Ch. Iftikhar Hussain, J.--Appellant Shabbir Hussain alias Thah and Muhammad Nazir alias Jeeru through the above mentioned appeal have challenged their conviction and sentence in case FIR No, 33 under Section 302/148/149 PPC registered with Police. Station Kotli Said Amir, District Sialkot on 14.5.1996.
2. They vide the judgment delivered on 26.1.2000 by Malik Falak Sher Farooka, learned Additional Sessions Judge, Sialkot in that case were convicted under, Section 302 (b) read with Section 34 PPC on two counts and sentenced to death on each count subject to confirmation by this Court and to pay Rs, 50,000/- each to the legal heirs of each of the deceased and in default thereof to suffer six months rigorous imprisonment on each count.
3. The learned trial Court has submitted the murder reference mentioned above to this Court for confirmation of their sentences of death as required under Section 374, Cr.P.C.
4. As both these matters are outcome of one judgment in the case fence, are being disposed of by this single judgment.
5. Briefly the facts relevant for the disposal of these matters are that he appellants alongwith their eleven co-accused were tried under Sections 148 and 302 PPC read with Section 149 PPC, under two heads, in the aforementioned case, for on 14.5.1996 at about 4:30. p.m. in Mauza Gujral ailing within the jurisdiction of the aforesaid police station, in prosecution of the common object of the unlawful assembly formed by them committing the Qatl-e-Amd of deceased Munir Hussain and Salamat Ali.
6. The prosecution story as disclosed in the complaint Ex. PA is that Ghulam Abbas complainant (PW-1) is the resident of the aforesaid village. On 14.5.1996 at about 4:30 p.m. he alongwith his brother Munir Hussain, nephew Salamat Ali and Zulfiqar Ali and Dilawar Hussain were on their way to the house on Kacha passage in the village. They when reached near their houses, Shabbir Hussain alias Thah armed with 7 mm rifle, Mehmood Hussain with 222 rifle, Ghulam Abbas with 7 mm rifle, Nazir alias Shera with double barrel 12 bore gun, Muhammad Bashir with 7 mm rifle, Nazir alias Jeeru son of Ismail with 12 bore gun, Faqir Saieen with 12 bore gun, Khuda Yar with 12 bore gun, Mushtaq alias Makha with 7 mm rifle, Jahana with 12 bore gun, Munir Hussain alias Meena with 7 mm rifle, Nazir son of Muhammad Din with 12 bore gun, Shahadat alias Kala with 12 bore gun, Iqbal alias Bala with 12 bore gun and Shahbaz alias Shahbaza with 12 bore gun came there from the front side. Mhuda Yar raised lalkara that they be not spared. They became behind the Sheesham trees to save themselves. In the meanwhile Shabbir Hussain alias Thah fired straight shot with 7 mm rifle, which hit Munir Hussain on his front left cheek, Musthaq alias Makha fired with 7 mm rifle at him, which hit him on his back of the right shoulder. Nazir. alias Jeeru fired with 12 bore gun, which hit Salamat Ali on his front forehead. Ghulam Abbas fired with 7 mm rifle, which hit him on the back of his right ear. They both succumbed to their injuries at the spot. The accused, thereafter, remained firing in discriminately and raising lalkaras for quite some time. The motive behind the occurrence is that there is long standing enmity between the parties over the murders. The accused on account of the same, in consultation with each other have murdered Munir Hussain and Salamat Ali.
7. The two appellants have pleaded not guilty to the charge. The prosecution at their trial had examined it's eleven witnesses. They were Ghulam Abbas-complainant (PW-1), Zulfiqar (PW-2), Akhtar Naps Draftsman (PW-3), Dr. Sajid Ali (PW-4), Abdul Rashid-ASI (PW-r. Muhammad Asghar- HC (PW-6), Muhammad Irshad-HC (PW-7), Abde Hamid-ASI (PW-8), Hamidullah-SI/I0 (PW-9), Iftikhar Hussain Shah-A (PW-10) and Abdul Raouf-HC (PW-11). The reports of the Forensic Scien Laboratory Ex. PS and Ex. PT and that of Chemical Examiner Ex PU an Ex. PV and Serologist Ex. PW and Ex PX were tendered in the evidence.
8. The appellants in their examination under Section 342, Cr.P. had denied the allegation appearing against them in the prosecute evidence. However, appellant Shabbir Hussain alias Thah has pleaded s defence. According to him, the complainant party had tried to encircle II house and made indiscriminate firing there. They wanted to kill him and family members. He had fired at them in his defence. Appellant Muhammad Nazir alias Jeeru son of Ismail has pleaded innocence.
According to him, has falsely been involved on account enmity. They both, however, did not of to produce evidence in their defence and to depose on oath in disproof of t allegation appearing against them in the prosecution evidence.
9. The learned trial Court after hearing the parties concluded the prosecution stood succeeded in proving the charge against them and n against their co-accused. It has convicted and sentenced them as mention above, while acquitted their co-accused by giving them the benefit of doubt.
10. They feeling themselves aggrieved of the impugned judgment the extent of their conviction and sentence have assailed the same through their mentioned above appeal.
11. We have heard the learned counsel for the parties and peruse the record.
12. The prosecution in support of it's case against them has main relied upon it's ocular testimony, medical evidence, recovery of crime weapons from them and the motive.
13. The learned trial Court believed it's ocular testimony again them and received the medical evidence as supportive to the same and all the motive, while not the evidence of recovery of crime weapons from the It, however, had rejected their plea.
14. The prosecution's ocular account has been unfolded complainant Ghulam Abbas and Zulfiqar.
They have stated that 14.5.1996 at about 4:30 p.m. they while armed with 7 MM rifle and 12 begun respectively have fired at deceased Munir 'Hussain and Salamat resulting into their death.
According to them, appellant Shabbir Hussa alias Thah had fired with 7 rifle at deceased Munir Hussain hitting on II left cheek and Nazir alias Jeeru with 12 bore gun at Salamat Ali, which on his forehead.
15. They have also stated that Musthaq alias Makha had fired with mm rifle at Munir Hussain deceased, which hit on the back side of his light shoulder and Ghulam Abbas alias Bassa with 7 mm rifle at Salamat which hit him on the back of his right ear. The injuries attributed to else two acquitted accused to the two deceased persons were found to be founds of exit. They both, therefore, were disbelieved on that count. They mainly due to non support to their role by the medical evidence were quitted of the charge.
16. According to the case of Ghularn Sikandar and another v. amraz Khan and others (PLD 1985 SC 11), where an interested and finical witness may be found false with regard to implication of one caused, whose participation he had deposed on oath, there it is essential to independent corroboration to his testimony regarding the other accused.
17. In the light of the above enunciated principle by the Apex Court, be testimony of these witnesses is to be scrutinized. They both are closely dated to each other and to the deceased persons.
Ghulam Abbas is the -real other of deceased Munir Hussain and the nephew of Salamat Ali deceased. Ifiqar PW is his nephew. He is also the real brother of deceased Salamat . This is so available from the cross examination of Ghulam Abbas impalement. The longstanding enmity between the parties over murders is admitted fact on the record. There words from the cross- examination of Sulam Abbas PW are significant to highlight this fact.
"It is correct that both the parties have criminal history in which murdered cases were also included"
Ease words from his examination-in-chief are also relevant to be mentioned this context.
"The accused had fired and murdered Munir Hussain and Salamat Ali due to previous enmity between both the parties".
18. This shows that parties were inimically disposed towards each her prior to the occurrence.
These two eye-witnesses, therefore, were erected witnesses in every sense of the word.
19. It has been found that they had tried to falsely implicate quitted accused Mushtaq alias Makha and Ghulam Abbas by assigning m specific role of causing firearm injury each to both the deceased sons, while the medical evidence has negated their such role.
20. In such circumstances, independent corroboration to their timing against the other accused is to be looked for.
21. They as said above have stated that the appellant Shabbir issuing alias Thah with 7 mm rifle had fired at deceased Muni Hussain which hit on his left cheek and Muhammad Nazir alias Jeeru with 12 bore gun at Salamat Ali, which hit on his forehead.
22. Dr. Sajid Ali has found the following injuries on the person of the deceased : Munir Hussain
1. Circular wound 1 cm diameter inverted margins on left check 4 cm on medial and lower aspect from left pinner.
Oval shape wound (2/2) cm into (1/2) cm on back of right side of chest upper part at the level of T- 3.
Salamat Ali
1. Circular wound 1 cm diameter, invested margins on right side of frontal region of head over upper part.
2. Oval shape wound with averted margins (1/2) cm x (2/2) cm on lower occipital region of head on right side.
23. Appellant Shabbir Hussain alias Thah as said above in his examination, under Section 342 Cr.P.C. has pleaded that the complainant party had fired indiscriminately at his house in order to kill him as well as his family members and he had fired at them in his defence. His such version finds support from the evidence of I.0 Hameedullah, SI to some extent. He in the cross-examination had admitted it to be correct that appellant Shabbir Hussain alias Thah had resorted to firing from the roof of his house after taking shelter of a Parda wall and also from his courtyard. Further according to him, as per his investigation, appellant Nazir alias Jeeru and Ghulam Abbas acquitted accused on hearing the report of fire had reached the house of appellant Shabbir Hussain alias Thah. The following portion in his cross-examination is reproduced here for facility of reference, "According to my investigation, Nazir alias Jeeru and Ghulam Abbas accused on hearing the firing reached the house of Shabbir accused. 1 mentioned all these facts in my report under Section 173, Cr.P.C."
24. Though this is his opinion regarding the role of appellant Shabbir Hussain alias Thah during the incident but it at the same time is available in his evidence as a fact. This fact finds support from the testimony of the doctor. The doctor in his cross-examination has stated that the direction of the wound in case of Munir Hussain deceased was from upward to downward and only one bullet had caused Injury Nos, 1 & 2 on his person. This also is in clear support to the said fact in the evidence of the I.O that appellant Shabbir Hussain alias Thah had fired from the roof of the house by taking shelter of the Parda wall. This is also indicative of the fact that the complainant party had fired at him in his house and he had acted in retaliation from there. This definitely suggests that there is reasonable possibility of his version being true. This at the same time belies the version of the eye-witnesses that the two appellants along with their co-accused while armed with lethal weapons had attacked the two deceased persons near their houses and had killed them by firing at them with their respective weapons.
25.The statement of the doctor in respect of the direction of the wound from upward to downward in the case of deceased Munir Ahmad and his both the injuries to be result of one bullet also heavily suggests that the two eye-witnesses either were not present at the spot and they had not seen the occurrence or that they had given incorrect account of the same, as suited to them to implicate the two appellants. They, thus seem to have perjured themselves on that count. They, therefore, were not worthy of believe completely. The learned trial Court, therefore, has erred in believing them.
26.The negation of the role assigned by them to acquitted accused Musthaq alias Makha and Ghulam Abbas of causing injury specifically to the two deceased persons against has strengthened the belief that they had not given the correct account of the occurrence or that they had not seen the same with their own eyes and they have deposed against these appellants falsely on account of enmity with them. Their evidence, therefore, as said above was worthy of no belief completely. Anyway, the medical evidence is in clear contradiction to the same.
27.Appellant Muhammad Nazir alias Jeeru, as per the finding in the investigation of the aforesaid Sub-Inspector, had reached the spot on hearing the report of fires. His version too, thus finds support from the same that he is innocent and has been implicated on account of longstanding enmity with the complainant party.
28.The occurrence in this case as said above had taken place at 4:30 p.m. on 14.5.1996. The report regarding the same by way of complaint EX PA was made to the police at about 6:30 p.m. that day.
It, thus was completely after two hours of same. The distance of the police station from the place of occurrence is about six kilometers. As per the testimony of the eye-witnesses, both the deceased persons had succumbed to their injuries at the spot instantaneously. According to the evidence of Ghulam Abbas complainant, the police had reached there and he made statement Ex. PA before them. It appears from the same that he did not go to the police to report the matter and the police of their own had reached there and perhaps on having the information of the occurrence. Their remaining present at the spot for complete two hours and not moving to report the matter to the police in such an unfortunate incident is conspicuous and speaks volume of their 'conduct. This shows that they perhaps had remained making consultation and deliberations before reporting the matter to the police. There, however, has not been found any reasonable explanation of this significant delay to two hours in reporting the matter to the police. This is fatal to the prosecution as it leaves room to entertain doubt qua the veracity of the version contained in the same. This also appears from the same that it perhaps was recorded after the preliminary inquiries at the spot. Such an FIR looses it's evidentiary value.
29.Another fact, which has made the story contained therein as doubtful is that it is in the evidence of the said I.0 that the place of occurrence does not fall on the way, if the complainant party goes from the Adda towards their houses normally. This position in his 'evidence is like this: "It is correct that the place of occurrence does not fall on the way if the complainant party goes from the Adda towards their houses normally."
30.This again has made the story of the eye-witnesses as doubtful that they alongwith the deceased persons and others were on their way to their houses and the accused came in their way and attacked them and killed the two deceased persons. Their houses when had not fallen on the way to the place of occurrence, then it is bard to believe that they were attacked when they were proceeding on the same to go there. The story of the eyewitnesses, thus on that count too seems doubtful.
31.The 'prosecution has also tried to seek corroboration from the motive set up by it. There is no denying the fact by any side that there existed old enmity between the parties on similar accounts.
Here we may quote the time old saying that enmity is a double edge weapon. It if on one hand can prompt one to cause harm to his adversary and the same can give cause to other to involve him falsely. So, the motive in the instant case is not such a thing which definitely is to be taken into account in favour of the prosecution particularly when both the eye-witnesses have not been found to be trust worthy and reliable witnesses for the reasons discussed above and their version having not been supported by the medical evidence.
32.The motive, therefore, in the instant case could not be used as of corroboration to the ocular testimony in view of the above peculiar facts and the circumstances emerging there from. The learned trial Court, therefore, has also erred in receiving the motive part of the prosecution story as of corroborative to the same.
33.According to Abdul Hamid-SI, appellant Shabbir Hussain alias Thah had produced 7 mm rifle P 6 before him and appellant Nazir alias Jeeru got recovered gun P-9 from his house. The evidence regarding these recoveries is of no value as admittedly. no crime empty was recovered form the spot and no matching report of the expert in respect of these weapons is available to the prosecution to offer against them. These recoveries, therefore, were inconsequential and the same was rightly treated as so by the learned trial Court.
34.It may be mentioned here that the learned State counsel has submitted that the two appellants had remained absconder for quite some time and this is a circumstance to be viewed against them. We but have found ourselves not in agreement with him in his such submissions as the prosecution has not come out with any definite evidence against them in that regard. So, the prosecution, even if for the sake of arguments, it may be believed that they had absconded after the incident, cannot take benefit of the same.
35.We, therefore, as a result of the above discussion have reached to the irresistible conclusion that the prosecution could not prove it's case against these appellants as well beyond any shadow of reasonable doubt. They, therefore, have wrongly been convicted and sentenced. Their conviction and sentence, therefore, is not liable to be sustained.
36.We, therefore, accept their said appeal and set aside the impugned judgment to the extent of their conviction and sentence and acquit them of the charge giving them the benefit of doubt.
They are in custody. They be released forthwith, if not required in any other case.
37.The murder reference is answered in the negative. The sentence of death is not confirmed.