PLJ 2009 Cr.C. (
Present: Muhammad Akram Qureshi and Khalil Ahmad, JJ.
MUHAMMAD ARSHAD & another--Petitioners
versus
STATE--Respondent
Crl. Appeal No. 1324 of 2002 and M.R. No. 564 of 2002,
heard on 24.10.2008.
----S. 302(a)--Conviction and sentence--Challenge
to--Motive--Benefit of doubt--Prosecution witnesses were not present at the
spot--No motive was alleged against the present appellants--Medical evidence
was not supporting the ocular account--Report of fire-arm expert become highly
doubtful because of the evidence produced before trial Court--Prosecution case
was full of doubt--Conviction passed by trial Court cannot be upheld--Trial
Court has not properly appreciated the evidence on record--Appeal
accepted--Conviction and sentence set aside. [P.
651] A
Syed Karamat Ali Naqvi, M.S. Shad, Ch. Abdul Rashid,
Advocates M/s. Abdul Majeed Chishti and Muhammad Akhtar, Defence Counsels for
Appellants.
Ch. Muhammad Aslam Sandhu, Addl. P.G. for State.
Mr. Muhammad Aslam Khan Buttar, Advocate for Complainant.
Date of hearing: 24.10.2008.
Judgment
Muhammad Akram Qureshi, J.--Seven persons namely Muhammad
Azam, Muhammad Arshad, Abdul Rauf, Iftikhar Ahmad, Shaukat Ali, Liaquat Ali and
Muhammad Amin Raza were tried by the leaned Addl. Sessions Judge, Narowal in
case FIR No. 42 dated 30.3.1998 registered under Sections 302/109/148/149 PPC
at Police Station Laiser Kalan Tehsil Shakargarh District Narowal for the
murder of Syed Afzal Bahar Shah. The learned trial Judge vide judgment dated
18.7.2002 convicted Muhammad Azam and Muhammad Arshad appellants u/S. 302(a)
PPC and sentenced them to death each. They were directed to pay compensation of
Rs. 50,000/- each to the legal heirs of deceased u/S. 544-A Cr.P.C. or
in-default thereof to undergo 6 months SI. Co-accused Muhammad Amin Raza was
acquitted of the charge. Abdul Rauf and Iftikhar Ahmad were declared P.Os.
during the trial. Shaukat Ali and Liaquat Ali were acquitted on the basis of
compromise between the parties.
The appellants have filed Crl. Appeal No. 1324 of 2002
against their conviction and sentence whereas the learned trial Court has sent
a reference (M.R.No. 564 of 2002) for the confirmation of death sentence of the
appellants. We propose to dispose of both these matters by this single
judgment.
2. Brief facts of
the prosecution case as mentioned in FIR by PW-1 Ali Abbas complainant are that
he alongwith his father Syed Afzal Bahar Shah, Ali Hassan and Naeem Haider Shah
were bound to attend the Court of Addl. Sessions Judge, Shakargarh and they
hired a taxi car driven by Muhammad Ramzan, who had undertaken to pick up the
said persons. Syed Afzal Bahar Shah seated on the front seat whereas the
remaining three on the back seat. When the car reached near the dera of Amin
Raza, all of a sudden, a fire was heard and Muhammad Ramzan stopped the car and
ran away despite the fact that none was visible. All the three persons sitting
on the back seat apprehending danger hide themselves in the nearby fields.
Afzal Bahar Shah remained seated in the car. In the meanwhile, Muhammad Amin,
Muhammad Arshad sons of Muhammad Tufail, Shaukat Ali, Liaquat Ali sons of
Nazeer Ahmad, Iftikhar Ali, Abdul Rauf and Muhammad Azam, all equipped with
fire arms with a common intention emerged from the dera of Amina Raza. Muhammad
Arshad fired which landed on the head of Afzal Bahar Shah. Muhammad Azam also
opened fire hitting Afzal Bahar Shah. The remaining accused also opened fire,
hitting Afzal Bahar Shah on different parts of his body. The accused came near
the vehicle, the front door of which was opened and after satisfying themselves
that Afzal Bahar Shah had died, they by raising lalkaras and firing went
towards the village. The complainant and two other persons came near the taxi
car and found that Afzal Bahar Shah had succumbed to the injuries.
The motive behind the occurrence was party faction as
well as litigation of a murder case. As a result of police investigation, the
accused persons were found guilty.
3. The accused
were charge sheeted, to which, they pleaded not guilty and claimed for trial.
In order to prove its case, prosecution examined as many as 11 PWs in all and
tendered documentary evidence.
4. The accused in
their statements recorded under Section 342 Cr.P.C. denied the recovery and
pleaded their innocence and stated that they have been falsely implicated in
this case. The accused produced DW-1 Muhammad Toqeer Hayat, SSP in their
defence but they did not appear in rebuttal of the allegations levelled against
them by the PWs, as required u/S. 340(2) Cr.P.C.
5. Learned counsel
for the appellants contend that the motive was not alleged against both the
appellants; that the prosecution could not prove common interest between the
co-accused and the appellants; that enmity was going on between Shaukat Ali and
Liaquat Ali co-accused who effected compromise with the complainant party and
as a result thereof, Shaukat Ali and Liaquat Ali and the complainant party were
acquitted in the cases which were pending against both the parties; that the
appellants were not present at the spot and they have been roped in this case
due to suspicion; that the motive in the present occurrence was alleged by the
prosecution but it was not proved on the record and once a motive is set up and
the prosecution, if fails to prove it, it is required to suffer and in the
present case, the failure of the prosecution has caused such a big dent in its
case; that prosecution cannot stand on its legs. Learned counsel for the
appellants further contend that PW-2 Syed Naeem Haider Shah has stated at page
89 of the paper book that "deceased received all the injuries while he was
sitting in the seat of car;" that number of injuries went through and
through the dead body of the deceased and none of the bullets passed through
the dead body hit the seats of car and its other parts; that the taxi car from
which the dead body of the deceased was stated to have been recovered remained
un-damaged. Learned counsel for the appellants also contend that PW-1 Ali Abbas
is son of the deceased whereas PW-2 Nadeem Haider Shah was also carrying a
serious enmity with Shaukat Ali and Liaquat Ali co-accused; that the said
witnesses were stated to be present at the spot and sitting in the crops but
the accused in the case did not cause any injury on their person. They further
submit that the deceased was assaulted when he was sitting in the car and that
as per prosecution evidence, other witnesses were also sitting in the same car
with the deceased. They submit that as many as 7 persons made shower of bullets
upon the car of deceased but none of the person sitting in the car received a
scratch there-from and that from these facts, it is quite apparent that
factually the witnesses PW-1 and PW-2 and his companions were not present at
the spot or in taxi car and after the occurrence, they were summoned through
the residents and made cooked up witnesses in the present case. As per prosecution
case, fire shots were made at the deceased from a distance of one foot and no
blackening, charring or tattooing was detected around the injuries suffered by
him. They further contend that the deceased received 28 injuries in all, out of
which, 14 injuries pierced his body and remaining injuries are wound of exit.
They also contend that none of the exit wound had the corresponding marks in
the seat of taxi or that the prosecution could not explain its reason as to why
the taxi car did not receive even a scratch during the shower of bullets. They
submit that ocular account of the present case is inconflict with the medical
evidence; that the motive part of the present case is also lending no support
to this infirm eye-witness account. They further state that the eye-witness
account of the present case is unnatural. Both the witnesses are interested and
inimical. No independent person came forward to corroborate their statements.
They also state that taxi driver was present at the spot. The prosecution did not
join him in the investigation of this case with malafide intention. He was not
produced during the trial before the trial Court. Non production of taxi driver
has also caused a big dent in the prosecution case. From the non production of
the taxi driver, it can be presumed that the complainant has implicated
innocent persons in the case and taxi driver was not willing to support the
story and therefore, he was not produced before the I.O. or the trial Court.
They submit that the statements of both the eye-witnesses are discrepant and
improved.
As for as recovery of rifles from the person of the
appellants is concerned, the same were effected in violation of Section 103
Cr.P.C. Respectables of the locality were never summoned to witness the
recovery proceedings. The witnesses of recovery are also hostile towards the
appellants; that the despatch of rifles to the office of Forensic Science
Laboratory could not be proved; that the witnesses were stated to have taken
the weapons of offence to the office of FSL. Rafique PW was not produced to
prove this fact and PW-3 Sajjad Ahmad constable was produced but he did not
utter even a single word regarding the taking of rifle to the office of FSL and
that the rifles stated to have been recovered from the custody of the
appellants were kept in Malkhana for four months. Moharrir has not stated
before the trial Court that rifles were received by him and he kept the rifles
in Malkhana for such a long time. They submit that report of FSL on the
available evidence carries no weight at all and the prosecution cannot get any
support from this report. They submit that lame ocular account of the
prosecution case is without the clutches of motive, medical evidence and the
recovery. They further submit that in view of the discrepant, improved and
interested character of the eye-witnesses account, it has fallen down. The
prosecution could not provide strong legs to the ocular account of this case to
stand and prove the guilt of the appellants. They contend that prosecution has
failed to prove the guilt against both the appellants and it is a case of
doubtful nature and benefit of doubt must go to the appellants and their appeal
be accepted and they be acquitted of the charge.
6. Conversely,
learned Addl. Prosecutor General for the State assisted by the learned counsel
for the complainant submits that it is a case of day time occurrence. The
matter was reported to the police with promptitude; that the appellants and the
co-accused are named in the FIR and their weapon of offence and their roles
assigned to them are also detailed therein; that the names of the eye-witnesses
also figured in the FIR; that promptitude in the FIR rules out the possibility
of deliberation, consultation and investigation; that both the eye-witnesses
are not directly inimical towards the appellants. They further submit that the
appellants are not having any enmity with the deceased and the witnesses; that
worth the appellants joined the common object of their co-accused; that motive
of the present occurrence stood proved on the record because enmity was going
on between Shaukat Ali, Liaquat Ali, Iftikhar Ahmad, Abdul Rauf accused.
Muhammad Arshad, Muhammad Amin Raza and Muhammad Azam accused shared their
common object while armed themselves and came to the spot of occurrence in
furtherance of common object of unlawful assembly constituted by them. They
also contend that contention of learned counsel for the appellants are
misconceived. The taxi car in which the deceased was boarded received some of
the bullets and three fire shots were seen at the body of the taxi. He has
drawn our attention towards Ex. PU. Learned counsel for the prosecution state
that the medical evidence of present case provides a valuable support to the
ocular account of this case. They submit that the deceased was having enmity
with the co-accused of this case and it was due to this reason that he was
accompanied by the other persons and was not moving in taxi car alone. They
also state that the presence of the eye-witnesses is natural at the scene of
occurrence and they have given a detailed description of the present occurrence
before the I.O. and the trial Court. They submit that the defence has failed to
shatter their evidence and that from their statements, the guilt of both the
appellants can be seen clearly. They state that recoveries effected from both
the appellants have also been proved by the prosecution through reliable
evidence; that formal witnesses usually provide concession to the accused
persons and their concession cannot damage the prosecution case and that non
description of the despatch of the rifles by Moharrir and Sajjad PW does not
damage the factum of recoveries having been effected from the person of the
appellants and the empties were recovered from the place of occurrence and sent
to the office of FSL and weapons of offence were also despatched to the said
office and the comparison of the empties and the weapons of offence were
carried out and as a result of which, a positive report has been given by the
Director of FSL through Ex.PU. They also state that it is a valuable piece of
evidence which is further proving the guilt of the appellants. They lastly
state that the prosecution has not levelled any allegations against the
independent behaviour of the I.O. They submit that the I.O. has, though, given
certain concession to the appellants by stating that the car was not bearing
any bullet marks but his statement is belied by the record available on the
file; that the prosecution has fully proved its case beyond any shadow of doubt
and the trial Court has rightly convicted the appellants and sentenced them;
that in view of the available evidence, no interference is called for. They
pray that the conviction and sentence of the appellants be maintained.
7. After hearing
the learned counsel for the parties and perusing the record, it has been
noticed by this Court that as per prosecution case, PWs and the deceased were
travelling in a taxi car when they were assaulted by the appellants and their
co-accused. A shower of bullets was made thereon. In this eventuality, the taxi
car should have received a rain of bullets causing numerous marks thereon. A
perusal of the recovery memo through which the taxi car was taken into
possession few bullets marks were shown on the said taxi. The deceased received
14 injuries on his person which also went through his body. It is quite strange
that the seats of the taxi car did not carry any bullet marks of these 14
injuries on the seat or other parts of the body. It is also strange as to how the
PWs saved themselves from this rain of bullets. Enemies of the appellants and
their co-accused were before them and they let them go allowed them to conceal
themselves in the crops. After the death of Syed Afzal Bahar Shah, PWs were at
the mercy of the assailants but they did not cause even a scratch on their
body. The very presence of the PWs in these circumstances, appears to be highly
doubtful. The taxi driver was the most important witness of the present
occurrence. He stated to have fled away after the incident. The prosecution
never produced him during the investigation, even the evidence record of
present case is without the evidence of said taxi driver. Non production of the
said taxi driver has persuaded us to conclude that the said taxi driver was not
willing to support the false version of the complainant party. Had he been
produced before the I.O. or before the trial Court, he would not have supported
the version of the complainant party. No motive has been alleged against the
appellants. The co-accused against whom the motive was built up by the
complainant party patched up the matter with them and they won their acquittal
as a result thereof. We are informed by the learned counsel for the appellants
that as a result of this compromise, certain members of the complainant party
who were convicted for the murder of companions of the accused in some other
case were also acquitted. In these circumstances, the prosecution was bound to
disclose on record as to why the present appellants shared the common object of
their co-accused. The very registration of the case show that it was cooked up
after deliberation, concoction and investigation. The deposition of PW-1
carries the version at page 74 of the paper book that "the accused were on
the left side of the car when they made firing upon Afzal Bahar Shah deceased
of this case. The distance between my father and the assailants was about one
foot i.e. the barrel of their respective fire arms was at a distance of one
foot when the fire was shot at my deceased father."
8. A perusal of
the injuries found on the person of the deceased would indicate that none of
the said injuries was carrying any blackening, tattooing or scotching. From a
distance of one foot, weapons should have caused burning and tattooing on the
injuries. PW-2 has stated at page 89 of the paper book that "the deceased
received all the injuries while he was sitting in the seat of the car."
Had the deceased been sitting in the seat of car when he received injuries the
bullets have pierced in the seat and number of said bullets should not have
been less than 14. The bullet marks which were found pierced on the seat was
only one. In this view of the matter, the story having been narrated by the
prosecution witnesses is not supported by the medical evidence and the other
circumstances of this case. In this case witnesses may tell lie but the
circumstances would not. The conflict between the medical evidence and the
ocular account and the fact that none of the witnesses have received any
scratch at the hands of the assailants is indicative of the fact that the
eye-witnesses were not present at the spot. The inimical assailants did not
care to cause even a hurt on the body of the PWs after the occurrence
particularly when their enemies were before them. From this fact it is clear
that factually the witnesses were not present at the spot and the deceased was
moving in taxi car alone when he was assaulted and his death was intimated to
the complainant party who subsequently introduced the prosecution witnesses and
the said witnesses have appeared before the I.O. and the learned trial Court.
9. There is
another fact that recoveries were effected from the appellants. According to
the prosecution, empties secured from the place of occurrence were despatched
to the office of Forensic Science Laboratory on 14.4.1998 whereas according to
the report of FSL Ex.PY, empties were received in their office on 15.5.1998.
FSL further show that weapon of offence stated to have been recovered from
Muhammad Arshad, Abdul Rauf, Muhammad Azam appellant were sent to him on
31.8.1998. It is very strange that none of the witnesses have stated that he
was given the parcels of guns to carry it to the office of FSL. In this view of
the matter, the very despatch of the crime weapons and their receipt in the
office of FSL is a matter of serious doubt and in this eventuality, no reliance
can be placed on the report of FSL. It is a case in which the learned Public
Prosecutor conducted the case with carelessness. Learned trial Courts while
conducting these cases should bring the lapses of prosecutors to their
respective offices. The offenders involved in the offences of heinous nature
are securing acquittal on account of the careless attitude of public
prosecutors. It is very sad affair. This matter be brought to the notice of
learned Prosecutor General.
10. In the above narrated facts, this Court has concluded
that the prosecution witnesses were not present at the spot. No motive was
alleged against the present appellants. Medical evidence is not supporting the
ocular account. The report of Fire-arm Expert becomes highly doubtful because
of the evidence produced before the trial Court, therefore, the prosecution
case is full of doubt. In these circumstances, the conviction passed by the
learned trial Court cannot be upheld. The learned trial Court has not properly
appreciated the evidence on the record.
11. Resultantly,
this appeal succeeds and it is accepted. The conviction and sentence of the
appellants is set-aside. They shall be released forthwith, if not required to
be detained in any other case.
12. The Murder
Reference is answered in the negative.
(A.S.) Appeal accepted