Ijaz Ahmad Chaudhry, J.--Ejaz Ahmad alias Juggi appellant was convicted for an offence under Section 302 (b), PPC vide judgment dated 29.03.2002 rendered by the learned Additional Sessions Lahore and was sentenced to death for committing qatl-i-amd' of. Maqbool Ahmad deceased with direction to pay a sum of Rs. 30,000/- to the heirs of the above-said deceased by way of compensation under Section 544-A, Cr.P.C. Through the same judgment, co-accused namely Shahbaz Ahmad was acquitted of the charge by the learned trial Court while extending him the benefit of doubt. Ejaz Ahmad alias Juggi appellant has challenged his conviction and sentence before this Court through the instant Criminal Appeal No. 179-J of 2002 which has been heard by us alongwith Murder Reference No. 236 of 2002 sent by the learned trial Court under Section 374 Cr.P.C. seeking confirmation of the sentence of death passed by the learned trial Court against Ejaz Ahmad alias Juggi appellant. We propose to decide both these matters together through the present consolidated judgment.
2. Succinctly the facts of the prosecution's case unfolded in the F.I.R. (Ex. PA/1) got lodged by Abdul Ghafoor complainant (PW-1) are that he was resident of Street No. 3, House No. 20, Mohallah Rasoolpura and was labourer by profession. They were four brothers. One of his brothers namely Muhammad Abbas on 24.9.1994 had been murdered by Ejaz Ahmad alias Juggi appellant, Fayyaz Ahmad and Muhammad Bashir. Maqbool Ahmad deceased was complainant in the said case who was pursuing tnc same. On 14.4.1999, all the three accused had been sentenced to death but Ejaz Ahmad 'alias Juggi appellant who at that time was on bail and did not appear in the Court. He was proclaimed offender who had grudge due to the death sentence. On the day of occurrence, i.e. 10.8.1999 at 11.00 a.m. Abdul Ghafoor complainant alongwith his brothers namely Muhammad Ilyas and Muhammad Sabir was present on the fruit shop of his brother Maqbool Ahmad deceased when Ejaz Ahmad alias Juggi appellant armed, with pistol and his brother Shahbaz Ahmad (acquitted accused) came there who gave abuses to Maqbool Ahmad deceased. Shahbaz Ahmad (acquitted accused) raised a lalkara that Maqbool Ahinad deceased should be taught a lesson for pursuing the case. Then within their view, Ejaz Ahmad alias Juggi appellant fired two consecutive fires with his pistol which hit Maqbool Ahmad deceased below his left eye whereupon blood started oozing. Maqbool Ahmad deceased in serious injured condition fell on the ground. Ejaz Ahmad appellant while brandishing his pistol in the air and Shahbaz Ahmad (acquitted accused) raising lalkara, succeeded in fleeing away from the spot. Abdul Ghafoor complainant alongwith the PWs took Maqbool Ahmad his brother in serious injured condition to Shalamar Hospital for treatment who on reaching the hospital succumbed to the injuries. Leaving behind the deadbody of Maqbool Ahmad deceased under the guard of the PWs, Abdul Ghafoor complainant (PW-1) was proceeding to report the matter to the police, when in the way at Chowk Shalamar, he met with Abdul Latif, (PW-9) on 10.8.1999 at 10.30 a.m. and made statement (Ex. PA) to him, on the basis of which formal F.I.R. No. 155 (Ex. PA/1) was subsequently drafted by Sher Afzal, S.I. who was given up being unnecessary at Police Station Shalimar District Lahore under Sections 302/34 PPC.
3. The investigation of this case was conducted by Abdul Latif, S.I. (PW-9), Salamat Khan, S.I. (PW- 12) and Hassan Askari, S.I, (PW-14) and during the investigation, the deadbody of the deceased was inspected, injury statement and inquest report were prepared, statements of the witnesses under Sections 161 Cr.P.C. were recorded, the place of occurrences was inspected, blood-stained earth was secured, rough site-plan of the place of occurrence was prepared, the deadbody was sent to the mortuary for autopsy, the last-worn clothes of the deceased were received, formal site-plan of the place of occurrences was got prepared, the appellant got recovered weapon of offence and after completion of the investigation a challan was submitted in the Court.
4. At the commencement of the trial the learned trial Court after supplying copies of the documents required under Section 265-C, Cr.P.0 to the appellant and his co-accused framed a charge under Section 302/34 PPC on 25.11.2000 to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced as many as fourteen witnesses in support of its case.
The ocular account of the incident in question was furnished by Abdul Ghafoor complainant (PW-1) and Sabir Hussain (PW-2) who also deposed about the motive while Allah Ditta (PW-4) had identified the deadbody of Maqbool Ahmad deceased at the time of post-mortem examination.
PW-6 Moeen Sabir Constable had escorted the deadbody of the deceased to mortuary for autopsy. The medical evidence was provided by Dr. Zulfiqar-ul-Hassan (PW-5) and Dr. Tahir Iqbal (PW-13) while Abdul Latif, S.I. (PW-9), Salamat Khan, S.I. (PW-12) and Hassan Askari, S.I. (PW-14) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature.
6. In their statements recorded under Section 342, Cr.P.C., the appellant and the co-accused had denied and controverted all the allegations of fact levelled against them by the prosecution and had professed their innocence. However, to a question that "Why this case and why the PWs deposed against you?" Ejaz Ahmad alias Juggi appellant replied in the following terms: "I have been implicated in this case due to my previous involvement and previous enmity. In fact on 10.8.99, I was not present at Lahore. I came " at Lahore in my house from Sheikhupura at about 11/12 pm. and on 11.8.99 while I was sleeping alongwith my brother, police lifted us early in the morning from our house. The police wanted to kill me in an police encounter but on the repeated requests of my mother, they falsely implicated me in this case in collusion with the complainant party. I am innocent. PWs are related inter se.
In reply to the aforesaid question, Shahbaz Ahmad (acquitted accused) replied as infra:-- "The brother of the complainant Abbas by name was murdered and my brother Ejaz and others were falsely involved in the above said murder and Ejaz was sentenced to death and the appeal against said sentence is still pending. The complainant has previous enmity with us and falsely involved me in the murder of Maqbool Ahmad. I was not present at the spot. I was present at the.
Chappel Store of Hadat Ullah, where I remained on work throughout the day. All the PWs are inter se.
However, they did not opt to make statements on oath under Section 340(2) Cr.P.C. but they produced Hadat Ullah (DW-1), in their defence.
7. Upon conclusion of the trial the learned trial Court after finding the prosecution's case against the appellant to have been proved beyond reasonable doubt, he was convicted and sentenced by it as mentioned and detailed above. Hence, the present appeal and the connected Murder Reference before this Court.
8. The learned counsel for the appellant contends that both the eye-witnesses were chance witnesses and also inimical towards the appellant and the acquitted accused due to the previous enmity, who on the one hand cannot be relied upon without receiving independent corroboration from the independent source and on the other hand they were bound to give reasonable explanation for being present at the spot, which was not their usual place of residence or business; that there are contradictions in the statements of both the eye-witnesses; that motive alone is not sufficient to hold the appellant guilty as the motive can also be a reason, for false implication of the appellant as the eye-witnesses were not present at the spot, who being later on were introduced as such being close relatives of the deceased and they also involved Shahbaz Ahmad brother of the appellant by widening the net with the general allegation of residing lalkara, who had been acquitted by the learned trial Court and thus a reasonable doubt had been created in the statements of both the eye-witnesses, who cannot be relied upon for maintaining conviction in a case entailing capital sentence and he is entitled to acquittal.
9. On the contrary, the learned counsel for the complainant has opposed the Criminal Appeal on the grounds that both the eye-witnesses were natural witnesses and their presence at the spot cannot be doubted as they were doing their business there; that motive was attributed to the appellant as Maqbool Ahmad deceased was complainant of the case in which his brother Muhammad Abbas had been murdered by Ejaz Ahmad alias Juggi appellant, Fayyaz Ahmad and Muhammad Bashir and Ejaz Ahmad alias Juggi appellant who had been convicted and sentenced to death by the learned trial Court, but the appellant did not surrender and become proclaimed offender in the said case; that in the said case this Court had converted the death sentence of the appellant into imprisonment for life, but the August Supreme Court of Pakistan on an appeal filed by the complainant had enhanced the sentence of the appellant to death; that the appellant had committed the heinous offence and the learned trial Court had rightly relied upon the eye- witnesses against the appellant who had consistent statements regarding; the time, place and the manner in which the occurrence had taken place; that the F.I.R. had been registered with promptitude; that the medical evidence also supported tubercular account; that the recovery of weapon had been effected on the pointing out of the appellant; that the prosecution had succeeded in proving the case against the appellant beyond any shadow of doubt and the appeal filed by the appellant may be dismissed and the death sentence is liable to be maintained as the appellant is a desperate and hardened criminal, who is. not entitled to any leniency in the quantum of sentence.
10.Learned Additional Prosecutor General also opposes the appeal and contends that both the eye-witnesses had given reasonable explanation for being present at the spot, which evidence was 'supported by the medical evidence and may be relied upon, and that tho appellant had a strong motive to commit this occurrence, which had taken place in the daylight and there was no question of misidentity and false implication of the appellant, who having committed a heinous offence is not entitled to leniency in the quantum of sentence.
11.We have heard the learned counsel for the parties at length and also gone through the record of this case with due care and caution.
12.The occurrence in the present case according to the prosecution had taken place at 11.00 a.m. on 10.8.1999 at the shop of Maqbool Ahmad deceased situated at Haqnawaz Road Baghbanpura, 1/2 k.m. away towards South from Police Station Shalamar District Lahore whereas the matter was claimed to be reported by Abdul Ghafoor complainant (PW- 1) through statement (Ex. PA) recorded by Abdul Latif, S.I. (PW-9) at Chowk Shalimar on 10.8.1999 at 12.30 a.m. on the basis of which formal F.I.R. (Ex. PA/1) was drafted by Sher Afzal, S.I. (not produced) under Sections 302/34 PPC the same day at 12.40 a.m. However, it is found doubtful whether the F.I.R, had been recorded at the given time as according to the Abdul Latif, S.I. (PW-9) after recording the statement of the complainant he had gone to the hospital where the deadbody of the deceased was examined and sent the deadbody of the deceased to mortuary for autopsy through Moeen Sabir, Constable (PW- 6) after preparation of the necessary papers immediately. The post-mortem examination on the deadbody of the deceased had been conducted with the delay of about 24 hours on the next day i.e. on 11.8.1999 at 11.00 a.m. without any explanation. The possibility cannot be ruled out that the police papers had not been prepared immediately as claimed by the Investigating Officer and the time was consumed in making the prosecution, otherwise there was no reason for postponing the post-mortem examination till the next day when again the same was not conducted in the early hours of the day. It casts serious doubt regarding registration of the FIR at the time given by the prosecution. Hence, such an F.I.R.. cannot be used as a corroborative piece of evidence to the ocular account and the prosecution evidence has to be seen with utmost care and caution.
13.To prove the ocular account the prosecution produced Abdul Ghafoor complainant (PW-1) and Sabir Hussain (PW-2). Abdul Ghafoor complainant (PW-2) was real brother of Maqbool Ahmed deceased while Sabir Hussain (PW-2) was brother-in-law of the deceased. As such both the eye- witnesses were related inter se and with the deceased closely. Moreover, previous enmity existed between the parties according to the prosecution itself as the deceased was complainant of an earlier murder case registered against the appellant and the other relatives in which he was sentenced to death. Thus the eye-witnesses can be termed as interested witnesses and their statements not only need detailed scrutiny as to whether they were present at the spot and they had made true statements, but they also cannot be relied upon unless their evidence is corroborated by some other independent evidence. Admittedly, both the eye-witnesses were not doing their business at the shop of the deceased. According to Abdul Ghafoor (PW-1) he used to sell vegetables by leaving around the street but on the day of incident he did 'not go to his shop.
Similarly, Sabir Hussain (PW-2) resident of Jallo More while the incident had taken place within the jurisdiction of Police Station Shalimar and he also admitted that he used to work as labourer at a shop situated at Data Park Road. So presence of both the eyewitnesses at the spot at the time of occurrence was not natural, but they could be termed as chance witnesses. Both the eye- witnesses had failed to give any specific reason in their statements before the police or before the Court for their being present at the spot at the time of occurrence. The statements of the chance witnesses without any reasonable explanation regarding their presence at the spot are not worthy of reliance. The possibility cannot be ruled out that the eye-witnesses were not present at the spot, who were summoned subsequently by the police and introduced as such being close relatives of the deceased, who nominated the appellant and his brother for the murder of the deceased due to previous enmity on account of suspicion. The delay of 24 hours in conducting the post-mortem examination is very significant and :t is inferred that till such time the police papers including inquest report wherein the story of the F.I.R. is reproduced were not prepared. Hence,both the eye- witnesses cannot be termed as truthful witnesses.
14.The statement of both the eye-witnesses is also not found in line with the medical version as according to the site plan (Ex. PH) the assailants were at a distance of four feet from the deceased but the doctor had observed no burning or blackening around the injury. So the eye-witnesses are also in contradiction regarding the distance of the assailants from the deceased at the time of commission of offence. The ocular account is also found doubtful that whether the injuries on the person of the deceased were caused by pistol as no bullet had been recovered by the doctor rather a metallic piece had been recovered by the doctor which does not fully support that the injuries were caused by a pistol. The dimension of both the injuries was also different, which had been received by the deceased at the same surface and the possibility of use of two different weapon during the occurrence cannot be ruled out. It also shows that the occurrence had not taken place in the manner narrated by the PWs. In such circumstances, we find the presence of the eye-witnesses at the spot had become doubtful and they are not found worthy of reliance, who being interested and chance witnesses cannot be relied upon without any independent corroboration which is lacking in the present case.
15.The recovery of weapon from the appellant in the present case was legally inconsequential as no empty had been recovered from e spot and the report of the Forensic Science Laboratory was only to the extent that the weapon had actually been used by the appellant in the incident. Even otherwise, the metallic pieces recovered from the body of the deceased were not sent to the office of Forensic Science laboratory to ascertain the nature of weapon used in the occurrence. So the recovery of weapon from the appellant cannot be used as a corroborative piece of evidence.
16.As far as the motive in the present case is concerned, it is settled law that the motive is always considered to be a double edged weapon as if on the one hand there is motive to commit the murder of the deceased by the accused and on the other hand it could also be a reason for false implication of the accused on suspicion. In the present case we have already observed that the eye-witnesses were not present at the spot. So the motive alone cannot be made basis for maintaining the conviction against the appellant without any other evidence.
17.For what has been discussed above, we have come to an irresistible conclusion that the prosecution had not been able to.prove the case against the appellant beyond any shadow of doubt. Hence, . Criminal Appeal No. 179-J of 2002, is hereby accepted, the impugned judgment of conviction and sentence recorded by the learned trial Court against the appellant is set aside and he is acquitted of the charge by 'extending him the benefit of doubt, who shall be released from jail forthwith, if not required in any other criminal case.
18.Corrsequently, the death sentence awarded to Ejaz Ahmad alias Juggi appellant is not confirmed and Murder Reference No. 236 of 2002 is replied in the negative.
19.Before parting from this judgment, we are constrained to observe that the learned counsel appearing on behalf of the complainant (Mr. Mansoor-ur-Rehman Khan Afridi) during the arguments made a specific contention that the appellant had been convicted in the earlier murder case got registered by Maqbool Ahmad deceased and sentenced to death by the learned trial Court, but he was subsequently arrested having remained fugitive from justice, whose death sentence had been converted to imprisonment for life by this Court while the August Supreme Court of Pakistan had again awarded him death sentence while accepting the appeal filed by the complainant seeking enhancement of sentence against the judgment of this Court. When we announced the judgment of acquittal of the appellant and then at the time of rising of this Court the learned counsel again appeared in the Court and stated that due to misunderstanding it was contended that the appellant had been convicted and sentenced to death by the August Supreme Court and actually only leave to appeal has been granted and matter is still subjudiced against the conversion of sentence of death to imprisonment for life by this Court. The conduct of the learned counsel was deplorable and apparently in order to influence this Court for maintaining the conviction of the appellant in this case as well while showing him a desperate condemned prisoner of death sentence said argument had been advanced during the argument before a Division Bench. In any case the learned counsel had made irresponsible contention before this Court, which could have bearing on the decision in the instant case regarding quantum of sentence if the conviction was maintained. As such the office is directed to send a reference to the Pakistan Bar Council against Mr. Mansoor-ur-Rehman Khan Afridi, who is prima facie found guilty of professional misconduct.