' This judgment will dispose of:--- ' Criminal Appeal No,69 of 2000 ' filed by Muhammad Rafique, Muhammad Shabir, Muhammad Shafi, Rab Nawaz and Muhammad Ashiq, who were convicted under sections 302(b)/149 of Pakistan Penal Code and sentenced to imprisonment for life as Tazir on two counts each with direction for payment of compensation in the sum of Rs,1,00,000 each on two counts under section 544-A, Cr.P.C. To the legal heirs of both the deceased, in default of payment whereof to further undergo six months' S.I.; also convicted under section 148, P.P.C. And sentenced to R.I. For two years; all these sentences were directed to run concurrently; ' Criminal Appeal No,70 of 2000 ' filed by Muhammad Rafique, Muhammad Shabir, Muhammad Shafi, Rab Nawaz and Muhammad Ashiq, appellants against acquittal of Muhammad Nawaz respondent; ' Criminal Appeal No,121 of 2000 ' filed by Mst. Mubarak Mai also against acquittal of Muhammad Nawaz respondent; and ' Criminal Revision No,55 of 2000 ' filed by Ghulam Sarwar against Muhammad Rafique, Muhammad Shabir, Muhammad Shafi, Rab Nawaz and Muhammad Ashiq for enhancement of their sentence; ' as all these matters have arisen out of the same judgment dated 26-1-2000 passed by the learned Additional Sessions Judge, Multan.
2. On the basis of the statement of Ghulam Sarwar (P.W.1), brother of Haq Nawaz deceased, F.I.R.
No,256 of 1998 (Exh.P.A.) was recorded on 3-5-1998 at about 5-55 p.m. By Ijaz Shafi, Inspector/S.H.O.
(P.W.14) at Police Station Gulgasht, Multan for an occurrence which had taken place on the same day at about 5-30 p.m. Within the area of Basti Ahmadabad near Chahkoraywala, three kilometers away from the police station.
3. The brief facts mentioned in the F.I.R. Are that Ghulam Sarwar complainant (P.W.1) on the day of occurrence managed "Khairat". Both the deceased namely, Haq Nawaz and Mst. Saido Mai had also attended the occasion along with their relatives. At about 5-30 p.m. Haq Nawaz and Mst. Saido Mai his wife left the house of the complainant for Tariqabad. After a while complainant also came out of his house to ease himself and he saw that when Haq Nawaz and Mst. Saido Mai his wife reached in the fields of Manzoor Rajput at a distance of three acres, then at once, Muhammad Rafique, Ghulam Shabbir armed with Chhuries, Muhammad Shafi armed with knife, Rab Nawaz armed with Dagger, Muhammad Ashiq armed with Chhuri emerged there who were already hidden in a ditch. Rab Nawaz, Ghulam Shabbir and Muhammad Shafi assaulted Haq Nawaz and gave him successive blows of dagger, knife and Chhuri, which landed on chest, belly and other parts of Haq Nawaz who after receiving the injuries fell down on the ground. Then Ashiq and Muhammad Rafique accused gave Chhuri blows to Mst. Saido Mai on her chest, belly and other parts of the body. She also fell down on the ground after receiving the injuries. Haq Nawaz and Mst.
Saido Mai raised hue and cry, which attracted complainant along with his nephew Saleem and Noor Muhammad to the spot and they witnessed the occurrence. The appellants also raised Lalkara that if anyone came forward, he should also be treated with the same manner. Thereafter all the appellants ran away from the spot with their respective weapons. Both the injured succumbed to the injuries at the spot.
4. The motive behind the occurrence was that 9/10 months earlier Haq Nawaz had abducted Mst.
Saido Mai due to illicit relations for which a case F.I.R. No,296 of 1997 under sections 16/10, Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 was registered at Police Station Gulgasht, Multan against Haq Nawaz and Mst. Saido Mai. Due to this reason, according to the complainant, this occurrence had taken place and the accused/appellants with their common object had committed Qatli-Amd of both the deceased.
5. After registration of the F.I.R. Ijaz Shafi, Inspector/I.O. (P.W.14) proceeded to the place of occurrence, examined the dead bodies and sent the same to mortuary for post-mortem examination. He took into possession blood-stained earth from the places where both dead bodies were lying. He did not arrest the appellants/accused as according to him they were innocent, but during the investigation Muhammad Rafique, A.S.-I. .Arrested Muhammad Nawaz ex-husband of Mst. Saido Mai deceased and his statement was recorded under section 164, Cr.P.C. In which he confessed committing Qatl-i-Amd of both the deceased. He also got recovered blood-stained Chhuri and also the clothes which were also blood-stained.
6. On completion of the investigation report under section 173, Cr.P.C. Was submitted in the Court whereafter copies of the documents required under section ,265-C, Cr.P.C. Were supplied to the appellants and charge was framed which was denied by all the appellants and they claimed to be tried.
7. The prosecution in order to prove the guilt of the appellants produced as many as 14 witnesses.
Muhammad Rafique, A.S.-I. Appeared as C.W.1, and after close of the prosecution evidence, statements of the appellants/accused were recorded under section 342, Cr.P.C. Wherein they denied the allegations and professed their innocence. On a question that "why the P.Ws. Have deposed against you and why this case?", all the appellants made the similar reply which is reproduced as under:-- "Due to previous enmity, it is proved during investigation that we the accused persons mentioned in the F.I.R. Are innocent and Muhammad Nawaz who made the judicial confession is responsible for the murder."
' After hearing the learned counsel for the parties, the learned Additional Sessions Judge, Multan passed the impugned judgment whereby he convicted and sentenced the five appellants as aforesaid but acquitted Muhammad Nawaz respondent, which is being assailed through all these matters.
8. Learned counsel for the appellants contends that the appellants were declared innocent by the six Investigating Officers and none of the police official had found the appellants involved in the present case; that the prosecution case rests on the statements of three eye-witnesses namely Ghulam Sarwar complainant (P.W.1) Noor Muhammad (P.W.2) and Muhammad Saleem (P.W.3), who all are closely related inter se as well as with the deceased and as one of the appellant Rab Nawaz had got lodged F.I.R. For abduction of said Mst. Saido Mai deceased against Ghulam Sarwar and Haq Nawaz etc., they had motive to falsely implicate the appellants in the present case; that they are the interested witnesses and their oral statements without any independent corroboration are not sufficient to convict the appellants for a capital charge, which is lacking in the present case; that all the three eye-witnesses are not truthful witnesses and they were only chance witnesses as admittedly, P.W.1 Ghulam Sarwar resided at a distance of about six Biggas from the place of occurrence and the other witnesses were also living at the same distance and they failed to show any just reason for their presence at the spot; that another story was also introduced during the investigation that Muhammad Nawaz ex-husband of Mst. Saido Mai had murdered both the deceased, who had made confessional statement under section 164, Cr.P.C. In this regard, and he also got recovered blood-stained clothes along with blood-stained Chhuri which was used by him and he was challaned to face the trial; that nothing was recovered from the appellants and moreover, the motive has also been disbelieved by the learned trial Court, therefore, the prosecution evidence was not sufficient for conviction of the appellants; that even otherwise all the three eye-witnesses are not truthful witnesses as they concealed the certain facts; that when Noor Muhammad P.W.2 due to weak eyesight was unable to identify the articles in the Court-room only from a distance of 10 feet, ' how it was possible for him as to who had inflicted injuries to both the deceased at the place of occurrence and he also could not tell that on what parts of the body of Mst. Saido Mai injuries were caused by the appellants; that it was admitted by P.W.2 Noor Muhammad that statement of the complainant Ghulam Sarwar was recorded at the spot and 'statements of P.Ws.2 and 3 were not recorded by the police in such circumstances, it is a fir case for acquittal of the appellants while accepting their appeal and the impugned judgment being based on surmises and conjectures is liable to be set aside. It is lastly contended that since Muhammad Nawaz had made confessional statement for committing Qatl-i-Amd of both the deceased before the learned Ilaqa Magistrate, he is connected with the offence and, he may be convicted and sentenced for the same.
9. Conversely, learned counsel appearing on behalf of the complainant party opposes this appeal on the grounds that the. F.I.R. Was lodged immediately after the incident and specific roles were ascribed to the appellants; that statements of the eye-witnesses are supported by the medical evidence; that minor contradictions pointed out by the learned counsel for the appellants are not sufficient for acquittal of the appellants; that the prosecution evidence is sufficient to connect the appellants with the commission of the crime, hence, the appeal is liable to be dismissed.. It is also- contended that as the appellants had committed Qatl-i-Amd of two innocent persons without any just cause in a brutal manner, they may be sentenced to death.
10. I have heard the learned counsel for the parties and also perused the record through their assistance with due care and caution. In order to prove the guilt of the appellants convicts, the prosecution produced three eye-witnesses, namely, Ghulam Sarwar (P.W.1) Noor Muhammad (P.W.2) and Muhammad Saleem (P.W.3). Admittedly, Ghulam Sarwar complainant (P.W.1) was real brother of Haq Nawaz deceased while Noor Muhammad (P.W.2) is the brother-in-law of the deceased Haq Nawaz being husband of his sister. Similarly, Muhammad Saleem (P.W.3) is son of first wife of Haq Nawaz deceased. Hence, all the three A eye-witnesses are closely related inter se and with the deceased Haq Nawaz.
11. Admittedly F.I.R. No,296 was got lodged in the year 1997 by. Rab Nawaz one of the appellants against Haq Navvaz including Ghulam Sarwar etc. Ghulam Sarwar (P.W.1) during cross- examination also admitted that he and Haq Nawaz were arrested in the said case and were released on bail. It is also admitted fact that Mst. Saido Mai deceased was earlier married with Muhammad Nawaz and out of the said wedlock eight children were born. She filed a suit for dissolution of marriage in the Court of learned Family Judge, Muzaffargarh which, according to the documents placed on the record by the prosecution, was decreed on 30-1-1997 through ex parte judgment and thereafter Haq Nawaz deceased performed Nikah with said Mst. Saido Mai deceased on 14-5-1997. It also reveals from the documents on the record produced by the prosecution that on 11-4-1998 an agreement was executed by Haq Nawaz deceased, the Arbitrators were appointed and divorce deed was again prepared whereby Muhammad Nawaz divorced said Saido Mai on 11-4-1998. It has also been established during the cross-examination on Ghulam Sarwar (P.W.1) that investigation was conducted by Ijaz Shafi S.H.O./Inspector, Habib D.S.P., Aslam Awan D.S.P., Mushtaq Hussain S.P. C.I.A., Abdul Latif Shah S.-I. Of Range Crime Branch, Multan and lastly by Muhammad Rafiq, A.S.-I. And in all the investigations all the appellants were found innocent. Ijaz Shafi Inspector/S.H.O. (P.W.14) even at the initial stage did not arrest the appellants in the present case and their arrest was dispensed with. In the cross-examination P.W.14 admitted that number of persons appeared before him during the investigation and he separated all the persons and there were three categories of persons who joined the investigation; a group of people was supporting the complainant while the other people were supporting the accused party and they were independent persons who stated that the appellants had not committed this offence and actually Muhammad Nawaz ex-husband of Mst. Saido Mai deceased had murdered both the deceased.
12. Undeniably Rafiq, Shafi, Rab Nawaz and Shabbir are real brothers while Ashiq appellant is the cousin of these four appellants and Mst. Saido Mai was sister of Rafiq etc. And cousin of Ashiq.
Previous enmity existed between the parties over abduction of Mst. Saido Mai and a criminal case was also got registered against the complainant party. Hence, it is established on the record that both the parties were inimical to each other and the eye-witnesses are not independent witnesses.
Motive is always a double-edged weapon. If the convicts-appellants had motive to murder both the deceased, the eye-witnesses had also motive to falsely implicate the appellants in the present case.
13. Noor Muhammad (P.W.2) during cross-examination stated that the police recorded statement of Ghulam Sarwar (P.W.1) at the spot, hence it has become doubtful that the F.I.R. Was lodged at the police station immediately after the incident. P.W.2 Noor Muhammad and P.W.3 Muhammad Saleem also stated that their statements were not recorded by the police. Noor Muhammad P.W.2 stated that his statement only to the extent of securing bloodstained earth was recorded and no other statement was recorded. P.W.2 Noor Muhammad also failed to identify the articles lying at a distance of 10 feet in the Court-room and also claimed that Mst. Saido Mai deceased had been wearing clothes of red colour while it has been established that at the time of post-mortem examination, the clothes which were taken into possession were of "Badami" colour. P.W.2 also failed to point out seat of injuries on the person of Mst. Saido Mai deceased. It has also been established that he had weak eyesight and possibility cannot be ruled out that he could not identify the culprits and witness the occurrence but made statement against the appellants due to previous enmity.
14. Statement of Ghulam Sarwar complainant (P.W.1) is also not worthy of reliance as he is resident of six Biggas away from the place of occurrence and failed to show his presence at the spot by giving plausible reasons. He stated that Haq Nawaz deceased was firstly married with Sharma Mai and out of the wedlock eight children were born and he contracted second marriage with Meryam out of which wedlock, one son and two daughters were born. Out of the wedlock of Nawaz acquitted accused with Mst. Saido Mai 8/9 children were born. P.W.1 further stated that modes operandi of Haq Nawaz deceased was to first abduct, then to get ex parte decree and then to marry but it was adopted by him in case of Saido Mai. The husband of Meryam Mai was Shafi. The brother of Meryam had obtained a decree of dissolution of marriage and then Meryam was married to Haq Nawaz deceased. However, he showed ignorance if the said decree was ex parte or not. He also did not deny but only showed ignorance if Haq Nawaz had firstly abducted Mst.
Meryam, as it was not in his knowledge and then had contracted marriage after obtaining ex pare decree. However, he stated that Haq Nawaz deceased had eloped Saido Mai in the year 1997 but he did not know as to where Haq Nawaz had taken Mst. Saido Mai after elopement and Haq Nawaz had obtained a decree for dissolution of marriage. Then said that Saido Mai herelf had obtained decree at Muzaffargarh. However, he showed ignorance whether the decree was ex parte or not. He admitted that case was, registered about the abduction of Mst. Saido Mai and he and Haq Nawaz deceased were arrested in the said case. Though he stated that he was not intentionally suppressing the true facts yet from the perusal of the cross-examination on him, it appears that P.W.1 had tried to suppress certain facts which were otherwise proved on the record by submission of the documentary evidence by the prosecution and these documents were duly accepted which show registration of the criminal case for the abduction of said Mst. Saido Mai against Haq Nawaz deceased etc. Obtaining of ex parte decree by Mst. Saido Mai, moving of an application by Muhammad Nawaz ex-husband of Mst. Saido Mai for setting aside of said ex parte which was remained pending when this occurrence had taken place. P.W.1 also admitted that ljaz Shafi, S.H.O./Inspector (P.W.14) had declared the accused/appellants innocent on 25-6-1998. He denied that he never appeared before D.S.P. Habib. However, he claimed that he appeared before Aslam Awan D.S.P. He also admitted that Mushtaq Hussain S.P., C.I.A. Had also investigated the case and he appeared before him, who declared the appellants as innocent. He also admitted that investigation of this case was conducted by Abdul Latif Shah, S.-I. Of Range Crimes Branch, Multan who also declared these five appellants innocent and Nawaz accused appeared in his presence before the police and his version was different than given in the F.I.R. After perusal of his statement I am of the view that it is not safe to rely upon his statement for conviction of the accused against a capital charge.
15. Similarly, Muhammad Saleem (P.W.3) who is nephew of the complainant and son of the deceased also stated that police had not recorded his statement and that of Noor Muhammad (P.W.2) at the spot.
16. All the three eye-witnesses were inimical towards the appellants. There is no evidence to provide independent corroboration to their statements. In the absence thereof it is not safe to rely upon the oral statements of the eye-witnesses alone to maintain the conviction of the appellants in a case of capital charge.
17. Even otherwise, it is a case of two versions. One is given in the F.I.R. And the other came on the record during the investigation that Muhammad Nawaz acquitted accused had made confessional statement under section 164, Cr.P.C. Before the learned Judicial Magistrate and also got recovered blood-stained clothes besides the blood-stained Chhuri on 21-2-1999 after about 9 months of the incident. No doubt finding of the police is not binding on the Courts but it cannot be ignored that six Police Officers had declared the appellants as innocent during successive investigations and number of persons appeared in support of their innocence. On the other hand against the appellants there is only evidence furnished by the interested witnesses. The possibility cannot be ruled out that it was an un-witnessed occurrence and the appellants are involved in the present case due to previous enmity. The medical evidence alone does not provide independent corroboration to the ocular account.
18. For the foregoing I am satisfied that the prosecution has failed to bring home guilt to the appellants beyond any shadow of doubt through sufficient evidence. Hence, Criminal Appeal No,69 of 2000 filed by Muhammad Rafique, Muhammad Shabbir, Muhammad Shafi, Rab Nawaz G and Muhammad Ashiq is accepted, the impugned judgment of conviction and sentence is set aside and they are acquitted of the charge by extending them the benefit of doubt. They shall be set at liberty forthwith, if not required in any other case.
19. As far as Criminal Appeal No,70 of 2000 and Criminal Appeal No,121 of 2000 filed against acquittal of Muhammad Nawaz respondent are concerned, the learned trial Court has not relied upon the judicial confeision of said Muhammad Nawaz. Even otherwise, the learned Judicial Magistrate did not put necessary question to Muhammad Nawaz to satisfy himself that whether Muhammad Nawaz had been making judicial confession independently and without any duress and coercion. Moreover, the judicial confession is not supported by any other evidence on the record, which was made after about 9 months of the occurrence. The recovery of blood-stained Chhuri and blood-stained clothes from said Muhammad Nawaz after such a long period is also not believable. There Was no reason for said Muhammad Nawaz for keeping the said articles in his possession for a long period of nine months, which could be used as incriminating evidence against him. The recovery of these articles from a room lying in the "Pati" (iron box), which was not even locked was shown to be effected only in the presence of police officials and admittedly the other family members had also been residing there. Independent persons from the locality should be joined in the recovery proceedings. The said room was not in exclusive possession of Muhammad Nawaz. Even otherwise said Muhammad Nawaz did not accept his confessional statement at the trial while making his statement under section 342, Cr.P.C. In such circumstances do not find any illegality or improbability in acquittal of Muhammad Nawaz. Hence, both these appeals filed against the acquittal of Muhammad Nawaz respondent are hereby dismissed.
20. As I have acquitted convicts-respondents from the charges against which Criminal Revision No,55 of 2000 was filed for enhancement of their sentence no question arise therefore and the same is also dismissed.