This judgment will dispose of Crl. Appeal No, 416 filed by the appellant, Crl. Appeal No, 595 of 2003 filed by the complainant against acquittal of the co-accused and Crl. Revision No, 304 of 2003, filed by the complainant for enhancement of the sentence awarded to the appellants, directed against the judgment dated 31.1.2003 passed by the learned Addl; Sessions Judge, Sheikhupura, whereby he convicted the appellants u/S. 302B/34 PPC and sentenced them to undergo life imprisonment each with further direction to pay Rs, 1,00,000/- as compensation each required under Section 544-A Cr.P.C. or in default thereof six months S.I more.
2. The facts of the case as narrated in the FIR by the complainant are that on 26.5.2001 he alongwith Shoab-ur-Rehman was going to Qila Amir Singh on a motorcycle from grain market Sheikhupura at about 6.30 a.m. and when they reached near Puli near graveyard of dera Phatuiwala, suddenly Aftab alias Bholi, Muhammad Ilyas, Tahir-urRehman, Zia-ur-Rehman armed with pistols 30 bore alongwith Abbas armed with 222 bore rifle came out from the bushes. Aftab appellant made two- three fires with his pistol hitting on the chest of Shoab-ur-Rehman on the left side but his brother continued to drive the motorcycle in injured condition and when he reached near the corner of graveyard, he could not control the motorcycle and fell on the ground alongwith motorcycle. In order to save himself he went aside and within his view all the five accused persons came near to deceased brother. Tahir ur Rehman made a fire shots hitting on the head of his brother Muhammad Abbas P.O., Muhammad Ilyas and Zia-ur-Rehman fired with their respective weapons which hit on different parts of the body of Shoab-ur-Rehman. All the accused while raising lalkaras fled away from the spot. The motive behind the occurrence was a long tanding enmity of murder cases between the parties.
3. After getting information about the occurrence the local police completed all the necessary formalities and thereafter Muhammad Bashir Inspector alongwith his subordinates proceeded to the place of occurrence where he prepared inquest report Ex. P.H and injury statement Ex. P.J. He took the blood stained earth into possession vide memo Ex. P.E. He also collected three crime, empties of .30 bore vide memo Ex. P.F. Last worn clothes were also received by him vide memo Ex.
P.A. On 11.6.2001 at about 7 p.m. he arrested Aftab and Zia-ur-Rehman and their motorcycle Honda 70 was taken into possession vide memo Ex. P.B. During their personal search .30 bore pistol was recovered from the nepha of shalwar of Aftab vide memo Ex. P.C. On 24.6.2001 the said accused Aftab also got recovered pistol P.8 vide memo Ex.PP. On the same day Zia ur Rehman while in police custody got recovered pistol P.10 vide memo Ex. P.Q. Thereafter investigation of the instant case was entrusted to Ch. Muhammad Ashraf ASP who joined all the accused mentioned in the FIR and found all of them guilty in this case. Ultimately all the accused except Abbas who was declared P.O., were challaned.
4. The prosecution in order to prove its case has produced as many as 13 witnesses including Doctor, I.Os, eye-witnesses, and other formal and relevant witnesses. After tendering in evidence the report of Chemical Examiner Ex. P.K., report of Serologist Ex. P, R and report of the F,.S.L. Ex. P,S, learned DDA closed the prosecution evidence. Thereafter statements of the accused were recorded u/S. 342 Cr.P.C. in which they pleaded their innocence. Learned trial Court after taking into consideration every aspect of the case and hearing the arguments advanced by both the parties, convicted and sentenced the appellants as mentioned above. Hence, this appeal.
5. Learned counsel for the appellants in support of this appeal submits that on the same evidence two co-accused namely Muhammad Ilyas and Tahir-ur-Rehman have been acquitted by the learned trial Court, that Muhammad Abbas is a P.O and has not been arrested so far, that two eye witnesses have been produced in this case. Hafiz Obaid-ur-Rehman the complainant is the real brother of the deceased while Abdul Salam PW.6 is husband of the sister of the deceased. Learned counsel submits that Abdul Salam has been disbelieved by the learned trial Court. He submits that as far as Hafiz Obaid-ur-Rehman is concerned, it has been established on record that the parties are inimical towards each other and they are involved in murder cases, that there is no independent corroboration to the statement of Hafiz Obaid-ur-Rehman who is real brother of the deceased.
6. As far as motive is concerned, he submits that this can also be used for false implication of the appellant. As far .as recovery of crime empties is concerned, he did not utter a single word before the learned trial Court in this regard. As far as statement of Abdul Salam is concerned, that has been disbelieved by the learned trial Court, that three crime empties were taken into possession from the spot by the police in his presence but when the he was confronted with his statement recorded u/S. 161 there was none, that the I.0 had also admitted before the learned trial Court that no statement u/S. 161 Cr.P.C. regarding the recovery of crime empties from the place of occurrence was recorded by the police, that no case is made out against the appellants and, they are entitled to acquittal. Lastly he submits that as far as recovery of Pistol is concerned, it has no value as the witnesses cited or produced for this specific purpose were interested as they were inimical towards the appellants and they were not residents of the place from where the alleged recovery was effected.
7. On the other hand learned counsel for the complainant who has also filed an appeal against acquittal of the co-accused and a revision petition for enhancement of sentence awarded to the appellants, submits that there was a strong motive with the appellants and the acquitted co- accused to kill the deceased, that the corroboration is not a rule of law but a rule of prudence, that'
FIR was lodged in a very prompt manner in which names of the accused were given with specific roles, that the learned trial Court had admitted the presence of Obaid-ur-Rehman complainant and this is the reason that the appellants have been convicted and sentenced. Learned counsel submits that though the complainant was on the motorcycle of the deceased but on seeing the accused persons he came down from the motorcycle and went aside, that there are number of injuries on the person of the deceased, that number of injuries shows that there were more than one accused, that when the appellants were arrested, they were driving the same motorcycle which belonged to the deceased, that at the same time it was also established that as two pistols were recovered from Aftab so one belonged to the deceased, that recovery of pistol from Aftab appellant also matched with the crime empties, that report of Fire Arm Expert is positive in nature qua Aftab and it was Aftab who had opened the attack. The injury attributed to Aftab is a fatal shot.
During the investigation they were found to be involved in this case while the acquitted co- accused were found innocent and no recovery was effected from them, so there is difference between the convicted accused and the acquitted. Lastly he submits that sentence awarded to the appellants be enhanced and the acquitted co-accused be also convicted.
8. Learned state counsel on the other hand submits that on the evidence produced by the prosecution before the learned trial Court conviction cannot be maintained.
9. I have heard the learned counsel for the parties and also have gone through the record available on the file. In all five accused were named namely Aftab alias Bholi and Zia ur Rehrnan the appellants, Muhammad Ilyas, Tahir ur acquitted co-accused and Muhammad Abbas (PO).
Although 2/3 injuries were attributed to Aftab which were caused on the flank of the deceased and as far as other accused are concerned, they were also attributed injuries on the person of the deceased. Amongst them Muhammad Ilyas and Tahir ur Rehman were acquitted by the learned trial Court as no recovery was effected from them during the course of investigation and also they were found innocent by the police. Abbas is still P.O. The occurrence had taken place on 26.5.2001 at 6.30 a.m. the complaint was made at 7.45 a.m. while the formal FIR was lodged at 8.10 a.m. The distance between the place of occurrence and the P.S is three miles. The complainant and the deceased were residents of Grain Market Sheikhupura while the occurrence had taken place in village Phatuiwala on the way to Qila Amir Singh which is two miles away from the residence of the deceased and the complainant Obaid ur Rehman. Two eye-witnesses have been produced in this case namely. Hafiz Obaid-ur-Rehman and Abdul Salam. Hafiz Obaid ur Rehman is the real brother of the deceased while Abdul Salam is housband of the sister of the deceased {{URDU TEXT}}. He has been disbelieved by the learned trial Court. Now in field remains the statement of Hafiz Obaid- ur-Rehman. I have gone through the. statement of Hafiz. Obaid-ur-Rehman with the assistance of the learned counsel for the parties. First he made improvements in his statement and thereafter he admitted the long standing enmity of murders between the parties. The time of death and postmortem is very important in this case for the just decision of the case. Post mortem was conducted on the same day at 1.10 p.m. The Doctor had given the time between death and post- mortem examination about 12 hours and not within 12 hours. If this is the position then the occurrence could have taken place early hours of the morning i,e, from 3 a.m. to 4/5 a.m. when there was no body to see the occurrence. Moreover story of the. complainant Obaid-ur-Rehman was .that he was sitting on the motorcycle of the deceased which was driven by the deceased. At the place of occurrence the passage was irregular and kacha one. The motorcycle slipped due to culvert. The appellants and their co-'accused who were sitting in bushes started firing. This is not the story of the complainant narrated in the FIR. He made the dishonest improvement before the learned trial Court by stating that he came down from the motorcycle and went aside. When Obaid ur Rehman was cross-examined by the learned defence counsel he admitted that Muhammad Younas father of Aftab, Ilyas and Abbas was murdered and in that case of murder Obaid- urRehman complainant, Shoab ur Rehman deceased etc. were named as accused Abbas P.O. was the complainant for the murder of Younas his father. He has also admitted some other occurrence of murder between the parties and matter even went to up the apex Court. Had he been present there because he was also an accused in the murder of father of the appellant, the five persons who were armed with different nature of fire arm could not have spared him. So his presence at the spot is also doubtful in my opinion. Had the complaint was registered at 7.45 a.m. the LO must have given this time in column No, 3 of the inquest report which is vacant till today.
Even the Doctor who conducted the post-mortem examination did not give which is vacant till today. Even the Doctor who conducted the postmortem examination did not give the time of death of the deceased in column death of the postmortem report Ex. P.G. It is well established principle of law in the judgments given by this Court and the apex Courts that in such like cases corroboration is not only rule of prudence but also necessary to award conviction and sentence and also to maintain the same. As far as motive is concerned, the same is always double edged weapon. If there was motive to murder the deceased as given by the first informant in the FIR and there could also the motive for false implication of the appellants. As far as recovery of motorcycle at the time of arrest of the appellants is concerned, the registration number of the said motorcycle is not given in the recovery memo. Moreover the date of recovery has been given as 10.6.2001 while according to the prosecution evidence and the I.O.; accused were arrested on 11.6.2001 which shows that already a recovery memo in advance was prepared by the I.O. Even on registration book was produced before the police during the investigation to prove that it belonged to the deceased. As far as recovery of pistol from Aftab appellant belonging to the deceased is concerned no license what so ever was produced by the complainant or by any other relative of the deceased during the investigation that it belonged to the deceased or to any other member of the family of the deceased. As far as recovery of three crime empties from the spot is concerned, Abdul Salam PW who was an eye-witness and was disbelieved by the learned trial Court stated so before the learned trial Court that the same was recovered in his presence and when he can be placed on the recovery of three crime empties as mentioned by the I.O.
10. After having heard the learned counsel for the parties and going through the record available on the file with the assistance of the learned counsel for the parties, I am not satisfied with the prosecution version so while granting benefit of doubt I accept this appeal and set aside the conviction and sentence awarded to the appellants by the learned trial Court. Appellants are behind the bars, they shall be released forthwith if they are not required in any other case. The appeal filed by the complainant against the acquittal of the co-accused and the Crl. Revision filed by him for the enhancement of sentence awarded to the appellants by the learned trial Court are dismissed. With these observations all these matters are disposed of.
11. Before parting with this judgment, I may observe here that any observation made in this judgment will not prejudice the case of either party before the trial Court in the case of Muhammad Abbas (P.0) when he is arrested and will be tried.