' IJAZ AHMAD CHAUDHRY, J.---This judgment will dispose of Criminal Appeal No,991 of 1998 filed by Saif Ullah appellant, Criminal Appeal No, 593 of 2005 filed by Muhammad Sadiq and Criminal Appeal No,1124 of 1998 filed by Shahansha as all the three matters have arisen from the same judgment dated 15-10-1998 passed by the learned Additional Sessions Judge, Wazirabad District Gujranwala through which he has convicted the three appellants under section 302(b), P.P.C. And sentenced them to imprisonment for life each with a fine of Rs,60,000 each and in default thereof to further undergo S.I. For six months. However, half of the fine if recovered was to be paid to the heirs of the deceased as compensation under section 544-A, Cr.P.C. Moreover by the same judgment Shabbir Shah, Muhammad Nawaz and Shahid accused were acquitted from the charge.
Muhammad Alam and Nisar alias Nasru were declared proclaimed offenders and after the announcement of the judgment according to the learned counsel for the appellant they have been acquitted as a result of the compromise arrived at between them and the heirs of the deceased vide judgment dated 13-2-2001 passed by the learned Additional Sessions Judge, Wazirabad.
2. The occurrence in the present case had taken place on 10-6-1994 at 8-00 a.m. Near Mazar Baba Pir Shah situated near Chak Sanata falling within the jurisdiction of Police Station Saddar, Wazirabad. The matter was reported to the police through the statement (Exh.PA) of Muhammad Afzal P.W.1 real brother of the deceased Muhammad Jamil which was recorded by Muhammad Husain S.I. P.W.11 at 11-00 a.m. On the basis of which formal F.I.R. No,142 (Exh.PA/1) was recorded by Aftab Ahmad A.S.-I. P.W.4 at 11-58 a.m.
3. The brief facts narrated in the F.I.R. Are that Muhammad Afzal complainant P.W.1 got registered the instant case against the accused/appellants along with Muhammad Aslam, Muhammad Farooq and Nisar alias Nasru by making statement Exh.PA on 10-6-1994. It was alleged therein that he along with his brother Jamil used to go to the Shrine of Baba Pir Shah situated near Chak Sanata. On 9-6-1994 said Jamil went to the said Shrine being Thursday. On 10-6-1994 the complainant along with Javed Iqbal resident of Mohallah Mubarik Shah and Muhammad Boota resident of Mohallah Haji Pir Bux, Gujranwala went to the said Shrine at 8-00 a.m. When they reached near the graveyard, they saw Jamil tied with tree and Shahanshah, Aslam, Nisar alias Nasru, Shahid, Saif Ullah, Shabbir Shah, Muhammad Nawaz, Farooq residents of Chak Sanata and Muhammad Nawaz alias Sain Bagga resident of Ghakkar were beating the complainant's brother Muhammad Jamil with shoes, sticks and Joatar. When they inquired and asked them why they were doing so, they replied that they got suspicion that Jamil had stolen Cassette of Shahid son of Naseer Ahmad in the last night and they would not spare him alive. The accused untied Muhammad Jamil and took him to a Varandah of Muhammad Nawaz alias Sain Bagga and against they gave him beating with sticks, Muhammad Jamil died at the spot and the accused fled away from the place of occurrence.
4. After recording the statement of the complainant Muhammad Hussain SI P.W.11 had prepared the documents and sent the dead body to the mortuary for postmortem examination. Muhammad Aslam pro-claimed offender, Shahanshah and Saifullah appellants were arrested on 26-7-1994.
Muhammad Nawaz appellant was arrested on 18-9-1994. Muhammad Aslam accused got recovered a rope which was taken into possession vide recovery memo. Exh.PN. Saifullah accused made a disclosure and accordingly got recovered Danda P.5 from the kitchen of his house which was taken into possession vide recovery memo. Exh.PD. While Shahanshah accused made a disclosure and got recovered a pair of shoes P.4 from a bush in the graveyard of the village of Chak Sanata which was taken into possession vide memo. Exh.PC. Warrant of arrest of Nawaz accused was issued on 16-8-1994. On the same day he made disclosure and got recovered Joatar P.6 from the room of his house which was taken into possession vide memo. Exh.PF.
5. After the close of the investigation report under section 173, Cr.P.C. Was submitted in the trial Court and the copies required under section 265-C Cr.P.C. Were supplied and the charge was framed against the accused on 3-12-2006. The prosecution in order to prove the guilt of the accused had produced 11 witnesses. P.W.1 Muhammad Afzal alias Manna Pehalwan and P.W.2 Javed Iqbal had furnished the ocular account. P.W.7 Dr. Rao Asif Ali had conducted the post- snortem examination. P.W.6 Muhammad Iqbal had witnessed the recoveries from the accused. The investigation was conducted by P.W.11 Muhammad Hussain S.-I. After the close of the prosecution case the statements of the accused were recorded under section 342 Cr.P.C. In which they denied the allegations and claimed that due to enmity they ware falsely implicated, on the asking of Zawar Iqbal Cheema who was inimical to them. They did not produce any evidence in their defence and also did not opt to appear under section 340(2), Cr.P.C. The learned trial Court after hearing arguments has passed the impugned judgment.
6. Learned counsel for the appellants contends that it was an unseen occurrence, both the eye- witnesses were not present at the spot, they are close relatives of the deceased and they had falsely implicated the appellants in the present case. It is also contended that both the eye- witnesses were residents of Chak Sanata where the occurrence had taken place and they knew the accused who were residents of the same village, but it is strange that in spite of the said claim Muhammad Afzal P.W.1 could not identify Muhammad Nawaz appellant and pointed out accused Muhammad Farooq. It is also contended that there is nothing on the record to corroborate the statements of the eye-witnesses because recovery was inconsequential as the articles recovered were easily available in the market and could easily be planted. It is also contended that to prove the recovery P.W.6 Muhammad Iqbal was produced who is real brother of the deceased and is resident of Gujranwala while the occurrence had taken place within the jurisdiction of Police Station Saddar, Wazirabad and the local persons were not joined in the investigation at the time of effecting of the recovery. The recoveries were not effected from the place exclusively owned by the appellants. It is also contended that the prosecution has not been able to prove the case beyond any shadow of doubt and the judgment is liable to be set aside.
7. Learned counsel for the State on the other hand opposes the appeals on the ground that the deceased had received 35 injuries and the participation of number of accused as alleged in the F.I.R. Is corroborated by the medical evidence. It is also contended that the deceased was brutally murdered and the prosecution has proved the case beyond any shadow of doubt.
8. I have heard the arguments of the learned counsel for. The parties and also perused the record with due care and caution. The prosecution in order to prove the guilt of the accused had produced ocular account in the shape of Muhammad Afzal alias Manna Pehalwan P.W.1 and Javed Iqbal P.W.2. P.W.1 Muhammad Afzal alias Manna Pehalwan is the real brother of the deceased while P.W.2 Javed Iqbal is his brother-in-law. Hence both the eyewitnesses are closely related inter se and with the deceased. However, mere close relationship of witnesses is not sufficient to discard their evidence and termed them as interested witnesses. Even the interested witnesses can be relied upon if they have succeeded in proving their truthfulness. It is noticed that Muhammad Afzal alias Manna Pehalwan P.W.1 and Javed Iqbal P.W.2 admittedly were residents of Gujranwala City while the occurrence had taken place near the shrine of Baba Pir Shah at Chak Sanata. According to the eye-witnesses the deceased had gone to the said shrine on Thursday i.e, a day earlier to occurrence, but did not return back. On the next morning when the eye-witnesses had reached the said shrine at 8-00 a.m. In search of the deceased they had witnessed the occurrence. At the most the eyewitnesses had seen the occurrence per chance and they were bound to give sound reason for their presence there.
9. In the F.I.R. It was stated by P.W.1 Muhammad Afzal that it was their routine to visit Mizar Baba Pir Shah but during the cross-examination he admitted that it was not the routine of the witnesses to go to the Mizar Baba Pir Shah where the occurrence had taken place. For the last time he had visited the said Mizar about nine months before the incident while P.W.2 stated that he had visited the said shrine along with the complainant (P.W.1) 21/2 months before the occurrence. It was also stated by P.W.1 that the occurrence had taken place near Chak Sanata which was at a distance of about two fields on the western side from the place of occurrence and the shrine was adjacent to the place of occurrence. It was also stated during cross-examination by P.W.1 that he did not visit Chak Sanata and did not know any other person of the said village except the accused but failed to show any reason about the identity of the accused persons. P.W.1 was asked during cross- examination to point out Nawaz accused but he had identified Muhammad Farooq accused as Muhammad Nawaz accused. According to P.W.1 many persons were present at the place of occurrence when they (P.Ws.) reached there, but P.W.2 stated that only the accused and the deceased were present there. After the perusal of the statement of P.Ws. 1 and 2 it is found that Possibility cannot be ruled out that the witnesses did not know the accused previously as they had never visited Chak Sanata but as the accused are residents of the same Chak, they had been falsely implicated on suspicion. The complainant also claimed that the police reached at the spot after half-an-hour and his statement (Exh.PA) was recorded there but P.W.2 Javed Iqbal during cross-examination has belied this version of the complainant by stating that the police had met them on the road towards G.T. Road on the bridge of canal while patrolling on G.T. Road. He also stated that the occurrence first of all was narrated by him to the police and the police went to the place of occurrence after listening the story of occurrence. It shows that the F.I.R. Was not lodged with promptitude as claimed by the prosecution, but it was registered after preliminary investigation and due deliberation. P.W.2 also stated that he had been visiting the shrine off and on but had visited Chak Sanata once or twice in order to buy cigarettes. Moreover, according to him he was knowing the accused by face. As such the identity of the accused by him was also doubtful.
10. It is strange that the persons who were residing nearby the place of occurrence or the residents of village Sanata and regular visitors of Mizar could not see the occurrence, but the two alleged eye-witnesses, who were closely related to the deceased and had come from Gujranwala City per chance had seen the occurrence which was alleged to have taken place at the spur of moment as the accused suspected that the deceased had committed theft of cassette. The conduct of the witnesses also shows that they were not present as their close relative was 'being beaten by the accused who were not armed with any lethal weapon but the witnesses did not intervene to rescue the deceased from the clutches of the accused. The reason advanced by P.Ws. 1 and 2 for their presence at the place of occurrence at the relevant time is not found plausible. They have contradicted each other on various points and cannot be relied upon the maintain conviction in a case entailing capital punishment.
11. The prosecution story is further falsified by the statement P.W.7 Dr. Rao Asif Ali who conducted the post-mortem examination on the next day i.e, on 11-6-1994 at 9-00 a.m. And according to him the time between the death and postmortem examination could be 24 to 26 hours. It is noteworthy that according to the complainant the police had arrived at the spot within half-an-hour of the occurrence at about 8-30 a.m. Recorded the statement of the complainant, prepared the necessary documents, sent the dead body to the mortuary for post-mortem examination and left the place of occurrence after doing all the proceedings at 11-00 a.m., but the postmortem examination was conducted on the next day at 9-00 a.m. The delay in the conducting of post- mortem examination also lends support to draw an inference that it was an unwitnessed occurrence and after recovery of the dead body the relatives of the deceased were called, who were made eye-witnesses by concocting false story.
12. The recovery of different articles of general nature from the accused in the presence of P.W.6 Muhammad Iqbal is inconsequential and is not sufficient to connect the appellants with the commission F of the crime in any manner as the said articles were available in the market easily and could falsely be planted to strengthen the prosecution case. Even otherwise P.W.6 was resident of Gujranwala City and real brother of the deceased whereas the houses of the accused were in the centre of the village Sanata but nobody from the said village or nearby in violation of section 103, Cr.P.C. Was joined in the investigation to witness the said recoveries.
13. From the above discussion it can easily be held that the prosecution has miserably failed to prove the case against the appellants beyond any shadow of doubt. Moreover, on basis of the same evidence the co-accused namely Shabbir Shah, Muhammad Nawaz and Shahid have already been acquitted by the learned trial Court and the case of the appellants is not distinguishable from their case. No special circumstances are available on the record to distinguish their case for maintaining the conviction and the appellants are also entitled to the same treatment.
14. Resultantly all the three Criminal Appeals Nos.991/98, 1124/98 and 593/05 are accepted, the impugned judgment of conviction and sentence is set aside and the appellants namely Saifullah, Shahanshah and Muhammad Sadiq are acquitted of the charge by extending them the benefit of doubt. Muhammad Sadiq appellant is in jail, who shall be set at liberty forthwith if is not required in any other criminal case while the remaining two appellants namely Saifullah and Shahanshah are discharged of the liability of the bail bonds.