2007, whereby he nominated Azam and Shehzad as accused; he arrested Bilal Ahmad (appellant) on 24.7.2007, interrogated him and recovered a pump-action .12-bore gun (P2) with three live cartridges (P3/1-2) at his instance, vide memo. of recovery Exh.PD: he arrested Shahzad and Azam accused and interrogated them. On completion of investigation, he formulated report under section 173, Cr.P.C. and submitted it before the learned trial court for trial of the accused in accordance with law.

5. On indictment, the appellant, Bilal Ahmad pleaded not guilty and claimed a trial. The prosecution produced nine witnesses at trial, including Muhammad Ashraf (complainant/P.W.1), Muhammad Shoaib Kaleem (P.W.2), Zulfiqar Ali (P.W.3), Muhammad Arshad 490/C (P.W.4), Taj Din 779/C (P.W.5), Ch. Zia-ud-Din draftsman (P.W.6), Iftikhar Ahmad 515/MHC (P.W.7), Nawaz Ahmad SI/IO (P.W.8) and Dr. Khalid Bashir (P.W.9), so as to prove charge against him.

Dr. Khalid Bashir (P.W.9) proved contents of the postmortem examination report (Exh.PL). Muhammad Ashraf (complainant/P.W.1) and Muhammad Shoaib Kaleem (P.W.2) furnished ocular account by contending that they saw the appellant committing murder of Muhammad Tayyab Kaleem (deceased). The complainant (P.W.1) also supported the motive alleged. Nawaz Ahmad SI (P.W.8) is the investigating officer, who rendered details of the investigation conducted by him. Rest of the evidence is more or less of formal nature.

6. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances put to him and in reply to question No.5, "Why this case against you and why the PWs deposed against you?" he stated as under:-

"All the PWs are related inter se and they have deposed against me, because the deceased developed illicit relation with the girls and the people of vicinity were again the deceased due to his immoral activities. So the complainant party felt that I defame the deceased in the eyes of people of locality upon this suspicion, they have falsely deposed against me in this case just to blackmail me."

He opted not to appear under section 340(2), Cr.P.C. nor he adduced any evidence in his defence.

Learned trial court held him guilty of the charge and sentenced him in the mentioned terms through the impugned judgment.

7. Learned counsel for the appellant has submitted that Muhammad Tayyab Kaleem was murdered by some unknown accused in pitch darkness of the night and on finding his dead body in the following morning, the complainant and his co-witnesses conspired to falsely involve the appellant in this case merely on suspicion; there is inordinate delay of eight hours in reporting crime to the police, which has not been explained by the complainant in any manner: the postmortem examination of the deceased's dead body is delayed by about fifteen hours which made the prosecution case still hazier and hard to believe: the complainant (P.W.1) and Muhammad Shoaib Kaleem (P.W.2) have rendered materially discrepant depositions inter-se, that found no corroboration from any independent circumstance; the recovery of weapon (P2), despite a positive ballistic expert report, has been disbelieved by the learned trial court; the motive remained shrouded in mystery, though observed otherwise by the learned trial court: the impugned judgment has merely been passed on conjectures and surmises. besides it suffered from non-reading and misreading of evidence, therefore, it may be set aside and the appellant may be acquitted of the charge.

8. On the contrary, learned counsel for the complainant has opposed this appeal with the contention that witnesses of ocular account themselves saw the occurrence being present at the spot at relevant time of the occurrence and they rendered coherently plausible testimonies at trial; the motive was an admitted fact as both deceased and the appellant ran tailoring-shops in the same market and appellant often quarrelled with ill-fated deceased in this backdrop; the medical evidence adds strength to the ocular account being in line therewith; the recovery of weapon (P2) has wrongly been discarded by the learned trial court as crime empty (P1) was found wedded with it by the ballistic expert through report Exh.PN; the prosecution has skilfully discharged the onus to prove its case against the appellant, therefore, his appeal may be dismissed and the impugned judgment upheld.

9. Learned Deputy Prosecutor General Punjab has endorsed view point of the learned counsel for the complainant by adding that prosecution proved its case against the appellant to the hilt, hence, the impugned judgment may be sustained.

10. After hearing the learned counsel for the parties and minutely wading through the record, it is observed that a thick haze enveloped preparation of the complaint/Fard Biyan (Exh.PA) by Nawaz Ahmad SI (P.W.8), who mentioned in "police proceedings", underneath the statement of Muhammad Ashraf (complainant/P.W.1, that he and his co-police officials received information about the occurrence at Adda Taridaywali, which made them reach the spot at about 8.00 a.m. on 18.7.2007, where he recorded statement of the complainant about the occurrence. At the end of the "police proceedings", he has not, however. clarified that it had been recorded at the place of occurrence and instead. he used the words "from Taridaywali Rajan Araian Road at 10.00 a.m." When he was examined as P.W.B. he categorically stated that Muhammad Ashraf (complainant) met him at Adda Taridaywali and got his statement (Exh.PA) recorded there which he sent to the police station through Sabir Hussain 1410/C for registration of formal FIR, whereafter he along with other police officials moved to the place of occurrence. Muhammad Ashraf (complainant/P.W.1) has however, deposed that police came to the spot in the following morning of the night of occurrence and recorded his statement (Exh.PA) there. He mentioned it as 1/2 kilometer, when he was questioned about the distance between his shop, the place of occurrence and Taridaywali stop. He went on to say that 22/25 minutes were consumed to reach Adda Taridaywali from his shop. Nawaz Ahmad SI/IO (P.W.8) adopted the contention that he was already present at Adda Taridaywali, when complainant along with his co-witnesses approached him, as he saw the police van parked there. He further stated that he inquired all of them about the occurrence before he recorded Fard Biyan (Exh.PA) there, in next five to seven minutes. He mentioned the distance as 1 to furlong between Adda Taridaywali and the place of occurrence. The complainant did not state in his testimony, if his statement (Exh.PA) was read over to him by the scribe before he put his signature thereon in token of its correctness. Likewise, Nawaz Ahmad SI/IO (P.W.8) did not mention anywhere that after preparing complaint, he read it over to the maker thereof, before asking him to sign it in token of its correctness and authenticity. Muhammad Ashraf (complainant/P.W.1) contended that police reached the spot at about 5.00/6.00 a.m. on 18.7.2007 and Muhammad Shoaib Kaleem (P.W.2) mentioned this time 6.00 a.m., as against 8.00 a.m., mentioned by the investigating officer (P.W.8) in complaint (Exh.PA). He categorically deposed in his statement that he along with his fellow police officials left Police Station Sharaqpur at about 7.30 a.m. for patrolling the area and reached the spot. after he scribed Fard Biyan (Exh.PA) at Adda Taridaywali. The arrival of the police at the spot in between 5.00 a.m. to 6.00 a.m. may be believed, having come from the mouths of Muhammad Ashraf (P.W.1) and Muhammad Shoaib Kaleem (P.W.2), but in next 2 to 3 hours, what they did, has not been talked about by them, probably giving an impression that complaint (Exh.PA) had been prepared within minutes of arrival of the police at the crime-scene, which stood negated by the complaint (Exh.PA) itself, as it bore time of its preparation as 8.00 a.m. and almost verified in identical sense by the scribe (P.W.8) in his testimony. It cannot be ruled out that longstanding consultations and deliberations had been made by the complainant-party with the police before complaint (Exh.PA) was brought into existence, whereafter formal FIR (Exh.PA/1) was drawn by Iftikhar Ahmad 515/MHC (P.W.7) at 8.35 a.m. on the basis thereof.

11. The alleged occurrence of murder of Tayyab Kaleem took place at 12.30 a.m. between 17/18.7.2007 and it was reported to the police by the complainant about eight hours thereafter, as would show the complaint (Exh.PA). The police post Dhamke, an integral constituent of Police Station Sharaqpur, was at a distance of about 1-1/2 kilometer from the place of occurrence and one could reach there within fifteen minutes by a vehicle and within one hour, if on foot, as stated by the complainant in his testimony. He mentioned distance of Police Station Sharaqpur from his shop 8/9 kilometers, which, as per his contention, could be covered within 20/25 minutes. The contention of the investigating officer (P.W.8) was not much different in this regard, as he stated that Adda Taridaywali was about 7/8 kilometers away from the police station and police post Dhamke was at a distance of about 3/4 kilometer from the said Adda. He maintained that one could reach the place of occurrence within 15/20 minutes from the police station. The police post Dhamke and Police Station Sharaqpur were connected with the place of occurrence through metalled road(s), hence, delayed reporting of crime to the police is a mind itching factor, which might reflect on the eye-witnesses' claim of their presence at the spot at the relevant time of the occurrence. The delay caused is a crucial factor which cannot be overlooked easily. It could not be believed that the FIR (Exh.PA/1) was not a product of consultations, deliberations or preliminary investigations.

12. Insofar as the motive alleged is concerned, it related to professional jealousy between Bilal Ahmad (appellant) and Tayyab Kaleem (deceased) as they both ran tailoring-shops in the same market, at a little distance from each other's. It may be true that the appellant worked as a tailor at the same place, where Tayyab Kaleem (deceased) also stitched garments of the people and it may also not be wholly untrue, that Tayyab Kaleem (deceased) was a busier shop-keeper than him, but how could it be believed that only for this reason, some bad blood existed between them. It is a divine arrangement that one has been given more than the other but it is not always so that an individual. inferiorly placed would turn inimical to the other, financially better placed. The prosecution needed some evidence to prove the factum of motive, but they did not adduce any, except for a single ambiguous deposition by the complainant (P.W.1), not tendering any detail as to when, where and on how many occasions the accused quarrelled with the deceased. He, rather did not mention it at all, if any business rivalry existed between them. The best evidence in this regard could have come from the other shop-keepers of the same market, but none of them came forward to corroborate it. Mere nearness of their tailoring-shops cannot be deemed sufficient to hold that raison d'etre, as mentioned in complaint (Exh.PA) against the appellant stood proved. It has certainly gone unestablished, as it sought corroboration from nowhere.

13. The most important aspect of the prosecution case is the ocular account, having been furnished by Muhammad Ashraf (complainant/P.W.1) real father, and Muhammad Shoaib Kaleem (P.W.2), real brother of Tayyab Kaleem (deceased), who, as claimed by themselves, slept at the same place, where Tayyab Kaleem was asleep and they witnessed Bilal Ahmad (appellant) fire at him, by means of .12-bore pump-action gun at left side of his neck, while his co-accused Shahzad and Azam, both armed with carbines, along with an unknown empty handed person stood nearby. The accused made good their escape by waving their weapons, whereafter Muhammad Ashraf (complainant/P.W.1), Muhammad Shoaib Kaleem (P.W.2) and Muhammad Yaqoob PW (not produced) drew near the cot and found Tayyab Kaleem dead, due to the injuries sustained by him. It all happened in front of the shop of the deceased, where he, his father Muhammad Ashraf (P.W.1) and brother Muhammad Shoaib Kaleem (P.W.2) slept on separate cots and his maternal uncle Muhammad Yaqoob PW (not produced) slept on its rooftop. Muhammad Ashraf (complainant) did not name his son Muhammad Shoaib Kaleem (P.W.2) as a witness of the occurrence in his testimony, nor did he say that he slept along with him and his slain-brother at the spot then. Muhammad Shoaib Kaleem (P.W.2), however, claimed that he too slept there along with his father, brother and maternal uncle at the fateful night. The time of occurrence has been mentioned as 12.30 a.m. by both the eye-witnesses with the contention that they witnessed the occurrence in the light of a lit electric-bulb, which had not been taken into possession by the police during the course of investigation. The cot whereon the ill-fated deceased slept was not seized by the police as a piece of evidence.

14. The complainant (P.W.1), who did not show the presence of P.W.2 at the spot at the crucial hour, narrated about a startling fact in his testimony, that he and his co-witness Muhammad Yaqoob, went back to their house, leaving blood-soaked dead body of his son at the spot, after 10/12 persons of the locality gathered there. He also contended that he returned to the spot in the following morning and recorded his statement (Exh.PA) before the police. The police post Dhamke and Police Station Sharaqpur were at a distance of a few minutes journeying from the spot as admitted by P.W.1, P.W.2 and P.W.8 in their statements, so it is hard to digest that they witnessed the occurrence and still chose to go back to their house for passing remainder of the night there. It is certainly against natural human conduct, as no father or brother or real maternal, uncle could think of leaving a murdered youth of the family at the disposal of some strangers and go back to their home to relax and not to return till the next morning. The house of the complainant was at a distance of about 1-1/2 kilometers from the deceased's shop, the place of occurrence, which could be covered by them within ten (10) to fifteen (15) minutes, if they walked to it. Why did he leave for his house by abandoning the dead body of his youthful son at the crime-scene, what did he do on return to his house but to disclose the unfortunate incident to other members of his family, what was their reaction if this news was broken to them and why did they all stay back at their house till arrival of the police at Adda Taridaywali at 5.00/6.00 a.m. or 7.00/8.00 a.m., are extremely crucial and suspenseful questions, which were required to be answered by the prosecution during the course of the trial but they left them unresolved and produced no evidence to render an explanation thereto. Should it be understood and it should be that none of them was present at the spot at the relevant time of the occurrence and they only made it to the said place in the following morning, after they were informed about the tragic end of their family-man, by someone. The complainant (P.W.1) or his son (P.W.2) or the given up maternal uncle Muhammad Yaqoob should have rushed to the police post Dhamke or to the Police Station Sharaqpur to inform them about the murder of their nearest kin; so, that machinery of law should have immediately been motioned by them or they should have, at least, stayed at the place of occurrence till arrival of the police there, but taking the decision of going back to their home, in such a shocking situation, was not something, Other than being abnormal and unnatural. It does not appeal to reason, logic and common prudence that such a decision could be taken by them on that occasion. According to the allegation, the accused made good their escape after committing the crime. There could be felt no ostensible danger by them so contention of the complainant to have left the spot for his home was in fact, nothing but a desperate attempt on his part to abridge the gap of about seven to eight hours, between the time of occurrence and that of registration of FIR. The presence of his son Muhammad Shoaib Kaleem (P.W.2) at the spot at the crucial hour has not been mentioned by the complainant in his testimony and he only named Muhammad Yaqoob, the given-up PW, as other eye-witness. Their statements are intrinsically unbelievable and preposterous. They did not appear to have deposed truly and honestly. Every bit of their depositions reflects on the veracity of their contention of having seen the occurrence. They certainly came to the spot, but only after the news of murder of Tayyab Kaleem was broken to them by someone on the following day. Their claim of having seen the crime is unfounded and baseless. The ocular account, as tendered by them, is brushed aside being untrustworthy and unreliable.

15. The medical evidence has been tendered by Dr. Khalid Bashir (P.W.9). who performed autopsy on the dead body of Tayyab Kaleem at 2.50 p.m. on 18.7.2007 more than fourteen hours after the alleged occurrence and about six hours after registration of the FIR (Exh.PA/1). The medical officer found three firearm injuries on the body of the deceased vide necropsy report (Exh.PL), one out of which (injury No.1) is an entry wound at left anterolateral aspect of his neck and the other two are exit wounds, at the locale of lateral aspect of right side of neck and right scapular region. The delay in postmortem examination of the dead body is massive as well as unexplained, which denied more the prosecution case, rather than doing something good to it. The characteristics of firearm entry wound revealed, that deceased had been fired at from close quarters, but it could not corroborate the ocular account, as both the eye-witnesses (P.W.1 and P.W.2) made untrue and contradictory statements, already rejected. The medical evidence may, at the most, be treated a corroboratory circumstance but in no way, be dubbed conclusive, as it could not establish identity of author of the injuries inflicted. Its value and validity would ordinarily turn meaningful, where main prosecution witnesses-tendered cogent and confidence inspiring evidence, which is not the situation herein.

16. So far as recovery of a .12-bore gun (P2) on 2.8.2007, at the instance of the appellant, vide seizure-memo Exh.PD, attested by Muhammad Shoaib Kaleem (P.W.2) and Muhammad Yaqoob PW (not produced) is concerned, it has been looked at doubtfully by the learned trial court in the impugned judgment, despite it was found wedded with crime empty (P1) through the Forensic Science Laboratory report (Exh.PN). The above-named witnesses also attested memo of recovery (Exh.PC) of crime empty (P1), which had been secured by Nawaz Ahmad SI/IO (P.W.8) during spot inspection on 18.7.2007. Its recovery has been shown in visual site plan (Exh.PJ) dubiously, as is manifest from the description of note/point No.1 thereof. The hand and ink used for making this entry, looked enormously different from rest of the description thereof, besides, no specific point has been shown as regards this recovery in the drawing of the site-plan. Similar is the situation of site-plan in-scale (Exh.PF), but only with the difference that it is Note-A, which has been toyed with to add the factum of recovery of an empty cartridge of .12-bore. None of the witnesses of ocular account alleged in their statements that Bilal Ahmad (appellant) had repeatedly fired or made an attempt to fire again, hence, spillage of an empty from his .12-bore pump-action gun is unfathomable. They merely contended in their testimonies that he fired at the neck of asleep Tayyab Kaleem and ran away along with his co-accused. To have found an empty of this caliber, in such a situation, looked a surprising factor.

17. The recovery of pump-action .12-bore gun (P2) loaded with three live cartridges (P3/1-3), vide seizure-memo. Exh.PD on 2.8.2007. has been shown at the instance of the appellant, from the haveli of Muhammad Azam, which looked more like a residential house, consisting of four rooms and a compound as mentioned in site-plan of place of recovery (Exh.PK). This haveli was surrounded by residential houses on its eastern and northern sides, but on its other two sides agricultural land was situated. There did not exist an evidence if this haveli was ever resided or, possessed by the appellant. The investigating officer (P.W.8), however, contended that he saw appellant's father foddering the .cattle there. The memo of recovery Exh.PD revealed that pump-action .12-bore gun (P2) was wrapped in a plastic bag and buried in the ash of burnt dung lying in the compound. If appellant's father was roaming about near said heap of ash, how could recovery of this gun be attributed to the appellant. The investigating officer (P.W.8) arrested the appellant on 24.7.2007 and showed recovery of gun (P2) on 2.8.2007. the 8th day of his physical remand with the police. The transmission of parcel of crime empty (P1) to the office of Forensic Science Laboratory was delayed by the police till after the recovery of .12-bore gun (P2) and it was despatched together with the gun in a single package/parcel to the ballistic expert on 7.8.2007. The report of Forensic Science Laboratory (Exh.PN) is in positive and reason thereof is understandable. The prosecution failed to offer any explanation as to why both the items were despatched jointly to the office of Ballistic Expert and why transmission of parcel of crime-empty (P1) was delayed till after the arrest of the appellant. The recovery evidence qua both the items (P1 and P2) did not look convincing and positive report of the Forensic Science, Laboratory (Exh.PN) lent no strength to it, so as to make it believable. This piece of evidence has rightly been rejected by the learned trial court.

18. The defence plea of the accused under section 342, Cr.P.C. is nothing but a mere denial simpliciter of the allegation, brought forth against him by the prosecution. Thus it needed no comments thereon.

19. After dismissal of the ocular account, the medical evidence and the evidence of recovery of crime-empty (P1) and that of .12-bore gun, and rejection of the motive alleged, I am of the considered view that prosecution has badly failed to bring home the guilt of the appellant beyond reasonable shadow of doubt. The impugned judgment did not entail a single good ground, which might substantiate the verdict of guilt, as handed down to the appellant by the learned trial court. The evidence available on the record hardly justified the treatment, meted out to the appellant by the trial court through the impugned judgment, which suffered from misreading and non-reading of evidence, besides being conjectural and whimsical in nature. It is liable to be annulled, so done accordingly.

20. Resultantly, this appeal is accepted, the conviction/sentence of the appellant is set aside and he is acquitted of the charge. He is in custody, so he is ordered to be released from the prison forthwith if not required to be detained in any other case.

WA/B-12/L Appeal accepted.