This appeal is directed against the judgment dated 26.5.2003 passed by the learned Additional Sessions Judge Gujranwala whereby appellants were convicted under Section 302(b) PPC and sentenced to imprisonment for life each. They were also directed to pay a sum of Rs, 1,00,000/- each as compensation to be paid to the legal heirs of the deceased under Section 544-A Cr.P.C. in default whereof they were directed to undergo six months imprisonment each. They were tried in the case registered vide FIR No, 511 dated 25.12.2001 under Sections 302/148/149 PPC., Police Station Tattay Aali, Gurjanwala, for the murder of Sultan deceased.
2. The brief facts of the case, unfolded through FIR (Ex. PI), registered on the statement of Muhammad Shehbaz complainant, are that on 24.12.2001 at about 9.10 p.m. he alongwith Kalil Ahmad, Abdul Latif and Sultan Ahmad were present in the Baithak of Sultan deceased and 'were watching TV; that in the meanwhile, Zafar accused came there and knocked at the door and called Sultan deceased; that Sultan Ahmad came out and in the meanwhile he and his companions also followed him and in the light of electric bulb saw Imran armed with .30bore pistol, Irfan armed with .30 bore pistol, Ijaz armed with .222 bore rifle, Muhammad Ashraf armed with .12 bore gun, Muhammad Ismail armed with .12 bore gun were standing in the street who forcibly took away Sultan Ahmad (deceased) towards Northern side of the village and while reaching at a distance of two acres from the Village, Zafar raised a Lalkara that he (Sultan deceased) be taught a lesson for quarrelling with them; that upon this, Imran fired a pistol shot which hit Sultan near his right ear; that second fire was made by Irfan Ahmad which hit him on right side of the head; then Khurshid made a fire with his pistol which hit him on left side of his neck, Zafar made a pistol shot which hit Sultan on front of chest on left side; that thereafter all the accused made indiscriminate firing and the fires hit the deceased on different parts of the body. The motive behind, as alleged in the FIR, was that few days ago a quarrel took place between the accused and the deceased and due to fear matter was not reported to the police.
3. Having completed the legal formalities, the police submitted challan against the accused persons to face trial before the learned Court of Session.
4. to prove its case, the prosecution examined the following ten witnesses including the doctor and the Investigating Officer:
(i) PW 1 DR. NAWAZISH ALI;
(ii) PW 2 ZAKAULLAH 341/C;
(iii) PW 3 MUHAMMAD RIAZ 2339/C;
(iv) PW4 ABDUL RASHID.
(v) PW4 ZAFAR IQBAL ASI; (vi)PW6 MUHAMMAD AZAM 2066/C;
(vii) PW7 MASOOD AHMAD BHATTI DRAFTSMAN;
(viii) PW8 MUHAMMAD SHAHBAZ;
(ix) PW9 MUHAMMAD KHALIL;
(x) PW10 MUHAMMAD SARWAR SI/I.O;
5. The accused, when examined under Section 342 Cr.P.C., denied the prosecution case, and attributed their involvement in the case to enmity. However, the following Defense Witnesses were produced in support of their defense plea:--
(i) DW1 MUHAMMAD YAQOOB INSPECTOR;
(ii) DW2 ABDUL KAREEM SP (CITY) LAHORE; (iii)DW3 MUHAMMAD ANWAR DSP/SDPO PINDI BHATTIAN;
6. Learned counsel for the appellants, while canvassing their acquittal. made following submissions in support of the appeal:--
(i) That there was a longstanding enmity between the parties due to which appellants were involved in this case;
(ii) That no independent witnesses have been produced by the Prosecution to prove its case and those who have been produced are interested witnesses testimony of whom cannot be relied upon; (iii)That the story given in the FIR is improbable for the reason that it was alleged in the FIR that the appellants alongwith others came to the house of Sultan, who accompanied them in the presence of the present eye-witnesses but surprisingly the appellants/accused did not touch Shahbaz complainant and Khalil Ahmad PW with whom the accused/appellants had some enmity and criminal cases were registered against each other;
(iv) That in view of the previous enmity between the appellants/accused persons, the accused would not have allowed the eye-witnesses to follow them while they were taking Sultan alongwith them;
(v) That there is an un-explained and inordinate delay of twelve hours in lodging the FIR which casts serious doubts about the prosecution story as the same is full of consultations, deliberations and concoctions. More so that the FIR was got drafted by a Petition Writer; (vi)That although the relatives of the complainant were living in the same street having telephone facility but they had not informed the police about the alleged commission of the occurrence throughout the night;
(vii) That during three successive investigations, appellants were found innocent, no recovery, was affected from them and they were even not arrested by the police; 'viii) That as the prosecution has failed to prove the case against the appellants beyond any shadow of doubt and as no case is made out against the appellants, therefore, they are entitled to acquittal by this Hon'ble Court.
7. On the other hand, learned counsel for the State, while defending the impugned judgment of conviction, raised following contentions:--
(i) That the light in the house of the deceased is very much there which has been mentioned in the FIR, therefore, there was no doubt about the identification of the accused persons in the said light;
(ii) That the statements of PW8 Muhammad Shahbaz and PW9 Muhammad Khalil, who are natural arid reliable witnesses of the case, remained un-shattered despite lengthy cross-examination;
(m) That the delay in lodging the FIR has very well been explained as it has come on record that the accused/appellants remained in the street throughout the night so no body was allowed to go to the Police Station to inform about the occurrence;
(iv) That the above contention is further corroborated from the fact that the firing went on during the whole night which was the reason that no body from the village dare to inform the police.
(v) That the learned trial Court has passed a well-reasoned judgment which does not call for interference, therefore,. the conviction and sentence of the appellants be maintained and their appeal be dismissed having no merit.
8. I have heard learned counsel for the parties, have gone through the impugned judgment, the record with their able assistance and have also given anxious consideration to the submissions made at the bar.
9. The occurrence in this case took place on 24.12.2001 at 9.10 p.m. in Village Landay Sharif within the jurisdiction of Police Station Tatlay Ali. District Gujranwala, the matter was reported through a written complaint on 25.12.2001 at 9.00 a.m. although the distance between the Police Station and the place of occurrence was 12 miles. Seven accused were named in the FIR including the present appellants while nine were tried. Five accused persons have been acquitted from the case, namely Hanif Ct Jeeta. Ibrar @ Bhara, Muhammad Ismail, Ijaz and Mehmood Ahmad Mooda while one of their co-accused, namely, Irfan was murdered before trial. Appellants, namely, Khurshid son of Ashiq, Imran son of Muhammad Hanif and Zafar son of Muhammad Sharif were convicted and sentenced by the learned trial Court as given above. The. deceased in this case is Sultan Ahmad.
Two eyewitnesses have been produced by the prosecution to prove its case, namely. PW8 Muhammad Shahbaz and PW9 Muhammad Khalil. They are closely related to the deceased. It was the month of December which was the coldest season of the winter. It has not been denied by both the eye-witnesses that there was longstanding enmity between both the parties. PW8 has admitted during cross-examination that cases were registered against each other. It has also not been denied by the complainant party that the occurrence had taken place in a very congested area surrounded by houses. It has further not been denied by the complainant that most of the houses in the village belong to the near ones and dear ones of the complainant party; that the accused were never arrested by the police and that no recovery was affected from any of the appellants. According to the contents of the FIR the accused persons made firing with .30 bore pistols, .222 rifle and .12 bore guns but only three crime empties of .30 bore pistol were recovered from the spot. No independent witness was produced by the prosecution. Moreover, it is very important to note that despite such a long standing enmity between the parties, the eye-witnesses would allow Sultan deceased to accompany the appellants and further that the appellants would allow the present eyewitnesses to follow them. The delay in the FIR has not been explained property. It has further not been denied that there was telephone facility in the village but none informed the police about the present occurrence. Perusal of the Inquest Report shows that in Column No, 3 of the same no time of information has been mentioned by the Investigating Officer.
Even in the brief facts of the case, no number of the FIR has been given although it was the case of the prosecution that FIR was registered in the Police Station on the application of the complainant and thereafter the Investigating Officer went to the spot and prepared the Inquest Report. If it was the position then the number of the FIR should have been mentioned in the brief facts of the case which showed that the FIR was not even recorded at 9.00 a.m. on 25.12.2001 meaning thereby that it was registered after due deliberations, concoctions and deliberations. The case was investigated by Muhammad Sarwai SI (PW10), Muhammad Yaqoob Inspector WW1) and Abdul Khareem SP (DW2). In all the investigations, appellants were found to be innocent. No incriminating weapon was recovered from them. In recovery memo all the crime empties are of .30 bore pistol. On the face of it four empties have been mentioned but in the details given in the Recovery memo three crime empties have been mentioned. In both the site plans i,e, one prepared by the Investigating Officer and the other by Draftsman, no source of light has been mentioned although time of occurrence is 9.10 p.m. on 24.12.2001.
10.It is a case of murder in which death or life imprisonment for life can be awarded to an accused person. All the three appellants were awarded imprisonment for life while five co-accused have been acquitted from the case. The parties are pitted against each other in criminal litigation.
In such like cases, the prosecution is always asked for corroboration through some independent sources which is totally lacking in the instant case except the statements of PW8' Muhammad Shahbaz and PW9 Muhammad Khalil who are admittedly closely related and interested witnesses.
Their testimony cannot be believed until and unless the same is corroborated. There is no other independent evidence which could connect the appellants with the alleged commission of the offence.
11.Having analyzed the case from every angle. I am of the considered view that the prosecution has failed to prove its case against the appellants beyond a shadow of doubt. Resultantly, this appeal is allowed, the impugned judgment dated 26.5.2003 passed by the learned Additional Sessions Judge Gujranwala is set-aside, the appellants are acquitted of the charge levelled against them and they shall be released forthwith if not required to be detained in any case.