' IJAZ AHMAD CHAUDHRY, J.--- Criminal Appeal No,612 of 2000 has been filed by Khalid Farooq appellant against the judgment, dated 23-11-2000 passed by the learned Additional Sessions Judge, Kot Addu whereby Khalid Farooq was sentenced to life imprisonment under section 302(b), P.P.C. For committing Qatl-i-Amd of Mumtaz Ahmad (deceased) and Mumtaz Ahmad appellant was sentenced to 10 years' R.I. Under section 302/34, P.P.C. For sharing common intention. They were also given benefit of section 382-B, Cr.P.C. However, Niaz and Arshad co-accused were acquitted. Ijaz Ahmad complainant has filed Criminal Revision No,358 of 2000 for enhancement of sentence of both the appellants. He has also filed Criminal Appeals Nos.646 of 2000 and 661 of 2000 challenging the acquittal of Niaz and Arshad co-accused. Since all these cases arise out of same judgment and pertain to the same occurrence, I propose to decide the same together.
2. The present occurrence regarding the murder of Mumtaz Ahmad took place at 2-00 p.m. On 14- 11-1997 within the area of Mauza Tibbi Nizam which was reported by Ijaz Ahmad (P.W.7) brother of the deceased through complaint (Exh.P.B.) recorded by Tahir Mahmood Inspector (P.W.9) at 4-15 a.m. On the basis of which F.I.R. No,216 (Exh.P.B./1) was recorded at Police Station Mahmood Kot District Muzaffargarh by Rashid Ahmad (P.W.4).
3. Briefly the facts narrated in the F.I.R. (Exh.P.B./1) are that on 19-11-1997 deceased Mumtaz Ahmad was going on his bicycle for saying Juma prayer towards Adda Shailer. At about 2-00 p.m. When he reached in front of the house of Imam Bakhsh Marasi, appellant namely Khalid Farooq and Arshad (acquitted accused) armed with .12 bore pistols, Niaz (acquitted accused) and Mumtaz (appellant) armed with Sotas came on two motorcycles and they stopped their motorcycles in front of the bicycle of the deceased Mumtaz Ahmad while raising a Lalkara that they would not let him alive.
Mumtaz Ahmad deceased after leaving his bicycle tried to run away but all the accused encircled him while Mumtaz Ahmad appellant had caught hold of him from the neck and had fallen on the ground. Then Khalid Farooq appellant fired at the deceased with his pistol .12 bore hitting on his left leg near the knee on the left side. The fire shot passed through and through. In the meanwhile Ghulam Mustafa and Ata Muhammad P.Ws. Who were going to say Juma prayer also attracted to the spot and witnessed the occurrence. They along with the complainant raised Lalkara whereupon Mumtaz Ahmad appellant, Niaz Ahmad and Muhammad Arshad (co-accused) threatened them with dire consequences. Then they were run away from the spot along with their respective weapons. Mumtaz Ahmad died at the spot.
4. The motive behind the occurrence was alleged that' 1/1-2 years ago there was litigation between the complainant and the accused, who were compelling the complainant to be restrained from pursuing the case but he did not agree. Then they approached Mumtaz Ahmad deceased for this purpose, who also refused to intervene in the matter. Mumtaz Ahmad deceased was done to death by all the four accused with their active connivance.
5. After the registration of the F.I.R., Tahir Mahmood, S.-I. (P.W.9) went to the spot, prepared injury statement as well as inquest report, dispatched the dead body to the mortuary, took into possession blood-stained earth from the spot vide memo. Exh.P.F. And bicycle P.5 of the deceased vide memo. Exh.P.I. He arrested the accused on 21-11-1997 and on 23-11-1997 effected the recovery of carbine P.3 and motorcycle P.4 from Khalid Farooq appellant which were taken into possession vide memos. Exh.P.F. And Exh.P.H. Respectively. After the completion of the investigation two nominated accused Niaz Ahmad and Muhammad Arshad were declared innocent while Khalid Farooq and Mumtaz Ahmad were found guilty.
6. After the submission of report under section 173, Cr.P.C. The discharged accused were also summoned and the copies required under section 265-C, Cr.P.C. Were supplied to all the accused.
Then charge was framed which was denied by them and the prosecution in order to prove the guilt of the accused produced as many as 10 witnesses. The medical evidence was led by Dr. Muhammad Shafique Khan P.W.2 who conducted the post-mortem examination of the deceased Mumtaz Ahmad on 15-11-1997 at 7-45 a.m. And the ocular account has been furnished by Ijaz Ahmad (P.W.7) and Ata Muhammad (P.W.8) while Tahir Mahmood S.-I./Investigating Officer (P.W.9) had conducted the investigation. The remaining witnesses are more or less of formal nature. After the close of the prosecution evidence, statements of the appellants under section 342, Cr.P.C. Were recorded wherein they denied the allegations. To a question that "why this case against you?"
Khalid Farooq appellant made the following reply:-- "I have been falsely involved in this case due to local political factionism at the instance of Mehr Muhammad Rashid, Advocate and on account of quarrel over demand of Rs, 5,000 which stood outstanding as arrears in the name of Ejaz Ahmad complainant who had been purchasing diesel from my petrol pump on loan and credit basis. It is a blind murder wherein I have been wrongly roped."
' While Mumtaz Ahmad accused in reply to the question that "why this case against you?" stated as under:-- "There was a dispute over a shop situated at Adda Gurmani between me and one Nabi Bakhsh Bhutta wherein Mehar Muhammad Rashid Advocate, who is wire-puller of this case, had been keenly supporting Nabi Bakhsh Bhutta who had got me involved in this case in order to dispossess me from the shop. Accordingly after my arrest in this case, Nabi Bakhsh Bhutta took over the possession of the shop in dispute forcibly at the instance of Mehar Muhammad Rashid, Advocate and in return the said Nabi Bakhsh Bhutta has been supporting the version of the complainant party, during all the investigations of the case."
' Certain documents were produced by Khalid Farooq in defence. On close of trial and after hearing both the parties the learned trial Court has passed the impugned judgment of conviction and sentence against the two appellants.
7. Learned counsel for the appellants contends that it was an unwitnessed occurrence and the complainant and other eye-witnesses were not present at the spot; that Ejaz Ahmad (P.W.7) is the real brother of the deceased Mumtaz Ahmad while Ata Muhammad (P.W.8) is the brother-in-law of the deceased and the complainant who were not only closely related inter se but also admitted the enmity between them as according to P.W.7 criminal case was got registered by him against the appellant Khalid Farooq and he was convicted in the said criminal case about 1/1-2 months before the registration of the case; that due to existence of enmity between the parties, the evidence of the interested witnesses cannot be believed without corroboration by any independent piece of evidence which is lacking in the present case as the recovery of carbine is of no consequence because neither any empty was recovered from the spot nor it was sent to the office of Forensic Science Laboratory; that the prosecution has miserably failed to prove the case against the appellants; that nothing was recovered from Mumtaz Ahmad appellant during investigation who was falsely implicated in the present case and his case is at par with the case of the acquitted accused Niaz Ahmad and Muhammad Arshad; that Khalid Farooq had only caused the injury on the leg of the deceased which is not vital part and in such-like cases the superior Courts have previously held that the offence would fall under section 304, Part-II, P.P.C. Whereas in PLD 1996 SC page 274 A has been held that the cases previously falling under section 304 Part-II, P.P.C. Will be covered by section 302(c), P.P.C.; hence the period already undergone by him in jail will meet the, ends of justice whereas case of Mumtaz Ahmad is not distinguishable from the acquitted accused and he also deserves the same treatment.
8. On the other hand learned counsel for the complainant opposes this appeal on the ground that the F.I.R. Was lodged with promptitude and the names of the appellants along with the acquitted accused with specific roles were mentioned, which eliminates the possibility of any fabrication or false implication; that it was a broad-daylight occurrence and the witnesses were residents of the same locality whose presence at the spot was not doubtful and there were no chances of misidentity or substitution as the P.Ws. Had no previous enmity with the appellants or the acquitted accused to falsely implicate them by letting off the real culprits; that Khalid Farooq appellant is liable to be sentenced to death as he caused fire-arm injury, which was found sufficient to cause death in the ordinary course of nature, while Mumtaz Ahmad appellant may also be.Sentenced to life imprisonment provided under the law. As regards acquitted accused namely Niaz and Arshad it is contended that mere opinion of the police that during the investigation they were declared innocent was not sufficient to acquit them: as they failed to prove their false implication, hence they are liable to be convicted and sentenced under section 302(b), P.P.C. As well by accepting Criminal Appeal No,646 of 2000 filed against their acquittal. Relies upon PLD 1976 377 and 1970 SCMR page 313 to contend that in spite of the injury on the leg the death sentence was maintained.
It is also contended that only non-proving of the motive is not sufficient to withhold normal penalty of death. Also relies upon 1999 SCMR page 1668.
9. Learned counsel for the State also adopts the arguments of the learned counsel for the complainant.
10. I have heard the arguments of the learned counsel for the parties and also perused the record with due care and caution. The occurrence in the present, case took place at 2-00 p.m. And the matter was reported to the police at 4-15 p.m. By Ijaz Ahmad complainant with promptitude. Ijaz Ahmad P.W.7 was resident of the same locality, who explained his A presence at the spot at the time of occurrence that he was going to' say Juma prayer and the deceased was also going to say Juma prayer. Ata Muhammad P.W.8 also stated that he was going to say Juma prayer. According to both the witnesses the other persons of the locality were also going to say Juma prayer and the mosque was at a distance of 2 kilometers from the house of the complainant while the occurrence had taken place at a place situate at equal distance from the mosque and the house of the complainant. Moreover the deceased and the complainant had chosen the shortest way for going to mosque to say Juma prayer. Ata Muhammad P.W.8 was also the resident of the same locality and his house was at a distance of one Bigha from the house of the complainant. He has also explained his presence at the spot that he was going to say Juma prayer Both these witnesses on this point were subjected to lengthy cross-examination but it was not the case of the defence that there was no mosque and the P.Ws. Were not going to say Juma prayer. So there is nothing on the record to contradict the statements of both the witnesses regarding their presence at the spot at the time of incident as the, purpose of the presence of the witnesses could not be shattered by the defence during cross-examination. In the above circumstances it can safely be held that both the witnesses have sufficiently proved their presence at the spot, who remained consistent on material points regarding the time, place and the manner in which the occurrence had taken place.
11. The minor contradictions in their statements regarding make of fire-arm are not sufficient to discard their version regarding the involvement of Khalid Farooq appellant as he is the single accused, who allegedly while armed with .12 bore pistol had fired at the deceased hitting on his right leg near the knee. The injury attributed to Khalid Farooq by both the witnesses finds corroboration from the medical evidence led by Dr. Muhammad Shafique Khan P.W.2 who had conducted the post-mortem examination and opined that the injury was sufficient to cause death in the ordinary course of nature, which had damaged the main vessels and the deceased had died within twenty minutes after the receiving of the said injury. In such circumstances it is established on the record that the medical evidence was in line with the ocular account and the complainant and both the eye-witnesses had fully proved the case against Khalid Farooq appellant. It is also an admitted fact that some previous enmity existed between the parties and according to the complainant P.W.7 a criminal case was got registered against Khalid Farooq on the statement of Zafar Ahmad and he gave minute details of the said occurrence. P.W.7 also stated that Khalid Farooq was convicted in the said case about 1-1/2 months earlier to the incident. In the above circumstances I have no hesitation in holding that Khalid Farooq appellant had participated in the occurrence and the prosecution has succeeded in proving the case against him for committing Qatl-i-Amd of Mumtaz Ahmad deceased who had come at the place of occurrence while armed with fire-arm and fired at the deceased was sufficient to cause death in the ordinary course of nature. I am not inclined to convert the conviction and sentence of the appellant under section 302(b), P.P.C. E merely on the ground that he had caused injury to the deceased near the knee on the leg which is non-vital part of the body. It is settled principle of law that each and every criminal case has to be decided on its own merits. There is nothing on the record to suggest that Khalid Farooq appellant had no intention to kill Mumtaz Ahmad deceased as he had waylaid the deceased while armed with fire-arm and caused injury through fire, which proved fatal and according to the doctor the deceased died within 20 minutes of receiving of the injury. Hence it cannot be said that the deceased died due to the negligence of the complainant party having failed to provide medical treatment in time. The case-law cited by the learned counsel for the petitioner in such circumstances cannot be relied upon to reduce sentence of the appellant while converting his conviction to section 302(c), P.P.C. Even in Tajamal Hussain v. Nasar Mehdi and another PLD 1976 SC 377 and Muhammad Siddique v. The State PLD 1970 SCMR page 313, the injury was on the thigh but the damage caused by the said injury was sufficient to cause death and the accused while holding guilty under section 302, P.P.C. Were sentenced to death. As such I do not find any merit in this appeal to the extent of Khaliq Farooq appellant, which is partly dismissed while maintaining his conviction and sentence.
12. So far as case of appellant Mumtaz Ahmad is concerned admittedly he was not armed with any weapon and was ascribed the only role that he had fallen the deceased on the ground whereafter Khalid Farooq appellant fired at the deceased Mumtaz Ahmad. It is strange that Mumtaz Ahmad appellant was allegedly armed with Sota along with his two acquitted co-accused Niaz Ahmad and Muhammad Arshad who were also armed with Sotas but none of them had caused any injury with Sotas on the person of the deceased. It does not, appeal to mind that when Mumtaz Ahmad deceased was going to be fired at by the co-convict Khalid Farooq, what was the reason for Mumtaz Ahmad appellant to go near him first to fall him on the ground while taking the risk of his own life. Even otherwise Mumtaz Ahmad appellant along with the acquitted accused had not caused any injury to the deceased with Sota and the prosecution has failed to prove the case against Mumtaz Ahmad through any cogent evidence. Admittedly, nothing was recovered from his possession during the investigation and there is nothing on the record to corroborate the oral statements of the eye-witnesses regarding his involvement in the present case. His case is at par with the case of the acquitted accused and I find no distinguishable features except that he was declared guilty during the investigation. It is settled law that police opinion is not binding on the Courts and merely on the basis of the same conviction or acquittal cannot be recorded. He was also entitled to the same treatment meted out to the accused as he had also not caused any injury to the deceased. Moreover, the role ascribed to him that just before firing he had made to fall the deceased on the ground has been found to be unreasonable and not reliable. Even otherwise there is tendency in the general public to involve the close relatives/friends of the main accused by levelling such type of evasive allegations.
13. For the foregoing reasons I am satisfied that the prosecution has failed to bring home guilt to Mumtaz Ahmad appellant beyond any shadow of doubt. As such this appeal is partly accepted, the impugned judgment to the extent of Mumtaz Ahmad appellant is set aside and he is acquitted of the charge by extending him the benefit of doubt. He shall be released from jail forthwith if is not required in any other criminal case.
14. Since, I have also acquitted Mumtaz Ahmad appellant who was ascribed the role of falling the deceased on the ground and also observed that his role was not distinguishable from the case of Muhammad Arshad and Niaz co-accused, who were acquitted by the learned trial Court and ascribed the only role that they had encircled the deceased while armed with Sotas when he tried to escape from the scene, I do not find any merit in the criminal appeals filed by the complainant against their acquittal. They were not ascribed any injury to the deceased. Valid reasons have been given by the learned trial Court for their acquittal and they were also found innocent by the police during the investigation. Hence Criminal Appeal No,646 of 2000 and Criminal Appeal No,661 of 2000 filed by Ijaz Ahmad complainant against the acquittal of Niaz Ahmad and Muhammad Arshad are dismissed having no merits.
15. Criminal Revision No,358 of 2000 had also been filed by Ijaz Ahmad complainant for the enhancement of sentence but I find that the learned trial Court has given valid reasons for awarding the lesser penalty of life imprisonment to the appellant Khalid Farooq that he had not repeated the injury and the motive was not proved. Moreover, the injury was on non-vital part of the body and there was also some doubt regarding the nature of fire-arm used by him for causing inDjury to the deceased. I do not find any reason that Khalid Farooq convict with all probability deserved normal penalty of death. Hence Criminal Revision No,358 of 2000 is dismissed as well. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.