PLJ 2009 Cr.C. (
Present: Syed Shabbar Raza Rizvi, J.
MUSTAFA--Appellant
versus
STATE--Respondent
Crl. Appeal No. 154 of 2005, heard on 4.6.2009.
----S. 302(b)--Conviction and sentence recorded against appellant by trial Court--Challenge to--Benefit of doubt--Appeal against--Motive--Occurrence--Deceased had divorced mother of appellant and sister of other accused and also declined to pay money to appellant--Trial Court acquitted all other accused persons except appellant--Conviction of appellant was based by trial Court on opinion of PWs--According to application for registration of FIR by complainant PW, appellant had fallen deceased on ground and thereafter pressed his neck and mouth with a piece of cloth--Doctor PW stated before Court that there is no visible sign of ligature mark on neck of deceased--Doctor PW further stated that severe asphyxia was caused by compression of air ways by some soft object but complainant PW stated that appellant pressed mouth and neck with a cloth--Therefore, it is not correct that opinion of PW-doctor and statement of PW-Complainant coincided with each other--In a statement of PW-Complainant made soon after occurrence no accused was nominated nor details of occurrence were given--Police had accepted death of deceased as an accidental death and proceedings u/S. 174 Cr.P.C. were also initiated--It was doubtful that complainant PW and other PWs witnessed occurrence as stated by them--Their statements were contradicted by Doctor-PW and sub Inspector-PW--Evidence produced by prosecution did not prove beyond any shadow of doubt--Ocular account of PWs was not trust worthy--Case of prosecution was replete with doubts and it was not safe to uphold judgment of trial Court therefore it was set aside--Appeal accepted.
[Pp. 214, 216, 217, 218 & 219] A, B, C, D, E, F, G, H, I, J, K & L
Mr. Yar Muhammad Dah, Advocate for Appellant.
Mr. Arshad Hussain Bhutta, Advocate for Respondent.
Mr. Asif Mehmood Cheema, DPG for State.
Date of hearing: 4.6.2009.
Judgment
Appellant Mustafa son of Ebrahim alongwith Majeed alias Jaida, Shakkar and Muhammad Asif (since acquitted) was tried by the learned Addl. Sessions Judge, Pakpattan Sharif in F.I.R No. 8/2004, dated 5.1.2004, under Section 302, 34 PPC, registered at P.S. Saddar, Pakpattan Sharif. After conclusion of the trial, the appellant was convicted under Section 302(b) PPC and sentenced to life imprisonment. He was also directed to pay Rs. 200,000/- as compensation to the legal heirs of the deceased Ebrahim, except himself being legal heir. In default of payment of compensation to further undergo SI for six months. He was also given benefit of Section 382-B Cr.P.C.
2. The brief facts of the case are that F.I.R No. 8/2004 was registered on the basis of application Ex.PA stating that Ebrahim, real brother of the complainant, was married with Maqsoodan Bibi. Out of said wedlock Ghulam Mustafa and Shehnaz Bibi were born. Ebrahim divorced Maqsoodan Bibi, due to strained relations and Maqsoodan Bibi alongwith her children went to Donga Bunga. Ebrahim contracted second marriage with Surayya Bibi. Out of this wedlock, two daughters and two sons were born. About 7/8 months ago Ghulam Mustafa came to his father and asked for Rs. 50,000/- from his father, Ebrahim who declined. On which, Ghulam Mustafa, appellant got annoyed and protested that firstly he divorced his mother and now he was spending whole of his income on his second wife and children. He also threatened that he would see him soon and went to his mother. On the night of 16/17.8.2003 at about 11 p.m., while Ebrahim deceased was watering his fields, he went to check the watercourse from the out-let (Moga). When he did not return for about an hour, the complainant became anxious, and he alongwith Muhammad Siddiq son of Mehnga, Mansha son of Ghulam and Bashir son of Rehmat Ali, went after Ebrahim towards the outlet and saw in the light of moon and also torch that Ghulam Mustafa had felled Ebrahim on the ground in Killa No. 22 of Square No. 21 pressing his neck and mouth with a piece of cloth, while Muhammad Majeed alias Jaida, Muhammad Asif, Shakkar and one unknown caught hold of Ebrahim giving him fist blows on his belly and chest. On seeing them, Ghulam Mustafa, appellant picked up rifle 7mm and threatened them not to come near. The complainant party did not go near them because of fear. Ebrahim become unconscious. The accused persons threw Ebrahim in the watercourse and also pressed his neck. After the death of Ebrahim the accused persons fled away from the place of occurrence. The complainant etc. got Ebrahim out of the watercourse, who had expired.
The motive for the occurrence was that Ebrahim deceased had divorced the mother of appellant and sister of Majeed accused and also declined to pay Rs. 50,000/- to the appellant. Due to this grudge the accused committed murder of Ebrahim.
3. On 17.8.2003, Dr.Muhammad Akram, PW6 conducted the post mortem examination on the dead body of Ebrahim and observed that it was a dead body of a young man, some mud on face and head was also seen. Eyes and mouth were closed. Some watery and blood-stained discharge was oozing out from right nostril. Rigor mortis was developed, post mortem staining were present on back. Externally, there was no mark of injury on the body. All other parts and vissery were found normal and healthy. According to report of Chemical Examiner dated 27.9.2003, poison was not detected in the visceras. The report of Bacteriologist dated 22.8.2003 was that, "Histological examination of heart section reveals patent coronaries. The myocardium unremarkable. The lung section reveals vascular congestion and presence of red blood cells inside alveoli. The hyoid bone sections reveal membranous bone having foci of blood haemorrhage with leukocytes. The laryngeal tissue is also congested. These features are suggestive of anti mortem injury to hyoid bone." In the opinion of the doctor, the death was caused by sudden severe asphyxia due to sudden compression of air ways by some soft object which was sufficient to cause death in ordinary course of nature.
4. During the trial the prosecution examined 10 witnesses in all to prove guilt of the accused. Liaquat Ali, PW1 recorded the formal F.I.R Ex.PA/1 on the basis of complaint Ex.PA. He also handed over sealed parcels to Muhammad Iqbal 443/C for its transmission. Mehboob Aalam 47/C, escorted the dead body to the mortuary for post mortem examination and attested recovery memo Ex.PB. Anayat Hussain, complainant was examined as PW3 supported the prosecution story as narrated by him in the complaint Ex.PA. PW4 Muhammad Bashir supported the prosecution story as narrated by the complainant, PW3. Muhammad Iqbal 443/C was examined as PW5. He delivered the sealed tins and envelopes in the concerned office. Dr.Muhammad Akram, PW6 conducted the post mortem examination as stated above. Ahmad Ali, Patwari was examined as PW7; he prepared the site-plans Ex.PJ, Ex.PJ/1 and Ex.PJ/2. Fayyaz Ahmad, Inspector, PW8 and Muhammad Akram SI, PW9 conducted the investigation of this case. PW10 Muhammad Sharif identified the dead body of Ebrahim at the time of post mortem examination.
5. After close of the prosecution evidence, statements of the accused were recorded under Section 342 Cr.P.C. in which they claimed their innocence. The appellant in his statement under Section 342 Cr.P.C. stated as under:--
It was a blind murder. The occurrence took place in the fields in the darkness of night. The complainant and the PWs first of all lodged rapt with police that they had no suspicion against any one regarding the death of Ebrahim deceased. After three months of the occurrence the complainant party in collusion with the police and prosecution Branch got this false case registered against me and my co-accused in order to extort money from us. The PWs are close relatives of the deceased as well as inter se. They have falsely deposed against me in order to strengthen the prosecution case."
6. The trial concluded into conviction and sentence of the appellant as mentioned in para-1 while into acquittal of co-accused. Hence this appeal.
7. The learned
counsel for the appellant argued that occurrence took place on 16.8.2003 at 11
p.m. and a rapt Ex.PM was lodged by Muhammad Sabir, brother of Ebrahim,
deceased who was not produced as witness in the Court. In the rapt neither any
accused was nominated nor any witness was mentioned. The learned counsel
further argued that the complainant stated in the F.I.R that when they reached
at the scene of occurrence, they saw deceased lying in the watercourse of Killa
No. 22, Square No. 21. The police initiated investigation under Section 174
Cr.P.C. whereas Doctor, PW6 stated that there was no mark of injury or mark of
violence. The learned counsel further argued that the F.I.R was registered
after delay of five months on the statement Ex. PA of Anayat Hussain, PW3.
Further argued that the I.O., Muhammad Akram, SI admitted that he first
inquired and recorded the statements of Muhammad Sabir and Anayat and was of
opinion that it was not a case of murder but it was an accidental death fell
within ambit of Section 174 Cr.P.C. The recoveries were belongings of the
deceased and had no nexus with the offence. The learned counsel further argued
that no evidence of motive was produced. Finally the learned counsel argued
that the I.O. opined that it was a case of dark night murder which has occurred
in the fields where there was no residential house or
8. The learned counsel for the complainant, PW-3 submitted that police had obtained signatures of the complainant on blank papers for recording of complaint and registration but it was not done instead caused delay of five months in registration of instant FIR No. 8/04. The learned counsel further stated that present FIR could only be lodged after several applications to the senior police officers, and eventually on direction of Ex-officio Justice of Peace as well as after receipt of Chemical Examiner's report. In this regard the learned counsel referred to the report of PW-6 according to which the death of the deceased was not from drowning. According to him post mortem report also corroborated ocular account of PW-3 and PW-4, etc. The learned counsel further contended that there was no appealing reason for the complainant to involve the appellant in this case falsely as he was also his nephew by relationship. He added that alleged allegations that complainant is pursuing this case for property of the deceased is groundless and has no substance. The deceased is survived by his wife and children, the PW-3/complainant obviously cannot inherit from any inheritance left by the deceased in their presence. The learned counsel finally supported the judgment of the learned trial Court.
9. The learned trial Court acquitted all other accused persons except the appellant. The learned trial Court gave grounds and reasons for the above in para 23 of his judgment which is reproduced as under:--
"As regards accused Ghulam Mustafa, as per prosecution version Ghulam Mustafa accused pressing the neck of Ibrahim deceased with piece of cloth. With the help of deposition of PW-3 Inayat Hussain and PW-04 Bashir Ahmad fully corroborated with medical evidence the involvement of Ghulam Mustafa accused for the commission of murder of Ibrahim deceased has established beyond any shadow of doubt."
10. The above finding clearly points out that conviction of the appellant was based by the learned trial Court on opinion of Dr. PW-6 and ocular account of the PW-3 and PW-4. According to the learned trial Court both pieces of evidence coincided and corroborated with each other which I propose to examine myself. According to Ex.PA, application for registration of the instant FIR by PW-3 appellant felled the deceased on ground and thereafter pressed his neck and mouth with a piece of cloth. He also stated before the Court:--
"Ghulam Mustafa accused had felled the deceased on the ground and was pressing his neck and mouth with a piece of cloth."
But PW-6, doctor stated before the Court as under:--
"It is correct that there is no visible sign of ligature mark on the neck of the deceased."
The doctor further stated:--
"There was no redness on the neck of the deceased. Generally redness appears on the neck of the deceased when violence is committed."
According to PW6 severe asphyxia was caused by compression of air ways by some soft object but PW3 stated that the appellant pressed mouth and neck with a cloth.
11. Therefore, it is not correct that opinion of PW-6/doctor and statement of PW-3/ complainant coincided with each other. Ex.DA is on the record which is also a statement of PW3 made on 17.8.2003 soon after the occurrence wherein he stated that deceased and another brother Sabir had gone to the fields that night to water their fields. However, when deceased did not return who had gone to check the water outlet, the Sabir brother went after him. On his way said Sabir was accompanied by Shakir son of Abdul Ghaffar. Both of them found Ibrahim dead in a watercourse in the land owned by one Faqir Hussain. In the said statement no accused was nominated nor details of occurrence were given. It is also on the record that above mentioned Sabir had also recorded his statement Ex.PM which had the similar contents. The police had accepted the death of the deceased as an accidental death and proceedings under Section 174 Cr.P.C were also initiated.
12. The statement of PW-3 before the Court did not cover the fact of recording of his statement Ex.DA and Ex.PM and proceedings under Section 174 Cr.P.C. directly instead he stated as under:--
"The police got conducted the post mortem examination of the dead body of deceased. Thanedar obtained signatures on some blank papers but did not register the case whereupon I filed a writ petition before the Court of learned Sessions Judge Pakpattan Sharif, for registration of case after receipt of the reports of the Laboratories the police has registered the present case against the accused on my application Ex.PA which bears my signatures."
13. It may be pointed out that PW-3 is neither an ordinary person in the rural set up not an illiterate person. He is a serving Government servant, a Secretary of Union Council. In his own statement he mentioned:--
"I am Secretary of UC 85-D Chak No. 85-D where I am posted is at a distance of 30 k.m. from my village."
Therefore, it is not believable that if he wanted to lodge an FIR instantly after the occurrence, or if the occurrence had taken place and witnessed by him as stated in Ex.PA, police could have refused that. PW-3 in his statement before the Court stated that police arrived at about 3 a.m. on the night of occurrence. He informed police about the occurrence and he accompanied the police. This statement is contradicted by PW-9. The PW-9 Muhammad Akram SI clearly stated that he had visited the occurrence scene on 17.8.2003 and recorded the statement of Sabir Ex.PM which I have already mentioned above. It may be reiterated that in Ex.PM it was not mentioned who had killed the deceased and in what manner. Interestingly Sabir who is also real brother of deceased was given up as a witness, whereas according to Ex.PM and DA he was the first person to locate and identify the dead body of the deceased on 17.08.2003. The assertion of PW-3 that he had informed the police while visiting police station about the death of the deceased is also contradicted by PW-9. He stated:
"It is correct that I received an information of the murder of Ibrahim deceased at 5.30 a.m. at village Jaura. This report was made by Muhammad Sabir son of Muhammad Siddique PW-(given up) brother of the deceased. It is correct that I handed over complaint Ex.PM to Muhammad Maheen constable. I had read over the complaint to Sabir who thumb marked the same fin token of its correctness. Sabir did not mention name of any person being accused before me. Ex.PM did not disclose the name of any witness of the occurrence of deceased. Rapt No. 32 dated 17.8.2003 is about the complaint Ex.PM. I correctly recorded the statement of Inayat Hussain Ex.DA who is complainant in this case without any addition or omission."
PW-9 further stated referring the witnesses:--
"They all have stated before me in the aforementioned statements that it was an unwitnessed occurrence and no name of accused was mentioned which had committed the murder of Ibrahim."
Therefore, I am doubtful that PW-3 and PW-4 witnessed the occurrence as stated by them. Their statements are contradicted by PW-9 as well as PW-6.
14. Statement of PW-6 doctor Muhammad Akram clearly shows that deceased had received ante mortem injuries to the hyoid bone. He also unambiguously stated that in this case the cause of asphyxia was not drowning. The PW-6 also referred to the autopsy Histopathological report while forming his opinion. PW-9 had also noted in Column No. 19 of Inquest report mark of injury on nose of the deceased. Therefore, death of the deceased through violence cannot be ruled out but evidence produced by the prosecution does not prove beyond any shadow of doubt that the appellant did that or the occurrence was witnessed by PW-3 and PW4. In other words ocular account of PW-3 and PW-4 is not trust worthy in this context.
15. In view of detailed reasons stated in the preceding paras I hold that the case of the prosecution is replete with doubts and it is not safe to uphold judgment of the learned trial Court in the given facts and circumstances of this case. Resultantly this appeal is allowed and decision of the learned trial Court dated 8.1.2005 is set aside. The appellant shall be released forthwith if not required in any other case.
(Sh.A.S.) Appeal allowed.