' Liaqat son of Shams-appellant through Criminal Appeal No,90 of 2001 and Musheer son of Hussain-appellant through Criminal Appeal No,248/J of 2001 have challenged their conviction and sentences passed by the learned Sessions Judge, Rahim Yar Khan, vide judgment dated 12-4-2001 in case F.I.R. No,69 of 1995, registered at. Police Station Abadpur, Rahim Yar Khan, for offences under sections 302/324/148/149, P.P.C. For causing murders of Allah Bachaya and Muhammad Shafi.,
2. As both the appeals arise out of the same judgment, these are being decided by this consolidated judgment.
3. Liaqat and Musheer-appellants were sent up to face trial in the above noted F.I.R. Along with Hag Nawaz, Jhullan, Afzal, Laloo, Fazal Din, Karam Hussain, Ahmad, Ajab, Akbar, Dost Ali, Hussain, Khano, Imam Din, Elahi, Shameer, Machin and Daim.
4. Shameer, Machin and Daim accused absconded during the trial and proceedings were initiated against them.
5. Vide afore-referred judgment the learned trial Court convicted Liaqat, Musheer and Hussain accused as follows:--
(i) Liaqat and Musheer accused were convicted for offence under section 148, P.P.C. And sentenced to undergo R.I. For three years each.
(ii) Liaqat and Musheer were also convicted for offences under sections 302/149, P.P.C. And sentenced to undergo imprisonment for life.
(iii) Hussain accused was convicted for offences under sections 302/149, P.P.C. And sentenced to the period already spent by him in jail.
' All the sentences were to run concurrently and benefit of section 382-B, Cr.P.C. Was extended to the convicts. Hussain accused, who was convicted along with the appellants, did not file any appeal against his conviction.
6. Allah Wasaya (P.W.7) reported the incident to Manzoor Ahmad, S.-I. (P.W.13), Police Station Abadpur, on 24-4-1995, when the latter was present within the vicinity of Mouza Rajanpur Kalan at 3-30 p.m. In lieu of some investigation. Manzoor Ahmad, drafted complaint Exh.P.B./1, which was sent to Police Station and formal F.I.R. Sr. No,69 of 1995 Exh.P.B. Was registered on the same date i.e, 24-4-1995 at 4-15 p.m. For offences under sections 302/324/148/149, P.P.C1 by Muhammad Kaleem Akhtar, H.C. (P.W.2).
7. The prosecution case according to complaint Exh.P.B./1 is that the complainant had gone to Rasoolpur to help his nephews (Bhanjas) Muhammad Shafi and Allah Bachaya (both deceased) in harvesting of wheat crop. On the fateful day Allah Wasaya-complainant, Muhammad Shafi and Allah Bachaya were harvesting the wheat crop belonging to Muhammad Hussain Batwani. At about 12-30 p.m. Haq Nawaz, Daim, Afzal, Elahi, Ahmad, Shameer, Ajab and Akbar (all armed with Rifles), Karam Hussain armed with .222 Rifle, Machin, Jhullan, Laloo, Liaqat, Musheer, Khanoo and Imam Din (all armed with .12 bore guns), Fazal Din armed with .12 bore double barrel Gun, Dost Ali armed with pistol, while Hussain, Sanwal son of Hussain and Nawaz armed with sticks reached the scene of occurrence with common object and after raising Lalkara Machin, Haq Nawaz and Fazal Din started firing. Machin (absconder) fired at Allah Bachaya, which hit on his left side of chest, who fell down. Shameer (absconder) fired with Rifle, which hit Muhammad Shafi on the back of his chest, who also fell down. Sanwal son of Rasool Bakhsh P.W. Received injury of the shot fired by Daim (absconder). Sanwal also fell down. Thereafter all the accused started aerial firing. Allah Dawaya, Ahmad Bakhsh and Khuda Bakhsh reached the scene of occurrence. They tried to rescue Muhammad Shafi and Allah Bachaya. For that reason Nawaz, Hussain and Sanwal caused injuries to Allah Dewaya with sticks. Allah Bachaya and Muhammad Shafi died at the spot. Thereafter, the accused left the scene of occurrence.
8. Motive behind the occurrence was that 4/5 years ago Makhno had abducted Mst. Amir Khatoon, sister of Fazal Din and Dost Ali. After-abduction Makhno married with Mst. Amir Khatoon. It is further stated in the F.I.R. That Makhno had visisted the house of Muhammad Shafi-deceased one week prior to the occurrence, which infuriated the accused.
9. After drafting the complaint Manzoor Ahmad, S.-I./P.W.13 reached the scene of occurrence and collected bloodstained earth qua Allah Bachaya and Muhammad Shafi-deceased vide memos.
Exh.P.G. And Exh.P.H. Attested by Habib Ullah P.W.6 and one Bashir Ahmad, who was not produced during trial. On the same date Manzoor Ahmad, S.-I., collected four empties of bullets, two empties of .12 bore cartridges and two live bullets from the scene of occurrence, which were taken into possession vide memo. Exh.P.J. Attested by the witnesses mentioned above.
10. Liaqat-appellant was arrested on 15-7-1995. At the time of his arrest he produced .12 bore gun P.6 at the police station, which was taken into possession vide memo. Exh.P.K. Attested by Habib Ullah P.W.6 and one Qadir Bakhsh (not produced). Musheer appeared at the police station along with :12 bore gun P.2 on 29-5-1995. He was arrested and gun was taken into possession vide memo.
Exh.P.D. Attested by Rasheed Ahmad P.W.4 and Himat Ali (not produced).
11. After completion of investigation the appellants along with rest of the accused were sent up to face trial. As the appellants denied the charges and claimed to be tried, the trial commenced.
12. During trial prosecution produced 13 witnesses to prove its case. P.W.7 Allah Wasaya/complainant (maternal uncle of the deceased), P.W.8 Allah Dewaya (injured/ brother of P.W.7) and P.W.9 Sanwal (injured/cousin of P.W.7) furnished the ocular account of the occurrence.
P.Ws.7 and 8 also stated about the motive. Their statements were in line with the story given in the F.I.R. Dr. Rehmat Ullah Khan appeared as P. W.11 and stated that he had conducted the post- mortem examination on the dead bodies of Allah Bachaya and Muhammad Shafi-deceased. He also stated that he examined Sanwal and Allah Dewaya P.Ws., who had received injuries during the occurrence. Habib Ullah P.W.6 stated about the spot recoveries and recovery of gun effected from Liaqat. Rasheed Ahmad P.W.4 stated about the recovery of gun allegedly produced by Musheer at the time of his arrest. Muhammad Kaleem Akhtar, Head Constable/P.W.2 stated about the registration of formal F.I.R. Manzoor Ahmad, S.-I./P.W.13 stated about the drafting of complaint, arrest of the accused and investigation of the' case. The rest of the witnesses are formal in nature and need not be discussed. After placing on record the reports of Forensic Science Laboratory, Chemical Examiner, and that of Serologist Exh.P.S., Exh.P.T. And Exh.P.T./1 respectively, the prosecution closed its' case.
13. In their statements recorded under section 342, Cr.P.C. The appellants stated that they were innocent and were involved in a false case due to previous enmity. Neither the appellants appeared as witnesses in their defence under section 340(2), Cr.P.C. Nor they produced any defence witness.
14. I have heard the learned counsel for the parties and scanned the entire record of the case.
Admittedly the appellants did not cause any injury to the deceased or to any of the P.Ws.
According to prosecution case Machin, Haq Nawaz and Fazal Din-accused started firing. Thereafter Machin and Shameer fired at the deceased Allah Bachaya and Muhammad Shafi respectively, who fell on the ground. Daim-accused fired at Sanwal P.W.9, who also fell down. The role assigned to the appellants is that when Allah Bachaya, Muhammad Shafi and Sanwal fell on the ground, they along with other co-accused resorted to aerial firing. The principal accused, who had effectively fired, namely Machin, Shameer and Daim absconded during trial. While Elahi died before the conclusion of trial. It is pertinent to note that rest of the accused, who were assigned the similar role of aimless firing after the occurrence, have been acquitted, except for Hussain, who was sentenced to undergo for a term which he had served in jail till the conclusion of trial. Neither Hussain filed appeal against his conviction nor the State challenged the judgment, thus, for that reason I would not touch the point as to whether the sentence inflicted upon Hussain co-accused was in accordance with law or not. P.Ws.7, 8 and 9 have been disbelieved qua the acquitted accused. It is settled principle of law that the appellants could be convicted on the same evidence only if strong independent incriminating evidence was available against them. In this case the learned trial Court had convicted .The appellants for two reasons:--
(i) that according to the statement of Manzoor Ahmad, S.-I./P.W.13 the appellants and Hussain accused were found to be involved in the case during investigation; and
(ii) that as per prosecution case the appellants appeared before P.W.13 with weapons i.e, .12 bore guns.
15. As far as the first reason' is concerned, the opinion of the Investigating Officer was irrelevant and was not admissible under any provision of the Qanun-e-Shahadat Order, 1984. Reliance is placed on the cases of Darghahi and others v. The State PLD 1958 (W.P.) Lahore 300 and Nasir Abbas v. The State 1995 SCM R 1333. I would like to reproduce the observation made by this Court in the case of Darghahi and others (supra) hereunder:-- "Judicial Officers could not be permitted to allow their judicial conscience to be moulded by the opinion of the Investigating Officers. The guilt or innocence of an accused must be judged according to accepted rules of law. It will be extremely hazardous to place reliance upon the opinion of police officers. And to make it a cornerstone of one's decision is to allow oneself to be a tool in the hands of the police. This is likely to shake the very confidence of the people in the judiciary. The judiciary was under a solemn pledge to keep the fountain of justice pure and clear."
16. As far as the recovery of weapons is concerned, the learned trial Court has failed to notice that the alleged recovered guns were never sent to the Forensic Science Laboratory. Not only this, there is no opinion on record as to whether the recovered guns were in working condition or not. In these circumstances, hardly any reliance could be placed on the evidence of recovery. The judgment passed by the learned trial Court also suffers from discrimination, as co-accused Hussain, who was convicted for the same offence, was sentenced to the period already served out by him in jail during trial, while the appellants were sentenced to undergo imprisonment for life.
17. To conclude, I allow both the appeals, set aside the impugned judgment dated 12-4-2001 and acquit the appellants of the charges. They would be released from jail forthwith, if their further detention is not required in any other criminal case.