' MUHAMMAD FARRUKH MAHMUD, J.---This judgment will dispose of Criminal Appeal No,1105 of 1999 filed by Muhammad Ramzan alias Manna and Ahmad Din alias. Jagga-appellants, who wereconvicted and sentenced by the learned Sessions Judge, Mianwali, vide his judgment dated 25-10-1999 as under:-- ' Death: each on two counts with compensation of Rs,4,00,000 each or in default five years' R.I. Each under section 302(b)/34, P.P.C.
' Murder Reference No,511 of 1999 for confirmation or otherwise of death sentence of appellants and the Criminal Revision No,652 of 1999 filed by Atlaf Hussain Shah/complainant seeking enhancement in the amount of compensation shall also be disposed of through this single judgment.
' It is pertinent to mention here that Ahmad Din expired during pendency of this appeal. So this appeal to his extent has become infructuous and disposed of accordingly.
2. Brief facts of the case, as mentioned in F.I.R. Exh.P.A., arethat on 20-2-1997 at about 1-30 p.m.
Hussain Shah and Muhammad Iqbal Khan, deceased, went to Pipplan on a cycle to fetch medicine.
At about 3/4-00 p.m. Altaf Hussain Shah/complainant and Koura Shah, while proceeding on a tractor saw Hussain Shah and Muhammad lqbal on a cycle towards south of Government High School, Musawali. All of a sudden, Muhammad Ramzan and Ahmad Din, armed with pistols, confronted the deceased persons and intercepted them on the road. They wanted to take away Muhammad Iqbal for sodomy. Hussain Shah intervened whereupon the accused persons flew into rage. Muhammad Ramzan fired hitting Hussain Shah on the chest. Ahmad Din fired second shot striking Muhammad Iqbal on his face and left upper arm. Thereafter, the accused persons fired more effective shots. In the meantime, Haq Nawaz and Jahangir Khan P.Ws. Reached the spot and witnessed the occurrence. The accused persons fled away while firing. Muhammad Iqbal Khan succumbed to the injuries at the spot while Hussain Shah succumbed to the injuries when he was being removed to Hafizwala in an injured condition.
3. After registration of formal F.I.R., the investigation of the casewas taken over by Allah Bakhsh, Inspector/P.W.12. As the complainant brought the dead body of Hussain Shah-deceased, P.W.12 took over the dead body prepared injury statement Exh.P.N. And inquest report Exh.P.O. Thereafter he proceeded to the spot, took over the dead body of Muhammad lqbal, prepared his injury statement Exh.P.P and inquest report Exh.P.Q. On 21-2-1997 at about 12-00 noon, he again reached the spot and collected cycle P-8 and took the same into possession vide memo. Exh.P.D. And also collected blood-stained earth from the place of murder of Hussain Shah vide memo. Exh.P.F. On 9- 3-1997 he arrested Muhammad Ramzan-appellant. One .12-bore pistol P-9 alongwith two live cartridges P-10/1-2 was recovered from his possession and secured the same vide memo. Exh.P.G.
On the same day, P.W.12 arrested Ahmad Din and recovered a 12-bore pistol P-11 along with one live cartridge P.12 from his possession, which was secured vide memo. Exh.P.H. After completion of investigation, the accused were sent up to face trial.
4. At the trial, the prosecution in order to prove its case produced12 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.P.S. And that Serologist Exh.P.T.
Closed its case. The accused in their statements under section 342, Cr.P.C. Pleaded their innocence.
The accused did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial the accused were convicted and sentenced as stated above.
5. After having read the entire prosecution evidence, statements of the appellants under section 342, Cr.P.C. And other relevant material available on record, the learned counsel for Muhammad Ramzan alias Manna-appellant in support of this appeal submits that it appears to be a night time unwitnessed occurrence; that there are material contradictions between the ocular and medical evidence; that the witnesses were not present at the time of occurrence and they were misled by the injury statements prepared by the Investigating Officer; that the delay in conducting the post- mortem also leads to the conclusion that the witnesses were not present; while referring to the documents prepared by the Investigating Officer on the date of occurrence and on the next date of occurrence the learned counsel has submitted that it is manifest that the witnesses were called later on and the story was cooked; that no explanation was available on record as to why the statement of Jahangir, if he was present at the spot, was not recorded on the date of occurrence; that the prosecution case was not free from doubts and the appellant cannot be convicted on the basis of conjectures and surmises.
6. On the other hand, the learned counsel for the complainant has argued that it was a daylight occurrence; that the matter was reported to the police without loss of time; that Altaf Hussain Shah P.W.1 was the natural witness and so is Jahangir because people of the area normally used to visit Musawali; that in the light of circumstances the witnesses rightly presumed the motive; that ocular account is fully supported by the medical evidence, as both the deceased lost their lives due to fire-arm injuries and also supported by the factum that carbines were recovered when the appellant was arrested; that since killing of two persons have been proved by the ocular evidence, therefore, in existence or nonexistence of motive, no concession could be given to the appellant on that score; that contradictions, if any, were very slight in nature and were not material; that substitution is a very rare phenomenon and noother relative would do it; that the prosecution proved its case up to the hilt; th t no mitigating circumstance existed in favour of the appellant; and that the compensation may be suitably enhanced.
7. The learned counsel appearing on behalf of the State has adopted the lire of arguments advanced by the learned counsel for the complainant.
8. We have heard the learned counsel for the parties and gone through the entire record carefully.
The occurrence took place at about 3/4-00 p.m. At Musawali, which was at a distance of 3 Km.
From the Police Station. Altaf Hussain Shah P.W.1, brother of Hussain Shah-deceased, .Resided at a distance of 4/4-1/2 KM from the place of occurrence in Village Tibba Meharban Shah, while Jahangir Khan P.W.2, father of Muhammad Iqbal Khan-deceased, resided in Village Vanota, which was at a distance of 4 Kms. From the spot. As both the P.Ws. Are not residents of the area where the occurrence took place and are related to the deceased, their presence at the time of occurrence needs deeper scrutiny.
9. In order to explain his presence Altaf Hussain Shah/complainant/P.W.1 in F.I.R. Stated that at 1-30 p.m., his brother Hussain Shah-deceased along with his friend Muhammad Iqbal Khan went to Pipplan to get medicine, while at 3/4-00 p.m. He along with Koura Shah, who was not produced, was proceeding towards Pipplan on a tractor when they spotted both the deceased on cycle near Government High School, Musawali. The cycle was being driven by Hussain Shah. No reason was given in the F.I.R. As to why Altaf Hussain Shah was going towards Pipplan. However, in his statement before the trial Court he improved his version by stating that Hussain Shah-deceased had gone to fetch medicine for his ailing mother and he along with Koura Shah went to Pipplan becatise the condition of his ailing mother deteriorated. As already noted above, it was nowhere mentioned in the F.I.R. That Hussain Shah had gone to fetch medicine for his mother. This story was invented to justify the presence of Altaf Hussain Shah at the relevant time. In case mother of the deceased and Altaf Hussain Shah had been ailing then Hussain Shah would not remain at Pipplan till 3/4-00 p.m., he was on a cycle and could easily return within half an hour to 45 minutes. It is also noteworthy that according to F.I.R. Hussain Shah and Muhammad Iqbal Khan both went together on a cycle to fetch medicine, while during his statement Atlaf Hussain Shah stated that Hussain Shah left alone and Muhammad Iqbal Khan joined him later. As far as Jahangir Khan/P.W.2 is concerned, it was only mentioned in F.I.R. That they also reached the spot and saw the occurrence.
In his statement recorded by the learned trial Court he did not give any reason for his being there at the time of occurrence. He simply stated that on the fatefulday he and Haq Nawaz (not produced) were proceeding towards Pipplan and were near High School Musawali when the incident took place.
10. It is very significant to note that though the case was registered at 5-30 p.m. At Police Station Pipplan, which was at a distance of 3 Kms from the place of occurrence but statement of Jahangir was not recorded on that date nor statement of Haq Nawaz was recorded on that day rather the statements of Haq Nawaz and Jahangir were recorded on the second day i.e, 21-2-1997. According to F.I.R. And the statements recorded during trial, both these P.Ws. Stated that both the accused repeatedly fired at the deceased. In F.I.R. It was stated that first fire caused by Muhammad Ramzan hit on the chest of Hussain Shah, while the first fire caused by Ahmad Din hit on the face and left bicep and armpit of Muhammad Iqbal Khan. Thereafter both the accused again fired at both the deceased effectively. In his statement before the trial Court Altaf Hussain Shah deliberately did not state that fire of Ahmad Din had hit on the face of Muhammad Iqbal as well. He only mentioned left upper arm. This dishonest improvement was made as the Doctor did not find any injury on the face of Muhammad Iqbal. However, he stuck to his story of F.I.R., that after causing first fire both the accused effectively fired at both the deceased again. P.W.2 went to a step further and stated that after causing first fire the accused persons reloaded their pistols and fired one shot each, which struck to the deceased persons. He also did not mention the injury on the mouth of Muhammad Iqbal Khan as narrated in F.I.R.
11. Dr. Muhammad Rafiq P.W.9, who conducted the post-mortem on the dead bodies of both the deceased observed that injuries on the persons of Muhammad Iqbal Khan and Hussain Shah, deceased, were the result of one fire each. Injury No,1 on the bodies of both the deceased was entry wound, while the other injuries were exist and re-entry wounds. However, he did not observe any injury on the face of Muhammad Iqbal. It was for that reason that both the P.Ws. Made their improved version during trial by not mentioning the injury on the face.
12. Now the question, which strikes the mind as to why injury on the face of Iqbal was mentioned in the F.I.R. The answer can be found by going through the injury statement Exh.P.E. And the inquest report Exh.P.Q. Of Muhammad Iqbal Khan. It was the Investigating Officer, who had mentioned Injury No,1 on the face of Muhammad Iqbal Khan in the injury statement and inquest report, thus the P.Ws.
Stated accordingly. The conduct of the Investigating Officer Allah Bakhsh, Inspector/P.W.12 is deplorable. According to him, he correctly recorded the F.I.R., and after preparing injury statement as well as inquest reportof Hussain Shah and sending his dead body to mortuary he went to the spot at 7-00 p.m. And found the dead body of Muhammad Iqbal Khan lying there. He prepared injury statement as well as inquest report and sent the dead body of Muhammad Iqbal Khan to the mortuary. However, according to him, he postponed inspection of spot but recorded the statements of eye-witnesses. On the contrary the statement of Jahangir was recorded on 21st and not on 20th. He again went to the spot on 21-2-1997 and took into possession cycle P-8, which was allegedly being used by the deceased. It is totally unbelievable that he could not spot the cycle lying there when he first time visited the place of occurrence. It was on the second day when he collected blood-stained earth from the place of occurrence where the dead body of Muhammad Iqbal Khan was lying. Exh. P. E. And Exh.P.F., memo prepared after collection of bloodstained, reveal that the date was manipulated from 20th to 21st on Exh.P.E. And Exh.P.F. The date was given as 20th, while under the signature of the Investigating Officer the date is manipulated as 20th to 21st. It is also noteworthy that according to Investigating Officer, he inspected the spot on the next day i.e, on 21-2-1997, while the rough site-plan Exh.P.R. Prepared by the Investigating Officer contains the date as 20-2-1997. Similarly the date was also manipulated from 20th to 21st in memo. Exh.P.D.
Relating to recovery of cycle. It appears that the occurrence took place later in the evening and thereafter in order to make it a day light occurrence manipulation were made.
13. The accused were two in number while P.Ws. Were four in number at the time of occurrence.
Altaf Hussain Shah P.W. And Koura Shah were on a tractor but none of the P.Ws. Tried to rescue their nearer relatives or to cause any harm to the accused. P.W.2 admits that after causing first fire the pistols were reloaded. The question is that if the witnesses would have been there, had they allowed the accused to reload their weapons. In view of the medical evidence as well as other circumstances noted above, we are of the opinion that the P.Ws werenot present at the time of occurrence.
14. As far as the motive is concerned, it was considered that the motive was presumed on the basis of gestures between the deceased and the accused. The recoveries of weapons also are of no avail to the prosecution, as the pistols were not sealed. No one from the public was associated with the recovery proceedings and no empty was recovered from the scene of occurrence. The recovered pistols were not sent to the Forensic Science Laboratory and it cannot be said whether the same were in working condition or not. The calibre of the pistols was also not described in the F.I.R. At all.
15. The upshot of the whole discussion is that we are of the considered opinion that the prosecution case is replete with doubts.
' Hence, extending benefit of doubt to Muhammad Ramzan alias Manna-appellant we allow this appeal and set aside the judgment passed by thelearned trial Court. Muhammad Ramzan alias Manna is acquitted of all the charges. He be released from Jail forthwith, if not required in any other case. Murder Reference is answered in the negative. Death sentence is not confirmed.
16. Since we have acquitted Muhammad Ramzan alias Manna, criminal revision seeking enhancement in the amount of compensation is dismissed.