1. This appeal is directed against the judgment dated 21.12.2002 passed by Mian Altaf Hussain Mahar, the learned Additional Sessions Judge, Kamalia, District Toba Tek Singh, whereby, after having tried the appellants, they were convicted under Section 302(c)/34 PPC and sentenced to 12 years RI, under Section 324/34 PPC to 5 years RI, were directed to pay an amount of RS. 20,000/- under Section 544-A Cr.P.C. both the sentences were directed to run concurrently. The appellants were tried, alongwith others in a complaint case Exh. PB.
2. Brief facts of the case, as given by the complainant in the complaint (Exh. PB) filed by Muhammad Mahi (PW1), are that his father Noor Ahmad had a dispute of land with Manzoor son of Ganda accused; that a clash had taken place and one Muhammad of Manzoor party was killed; that the complainant and his brother was on bail in the said case; that in the evening of 29.3.2000 appellants along-with acquitted co-accused had been searching for the complainant party and even inquired from Hameed son of Noor and Zakoo; that on the night between 29/30.3.2000, the complainant and his said brother Iqbal were busy in irrigating their land and were carrying a torch with them; that his father Noor Ahmad, brother Muhammad Nawaz and sister Khurshidan Bibi were sleeping in the house and lantern was on; that at about 1 a.m. they returned home and saw that Manzoor armed with .12 bore gun was standing near the cost of his father. Nawaz son of Allah Ditta armed with pistol, Yasin, Nazar, Ahmad and Nawaz raised Lalkara whereupon Manzoor fired with his gun hitting his father; that Nawaz and Mst. Khurshidan tried to ran but Muhammad Nawaz fired with his pistol hitting waist of his brother Nawaz; that the accused decamped from the spot and that his father died at the spot while injured Nawaz was shifted to the hospital. The motive alleged in the complaint was a previous murder case. In the present case, at first, FIR No, 151/2000 was recorded in which accused were never arrested, they were got discharged from the case and then the present complaint was filed on 29.9.2000 while the occurrence had taken place on 30.3.2000.
2. 3.The accused of the complaint case were summoned by the learned trial Court, they denied the charge and claimed trial and the prosecution, in order to prove its case against the accused, produced four witnesses during the trial.
3. 4.Learned counsel for the appellants in support of this appeal submits that it was a night time occurrence and identity of the accused was not possible; that no torch, as mentioned in the FIR, was taken into possession; that no blood stained earth was taken; that even no weapon of offence or anything incriminating was recovered from the accused; that three sets of accused have been mentioned in the complainant; that the Complainant himself got bail before arrest in the instant case; that during five successive investigations appellants were found innocent; that in the investigations held under the orders of the DIG and under the orders of this, Court, the appellants were found to be innocent; that the statement of PW3 is very much relevant; that the prosecution has failed to prove its case against the appellants and that the appellants are entitled to acquittal by this Court. In the support of the submissions made above, learned counsel for the appellants placed reliance on 2003 SCM R 528, 2003 P.Cr.L.J. 1186 and PLJ 1988 SC 543.
4. 5.On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that Muhammad Nawaz (PW-2) is an injured witness in this case whose statement cannot be disbelieved; that there was no question of false identification of the appellants because the parties were known to each other and moon-light was sufficient to identify them; that the appellants had a motive to kill the deceased; that the FIR was lodged with promptitude; that specific roles were assigned to the appellants; that the prosecution has proved its case against the appellants beyond a shadow of doubt and that this appeal is liable to be dismissed.
6. I have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.
5. 7.Occurrence in this case had taken place on the night between 29th/30th March, 2000 at about 1.00 &m., the matter was reported to the police on 30.32000 at 6.50 a.m. which was made subject matter of formal FIR (Exh. PA) while the distance between the Police Station and the place of occurrence was 12' kilometer& In the instant case, besides the appellants, namely, (i) Manzoor son of Ganda and (ii) Nawaz son of Allah Ditta, five other accused persons were also named who are,
(iii) Ahmad & (iv) Nawaz sons of Muhammad, (v) Gul Sher, (vi) Yasin son of Abdur Rehman and (vii)
6. Nazar son of Jan Muhammad. Having dis-satisfied with the investigation in the police case, the complainant filed a Private Complaint (Exh. PB) on 28.9.2000 against the above-mentioned accused persons under Sections 302/324/148/149 PPC in which they were summoned to face, trial.
7. In all seven persons were arrayed as an accused in the complaint case. The present appellants were convicted while rest of the accused persons, which are five in number, were acquitted from the case. Those acquitted accused are, namely, Ahmad & Nawaz sons of Muhammad, Gul Sher, Yasin son of Abdur Rehman and Nazar son of Jan Muhammad. Neither the State nor the complainant party has filed appeal against their acquittal while the complainant filed Criminal Revision No, 387/2003 for enhancement of sentence of the appellants/convicts only Since the appellants were not awarded sentence for the injury caused to Muhammad Nawaz injured PW, so, this Court, vide order dated 5.4.2005, issued notice to the appellants for enhancement of sentence under Sections 324 PPC and 302(c) PPC and for awarding sentence for the injury caused to the victim Muhammad Nawaz. Learned counsel for the appellants Mr. Masood Mirza, Advocate accepted the said notice on behalf of the appellants. Both these matters are being disposed of through this single judgment.
8. 8.To prove its case, the prosecution produced Muhammad Mahi son of Noor Ahmed as PW1. He is also complainant of the case and a real son of deceased Noor Ahmad. Muhammad Nawaz son of Noor Ahmad appeared as PW2. According to the prosecution he received injuries during the occurrence. He is also the real son of the deceased Noor Ahmad and real brother of complainant Muhammad Mahi. The other witnesses of the occurrence, namely, Muhammad Iqbal son of Noor Ahmad, Mst. Khurshid Bibi and Hameed son of Noor were given up by the prosecution being unnecessary and won over by the accused. PW3 is Abdul Razaq Zakoo while Dr. Faqir Muhammad Chaudhry was produced as PW4. The parties are closely related to each other.
9. 9.While appearing before the learned trial Court and making his statement under Section 342 Cr.P., Maznoor appellant, in reply to Question No, 6 "why this case against you and why the PWs deposed against you", stated as under:-- "The complainant Muhammad Mahi is my real nephew and there is dispute of agricultural land between myself and the complainant Muhammad Mahi. In this dispute Muhammad Khan father of my wife was murdered by the complainant and his other companions. A case FIR No, 261 under Sections 302/324 PPC was registered against the complainant and his companions. I was eye- witness in that case. The case was proved and complainant and his brother Muhammad Iqbal were convicted by learned trial Court. Now, they are on bail from the appellate Court/Hon'ble Lahore High Court, Lahore. The complainant wants to take back disputed land. So to pressurize me he got me involved in this present case falsely. The complainant and PW2 are real brothers while no independent witness has deposed against me".
10. 10.While coming to see the quality of evidence produced by the prosecution, I note that it was a night time occurrence which allegedly witnessed in the light of torch. There is also a mention to torch in the FIR but the same was never taken into possession during the course of investigation.
11. The blood-stained earth was also not taken into possession during investigation.
12. 11.Although opinion of the police is not binding on the Courts yet it can be taken into consideration in the peculiar facts and circumstances of the case. The same has become imperative to discuss in the present case. The record shows that the appellants were never arrested by the police during the course of investigation because from the very beginning of the investigation it came to light that the appellants were never, involved in this case. Five investigations were held and in all the successive investigation conducted by different Investigating Officers appellants were found to be innocent. Even during the course of two investigations conducted later on i,e, one under the orders of the DIG and the other under a direction of this Court, the appellants were found not involved in the present case.
13. 12.The prosecution produced Abdul Razzaq @ Zakoo as PW3 in support of its case. An abortive attempt was made by the prosecution by way of production of this witness to connect the appellants with the present case but his statement talks otherwise which reads as under:-- "That about two years ago I was installing a shop of sweet at Maila of Inayat Shah. Two unknown persons had enquired me at about 8/8.30 p.m. about Muhammad Mahi complainant of the present case. I had told to those unknown persons that I do not known anything about Muhammad Mahi complainant of the present case. xxxxxx by defence counsel. Those unknown persons who had enquired me about Muhammad Mahi complainant are not amongst the accused present in the Court. Learned counsel for the accused has also raised objection against statement of his witness that copy of summary statement has not been provided to the accused".
14. 13.In the instant case CW1 is Dilshad Ali Khan DSP. He was cross-examination by both the parties but he remained consistent on his point that he found the appellants to be innocent during his investigation.
15. 14.Nothing incriminating, like the weapon of offence, was recovered from both the appellant& The complainant has admitted during the course of cross-examination that he himself got bail before arrest in this case. The question is why he got pre arrest bail. The answer would that he did so only for the reason because he had apprehension of arrest in this case.
16. 15.It is correct that one of the injured-PW, namely, Muhammad Nawaz appeared as PW3 but mere presence of injuries on the person of a PW is not sufficient to declare him a truthful witness if the same is not believable from the other circumstances available on record.
17. 16.The other important aspect of the present case is that on the same set of evidence five accused persons were acquitted from the case. Neither the State nor the complainant preferred appeal against their acquittal. It appears that they were satisfied from the judgment of acquittal, to their extent," it is true that principle of falsus in uno falsus in omnibus is no more applicable as on following this principle, the evidence of a witness is to be accepted or discarded as a whole for the purpose of convicting or acquitting an accused person, therefore, keeping in view prevailing circumstances, the Courts for safe administration of justice follow the principle of appraisal of evidence i,e, sifting of grain out of chaff i,e, if an ocular testimony of a witness is to be disbelieved against a particular set of accused and is to be believed against another set of accused facing the same trial, then the Court must search for independent corroboration on material particulars as has been held in number of cases decided by the Superior Courts. Reference may be made readily to the case of Sarfraz alias Sappi and others versus The State (2000 SCM R 1758)". It was so held, at page 563, in the case of Iftikhar Hussain and another us. State (PLJ 2004 SC 552).
18. 17.In the same judgment Iftikhar Hussain (Supra), at page 565, while discussing the value of medical evidence, it was held as under:
18. "As far as medical evidence furnished by PWs Dr. Muhammad Sarni Tariq and Muhammad Siddique, is concerned, it being in nature of confirmatory evidence cannot be considered corroborative evidence. There is no other incriminating evidence on record sufficient to support both the eye-witnesses Muhammad Faazil and Asghar All on material points, therefore, for such reason, it would not be safe to rely on their evidence".
19. 18.So far as merits of the case are concerned. In the presence of enmity over a murder in an earlier case between the parties, the sole statements of the closely related witnesses cannot be relied upon. Even the enmity over murder has been admitted by the prosecution not only in the FIR but also in the complaint. Both the eye-witnesses of the present case, namely, PW1 Muhammad Mahi and PW2 Muhammad Nawaz are real sons of the deceased Noor Ahmad. Their statements remained uncorroborated through some independent evidence, so, the same cannot be accredited with truth. Respectfully following the dictum laid down in Iftikhar Husain's case (supra), their testimony cannot stand the test of judicial scrutiny. Even the learned trial Court while concluding the impugned judgment, observed as under: "26. This is admittedly occurrence of night hours. Although there is mention of availability of source of light but inspite of that source of light is artificial. I.Os. have not deposed against the accused.
20. Story of the prosecution is not corroborated by recovery of weapon of offence and in this situation of the matter accused Manzoor son of Ganda and Nawaz son of Allah Ditta deserve for mitigation of punishment".
21. 19.After having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that the prosecution has failed to prove its case against the appellants beyond a shadow of doubt to sustain conviction. The prosecution case is full of doubts and on the basis of such a shaky evidence, which cannot be believed at all, the conviction and sentence awarded to the appellants cannot be maintained. Resultantly, this appeal is allowed, the impugned judgment dated 21.12.2002 passed by Mian Altaf Hussain Mahar, the learned Additional Sessions Judge, Kamalia, District Toba Tek Singh is set-aside and the appellants are acquitted from the case. They shall be set at liberty if not required in any other case. For afore-referred reasons, Criminal Revision No, 387/2003 is dismissed.
22. 20.However, before parting with the judgment I must place on record my views that the learned trial Judge has wrongly convicted the appellants under Section 302(c) PPC because the provision of Section 302(c) PPC shall only attract in a case which would fall within the exceptions of old Section 300 PPC i,e, the ingredients of grave & sudden provocation or the occurrence having taken place at the spur of the moment or the case was of self-defence (if specifically) taken and proved), are missing from the present case. Either the learned trial Judge was to acquit the accused or if there was any mitigation, the conviction was to be under Section 302(b) PPC i,e, if not death then imprisonment for life and not under Section 302(c) PPC and too to 12 years RI as has been done in the present case which sentence is not a legal one. It appears Mian Altaf Hussain Mahar, the then learned Additional Sessions Judge, Kamalia, District Toba Tek Singh has delivered the impugned judgment without application of independent judicial mind and ignoring the mandatory provisions of law and the dictates of the Apex Court of the country. The impugned judgment cannot be considered a well reasoned judgment. Office is directed to send a copy of this judgment to the learned trial Judge at his present place of posting for guidance with a warning to be careful in future coupled with placing on record a copy of the impugned judgment on his CR Dosiers.