' MUHAMMAD FARRUKH MAHMUD, J.-Muhammad Ayub/ complainant filed a complaint on 30-9-1998 against Bakhsha, Walayat son of Bakhsa, Muhammad Ali, Muhammad Mansha, Qutba, Bashir Ahmad/Constable, Muhammad Hussain/A.S.-I. And Abdul Ghafoor for offences under sections 302/ 324/148/149/379/109, P.P.C., alleging therein that about one year and. 2 3/4 months ago, the complainant, his brothers Sher Muhammad-deceased, Walayat Ali,. Mother Mst. Bakhshai- deceased and cousin Qutba were sleeping on cots in open place in their Dhari, while his brother Muhammad Abbas-deceased and his family members were sleeping in the courtyard of their house. On 6-7-1997 at about Sehri Wela, on hearing the barking of dogs, the complainant, his brothers, mother and cousin woke up and saw in the light of the electric bulb that Bakhsha son of Shamman, Walayat son of Bakhsha, Muhammad Ali, Muhammad Mansha, air armed with rifles, and Qutba armed with .12 bore gun, the accused/respondents NOs.l to 5, came there.
Bakhsham/accused raised Lalkara that Abbas etc. Should be done to death so as to take revenge of Nawab, whereupon Bakhsha fired a shot hitting Sher Muhammad on his chest, followed by .
Another fire hitting Sher Muhammad on his left flank, as a result of which Sher Muhammad fell down. When Mst. Bakhshai, the mother of the complainant, stepped forward to rescue Sher Muhammad, Muhammad Mansha/accused fired hitting her on her left arm. The fire- shot by Qutba/accused hit her on her left flank, whereupon she fell down. The complainant and his cousin Qutba took shelter behind the tubewell. Walayat Ali, brother of the complainant, tried to flee away but he was fired at by Walayat Ali/accused which hit him on his knee, upon which he fell down.
Muhammad Ali and Walayat, accused/respondents, along with their respective weapons, entered the house of Muhammad Abbas. Muhammad Abbas tried to enter the room but was fired at by Muhammad Ali, which hit him on his chest. Then Walayat fired at Abbas hitting him on his left flank.
Abbas fell down. The complainant's Bhabhi Mst. Nooran Bibi/P.W.2 tried to enter the room but was fired at by Muhammad Ali, hitting her on her thigh. She also fell down. The hue and cry raised by the P,Ws. Attracted Alam Sher and Muhammad, paternal cousin and maternal uncle of the complainant respectively, who also witnessed the occurrence. It was further alleged that Bakhsha etc., respondents-accused, also took away .12 bore licensed gun along with its licence and cartridges.
' As to the motive, it was alleged that about 13/14 years prior to the occurrence, the complainant's brothers Muhammad Abbas and Sher Muhammad, etc. Had committed the murder of Nawab, real brother of Bakhsha etc . And due to that grudge, Bakhsah etc./accused-respondents, caused the triple murder of Muhammad Abbas, Sher Muhammad and Mst. Bakhshai and injuries to Walayat and Mst. Nooran, P.Ws. 2 and 3.
2. It was further stated in the complaint that Mst. Nooran Bibi and Walayat All, in injured condition, were taken to D.H.Q. Hospital, Okara, and a case F.I.R. No,263 was got registered at Police Station Choochak on 6-7-1997 for offences under sections 302/324/379/148/ 149, P.P.C., during investigation whereof it was found that accused/respondents Nos. 6 and 7, Bashir Ahmad Constable and Muhammad Hussain A.S.-I., in connivance with the other accused-respondents mentioned in the F.I.R., in order to protect them through a take and bogus plea of alibi got registered false and frivolous F.I.R. Nos,264 dated 5-7-1997 and 295 dated 5-7-1997 for offence under section 13 of Arms Ordinance No,XX of 1965, at Police Station Jhang Bazar, Faisalabad, and F.LR. No,269 dated 26-6- 1997 for, offence under section 411 P.P.C. At Police Station Landianwala and showed their arrest therein. However, during investigation, it was found that the arrest of Bakhasha and Qutba, accused, was not mentioned in the arrest register. The arrest of Muhammad Ali, Mansah and Walayat, accused, in case F.I.R. No,269 of 1997 of Police Station Landianwala was also found to be fake and fabricated one. Thus, Bashir Ahmad, Constable and Muhammad Hussain A.S.-I., accused/respondents Nos.6 and 7, tried to facilitate accused/respondents Nos.l to 5 to introduce a fabricated and fake plea of alibi. Similarly, Abdul Ghafoor, accused/ respondents No,7, who in order to facilitate the aforesaid respondents to fabricate the fake plea of alibi, got registered a false case bearing F.I.R. Nd.269 of 1997 against the accused, mentioned in the F.I.R. By Muhammad Ayub- complainant, and, thus, Abdul Ghafoor also committed a heinous offence.
3. The accused/respondents Nos.l to 5 were summoned by the learned trial Court. Charge was framed against them. As they did not plead guilty, the trial commenced.
4. During trial, the prosecution produced sixteen witnesses. Ocular account was furnished by Muhammad Ayub/ complainant/P.W.l, Mst. Nooran Bibi/ injured P.W.2 and Walayat/injured P.W.3. In addition to that, they also stated about the motive. Muhammad Ayub/P.W.l also stated about the making of complaint Exh.PA, on the basis of which formal F.I.R. Exh.PA/2 was registered. Besides that, he also stated about the recoveries effected- from the spot. Noor Muhammad, retired S.-I./P.W.12, stated about the drafting of complaint Exh.PA at the instance of Muhammad Ayub/complainant, its dispatch to the {police station where formal F.I.R. Exh.PA/2 was registered and the investigation thereafter. On 6-7-1997 at 11-40 p.m., Df. Ghulam Hussain Alvi/ P.W.5 medically examined Walayat and while observing two lacerated wounds on his person, opined that duration between the injury and examination was within twenty hours. On 6-7-1997 at 5-45 a.m. Lady Dr. Zahida Yasmeen/P.W.6 medically examined Mst. Nooran Bibi and found two lacerated wounds on ,her person vide MLR Exh.PJ. She opined that the injuries were caused by fire-arm weapon and the duration between the injuries and examination was about one hour. On the same day at about 6- 00 p.m., she conducted post-mortem examination on the dead body of Mst. Bakhshai.' She, while observing three lacerated wounds (1 to 1-B) on the person of the deceased, opined that cause of death was haemorrhage and shock due to injury No,l-A and 1-B, leading to injury of spleen and large intestine. According to her, injury was sufficient to cause death in the ordinary course of nature. The duration between injuries and death was about half an hour, while it was about fourteen hours between death and post-mortem examination. Dr. Arshad Iqbal/P;W.7, who 6-7- 1997 at 4-00 p.m. On the dead body of Muhammad Abbas, while observing three lacerated wounds (1-A to 3-A) on his person, opined that cause of death was haemorrhage and shock resulting from the aforesaid injuries, which were sufficient to cause death in the ordinary course of nature.
According to him the injuries, were ante mortem and caused by fire-arm weapons. The duration between the injuries and death was within five to ten minutes and the time which elapsed between death and post-mortem examination was about eleven hours. On the same date, P.W.7 conducted post-mortem examination on the dead body of Sher Muhammad. He, while observing four lacerated wounds on his person, opined that the cause of death was haemorrhage and shock resulting from injuries Nos.l to 4, which were caused by fire-arm weapons, and were sufficient to cause death in the ordinary course of nature. The duration between the injuries and death was five to ten minutes and that between death and post-mortem examination was about eleven hours.
The rest of the evidence, being formal in nature, need not be discussed.
5. In their statements recorded under section 342, Cr.P.C. The accused/appellants pleaded their innocence and false implication. Bakhsha appellant took up the plea of alibi by stating that he was arrested ' by police of District Faisalabad in case. F.I.R. No,294 of 1997 dated 5-7-1997 under sections 13/20/65 Arms Ordinance and he produced the whole record before the police and took his first version before the police that in that case he was sent to judicial lock-up on 6-7-1997 and thereafter he was bailed out in accordance with law. His thumb-impression were taken on sample papers by the police before the conducted post-mortem, examination on Magistrate and those were sent for comparison with his thumb-impression taken in District Jail, Faisalabad and his first plea was found correct by the report of Handwriting Expert wherein it was found that his thumb- impression taken in District Jail, Faisalabad were the same as taken on the sample papers by the Magistrate. He further stated that he was involved due to previous enmity and suspicion.
Occurrence might be act of dacoits in the darkness of night and the assailants might not have been identified by the complainant party and his involvement was due to suspicion and previous enmity. Same is evident from the circumstances of case. Complaint is a made up one. He also tendered in evidence certain documents. Muhammad Ali appellant- stated that the occurrence had taken place in the darkness of the night probably by the dacoits who were not identified and that he had been involved due to suspicion and previous enmity. Qutba appellant also took up the plea of alibi. According to him, he was not present even on the alleged date and night of occurrence at the spot, rather he was arrested at Faisalabad in case F.I.R, No,295 dated 5-7-1997 and was sent in judicial lock-up on 6-7-1997. The report of finger print approved his plea because his thumb-impression taken by the Magistrate were compared with the thumb-impression taken on jail record and were found to be the same. The complaint was made up one and the place of occurrence was not electrified. According to him, the occurrence was committed by dacoits who were not identified and he along with other family members was falsely involved due to previous enmity and suspicion. He also tendered in evidence certain documents. However, none of the appellants appeared as their own witnesses under section 340(2), Cr.P.C. Nor did they produce any witness in their defence.
6. On the basis of the above evidence, the learned trial Court while acquitting Muhammad Mansha and Walayat, coaccused, convicted and sentenced Bakhsha, Muhammad Ali and Qutba as under:-
(i) for offence unddr section 302(b)/ 34, P.P.C. To death each on three counts (for causing the triple murder of Mst. Bakhshai, Sher and Abbas) plus payment of Rs,3,00,000 each to the legal heirs of all the deceased, . In default whereof to undergo R.I. For one year each;
(ii) for offence under section 324/34, P.P.C. To undergo R.I. For year each for causing injuries to Mst.
Nooran Bibi and Walayat; and
(iii) for offence under section 379/34, P.P.C. To suffer S.I. For one year each for having stolen the rifle of Muhammad and gun .12 bore of Muhammad Abbas along with licence and cartridges.
7. The appellants/convicts Bakhsha, Muhammad Ali and Qutba have questioned the legality of their above noted convictions and sentences by filing the instant appeal. Murder Reference No,72 of 2001 seeking confirmation or otherwise of death sentences imposed upon the appellants has also been placed before us. We propose to decide both these matters through this- consolidated judgment.
8. Learned counsel for the appellants contends that the occurrence took place during dark of the night and the assailants could not be identified by the P.Ws.; that previous enmity over murder existed between the parties; hence, the appellants were roped in this case falsely; that Walayat and Mansha, co-accused, who had allegedly caused injuries to deceased Abbas and Walayat P.W., were acquitted by the learned trial Court due to their fool-proof alibi and no appeal against their acquittal has been filed; that as the witnesses falsely implicated at least two of the accused; hence, strong and independent corroboration was required to warrant conviction of the rest of the accused, which was not available on the record of the case; and that the prosecution case is not free from doubt.
9. Conversely, Miss Sarwat Nawaz, learned counsel for the State in the appeal has submitted that the witnesses were natural as they were inmates of the house; that principle of sifting the grain from the chaff would apply in this case; that the implication of the appellants was proved by the circumstances of the case, as they could not prove their plea of alibi. She supports the judgment passed by the learned trial Court.
10. Mr. Masood Sadiq Mirza, learned counsel appearing on behalf of the State in the Murder Reference, has, however, frankly conceded that the prosecution miserably failed to prove the source of light; and that the prosecution case was not free from doubt.
11. We have heard the learned counsel for the parties and have also scanned the entire record with their assistance.
12. According to F.I.R., the occurrence took place at Sehri-Wela which is prior to Fajr time and source of light would be needed for identifying the accused. So it was mentioned in the F.I.R. That an electric bulb was on at the outer door of the house of Muhammad Abbas deceased. During trial, the P.Ws. Tried to improve their statements by stating that the occurrence took place at Fajr-Wela.
They were duly confronted with their earlier statements. However, Walayat/P.W.3 admitted that the occurrence took place in the dark of the night. The P.Ws. Were seriously cross-examined on the source of light and all of them gave different versions. According to P.W.3, the electricity was available at the spot since six months prior to the occurrence and source of supply was from a tubewell of his Mamoonzad Arif which was at a distance of five Acres from the place of occurrence.
According to P.W.2 Mst. Noorna Bibi, electricity meter was at their Dhari at the time of occurrence and the said meter was installed one year prior to the occurrence. However, she did not know, as to Who used to pay the electricity bills. The complainant/P.W.l on the same point stated that on electricity meter was installed on their Dhari and he used to take the supply through a wire from the tubewell which was run by electricity. According to him, the tubewell was at a distance of one Acre from the place of occurrence. Firstly, he stated that electricity connection of the tubewell was neither in this name nor in the name of his family members including the deceased nor he could tell the name of the person in whose name the meter had been installed. Subsequently, he stated that name of that person was Shani. It was a very material point and all the witnesses have contradicted each other on it. No meter was seen by the Investigating Officer on the spot nor was any bulb taken into possession. The P.Ws. Also tried to make dishonest improvements about the time of occurrence. These circumstances lead to an irresistible conclusion that the occurrence took place in the dark night. All the three eye-witnesses Muhammad Ayub, Mst. Nooran Bibi and Walayat implicated Mansha and Walayat, the acquitted accused, as well. According to them, Mansha who was armed with a rifle caused injury on the left arm of Mst. Bakhshai deceased.
Walayat who was also armed with a rifle caused injury on P.W.3 Walayat, which hit on the right knee. They also stated that Walayat caused injury with rifle on the left flank of Abbas deceased. The plea of alibi taken by Walayat and Mansha was proved before the learned trial Court through overwhelming evidence that Mansha and Walayat were arrested on 30-6-1997 in case F.I.R. No,269 of 1997 registered at Police Station Landianwala on 26-6-1997. They were produced before the Magistrate on 1-7-1997 and were admitted to bail by the learned Magistrate on 8-7-1997, two days after, the occurrence. Both of them have been acquitted by the learned trial Court due to foolproof alibi. Their acquittal has not been challenged. Interestingly, according to Walayat, who was wounded during the occurrence, the injury was caused by Walayat who was in jail. Admittedly, the enmity existed between the complainant party and the accused. It is settled principle of law that the statements of the P.Ws. Can be relied upon against the remaining accused in the presence of reliable, strong, independent corroborative evidence which is lacking in the instant case. The medical evidence supports the case of the prosecution to the extent that the deceased and the P.Ws. Received injuries with fire-arm weapons and not beyond that. It was alleged that Muhammad Ali appellant and Walayat acquitted accused had gone to the house of Muhammad Abbas where Muhammad Ali and Walayat, who were armed with rifles, caused injuries on the chest of Muhammad Abbas, while Muhammad Ali also caused an injury on the thigh of Mst. Nooran Bibi/P.W. It was Dr. Arshad Iqbal/P.W.7 who conducted post-mortem examination on the dead body of Muhammad Abbas. After conducting the post-mortem examination, he handed over the dead body, post-mortem report, last-worn clothes, police papers and . a sealed phial containing one pellet to Bashir Ahmad/Constable. Memo. Exh.PR verifies that Bashir Ahmad Constable handed over the clothes and one phial P-9 containing a pellet to the Investigating Officer. This important fact belies the prosecution case that injuries to the deceased Abbas were caused by rifle alone, as instead of any bullet, a pellet was recovered from the dead body.
13. Though it was alleged by the complainant that 9/10 empties, out of which one was of cartridge, were recovered from the spot but it is not supported by any recovery of empties by the Investigating Officer nor the other witnesses said anything about it. Nothing was recovered at the instance of Bakhsa appellant. The gun recovered from Qutba appellant was never sent to Forensic Science Laboratory (FSL). However, the rifles allegedly recovered at the instance of Muhammad appellant and Muhammad Mansha who was acquitted, were sent to FSL on 26-11-1997. The recovery of ,7 mm rifle at the instance of Muhammad Ali cannot be used against him, as. No empty was recovered or sent to FSL and it could not be said with certainty that the rifle was used during the occurrence.
14. It was stated in the F.I.R. That the motive behind the occurrence was that 13/14 years prior to the occurrence, Muhammad Abbas and Sher Muhammad, deceased, and others had murdered Nawab real brother of the appellants who felt aggrieved and took revenge. In his statement before the learned trial Court, P.W.3 stated that the accused shifted to District Sheikhupura four years prior to the occurrence and remained in the village of the complainant party till then, which mean that after the murder of Nawab, the accused lived in the village of the complainant till 8/9 years and no occurrence took place during that period. The complainant on the same point stated that the accused shifted to District Sheikhupura prior to the occurrence after exchange of land and during the period of 6/7 years which the accused spent in the village of the complainant party, no dispute took place between them. During cross-examination, the complainant volunteered the information that accused sold away their 1-1/2 Acres of land situated in their village prior to the occurrence, as they wanted to murder his brothers, therefore, they had shifted to Sheikhuprua. He further stated that this was based on the rumour that as the accused had sold their land, therefore, the co- villagers had been guessing about it and through them it came to his knowledge. As noted above, the appellant had shifted to District Sheikhupura many years prior to the occurrence. It appears that the sale of 1-1/2 Acres of remaining in the village of the complainant party by-the accused led to the suspicion and, perhaps for that reason, Mansha, Muhammad Ali, Qutba and Mansha, who are brothers, and Walayat who is son of Bakhsha, were roped in the case.
15. It is also noteworthy that the statement of complainant was not recorded at the police station, although according to him, he had,gone to the police station first and was informed by the Head Constable that the Investigating Officer was present in Mauza Mangan and, therefore, he went there. He further stated that his statement was also recorded at the place of occurrence. According to him, the injured P.Ws. Were sent to D.H.Q. Hospital, Okara, while he himself left for the police station. This fact is also contradicted by injured P.W. Walayat, who stated that he remained at the spot for 5/10 minutes after receipt of injuries and was taken to hospital by his brother Muhammad Ayub, complainant of the case. It may be added here that according to Dr. Ghulam Hussain Alvi/P.W.5, he examined Walayat P.W. At 11-40 p.m. On 6-7-1997. After more than fourteen hours of the occurrence. The medico-legal report (MLR) of Walayat reveals that he was taken to the hospital by Muhammad Ayub complainant at 11-40 p.m. On 6-7-1997. The report further reveals that its columns relating to No, and date of police docket and No, and name of Constable have been left blank. It is apparent that the F.I.R. Was recorded much later, after due1 deliberations.
16. The upshot of the whole discussion is that in our opinion the prosecution case is not free from doubt. Having come to this conclusion, there is no need to go into the plea of alibi taken by the appellants. Hence, we allow this appeal and set aside the impugned judgment passed by the learned trial Court. The appellants are acquitted of all the charges and would be released forthwith if not required in any other case.
17. As a sequel to the above, the death sentence is not confirmed. The Murder Reference is answered in the negative.