' MUHAMMAD FARRUKH MAHMUD, J.--- This judgment will dispose of Criminal Appeal No,1748 of 2000 filed by Mehr Ali, Umar Hayat and Muhammad Ehsan, who were convicted and sentenced by the learned Additional Sessions Judge, Khushab, in case F.I.R. No,5, registered at Police Station Ganjial, District Khushab, on 7-1-1999, for offences under section 302/34, P.P.C. Vide his judgment, dated 23- 11-2000 as under:--
(1) Mehr Ali ' Death with compensation of Rs,1,00,000 or in default six months' R.I. Under section 302(b), P.P.C.
(2) Umer Hayat Five years' R.I. With Daman amounting to Rs,1,00,000 for offence under section 337-F(iv), P.P.C.
(3) Muhammad Ehsan ' Five years' R.I. With Daman amounting to Rs,1,00,000 for offence under section 337-G, P.P.C.
' Murder Reference No,666 of 2000 for confirmation or otherwise of death sentence of Mehr Ali- appellant shall also be disposed of through this single judgment.
2. Brief facts of the case, as per F.I.R. Narrated by Mst. Nawabzadi/complainant (P.W.8) are that on 7-1-1999 at about 4-00 p.m. She along with her husband and her brother namely Saleh Muhammad and one Muhammad Nawaz was returning to home at Mouza Choha. While they were on Katcha path leading to their village Saleh Muhammad and Muhammad Nawaz were going 8/10 Karams ahead from them, suddenly Muhammad Ehsan, who was driving Bus No,GTB-950, turned the bus towards the Katcha path following them. Mehr Ali raised Lalkara from the front window of Bus that they would take revenge of the murder of their father Muhammad Hayat. In order to save his life Muhammad Ramzan ran towards graveyard. Meanwhile, Muhammad Ehsan struck Muhammad Ramzan from his back with bumper of the bus. Muhammad Ramzan fell down.
Thereafter Mehr All and Umar Hayat came out of the bus armed with iron rods. Mehr Ali inflicted blow on the head of Muhammad Ramzan. Umar Hayat also gave blow of iron rod on the head of Ramzan. Muhammad Riaz picked a stone and threw it towards Muhammad Ramzan, which hit on his left ear and temple. On hue and cry Saleh Muhammad and Nawaz P.Ws., who were going ahead of the complainant, returned and witnessed the occurrence. The accused fled away from the scene of occurrence brandishing their iron rods. Muhammad Ramzan, while he was being shifted to his nearby house at a distance of 100 yards, succumbed to the injuries.
' The motive behind the occurrence was that 8/9 years prior to the present occurrence.
Muhammad Hayat, father of Mehr Ali and Umar Hayat, was murdered by Muhammad Ramzan, Allah Bakhsh Qazi and others, but later on they were acquitted in that case. For that reason the accused nursed grudge and committed the murder of Muhammad Ramzan.
3. After registration of formal F.I.R., the investigation of the case was taken over by Sher Muhammad, S.-I./P.W.10. He proceeded to the house of complainant, where the dead body was lying, took over the dead body, prepared injury statement Exh.P.B. And inquest report Exh.P.C.
Thereafter he inspected the spot and secured blood-stained earth and piece of glass vide memo.
Exh.P.H. On 9-1-1999 took into possession Bus No,GTB-950 along with its Registration Book P.5, licence of the driver P.6 and its route permit P.7 vide memo. Exh.P.I. He arranged a confrontation meeting between both the parties, wherein Umar Hayat accused was stated to be innocent in the case, so he deferred his arrest. Thereafter the investigation was transferred to Tallah Muhammad, D.S.P./S.D.P.O., Jauharabad, who concluded that Umar Hayat is innocent and his name be placed in Column No,2 of the challan and directed that challan against the remaining accused namely Mehr Ali, Muhammad Ehsan and Muhammad Riaz be submitted. So the Investigating Officer arrested all the three accused. While in custody, on 20-2-1999 Mehr Ali led to the recovery of iron rod P.3 from his residential house, which was taken into possession vide memo. Exh.P.F. On the same day Muhammad Ehsan led to the recovery of iron rod P.5 from his residential house, which was taken into possession vide memo. Exh.P.G. After completion of investigation the accused were sent up to face trial.
4. At the trial, the prosecution in order to prove its case produced 11 witnesses in all. The prosecution after tendering in evidence the report of Chemical Examiner Exh.P.L. And that of Serologist Exh.P.M., copy of F.I.R. No,99 dated 9-7-1990 under sections 302/307/148/149, P.P.C. Police Station Mitha Tiwana Exh.P.N. Copy of judgment, dated 29-4-1991 passed by the learned Additional Sessions Judge, Exh.P.O. And copy of judgment, dated 8-12-1999 passed by this Court in Criminal Revision No,409 of 1991 Exh.P.P., closed its case. The accused in their statements recorded under section 342, Cr.P.C. Pleaded innocence. They did not appear as witnesses under section 340(2), Cr.P.C. However, the defence produced Riaz Ahmad, Junior Clerk, Office of the Secretary R.T.A., Sargodha. After conclusion of trial the appellants were convicted and sentenced as stated above.
5. After having read the entire prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. And other relevant material available on record, the learned counsel for the appellants in support of this appeal submits that the witnesses are not only related but are chance witnesses, who could not plausibly explain their presence at the time of occurrence; that long- standing enmity existed between the parties, hence they were interested witnesses; that the P.Ws.
Ostensibly had gone to meet Haji Iqbal and their programme was not known to the accused; that the accused could easily run over Mst. Nawabzadi and her husband as they were going together; that it does not appeal to reason as to why two brothers of Mst. Nawabzadi, who have been accompanying her, should walk 20 Karams ahead of the deceased; that in fact Muhammad Ramzan met with an accident and for that reason the complainant party involved the accused in the case as revision against acquittal against Muhammad Ramzan for earlier murder was pending; that the medical evidence does not support the ocular account; and that the prosecution case is not free from doubt.
6. The learned counsel for the complainant submits that the occurrence took place when the light was available and question of identity was not involved; that presence of Mst. Nawabzadi is established in the circumstances; that it was not odd for a wife to accompany her husband; that the ocular account is supported by the medical evidence; that the witnesses have supported each other on all material points; that in fact there are no contradictions in the statements of witnesses rather there are explanations which were given during trial; that the prosecution has successfully proved its case against the accused; that the defence plea that it was a case of accident was never put to the Investigating Officer; that it was suggested to P.Ws. That it was an afterthought; and that no question was asked from the doctor whether the injuries could be the result of accident or not.
7. The learned counsel appearing on behalf of the State have adopted the line of arguments advanced by the learned counsel for the complainant.
8. We have heard the learned counsel for the parties at length and gone through the record minutely. Mst. Nawabzadi P.W.8, wife of the deceased, and Saleh Muhammad P.W.9, brother of Mst.
Nawabzadi, have furnished the ocular account. They have also stated about the motive. Hostility existed between Muhammad Ramzan deceased and the accused over murder of Muhammad Hayat, father of Mehr Ali and Umar Hayat. According to prosecution case, on the fateful day the deceased, his wife Mst. Nawabzadi P.W.8, her brother Saleh Muhammad P.W.9 and one Muhammad Nawaz had gone to the house of Haji Iqbal, who was not feeling well. At about 4-00 p.m. After leaving the house of Haji Iqbal they were, going back to their house and were on a Katcha path, when they were spotted by the accused, who were in a Bus Registration No,GTB-950, which was being driven by Muhammad Ehsan son of Muhammad Ramzan. The bus was going on the metalled road but after seeing the complainant party the bus was diverted from main road to Katcha road. After reaching near the complainant party, Mehr Ali accused raised Lalkara that they would take the revenge of the murder of his father Muhammad Hayat. Muhammad Ramzan, in order to save his life, took right turn towards the graveyard. He was struck by the bus. Resultantly he fell near a grave with his face down. Thereafter Mehr Ali and Umar Hayat, who were armed with iron rods, came out of the bus. Mehr Ali gave blow on the back of the head of Muhammad Ramzan.
Umar Hayat also gave a blow on the head of Muhammad Ramzan, while Muhammad Riaz pelted a stone, which hit on the left ear of Muhammad Ramzan. Thereafter the accused left the scene of occurrence. Muhammad Ramzan was taken from the spot to the house, which was at a distance of 100 yards. Admittedly the accused did not have any previous knowledge that Muhammad Ramzan along with his relatives had gone to the house of Haji Iqbal and would return at such and such time. They saw the complainant party per chance. Then they diverted their bus towards the deceased. Though the accused hit Muhammad Ramzan by bus but they never tried to over run Muhammad Ramzan, which they could easily do. The complainant admitted that no attempt was made to run over Muhammad Ramzan by bus. It is also strange that after seeing the bus behind them it was only Muhammad Ramzan who tried to save his life and ran towards graveyard, while Mst. Nawabzadi made no attempt to save her life. Despite the fact that both of them were going together and bus could have struck both of them. Furthermore it was most unlikely that only four persons would be plying bus aimlessly on road. The complainant tried to improve her statement before the learned trial Court by stating that the accused owned the bus but no proof is available on record that the bus was owned by the accused. It is pertinent to note that no tyre marks were mentioned in the site plan Exh.P.D. Saleh Muhammad P.W.9 admitted that he did not show tyre marks to the police during spot inspection. It was not mentioned in the F.I.R. That the complainant party was returning from the house of Haji Iqbal or that the complainant party had gone to the house of Haji Iqbal for inquiring his health. However, it was stated during trial by P.W.9 that he, Muhammad Ramzan deceased, Mst. Nawabzadi and Muhammad Nawaz were returning from the house of Haji Iqbal. In that case all of them should be together, which would be very natural as Saleh Muhammad P.W.9 was real brother of Mst. Nawabzadi, but according to complainant, Saleh Muhammad and Muhammad Nawaz were ahead of them by 8/10 Karams (40/50 feet). This is totally ununderstandable.
9. The occurrence took place at about 4-00 p.m. While the matter was reported to the police at 7- 15 p.m. After more than three hours. Sher Muhammad, S.-I./Investigating Officer/P.W.10 admitted that police station was at a distance of 15 Kms And was connected by metalled road and it took 20 minutes in covering the distance. Hence the delay is significant, which adversely affects the prosecution case. Perusal of inquest report Exh.P.C. Reveals that it does not contain any F.I.R.
Number and the weapons have not been mentioned in Column No,20. Similarly perusal of the post- mortem examination Exh.P.A. Reveals that the dead body reached the hospital at about 12-00 p.m.
On the fateful night i,e, after five hours of the registration of case.
10. According to P.Ws., after Muhammad Ramzan fell to the grave Mehr Ali and Umar Hayat, both armed with iron rods gave blows on the head of Muhammad Ramzan. The injury caused by Umar Hayat landed on the top of head of Muhammad Ramzan while the injury attributed to Mehr Ali was on the back of head on the right side. Muhammad Riaz was attributed the injury caused by stone on the left ear of the deceased. As against that, Dr. Muhammad Sajjad P.W.1, who conducted the postmortem examination on the dead body of Muhammad Ramzan, observed the following eight injuries on the person of the deceased:---
(1) A lacerated wound V shaped, one limb measuring 8 c.m. And the other 7.00 c.m. The breadth of the wound was 3 c.m. To 6.5 c.m. Above the right ear. Underneath wound, bone was fractured and meniges were crushed.
(2) A lacerated wound measuring 6 x 1 c.m. On the left side of scalp, measuring 10 c.m. From the left ear. The wound was bone deep with exposed the underline bone. No fracture was seen on probing.
(3) An abrasion on the left ear measuring 2 x 1 c.m. The meatus was studded with mid.
(4) An abrasion measuring 2 x 3 c.m. Over left maxilla.
(5) Two abrasions marking on the nose.
(6). An abrasion over left side of forehead.
(7) Multiple scratches marking on the lateral side of left thigh.
(8) A lacerated wound measuring 6 x 3 c.m. On the left side of scrotum. The skin was pleaded off.
11. Obviously injury No,1 is a lacerated wound V shaped, one limb measuring 8 c.m. And the other 7.00 c.m., the breadth of the wound was 3 c.m. To 6.5 c.m. Above the right ear could not be caused by an iron rod. Injury No,2 was an lacerated wound on the left side of scalp and injury No,3, which was an abrasion on the left ear measuring 2 x 1 c.m. None of the two injuries can be attributed to Umar Hayat.
12. The motive behind the occurrence, as set down in the F.I.R., was that 8/9 years prior to the instant occurrence Muhammad Hayat father of Mehr Ali and Umar Hayat was murdered.
Muhammad Ramzan deceased and Allah Bakhsh Qazi and others were the accused in the said case, who were subsequently, acquitted. The motive denotes hostility and enmity between the parties, which could be a very well reason for implicating the accused in this case. However, the murder of father of Umar Hayat took place 8/9 years ago and there was no special occasion for the accused to take revenge on the fateful day, especially when they did not know that Muhammad Ramzan would go to the house of Haji Iqbal on the fateful day. Hostility of the P.Ws. Is evident from the fact that in order to implicate all the accused the complainant assigned one injury each to Umar Hayat and Mehr Ali by iron rods and one injury by stone was attributed to Muhammad Riaz while driving of the bus was attributed to Muhammad Ehsan. It is salutary principle of law that when two views were plausible one favourable to the accused would- be preferred. In the instant case it is most plausible that the accused were named because of existing enmity.
13. As far as the recoveries are concerned, they do not link the accused with the crime for the reasons that weapons were not stained D with blood and during recovery proceedings none from the public was associated. Exh.P.F. And Exh.P.G. Memos of recoveries were prepared by Sher Muhammad, S.-I./P.W.10 and were attested by Abdul Rehman and Muhammad Ramzan, Constables. No recovery was effected from Umar Hayat. However, the recovery of iron rod was shown to have been effected at the instance of Muhammad Ehsan, who was admittedly not armed with any rod at the time of occurrence. Similarly, Sher Muhammad stated about collecting of glass pieces of signal light while the complainant did not own the story of collecting of broken pieces of glass.
14. After considering the above noted circumstances, we have concluded that it was an unwitnessed occurrence and the prosecution case is not free from doubts. Consequently, this appeal is allowed. The judgment passed by the learned trial Court is set aside. The appellants are acquitted of all the charges. They would be released from jail forthwith, if not required in any other case.
15. Murder Reference to the extent of Mehr Ali appellant is answered in the negative. His death sentence is not confirmed.