' M. BILAL KHAN, J.--- This judgment shall dispose of Criminal Appeal No,1274 of 2000, Criminal Revision No,778 of 2000 and Murder Reference No,549 of 2000 as all these matters arise out of the judgment dated 24-8-2000 passed by the learned Additional Sessions Judge, Sheikhupura whereby he convicted Zakaullah appellant under section 302(b), read with section 34, P.P.C. For causing Qatl-e-Amd of Allah Ditta and sentenced him to death and to pay a sum of Rs,50,000 to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or in default of payment thereof Zakaullah appellant was ordered to further undergo simple imprisonment for six months, whereas Ali Muhammad appellant was convicted under section 302(b)/34, P.P.C. For causing Qatl-e-Amd of Allah Ditta and was sentenced to life imprisonment and to pay a sum of Rs,50,000 to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or in default of payment thereof he was ordered to further undergo six months' simple imprisonment.
Benefit of section 382-B, Cr.P.C. Was also extended to Ali Muhammad appellant. Umar Hayat son of Allah Ditta deceased has filed Criminal Revision No,778 of 2000 for enhancement of the amount of compensation awarded to Zakaullah appellant and for enhancement of life imprisonment to death sentence awarded to Ali Muhammad appellant. Learned trial Court has sent Murder Reference No,549 of 2000 to the High Court for confirmation of death sentence awarded to Zakaullah accused/appellant.
2. Briefly stated the facts of the prosecution case as unfolded in the F.I.R. Were that on 11-8-1998, the complainant Umar Hayat was watching VCR alongwith his family in his house situated in village Mian Ali Faqiran. Amjad and Zakaullah accused also came there and insisted on watching a programme on the VCR which was not liked by the complainant as according to him there were female inmates in the house and he switched off the VCR as a consequence of which Amjad and Zakaullah became annoyed and came out of the house extending threats that they would teach them a lesson the next morning. On the next day i,e, 12-8-1998 about 8-00 p.m. Amjad Ali, Wali Muhammad, Mohabbat all armed with .12 bore guns, Nawab, Sanaullah accused armed with rifles and Zakaullah accused armed with carbine came out of Haveli of Ali Muhammad accused and in furtherance of their common intention they raised Lalkara and attacked the complainant party.
The fire made by Ali Muhammad hit Allah Ditta deceased on his left flank. Zakaullah fired with his carbine hitting inside the left elbow of the deceased. On receiving these injuries Allah Ditta deceased fell on the ground and died instantaneously. After the occurrence the accused persons decamped from the spot raising Lalkaras and performing Bhangra claiming that VCR was just an excuse and that they had in fact avenged their insult for not giving Rishta by Amir Ali maternal- uncle of the complainant. The motive set up in the F.I.R. Was that the accused party had broken the legs of complainant's maternal-uncle about 15/16 years ago and the accused persons have committed the murder of complainant's father to satisfy their animus which they had against the complainant party. Leaving the dead body of Allah Ditta at the spot the complainant proceeded to report the matter to the police. F.I.R. No,549 of 2000 was registered at Police Station Khanqah Dogran District Sheikhupura at 11-10 p.m. On 12-8-1998 under sections 302/148/149, P.P.C.
3. The investigation of this case was conducted by Muhammad Arshad Lateef, Inspector (P.W.11) and Rao Abdur Rehman, (P.W.12). During the course of investigation Rao Abdur Rehman, S.-I.
(P.W.12) recorded the statement of the complainant Umar Hayat at the police station on the basis of which F.I.R. Exh.P.J. Was recorded. Thereafter he visited the place of occurrence, prepared inquest report Exh.P.F. Of the deceased alongwith injury statement Exh.P.H. He sent the dead body of the deceased through Zafarullah Constable to D.H.Q. Hospital, Sheikhupura for post-mortem examination. He also collected blood-stained earth from the spot and prepared site plan. On 17-11- 1998 Muhammad Arshad Lateef, Inspector (P.W.11) arrested the appellants Ali Muhammad and Zakaullah. A .12 bore gun was recovered on 30-11-1998 from Ali Muhammad accused on his pointation from his residential house. Likewise a .12 bore gun was recovered from Zakaullah appellant on his pointation from his residential house. After completion of investigation challan was submitted against the appellants and five of their co-accused before the learned trial Court.
At the commencement of the trial the learned trial Court framed the charge as under:-- "Firstly that on 11-8-1998, at about 8-00 p.m. Within the area of Mian Ali Faqiran, you all the accused while armed with deadly weapons formed an unlawful assembly with common object to commit the murder of Allah Ditta. Thus, you committed the offence under section 148, P.P.C. Which is within the cognizance of this Court.
' Secondly that at the same time, date and place, after constituting an unlawful assembly with common object, committed the murder of Allah Ditta, you Ali Muhammad and Zakaullah accused fired with your respective weapons which hit Allah Ditta deceased and he died at the spot and you all the accused fired indiscriminately. Thus, you all the accused committed the offence under section 302 read with section 149, P.P.C. Which is within the cognizance of this Court." ' to which the appellants pleaded not guilty and claimed trial.
4. During the trial the prosecution produced as many as twelve P.Ws. In support of its case against the appellant. Umar Hayat complainant (P.W.9) and Muhammad Sadiq (P.W.10) furnished ocular account of the incident. They also deposed about the motive. Dr. Muhammad Yousaf Kazmi (P.W.7) provided medical evidence. It would be relevant to reproduce the injuries observed by the doctor during the post-mortem examination.
(1) Six fire-arm wounds of entry in area of 6 c.m. x 5 c.m. On back and outer side of mid and lower part of left chest each having diameter of 0.7 c.m. Tattooing was present around the wounds, margins were inverted, no blackening or burning present.
(2) Two fire-arm wounds of exit in area of 8 c.m. x 2 c.m. Each I c.m. x 0.7. Margins everted on upper right chest 6 c.m. Above right nipple.
(3) A fire-arm wound through and through 11 c.m. x 4 c.m. On back and inner of upper part of left fore-arm below left elbow joint under lying bones were fractured.
(4) Multiple abrasions on front of chest mid line upper part in area of 10 c.m. x 2.5 c.m.
(5) Both upper and lower lips were lacerated inner side. Upper lip 1.5 c.m. x 1 c.m. Mid part. Lower lip 1 c.m. x 1 c.m. Mid part.
' Muhammad Arshad Lateef, Inspector (P.W.11) and Rao Abdur Rehman, S.-I. (P.W.12) deposed about various steps taken by them during the investigation of this case. Khalid Hussain, Constable (P.W.6) was the recovery witness in respect of .12 bore single barreled gun allegedly recovered from Zakaullah appellant. Similarly Shehbaz Ahmad (P.W.8) deposed about the recovery of gun allegedly effected from Ali Muhammad accused. The remaining evidence produced by the prosecution was more or less formal in nature. In his statement recorded under section 342, Cr.P.C.
Zakaullah appellant denied and refuted all the allegations levelled against him by the prosecution and claimed that he was innocent. In reply to question No,7 as to why this case against him and why the P.Ws. Have deposed against him he stated that the P.Ws. Were interested the inimical and due to party friction and suspicion he alongwith other members of the family had been falsely implicated in the case after concocting a false story. The statement made under section 342, Cr.P.C. By Ali Muhammad accused was also to the same effect. Both the appellants opted not to make any statement on oath under section 340(2), Cr.P.C. And also did not produce any defence evidence. The trial culminated in the conviction and sentence of both the accused/appellants namely Ali Muhammad and Zakaullah as mentioned in detail hereinabove. However, five co- accused of the appellants were acquitted by the learned trial Court by extending to them the benefit of doubt.
5. We have heard learned counsel for the parties and have gone through record of this case with their assistance. Learned counsel for the appellants has argued that it was a night time occurrence and in fact the alleged eye-witnesses have not witnessed the same. He added that the eye- witnesses were related inter se and were also interested. He argued that the injuries as mentioned in the F.I.R. Were later on changed by the eye-witnesses in their deposition before the Court.
According to F.I.R. The fire made by Ali Muhammad appellant hit the deceased on his left flank whereas the fire attributed to Zakaullah appellant allegedly hit him inside the left elbow. While deposing in the court Umar Hayat (P.W.9) as also Muhammad Sadiq (P.W.10) stated that Zakaullah's fire hit the deceased on his left knee. Learned counsel for the appellants argued that perusal of the post-mortem report would make it abundantly clear that the injury attributed to Zakaullah appellant by (P.W.9) and (P.W.10) is nonexistent. Learned counsel has also laid a lot of stress on the statement of (P.W.7) Dr. Muhammad Yousaf Kazmi wherein he stated that the injuries Nos.1 and 3 could be caused by one fire shot and this fire shot was attributed to Ali Muhammad appellant who was responsible for both the injuries Nos.1 and 3. He finally argued that the medical evidence and ocular account being at complete variance the conviction recorded against the appellants was not sustainable at all.
6. Learned State Counsel Miss hum Sajjad Gul has feebly tried to defend the impugned judgment.
She stated that the discrepancies regarding the locale of injuries as deposed by the P.Ws. Must have crept in through some typographical error. However, she frankly conceded that injury attributed to Zakaullah appellant as stated in the F.I.R. And as deposed by the P.Ws. Could otherwise not be reconciled.
7. After hearing learned counsel for the parties and going through the record we have noted that there is a glaring contradiction between ocular account and the medical report. The injury suffered by the deceased at the hands of Zakaullah appellant as deposed by (P.W.9) and (P.W.10) are non- existent in the post-mortem examination. We have also gone through the vernacular version of evidence recorded by the learned trial Court and found that both P.W.9 and P.W.10 in categorical terms stated that the shot fired by Zakaullah appellant was received by the deceased on his knee joint. As far as the recovery is concerned the gun allegedly recovered from Zakaullah was not sent to Forensic Science Laboratory, no empty was recovered and no matching report is available on the record. Same is the position regarding recovery of Ali Muhammad appellant. Thus, the recoveries of guns from both the appellants had rightly been discarded by the learned trial Court.
The motive as alleged in the F.I.R. Is also far fetched and we have, not been persuaded to agree with the motive part of the story. It is not denied that the occurrence took C place at night and the opinion of Dr. Muhammad Yousaf Kazmi (P.W.7) that injuries Nos.1 and 3 could have been caused by one fire shot has raised serious doubt qua the culpability of Zakaullah appellant.
8. The upshot of the above discussion is that the prosecution has not been able to prove its case beyond reasonable doubt against appellant Zakaullah. Accordingly, we accept this appeal and acquit the appellant Zakaullah extending to him the benefit of the doubt from the charge. He shall be released forthwith if not required in any other case. So far as the accused/appellant Ali Muhammad is concerned it has been brought on record that he died in jail on 7-7-2001 which fact has been confirmed by the learned State Counsel. The appeal to his extent therefore, abates and is dismissed as such.
9. Since Criminal Appeal No,1274 of 2000 has been 'allowed, therefore, Criminal Revision No,778 of 2000 filed for enhancement of the amount of compensation against Zakaullah appellant is dismissed. It may, however, be mentioned that learned counsel in criminal revision did not bother to appear in support of his revision petition.
10. Since Criminal Appeal No,1274 of 2000 filed by the appellants has been accepted, therefore, Murder Reference No,549 of 2000 is answered in the negative.
' Before parting with this judgment we are constrained to observe with considerable regret that there is a growing tendency to falsely implicate innocent people who are languishing in jails for no fault of theirs. In the instant case we have noticed that Umar Hayat son of Allah Ditta (P.W.9) and Muhammad Sadiq son of Shah Muhammad (P.W.10) have made absolutely false statements regarding the injuries suffered by the deceased at the hands of Zakaullah appellant. An attempt has been made by them to falsely implicate the appellants who on account of their false testimony had to undergo initially the rigours of the trial and thereafter upon conviction Zakaullah appellant is in the death cell for the last more than three years. It is imperative that this tendency of false implication is checked with some amount of seriousness. Accordingly, we issue notice to Umar Hayat son of Allah Ditta and Muhammad Sadiq son of Shah Muhammad to show cause as to why they should not be proceeded against under section 194, P.P.C. For fabricating and giving false evidence with intent to procure conviction on a capital charge. Office is directed to prepare a separate file for this purpose.