JUDGMENT ASIF SAEED KHAN KHOSA, J.- Muhammad Javed appellant was convicted for an offence under Section 302(b), PPC vide judgment dated 29.8.2000 rendered by the learned Additional Sessions Judge, Wazirabad, District Gujranwala and was sentenced to death and to pay a sum of Rs. 50,000/- to the heirs of Muhammad Arshid deceased by way of compensation under Section 544-A, Cr.P.C, or in default of payment thereof to undergo simple imprisonment for six months.
Through the same judgment the learned Trial Court had acquitted the appellant's brothers and co- accused namely Muhammad Sohail and Uaqat AN. Muhammad Javed appellant has challenged his conviction and sentence before this Court through the present appeal which has been heard by us alongwith Murder Reference No. 593 of 2000 seeking confirmation of the sentence* of death passed by the learned Trial Court against him. We propose to decide both these matters together through the present consolidated judgment.
2. According to the prosecution's case unfolded in the F.I.R. Muhammad Boota complainant was a resident of village Ghakka Mitter situated within the area of Police Station, Sohdra, District Gujranwala and was a barber by profession. On 6.10.1998 the complainant's mother namely Mst.
Salesman Bibi and the complainant's father namely Muhammad Arshid had gone to the house of one Younis Masih in order to purchase speakers for their 'deck'/music system. On that day the complainant was at home and the complainant's paternal uncle namely Talib Hussain and the complainant's maternal uncle namely Ghazanfar Ali were also available at the complainant's home as they had come to meet the complainant's parents. The complainant's parents became late in returning home and, therefore, the complainant and his paternal uncle and maternal uncle went out looking for them and when they reached opposite the house of one Muhammad Riaz taili they saw the complainant's parents coming their way. At that time it was 8.0 p.m. And a tube-light was available on the outer wall of the house of Muhammad Riaz taili . The said night was a moonlit night. Suddenly Muhammad Javed appellant emerged there and started firing indiscriminately at the complainant's father namely Muhammad Arshid and resultantly the complainant's father received fire-arm injuries on his chest and other parts of his body. Upon receipt of those injuries the complainant's father deed at the spot. The said incident had been witnessed by the complainant, his mother namely Mst. Saleeman Bibi, his paternal uncle namely Talib Hussain and his maternal uncle namely Ghazanfar Ali. Soon thereafter the appellant decamped from the spot., it was alleged in the F.I.R, that Muhammad Javed appellant had murdered Muhammad Arshid deceased upon an instigation of the appellant's brothers and co-accused namely Muhammad Sohail and Uaqat Ali.
The motive set up in the F.I.R, was that the appellant and his brothers had committed trespass and had launched a murderous assault upon Muhammad Arshid deceased in the past and an F.I.R, had been lodged by Muhammad Arshid deceased against them in that regard and it was on the basis of that grievance that Muhammad Javed appellant had murdered Muhammad Arshid deceased upon the instigation of his brothers and co- accused namely Muhammad Sohail and Liaqat Ali.
Leaving the dead-body of Muhammad Arshid deceased in the care of his mother namely Mst.
Saleeman Bibi and his maternal uncle namely Ghazanfar Ali, Muhammad Boota complainant and his paternal uncle namely Talib Hussain proceeded to report the matter to the police but on their way they met a police officer before whom the complainant made a statement in respect of the present incident at 9.00 p.m. On the basis of that statement of the complainant formal F.I.R. No. 222 was subsequently registered at Police Station, Sohdra, District Gujranwala at 9.15 p.m. On 6.10.1998 for an offence under Section 302, PPC. Read with Sections 34/109,
3. The investigation of this case was conducted by Muhammad Malik, SI (PW.10) who inspected the place of occurrence, prepared an injury statement and an inquest report, secured blood-stained earth, prepared a rough site- plan of the place of occurrence, dispatched the dead-body to the mortuary for autopsy and recorded the statements of witnesses. 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 appellant and his co-accused were arrested and a pistol .30 bore was recovered from the appellant's possession. 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 two heads under Sections 302/34 and 109, PPC against the appellant and his co- accused to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced ten witnesses in support of its case against the appellant and his co-accused. Muhammad Boota complainant (PW.2), Ghazanfar Ali (PW.3) and Mst. Saleeman Bibi (PW.3) furnished the ocular account of the incident in issue and they also deposed about the motive. Ghazanfar Ali (PW.3) also stated about recovery of a pistol .30 bore from the appellant's possession during the investigation of this case. The medical evidence was provided by Dr. Muhammad Arshid Sian (PW.9). Muhammad Malik, SI (PW.10) stated about the various steps taken by him 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 appellant and his 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. Upon conclusion of the trial the learned Trial Court acquitted the appellant's co-accused namely Muhammad Sohail and Uaqat Ali but after finding the prosecution's case against Muhammad Javed appellant Jo have been proved beyond reasonable doubt it convicted and sentenced him as mentioned and detailed above. Hence, the present appeal and the connected Murder Reference before this Court.
8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance, it has been argued by the learned counsel for the appellant that the eye-witnesses produced in this case by the prosecution were related, chance and inimical witnesses who had failed to receive any independent corroboration or support and, thus, the prosecution had remained unable to prove its case against the appellant beyond reasonable doubt. As against that the learned counsel for the State have maintained in unison that the prosecution had succeeded in establishing the appellant's guilt to the hilt and, therefore, his conviction and sentence recorded by the learned Trial Court do not warrant any interference by this Court.
9. After hearing the learned counsel for the parties and going through the record of this case with their assistance we have straightaway observed that Muhammad Javed appellant was not directly and personally concerned with the motive set up by the prosecution. The statements made before the learned Trial Court by Muhammad Boota complainant (PW.2), Ghazanfar Ali (PW.3) and Mst.
Saleeman Bibi (PW.4) show that in the earlier incident which had resulted in registration of a criminal case it was the appellant's brothers and co-accused namely Muhammad Sohail and Uaqat Ali who had been alleged to have trespassed into the house of Muhammad Arshid deceased and they had allegedly launched a murderous assault upon him. The present appellant was not an accused person in the said case, ithad been alleged in the present case that the above-mentioned brothers and co-accused of the appellant had instigated the appellant to commit the murder of Muhammad Arshod deceased and nobody had uttered even a Single word in the present case regarding any personal motivation of the appellant to do away with the deceased, it has significantly been noticed by us that no evidence whatsoever regarding hatching of any conspiracy between the appellant and his brothers and co-accused namely Muhammad Sohail and Uaqat Ali had been brought on the record of the present case, it is also not disputed that both the said brothers and co-accused of the appellant had been acquitted by the learned Trial Court and their acquittal had not been challenged by the complainant party or the State before this Court. On account of acquittal of the said co- accused and in the absence of any personal motive of the appellant against the deceased it can confidently be held by us that the appellant had no ostensible reason to murder Muhammad Arshid deceased, it is of critical importance to mention here that it had been maintained by the appellant in his statement recorded under Section 342, Cr.P^C. That a compromise had been effected in the criminal case between Muhammad Arshid deceased and the appellant's brothers and co-accused namely Muhammad Sohail and Liaqat Ali and this fact had been acknowledged and admitted by Mst.
Saleeman Bibi (PW.4) before the learned Trial Court who had stated that it was correct that the complainant party had entered into a compromise with the appellant's brothers in the above- mentioned criminal case forming the motive in -the present case and in furtherance of that compromise a sum of, Rs. 10,000/- had been received by the complainant party from the appellant's brothers, In these circumstances the motive set up by the prosecution was non-existent at the time of the present occurrence. No other reason had even been suggested before the learned Trial Court as to why the appellant would be interested in killing the deceased.
10. The occurrence in this case had taken place during a night. Although the F.I.R, registered in respect of the said incident had been shown to have been lodged at the Police Station yet the Investigating Officer namely Muhammad Malik, SI (PW.10) had stated before the learned Trial Court that the statement of the complainant had been recorded by him at the place of occurrence. No weapon of offence had been specified in the F.I.R, and except for the chest of the deceased no other locale of the injuries sustained by the deceased had been specified therein. Muhammad Boota complainant (P.W.2) and Ghazanfar Ali (P.W.3) had clearly stated before the learned Trial Court that there was no other house situated - near the place of occurrence except that of Muhammad Riaz taili and that none from the public had been attracted to the place of occurrence during the alleged incident. Even the above- mentioned Muhammad Riaz taili had not been joined in the investigation of this case, In these circumstances we have put ourselves to caution vis-a-vis the claim of the eye- witnessed regarding their presence at the scene of the crime at the relevant time.
11. According to the prosecution Muhammad Arshid deceased and his wife namely Mst. Saleeman Bibi (P.W.4) had gone to the house of one Younis Masih on the day of occurrence in order to purchase speakers from him for their music System. Muhammad Boota complainant (P.W.2) had not seen any speaker being carried by his parents at the time of the present occurrence but Ghazanfar Ali (P.W.3) had claimed that at the relevant time the deceased was carrying speakers on his shoulder. Mst. Saleeman Bibi (P.W.4) had, however, stated that she and her husband were bringing a 'deck' at that time and she had not mentioned any speaker, it is admitted at all hands that no speaker or 'deck1 (music system) had been recovered from the place of occurrence nor the same had been pointed out to the Investigating Officer at the time of his first visit to the spot, In these circumstances we have entertained serious doubts about truthfulness of .The reason stated by the prosecution for the deceased's presence at the spot at the relevant time. Apart from that Ghazanfar Ali (P.W.3) had maintained that he had got married about 3/4 months ago and his sister namely Mst. Saleeman Bibi (P.W.4) had invited him to her house on the fateful day *and during his presence at that house Muhammad Arshid deceased's brother namely Talib Hussain P.W. Had also come to that house after coming to know of the invitation to Ghazanfar Ali (P.W.3). Ghazanfar Ali (P.W.3) happened to be a brother of Mst. Saleeman Bibi (P.W.3) happened to be a brother of Mst.
Saleeman Bibi (P.W.4) and, hence, a brother-in-law of Muhammad Arshid deceased whereas Talib Hussain P.W. Was a real brother of the deceased. We have found it to be rather strange that if such close relatives of the deceased and of Mst. Saleeman Bibi (P.W.4) were available in the house of Muhammad Arshad deceased and Mst. Saleeman Bibi (P.W.4) and they were there because of an invitation then why did the deceased and Mst. Saleeman Bibi (P.W.4) left the said relatives at their house and went to purchase speakers for their musical system on such an occasion. No urgency in that regard had been established by the prosecution. Even otherwise if at all some speakers were to be purchased by Muhammad Arshid deceased then in ordinary course of things his wife namely Mst. Saleeman Bibi (P.W.4) was not expected to be going with the deceased for the said purchase and that too during a night. For all these reasons the story of the prosecution explaining the deceased's presence at the place of occurrence at the relevant time has been found by us to be quite unbelievable.
12. All the three eye-witnesses produced in this case by the prosecution, i.e. Muhammad Boota complainant (P.W.2), Ghazanfar Ali (P.W.4) and Mst. Saleeman Bibi (P.W.4) were very closely related to Muhammad Arshid deceased and besides being chance witnesses they were also inimical witnesses. Muhammad Boota complainant (P.W.2) was a son of the deceased, Ghazanfar AII (P.W.3) was a brother-in-law of the deceased and Mst. Saleeman Bibi (P.W.4) was the wife of the deceased. The place of occurrence was situated many acres away from the normal places of residence of all these witnesses and, as already observed above, the reason for the presence of the deceased and of these witnesses at the place of occurrence at the relevant time had not been established by the prosecution with any degree of certainty.. According to the F.I.R, itself and also according to the statements of all these witnesses made before the learned Trial Court there was 'enmity' between the parties to this case and, thus, we have felt quite reluctant to place a whole- hearted reliance upon the statements of these witnesses without looking for independent corroboration or support.
13. It has already been discussed by us above that the prosecution had failed to prove the motive set up by it! Although a pistol .30 bore had allegedly been recovered from the appellant's possession during the investigation of this case yet such recovery was legally inconsequential as admittedly no crime empty had been recovered from the place of occurrence so as to connect the recovered pistol with the alleged murder. Instead of providing support to the ocular account the medical evidence produced in the ^pase by the prosecution itself had gone a long way in contradicting and discrediting the eye-witnesses. According to the site-plan of the place of occurrence (Exhibit-PA) prepared at the pointing out of the eye-witnesses the appellant had fired at the deceased from a distance of eight feet and Ghazanfar All (P.W.3) had also stated therefore the learned Trial Court that the distance between the appellant and the deceased on that occasion was 7/8 feet. The postmortem examination report pertaining to the dead-body as well as the statement made before the learned Trial Court by Dr. Muhammad Arshid Sian (P.W.9), however, show that some of the injuries sustained by the deceased had blackening and burning on them, All the learned counsels for the parties appearing before us are agreed on the point that blackening and burning on the injuries was not possible if the deceased had been fired at from a distance of eight feet. We have further noticed that the post-mortem examination of the dead-body was conducted with a significant and noticeable delay which is * generally suggestive of an unwitnessed occurrence wherein time is utilized by the police and the complainant party for procuring and planting bye-witnesses and for cooking up a story of the prosecution.
14. For the reasons recorded above we have found the learned counsel for the appellant to be quite justified in maintaining that the related, chance and inimical eye-witnesses produced in this case by the prosecution had failed to receive any independent corroboration or support and, thus, the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant recorded by the learned Trial Court are set aside and the appellant is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required in any other case.
13. Murder Reference No. 593 of 2000 is answered in the negative and the sentence of death passed by the learned Trial Court against Muhammad Javed appellant is not confirmed.