1. Kh. Muhammad Sharif, J.--This judgment will dispose of Criminal Appeal No, 121 of 2000 filed by Muhammad Bostan, Ghulam Shabbir, Tanvir Akhtar, Sultan Khan and Zahoor Akhtar, appellants who were convicted and sentenced by learned Additional Sessions Judge, Rawalpindi vide judgment dated 1.4.2000 as under: Muhammad Bostan and Ghulam Shabbir Death on two counts and to pay Rs, 50,000 each, in default six months R.I. under Section 302(b)/149 PPC and Three years RI each under Section 148 PPC.
2. Tanvir Akhtar, Sultan Khan and Zahoor Akhtar Imprisonment for life and to pay compensation of Rs, 50,000/-each, in default six months RI under Section 302(b)/149 PPC and Three years RI each under Section 148 PPC.
3. The benefit of Section 382-B, Cr.P.C. was also extended in favour of convict appellants.
4. Murder Reference No, 202 of 2000 for confirmation or otherwise of death sentence of convict appellants shall also be replied through this single judgment. Criminal Revision No, 66 of 2000 for enhancement of sentence of life convicts shall also be disposed of alongwith the appeal of convict appellants.
5. 2.Occurrence in this case had taken place at 5 p.m. on 20.2.1997 within the revenue estate of village Sahal, at a distance of 11 kilometers from Police Station Chauntra District Rawalpindi while the matter was reported to the Police by Muhammad Khan at 6.30 p.m. on the same evening at Adda Sahal through written complaint Ex. PL and formal FIR Ex. PL/1 was recorded by Khadim Hussain ASI at 7.30 p.m.
6. 3.Briefly stated the facts of the case are that on 20.2.1997 at 1 a.m. the complainant alongwith Karamdad, Nawab, Ghulam Mehboob sons of Bahadar Khan, Muhammad Amin and Abdul Ghafoor sons of Sikandar Khan went to village Rajar to attend the funeral prayer of one Malik Fazaldad. After attending the funeral ceremony at graveyard Rajar, they straightaway started coming back towards village Sahal. Both Muhammad Amin and Abdul Ghafoor were going about 100 yards ahead of them. At about 5 p.m. when the complainant and others reached near Zayarat Baba Gorala Sarkar in the area of village Sahal, Tanvir, Shabbir and Zahoor accused armed with .12 bore guns while Bostan and Sultan accused armed with hatchets came from behind the Darbar and shouted Lalkara addressing Muhammad Amin and Abdul Ghafoor that they would not leave them alive. The accused Tanvir fired a shot with his .12-bore gun, which landed on the left hand of Abdul Ghafoor. The second shot was fired by Shabbir accused, which hit Abdul Ghafoor on the left side of his chest. Abdul Ghafoor fell down. The accused Sultan and Bostan gave repeated hatchet blows on the head of Muhammad Amin who also fell down on the ground. Thereafter, accused Shabbir, Tanvir and Zahoor gave butt blows to. Muhammad Amin which landed on his head, face and left arm. On the hue and cry of the complainant party, the accused fled away from the spot.
7. Muhammad Amin and Abdul Ghafoor succumbed to their injuries at the spot.
8. The motive alleged was that about 8/9 years back, Muhammad Amir, brother of Tanvir and Shabbir accused was murdered and Muhammad Amin (now deceased) was challaned in that case but was ultimately acquitted by the Court and due to this enmity, all the five accused with common object murdered Muhammad Amin and Abdul Ghafoor.
5. Inspector Ghulam Murtaza (PW.11) took up the investigation. After registration of the case, he went to the place of oceurrence, inspected the site, secured blood stained earth from two places vide memos. Ex. PG and Ex. PH, also collected broken pieces of butt of the gun vide memo Ex. PM, un scaled site-plan was Ex. PN and on 9.3.1997 arrested all the five accused. During the physical remand, on 16.3.1997, Shabbir accused got recovered a .12 bore gun (without butt) which was taken into possession vide memo Ex. PJ. Bostan accused also got recovered hatchet, which was secured, vide memo Ex. PK. After completion of investigation, as some of the accused were found innocent, as such, cancellation report was submitted but the learned Magistrate did not agree with the opinion of the Police and finally the challan was submitted in Court.
9. 6.At the trial, prosecution in order to prove its case produced 11 witnesses in all. Then the learned DDA tendered in evidence report of the Chemical Examiner (Ex. PO), report of the Serologist (Ex. PP), report of the Forensic Science Laboratory (Ex. PQ) and closed the case of prosecution. The accused in their statements under Section 342 Cr.P.C. pleaded false implication. ASI Majid appeared as CW.1.
10. After conclusion of the trial, the accused were convicted and sentenced as stated above.
11. 7.Learned counsel for the appellants after having read the prosecution evidence submitted that FIR was recorded after due deliberation and consultation, elaborating the above submission, he submitted that in column of brief facts of inquest reports of both the deceased, the number of the FIR was mentioned when according to case of the prosecution, the matter was reported at the spot and at the time of preparation of the inquest reports, number of the FIR had not been received from the Police Station. Further submitted that the eye-witnesses were not present at the spot, they were later on imported and made eye-witnesses. Added that Inspector Ghulam Murtaza (PW. 11) admitted during cross-examination that when he reached village Sahal, there were announcement on loudspeaker of the mosque that two persons have been murdered and some body should come forward to identify them and that had the eye-witnesses been present at the spot, there could have been no such announcement on the loudspeaker of the mosque. Also submitted that the Investigating Officer remained present at the spot for 30/35 minutes and he took the dead bodies alongwith him to the Police Station.
12. Learned counsel next argued that Khalid Mahmood HC (PW.7) had admitted during cross- examination that he did not visit the place of occurrence on the day of occurrence. He submitted that both the parties are inimical towards each other and there is no independent corroboration to the tainted testimony of the eye-witnesses.
13. So far as recovery of pieces of but of gun are concerned, the witnesses are Abdul Karim and Abdur Rahim, both uncles of two deceased. According to learned counsel, Abdul Rahim PW did not utter a single word about the recovery while the prosecution gave up Abdul Karim PW. He maintained that no empty was recovered from the spot. The hatchets allegedly recovered on the pointation of the appellants were not stained with human blood. Added that no recovery was affected from the appellants except Ghulam Shabbir and Bostan.
14. Learned counsel laid emphasis on the point that mere corroboration of ocular account by medical evidence is no avail to the prosecution when both the parties were admittedly inimical towards each other. Elaborating his submission, learned counsel submitted that as far as injuries on the person of Muhammad Amin deceased are concerned, the ocular account does not corroborate the medical evidence and the eye-witnesses were confronted with their statements recorded under Section 161 Cr.P.C. Were submitted that so far injury ascribed to Tanvir Akhtar convict is concerned, that was a stray pellet and the doctor has also stated that injury on the chest and thumb of deceased Abdul Ghafoor could have been caused with one shot. It was the case of defence that according to site-plan, distance between assailants and the deceased was 30 feet when according to the doctor who conducted post-mortem examination on the dead body of the deceased found that there was burning on sweater and shirt of the deceased. Learned counsel submitted that now the Wah Factory prepares the cartridges in which wads are not used but a plastic container (Kupi) is put in the cartridge which contains the pellets and at the time of firing, pellets go out of the cartridges and the same pellets have been recovered from the dead body confirming that it was a short from a very close range.
15. To create dents in the prosecution. story learned counsel for the appellants submitted that according to Investigating Officer (PW.11) the accused were arrested on 9.3.1997 while PW.9 Ghulam Mahboob had admitted in his cross-examination that three days after the occurrence, the accused were present in the Police Station.
16. According to learned counsel, there are material contradictions in the statements of Khuda Dad and Ghulam Mahboob PWs. 9 and 10, Ghulam Mahboob (PW. 10) is permanent resident of Rawalpindi which is 50 miles away from village Sahal, that PW.9 could not give the correct name of the deceased whose funeral he came to attend to village Sahal and that during the course of investigation, Sultan and Zahoor accused were found innocent, they were produced before the Duty Magistrate as the Area Magistrate was on leave, the Duty Magistrate directed the Police to submit the discharge report before the Area Magistrate and the Area Magistrate, when discharge report was submitted before him, did not agree with the Police on the ground that the accused have already been sent to judicial lock up.
17. Learned counsel argued that there is lot of differences between the site-plan prepared by the Investigating Officer without scale and the site-plan prepared by the draftsman on the pointation of the eye-witnesses which also negates the prosecution stery.
18. Concluding his submissions, learned counsel for the appellants submitted that the prosecution has miserably failed to prove its case against the appellants and they are entitled to acquittal.
8. Learned AAG controverting the submissions made by learned counsel for the appellants submitted that it was a broad-day-light occurrence, the parties were known to each other, so there was no question of mistaken identity, specific roles were attributed to the convict appellants, the eye-witnesses were present at the spot, the ocular account is corroborated by medical evidence and recovery of gun from Ghulam Shabbir appellant also lends support to case of the prosecution and recovery of gun alongwith pieces of butt is sufficient corroboration to the ocular account furnished by independent eye-witnesses. According to learned law officer, a hatchet was recovered from Bostan Khan appellant and any clerical error in the column of brief facts of the inquest report would not be a ground for acquittal of the convicts. To support his submissions, learned AAG has relied upon 2001 SCM R 241, 2002 SCM R 1842 and 2004 SCM R 1703, Learned law officer also made an oblique reference to the fact that case against Bostan and Ghulam Shabbir convicts are corroborated from many sources. As far as motive is concerned, it was submitted that now it was the turn of the appellants to take the revenge of murder of their brother Muhammad Ameer at the hands of the present complainant party. In nutshell, he has supported the impugned judgment of the trial Court.
19. 9.Learned counsel for the complainant toed the line of learned AAG with further addition that Khalid Mahmood PW,6 had made concession in favour of the convicts and his statements is not a substantial piece of evidence to record finding of acquittal in favour of the appellants. He has relied upon PLD 1972 SC 77. According to learned counsel, though there existed previous enmity between both the parties but that cuts both ways and there was no suggestion whatsoever by the defence counsel as to why the appellants were falsely roped in the case.
20. 10.We have heard learned counsel for the parties at length and have gone through the impugned judgment and the prosecution evidence. According to FIR, the occurrence had taken place at 5 p.m. on 20.2.1997 in village Sehal District Rawalpindi. It was the chilliest season of the winter and in the month of February; the maghrab prayer takes place 4.45 or 5 p.m. The FIR was not recorded in the Police Station but outside the Police Station at adda Sehal at 6.30 p.m. though the distance between the place of occurrence and the Police Station was 11 miles. In all, five accused were named in the FIR. The role of Tanvir convict- appellant was that he while armed with a .12 bore gun fired a shot, which hit on the thumb of Abdul Ghafoor (deceased), Ghulam Shabbir was also ascribed the role of firing a shot on the chest of Abdul Ghafoor deceased. Bostan and Sultan armed with hatchets gave injuries with their hatchets on the head of Muhammad Amin (deceased). When Amin deceased was lying on the ground, Shabbir, Tanvir and Zahoor gave butt blows on the person of Amin, deceased.
21. Dr. Muhammad Imdad (PW.3) conducted post-mortem examination on the dead bodies of both the deceased at 9 and 10 a.m. respectively on 21.2.1997. The duration given by the doctor between the injuries and death was immediate while between death and post-mortem was 24 hours. As far as injuries on the ,person of Abdul Ghafoor deceased are concerned, the injury on the chest showed blackening on the sweater and shirt of the deceased and the doctor had 'stated that the shot was fired from a very close range while the distance given by the draftsman between the assailants and the deceased was 30 feet. A plastic container (kupi) was also recovered along-with pellets from the chest of Abdul Ghafoor deceased. The injury on the thumb of Abdul Ghafoor deceased was of a stray pellet and the doctor during cross-examination had also admitted the same. So far as injuries with hatchets and butt on the person of Muhammad Amin deceased are concerned, there are material contradictions in the statements of Khuda Dad and Ghulam Mahboob, the eye-witnesses.
22. It is to be noted that according to "Karwari Police" of the FIR, Ex. PL, it was mentioned by Inspector Ghulam Murtaza/Investigating Officer that he recorded the same at adda Sahal and sent the complaint to Police Station through Khalid Mahmood, HC, PW.7 for registration of formal FIR though the distance between the adda Sahal and the Police Station was 11 miles. We fail to understand how the number of the FIR was given in the column of brief facts of the inquest report when the same was prepared at the spot and till then no case was registered. In cross-examination, Khalid Mahmood HC (PW.7) admitted that he was not present at the place of occurrence on the day of occurrence, he did nothing in this case and never proceeded from the P.S. to the place of occurrence.
23. Both the eye-witnesses are closely related to the deceased. There was previous background of enmity between the parties. No independent witness was produced to prove the story set up by the prosecution. Even the complainant (PW.9) who had alleged in the FIR that he alongwith others had gone to village Sehal to attend the funeral ceremony of Fazal Dad but before the trial Court he could not give the correct name of the deceased whose funeral he had gone to attend in village Sahal rather gave the name of Khuda Pad. He had also admitted in cross-examination that Ghulam Mahboob PW.10 is permanent resident of District Rawalpindi and he lived alongwith his parents at Rawalpindi when place of occurrence is at a distance of 50 kilometers from Rawalpindi.
24. Ghulam Mahboob while appearing before the trial Court as PW.10 and his statement was recorded after the statement of Khuda Dad `complainant PW.9, tried to conceal this fact and stated that in fact he was resident of Sehal and not of Rawalpindi.
25. There are also material contradictions in the statements of PWs. 9 and 10 about their gathering at the house of Khuda Dad PW.9 who stated that both the deceased, he and Ghulam Mahboob, Karim Dad (given up) together started from their house where they got' information about the death of Fazal Dad while Ghulam Mahboob PW.10 deposed that a day prior to the occurrence he went to the house of Fazal Dad, remained their whole of the night in the house of the complainant and on the next day they went to attend the funeral ceremony together.
26. Another important fact of the case is that there is lot' of different between site-plans, one prepared by the Investigating Officer at his first visit of the place of occurrence and the other prepared by the draftsman on the pointation of the eye-witnesses which also creates doubts about the veracity of the prosecution story.
27. Khuda Dad PW.9 deposed before the trial Court that he had seen all the accused in the Police Station three days after the occurrence while the Police had shown arrest of the accused on 9.3.1997.
28. The recovery of pieces of butt of gun remained unproved for the reason that one of the recovery witness namely Abdul Rahim real uncle of the deceased did not utter a single word about the 'recovery of pieces of butt while the other witness namely Abdul Karim was given up by the prosecution.
29. Ghulam Shabbir, while in Police custody, got recovered .12 bore gun on 16.3.1997 and the same was received in the office of the Fire-arms Expert on 4.4.1997 while the pieces of the butt which were taken into possession from the spot by the Police on the day of occurrence were never sent to the Fire-arms Expert and remained with the Police though the Police had sent the blood stained earth for analysis. The hatchet recovered on the pointation of Bostan appellant was not found to be blood stained as per report of the Serologist.
30. There is still another very important factor and that's statement of Inspector Ghulam Murtaza PW.11, which has fully demolished the case of prosecution. He during cross-examination stated that when he reached at the spot, an announcement was being made on the loudspeaker of the village mosque that two persons have been murdered and some body should come forward to identify them.
31. Sultan and Zahoor appellants were found to be innocent by the Police; discharge report was prepared, presented before the Area Magistrate who did not agree with the Police report.
32. The law is now settled that when the parties are pitched against each other, to award or maintain conviction on a capital charge, there must be some independent corroboration and one tainted piece of evidence cannot corroborate other tainted piece of evidence.
33. After having adjudged the prosecution case from all angles, we are-not satisfied that the prosecution has been successful in proving its case against the appellants rather the defence has created dents in the prosecution story. The law of the land is that when benefit of doubt arises, that must be given to the accused ungrudgingly. Applying the said principle of law, we accept the appeal filed by the convict appellants, set aside the conviction and sentence recorded against them by the trial Court vide impugned judgment dated 1.4.2000 and acquit the appellants from the charge. Resultantly, the death sentence of Muhammad Bostan and Ghulam Shabbir appellants is not confirmed and Murder Reference is replied in the Negative. All the convict appellants are in jail. They shall be released forthwith, if not required to be detained in any other case. Criminal Revision No, 66 of 2000 filed by the complainant is dismissed.