' SARMAD JALAL OSMANY, J.---This Criminal Jail Appeal impugns the judgment dated 13-7-2000 passed by the learned Additional Sessions Judge, Gambat whereby the appellants Raza Muhammad and Abdul Razak were convicted of the offence under section 302, P.P.C. And sentenced to suffer life imprisonment along with payment of fine of Rs,2,00,000 each in default of which to undergo R.I. For two more years. So also they were convicted for the offence punishable under section 460, P.P.C. And sentenced to suffer R.I. 10 years and fine of Rs,1,00,000 each in default of which to undergo further R.I. For one year. The sentences were ordered to run concurrently and so also the benefit of section 382-B, Cr.P.C. Was extended to the appellants.
2. Briefly stated that facts of the prosecution case are that on the night of incident viz. 7-3-1993, the complainant Faiz Muhammad was sleeping in his house along with his family whereas his brother deceased Faqir Muhammad was also sleeping in his house, which was near the house of the complainant. As it was Ramzan, the inmates of both the houses got up about 0300 hours for taking Sehri when they saw three culprits available within the compound of the houses, out of whom two were identified as the appellants Raza Muhammad and Abdul Razak armed with a gun and pistol respectively whereas the third unidentified accused was armed with a hatchet. At this juncture Ghulam Qadir the complainant's nephew and his cousin Kareem Bux also came to the scene due to the bleating of the goats. Faqir Muhammad challenged the accused on which appellant Raza Muhammad directly fired at him and as a result he fell to the ground. The complainant and others then saw that he had received a fire-arm injury on his stomach and upper right side of the chest.
After some time Faqir Muhammad expired. In the morning the complainant informed Muhammad Mithal the son of Faqir Muhammad at Lahore who reached the village the same day and advised that the F.I.R. Should be lodged, hence this was done at 1600 hours.
3. After the usual investigation, the police arrested the appellants as well as co-accused Muhammad Siddique and filed the challan before the learned trial Court, which framed the charge against them on 13-3-1995 to which the accused pleaded their innocence and claimed their trial.
4. In support of its case the prosecution examined P.W.1 Doctor Ali Gul Mangi who produced the letter of police as Exh.6/A, and postmortem of deceased Faqir Muhammad as Exh.6/B; P.W.2 Gul Muhammad Lakho who produced his 164, Cr.P.C. Statement as Exh.7/A; P.W.3 Faiz Muhammad Lakho who produced the copy of the F.I.R. As Exh.8/A; P.W.4 Kareem Bux Lakho who produced the copy of his 164, Cr.P.C. Statement as Exh.9/A; P.W.5 Hazoor Bux Lakho who produced the Mashirnama of place of Wardat as Exh.10/A, Mashirnama/Inquest report of deceased as Exh.10/B, Mashirnama of securing clothes of deceased Faqir Muhammad as Exh.10/C; P.W.6 Muhammad Ashraf Assistant SDM Kotdiji who produced the Mashirnama of identification parade as Exh.11/A; P.W.7 Ghulam Asghar Lakho who produced the Mashirnama of arrest and personal search of accused Siddique as Exh.12/A; P.W.8 Muhammad Sharif Lakho who produced the Mashirnama of recovery of pistol as Exh.13/A, Mashirnama of recovery of Gun as Exh.13/B. He also produced his 164, Cr.P.C. Statement as Exh.13/C; P.W.9 Ghulam Abbas Mari who also produced the Mshirnama of arrest of accused Abdul Razak as Exh.14/A, Mashirnama of arrest of accused Raza Muhammad alias Razoo son of Kouro Narejo as Exh.14/B. Prosecution gave up P.W. Muhammad Shamil through statement dated 3-5-1999 as Exh.15, DDA for the State submitted application under section 540, Cr.P.C. As Exh.16; P.W.11 Ghulam Qadir Lakho; P.W.12 Rasool Bux Solangi, who produced the confessional statement of accused Abdul Razak as Exh.18/A, confessional statement of accused Raza Muhammad as Exh.18/B, he also produced the 164, Cr.P.C. Statement of the witnesses Ghulam Hussain as Exh.18/C. Mr. Nazir Ahmed DDA for the State closed the side of the prosecution through statement dated 15-5-2000 as Exh.19.
5. The statements of the accused were recorded under section 342, Cr.P.C. In which they totally denied the prosecution case. However, neither they led any evidence in their defence nor examined themselves on oath.
6. Thereafter, upon hearing the learned counsel for the appellantsiaccused the judgment was passed as aforementioned while acquitting accused Muhammad Siddique..
7. In support of the appeal Mr. Ghulam Shabbeer Shar, learned counsel for the appellants has submitted that the evidence against the appellants consists of the following:--
(a) Ocular account.
(b) Medical Report.
(c) Recoveries.
8. Insofar as the ocular account is concerned per learned counsel, this is inconsistent and full of contradictions thus rendering the case against the appellants doubtful. In this regard he has firstly referred to the deposition of P.W. Faiz Muhammad the complainant, according to which he had only seen the accused running away from the scene after hearing the gun-shot. When he came to the deceased Faqir Muhammad's house, he found him in an injured condition and was informed by him that the accused had shot him. Under cross-examination, P.W. Faiz Muhammad has admitted that he had not seen the accused nor identified them. This per learned counsel is contradictory to the F.I.R. According to which he and P.W. Gul Muhammad reached the scene and witnessed the shooting of the deceased by appellant Raza Muhammad whom they identified along with accused Abdul Razak. Further under cross-examination P.W. Faiz Muhammad has stated that the F.I.R. Was lodged prior to the arrival of Muhammad Mithal the son of the deceased at the village from Islamabad whereas per the F.I.R. This was done after Muhammad Mithal had arrived. Secondly learned counsel has referred to the deposition of P.W. Gul Muhammad, according to which he and P.W. Faiz Muhammad had witnessed the shooting of the deceased by one of the culprits who were available at the scene and thereafter the deceased informed them that he was Razoo viz. Appellant Raza Muhammad. He had picked out appellant Abdul Razzak in the identification parade whereas he failed to do so in the case of the third accused present in Court viz. Muhammad Siddique. He has also stated that accused Raza Muhammad was present at the scene. Per learned counsel this is contradictory to the 164, Cr.P.C. Statement of this witness, according to which he had identified two of the accused armed with their respective weapons per the F.I.R. Viz. Abdul Razak with a pistol and Raza Muhammad with a single barrel gun and one unidentified accused with a hatchet and also within his sight Raza Muhammad had shot the deceased. Similarly, per learned counsel the deposition of this witness is contrary to the other P.Ws. Who have stated in Court that he and the complainant reached the deceased's house after hearing the gun-shot. Similarly such deposition is also contrary to the deposition of P.W. Dr. Ali Gul who carried out the post-mortem of the deceased and according to whom death took place within two minutes of the injury whereas according to P.W. Gul Muhammad the deceased was alive fifteen minutes thereafter. Finally, per learned counsel in his deposition P.W. Gul Muhammad says that he could not recognize accused Muhammad Siddique at the scene and neither in the identification test but nominates him in his 164, Cr.P.C. Statement. Thirdly, insofar as P.W. Karim Bux is concerned, per learned counsel he has fully supported the F.I.R. Viz., that appellant Raza Muhammad killed the deceased within his sight whereas appellant Abdul Razak was also present there along with one unidentified accused with a hatchet. He had also held the deceased in his hands who disclosed that Raza Muhammad had killed him. Thereafter P.Ws. Ghulam Qadir and Faiz Muhammad also reached the scene. However, his deposition is contrary to that of P.W. Faiz Muhammad, according to whom he and his son P.W., Gul Muhammad first reached the scene whereafter P.Ws. Kareem Bux and Ghulam Qadir reached there. Similarly, per learned counsel this witness viz. Kareem Bux says nothing about the presence of the complainant's son P.W. Gul Muhammad. Again the deposition of this witness contradicts his 164, Cr.P.C. Statement according to which all the eye-witnesses including himself reached the place of incident at the same time. Finally, learned counsel has referred to the deposition of P.W.
Ghulam Qadir, according to the deposition of P.W. Kareem Bux reached the scene they saw the accused standing there while being fully armed with their respective weapons out of which he had recognized appellants Raza Muhammad alias Razoo with a pistol and Abdul Razak with a gun whereupon the latter had shot the deceased with his weapon. However, under cross-examination he admits that he along with P.W. Kareem Bux had reached the scene after hearing the gun-shot and so also that he had not seen appellant Raza Muhammad prior to the incident. Again, in cross- examination he says that the F.I.R. Was lodged after Mithal the son of the deceased had arrived from Karachi whereas according to P.W. Gul Muhammad and complainant P.W. Faiz Muhammad this was done before the arrival of Mithal. Similarly, per this witness the deceased had already died which is contrary to that of P.W. Kareem Bux who has stated that he held the deceased in his hands before he died. In support of these submissions learned counsel has relied upon Rahmatullah v.
State (2005 PCr.LJ 60).
9. Next, learned counsel has referred to the depositions of P. Ws. Muhammad Sharif and Ghulam Hussain who are the witnesses to the recovery of the crime pistol and gun at the pointation of the appellants. Per learned counsel these witnesses are unreliable as they were standing at the door of the room/Kotha from where the recoveries were made.
10. Next, learned counsel has referred to the confessional statements of both the appellants which have been produced by the Judicial Magistrate and according to which they admit their guilt.
However, since these are retracted, therefore, per learned counsel they have to be corroborated in all material particulars through independent pieces of evidence. Moreso since in such confessional statements the appellants have stated that deceased Faqir Muhammad had followed them and then appellant Raza Muhammad had shot him which is totally in contradiction of the prosecution case.
11. Finally, learned counsel has submitted that the delay in lodging of the F.I.R. Of 13 hours has not at all been explained particularly as the police station is only 8 kilometers away from the village. In this regard he has relied upon Mehmood Ahmad v. State (1995 SCM R 127) and Iftikhar Hussain v.
State (2004 SCM R 1185).
12. For all the foregoing facts and reasons learned counsel has prayed that the appeal be allowed.
13. Mr. Zuber Ahmed Rajput, learned State counsel has fully supported the submissions of. Mr. Ghulam Shabbeer Shar on the ground that the deposition of the prosecution witnesses suffer from a number of contradictions and inconsistencies which render the case doubtful.
14. I have heard both the learned counsel and have perused the record along with their assistance.
My conclusions are as follows.
15. Insofar as the ocular account is concerned this consists of the deposition of the complainant Faiz Muhammad and his son P.W. Gul Muhammad as well as that of P.W. Karim Bux and Ghulam Qadir. According to the F.I.R. The houses of the complainant and deceased Faqir Muhammad were situated in close proximity to each other in the same compound. When the complainant and his son got up at 0300 hours in the morning of the incident to take Sehri, they noticed that the goats belonging to the deceased were bleating. They then saw all the three accused standing near the goats while being fully armed with the respective weapons. At that time the complainant's nephew P.W. Ghulam Qadir and his cousin P.W. Karim Bux also came to e scene. In the presence of all the four eye-witnesses appellant Raza Muhammad fired at the deceased upon being challenged by him who raised cries and fell down. The complainant party noticed that the deceased had a firearm injury near the right side of his chest and was bleeding. He stated that Raza Muhammad had shot him whereafter some time he died. Then this information was given to the deceased's son Muhammad Mithal at Lahore who reached the village and upon the facts being narrated to him he advised the complainant to lodge the F.I.R. However, in his deposition before the Court the complainant has narrated a totally different version of the incident i.e, that upon hearing a gunshot from the house of deceased Faqir Muhammad he and P.W. Gul Muhammad rushed to the same and saw him lying on the ground with a gunfire injury on his chest. At that time he was alive and stated that Raza Muhammad and other accused had fired upon him whereafter he died. He has further stated that he did not know appellant Raza Muhammad. Under cross-examination he has admitted that due to his defective eyesight he could not see the faces of the culprits and also that the F.I.R. Was lodged before Muhammad Mithal reached the village. To the contrary P.W. Gul Muhammad in his deposition has supported the F.I.R. In material particulars except that he had only recognized appellant Abdul Razzaq who was armed with pistol at the scene. Insofar as appellant Raza Muhammad is concerned, according to this witness, the deceased had disclosed his name. Under cross-examination this witness has admitted that the complainant had lodged the F.I.R. Before the arrival of Muhammad Mithal at the village. He has also stated that P. Ws.
Ghulam Qadir and Karim Bux had arrived at the scene along with him and the complainant, however, the deposition of this witness is again contrary to his 164, Cr.P.C. Statement according to which he had recognized all the accused and that accused Raza Muhammad had shot the deceased and also that the F.I.R. Was lodged after Muhammad Mithal had arrived at the village.
The next set of witnesses is P.W. Karim Bux and P.W. Ghulam Qadir who per the F.I.R. Also arrived at the scene due to the bleating of the goats. In his deposition P.W. Karim Bux has again supported the F.I.R. In material particulars nominating appellant Raza Muhammad as having shot deceased with his gun. However, surprisingly, he does not say that P.W. Gul Muhammad was present at the scene although he has stated as much as regards P.W. Ghulam Qadir and complainant Faiz Muhammad. Again, his testimony in Court is contradictory to his 164, Cr.P.C. Statement according to which P.W. Gul Muhammad was present at the scene of the incident. The next eyewitness is P.W.
Ghulam Qadir" who had also supported the F.I.R. In material particulars in his examination-in-chief viz. That he had clearly identified the accused standing with their respective weapons whereafter appellant Raza Muhammad shot the deceased upon being challenged. However, according to this witness the complainant Faiz Muhammad and P.W. Gul Muhammad came there after the incident had occurred. Under cross-examination this witness has admitted that he went to the place of incident after hearing the gunshot. Again, his testimony in Court is contrary to his 164, Cr.P.C.
Statement according to which he along with other witnesses was available at the scene when the shooting incident occurred.
16. In view of the foregoing discussion of the eye-witness account, I am of the opinion that the same is full of contradictions and inconsistencies both as to the availability of the eye-witnesses at the scene when the alleged murder took place and their recognition of the appellants at that time.
17. Insofar as the medical evidence is concerned although it collaborates the prosecution case as to the manner in which the deceased was done to death, per settled law it cannot be made the basis of any conviction as it is of corroborative value only. Again, the confessional statements of the appellants as they were retracted would require corroboration on independent sources which is missing in the facts and circumstances of the case, since I have already come to the conclusion that the ocular account does not inspire any confidence at all. Finally, it would be seen that the delay in lodging of the. F.I.R. Of about 14 hours has not been explained at all in the facts and circumstances of the case. In this regard it may be observed that this has been tried to explain by some of the P. Ws. As a result of awaiting the arrival of Muhammad Mithal the deceased's son from either Karachi or Lahore, however, again there is contradiction in this regard as under cross- examination these witnesses have admitted that the F.I.R. Was filed before the arrival of Muhammad Mithal.
18. For all the foregoing facts and reasons, I allow the appeal. The appellants are acquitted of the charge. They shall be released forthwith if not required in any other case.##TE#