' IJAZ AHMAD CHAUDHRY, J.---We, through this consolidated judgment, intend to dispose of Murder Reference No,554 of 2001 sent by the learned trial Court seeking confirmation of death sentences awarded to Nusrat son of Shameer, Mumtaz son of Walidad, Sultan son of Noor and Lal son of Ameer convicts-accused and Criminal Appeal No,1038 of 2001 filed by the above-said convicts- appellants together as both these matters have arisen from the same judgment dated 5-7-2001, delivered by the learned Additional Sessions Judge, Shorkot District Jhang whereby all the above- said four appellants have been convicted under section 302(b), P.P.C. And sentenced to death as Tazir for committing Qatl-i-Amd of Jewan deceased. The above-mentioned accused-appellants were also directed to pay Rs,1,00,000 each to the heirs of the deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to further undergo six months S.I.
02. Concisely the facts of the prosecution case set up in the F.I.R. (Exh.PF/1) got lodged by Zahoor Hussain complainant (P.W.4) are that on 6-7-2000 at evening, Zahoor Hussain complainant (P.W.4) along with his brother Abdul Shakoor, his father-in-law Jewan deceased and Muhammad Aslam (P.W.5) were returning after purchase/sale of animals from the Cattle Mandi and reached near Pull-25 at about 6-00 p.m. Jewan deceased was walking ahead of them at a short distance. Within their view, Nusrrat, Sultan, Mumtaz and Lal accused-appellants while armed with hatchets came out from the crop of Chry and raised Lalkara to Jewan deceased that they had come and he would not be spared. Due to fear, Jewan deceased tried to run away but at a short distance, all the four accused-appellants encircled him. Nusrat accused-appellant inflicted number of injuries with hatchet upon Jewan deceased on his right shoulder. Sultan accused-appellant also inflicted number of injuries with hatchet on the left thigh of Jewan deceased. Similarly, Mumtaz also gave number of injuries with hatchet upon the left ankle of Jewan deceased whereas Lal accused- appellant caused many injuries with hatchet upon the right thigh and ankle of Jewan deceased whereupon Jewan deceased fell down. All the four accused-appellants caused more injuries to Jewan deceased who sustained the same on his nose, left leg and left arm. The accused- appellants then asked the P.Ws. Not to come near otherwise they would also be deprived of their lives. Due to fear they could not interfere. The accused-appellants fled away from the spot while brandishing/hoisting their hatchets after committing the occurrence. The complainant with the help of other P.Ws. Took Jewan deceased to hospital but he succumbed to the injuries as soon as they reached the hospital.
3. The motive behind the occurrence was alleged to be that accused-appellants had a suspicion that Muhammad Afzal son of Jewan deceased had illicit intimacy with their girl. A week prior to the occurrence an altercation took place between the accused-appellants and the deceased. The accused-appellants due to that grudge with their common intention and object committed Qatl-i- Amd of Jewan deceased.
4. The investigation of this case was conducted by Muhammad Naseeb Dogar, Inspector/S.H.O.
(P.W.9) and during the investigation the dead body of the deceased was inspected, injury statement and inquest reports were prepared,, statements of the witnesses under section 161, Cr.P.C. Were recorded, the place of occurrence was inspected, blood-stained earth was secured, rough site-plan of the place of occurrence was prepared, the dead body of the deceased was sent to the mortuary for autopsy, the last-worn clothes of the deceased were received, a formal site- plan of the place of occurrence was got prepared, the appellants were arrested on 18-7-2000, recovery of hatchets from the appellants possession was effected and after completion of the investigation report under section 173, Cr.P.C. Was submitted in the Court.
5. The learned trial Court after supplying copies of the documents required under section 265-C, Cr.P.C. To the appellants framed the charge against them on 8-9-2001, under section 302/34, P.P.C.
To which they pleaded not guilty and claimed to be tried.
6. The prosecution in order to prove the guilt of the appellants produced as many as ten witnesses.
The ocular account of the incident in question was furnished by Zahoor Hussain complainant (P.W.4) and Muhammad Aslam (P.W.5) who also deposed about the motive while the medical evidence was provided through the statements of Dr. Mazhar Abbas (P.W.8). The investigation of this case was conducted by Muhammad Naseeb Dogar, Inspector/S.H.O. (P.W.9) who had stated about the various steps taken by him during the investigation of this case. The other witnesses are of formal nature.
7. In their statements recorded under section 342, Cr.P.C. The appellants had denied the allegations levelled against them by the prosecution and professed their innocence. However, to a question that "Why this case registered against you and why the PWs. Deposed against you?" Nusrat appellant replied in the following terms:-- "The deceased was coming back all alone from Cattle Mandi and had huge amount with him after selling cattle heards. It was after Maghrib prayer and there was sufficient darkness. He was robbed of his money and when he resisted he was given many blows by the unknown culprits. The incident was unseen but the deceased was 'still alive when Abid Hussain Dawana and Ch. Muhammad Hussain reached the place of incident. They took the deceased to Tehsil Headquarter Hospital Shorkot in serious condition where Jewan deceased expired. Zahoor Hussain was summoned from Kakki-Nau his Native village. Police and complainant party fabricated the present version added a false motive and after visiting the spot, the case was registered against us due to previous enmity and suspicion. All the witnesses are friends and relatives inter se and are my staunch enemies. The police challaned us under the influence of Sajj ad Hussain Dawana, a dominant Zamindar and political figure of the area who was helping the complainant party. The recoveries are false. I am innocent."
' The same reply was endorsed by rest of appellants. However, they had not opted to make statement under section 340(2), Cr.P.C. But they produced Khadim Hussain, Head Clerk Tax District Council Khanewal, as D.W.1 in their defence.
8. The learned trial Court, after hearing the arguments of the learned counsel for the parties, had passed the impugned judgment of conviction and sentence against the appellants as detailed in para. Ante. Hence, both these matters before this Court.
9. The learned counsel for the appellants contends that Zahoor Hussain complainant (P.W.4) was a chance witness who had tried to explain his presence at the spot by saying that he had gone to Cattle Mandi; that according to him he was not aware of the fact that Cattle Mandi was being organized by the District Council and any fee was payable in this regard; that had the deceased and other witnesses gone to Cattle Mandi, they would have known that tax was payable to the District Council on the sale of the cattle, but on the other hand, both the eye-witnesses had showed ignorance about issuance of receipt by the organizer of the Cattle Mandi; that they did not show any documentary evidence in support of pleas raised by them; that on the other hand D.W.1 Khadim Hussain, official of District Council who had brought the record fully explained that fee was payable on the sale of the animals in the Cattle Mandi which was organized by the District Council; that complainant and other witnesses were not present at the spot and their conduct was not natural as admittedly the occurrence had taken place near the house of the deceased, but no efforts were made by the witnesses to bring any weapon from the house of the deceased or to restrain the appellants from causing injuries which shows that they were not present at the spot; that.Muhammad Aslam (P.W.5) was jointly cultivating the land with the deceased and he was also the interested witness; that name of the girl with whom Muhammad Afzal son of the deceased was alleged to have illicit relations had not been mentioned and as such the motive could not be proved; that injuries on the person of the deceased were on the legs and arms, which appear to have been caused only in order to harm him and not to murder him; that hatchets were shown to have been recovered from the residential houses which were not exclusively owned and possessed by he appellants; that the interested witnesses were joined in the recovery proceeding and no independent persons including Lamberdars and other respectable of the locality had been joined; that the prosecution has miserably failed to prove the case against the appellant beyond any shadow of doubt; that post-mortem examination had been conducted at 6-30 a.m. While the incident had taken place at 6-00 p.m. On the preceding evening, while according to the police official who had taken the dead body to mortuary had stated that post-mortem examination was conducted at 10-00 a.m., so the postmortem examination was conduced with the delay and F.I.R.
Was not registered with promptitude as claimed by the prosecution; that the documents were not prepared and the post-mortem examination was conducted with delay; that according to Dr. Mazhar Abbas who had conducted the post-mortem examination on the dead body of the deceased the time between the death and the post-mortem examination was 10/26 hours which means that the deceased was not brought at the mortuary at the time given by the eye-witnesses; that the eye-witnesses had made false statements, who were not present at the spot and that the ocular account was not worthy of reliance being a concocted story. It has, thus, been canvassed by the learned counsel for the appellants that the prosecution had failed to prove its case against the appellants beyond any reasonable doubt entitling them to acquittal by this Court.
10. On the contrary, the learned counsel for the State have vehemently opposed the appeal on the ground that heinous offence had been committed by the appellants; that the F.I.R. Was got registered with promptitude; that no doubt both the eye-witnesses were close relatives of the deceased but they had no motive to falsely implicate the appellants in the present case by letting off the real culprit; that both the eye-witnesses had sufficiently explained their presence at the spot at the time of occurrence; that the eye-witnesses remained consistent on material points regarding the time, place of occurrence and the manner in which the occurrence had taken place; that the medical evidence also supported the prosecution version; that recovery of hatchets which were stained with human blood had also been effected from the appellants and that the prosecution had succeeded in proving the case against the appellants beyond any shadow of doubt, whose appeal may be dismissed.
11. We have heard the learned counsel for the parties and perused the record with due care and caution.
12. The occurrence in the present case was alleged to have taken place on 6-7-2000 at 6-00 p.m.
In the area of Mauza Ghumman Mari towards South 10 k.m. Away from Police Station Shorkot City District Jhang and the matter was reported by Zahoor Hussain (P.W.4) the same night at 8-15 p.m.
While making his statement (Exh.PF) to Muhammad Naseeb Dogar, Inspector/S. H. O. (P. W . 9) at Civil Hospital Shorkot, on the basis of which formal F. I . R . No .449 (Exh. PF/1) was subsequently drafted by Manzoor Hussain, A.S.-I. (P.W.7) the same night at 8-25 p.m. Under sections 302/34, P.P.C.
13. To prove the ocular account the prosecution had produced Zahoor Hussain complainant (P.W.4) and Muhammad Aslam (P.W.5). Zahoor Hussain complainant (P.W.4) was resident of a place which was at a distance of four miles from the place of occurrence while Muhammad Aslam (P.W.5) was resident of the same village where the occurrence had taken place. According to Muhammad Aslam complainant (P.W.4), his house was at a distance of 2 Acres from the house of the deceased and the occurrence had taken place, at the same distance. So both the eyewitnesses were chance witnesses and were bound to give reason for their presence at the spot. It was stated by the complainant that he along with his father-in-law Jewan deceased and Muhammad Aslam (P.W.5) had gone to Cattle Mandi which was held at Pull 25 and when they were coming back to their houses at 6-00 p.m. After becoming free from purchase and sale of the cattle, the occurrence had taken place at Chah Ranjhawala near the Pacca Khal. The only reason given by both the eye- witnesses for their being present at the spot was that they had gone to Cattle Mandi for purchase and sale of cattle. During the cross-examination Zahoor Hussain complainant (P.W.4) stated that he and Jewan deceased cultivated the land and deceased was doing the business of purchase of cattle with him. On the day of occurrence they had gone to sell three cattle, two of which were Jhotas and one Jhotee. According to P.W.4 no staff of the District Council was deputed in the Cattle Mandi, which was not sanctioned from the District Council and being held on every Thursday while he was visiting the said Mandi for the last one or two years. They had sold cattle for Rs,1,05,000 i.e, the katas were sold in lieu of Rs,6,000 while Chotee was sold at Rs,4,500 and the entire amount was with him at the time on incident. He also denied that there was any Munshi to issue receipts of the sale and purchase of cattle. Similarly, Muhammad Aslam (P.W.5) had also given the same reason for going to Cattle Mandi and according to him the Mandi was being held for the last 15 years.
However, he showed ignorance that who was organizer in the Mandi and stated that no receipt was issued.
14. After close of the prosecution evidence, the appellants had produced Khadim Hussain (D.W.1) an official of District Council, who had brought the record with him pertaining to sanction of the Mandi.
According to the record the Cattle Mandi was being held on every Thursday and on every year there was a lease given to the contractor. Ahmad Yar resident of Okara was Thekedar of the said Mandi and 5% tax was to be paid by the purchaser of the cattle and a receipt was duly issued for the same. So the story narrated by both the eye-witnesses that there was no organizer and Mandi was not being held under the supervision of any body has been falsified through the official record produced by D.W.1 Khadim Hussain. In this view of the matter, we have no option except to prefer the statement of Khadim Hussain over the oral statements made by the eye-witnesses. It is strange that P.Ws. Along with the deceased used to go io the Cattle Mandi for purchase and sale of the cattle for the last so many years, but they were ignorant about holding of Mandi under the supervision of any contractor and levy of 5% tax by the purchaser on the sale of each and every cattle. As such the reasons advanced by them from their being present at the spot while returning from Cattle Mandi stood falsified and they had not been able to prove that they used to go to Cattle Mandi regularly. If their version was correct, they must have known about the above said facts as narrated by Khadim Hussain D.W.1. In such circumstances, it can safely be held that the eye-witnesses had failed to give reasonable explanation for their being present at the spot and they had not seen the occurrence, but were made witnesses afterwards, who cannot be relied upon for maintaining convictions against the appellants in case entailing capital sentence.
Moreover, the conduct of the witnesses was also not natural at the time of occurrence as they did not make any effort to save the deceased from the clutches of the appellants, who were not armed with any fire-arm. P.W.5 also claimed that his hands and clothes were not stained with blood when they placed Jewan in the car, which was not possible as he had sustained 16 incised wounds.
Moreover none of them had gone to the Police Station for reporting the occurrence, but the police arrived in the hospital of its own. These facts also indicate that the eye-witnesses were not present at the spot at the time of the occurrence.
15. We have also observed that the F.I.R. In the present case was not registered promptly at 8-25 p.m. And the time might have been consumed in fabricating the story. The case of the prosecution was that deceased after receipt of injuries was taken to Civil Hospital Shorkot and just after reaching there the police come at Civil Hospital where statement (Exh.PF) of Zahoor Hussain complainant (P.W.4) was recorded at 8-15 p.m. On 6-7-2000 and then the statement of the complainant was sent to police station, on the basis of which formal F.I.R. (Exh.PF/1) was recorded at 8-25 p.m. By Manzoor Hussain, A . S. -I. (P.W .7). According to Muhammad Naseeb Dogar, Inspector/S.H.O. (P.W.9) who recorded the statement of the complainant at Civil Hospital, he immediately prepared injury statement (Exh.PJ) and inquest report (Exh.PL) and then sent the dead-body of the deceased to mortuary under the escort of Ghlam Haider constable (P.W.1). It is strange that the dead-body was in the hospital, which was sent to mortuary for autopsy through Ghulam Haider constable (P.W.1) within half an hour but the postmortem examination on the dead-body of Jewan deceased was conducted by Dr. Mazhar Abbas (P.W.8) on 7-7-2000 at 6-30 a.m. With the delay of 12 hours. The conducting of post-mortem examination at 6-30 a.m. Is also disputed as it is not in conformity with the statement of P.W.1 Ghulam Haider Constable who during the cross-examination explained that I.O. Remained in the hospital for about half an hour and the dead-body was handed over to him, but the post-mortem examination was conducted on the next day at about 8-00/9-00 a.m. Rab Nawaz (P.W.3) who had identified the dead-body of the deceased at the time of post-mortem examination during the cross-examination claimed that post-mortem examination had been conducted at about 10/10-30 a.m. On the following day of the occurrence. After perusal of the inquest report (Exh.PL) and injury statement (Exh.PJ) we find that there were some lapses in preparation of the said documents on the part of the prosecution which show that inquest report (Exh.PL) was not prepared before the post-mortem examination as at the back page of the inquest report which had duly been signed and stamped, the date was firstly written as 6-7-2000 but subsequently the said date had been cut by the M.O. And new date was written as 7-7-2000. The possibility cannot be ruled out that inquest report had been filled in after the post-mortem examination and the doctor had not bothered to take due care thereof. We have also noticed that first two columns of inquest report (Exh.PL) had been filled in with different ink while the entries of the remaining columns were with other ink. So it cannot be said with certainty that the inquest report (Exh.PL) had been prepared before the conducting of the post-mortem examination and obtaining the signatures of the doctor. We have also noticed that at Page No,4 of the inquest report (Exh.PL) after the words, " two lines had been subsequently added with different ink. We have also noticed that in Column No,24 after affixing of stamp and putting signatures by the doctor, sketch of placement of dead-body was prepared subsequently. It has become tendency that while signing the inquest reports the doctors fail to take due care in spite of that the time of conducting the post-mortem examination is a relevant piece of evidence which can be considered by the Courts at the time of decision of the case that whether the F.I.R. Was got lodged with promptitude. The purpose of production of the inquest report before the doctor at the time of the post-mortem examination is that till that time the F.I.R. Had already been registered. The delay in the post-mortem examination and lapses in the inquest reports are fully suggesting that the F.I.R.
Had not been registered with promptitude as claimed by the prosecution and the time must have been consumed in fabricating the story. Thus the F.I.R. Cannot be used as a corroborative piece of evidence to the ocular account, which even otherwise had been found by us shaky and not confidence inspiring:
16. We have also notice that according to the medical evidence the time between post-mortem examination and the death Was 24 hours. On the other hand, the case of the prosecution was that the occurrence had taken place on 6-7-2000 at 6-00 p.m. Within 12 hours of the post-mortem examination. If the time given by the doctor is taken into consideration the occurrence might have taken place at 6-30 a.m. So the time given by the eye-witnesses regarding the occurrence is not confirmed by the doctor who had conducted the post-mortem examination. Moreover, the rigor mortis were fully developed and during the cross-examination the doctor explained that duration between death and post-mortem examination could be 10 to 26 hours. Moreover, there were no corresponding cuts on the Chadar and Qameez of the deceased which also shows that the occurrence had not taken place in the manner narrated by the P. Ws.
17. The next piece of evidence is the recovery of weapon from the appellants' possession. According to the prosecution the appellants were arrested by P.W.9 Muhammad Naseeb Dogar, Inspector/ S.H.O. On 24-7-2000 and while in police custody Nusrat, Sultan and Mumtaz appellants led to the recovery of bloodstained hatchets from their residential houses. It has been admitted by P.W.3 Rab Nawaz, who allegedly witnessed the recovery that residential houses where the recovery was effected were not exclusively owned and possessed by the appellants, but those were jointly owned by the other family members i.e, father and brothers of the appellants were also residing in the same houses, which were not locked and the doors were open. However, Lal son of Ameer appellant had allegedly led to the recovery of hatchet (P.6) from the crop of Jawar under a Mango tree, which was taken into possession vide memo. (Exh.PE). Neither said field was in his possession nor he was owner of the said field. Muhammad Naseeb Dogar, Inspector/S.H.O. During the cross- examination admitted that said place of recovery was near the place of occurrence and he had already visited the place, but he did not make any search during his first inspection at the spot.
Even otherwise, Rab Nawaz (P.W.3) in whose presence, the recovery was effected, was neither Lamberdar nor a councillor of any Union Council. It is strange that Rab Nawaz (P.W.3) -and his paternal uncle had failed to disclose the names of brothers of the accused or their family members, who had not spoken the whole truth. After perusal of . The statement of Rab Nawaz (P.W.3) and Muhammad Naseeb Dogar, Inspector/S.H.O. (P.W.9) we are satisfied that recovery was effected from the places which were not exclusively owned and possessed by the appellants and as such the same is not believable and is legally inconsequential.
18. As far as the motive is concerned, in the F.I.R. It was only disclosed by the complainant that the accused-appellants had a suspicion that Muhammad Afzal son of the deceased had illicit liaison with one girl of the accused-appellants party but they did not disclose the name of said girl with whom said Muhammad Afzal had illicit relations. Even they did not disclose the intimacy between the appellants for sharing the common intention to commit the murder of the deceased. Zahoor Hussain complainant while appearing as P.W.4 had disclosed the name of the girl as Mst. Chooran daughter of Wali Dad and he was duly confronted with his previous statement about the name of the girl. During the cross-examination the Investigating Officer admitted that neither any girl produced nor any evidence was collected about the motive attributed to the appellants for the commission of the offence. The complainant had also made improvement with his previous statement regarding taking place of an altercation with the deceased. He did not claim that the said altercation had taken place in his presence. Hence, we find that motive remained shrouded in mystery and the prosecution failed to prove the same.
19. In view of above discussion we have no hesitation in holding that the case against the appellants is doubtful and benefit of doubt at any stage has to go the accused. Moreover, the prosecution had not been able to the prove the case against the appellants beyond any shadow of doubt.
' Resultantly, this Criminal Appeal No,1038 of 2001 is hereby accepted, the impugned sentences and convictions of the appellants recorded by the learned trial Court are suspended and the appellants are acquitted of the charge by extending them the benefit of doubt, who shall be released from jail forthwith if are not required in any other case.
20. Consequently, the death sentences awarded to the appellants are not confirmed and Murder Reference No,554 of 2001 is replied in the negative.