NIZAM DIN vs THE STATE

' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,36 of 1999 directed against the judgment, dated 14-7-1999 passed by the learned Special Judge (Anti- Terrorism), Multan, whereby he convicted Nizam Din appellant under section 302, P.P.C. And sentenced him under section 302(b), P.P.C. To death with further direction to pay Rs,2,00,000 (Rs, two lacs) as compensation under section 544-A, Cr.P.C. Or in default six months' R.I. He alongwith Muhammad Ashfaq co-accused was also convicted under section 460, P.P.C. And they both were sentenced to undergo two years' RI. Benefit of section 382, Cr.P.C. Was also granted to him.

2. The occurrence in this case took place at 2/3 a.m. (night) on 3-2-1998 in the area of Chak No,37/1-R situated at a distance of 6 miles towards west of the Police Station. Matter was reported by the complainant Ghulam Hussain to the police the same day at 6-05 a.m.

3. The facts in brief as narrated by the complainant in the F.I.R. Are that on the night between the 2/3-2-1998 at 2/3 a.m. The appellant alongwith one unknown whose name later on was known as Muhammad Ashfaq came in his house and knocked the door, the complainant inquired for his identity to which the appellant replied that he had come to convey a message of death of his sister's son. Door was opened, Nizam Din appellant alongwith his companion entered the house and suddenly after entering the house they aimed their weapons at the complainant and others in the room and directed them to hand over whatever they possessed to which Mst. Taj Bibi replied in the negative. She made an attempt to grip Nizam Din but in return a fire was made hitting on her belly. On hearing hue and cry raised by her Riaz Ahmad and his wife attracted to them while the complainant alongwith Muhammad Sadiq P.W. And Nizam Din and his companion came in the 'courtyard and grappled with each other. In the meantime the companion of the appellant Nizam Din made fire with 222 rifle and apprehending a danger to their life, the grip was lost and then both alongwith their weapons tied away towards north. It was also narrated in the F.I.R. That during scuffle the complainant, Muhammad Sadiq and Mst. Shazia were also injured while Mst. Taj Bibi was expired in this occurrence.

4. After completing all the necessary formalities and recording F.I.R., Rehmat Ali S.I. Proceeded to the spot. He prepared the injury statement Exh.P.D., inquest report Exh.P.E. And collected an empty of 30 bore pistol P.8 vide memo. Exh.P.O, a cartridge P.7 of 222 bore, vide memo. Exh.P.N. He also collected blood-stained earth from the place of occurrence vide memo. Exh.P.M. Last worn clothes of the deceased i.e, Shirt P.1, Shalwar P.2 and dopata P.7 all stained with blood were also received by him vide memo. Exh.P.J. Both the accused were arrested on 10-2-1998 and they while in police custody got recovered pistol 30 bore P.5 vide memo. Exh.P.B. And 222 rifle P.9 alongwith 2 magazines P.9/1-2 containing 16, lives cartridges P.9/1-16 vide memo. Exh.P.Q., respectively. After the completion of the investigation both the accused namely Nizam Din and Muhammad Ashfaq (whose name was disclosed by the complainant in the supplementary statement) were challaned.

5. The prosecution in order to prove its case has produced as many as 16 witnesses including Doctor, Investigating Officer and other relevant witnesses. Learned D.D.A. After tendering in evidence report of Chemical Examiner Exh.P.S. Report, of Serologist Exh.P.T. And that of Forensic Science Laboratory, Exh.P.U. Closed the prosecution evidence. Thereafter, statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded not guilty.

6. Learned counsel for the appellant submits that it was a night time and unwitnessed occurrence, that appellant has been falsely implicated in this case, that the recovery of pistol and the crime empty have been planted on the appellant, that there was no reason on the part of the appellant to commit the murder of the deceased, that on the same evidence co-accused Muhammad Ashfaq was acquitted by the trial Court, that the version of the appellant is more probable than the version of the prosecution, that the complainant and two other eye-witnesses namely Muhammad Sadiq and Mst. Shazia Bibi were also injured in this occurrence but their injuries were not mentioned in the I .I.R., though all of them were medically examined by Dr. Muhammad Umar Farooq (P.W.5) and Dr. Azra Rizvi (P.W.4) respectively. Learned counsel for the appellant submits that no case is made out against the appellant.

7. On the other hand learned State counsel submits that after going through the evidence recorded by the learned trial Court and the judgment of the learned trial Court he is not in a position to support the judgment in question.

' We have heard the learned counsel for the parties and also have gone through the record. The occurrence in the instant case had taken place at 3 a.m. In the dead dark of the night. According to the statement of Dr. Azra Rizvi P.W.4 and Dr. Muhammad Umar Farooq, P.W.5, who had medically examined Mst. Shazia Bibi, Ghulam Hussain complainant, and Muhammad Sadiq, they had received injuries with blunt and sharp-edged weapons. Though they were injured in the occurrence but their injuries have not been mentioned in the F.I.R. We are not in a position to believe the so- called eye-witnesses in this case. Appellant has taken the plea in his statement recorded under section 342, Cr.P.C. While replying Question No,9 that Ghulam Hussain complainant demanded the hand of his sister for him and on their refusal he involved him in this case. It was the talk of the town that Sultan son of Faiz Muhammad Khan Pathan alongwith Sultan Awan had committed this occurrence. They also dealt in narcotics. Sultan son of Faiz Khan Pathan was arrested by the Police in this case. He remained with police for so many days and later on after having bargaining with police he and Muhammad Ashfaq co-accused were substituted by the Police as accused in this case. He did not commit any offence. If this. Version of the appellant and the stand-point taken by the prosecution are put in a juxtaposition, the version of the appellant seems to be more plausible and convincing one. The other aspect of the case is that of recovery of pistol at the time of arrest of the appellant. According to the prosecution the appellant and his co-accused were arrested on 10- 2-1998 while the occurrence had taken place on 3-2-1998. On the day of occurrence though crime empty of 222 rifle and 30 bore pistol were recovered from the spot but if one goes through the report of Fire-arm Expert which is Exh.P.U., the parcel of crime empty and that of pistol allegedly recovered from the appellant were received in the office of the Fire-Arm Expert on 26-3-1998 and 23-4-1998. Noor Muhammad Moharrer had appeared before the trial Court and had stated that he handed over the parcel on 21-2-1998 to Ghulam Rasool, constable, Ghulam Rasool constable appeared before the trial Court as P.W.10 and stated that he had taken he parcel to the office of the Fire-arm Expert and the Chemical Examiner on 21-2-1998 but the same was returned because it was not properly sealed, then again after returning the same Moharrir gave the same to him on 25-2-1998. He had stated in the cross- examination that he remained with his relative at Lahore till 25-4-1999. There is no statement of Ghulam Rasool constable recorded on 25-2-1998 because D.D.A. Has failed to supply the same as has appeared from the cross-examination of Ghulam Rasool. The statement of Ghulam Rasool as he had stated, was recorded under section 161, Cr.P.C.

On 23-11-1998. This case is full of doubts, even learned counsel for the State is not in a position to support the judgment of the trial Court. Keeping in submissions of the learned counsel for the parties and also going through the record, we have no other option but to acquit the appellant while extending benefit of doubt. In this view of the matter, this appeal is accepted. Appellant is behind the bars. He is ordered to be released forthwith if he is not required in any other case.