' SH. ABDUR RASHID, J.---Nazir Ahmad, Munir Ahmad both sons of Qasim Ali, Caste Khokhar, Muhammad Anwar son of Sardar Muhammad and Liaqat Ali son of Nazir Ahmad Caste Arain all residents of village Khudpur of Police Station, Manga, Lahore had been tried in case F.I.R. No,255, dated 22-5-1995 under section 302/34, P.P.C. Of Police Station, Raiwind Saddar by the Additional Sessions Judge, Kasur who vide judgment, dated 10-3-1998 convicted Nazir Ahmad son of Qasim under section 302(b)/34, P.P.C. And sentenced him to death and convicted the remaining appellants accused under section 302(c)/34, P.P.C. And sentenced each of them to suffer R.I. For 10 years giving them benefit of section 382-B, Cr.P.C.
2. Feeling aggrieved by their conviction and sentence the appellants have filed this Appeal No,169 of 1998 whereas Murder Reference No,175 of 1998 had been received for confirmation of the death sentence awarded to Nazir Ahmad appellant. Both the appeal and Murder Reference are being jointly disposed of by this judgment.
3. Briefly stated the facts of the prosecution case as set out in the F.I.R. Exh.P.B. Lodged by Nawab Din complainant, father of Muhammad Ramzan deceased are that while the complainant resided in village Khudpur, District Lahore his son Muhammad Ramzan deceased had shifted his residence to Chak No,59 a year prior to the occurrence. On 21-5-1995 Nawab Din complainant along with Shaukat and his father Nazar Hussain who both were residents of Chak No,73/IV.R. District Sahiwal had gone to the house of Ramzan deceased at 4 P.M. In their presence Munir alias Bhagi armed with rifle, Nazir alias Jeera armed with carbine, Anwar alias AMA armed with .12 bore single barrel gun and Liaqat Ali son of Jeera armed with carbine came to the house of Ramzan at about 6/7 p.m. As guests. They all slept in the courtyard on the cots. Late in the night Nawab Din complainant woke up on hearing the voice of some persons and saw Munir, Anwar, Nazir and Liaqat son of Jeera standing on the pillow side of the cot of Ramzan deceased. In the meanwhile Nazar Hussain and Shaukat P.Ws. Also woke up. Munir appellant accused urged his companions as to what they were looking. For. Upon which Nazir alias Jeera made fire shot with his carbine hitting Ramzan deceased on his head who died on the spot. All the accused appellants then ran away claiming that they had taken the revenge. The occurrence was witnessed by the P.Ws. In the moonlight. Hafiz Javed and Ismail, P.Ws. Were attracted on the hue and cry and had seen the appellant accused running- away from the scene of occurrence. The motive for the occurrence stated in the F.I.R. Was that about 2/3 years prior to the occurrence Rehniat son of Munish who was maternal uncle, of Nazir appellant had been murdered in village Khudpur in which Muhammad Ramzan deceased was also implicated who was found innocent during the investigation and on account of said grouse the appellants accused had committed the murder of Muhammad Ramzan deceased.
4. While the complainant was about leave for Police Station, Babu Khan, S.I. Of Police Station, Saddar Raiwind reached Chak No,59 on patrol duty and complainant appeared before him and narrated the occurrence who recorded his statement Exh.P.B,. Which was read over to him and he thumb-marked the same in token of its correctness. Babu Khan S.-I. Sent the complaint Exh.P.B. To the Police Station, Saddar, Raiwind through Shafqat Ali, Constable and Muhammad Ashraf Moharir Head Constable of the police station recorded formal F.I.R. Exh.P.B./1 on the basis of the same. Babu Khan S.-I. Then reached the spot, prepared inquest report Exh.P.E. Of the deceased. He recorded application Exh.P.F. For the conduct of the post-mortem examination and entrusted the dead body to Mubarak Ali and Muhammad Sarwar Constables for post-mortem examination. The said S.-I.
Took into possession blood-stained earth and made it into a sealed parcel vide memo. Exh.P.C.
5. On 23-5-1995 at about 12-30 p.m. Dr. Abdur Rauf Medical Officer D.H.Q. Hospital Kasur conducted post-mortem examination on the dead body of Muhammad Ramzan son of Nawab Din Caste Khokhar resident of Chak No,59, Police Station, Raiwind Saddar, District Kasur which was produced before him by Mubarak and Sarwar Constables and he found the following injuries on the dead body:--- (1): A lacerated wound 18 x 10 c.m. Left side of scalp, 1 c.m. From left ear, bones of skull and muscles were missing at the site of injuries and brain matter was coming out.
(2) Fire-arm injury 2 x 3/4 c.m. On right side of scalp 5 c.m. Away from right ear.
(3) Fire-arm injury 4 x 1 c.m. On right side of scalp x 1 c.m. Above 'right, ear.
(4) Fire-arm injury 3/4 x 3/4 c.m. Outer side of right eye.
(5) Fire-arm injury 3/4 x 3/4 c.m. On right side of face 1 c.m. From right ear.
6. On dissection scalp bones were found fractured, brain was found lacerated and scalp were found missing of the side of injury No,1, remaining all the organs were found healthy.
7. In the opinion of the Medical Officer the death had been caused due to haemorrhage and shock and injury to vital organ i,e, brain. These injuries were sufficient to cause death in ordinary course of nature and had been caused by fire-arm and were ante-mortem in nature. Time between injuries and death was immediate whereas, between death and post-mortem was approximately 27 hours.
8. After conduct of post-mortem examination the stitched dead body along with police papers, post-mortem report, last-worn bloodstained clothes of the deceased were handed over to Muhammad Sarwar Constable by the Medical Officer, Exh.P.K. Is the correct carbon copy of post- mortem report and Exh.P.K./1 and Exh.P.K./2 are the pictorial depictions of location of injuries on the person of the deceased which are in the handwriting of the Medical Officer and bears his signatures.
9. On 23-5-1995 Muhammad Sarwar Constable produced before Babu Khan, S.I. The last-worn blood-stained clothes of the deceased which are shirt P.1 and Chaddar P.2 which were taken into possession vide memo. Exh.P.A.
10. On 24-5-1995 Babu Khan, S.I. Had directed Muhammad Nasrullah draftsman to prepare site- plan who on his direction and on pointation of the P.Ws. Prepared site-plan Exh.P.G. And its copy Exh.P.G./1 and delivered them to the Sub-Inspector who gave his notes in red ink on the same which were also signed by him.
11. On 10-6-1995 Babu Khan, S.I. Arrested Munir and Liaquat accused. On 24-6-1995 Munir accused while in police custody led to the recovery of carbine along with four live cartridges from a, dismantled poultry farm of Mst. Bibi Billo which were made into sealed parcel and was taken into possession vide recovery memo. Exh.P.H. On the same day Liaqat accused also in custody of Babu Khan led to the recovery of .12 bore carbine from western *all of the same poultry farm which were taken into possession vide memo. Exh.P.I.
12. On 11-1-1996 Muhammad Sharif, A.S.I. Got Anwar accused transferred from Camp Jail, Lahore to Police Station, Raiwind and on 20-1-1996 while he was in his custody he led to the recovery of .12 bore gun P.3 from a deserted brick kiln which was taken into possession and made it into a sealed parcel vide memo. Exh.P.J.
13. On 18-2-1996 Muhammad Sharif, A:S.I. Got Nazir accused transferred from Lahore to Police Station, Sadar Raiwind and on 1-3-1996 while he was in his custody led to the recovery of gun P.12 from Rohi Nalla which was taken into possession and made into a sealed parcel Exh.P.J/1. The Investigating Officers had delivered the sealed parcels to the Moharrir Head Constable on the respective dates of their preparation for their safe custody in the Malkhana.
14. Upon completion of the investigation the appellants had been challaned in this case.
15. The appellants were charged under section 302/34, P.P.C. Which was read over and explained to them in the language which they understood and they pleaded not guilty and claimed to be tried.
16. The prosecution had produced Ali Ahmad, Constable P.W.1, Inayat P.W.2, Mubarak Ali Constable P.W.3, Muhammad Sarwar retired Constable P.W.4, Allah Wasaya Constable P.W.5, Shafqat Ali Constable P.W.6, Muhammad Ismail P.W.7, Muhammad Ashraf P.W.8, Nawab Din complainant P.W.9, Muhammad Shaukat eye-witness P.W.10, Nazar eye-witness P.W.11, Babu Khan, S.I. P.W.12, Muhammad Sharif, P.W.13, Muhammad Nasrullah Draftsman, P.W.14 and Dr. Abdur Rauf Medical Officer P.W.15 in support of its case.
17. The learned D.D.A. Gave up all the remaining P.Ws and tendered in evidence report of Chemical Examiner Exh.P.L. And that of the Forensic Science Laboratory Exh.P.M. And closed the prosecution case.
18. The statements of all the appellants accused under section 342, Cr.P.C. Were recorded and all the incriminating evidence was put to them which they repudiated and stated that it was an unseen occurrence and that they had been falsely implicated on account of suspicion. The appellants produced Karamat Ullah Malik Inspector P.S.O. To D.I.G. Lahore Range as D.W.1 who had conducted the investigations of case F.I.R. No,378 of 1992 regarding the murder of Rehmat maternal uncle of Nazir appellant which is stated to be the motive for commission of murder of Ramzan deceased.
19. Upon conclusion of the trial the appellants had been convicted and sentenced, as mentioned above. Feeling aggrieved by their conviction and sentence they have filed this appeal.
20. It has been mainly argued by the learned counsel for the appellants that regarding the murder of Rehmat maternal uncle of Nazir appellant 7 persons were nominated who were challaned and that Ramzan deceased was neither nominated as an accused nor was associated in the investigations and he had nothing to do with the murder of said Rehmat and as such the appellants had no motive whatsoever to kill Ramzan deceased. It is further contended that Nawab Din complainant resided in village Khudpur whereas Shaukat and Nazar P.Ws were residents of Chak No,73-IV-R situated in District Sahiwal and they had no business to be present at the scene of occurrence which is situated in Chak No,59 of Tehsil and District Kasur and that the P.Ws are not only chance witnesses but are also closely related inter se and as well as with the deceased and that the occurrence was not seen by any of the witnesses and in the morning the complainant was informed, who reached there along with the alleged eye-witnesses and then a false story had been concocted implicating the appellants .On account of suspicion. It is further argued that according to the F.I.R. Hafiz Muhammad Javed and Muhammad Ismail who were residents of the place of occurrence had seen the appellants running away from the place of occurrence but they had not been produced to support the said factum that no corroboration to the ocular testimony is available on the file. It has also been argued that according to the eye-witnesses the deceased had been murdered in the later part of the night whereas the Medical Officer who conducted the post-mortem examination on the dead body of Muhammad Ramzan recorded in the post-mortem examination report that the deceased had died at 9-30 a.m. On 22-5-1995 and thereby had belied the entire prosecution story.
21. Nawab Din complainant besides giving ocular account of the occurrence had also divulged the motive for commission of murder of his son Ramzan deceased by the appellants in his testimony before the trial Court. He stated that two years before the murder of his son. Rehmat son of Munish maternal-uncle of Nazir appellant was murdered by two persons namely Ali Muhammad and Ass Muhammad and his son was falsely implicated and as a suspect police took him to police station and gave him beatings and after 10/15 days he satisfied the complainant party about the innocence of his son by giving oath on Holy Qur'an and then his son was released by the police after having been satisfied that he was innocent in the murder of Rehmat. He further stated that thereafter their relations with the appellants accused became normal and they were on visiting terms with each other but the appellants accused nurtured grudge against the deceased and killed him when they found the opportunity. This P.W. Had also stated in his testimony that while committing the murder of Ramzan deceased the accused had claimed that they had avenged the' murder of Rehmat, their maternal-uncle. Nazar while appearing as P.W.11 also stated that while committing the murder of Ramzan deceased Nazir accused had uttered that he had taken revenge of his maternal-uncle Rehmat Thus, it is obvious from the prosecution case that Ramzan deceased had been killed on account of his involvement in the murder of Rehmat, maternal-uncle of Nazir appellant. The defence had produced copy of F.I.R. Exh.D.D. Registered regarding the murder of said Rehmat Ali and as well as Malik Inspector who had investigated the said case as D.W.1. He stated that in the said case all the accused were named and none was arrested by him on suspicion besides the said named persons. He further conceded that the complainant and as well as eye-witnesses of the said F.I.R. Had not placed suspicion on any other person except the accused named in the F.I.R. And that Ramzan son of Nawab Din Khokhar had neither been arrested in the said case nor he was belaboured as a suspect and in cross-examination he stated that Nawab Din complainant of this case had never appeared before him during investigation of case F.I.R. No,378 of 1992. Thus, it is obvious that Ramzan deceased was not involved as a suspect in the murder of Rehmat Ali, maternal-uncle of Nazir accused and therefore, the motive alleged by the complainant and the eye-witnesses does not stand established. It is not necessary for the prosecution to allege motive because the murders may be committed with or without motive or the motive may lie hidden in the mind of the accused, the prosecution having no means to dig out the same, but where the prosecution alleges the motive in definite terms then it becomes an integral- part of the prosecution story and failure on the part of the prosecution to prove that integral part then reacts on the entire prosecution version which then requires deeper scrutiny and appreciation of the testimony of the witnesses with greater care and caution. In the present case the prosecution had alleged definitely that the accused had the motive to kill Ramzan because he was involved in the murder of Rehmat; maternal-uncle of Nazir accused and while committing the murder of Ramzan deceased, Nazir appellant/accused had Claimed that he had taken revenge of the murder of his maternal-uncle. But the facts and circumstances show that Ramzan deceased was never involved in the murder of said Rehmat, maternal-uncle of Nazir accused and obviously the entire premises of the prosecution motive against the appellants stands demolished. The complainant as well as the eye-witnesses have fabricated false motive to rope in the appellants.
22. It is an admitted fact that Nawab Din complainant resided in village Khudpur and Shaukat and Nazar P.Ws. Resided in village Chak No,73 situate in District Sahiwal whereas the occurrence had taken place in Chak No,59 of District Kasur. Nawab Din complainant stated in his evidence that Shaukat and other P.Ws. Had come to him to ask the hand of his daughter Mst. Nasreen in marriage for Muhammad Aslam another son of Nazar P.W. And to consult the deceased they all had gone to his house in Chak No,59. Ramzan deceased was son of the complainant and if Nazar and Shaukat had demanded the hand of his daughter for Muhammad Aslam son of Nazar P.W. Then in all probabilities Ramzan deceased should have been called by the complainant at his house and the going of the complainant and the P.Ws. To the deceased does not sound to be probable.
23. It is also admitted fact that Shaukat P.W. Is "Ham Zulf" of the deceased and Nazar P.W. Is his father and is also closely related to the complainant. The eye-witnesses thus, besides being chance witnesses are closely related inter se and as well as to the deceased. No doubt the testimony of a P.W. Cannot be discarded on account of their relationship inter se and with the deceased but when the said witnesses claimed their presence at the scene of occurrence as per chance then their corroboration from independent source is required to place reliance on their evidence. In the present case no corroboration from independent source is available in support of the ocular testimony.
24. According to prosecution version Ismail son of Abdul Aziz and Hafiz Muhammad Javed son of Yousaf residents of village Khudpur had seen the accused appellants running away from the scene of occurrence but they have not been produced as P.Ws. And they have not supported the said fact.
25. Inayat son of Shah Muhammad Cast Khokhar (Chowkidar of the villager) who identified the dead body of the deceased at the time of post-mortem examination stated in his cross- examination that the deceased was murdered in their village. He learnt about the murder at 8 a.m.
And he went to the house of Ramzan deceased where number of people were present. The complainant reached the village at 8 a.m. Whereas the murder had taken place at night and the complainant was not present in the village when the murder took place. He further stated that when the police came to the village after about half an hour of the reaching of the complainant, Ismail Lambardar intimated the police about the incident. This P.W.2 is an independent witness and he had no reason to distort the facts. Being Chowkidar of the village his going to the house of the deceased on learning about the incident was a natural phenomenon. According to his testimony the complainant and the P.Ws. Were not present at the house of Ramzan when his murder was committed and that the complainant reached at 8 a.m. Thus, the entire ocular testimony stands belied by the testimony of Inayat P.W. Who is an independent and reliable witness. Thus, the evidence coming from independent source instead of lending corroboration to the ocular testimony has completely contradicted and belied it.
26. In view of the above discussion and facts we are of the opinion that the testimony of the eye- witnesses against the appellants cannot be relied upon and as such the prosecution has failed to establish its case against the appellants. By accepting this appeal we set aside the appellant's conviction and sentence and acquit them of the charges. They are in jail and shall be released forthwith if not required in any other case.
27. Consequently, the murder reference is answered in the negative.
28. The weapons of offence allegedly recovered from the appellants shall be confiscated to the State.