' ASIF SAEED KHAN KHOSA, J.---Sajjad alias Sajoo and Bashir appellants were convicted for an offence under section 302(b), P.P.C. Vide judgment dated 10-8-2000 handed down by the learned Additional Sessions Judge, Sargodha and Bashir appellant was sentenced to death whereas Sajjad alias Sajoo appellant was sentenced to imprisonment for life. Both the appellants were ordered to pay a sum of Rs.50,000 each to the heirs of Munawar Hussain deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for six months each. The benefit under section 382-B, Cr.P.C. Was extended to Sajjad alias Sajoo appellant. Seven co-accused of the appellants and two other unknown culprits had been declared in this case as Proclaimed Offenders and their case was separated by the learned trial Court from that against the appellants. The appellants have challenged their convictions and sentences before this Court through Criminal Appeal No.1234 of 2000. Muhammad Akram, an eye-witness produced by the prosecution before the learned trial Court, has preferred Criminal Revision No.618 of 2000 before this Court seeking enhancement of the sentences passed by the learned trial Court against both the convicts-appellants. On 25-9-2000 a learned Judge-in-Chamber was pleased to admit the said revision petition only to extent of Sajjad alias Sajoo convict, respondent No.1 therein, and a notice was issued to the said convict to show cause as to why his sentence of imprisonment for life may not be enhanced by this Court to death. We have heard the above mentioned appeal and revision petition along with Murder Reference No.545 of 2000 seeking confirmation of the sentence of death passed by the learned trial Court against Bashir convict-appellant. We propose to decide all these matters together through the present consolidate judgment.
2. According to the prosecution's case unfolded in the F.I.R. Imtiaz Ahmad complainant was a resident of Chak No.47 Shumali situated within the area of Police Station Cantonment, Sargodha and was an agriculturist by profession. At about 3-30 p.m. On 18-11-1996 the complainant, his paternal uncle namely Muhammad Akram, his brother namely Muhammad Riaz and his paternal cousin namely Munawar Hussain went to Gulshan-e-Siddique Dakhli in Chak No.47 Shumali where the said Munawar Hussain had established an office for the purpose of sale of his land in a colony.
Upon reaching that place Munawar Hussain sat on a cot placed on the roadside whereas the complainant and the other two witnesses stood close to him while talking to each other. In the meanwhile a red-coloured motorcycle Honda 70 CC and two cars, one of white colour and the other of grey colour, emerged there at the gate of Munawar Hussain's colony. Both the cars stopped at the said gate. Aman Ullah accused armed with a pistol and Bashir appellant armed.
With a rifle .222 bore were riding on the motorcycle. Shabbir Ahmad accused armed with a rifle .222 bore, Zulfiqar accused and Sajjad alias Sajoo appellant both armed with a rifle .222 bore each, Ehsan accused armed with a rifle .222 bore and an unknown person armed with a rifle .222 bore came out from the white-coloured car whereas Muhammad Nawaz accused, Khushnood accused, Ijaz alias Nanha accused and one unknown person all armed with a rifle .222 bore each came out from the grey-coloured car. All the accused persons then raised a Lalkara that they had arrived to take revenge for the murder of Tahir. After getting down from the motorcycle Bashir appellant fired a shot from his rifle hitting Munawar Hussain on the front of his chest and upon receipt of that injury Munawar Hussain fell down. The second shot at Munawar Hussain was fired by Aman Ullah accused from his pistol which hit him on his abdomen. Shabbir Ahmad accused came close to Munawar Hussain and fired from his rifle hitting him on the front of his chest. Zulfiqar accused fired at Munawar Hussain which shot hit him on his temple. Sajjad alias Sajoo appellant, Ehsan accused, Ijaz accused, Muhammad Nawaz accused, Khushnood accused and the two unknown assailants then fired from their rifles at Munawar Hussain hitting him on his face, abdomen and other parts of the body. On account of fear for their lives the complainant and the other witnesses did not go near Munawar Hussain. Upon the hue and cry raised by the complainant and the witnesses the appellants and their co-accused decamped from the spot on their cars and motorcycle while raising Lalkaras that they had avenged the murder of Tahir. The injured Munawar Hussain was handled by the complainant and the other witnesses but he succumbed to his injuries and died at the spot. The motive set up in the F.I.R. Was that about a year and a quarter prior to the present occurrence one Tahir, a brother of Shabbir Ahmad accused, had been murdered and Munawar Hussain deceased of the present case used to pursue the said murder case on behalf of the accused party of that case. According to the F.I.R. The appellants and their co-accused had committed the murder of Munawar Hussain so as to avenge the earlier murder of Tahir. Leaving the dead body of Munawar Hussain at the place of occurrence in the care of Muhammad Akram and Muhammad Riaz P.Ws. Imtiaz Ahmad complainant proceeded to report the matter to the police. On the basis of a statement made by Imtiaz Ahmad complainant in respect of the above-mentioned incident F.I.R. No.277 was registered at Police Station Cantonment, Sargodha at 4-15 p.m. On 18-11- 1996 in respect of offences under sections 302/148/149, P.P.C.
3. The investigation of this case was conducted by Ch. Muhammad Aslam, Inspector (P.W.8) and partly by Allah Dad, S.-I. (P.W.7). During the investigation the place of occurrence was inspected, bloodstained earth and crime-empties were secured the dead body of Munawar Hussain deceased was got subjected to post-mortem examination, statements of witnesses were recorded, proclamations were got issued in respect of the absconding accused persons, Sajjad alias Sajoo and Bashir appellants were arrested and upon completion of the investigation a Challan was submitted against the appellants before the trial Court.
4. At the commencement of the trial the learned trial Court framed a charge with two heads under sections 148 and 302/149, P.P.C. Against the appellants to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced eleven witnesses in support of its case against the appellants. Imtiaz Ahmad complainant had died before his statement could be recorded by the learned trial Court. The ocular account of the incident in question was provided by Muhammad Akram (P.W.9) and Muhammad Riaz (P.W.10) who also deposed about the motive. No weapon had been recovered from the appellants' possession during the investigation of this case. Mukhtar Ahmad; FC (P.W.3) and Allah Dad, S.-I. (P.W.7) deposed about the steps taken by them for getting the appellants and their co-accused declared as Proclaimed Offenders. The medical evidence was provided by Dr. Muhammad Younas Siddique (P.W.6). Ch. Muhammad Aslam, Inspector (P.W.8) and Allah Dad, S.-I. (P.W.7) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature.
6. In their statements recorded under section 342, Cr.P.C. Both the appellants denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They, however, opted not to make statements on oath under section 340(2), Cr.P.C.
And they did not produce any witness in their defence.
7. At the conclusion of the trial the learned trial Court found the prosecution's case against both the appellants to have been proved beyond reasonable doubt and, thus, they were convicted and sentenced by its as mentioned and detailed above. Hence, the present appeal, revision petition and the connected Murder Reference before this Court.
8. We have heard the learned counsel for the parties at some length and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellants that both the eyewitnesses produced by the prosecution before the learned trial Court were closely related to the deceased, both of them were chance witnesses who had failed to advance any plausible explanation for their presence at the scene of the crime at the relevant time and both the said witnesses were also admittedly inimical towards the appellants. In that backdrop, according to them, the said eye-witnesses produced by the prosecution could not be believed without availability of independent corroboration which was non-existent in this case.
They have, thus, maintained that the prosecution had failed to prove its case against the appellants beyond reasonable doubt which entitles the appellants to be acquitted by this Court. As against that the learned counsel for the State as well as the learned counsel for the petitioner in the revision petition have maintained in unison that the prosecution had succeeded in establishing the appellants' guilt to the hilt and, therefore, their convictions recorded by the learned trial Court do not warrant any interference by this Court.
' The learned counsel for the petitioner in the revision petition has gone on to submit that in the peculiar circumstances of this case the sentence passed by the learned trial Court against Sajjad alias Sajoo convict-appellant ought to be suitably enhanced by this Court.
9. After hearing the learned counsel for the parties and going through the record of this case with their assistance we have straightaway observed that Imtiaz Ahmed complainant could not be produced by the prosecution before the learned trial Court as he had died before the could make any statement before the learned trial Court. In the absence of the complainant the prosecution had relied upon Muhammad Akram (P.W.9) and Muhammad Riaz (P.W.10) in order to provide the ocular account of the incident in issue. Imtiaz Ahmed complainant was a paternal first cousin of Munawar Hussain deceased, Muhammad Akram (P.W.9) was the peternal uncle of the deceased and Muhammad Riaz (P.W.10) was a brother of the complainant and a peternal first cousin of the deceased. The eyewitnesses produced by the prosecution were, very closely related to Munawar Hussain deceased. The said eyewitnesses were also chance witnesses inasmuch as both Muhammad Akram (P.W.9) and Muhammad Riaz (P.W.10) lived about half a kilometer away from the place of occurrence. The said eye-witnesses had advanced not reason whatsoever before the police regarding their purpose or reason for going to the place of occurrence with Munawar Hussain deceased and even before the learned trial Court they had not uttered even a single word regarding any purpose or reason in that respect. Both the said eye-witnesses were also admittedly inimical towards the appellants and their co-accused and they had acknowledged such enmity with the accused party before the learned trial Court in so many words. We have further noticed that a son of Muhammad Akram (P.W.9) namely Safdar was an accused person in the case of murder of Tahir set up by the prosecution as the motive in this case and a nephew of Muhammad Akram (P.W.9) namely Saad Ullah was also an accused person in the said motive case and both the said accused persons of the motive case were absconders in that case at the time of the present occurrence. Similarly Imtiaz Ahmad complainant and Muhammad Riaz (P.W.10) were brothers of the above mentioned Saad Ullah who was an absconding accused in the motive case.
It is, therefore, quite conceivable that if these eye-witnesses had been present at the scene of the crime at the time of the present occurrence then these eye-witnesses would have been the prime targets for the appellants and their co-accused but surprisingly, and admittedly, none of these eyewitnesses had either been aimed at or fired at by the accused party which stately consisted of as many as eleven persons and was armed to the teeth with firearms. It is pertinent to mention here that during the trial both the above mentioned eyewitnesses had maintained that they had taken shelter and had saved themselves by hiding themselves behind a heap of bricks available near the place of occurrence but no such stand had been taken by them in their statements made before the police during the investigation of this case. No such heap of bricks is mentioned in the F.I.R. Or in the statements made by the eyewitnesses before the police under section 161, Cr.P.C.
Apparently the prosecution had become conscious of this aspect of the matter after registration of the F.I.R. And recording of the statements of witnesses under section 161, Cr.P.C. And that is why in the site-plan (Exhibit-PU) prepared in this case such heap of bricks was introduced for the first time and the same line was adopted by the eyewitnesses subsequently before the learned trial Court. It is also noticeable that in the F.I.R. It had been mentioned that Munawar Hussain deceased had already constructed an office at the place of occurrence but in the above mentioned site-plan the said office of the deceased was shown to be under construction and, thus, an attempt was made by the prosecution to show justification for availability of a heap of bricks near that office. All this manifests that the prosecution itself was conscious of the fact that if the eyewitnesses being relied upon by it had been present at the spot with Munwar Hussain deceased then they would have been the prime targets of the accused party and would not have been spared unscathed. It had been admitted by Muhammad Akram (P.W.9) before the learned trial Court that at the time of the initial firing by the accused party he and Muhammad Riaz (P.W.10) were available with the deceased near at hand but they had not even been aimed at or fired at by the accused party.
According to Muhammad Akram (P.W.9) after the initial firing by the accused party at the deceased he and Muhammad Riaz (P.W.10) ran away and took shelter behind a heap of bricks available nearby and throughout the occurrence both of them had been raising hue and cry from behind that heap of bricks which was about 4/5 feet high. This further confirms the fact that it was not their case that their presence had not been noticed by the accused party at the relevant time.
If that were so then it is difficult to believe that the accused party comprising of eleven persons armed with firearms had not bothered even to touch the said eyewitnesses.
10. Muhammad Akram (P.W.9) had admitted before the learned trial Court that sometime in the past he had been convicted on a charge of murder and in that connection he had spent about 7/8 years in jail before being released from the jail on the basis of acquittal earned on account of a compromise. This by itself shows that the said witness was not new to a case of murder. He was a self-condemned murderer and we have found ourselves to be quite slow in placing a whole- hearted reliance upon his statement made in this case. Even Muhammad Riaz (P.W.10) was not new to a case of murder as his real brother namely Saad Ullah was an absconding accused person in the murder case forming the motive in the present case.
11. For what has been discussed above it is quite clear that the eyewitnesses produced by the prosecution were related, chance and inimical witnesses and, thus, we are not ready to place implicit reliance upon their statements without looking for independent corroboration.
12. The motive set up by the prosecution was that about a year and a quarter prior to the present occurrence one Tahir, a brother of Shabbir Ahmed accused, was murdered and Munawar Hussain deceased of the present case used to pursue that case of Tahir's murder on behalf of the accused party of that case. We have found that although the earlier murder of Tahir is an admitted fact in this case but not an iota of evidence had been produced by the prosecution of before the learned trial Court establishing that Munawar Hussain deceased used to pursue the said murder case on behalf of the accused party of that case. Muhammad Akram (P.W.9) had maintained before the learned trial Court that Munawar Hussain deceased was a leader of his family but he had taken no such stand in his statement recorded under section 161, Cr.P.C. Munawar Hussain deceased was thirty-elight years of age at the time of his death and there is no independent evidence available in this case so as to establish that he was in fact a leader of the complainant party or that he was pursuing the earlier murder case on behalf of the accused party of that case. It is not disputed that Munawar Hussain deceased was not himself an accused person in that case. It may also be pertinent to mention here that both the present appellants had no direct concern with the criminal case petitioning to the murder of Tahir and there is nothing available on the present record to establish their direct interest in the same so as to prompt them to do away with Munawar Hussain deceased. It can be visualized by us that on account of their relationship with the said Tahir the present appellants could have been falsely implicated by the complainant party of this case in the present case pertaining to the murder of Munawar Hussain deceased. For all these reasons we have found that the eyewitnesses produced in this case had failed to receive any corroboration from the motive set up by the prosecution.
13. Admittedly no weapon had been recovered from the appellant's possession during the investigation of this case and, thus, no corroboration to the ocular account was forthcoming on this score either.
14. It had been alleged by the prosecution that the present appellants had become fugitives from law in the present case and had been declared as Proclaimed Offenders but we have found that the alleged absconsicion of the appellants had not been proved by the prosecution through any reliable evidence. The statements made by Mukhtar Ahmad, FC (P.W.3) and Allah Dad, SI (P.W.7) before the learned trial Court clear show that the warrants issued against the appellants were never attested by any Lumberdar, Chowkidar or any respectable of the locality. Admittedly no verification by the superior officers was available on the back of the proclamations allegedly issued against, the appellants. It is not disputed that the said proclamations did not show that any copy of the same had been pasted outside the court-room of the Area Magistrate. Both the above mentioned witnesses had also confirmed that no drumbeat had been resorted to in that regard and the relevant documents did not contain any mention of the fact that any respectable of the locality had been contacted for the purpose of effecting service of the appellants vis-a-vis the warrants issued against them. Thus, the alleged absconscion of the appellants could not lawfully be established by the prosecution and the same, therefore, cannot provide any corroboration to the ocular account produced in this case.
15. The medical evidence produced by the prosecution has been found by us to be legally inconsequential as far as the present appellant are concerned inasmuch as Sajjad alias Sajoo appellant had not been attributed any specific injury by the prosecution and, thus, the medical evidence was of no avail qua him. As regards Bashir appellant the allegation against him was that he had caused a fire-arm injury on the chest of Munawar Hussain deceased but the Post-mortem Examination Report pertaining to the said deceased shows that the said deceased had received as many as eight fire-arm injury on his chest. It was, therefore, not possible to identify or locate the injury allegedly caused by Bashir appellant to the deceased and then to hold that the medical evidence in that regard provided support to that ocular account. Even otherwise when all other pieces of evidence being relied upon by the prosecution against the appellants have been found by us to be unreliable then medical evidence cannot suffice all by itself so as to fasten a finding of guilt around the appellants' necks.
16. The discussion made above leads us to an irresistible and inescapable conclusion that the prosecution had failed to prove its case against both the appellants beyond reasonable doubt in terms of the settled principles of appreciation of evidence. In a case involving a capital charge.
Criminal Appeal No. 1234 of 2000 is, therefore, allowed, the convictions and sentences of both the appellants recorded by the learned trial Court are set aside and they are acquitted of the charge by extending the benefit of doubt to them.
17. On account of acquittal of Sajjad alias Sajoo appellant recorded by us above Criminal Revision No.618 of 2000 has lost its relevance and the same is, therefore, dismissed.
18. Murder Reference No.545 of 2000 is answered in the negative and the sentence of death passed by the learned trial Court against Bashir appellant is not confirmed.
19. Before parting with this judgment we would like to observe that some co-accused of Sajjad alias Sajoo and Bashir appellants are Proclaimed Offenders at present and they are yet to be tried after effecting their arrest in connection with this case. It is clarified that the question of guilt or otherwise of the said absconding co-accused of the appellants shall be determined by the learned trial Court on the basis of the evidence to be led in their trial without being influenced by any observation made or conclusion recorded by this Court in the present judgment.