1. ' IJAZ AHMAD CHAUDHRY, J.--- Through this consolidated judgment I intend to dispose of Criminal Appeal No,58 of 2004 filed by Safdar, Muhammad Amir, Muhammad Nawaz and Liaqat appellants, Criminal Appeal No,1188 of 2004 filed by Khalid appellant against their conviction and sentence and Criminal Revision No,46 of 2004 filed by Akbar Ali Shah complainant against Safdar, Muhammad Amir, Muhammad Nawaz, Liaqat and Khalid (appellants in the titled appeals) for enhancement of the sentence awarded to the above-said appellants, who vide judgment, dated 5-1-2004 rendered by Mr. Arshad Javed Mir, the then learned Additional Sessions Judge, Bhalwal District Sargodha, were convicted under section 302(b) read with section 148/149, P.P.C. For committing the murder of Amjad Ali Shah deceased and sentenced to imprisonment for life with direction for payment of Rs,50,000 each to the heirs of Amjad Ali Shah deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to further undergo S.I. For six months each. The above-said appellants were also convicted under section 148, P.P.C. And sentenced to undergo R.I.
2. For two years along with fine of Rs,5,000 each or in default of payment thereof to further undergo three months each. However, through the same judgment, co-accused namely Manak, Sultan and Nawaz were acquitted of the charge by extending the benefit of doubt to them.
3. ' The prosecution's case unfolded in the F.I.R. (Exh.P.M./1) got lodged,by Akbar Ali Shah complainant (P.W.13) was that Akbar Ali Shah complainant along with Ghulam Ali Shah and Ahmad Hussain residents of Haveli Qureshian went to the PCO of one Yousaf Barber situated at village Butcha Kalan to make a phone call on 13-10-2001 at about 8-00 p.m. They sat in the adjoining room of the PCO and in the meanwhile Amjad Ali Shah, brother of the complainant, who had gone to Sargodha on his return came to the said room of the PCO and sat there; electric bulb inside and outside the room were on. All of a sudden, Safdar and Liaqat armed with pistols .30 bore, Khalid armed with rifle, Muhammad Nawaz armed, with .12 bore double barrel gun and Muhammad Amir armed with hunter came there. Safdar appellant raised a Lalkara challenging Amjad Ali Shah deceased that he had came to avenge his disgrace. All the accused/appellants entered the room whereafter Safdar fired which hit Amjad Ali Shah deceased on his right knee, Liaqat appellant made second fire which hit the deceased on his right upper arm. Then Nawaz appellant fired which hit the deceased on the right side of his hip. Safdar appellant again fired which hit the deceased on his right knee. Liaqat appellant fired which hit the deceased on his right arm. Khalid appellant also fired which hit the deceased on his Tight knee. The deceased after sustaining the said fires fell down whereupon Muhammad Amir gave many hunter blows which landed on the right eyebrow and left side of his head. The complainant and his companions raised hue and cry whereupon the accused persons while raising Lalkaras left the place of occurrence. The complainant along with his companions escorted Amjad Ali Shah in injured condition to Kotmoman Hospital, who on reaching their expired.
4. ' The motive behind the occurrence was alleged to be that a week ago Amjad Ali Shah deceased had disgraced Safdar appellant and had given him beating. The complainant had also got recorded that after the occurrence, Ahmad son of Sardara and Ahmad son of Muhammad told him that an hour before the occurrence accused persons Manak and his sons Sultan and Nawaz, at oil agency of Safdar accused-appellant, had abetted the accused persons to commit the murder of Amjad Ali Shah. So according to the complainant the Accused persons of first set have committed intentional murder of Amjad Ali Shah upon the instigation of accused persons of second set.
5. Leaving the dead body of Amjad Ali Shah deceased under the guard of his companions at Kotmoman Hospital, the complainant proceeded to report the matter to the police but he met Shah Nawaz, S.-I. (P.W.15) at Sultanpur More at 9-30 p.m. And made a statement (Exh.P.M.) before him in respect of the present incident' at 10-00 p.m. On 13-10-2001, on the basis of which formal F.I.R.
6. No,.158 ' (Exh.P.M./1) was subsequently drafted by Jamshed Ali, A.S.-I. (P.W.10) at Police Station Mela District Sargodha on 13-10-2001 at 10-20 p.m. In respect of offences under sections 302/148/149/109, P.P. C .
7. ' The investigation of this case was conducted by Shah Nawaz, S.-I. (P.W.15), and during the investigation, the dead body of Amjad Ali Shah deceased was inspected, injury statement and inquest report 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, a rough site plan of the place of occurrence was prepared, the dead body 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; recovery of weapons of offence from the appellants' possession was effected and after completion of the investigation a challan was submitted.
8. ' At the commencement of the trial the learned trial Court framed a charge against the appellants to which they pleaded not guilty and claimed a trial.
9. ' During the trial the prosecution produced as many as fifteen witnesses in support of its case. The medical evidence was provided by Dr. Nayyar Abbas Khan (P.W.4), who on 14-10-2001, had conducted the post-mortem examination on the dead body of Amjad Ali Shah deceased, while the ocular account of the incident in question was furnished by Akbar Ali Shah complainant (P.W.13) and Ghulam Ali Shah (P.W.14) who also deposed about the motive. However, Ahmad (P.W.12) had stated about the conspiracy allegedly hatched by the acquitted co-accused, namely, Manak, Sultan and Nawaz with the present appellants. Shah Nawaz, S.-I. (P.W.15) 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.
10. ' In their statements recorded under section 342, Cr.P.C., the appellants and the co-accused had denied and controverted all the allegations of fact levelled against 'Item by the prosecution and had professed their innocence. The appellants, however, opted not to make statement on oath under section 340(2), Cr.P.C., but they produced Muhammad Yaqoob, S.-I: as D.W.1 in their defence.
11. ' Upon conclusion of the trial the learned trial Court found the prosecution's case against the appellants to have been proved beyond reasonable doubt and, thus, they were convicted and sentenced by it as mentioned and detailed above. Hence, both these appeals and the revision petition before this Court.
9. The learned counsel for the appellants in Criminal Appeal No,58 of 2004; contends that Akbar Ali Shah complainant (P.W.13) and Ghulam Ali Shah (P.W.14) are closely related inter se and with the deceased, that both of them had admitted during the cross-examination that their families were residing at Sargodha which was at a distance of 60 miles away from the place of occurrence; that it was also admitted by them that they were residing at Haveli Qureshian which was at a distance of 3-1/2 miles from the place of occurrence, who failed to give any sufficient reason for their being present at the spot and they had only stated that they had come to make some telephone call whereas during the cross-examination it was brought on the record that there were number of PCOs before the said PCO on the route in which they had travelled and there were also PCOs in the Mohallah; that the very reason given for their being present at the spot could not be proved as Muhammad Yousaf owner of the said PCO was not produced at the trial or joined during the investigation; that admittedly both the eye-witnesses were. Chance witnesses, who had ..Failed to explain their presence at the spot; that it was night occurrence as well as unseen occurrence; that the deceased was a man of immoral character and he might have been murdered by some of his other enemies; that the appellants had been falsely implicated in the present case; that both the eye-witnesses had made improvements in their statements on material points in order to make the case in line with the medical evidence; that the eye-witnesses are not worthy of reliance and if their statements are excluded, then the remaining evidence cannot be considered for maintaining the conviction of the appellants; that P.W.1 had not made any statement before the police during the investigation regarding handing over the empties for keeping in the Malkhana; that the medical evidence also does not fully support the prosecution story as there was blackening and burning on the injuries, but the distance 'of the assailants had been shown as 5-1/2 feet from the deceased at the time of firing at him and there was no possibility of burning or blackening if the injuries could have been caused from such distance; that even otherwise injuries and its sizes disclose that the occurrence had not taken place in the manner of firing from the fire-arms which were attributed to the accused/appellants; that motive had not been believed by the learned trial Court and the witnesses of conspiracy had also been disbelieved; that F.I.R. Had been lodged after due consultation and deliberation as the witnesses who had allegedly witnessed the hatching of conspiracy were also consulted before the registration of the case by the complainant; that if was a case of no evidence; that four empties were recovered from the spot, which had matched with the weapon allegedly recovered from Liaqat appellant but the said appellant was only attributed two fire shots and the witnesses at the trial had made dishonest improvement that said Liaqat appellant had also made two fires in the air; that the report of Forensic Science Laboratory also creates serious dent in the prosecution story that how the four empties had matched with the weapon allegedly recovered from the said appellant; that the recovery evidence was also fabricated one and cannot be used as a corroborative piece of evidence.
12. ' The learned counsel appearing on behalf of Khalid appellant contends that Khalid appellant was illegally confined by the Investigating Officer and habeas corpus petition was filed in this connection; that the injuries were also observed by the doctor at the time of his medical examination and case was also registered against the Investigating Officer; that there was civil litigation pending between Khalid and Manazar Ali Ranjha; that he had taken the plea of innocence and he was confined in hospital from 11-10-2001 to 17-10-2001; that the recovery of weapon allegedly effected from Khalid appellant was also legally inconsequential as none of the empties had matched with the weapon recovered from Khalid appellant; that the recovery was effected from the house of one Akram and not from the house of Khalid appellant and it was not the place which was exclusively owned by him.
13. ' On the contrary, learned counsel for the complainant opposes these appeals on the ground that no doubt both the eye-witnesses admittedly were residents of village Haveli Qureshian, but both of them were landlords, who had kept their children at Sargodha for the purpose of studies and they had fully explained their presence at the spot as they wanted to make contact with their children at Sargodha on telephone and they had gone to the PCO for this purpose, which fact was established through the statements of the eye-witnesses; that both the parties were big landlords of the area and nobody could dare to come forward against any of the parties; that there is no contradiction in the statements of the eye-witnesses; that the eye-witnesses had stood to the test of cross- examination successfully; that the ocular account was corroborated by the recovery of the weapon from Liaqat appellant which had matched with the empties recovered from the spot according to the report of Forensic Science Laboratory; that motive had also been established beyond any shadow of doubt but even otherwise it was not necessary to prove the motive and even if itis not proved conviction could be maintained; that light was on as per statement of D.W.1 SDO and it had been established that the occurrence had been witnessed in the light of the bulb; that the P.Ws. Were not mentally prepared and they could not interfere as the occurrence had taken place at the spur of the moment and that the medical evidence fully supported the ocular account. It is lastly contended that two appellants namely Liaqat and Safdar had repeated the fires who deserve to be awarded the capital punishment by accepting criminal revision. Relied upon:--
(i) Liaqat v. State 2006 SCM R 33; (ii) Mustahsam Mahmood v. State 2004 M LD 1769; (iii) Safdar Jameel and another v. The State 2005 SCM R 1376; (iv) Mst. Dur Naz and another v. Yousuf and another 2005 SCM R 1906; (v) Babar Shah v. State 2006 PCr.LJ 174; (vi) Mirza Khan and another v.
14. The State 2005 SCM R 1110; (vii) Mattiullah Khan v. The State 2005 SCM R 1626; (viii) Mukhtar Ahmad and others v. State PLD 2004 SC 563; (ix) Ghulam and another v. Murtaza and another 2005 SCM R 1318 and (x) Muhammad Aslam and another v. State 2006 SCM R 228, ' Learned counsel for the State also adopts the arguments of the learned counsel for the complainant and opposes the appeals. He further contends that it was promptly lodged F.I.R. And fire-arm injuries were specifically attributed to the appellants and there were no chances of false implication of the appellants in the present case; that the eyewitnesses had spoken the whole truth who remained consistent on material points and the appeals are liable to be dismissed.
15. ' I have heard the learned counsel for the parties and also perused the record with due care and caution.
16. ' The occurrence in the present case had taken place at 8-00 p.m. On 13-10-2001 it the Public Call Office established by Muhammad Yousaf Barber and according to the complainant the matter was reported to the police at 10-00 p.m. Whereafter the Investigating Officer had Visited the spot, sent the dead body to mortuary for autopsy and postmortem examination had been conducted on the next day at 8-00 a.m. The time of death had been mentioned by the doctor as per police papers 10-00 p.m. According to the opinion of the doctor, the probable time elapsed between the death and the post-mortem examination was 24 hours, which contradicts the time of occurrence as alleged by the prosecution. As such it cannot be said that the F.I.R. Was got lodged immediately after the occurrence.
17. ' To prove the ocular account the prosecution had produced Ali Akbar Shah (P.W.13) real brother of the deceased and Ghulam Ali Shah (P.W.14) brother-in-law and cousin of the deceased and the complainant as well. Both the eye-witnesses are related inter se and with the deceased closely but they were not previously on inimical terms with the accused so they cannot be termed as interested witnesses merely because of close relationship. Even then their statements cannot be taken into consideration as a gospel truth without evaluation of their statements that whether they had spoken the whole truth. The witnesses have to prove that they had witnessed the occurrence as the occurrence in the present case had taken place at the place on which they were normally used to be not available at the time of incident. According to the complainant (P.W.13) they were residents of Haveli Qureshian while the occurrence had taken place within the area of Bucha Kalan.
18. The eye-witnesses during the cross-examination admitted that the place of incident was 3-00 k.m.
19. Away from the places of their residences. So they were chance witnesses and to establish their presence at the spot they were bound to A give reasonable explanation. They had given only reason for their being present at the spot that they had gone to Public Call Office of Muhammad Yousaf Barber, where the incident had taken place, in order to have a telephone call and they sat in the adjoining room of the said PCO where the deceased also came from Sargodha and in the meanwhile the accused came there and committed this occurrence. During the cross- examination P.W.13 Ali Akbar Shah admitted that Ghazanfar brother of Ghulam Ali P.W. Resident of Haveli Qureshian who was also their brother-in-law had a telephone connection in his house, but he voluntarily explained that his telephone was out of order on the day of incident but did not give the time when the said telephone became out of order and when it was reconnected. It has also been stated by the complainant that all the P.Ws. Including him had come from Haveli Qureshian i,e, their place of residence and there were many PCOs in Chak No,19 but voluntarily stated that the said Chak was at a distance of one mile. He also admitted that there were many routes leading to the village and there was also a short route in reaching the shop of Muhammad Yousaf Barber but they did not follow the said route. However, it was admitted that there were many PCOs on the said Chowk. He also admitted that there were many PCOs in the way of house of Ghazanfar and PCO of Muhammad Yousaf Barber where they had gone from the house of Ghazanfar. He also admitted that there was metalled road leading to Kot Moman from the house of Ghazanfar and there were 100s of PCOs at Kot Moman. P.W.6 Ashiq Hussain was brother-in-law of Ghazanfar and Ghulam Ali P.Ws. Who admitted during the cross-examination that Ghazanfar had telephone connection in his Haveli and in his factory and Haveli Qureshian is close to Chak No,19. He also admitted that there were many telephonic connections in Chak No,19. Similarly, P.W.14 also admitted that while going to the said PCO a number of PCOs falls in the way but they did not use anyone of the same and only came to the PCO of Muhammad Yousaf Barber. He failed to give any reason for specifically selecting the said PCO, when according to both the eye-witnesses, Muhammad Yousaf Barber owner of the PCO was not present at the shop and they sat in the adjacent room. It was also case of the prosecution that they had not chalked out any prior programmed with the deceased to come at the place of incident, but he per chance returned from Sargodha and came to the said shop where the witnesses were already sitting. It has not come on the record that how the accused had a prior information about arrival of the deceased at the place of occurrence and they came there with premeditation for committing the occurrence. Moreover, the eye-witnesses had not received any injury while present in the same room, who were related to the deceased, which also creates doubt about their presence at the spot. Both the eye-witnesses had also claimed that there were cots in the room where they were sitting and the incident had taken place but the Investigating Officer stated that there was only one cot in the said room. The eye-witnesses had failed to explain their presence at the spot with cogent reasons. The complainant (P.W.13) and Ghulam Ali (P.W.14) during the cross-examination also admitted that their families were residing at Sargodha which was 60 miles away from the place of incident and their children were studying there. However, the complainant explained that he had come to Mohallah Qureshian ten days before the incident. So even if it is admitted that the complainant and Ghulam All were residing at Mohallah Qureshian, when the occurrence had taken place, but this does not give any support to their presence at the spot. Even otherwise, the said place of incident according to the Investigating Officer was surrounded by so many shops and houses but surprisingly neither Muhammad Yousaf Barber owner of the PCO where the occurrence had taken place was joined in the investigation nor Hafiz Muhammad Arshad who was running the shop adjacent to the place of occurrence was also joined in the investigation. None of the persons of the locality had been joined in the investigation by the Investigating Officer and the witnesses mentioned in the F.I.R. Were not residents of the place of incident. Both the eye-witnesses had also made improvements in their statements on material points and they were duly confronted with their previous statements. For instance four empties were alleged to have been recovered from the spot which had matched with the weapon allegedly recovered from Liaqat appellant, but no empty had matched with the weapon recovered from Safdar appellant. On the other hand, the case of the eye-witnesses was that Liaqat appellant had fired only twice and in order to cover up this lacuna both the eyewitnesses made dishonest improvement that Liaqat appellant had fired twice at' the deceased and twice in the air. The witnesses were duly confronted with the previous statements. In such circumstances, I am satisfied that the eye-witnesses were not present at the spot, but they were introduced as eye-witnesses later on being close relatives of the deceased and they cannot be relied upon outrightly only for the reason that there was no previous enmity between the parties.
16. Shah Nawaz, S.-I./Investigating Officer (P.W.15) admitted that two of the empties which had matched with the weapon allegedly recovered from Liaqat appellant were taken into possession from the spot from where Safdar appellant had fired at the deceased. P.W.14 had also made another improvement by stating that Safdar appellant at the time of incident had taken away the empties with him and he was duly confronted with his previous statement on this point as well.
20. Shah Nawaz, S.-I./Investigating Officer (P.W.15) on the other hand during the cross-examination stated that it was never claimed during the investigation that Safdar appellant had taken away empties while collecting the same from the spot after the incident. This improvement appears to have been made in order to give justification that how the empties recovered from the spot could not match with the weapon allegedly recovered from Safdar appellant. It is also notable that Akbar Ali Shah complainant (P.W.13) made statement (Exh.D.C.) before Shah Nawaz, S.-I./Investigating Officer (P.W.15), which was incorporated in the daily diary and according to the same Akbar Ali Shah complainant (P.W.13) stated that as far as hearing of conspiracy by the witnesses of conspiracy is concerned, he could not say that they had already heard the hatching of conspiracy by the accused with each other. He also stated that at the time of registration of the case the local police had written statement and he had only put his signatures thereon and it shows that whole of the statement was not of his own. During the investigation another statement (Exh.D.D.) was made by Akbar Ali Shah complainant (P.W.13) before Khalid Saeed Inspector in which he had stated that he had full confidence on the Investigating Officer and he would accept the decision. It was also claimed that at the time of occurrence Nuzra alias Nusra had also participated in the occurrence but they could not nominate him at the time of registration of the F.I.R. As one of the accused as they came to know about his involvement and participation in the incident very late and due to this reason they did not initiate any proceedings against him. All these facts show that the F.I.R. Had not been registered in the manner as stated by the prosecution and both the eye-witnesses had not witnessed the occurrence and they had wrongly claimed so. After perusal of the statements of both these eye-witnesses, I am satisfied that they having made improvements on material points had lost their veracity and proved to be false witnesses, who were only introduced as such because of close relationship with the deceased, otherwise they had no justification for their presence at the far-flung area at the time of incident during night. The possibility of involvement of the appellants in the present case on suspicion cannot be ruled out.
17. The medical evidence is also found in contradiction with the ocular account as there was burning and blackening on the entry wounds which mean that the shots might have been fired from six inches to 3 feet but the distance had been shown as 5-1/2 feet in between the places from where the assailants had fired at the deceased. Moreover, I am not satisfied that the eye-witnesses could see each and every injury with its locale sustained by the deceased at the hands of the deceased, but an inference can be drawn that after, observing the injuries on the person of the deceased those were divided upon the accused. As such' it cannot be said that the medical evidence was in line with the ocular account.
21. ' As far as the motive of the incident is concerned, it had already been disbelieved by the learned trial Court. Even otherwise, no documentary evidence had been produced by the prosecution to prove the motive and oral statements of the eye-witnesses are not sufficient to rely upon the same as the complainant had tried to become an eye-witness in the motive incident as well which he had not stated in the F.I.R. No doubt mere non-proving of motive is not sufficient to exonerate the accused, if he is otherwise proved to have been connected with the commission of the crime, but in the present case the ocular account has been found shaky and not confidence-inspiring, which cannot be corroborated by any other piece of evidence. Even otherwise, all the appellants are not closely related inter se and had no common object and motive to commit the murder of the deceased. In the statements before the learned trial Court it has been stated by the complainant that it was Safdar only with whom the deceased had quarreled about a week ago. Khalid and Nawaz appellants are not related to Safdar. In such circumstances, I do not find that all the accused had any common object for the murder of the deceased. On the other hand all the family members including their father an old man and two real brothers of Safdar appellant were also involved in the present case for hatching conspiracy by the complainant and the said witnesses of conspiracy had been disbelieved by the learned trial Court and the prosecution evidence had been found false for making allegation of hatching conspiracy.
22. ' So far as the recovery of weapon is concerned, suffice it to say that when the ocular account has been disbelieved by this Court, the conviction cannot be based merely on the evidence of recovery of weapons from Liaqat and Asghar appellants. As discussed above a serious dent has been created in the report of Forensic Science Laboratory according to which four empties had matched with the weapon recovered from Liaqat appellant whereas he was only alleged to have made two fires at the deceased and dishonest improvement was made by the witnesses at the trial that Liaqat had also made two other fires in the air. Moreover, the said recovery had been witnessed by the police officials only which was effected in a thickly-populated area and the same was in violation of section 103, Cr.P.C. Moreover, the place of recovery was not exclusively owned and possessed by the appellants. So the recovery evidence is inconsequential.
23. ' For what has been discussed above I have arrived at an inescapable conclusion that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. These appeals are, therefore, allowed, the convictions and sentences of all the appellants recorded by the learned trial Court are set aside and the appellants are acquitted of the charges by extending the benefit of doubt to them. They shall be released from jail forthwith if not required in any other case.
21. In view of above, no question arises for enhancement of sentence and Criminal Revision No,46 of 2004 seeking the said relief having no merit is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.