' ASIF SAEED KHAN KHOSA, J.--- Abdullah and Najeebullah appellants were convicted for an offence under section 302(b), P.P.C. Vide judgment, dated 24-9-2001 handed down by the learned Additional Sessions Judge, Mianwali and were sentenced to death each on and a fine of Rs,10,000 each. Through the same judgment the learned trial Court had acquitted the appellant's co- accused namely Zubair Khan, Ghulam Abbasi, Amir Umar Khan, Umar Khan, Habibullah and Saifullah. The appellants have challenged their convictions and sentences before this Court through Criminal Appeal No,1598 of 2001 whereas Muhammad Khalid Khan complainant has preferred Criminal Revision No,755 of 2001 before this Court seeking a direction regarding payment of compensation by the appellants to the heirs of Shah Jahan Khan Deceased. We have heard these matters along with Murder Reference No,324 of 2002 seeking confirmation of the sentences of death passed by the learned trial Court against the appellants. We propose to decide all these matters together through the present consolidated judgment.
2. According to the prosecution's case detailed in the F.I.R. Muhammad Khalid Khan complainant was a resident of Wandha Humayun Khelanwala situated within the area of Police Station Mochh, District Mianwali and was an agriculturist by profession. On 29-10-1998 Muhammad Khalid Khan complainant and his paternal-cousins namely Yaki Khan and Muhammad Mumtaz Khan were sitting on the ground with their paternal-cousin namely Shah Jahan Khan at a distance of about fifty yards from a mosque of Shah Jahan Khan and were discussing the matter of compromise in some criminal cases with the said Shah Jahan Khan. At about 12-00 noon Abdullah and Najeebullah appellants, armed with a klashnikov each, emerged there from the Sarkandas and both of them fired bursts from their klashnikovs and the bullets hit Shah Jahan Khan on different parts of his body. In the meanwhile the appellants co-accused namely Amir Umar Khan, Umar Khan, Habibullah and Saifullah, all armed with different fire-arms, also emerged there and fired at the complainant party but the complainant and others saved their lives by lying flat on the ground.
Upon the hue and cry raised by the complainant and others the appellants and their co-accused decamped from the place of occurrence towards the Dera of Saifullah Khan. Shah Jahan Khan succumbed to his injuries and died at the spot. The motive set up in the F.I.R. Was that Shah Jahan Khan Deceased had an ongoing enmity with the appellants and their co-accused and it was in that backdrop that the appellants and their co-accused had committed the murder of Shah Jahan Khan with the abetment of Zubair Khan and Ghulam Abbas accused. Leaving the dead body of Shah Jahan Khan Deceased at the place of occurrence. Muhammad Khalid Khan complainant went to the Police Station Mochh, District Mianwali and lodged F.I.R. No,216 thereat in respect of the above mentioned incident at 3-00 p.m. On 29-10-1998 for offences under sections 302/324/148/ 149/109, P.P.C.
3. The investigation of this case was conducted by Chaudhry Ghulam Murtaza, Inspector/S.H.O.
(P.W.13), Qarib Ali Shah, Inspector (P.W.11), Zafrullah Khan, S.-I. (P.W.12) and Ghulam Shabbir, S.-I.
(P.W.15). During the investigation the place of occurrence was inspected, blood-stained earth and fourteen crime-empties were secured, the dead body was sent to the mortuary for autopsy, a rough site plan of the place of occurrence was prepared and the statements of witnesses were recorded. After the post-mortem examination of the dead body the last-worn clothes of the deceased were secured and later on a formal site plan of the place of occurrence was got prepared, the appellants and their co-accused were arrested, a klashnikov with four magazines and twenty live bullets were recovered from the possession of Najeebullah appellant and upon completion of the investigation a challan was prepared and submitted in connection with this case.
4. At the commencement of the trial the learned trial Court framed a charge with four heads under sections 148, 302/109, 302/149 and 324/149, P.P.C. Against the appellants and their co-accused to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution 'produced fifteen witnesses in support of its case against the appellants and their co-accused. Muhammad Khalid Khan complainant (P.W.9), Muhammad Mumtaz Khan (P.W.10) and Tariq Shah (P.W.7) furnished the ocular account of the incident in question. Muhammad Khalid Khan complainant (P.W.9) and Muhammad Mumtaz Khan (P.W.10) also deposed about the motive. No evidence whatsoever had been produced by the prosecution regarding the abetment allegedly provided by Zubair Khan and Ghulam "Abbas accused. M. Aslam, F.C. (P.W.14) and Ghulam Shabbir, S.-I. (P.W.15) provided the evidence regarding absconsion of Najeebullah appellant. Sultan Mehmood, F.C. (P.W.4) stated about recovery of a klashnikov with four magazines and twenty live bullets from the possession of Najeebullah appellant during the investigation of this case. The medical evidence was provided by Dr. Malik Jehangir (P.W.1) and Dr. Muhammad Rafique Khan (P.W.8). Chaudhry Ghulam Murtaza, Inspector/S.H.O. (P.W.13), Qarib Ali Shah, Inspector (P.W.11), Zafrullah Khan, S.-I. (P.W.12) and Ghulam Shabbir, S.-I. (P.W.15) 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. The appellants and their co-accused 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 did not produce any witness in their defence.
7. Under conclusion of the trial the learned trial Court acquitted the appellants' six co-accused but after finding the prosecution's case against the appellants to have been proved beyond reasonable doubt it convicted and sentenced them 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 appellants and the learned counsel for the State and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellants that the eye-witnesses produced by the prosecution were related, inimical and chance witnesses who had failed to receive any independent corroboration or support and, thus, the prosecution had failed to prove its case against the appellants beyond reasonable doubt entitling the appellants to be acquitted by this Court. As against that the learned counsel for the State have maintained in unison that the prosecution had succeeded in establishing the appellants' guilt to the hilt and, therefore, their convictions and sentences recorded by the learned trial Court do not warrant any interference by this Court. It is pertinent to mention here that the name of the learned counsel for the complainant (Mr. Inayat Ullah Khan Niazi, Advocate) who had filed Criminal Revision No,755 of 2001 before this Court stands duly reflected in the cause-list issued for today but he has failed to enter appearance nor any request has been received from him seeking an adjournment. The cause-list duly notifies that no adjournment shall be granted in such old cases. Today Sardar Khurram Latif Khan Khosa, Advocate had entered appearance before us and had stated that his services had been engaged by the complainant last evening and, thus, he had sought an adjournment so as to enable him to prepare his brief. We had told the said learned counsel that he knew fully well that his cases are not fixed before or heard by the present Bench because of his close kinship with one of us (Asif Saeed Khan Khosa, J.) and, thus, proper professional conduct required that he ought not to have accepted the brief in the present case when he could not be heard by this Bench and the case was not to be adjourned. He had no answer to the said observations made by this Court. It may be added in this context that by virtue of the provisions of section 440, Cr.P.C. No party has a right of hearing in connection with a 'revision petition filed before this Court. In these circumstances we had not allowed Sardar Khurram Latif Khan Khosa, Advocate to place his power of attorney on the files of the present connected matters and had refused to afford an audience to him. We have already observed above that the already engaged learned counsel for the complainant (Mr. Inayat Ullah Khan Niazi, Advocate) has failed to enter appearance before us today.
9. After hearing the learned counsel for the appellants and the learned counsel for the State at some length and after going through the record of this case from cover to cover with their assistance we have straightaway observed that both the eye-witnesses produced in this case by the prosecution, i,e, Muhammad Khalid Khan complainant (P.W.9) and Muhammad Mumtaz Khan (P.W.10) had no regard for the truth because in the F.I.R. Lodged in this case and in the statements made by the said eye-witnesses before the police they had never mentioned availability of Muhammad Iqbal P.W. And Tariq Shah P.W. At the place of occurrence at the time of the present incident but after many weeks.Of the present occurrence the said witnesses had been introduced by the prosecution as injured eye-witnesses and before the learned trial Court both Muhammad Khalid Khan complainant (P.W.9) and Muhammad Mumtaz Khan (P.W.10) had asserted that the said injured witnesses were also present at the scene of the crime at the relevant time and they had also witnessed the said occurrence. Out of the above mentioned witnesses Muhammad Iqbal was never produced before the learned trial Court whereas Tariq Shah was produced by the prosecution as P.W.7 but he had expressly been discarded by the learned trial Court for very cogent reasons. The said Tariq Shah (P.W.7) had found no mention in the F.I.R. Or in the statements recorded under section 161, Cr.P.C.; no injury statement was prepared in this respect by the Investigating Officer; no statement of the said witnesses was recorded under section 161, Cr.P.C.; and his Medico-legal certificate had been obtained for the first time on 9-11-1998, i,e, after eleven days of the alleged occurrence. Such belated introduction of the above mentioned so-called injured eye-witnesses had not only reacted upon the veracity of the said witnesses themselves but the same had also gone a long way in , discrediting the veracity of Muhammad Khalid Khan complainant (P.W.9) and Muhammad Mumtaz Khan (P.W.10) as well.
10. Both Muhammad Khalid Khan complainant (P.W.9) and Muhammad Mumtaz Khan (P.W.10) were not only very closely related A to Shah Jahan Khan deceased but they were also inimical and chance witnesses. Both the said witnesses were first paternal-cousins of Shah Jahan Khan deceased and Muhammad Mumtaz Khan (P.W.10) was also a brother of a son-in-law of Shah Jahan Khan deceased. Muhammad Khalid complainant (P.W.9) had admitted before the learned trial Court that Abdullah appellant used to join the police in conducting raids for the arrest of Shah Jahan Khan Deceased who was a proclaimed offender in many criminal cases. He had further admitted that even the grandfather of Najeebullah appellant used to join the police in conducting such raids for the arrest of Shah Jahan Khan Deceased. He had gone to admit that both the present appellants had been pressurizing the complainant party to produce Shah Jahan Khan Deceased before the police. In that backdrop the said eye-witnesses produced by the prosecution were surely interested against the present appellants. Both the above mentioned eye-witnesses were admittedly chance witnesses and their explanation for presence with Shah Jahan Khan Deceased at the time of the present occurrence has been found by us to be quite unbelievable.
Both the said witnesses had claimed to have travelled for two and a half hours by a wagon to arrive at the place of occurrence and during their journey they had crossed at least five towns and this showed that their normal places of abode were situated quite far away from the place of occurrence. The reason mentioned in the F.I.R. And in the statements made by the said eyewitnesses before the learned trial Court for going to the place of occurrence was that the said eye-witnesses had to talk to Shah Jahan Khan deceased about a compromise proposed between him and his enemy but initially the said eye-witnesses had failed to name such enemy nor any particular of any case had been mentioned by them regarding which a compromise was to be discussed. At a later stage the said witnesses had mentioned some person with whom they wanted the deceased to effect a compromise but they had still failed to give any specific details about any such matter. Both the said witnesses had claimed that they had gone to see Shah Jahan Khan deceased at his Dera which was situated close to the place of occurrence but the Investigating Officer of this case namely Chaudhry Ghulam Murtaza, Inspector/S.H.O. (P.W.13) had given a big lie to them in that regard by clearly stating before the learned trial Court that no Dera of Shah Jahan Khan deceased was situated near the place of occurrence. A bare look at the site plan of the place of occurrence (Exh.P.L.) shows that the place of occurrence was a jungle of Sarkandas and the said place was surrounded by Sarkandas from all directions. Ghulam Qasim (P.W.6) and Muhammad Mumtaz Khan (P.W.10) had given the height of Sarkandas at 4/5 feet. The site plan shows availability of a mosque near the place of occurrence but the occurrence had taken place at a time which was not a time for regular , prayers so as to infer availability of other persons in or around that mosque at that time. Ghulam Qasim (P.W.6), Muhammad Khalid Khan complainant (P.W.9) and Muhammad Mumtaz Khan (P.W.10) besides the Investigating Officer namely Chaudhry Ghulam Murtaza, Inspector/ S.H.O. (P.W.13) had admitted before the learned trial Court in so many words that Shah Jahan Khan deceased was a proclaimed offender at the time of the present occurrence. Chaudhry Ghulam Murtaza, Inspector/S.H.O. (P.W.13) had stated before the learned trial Court that at the relevant time Shah Jahan Khan deceased was a proclaimed offender, an absconder or a wanted person in ten cases registered at Police Station Mochh, District Mianwali and he was also an accused person in eighteen other cases. Muhammad Khalid Khan complainant (P.W.9) as well as Ghulam Qasim (P.W.6) had conceded before the learned trial Court that Shah Jahan Khan deceased had many enemies as he and his close relatives were involved in many cases of murder murderous assault, arson, Haraba and police encounters, etc. Both Muhammad Khalid Khan complainant (P.W.9) and Muhammad Mumtaz Khan (P.W.10) had claimed before the learned trial Court that at the time of firing at the deceased they were present at a distance of one and a half to two Karams from the deceased and that during the occurrence both the present appellants had fired full bursts from their respective klashnikovs. Muhammad Mumtaz Khan (P.W.10) had gone on to state that Najeebullah appellant had exhausted his whole magazine containing thirty bullets. If that were to be so then we have found it to be quite strange that both Muhammad Khalid Khan complainant (P.W.9) and Muhammad Mumtaz Khan (P.W.10) had escaped unscathed and had not received even a scratch on their bodies. For the reasons mentioned above we have felt convinced that both Muhammad Khalid Khan complainant (P.W.9) and Muhammad Mumtaz Khan (P.W.10) were not present with Shah Jahan Khan deceased at the time of his murder and that they had been procured and planted in this case as eye-witnesses at some subsequent stage.
11. The motive alleged in the F.I.R. Was that there was an old enmity between the parties but no detail of the said enmity had been provided therein. However, before the learned trial Court Muhammad Khan complainant (P.W.9) had explained that Shah Jahan Khan deceased had caused injuries to one Musa Khan, a relative of the present appellants, and, thus, the appellants had murdered him. Muhammad Khalid Khan complainant (P.W.9) had, however, conceded before the learned trial Court that the present appellants namely Abdullah and Najeebullah were not related to each other in any manner. He had stated that the appellants were friends of each other but he had completely failed to mention any instance of their friendship or to establish the said assertion. No evidence whatsoever had been brought on the record of this case by the prosecution to establish any community of interest between the present appellants for the purpose of doing away with Shah Jahan Khan deceased. Muhammad Khalid Khan complainant (P.W.9) had in fact admitted before the learned trial Court in so many words that Najeebullah appellant was not inimical towards the complainant party before the present occurrence and Muhammad Mumtaz Khan (P.W.10) had conceded that he did not know of any personal enmity between Shah Jahan Khan deceased and Abdullah appellant prior to the present occurrence. Muhammad Khalid Khan complainant (P.W.9) had, however, stated before the learned trial Court that two days prior to the present occurrence Shah Jahan Khan deceased had set on fire two boats belonging to Abdullah appellant but he had admitted that he had not seen the said incident -himself and that he was told about the same by one Abid Khan who was never produced before the learned trial Court. As if this were not enough Chaudhry Ghulam Murtaza, Inspector/S.H.O. (P. W.13) had clearly stated before the learned trial Court that no enmity between the appellants and Shah Jahan Khan deceased had been brought to his notice during the investigation of this case. In these circumstances the motive set up by the prosecution had remained far from being established and no corroboration to the ocular account was forthcoming on this score.
12. It had been alleged by the prosecution that Zubair Khan and Ghulam Abbas accused had provided abetment to the present appellants and their four acquitted co-accused. Both Zubair Khan and Ghulam Abbas accused had been acquitted by the learned trial Court. The other four accused person who had allegedly resorted to ineffective firing at the place of occurrence had also been acquitted by the learned trial Court. In this view of the matter the prosecution has already suffered an irretrievable set back on these scores. The acquittal of the said co-accused of the appellants by the learned trial Court has already established that the eye-witnesses produced by the prosecution were quite capable of falsehood.
13. The prosecution's allegation regarding absconscion of Najeebullah appellant was also proved to be a pack of lies and falsity of the prosecution's allegation in that regard had been exposed by two of its own witnesses namely M. Aslam, F.C. (P.W.14) and Ghulam Shabbir S.-I. (P.W.15). M. Aslam, F.C. (P.W.14) had conceded that no warrant of arrest vis-a-vis Najeebullah appellant was available on the judicial file and that he had affixed the relevant proclamation on the door of somebody else's house and not on the door of the house of Najeebullah appellant. He had also admitted that he had not obtained the signatures of any person of the locality on the relevant reports prepared by him. Ghulam Shabbir, S.-I. (P.W.15) had categorically admitted before the learned trig' Court that the relevant report submitted by M. Aslam F.C. (P.W.14) was in respect of one Noor Hassan who was a proclaimed offender in some other criminal case and that the said report was not in respect of Najeebullah appellant. It goes without saying that absconscion of an accused person could not be proved by the prosecution by relying upon a report pertaining to some other accused person of some other criminal case.
14. No weapon had been recovered from the possession of Abdullah appellant whereas a klashnikov with four magazine and twenty live bullets had allegedly been recovered, from the possession of Najeebullah appellant during the investigation of this case. We have noticed that according to the prosecution as many as fourteen crime-empties had been recovered from the place of occurrence but Qarib Ali Shah, Inspector (P.W.11) had conceded before the learned trial Court that the crime-empties had never been sent to the Forensic Science Laboratory and the klashnikov recovered from the possession of Najeebullah appellant had not been sealed. In these circumstances no corroboration to the ocular account was available from the said recoveries which were legally inconsequential.
15. The occurrence in this case had taken place at about 12-0d noon on 29-10-1998 and an F.I.R. In that regard had been registered at 3-00 p.m. On the same day but the post-mortem examination of the dead body of Shah Jahan Khan deceased had been conducted at 9-00 a.m. On the following day, i,e, 30-10-1998. Such a delayed post-mortem examination of a dead body is generally suggestive of a real possibility regarding time having been utilized by the complainant party and the police in procuring and planting eye-witnesses and in cooking up-a story of the prosecution. Ghulam Qasim (P.W.6) had stated before the learned trial Court that the dead body had been escorted to the hospital at 8-00 a.m. On 30-10-1998 and Dr. Malik Jehangir (P.W.1) had stated before the learned trial Court that the dead body had been referred to him at 8-45 a.m. On 30-10-1998 for the purpose of conducing post-mortem examination. Muhammad Ashraf, F.C.
(P.W.5) had, however, spilled the beans in that regard by stating before the learned trial Court that he had taken the dead body to the hospital on 29-10-1998 but the relevant police papers had been presented by him before the doctor at 8-30 a.m. On 30-10-1998. This had confirmed the fact that the relevant police papers necessary for conducting the post-mortem examination were not ready till the morning on 30-10-1998 and during all that period the eye-witnesses were being procured and planted in this case and a story of the prosecution was being cooked up. It may also be relevant to mention here that according to the ocular account furnished in this case and the site plan of the place of occurrence (Exh.P.L.) Shah Jahan Khan deceased had been fired at mainly from his front but Dr. Malik Jahangir (P.W.1) had found that the deceased had been fired at from many directions. Apart from that the ocular account furnished by the prosecution in this case maintained that Shah Jahan Khan deceased was fired at when he was sitting, on the ground whereas Dr. Malik Jehangir (P.W.1) had observed that the deceased had received his injuries at a time when he was in a standing position. All this shows, and shows quite clearly, that the medical evidence produced in this case had gone a long way in contradicting and discrediting the eye- witnesses produced by the prosecution.
16. For what has been discussed above a conclusion is inescapable, unavoidable and irresistible that the prosecution had utterly failed to prove its case against the appellants beyond reasonable doubt. Criminal Appeal No,1598 of 2001 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. They shall be released from the jail forthwith if not required in any other case.
17. Due to the acquittal of both the appellants recorded by us above Criminal Revision No,755 of 2001 preferred before this Court by Muhammad Khalid Khan complainant seeking issuance of a direction regarding payment of compensation by the appellants to the heirs of Shah Jahan Khan Deceased has lost its relevance and the same is, therefore, dismissed.
16. Murder Reference No,324 of 2002 is answered in the negative and the sentences of death passed by the learned trial Court against Abdullah and Najeebullah appellants are not confirmed.