Ch. Iftikhar Hussian, J.--Appellants Rustam Ali and Muhammad Akram were tried under Section 302 read with Section 34 PPC in case FIR No, 196 registered with Police Station Sambrial, District Sialkot on 28.06.1997 for on 23.06.1996 at 11:30 p.m. in the areas of Mauza Lopowali falling with the jurisdiction of the aforesaid police station, in furtherance of their common intention, committing the Qatal-e-Amd of deceased Sher Muhammad.
2. They on the conclusion of the trial were found guilty of that charge and so vide the judgment rendered on 31.05.2000 by Mr. Pervaiz Mehmood Mian, learned Additional Sessions Judge, Sialkot were convicted and sentenced as follows :--
(a) Rustam Ali. under Section 302 PPC read with Section 34 PPC to death subject to confirmation by this Court.
(b) Muhammad Akram.
Under Section 302(b) PPC to imprisonment for life as Ta'zir.
They both were also directed to pay Rs, 50,000/- as compensation to the legal heirs of the deceased as under Section 544-A Cr.P.C. and in default thereof Rustam Ali to suffer six months RI and Muhammad Akram to further similar sentence.
3. They both feeling themselves aggrieved of their conviction and sentence have assailed the same by way of the above-mentioned Criminal Appeal (No, 866 of 2000).
4. Complainant Khushi Muhammad has preferred Criminal Revision No, (608 of 2000) for enhancement in the sentence of appellant Muhammad Akram from imprisonment of life to death.
5. The Murder Reference mentioned above (No, 491 of 2000) was submitted to this Court under Section 374, Cr.P.C. by the learned trial Court for confirmation of sentence of death of appellant Rustam Ali.
6. As all these three matters essentially have arisen out of one and the same case and under common set of facts, hence are being disposed of by this single judgment.
7. The facts in detail stand incorporated in the impugned judgment recorded by the learned trial Court and also the paper book. Hence, we avoid to burden this judgment/record unnecessarily by repeating all those here.
8. However, the facts in brief and strictly relevant for the disposal of these matters are that on 28.6.1997 at about 12:00 noon at Chowk Masjid. More, Sambrial complainant Khushi Muhammad made application Ex. PA to the SHO of the said police station. The same is to the effect that he resides in Korowal and a cultivator. On 23.06.1997 at about 11:30 p.m. he, his nephew Falak Sher and relative Abdul Majeed, who is resident of DouloBheelo went to Sher Muhammad from the house for an urgent work, who was sleeping in the field at Lopowali. As soon as they reached there, they saw two men standing near his cot. He was baseeching them not to kill him. Rustam Ali and Muhammad Akram accused, when saw them, Rustam Ali hurriedly fired with carbine at Sher Muhammad, which hit him at this mouth and he was wounded. They tried to apprehend them and there upon Muhammad Akram fired with .12 bore rifle at Sher Muhammad, which hit his right bicept, who then was seriously wounded. He and his companions fully identified the accused in the moonlight. The accused threatened them to kill in case they stepped forward and fled away.
The motive behind the occurrence is that a day or two earlier to that the accused had fired two shots near his house and that of his brother and his brother had asked them that as to why they had fired. The accused dui the same were infuriated and have committed that act over the same.
They carried his brother Sher Muhammad to Civil Hospital, Sialkot. The doctor gave them his Medical Legal Report and referred him to Mayo Hospital, Lahore due to his precarious condition.
The Punchayat had been making efforts in the village for compromise and that is why they did not report the matter to the police..
9. The appellants after the investigation were challaned to the Court. They were formally charged under Section 302 read with Section 34 PPC. They pleaded not guilty to the charge.
10. The prosecution at their trial produced it's 14 witnesses besides the report Ex. PO of the Chemical Examiner and that of the Serologist Ex PP and Forensic Science Laboratory Ex. PQ.
11. They in their examination under Section 342 Cr.P.C. denied the allegation appearing against them in the prosecution evidence and also the recover of crime weapon from them. Their plea is almost similar to each other. Appellant Rustam Ali, in reply to the question that as to why this case is against him and why the PWs have deposed against him has stated as follows: "Infact the present occurrence, took place unseen by anybody at odd hours of right and there were as many as four other persons present at the said Dera on the night of occurrence when the deceased was shot at by robbers/dacoits, when the deceased resisted, on the pilferage of water- melon. Tassadaq Hussain, Afzal Khan, Liaqat Ghumman, Jehan Khan and a number of others told the complainant at about 05:30 a.m. on the ensuring morning that the deceased was lying injured in the water-melon filed and on receipt of that information, the complainant attended to the deceased. The complainant did not lodge report for about two weeks for the reason that no one knew the culprits, and he consumed all this time deliberating and discussing with his partymen, counseling then as to who implicate in this incident and thereafter the complainant lodged a false case implicating me and my co-accused falsely. After the occurrence, some of the aforesaid persons had visited the deceased in the hospital and on their inquiry, the deceased had gestured them that he did not know in the darkness as to who were his assailants. One Bashir Ahmad son of Ahmad Din was also amongst the aforesaid persons at that time. The aforesaid persons also appeared before the Investigating Officer and made their statements. None of the eye-witness Was present at the time of occurrence. I was present in my sister's house in village Muzaffarpur, Tehsil and District Sialkot at the night of occurrence. Even the motive as set out by the prosecution is false one and has been introduced just to create and evidence and to implicate us in this false case. The PWs have made false statement against us."
12. They have produced six 'witnesses in their defence. However, they themselves did not depose in disproof of the allegation appearing against them in the prosecution evidence as envisaged by Section 340(2) Cr.P.C.
13. The learned trial Court after hearing the parties came to the conclusion that the prosecution case against them stood proved to the hilt and it with the same has convicted and sentenced them as stated above.
14. It has been argued on their behalf that the eye-witnesses are related inter se and to the deceased; that they were chance witnesses; that they have not at all explained convincingly the cause of their presence at the spot at the relevant time while in the facts and circumstances of the case their presence at the place of occurrence at time was highly improbable and so they could not be relied upon; that such hypothesis is strengthened by the fact that there is at least five days in ordinate delay in lodging the FIR Ex. PA and the explanation furnished for the same is highly unsatisfactory or unreasonable and so the same was not acceptable that this great delay in lodging the FIR in such like matter is fatal to the prosecution and the same heavily suggests that the complainant party did not known the assailants and they had been making consultations and deliberations to rope in some one and unfortunately they have chosen them for the purpose due to suspicion; that recovery of crime weapons from them was inconsequential as no crime-empty was recovered from the spot and no matching report of the expert was available to the prosecution to authenticate the alleged recovery from them; that the stand of the complainant as regards the motive at the trial is contradictory to one taken by him initially in the FIR EX. PA; that the same even otherwise is not convincing and the same has remained unproved on the record; that in such circumstances the medical evidence was of no avail to the prosecution; and that in any case the prosecution has failed to bring home the guilt to them beyond any shadow of reasonable doubt.
15. As against the same, the learned. State counsel assisted by the learned counsel for the complainant has supported the impugned judgment saying that the ocular account furnished by the prosecution supported by the medical evidence, that of the recovery of crime weapons from the appellants, the motive has fully brought home the guilt to them beyond any shadow of reasonable doubt and so they have rightly been convicted and sentenced.
16.However, the learned counsel for the complainant has submitted that the part played by appellant Muhammad Akram during the incident has equally contributed towards the death of the deceased and so he too deserved the capital punishment but he without any good reason has been awarded lesser penalty.
He has requested that his sentence may be enhanced 'from imprisonment for life to death.
17. We have carefully considered the submissions made by both the sides with the help of available record.
18. The prosecution's ocular account has been rendered by the complainant Khushi Muhammad (PW-1) and Abdul Majeed (PW-2). The former is the real brother of the deceased and the latter his close relative. One sister of the latter is married to the complainant's another brother namely Aslam and the other to his nephew Falak Sher. So, they are closely related inter se and to the deceased.
19. The incident allegedly had taken place in the field of watermelon at Lopowali. According to Khushi Muhammad, the deceased had purchased the said crop 15/16 days prior to the occurrence.
It is their stance that the deceased was there at that time.
20. Khushi Muhammad as per his showing is the resident of Korowal. The said place according to him is at a distance of 2/ 2-1/2 Kilometers from the place of occurrence. So, he was not resident of that place and rather of another one. Similarly Abdul Majid PW is the resident of village Doulo- Bheelo. The same according to him is at a distance of abut 31/2--4 kilometers. He too, thus was not the resident of the place of occurrence or close to it and rather to a distant place. So they both definitely were the chance witnesses.
In the case of Nawaz etc. u. The State (NLR 1991 AC 248 Lahore (DB), chance witness has been described/defined as one, who has no plausible explanation for his presence near place of occurrence at time of commission of offence.
21. Khushi Muhammad in FIR Ex. P-A has mentioned the cause of their visit to the deceased on the fateful night as an "urgent work": The similar was his stance at the trial. He has not at all explained that what was that "urgent work" of their's with the deceased.
22. Abdul Majeed has not at all said anything in his statement about the cause of their visit to the deceased. The same, thus, has remained hidden in darkness. This has not at all become clear on the record. So, it appears that had they no "urgent work" at all with him at those late hours of the night. Had it been so, they then definitely could have disclosed it or made known but they had not been done so.
The cause of their presence at the spot at the relevant time, therefore, has remained unexplained satisfactorily or convincingly. They in the ordinary course of business had no occasion to visit him at those late hours of the night, if at all for the sake of arguments, he was there. Their presence, therefore, at that place at the time of commission of the offence was highly improbable or doubtful. It, therefore, was not at all safe to place reliance upon their testimony.
23. This view is further strengthened by the factum of the delay in lodging the FIR EX. P-A. The incident allegedly had taken place on 23.06.1997 at about 11:30 p.m.. The report regarding the same was made to he police on 28.06.1997 at about 12:00 noon as mentioned above. This, thus as about five days after the incident. This is great delay in lodging the report with the police in the incident of the type. This much delay definitely is fatal to the prosecution case.
24. Khushi Muhammad has stated that the deceased after the incident was taken to Civil Hospital, Sialkot, where the doctor referred him to Mayo Hospital, Lahore and they then took him to Lahore.
He by saying so has tried to explain the delay in lodging the FIR but the same seems not reasonable or satisfactory. The deceased, if was firstly removed to the Civil Hospital, Sialkot, then the doctor, who had attended him there could have informed the police about the same as it was a police case. Not only the doctor but also the other staff, who had attend him there, could do so. It rather was their duty to have done so. It but was not done so.
25. It is also important to note that the complainant, if was busy in attending his deceased brother, then anybody else from his family or at least his nephew Falak Sher, who allegedly was with him at the time of incident, could inform the police about the same but this too was not done. This shows that it perhaps was because of the fact that the occurrence was of the night and that too in an open field and, hence un-witnessed. The witnesses belonged not to that place and rather to a distant place. They in ordinary the course of events had no business or occasion to be there at that time and so seemingly were not present there and had, not seen the occurrence themselves. They on coming to know of the same appeared to had been making deliberations to nominate some one in the F.I.R. as accused and, hence this much time had been consumed by them in lodging the same.
26. It is worth mentioning here that the complainant has also mentioned the story of the efforts of Punchayat in the village for compromise in the F.I.R. Ex. P-A. He but has not stated so at the trial. The story of Punchayat's efforts, thus seemingly is made up one. It is not at all confidence inspiring because as per his showing, the deceased was seriously wounded and the doctor at Civil Hospital, Sialkot had referred him to Mayo Hospital, Lahore due to his such condition. In such situation, their withholding the report to the police to await the efforts of Punchayat rings not with truth.
27. Hence, the inordinate delay of five days in lodging the report to the police has remained unexplained satisfactorily on the record. The same is fatal to the prosecution as said above. This shows that perhaps it was an unseen occurrence and the culprits were not known and the complainant party had been making deliberations to nominate someone in the case as said above. This delay in a heavy suspicious circumstance qua the truth in the story of the eye- witnesses regarding the culpability of the two appellants in the matter to much extent. This has left room to entertain doubt qua the question of their culpability in the matter. We therefore, are not prepared to believe the eye-witnesses. The learned trial Court, therefore, has wrongly placed reliance upon their testimony. The same, therefore, is discarded.
28. The medical evidence can at best be used to support the ocular testimony or any other incriminatory evidence of the type and for no other purpose. The ocular testimony in this case, when is not confidence inspiring or with intrinsic worth, the same, therefore, could not be used to support the same. Hence, no further discussion seems needed in respect of the same.
29. The recovery of crime weapon .12 bore carbine P-5 from appellant Rustam Ali and gun P-7 on the pointation of appellant Muhammad is inconsequential in this case as admittedly no crime empty was found from the spot and no matching report of the expert is available to the prosecution to offer in this case. The same, therefore, was liable to be kept out of consideration. The learned trial Court has wrongly relied upon the same.
30. The motive set up by Khushi Muhammad complainant initially in Ex. P-A was that a day or two earlier to the incident, the appellants had fired at his house and that of the deceased and the appellants on the asking of the deceased that as to why they have done so, were infuriated and over the same they had committed the act. There is inconsistently in his this stand as well mentioned by him at the trial than the one in the EX. P-A. In the Ex. P-A, he has mentioned that such incident had taken place one or two days prior to the occurrence. He but at the trial has mentioned that it was three days prior to the same. There is lot of difference in one or two days and three days in this context. So, thfs witness is not certain that when that incident had taken place. There, thus arises doubt that if it had taken place or not.
31. Here it may be mentioned that benefit of every doubt, howsoever slightly it may be is to be given to the accused.
32. Not only this, but it also interesting to note that he at the trial had also introduced another motive and the same is that the deceased had purchased 04 Marlas of land from one Muhammad Sharif in the village Abadi and the appellants had threatened him over the same. This motive was never mentioned by him in the FIR. Ex-PA. So, due to this variation in his stand in respect of the motive at the trial than the one mentioned by him in the F.I.R. Ex-PA. makes one to think that what was the actual and that which of the two has played as the actual motive. It if was the incident of firing at the house of the deceased and the witness or the purchase of land by the deceased and the annoyance of the appellants over the same. Anyhow, this question has remained unclear or not answered convincingly on the record. It has remained hidden or not clearly brought on the record. The motive, therefore, has remained unproved on the record. The same, therefore, could not be used to corroborate the eye-witnesses.
33. We, therefore, have been persuaded to believe that the prosecution case against the appellants has remained unproved on the record beyond any shadow of reasonable doubt. We may mention here that it is the basic duty of the prosecution to prove it's case against the accused beyond any shadow of reasonable doubt and it is not for the defence to provide it's innocence.
Hence, we do not feel the necessity of discussing the defence evidence on the record.
34. As a consequence of the above discussion, we are constrained to hold that the impugned judgment .of the conviction and sentence of the appellants is open to serious exception. The same, therefore, is not liable to be sustained.
35. We, therefore, accept their appeal (Criminal Appeal No, 866 of 2000) and set aside the impugned judgment of their conviction and sentence and acquit them of the charge giving them the benefit of doubt. They are in custody. They be set at liberty forthwith, if not required in any case.
36. The Criminal Revision (No, 608 of 2000) fails and the same is dismissed.
The Murder Reference is answered in the negative. The death sentence of appellant Rustam Ali is not confirmed.