' HASNAT AHMAD KHAN, J.---Abdul Sattar and Mukhtar Ahmad appellants were convicted for an offence under section 302(b), P.P.C. Read with section 34, P.P.C. Vide judgment, dated 9-5-2002 handed down by the learned Addl. Sessions Judge Sahiwal camp at Chichawatni and were sentenced to suffer imprisonment for life each. They were also directed to pay compensation of Rs,20,000 each to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. Or to suffer six months' S.-I. Benefit of the provisions of section 382-B, Cr.P.C. Was also granted to the appellants.
2. Both the appellants have assailed their conviction and sentence before this Court through Criminal Appeal No, 400/2002 whereas Naseer Ahmad complainant has approached this Court with Criminal Revision No 258 of 2002 for enhancement of the sentences awarded to the appellants. Both these matters are being disposed of together through this single judgment.
3. Compendiously the prosecution story as narrated in the F.I.R. Lodged at the instance of Raja Nasir Ahmad P.W.1 is that he along with his nephews Nayyar Abbas (deceased) and Nasir Abbas given up P.W. Was sleeping in the street in front of his baithak when they got up on hearing the sound of a car. They, statedly, saw Abdus Sattar appellant armed with Pistol and Mukhtar Ahmad alias Billoo appellant armed with Kalashnikov along with two unknown persons alighting from the car. Mukhtar Ahmad appellant allegedly raised a Lalkara/ululation that Nayyar Abbas would be taught a lesson for abduction of their sister namely Ms. Samina Bibi by brother of the deceased. Thereafter he, reportedly 'fired a volley with his kalasnikov hitting left side of his abdomen and left thigh of Nayyar Abbas. Abdus Sattar appellant, statedly, also fired with his pistol hitting right side of chest of Nayyar Abbas. It was further alleged that the assailants raised lalkaras that whosoever came forward would be done to death. Thereafter theattackers fled away from the spot after boarding the car.
Nayyar Abbas reportedly ran towards the house but fell in the drawing room/baithak and succumbed to the injuries. Occurrence was allegedly witnessed by Fida Hussain P.W.2 also. The apple of discord behind the crime was stated to be the abduction of Mst. Shamim, the sister of the accused by brother of the deceased.
4. Dr. Muhammad Ashraf Zafar (P,W.4) was posted as Medical Officer at R.H.C. Ghaziabad where he conducted post-mortem examination on the dead-body of Nayar Abbas deceased on 27-4-2000 at about 6-30 a.m. And found the following injuries:--
(1) Two punctured wounds in an area of 3 c.m. x 2.5 c.m. Into deep going having sizes of 8. c.m. x 6. c.m. On the right lateral surface of the chest about 5.2 c.m. From right nipple. Margins were inverted. These were the wounds of entrance.
(2) A punctured wound in an area of 7 c.m. x 4 c.m. Into deep going on left side of abdomen about 6 c.m. From umblicus. Edges were averted and this was wound of exit of injury No, 1.
(3) A punctured wound in an area of 1.2 c.m. x 1 c.m., into skin deep on the outer and upper part of left thigh. Margins were inverted and this wound was wound of entrance.
(4) A punctured wound in an area of 2.1 c.m. x 2 c.m. Into skin deep on interior and upper part of left thigh. Margins were inverted and this was exit wound of injury No,3.
' On dissection the doctor found that the wall on the right side of chest and right plura along with blood vessels were ruptured whereas right lung, pesitoneum and diapharagm were punctured.
' In the opinion of doctor the death had occurred due to haemorrhage and shock due to injury No,1 which was ante mortem and caused by fire-arm and was sufficient to cause death in the ordinary course of nature. Duration between injuries and death was immediate and between death and post-mortem 2 to 4 hours.
5. Maqbool Ahmad S.I. (P.W.7) was posted at Police Station Ghaziabad on 24-7-2000 where Raja Naseer Ahmad complainant got recorded his statement on the basis of which F.I.R. (Exh.P.A.) was lodged. Thereafter, the said S.I. Visited the place of occurrence and found dead-body of Nayyar Abbas deceased lying inside the Bethak of the house of Raja Naseer. The S.I. Prepared its injury statement (Exh.P.F.) and inquest report (Exh.PG) and dispatched the dead-body to the mortuary for autopsy. He inspected the spot and took into possession blood-stained earth from the place of occurrence vide recovery memo(Exh.P.B.). He also found 20 crime empties (P.3/1-20) of kalasnikov scattered at the spot which he took into possession vide memo (Exh.P.C.). He also prepared the rough site place of the place of occurrence and got scaled site place prepared through Muhammad Saeed Akhtar Draftsman. On 11-6-2000 he arrested Abdul Sattar and Mukhtar Ahmad accused/appellants. Thereafter investigation of the case was transferred to Malik Muhammad Aslam Inspector S.H.O. Who prepared report under section 173, Cr.P.C. And challaned the accused to the Court to face trial.
6. Charge was framed against the appellants to which they pleaded not guilty and claimed to be tried.
7. To prove the charge against the appellants, the prosecution produced eight witnesses out of which Raja Nasir Ahmad (P.W.1) complainant of the case and Fida Hussain (P.W.2) provided the ocular account. Dr. Muhammad Ashraf Zafar (P.W.4) furnished medical evidence, and Maqbool Ahmad S.-I./Investigating Officer appeared as (P.W.7). Rest of the witnesses were formal in nature.
8. Iftikhar Ahmad Khan, Inspector who had also investigated the case was summoned by the learned trial Court as Court witness. He appeared as C.W.I.
9. The appellants made statements under section 342, Cr.P.C. To a question as to why the case against him and why the P.Ws. Had deposed against him, Abdul Sattar appellant replied as under:- ' It is a false case. The P.Ws. Are related inter se and with the deceased and they have made false statement due to enmity. It was an unwitnessed occurrence, which took place in the Bethak. The P.Ws. Were not present at the spot at the time of occurrence. It was a blind murder which took place in darkness of night.
' When questioned as to whether he had to say anything else, he replied as under:-- ' I am innocent and I was declared as such by all, the investigating officers. During the investigation carried out by different police officers, it was found that one Muhammad Boota r/o. Chak No, 51/SP and one Muhammad Arshad Gujar of Chak No, 61/7-R and one Liaqat Ali were involved in this occurrence and Iftikhar Ahmad Inspector, S.I.T. Had directed the local police for their arrest, who were still absconding. I and my brother have been falsely implicated by the complainant party due to enmity and our mother Mst. Balqees is pursuing case F.I.R. No, 5 of 2001 under the Offence of Zina(Enforcement of Hadood) Ordinance, 1979 registered at'Police Station City Chichawatni registered against the complainant party for abduction of my sister.Mukhtar Ahmad appellant also made, a similar statement.
10. At the end of the trial, the learned trial Court convicted and sentenced the appellants as mentioned above.
11. In support of this appeal learned counsel for the appellants has contended that the appellants are as innocent as lamb; that they have been illegally and unlawfully convicted and sentenced; that the prosecution has miserably failed to prove its case beyond shadow of doubt; that according to the prosecution the sister of accused had been abducted by brother of the deceased and not the deceased himself, therefore, the appellants had got no reason to murder him, ;that medical evidence has contradicted the ocular evidence; that as a matter of fact it was a blind murder which had admittedly taken place in the dark-hours of the night; that the source of light i,e, bulb was not taken into possession by the police; that the crime weapons were not recovered during the investigation; that the learned trial Court had illegally placed reliance upon uncorroborated ocular evidence of interested witnesses and that, during the investigation both the appellants were found innocent as admitted by Maqbool Ahmad, S.-I./P.W.7 whose statement got support from the testimony of Iftikhar Ahmad Khan, Inspector who had appeared as Court witness and deposed that in fact the murder was committed by two other persons namely Muhammad Boota and Liaqat Ali. On the basis of said submission he has prayed for acquittal of the appellants.
While doing so learned counsel for the appellants has placed reliance on the cases of Muhammad Arshad v. The State (PLD 1995 SC 475), Sajjad Hussain v. The State (1997 SCM R 174) and Ali Nawaz v.
The State 1988 PCr.LJ 1736.
12. On the other hand, learned Deputy Prosecutor General has poured scorn over the claim of learned counsel for the appellants. While controverting the assertions made by the learned counsel for the appellants, he has argued that the prosecution had proved its case beyond any shadow of doubt. Adds that the occurrence was reported to the police with reasonable promptitude and there was no reason for substitution of the actual culprits.
13. After hearing the arguments put forth by both the sides, I have gathered that the prosecution case consisted of medical evidence, ocular evidenced an story of motive. As far as motive is concerned, according to the prosecution the deceased was done to death as his cousin namely Tahir Abbas had abducted sister of both the accused. That shows that the accused had no direct motive against the deceased. Be that as it may,motive being a double-edged weapon always cuts both ways. If the said motive could be a reason for assaulting the deceased the same can also be considered as a ground for false implication of the appellants. For said reasons no implicit reliance can be placed upon the story of the motive.
14. As far as medical evidence is concerned that has not fully supported the prosecution version inasmuch as according to the first version of the complainant as recorded in the F.I.R. Mukhtar Ahmad appellant had caused injuries on the abdomen and thigh of the deceased with a volley of kalasnikov but according to the doctor injury No,2 received by the deceased on his abdomen was an exit wound of injury No, 1 . While appearing in witness box both eyewitnesses tried to improve their version and bring their evidence in line with medical evidence by A deposing that Mukhtar Ahmad had caused injury only on the thigh of the deceased. Said improvement appears to be dishonest one. The medical evidence has contradicted the ocular evidence on another account i,e, according to the eye-witnesses the deceased after having received the injuries on his chest and thigh had succeeded to run and reach in the drawing room/baithak but according to the doctor who had conducted the postmortem, the duration of injury and the death was immediate and during cross-examination the said doctor had candidly admitted that after receiving said injury the deceased could not run. Said fact when is critically examined in the light of the fact that the cot on which the deceased was lying at the time of receiving the injury had not been taken into possession by the police, makes the prosecution story doubtful. Similarly the blood-stained earth was not collected from the place where the deceased had allegedly received the fatal injuries rather the same was collected from inside of the baithak: Similarly while appearing in the witness box, P.W.1 had tried to improve the prosecution version by stating that the cot of the deceased was lying on the raised portion of platform and the said place was 2 1/2 feet lower than the platform where the cots of other prosecution witnesses were allegedly lying. Said improvement was made by the eye-witnesses to bring their evidence in line with the medical evidence qua the angle of shooting. The said fact made the ocular evidence further doubtful as it would be hard to believe that after receiving a fatal injury on the chest and on the legs, the deceased, could ascend the platform and run into the baithak. For all said reasons I have come to the conclusion that the medical evidence did not corroborate the ocular version rather it stood contradicted.
15. As far as the ocular version is concerned I have taken the statements of both eye-witnesses with a grain of sault. To maintain sentence and especially on capital charge the Court should be cock- sure about veracity of the eye-witnesses. For analyzing evidence one has to win now. To achieve said object I have ventured to pick the ocularevidence to pieces. While doing so it has been gathered by me that while appearing in the witness box both the eye-witnesses, as observed above, had tried to make dishonest improvements. Their evidence, as held above, has been contradicted by the medical evidence. According to the prosecution 20 empty shells of kanalsnikov bullets were recovered from the spot. The site-plan prepared by Muhammad Saeed Akhtar draftsman shows that the wall of the room bore signs of shower of bullets within the range of about 65/70 feet. That also makes the prosecution story doubtful inasmuch as when a volley of kalasnikov was fired which had hit the wall on different spots within the range of 65/70 feet, it is hard believe that the eye-witnesses, who according to them were also sleeping on the platform in front of said room, did not receive any injury on their person. Actions speak louder than the words. A critical examination of Fida Hussain, P.W.2 reveals that while making the statement before the police as Ext.D.B., he had stated that he had awoken after hearing the sound of gun shots but while entering into the witness box, he had tried to improve his version by submitting that he had awoken after hearing the sound of the car. Similarly he made another improvement by stating that while making statement as Exh.D.B. Before police he had not stated that two unknown persons had fired at deceased. He was duly confronted with his previous statement. Considering all said improvements made by the eye-witnesses and the fact that it was a night time occurrence and according to the prosecution it was not a moonlight night but the source of light i,e, bulb was not taken into possession by the police, the prosecution story has become hazy and doubtful. In short statements of eye-witnesses have been found to be economical with the truth.
16. It is established law that one tainted piece of evidence cannot corroborate another 'tainted piece of evidence. Admittedly the eyewitnesses are inimical towards the accused/appellants and it is established law that the evidence of interested witnesses cannot be believed without independent corroboration which is not forth-coming in the case in hand. As has been held above, the medical evidence has failed to corroborate ocular evidence. During the investigation no weapon of offence was recovered at the instance of the accused. For this reason that the crime empties of kalasnikov also does not corroborate the prosecution evidence. Occurrence admittedly took place in the dark-night. The source of light i,e, bulb was not taken into possession by the investigator.. Case-law cited by-the learned counsel for the appellants being fully applicable to the facts of this case, I am pinning my faith on the same.
17. To put in a nutshell, I have concluded that the prosecution has failed to prove its case against the appellants, beyond shadow of doubt. It is established law that benefit of doubt, howsoever slight it may be, has to go to the accused. Even otherwise it is better to err in acquittal ratherthan in conviction as has been laid in case of Tahir Khan alias Niazi v. State 2005 YLR 2220.
18. For what has been stated above, by giving benefit of doubt to the appellants the appeal filed by the appellants is accepted and they are H acquitted of the charge. They be released forthwith, if not required in any other case.
19. As far as Criminal Revision filed by the complainant, which was never admitted to regular hearing, is concerned, no body has entered appearance to prosecute the same. Consequently the revision petition stands dismissed for non-prosecution as well as in the light of findings returned in the Criminal Appeal filed by the appellants.