' IJAZ AHMAD CHAUDHRY, J.:-Jafar appellant was convicted for an offence under section 302(b), P.P.C. Vide judgment dated 14-10-2000 handed down by the learned Additional Sessions Judge, Faisalabad and was sentenced to death for committing the Qatl-i-Amd of Mst. Sughran Bibi deceased wife of Ata Muhammad. Jafar appellant was ordered to pay a sum of Rs,50,000 to the heirs of Mst. Sughran Bibi deceased by way of compensation under section 544-A, Cr.P.C., while Mahmand and Ahmad alias Ahmi co-accused were convicted under section 324, P.P.C. For causing fire-arm injuries to Mst. Sughran Bibi (P.W.3) wife of Saeed and each of them sentenced to seven years' R.I. With direction for payment of Rs,10,000 each as fine or in default of payment thereof to undergo one year's S.I. Each. Both of them were also directed to pay an additional amount of Rs,10,000 by way of compensation under section 544-A, Cr.P.C. Which amount was directed to be recovered as arrears of land revenue and in case of default thereof to suffer six months' S.I. In addition to the sentence already awarded to them. Benefit of section 382-B, Cr.P.C. Was also extended to both of them. However, through the same judgment, Ghulam alias Gomi, Anwar alias Anon and Sultan Ahmad co-accused were acquitted of the charges by the learned trial Court.
Jafar appellant has challenged his conviction and sentence before his Court through Criminal.
Appeal No,301-J of 2000 which has been heard by us along with Murder Reference No,711 of 2000 seeking confirmation of the sentence of death passed, by the learned trial Court against Jafar appellant. We propose to decide both these matters together through the present consolidated judgment.
2. The prosecution's case unfolded in the F.I.R. (Exh.PA/1) got lodged by Hashmat Ali complainant (P.W.2) was that on 13-4-1996 at 6-30 p.m. He along with Ata Muhammad* Mst. Sughran wife of Ata Muhammad and Mst. Sughran wife of Saeed was coming back to their house on foot after purchasing edibles from Zafar Chowk of Chak No,488/GB. When they reached near the lands of Lai weaver after taking a turn from the road onw'ard to Katcha passage, from the front side Jafar appellant, Mahmand and Ahmad alias Ahmi co-accused armed with .12 bore guns, Anwar alias Annu (acquitted accused) armed with .12 bore carbine, Ghulam alias Gomi (acquitted accused) empty handed and Sultan (acquitted accused) armed with DANG came there. Jafar appellant raised a Lalkara that they had come to take revenge of the murder of his brother Mirza deceased.
At that time Mst. Sughran deceased and Mst. Sughran (P.W.3) were ahead of the complainant party. At the same time Jafar appellant fired from his gun hitting on the belly of Mst. Sughran wife of Ata Muhammad as a result whereof she fell on the ground. Second shot was. Fired by Mahmand co-convict', hitting Mst. Sughran (P.W.3) wife of Saeed on her left buttocks. Then Ahmad alias Ahmi co-convict fired with his gun hitting on the right hand fingers of Mst. Sughran (P.W.3) who also, fell on the ground. Hashmat Ali complainant (P.W.2) and Ata Muhammad (not produced) saved themselves by lying on the ground. After the occurrence, the accused, persons ran away while firing in the air and raising Lalkara s. The complainant attended to the injured and found that Mst.
Sughran wife of Ata Muhammad had died at the spot. The other injured woman namely Mst.
Sughran (P.W.3) was taken to hospital for her medical treatment.
3. The motive behind the occurrence was alleged to be that one Mirza real brother of Jafar appellant had been murdered and husband, real brother and the real father of Mst. Sughran (deceased) were tried for the murder of Mirza deceased who were con victed by the Court and all of them were behind the bars. Leaving the dead body of Mst. Sughran Bibi deceased under the guard of Ata Muhammad (not produced), Hashmat Ali complainant (P.W.2) himself went to Police Station, Saddar, Samundri District Faisalabad but he met with Umar Hayat, S.-I,/Incharge Chowki Muridwala at 8-05 p.m. At Zafar Chowk of Chak No,488/GB where he got recorded his statement (Exh.PA) on the basis of which formal F.I.R. (Exh.PA/1) was drafted by Khalid Hussain, H.C. (P.W. 1) the same day at 9-35 p.m.
4. The investigation of this case was conducted by Umar Hayat, S.-I. (P.W.9), Zafar Ali, S.-I./S.H.O.
(P.W. 10) and Jan Muhammad S.-I. (P.W.8) and during the course of investigation, the ' place of occurrence was inspected, blood-stained earth was secured, injury statement and inquest report of the deceased lady were drafted; 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 appellant and his co-accused were arrested, and after completion of the investigation a challan was submitted.
5. At the commencement of the trial the learned trial Court framed a charge under sections 302/324/148/149, P.P.C. Against the appellant and his co-accused to which they pleaded not guilty and claimed a trial.
6. During the trial the prosecution produced as many as ten witnesses in support of its case against the appellant and his co-accused. The ocular account of the incident in question was furnished by Hashmat Ali complainant (P.W.2) and Mst. Sughran Bibi (P.W.3) who also deposed about the motive. The medical evidence was provided by Dr. Akram Ali Dogar (P.W.4). Umar Hayat, S.-I. (P.W.9), Zafar Ali, S.-I./S.H.O. (P.W.10) and Jan Muhaftunad, S.-I. (P.W.8) stated about the various steps taken by them during the investigation by this case. The remaining evidence produced by the prosecution was more or less formal in nature.
7. In their statements recorded under section 342, Cr.P.C., Jafar accused- appellant and his co- accused had denied and controverted all the allegations of fact levelled against them by the prosecution and had professed their innocence. Jafar appellant to a question that "Why this case against you and why the P.Ws. Deposed against you?" made the reply in the following terms :-- ' "The case is false and P.Ws. Have deposed falsely against me due to enmity. In fact- my brother Mirza was murdered by Hashmat complainant, his son Nausha, said husband of Mst. Sughran injured P.W. And other accused Gullu, Falak Sher etc. In 1989. In that ease Nausha and Gullu were sentenced to death while said, Falak Sher etc. Were sentenced to life imprisonment along with fine.
After that Nausha who was absconder after the murder of Mirza, committed the murder of Mst.
Gullan, Phuphi of Mst. Sughran injured and a false case was registered against me and my other co-accused etc. We apprehended Nausha and confined him in the Dhari of one Rana Yasin and handed over to police. A case under section 307, P.P.C. Was registered against us. We have a long enmity with the complainant party. Appeal of Nausha was rejected from the Honourable High Court and is now pending in the Honourable Supreme Court of Pakistan. The complainant Hashmat had been pressurizing us for compromise since that time but we refused for the compromise. Mst.
Sughran wife of Ata was murdered in this occurrence by one Liaqat son of Hashmat in connivance with Hashamat complainant and we have been falsely implicated in this case by ' the complainant party to get compromise in the case of murder of Mirza my brother."
' The other remaining accused preferred their innocence in reply to the similar question. However the appellant and his co-accused did not opt to make statements on oath under section 340(2), Cr.P.C. And they also did not produce any evidence in their defence.
8. Upon conclusion of the trial the learned trial Court acquitted the appellant's three co-accused namely Ghulam alias Gomi Anwar alias Annu and Sultan Ahmad but after finding the prosecution's case against the appellant and two other accused namely Mahmand and Ahmad alias Ahmi to have been proved beyond reasonable doubt, they were convicted and sentenced by it as mentioned and detailed above. Hence the present appeal and the connected Murder Reference before this Court.
9. Learned counsel for the appellant contends that P.W.3 Mst. Sughran Bibi was not produced before any Medical Officer and had she been injured during the incident her medical examination would have been conducted and no doctor had been produced who had medically examined Mst.
Sughran Bibi wife of Saeed after the incident. It is further contended that both the eye-witnesses were inimical towards the appellant and the co-accused that the medical evidence has also contradicted the ocular account as according to the P.Ws. Mst. Sughran Bibi deceased wife of Ata Muhammad had received the fire-arm injury on her chest, but according to Dr. Akram Ali Dogar (P.W.4) the injury on the back of the deceased was entry wound and injury on the front of chest of the deceased was exit wound, which also show 'that the P.Ws., were not present at the spot; that no recovery had been effected; that both-the eye-witnesses were interested- being inimical towards the appellant who had motive to falsely implicate the appellant in the present case, but there ft.
Nothing on the record to provide independent corroboration to their statements and that' it was a case of no evidence and the appellant is entitled to be acquitted.
10. On the other hand, learned counsel for the State have opposed the appeal on the ground that both the eye-witnesses had established their presence at the spot beyond any shadow of doubt, who remained consistent on the point that Mst. Sughran Bibi wife of Saeed (P.W.3) had also received injuries during the incident and her presence at the spot was not doubtful that the eye- witnesses made consistent statements on material points regarding time, place and the manner in which the occurrence had taken place; that the prosecution had proved its case beyond any shadow of doubt; that there was no question of mis-identity of the assailants as the occurrence had taken place in the daylight and conviction and sentence may be maintained.
11. We have heard the learned counsel for the parties and also gone through the record of this case with due care and caution.
12. According to the prosecution the occurrence in the present case had taken place at 6-30 on 13- 4-1996 and statement of Hashmat Ali complainant (P.W.2) was recorded .At 8-05 p.m. While the formal F.I.R. Had been recorded at 9-30 p.m.
13. To prove the ocular account the prosecution had produced Hashmat Ali complainant (P.W.2) and Mst. Sughran Bibi wife of Saeed (P.W.3). Both the eyewitnesses in their statements recorded under sections 154 and 161, Cr.P.C. Stated that Ghulam alias Gomi was also present at the place of incident but while appearing in the witness-box they had excluded his name and it has been specifically mentioned by P.W.2 Hashmat Ali complainant that except for the other accused nobody else had participated in the occurrence. During the cross-examination he explained that Ghulam alias Gomi had pleaded about innocence which was accepted by him. If both the eye- witnesses were present at the spot and said Ghulam alias Gomi had participated in the incident along with the other accused his name would have not been excluded by the eye-witnesses at the trial. Even otherwise both the eye-witnesses were chance witnesses as the occurrence had not taken place near their residences or places of business. The only reason for their presence at the spot had been advanced by the eye-witnesses that they had gone along with the deceased and Ata Muhammad to purchase edibles from Zafar Ghowk of Chak No,488/GB and while returning they were fired at by the accused party. Mst. Sughran Bibi (P.W.3) during the cross- examination failed to tell the name of the shopkeeper from where the household edibles were purchased.
Moreover, the Investigating Officer had not noticed the availability of any articles at the time of incident which were allegedly purchased by the eye-witnesses just before the occurrence. Even in the site-plan (Exh.PG) Waris Ali Patwari had not mentioned the place where the articles were lying and no articles were taken into possession by the police to establish the claim of the witnesses that they had purchased edibles and were returning to their place of residence after purchasing the same. So the very reason advanced by the eye-witnesses for their presence at the spot had not been established through the other circumstances of the case. Even in column No,23 of the inquest report (Exh.PE) Umar Hayat, Investigating Officer (P.W.9) had not mentioned the presence of any article at the place of incident at the time of occurrence. We have also noticed that both the eyewitnesses were interested witnesses being inimical towards the accused. According to the prosecution's own case the motive behind the occurrence was that Mirza brother of the accused had been murdered and Ata Muhammad husband of the deceased, her real brother Gullo and father Saeed husband of Mst. Sughran Bibi (P.W.3) were undergoing sentence in the said case. Had the complainant been present at the spot he would also have been caused harm as according to Hashmat Ali complainant (P.W.2) his son Nosher had been sentenced to death in a case lodged for the murder of Mirza while Gullo was also sentenced to death in the said case while Saeed husband of Mst. Sughran Bibi (P.W.3), Ata and Falak Sher were sentenced to imprisonment for life in the said case. So previous enmity existed between the parties and during the cross- examination P.W.2 and P.W.3 also admitted that previous, enmity existed between the parties. It was also admitted by P.W.2 that he got registered a case under section 307; P.P.C. Against Jafar Mahmood etc. And that Ranjha brother of Ahmad and Jafar accused died in police custody. P.W.2 also conceded that Haq Nawaz son of Ghulam was murdered and he (complainant Hashmat Ali) along with his son and relatives was nominated as accused in the said case. He also admitted that during the investigation his sons and relatives were declared innocent except Gullo who was challaned. He also admitted that present accused were acquitted in the said case from the Court of learned Additional Sessions Judge.
14. It has been established on the record beyond any shadow of doubt that both the parties were inimical towards each other and cases of murders and attempting to commit murders had been got lodged against each other. In such circumstances it can be said that the Said witnesses were inimical and previously they involved the accused in criminal cases and the accused party also had involved the complainant party. Had the witnesses been present at the spot they would also have been caused some harm by the accused who were at the mercy of the accused at the time of incident as according to the complainant party three convicts were armed with guns, Anwar was armed with carbine and Sultan with Dang but the complainant had not received even a single scratch and only Mst. Sughran Bibi deceased and Mst. Sughran Bibi (P.W.3) were alleged to have received injuries. Even the claim of the prosecution that Mst. Sughran Bibi wife of Saeed had also received fire-arm injuries during the incident could not be established through any medical evidence. The shifting of Mst. Sughran Bibi (P.W.3) to Hospital by Hashmat Ali complainant (P.W.2) and her admission there for medical treatment also could not be established. According to Hashmat Ali complainant (P.W.2) Mst. Sughran Bibi had received two fire-arm injuries, one on the left buttock from the firing of Mahmand co-convict and then Ahmad had fired with his gun hitting Mst. Sughran Bibi (P.W.3) at the middle finger of right hand. According to the complainant he along with Ata Muhammad P.W. Had taken the injured to the hospital for medical examination. During the cross-examination P.W.2 stated that Mst. Sughran Bibi injured had been taken to hospital at Samundari where they reached 11 to 12 midnight. According to P.W.2 Mst. Sughran Bibi was bleeding at the spot and the Medical Officer had shifted/referred her to Civil Hospital, Faisalabad but she was not medically examined at Samundari Hospital. P.W.2 further claimed that she remained admitted in Civil Hospital, Faisalabad for 2/3 days and afterwards she was provided medical treatment by a private doctor in the village. It is admitted by P.W.2 that no MLR of Mst. Sughran Bibi (P.W.3) was issued and he had not made any complaint in this regard to any Senior Officer. On the other hand, Mst. Sughran Bibi (P.W.3) during the cross-examination claimed that she in injured condition had been taken to Samundari Hospital where she remained admitted for 20 days or one month and she was discharged from the hospital after healing the injuries completely. The Investigating Officer had also not collected any material about the medical examination of Mst.
Sughran Bibi (P.W.3) and did not join any doctor or any official from Samundari Hospital or Civil Hospital, Faisalabad to establish her admission there in injured condition after the occurrence.
During the trial no doctor had been produced who had medically examined Mst. Sughran Bibi (P.W.3) after the occurrence or under whose treatment she remained admitted in the said hospitals. If Mst. Sughran Bibi (P.W.3) had received fire-arm injures as claimed by the eye- witnesses she must have been medically examined and issued MLR regarding the injuries allegedly sustained by her during the occurrence. In the absence of any medical evidence or any mala fide on the part of the doctors, who had allegedly provided medical treatment to P.W.3, it cannot be believed that she had received injuries during the occurrence. In such circumstances it has not been established on the record beyond any shadow of doubt that Mst. Sughran Bibi (P.W.3) had received injuries during the incident and the very reason for her presence at the spot has been falsified. Both the eye-witnesses cannot be termed as truthful witnesses; who had the motive to falsely implicate the appellant in the present case being inimical towards him. Their statements could not be believed unless being corroborated by any independent piece of evidence, which is lacking in the present case as nothing had been recovered from the appellant during the investigation.
15. The ocular account furnished by the eye-witnesses is also found in contradiction with the medical evidence as the eye-witnesses in their statements before the police under sections 154 and 161, Cr.P.C. And at the trial stated that the deceased had received fire-arm injury on the abdomen at the hands of Jafar appellant with gun but during the post-mortem examination Dr. Akram Ali Dogar (P.W.4) observed that the injury on the back of the deceased was an entry wound and the injury on the front of the abdomen was declared an exit wound. We have no hesitation in our minds to hold that it was an unwitnessed occurrence and the prosecution story was concocted afterwards while introducing close relatives of the deceased as eye-witnesses of the occurrence, whose presence at the spot has already been found doubtful by us having not been established beyond any shadow of doubt. Mere motive set up by the prosecution is not found sufficient to hold the appellant guilty as the motive is always considered to be a double edged weapon. In the present case we have already observed that the witnesses had also the motive to falsely implicate the appellant in the present case due to previous enmity.
16. For what has been discussed above we have arrived at an inescapable conclusion that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant recorded by the learned trial Court is set aside and the appellant is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required in any other case.
17. Murder Reference No,711 of 2000 is answered in the negative and the sentence of death passed by the learned trial Court against Jafar appellant is not confirmed.