' IJAZ AHMAD CHAUDHRY, J.---This judgment will dispose of Criminal Appeal No,1800 of 2000 filed by Muhammad Afzal, Muhammad Ashraf, Muhammad Khalid and Muhammad Iftikhar appellants against their convictions and sentences and Criminal Appeal No,2023 of 2000 filed by the complainant Muhammad Iftikhar Ahmad against the acquittal of Ghulam Mustafa alias Duli, Muhammad Anwar, Khadim Hussain, Muhammad Saleem alias Cheema and Habib Ahmad along with Murder Reference No,655 of 2000 sent by the learned trial Court under section 374, Cr.P.C. For the confirmation of death sentences as all these matters have arisen from the same judgment dated 22-112000 passed by the learned Sessions Judge, Toba Tek Singh through which he has convicted the above said four appellants under section 302(b), P.P.C. For committing Qatl-e-Amd of Zahoor, Mst. Zubaida, Ijaz Ahmad and Sarwar deceased respectively and sentenced them on individual count to death with compensation of Rs,1,00,000 each payable to the legal heirs of the respective deceased or in default of payment thereof to further undergo R.I. For six months each.
Anwar alias Maji co-accused was convicted under section 324, P.P.C. For causing injuries to Mst.
Shahida P.W. And sentenced to seven years' R.I. With a fine of Rs,50,000 or in default of payment thereof to undergo R.I. For six months each. The fine if recovered half of the same was to be paid to Mst. Shaida injured P.W. Mustafa and Khadim co-accused were also found guilty under section 324, P.P.C. For causing injuries to Mst. Tasneem P.W. And sentenced to seven years R.I. Each with a fine of Rs,50,000 each or in default of payment thereof to undergo R.I. For six months each. The fine if recovered half of the same was to be paid to Mst. Tasneem injured P.W. As compensation. All the above said appellants along with co-accused were also convicted under section 440, P.P.C. And sentenced to two years' R.I. Each with a fine of Rs,5,000 each or in default of payment thereof they have to undergo R.I. For six months.
2. The occurrence in the present case according to the prosecution had taken place on 28-9-1993 at 7-30 a.m. Within the area of Chak No,277/JB, 5 kilometers away from Police Station, Nawan Lahore, District Toba Tek Singh and the statement (Exh.P.G) of the complainant Muhammad Iftikhar Ahmad (P.W.14) was recorded under section 154, Cr.P.C. By Inspector/S.H.O. (P.W.26) on the same day at 9-00 a.m. While present at Chak No,279/JB Darapur on the basis of which formal F.I.R.
(Exh.P.G. /1) was recorded at the Police Station by Muhammad Saleem, Moharrar/Constable (P.W.4) at 9-50 a.m.
3. The brief facts as narrated in the F.I.R. (Exh.P.G/1) by the complainant Iftikhar Ahmad are that on the fateful day he along with Ijaz Ahmad his brother (Lambardar), Zahoor Ahmad, Muhammad Sarwar, Zubaida Begum, Mst. Shahida his wife, and Mst. Tasneem was sitting in the house and they were busy in talking with each other. In the meanwhile Muhammad Ashraf appellant armed with rifle, Muhammad Afzal appellant armed with rifle, Muhammad Khalid appellant, Khadim Hussain co-accused, Iftikhar Ahmad appellant armed with .12 bore guns, Saleem alias Seema co-accused Mustafa alias Duli co-accused armed with .12 bore guns, Habib co-accused armed with gun .12 bot Khan Muhammad alias Khani armed with gun, Majha armed with .222 rifle and Tariq armed with .12 bore gun came at the spot while raising Lalkaras. Muhammad Ashraf appellant raised a Lalkara that the complainant/victims should not be escaped. Muhammad Afzal appellant fired with rifle which hit on the backside of Zahoor Ahmad. Muhammad Ashraf appellant fired with rifle which hit on the front of forehead of Zubaida Begum. Muhammad Khan co-accused fired with gun at Ijaz Ahmad, which hit on his right buttock. Habib co-accused fired with gun which hit on the left buttock of Ijaz Ahmad, Khalid appellant fired with his gun which hit on the front of chest of Ijaz, Khan alias Khani made the fires one after the other at Ijaz Ahmad which hit on different parts of the his body.
As soon as Muhammad Sarwar, Mst. Shahida Bibi and Mst. Tasneem stepped forward, Iftikhar appellant fired at Muhammad Sarwar which hit on different parts of his body. Majha fired with rifle at Mst. Shahida which hit on her chest, Khadim Hussain and Mustafa fired with their guns which hit on the foot and shoulder of Mst. Tanseem. Muhammad Afzal appellant fired with rifle which hit on the abdomen of Muhammad Sarwar. On hue and cry and report of firing Muhammad Ali and Muhammad Asif residents of the, village arrived there and witnessed the occurrence who beseeched the accused and rescued the complainant party. The accused also broke the house hold articles of the complainant and went away while raising Lalkaras and firing. During the occurrence the complainant party also made the firing in their defence and some of the accused were also injured. When the complainant attended Ijaz Ahmad, Zahoor Ahmad and Mst. Zubaida Begum, they had succumbed to the injuries by fire-arms. Sarwar also died later on while Mst.
Tasneem (P.W.15) and -Mst. Shahida Bibi (P.W.16) were injured.
4. The motive behind the occurrence was alleged that the accused had injured Nazir Ahmad alias Faqir Muhammad one day before the occurrence and Ijaz Ahmad, Lambardar brother of the complainant was rendering the assistance to him, which gave annoyance to the accused, resulting into this occurrence.
5. After the registration of the case Shahryar Inspector (P.W.26) went to the spot and inspected the three dead-bodies lying there. He prepared the injury statement Exh.PAK and inquest report Exh.PAL of Zahoor deceased, injury statement Exh.PAM and inquest report Exh.PAN of Mst. Zubaida Bibi deceased and the injury statement Exh.PAO and inquest report Exh.PAP of Ijaz deceased. He deputed three Constables namely, Muhammad Sharif, Gulzar Ahmad and Asghar Ali to escort the dead bodies of Zahoor Ahmad, Mst. Zubaida Bibi and Ijaz deceased respectively. He also deputed Gulzar Ahmad, Constable to escort the earth, made into a sealed parcel and took into possession vide recovery memo. Exh.P.T. From the place where the dead body of Ijaz Ahmad deceased was lying. He secured blood-stained earth, made into sealed parcel and took into possession vide recovery memo. Exh.P.Q. From the place where Sarwar deceased sustained injuries. He also secured blood-stained earth, made into a sealed parcels and took into possession vide recovery memo. Exh.P.V. He recovered 14 crime empties of .12 bore gun and took into possession vide recovery memo. Exh.P.J. He also took into possession six crime empties of .7 MM and took into possession vide recovery memo. Exh.PK. He further took into possession seven crime empties of .222 bore rifle and took into possession vide recovery memo. Exh.P.L. He also took into possession two broken chairs P.10/1-2, one steel chair P.11, damaged plastic tray P.12 , damaged four steel plates P.13/1-4, one steel donga damaged P.14, another plastic tray damaged P.15 vide recovery memo.
Exh.P.R. He drafted rough site-plan of the place of occurrence Exh.PAQ. He recorded the statements of the P.Ws. Thereafter he visited Gojra Hospital where after the postmortem examination on the dead body of Zahoor Ahmad deceased, Muhammad Sharif, Constable handed over to him the last-worn clothes blood-stained Bunyan P.1 and. Dhoti P.2 which he took into possession vide recovery memo. Exh.P.F. Similarly after the post-mortem of Mst. Zubaida Bibi, Gulzar Ahmad Constable produced before him the last-worn clothes Qameez P.23, Shalwar P.24 and Dopatta P.25 all stained with blood which he took into possession vide recovery memo. Exh.PAJ. In the same way after the postmortem examination of the dead body of Ijaz, Akhtar Ali Constable handed over to him last-worn clothes Qameez. P.21, Bunyan P.22 and Shalwar P.20 which he took into possession vide recovery memo. Exh.PAT. On the same day he visited DHQ Hospital Faisalabad where Sarwar deceased while in an injured condition was admitted. He submitted, an application Exh.PAR but the doctor opined that he was not fit to make a statement. On 30-9-1993 he again visited the said hospital and submitted an application Exh.PAS for the same purpose. The doctor again opined that he was not fit to make statement till that time. On 1-10-1993 he again visited the same hospital and submitted an application Exh.PAT and the doctor opined that he was fit to make a statement. He, therefore, recorded his statement under section 161, Cr.P.C. (Exh.PAU). On 2-10-1993 he received an information about the death of said Muhammad Sarwar in the hospital. He again visited the said hospital where injury statement Exh.PAC and inquest report Exh.PAD of Muhammad Sarwar were drafted by him. He deputed Nabi Ahmad Constable to escort the dead body of Muhammad Sarwar deceased to the mortuary. The said Nabi Ahmad after the post-mortem examination handed over to him the last-worn clothes Dhoti P.16 of Sarwar deceased which he took into possession vide recovery memo. Exh.P.W. And he also recorded his statement. On 3-10-1993 he led Kazim Hussain Gilani Draftsman to the spot who took the rough notes on the basis whereof he drafted site-plan Exh.PH/Exh.PH/1, which he handed over to him on 7-10-1993. On 4-10-1993 he arrested Muhammad Afzal appellant in the case. On 20-10-1993 he arrested Khadim co-accused, Iftikhar appellant, Ghulam Mustafa, Anwar and Saleem co-accused. On 29-10-1993 Saleem co accused while in police custody led to the recovery of gun double barrel P.17 from his house which he took into possession vide recovery memo. Exh.PX/1. He also obtained non-bailable warrants of Tariq, Khalid, Habib, Khan Muhammad and Ashraf appellant and deputed Ghulam Rasool for the execution. He also obtained proclamation against the said accused and deputed said Ghulam Rasool Constable for execution. Talat Mahmood S.-I. (P.W.28) also investigated the case, arrested some of the accused and effected recovery of alleged crime weapons from them.
6. After the completion of the investigation report under section 173, Cr.P.C. Was submitted in the Court. Then copies of the documents required under section 265-C, Cr.P.C. Were supplied to the appellants and their co-accused, the charge was framed which was denied by them and they claimed to be tried. The prosecution in order to prove its case produced as many as 28 witnesses.
The medical evidence had been furnished through the statements of Dr. Iqbal Rashid (P. W. 10) , Dr. Muhammad Anwar (P.W .18), Dr. Muhammad Yousaf (P.W.19), Dr. Aftab Ahmad (P.W.20) and Dr. Bahsir Ahmad (P.W.24) while the ocular account had been provided by Iftikhar Ahmad (P.W.14), Mst.
Tasneem Ijaz (P.W.15), Mst. Shahida Bibi (P.W.16) who were injured during the incident, and Mubarik Ali (P.W.17). The investigation had been conducted by Shahryar Inspector/S.H.O. (P.W.26) and Shaukat Ali Shah, Inspector (P.W.27). The remaining witnesses are of formal nature and need not to discuss here.
7. After the close of the prosecution evidence all the accused in their statements under section 342, Cr.P.C. Denied the allegations and professed their innocence. However, Muhammad Ashraf and Muhammad Afzal appellants had admitted their presence at the spot and specific plea of self- defence had been raised by the said appellants. To a question that why this case against you and why the P.Ws. Have deposed against you?" Muhammad Afzal appellant made the reply, which is reproduced as under:-- ' "A day before the present occurrence an altercation took place between I and Ali Ahmad father of Aqif P.W. Ijaz Ahmad was closely related to Ali Ahmad and he threatened dire consequences for the same. We had a dera in Square No,37 Killa No,15 and our cattle are kept there day and night. We keep watch during the night also. During the night before the occurrence I and my brother Ashraf kept watch over the cattle and for the purpose of safety we were having a .12 bore gun with us. In the morning of the day of occurrence we milked the buffaloes and started for our home carrying the bucket of milk and the gun. The place of occurrence falls on our way from our field to our house.
As we reached near we saw Ijaz Ahmad, Aqif with .7 MM rifle and his brothers Asif with .12 bore gun present there. They started firing. My sister Kalsoom came forward to entreat Ijaz Lambardar to spare us. Sarwar abused her, Asif gave her a butt blow and she fell down. Ashraf .Received fire-arm injures from the shots of the said complainant party. We were living helpless and the assailants were threateningly coming closer to us. I made two SG shots aiming the anybody. However, Ijaz received injury on his back from a shot fired from his own side. We were removed in a serious condition to General Hospital, Gojra. We were medically examined but the Medical Officer referred us to Allied Hospital, Faisalabad. The complainant party is very influential. They gathered Mehr Muhammad Sadiq of Chak No,333/JB Member Zila Council, Arshad of Chak No,278/JB and a number of other influential Arians and with mutual consultation made out this false version against me and other accused."
' Muhammad Ashraf appellant also relied upon the said reply of his brother Muhammad Afzal. The appellants did not opt to make statement under sections 340(2), Cr.P.C. And also denied to produce any defence evidence.
8. The learned trial Court after hearing the arguments of both the parties had passed the impugned judgment of conviction and sentence as detailed in para.1 ante. Hence all these matters before this Court.
9. Learned counsel for the appellants contends that the occurrence in the present case had taken place in the year 1993 and since then the appellants are behind the bars; that it was a case of two versions and 11 person were named as accused to be armed with fire-arms and the two appellants namely Muhammad Afzal and Muhammad Ashraf along with Mst. Kalsoom had also received injuries during the incident from the side of the complainant and the appellants had acted in self- defence; that only seven injuries in total had been received by the complainant party and on the other hand both the appellants Afzal and Ashraf had received five fire-arm injuries and if 11 persons had participated in the incident as alleged by the complainant party, the number of the injuries received by the complainant party would have been much more; that there was burning on the injuries of Muhammad Afzal which means that he had received the injuries from a close range and if the incident had taken place in the manner narrated by the prosecution, nobody would dare to cause the injuries to Afzal from such a close range; that Afzal had received the injuries from two type of weapons; that the Investigating Officer had conducted the investigation in a dishonest manner in spite of the fact that the complainant claimed that he also fired in self-defence, but he did not ask the complainant party for the supply of the weapon allegedly used by them and did not send the same to the office of Forensic Science Laboratory to ascertain whether any empty recovered from the spot had been tired from the said weapon or not; that the Investigating Officer had tried to suppress the true facts and had not conducted the investigation in an impartial manner; that the eye-witnesses had not spoken the whole truth; that according to the F.I.R. The incident had taken place in the courtyard of the house but at the trial the venue was changed to a thoroughfare in front of the house; that the injuries on the persons of the accused has not been sufficiently explained by the prosecution witnesses, who had magnified the role of the accused and minimized their role; that the medical evidence was also in contradiction with the ocular account, as per prosecution case Muhammad Sarwar was fired at by Afzal appellant on his abdomen, but no injury was found on the abdomen of Sarwar; that Iftikhar Ahmad appellant was alleged to have fired repeatedly hitting on the different parts of the body of Sardar, but no injury with firearm was found except Injury No,1, which was on the lower part of the chest; that Khadim Hussain and Mustafa according to the prosecution had fired at Mst. Tasneem but she received two injuries only and Injury No,1 was kept under observation and the weapon used for causing the same was not declared while Injury' No,2 was caused with blunt weapon; that Khan Muhammad was attributed repeated shots on the person of Ijaz hitting on different parts of his body and Muhammad Khalid appellant was also attributed injuries on the lower buttock of Ijaz while Habib was alleged to have caused injury on the left buttock, but number of injuries attributed to the three accused did not commensurate with the injuries observed by the doctor at the time of postmortem examination of Ijaz deceased; that the co-accused who were also attributed injuries on the person of the deceased and the injured P.Ws. Have already been acquitted and the appellants could not be convicted on the basis of the same evidence which has been disbelieved regarding the other accused unless there was corroborative piece of evidence to distinguish their case; that true facts had been suppressed by the prosecution and if both the versions are put in juxtaposition it would be found that the story of the defence was more nearer to the truth; and lastly that the case of the appellants at the most is not fit for maintaining the death sentences and their sentences may be reduced.
10. Learned counsel for the complainant and the State on the other hand have opposed this appeal on the ground that every case has its own circumstances; that the appellants had come along with the acquitted accused in the shape of group and they had a motive to commit the murder of the deceased and launching of an attack on the complainant party; that the occurrence had taken place near the house of the complainant party and the accused had no justification for entering in the house of the complainant and made firing at the deceased and the injured P.Ws.; that four persons had been murdered and two were injured and the motive was also proved beyond any shadow of doubt that a day before one Nazir had been injured by the accused and Ijaz being Lambardar had provided help to the injured person to get registered the case against the appellants and close relatives of the witnesses in the said case against the accused had been murdered; that the whole family had been attacked and the minor contradictions in the statements of the witnesses are not sufficient to discard the evidence.
11. We have heard the arguments of the learned counsel for the parties and also perused the record with due care and caution.
12. The occurrence in the present case was alleged to have taken place at 7-30 a.m. While the matter was reported to the police at 9-00 a.m. At a place other than the police station. Such F.I.Rs, are seen with doubt that whether those had been registered at the given time or not. As such whether the F.I.R. Was got lodged with promptitude has to be seen with the other facts and circumstances of the case.
13. To prove the ocular account, the prosecution examined Iftikhar Ahmad complainant (P.W.14), Mst. Tasneem Ijaz (P.W.15), Shahida Bibi (P.W.16) and Mubarik Ali (P.W.17). P.W.14 was brother of Ijaz Ahmad deceased, P.W.15 was widow of Ijaz Ahmad deceased, P.W.16 is wife of the complainant and P.W.17 was also collateral of Ijaz Ahmad deceased. As such all the P.Ws. Were closely related inter se and with the deceased. It is settled A law that mere close relationship of the witnesses is not sufficient to declare them interested witnesses and discard their evidence unless it is proved that they had enmity to falsely implicate the accused. In the present case no previous enmity existed between the parties. P.Ws. 15 and 16 were injured during the occurrence while P.Ws. 14 and 17 were also residents of the same locality. As such the presence of the P.Ws. At the spot was free from doubt. However, in the facts and circumstances of the case, mere presence of the P.Ws. At the spot and witnessing the occurrence is not sufficient to prove that they had also made true account of the occurrence as in the present case two appellants, namely, Muhammad Ashraf and Muhammad Afzal besides their sister Mst. Kalsoom had also received injuries, which, were not sufficiently explained by the prosecution. So great care and caution is required to appreciate the prosecution evidence and reach a just conclusion.
14. First of all we have noticed that according to the prosecution version narrated in the F.I.R. The occurrence had taken place inside the house of the complainant, but at the trial while appearing as P.W.14 the complainant had changed the venue of the incident while saying that after the accused party arrived and raised a Lalkara that the complainant party should not be spared, they went out of the house due to fear but the accused encircled them in the adjacent chowk. It is also notable that according to the Investigating Officer when he visited the spot after the recording of the statement of the complainant he had found the dead-bodies lying in the courtyard of the house as claimed by the complainant in his statement under section 154, Cr.P.C. According to the inquest reports the dead-bodies were also shown lying in the courtyard and according to the Investigating Officer the blood-stained earth was also collected from the courtyard of the house of the complainant, but it seems that subsequently the venue of the incident during the investigation had been changed as in the rough site-plan too the dead bodies were shown lying in the courtyard but in the site-plan got prepared from the Draftsman on the pointing out of the witnesses and direction of the police incident was shown to have taken place on a thoroughfare outside the house of the complainant party and none of the deceased or the injured P.Ws. Were claimed to have been fired at inside the house. So there was contradiction in the stand of the prosecution regarding the most important fact that as to where the incident hid taken place and no sanctity can be attached to the F.I.R. That it was got lodged with promptitude.
15. According to the prosecution version, eleven accused including the four appellants had participated in the incident and specific injuries had been attributed to the appellants as well as the acquitted accused, namely, Muhammad Tariq, Khadim Hussain, Ghulam Mustafa, Muhammad Saleem, Muhammad Anwar and Habib Ahmad, but the medical evidence is not found in line with the ocular account regarding the number of the injuries attributed to each of the accused.
According to the eye-witnesses Muhammad Afzal appellant had fired at Sarwar hitting on his abdomen and Iftikhar Ahmad appellant had also fired at Sarwar hitting on the different parts of his body. Muhammad Saleern and Muhammad Tariq co-accused were also alleged to have fired at Sarwar deceased as per statement of P.W.14 and P.W. 15 in the courtyard though it had not been mentioned in the statements got recorded under sections 154 and 161, Cr.P.C. We have noticed that Muhammad Sarwar in injured condition had been medically examined on 28-9-1993 by Dr. Muhammad Anwar (P.W.18) and he found Injury No, 1 a fire-arm would of entry with inverted margins 1 c.m. x 1/2 c.m. On front of left chest lower part 10 c.m. Below left nipple and with a fire-arm wound of exit with everted margins 1 c.m. x 1 c.m. On the back of left abdomen. Injuries Nos.2 and 3 were abrasions on back of right thumb and left foot. So the medical evidence has contradicted the stand of the eye-witnesses that Muhammad Sarwar deceased was firstly fired at by Iftikhar Ahmad appellant on the different parts of his body as no such injuries were observed by the doctor.
Muhammad Sarwar was also alleged to have fired at by Saleern and Tariq co accused, but no such fire-arm injuries had been found on his body. Only fire-arm injury found on the lower chest of Muhammad Sarwar could be as a result of firing from Afzal though the witnesses stated that the said injury was on the abdomen of Sarwar deceased but it was on . The lower part of left chest. So it cannot be said that the said injury was only attributable to Muhammad Afzal as Muhammad Sarwar was alleged to have been fired at by Iftikhar, Saleern and Tariq besides Muhammad Afzal.
Moroever, Shahida Bibi (P.W.16) in his examination- in-chief had attributed injury on the chest of Muhammad Sarwar deceased to Iftikhar appellant, but the said P.W. Did not name Afzal appellant with the role of causing fire-arm injury on the chest of Muhammad Sarwar deceased.
16. The medical evidence is also found in contradiction with the ocular regarding the injuries on the person of Ijaz deceased as per statement under section 154, Cr.P.C. Muhammad Khalid appellant was alleged to have fired twice hitting Ijaz Ahmad deceased hitting on the front of chest and the right buttock. Habib co-accused was attributed fire hitting on the left buttock of Ijaz Ahmad deceased. Khan Muhammad alias Khani co-accused was alleged to have made repeated shots hitting on different parts of body of Ijaz deceased. The postmortem of Ijaz deceased was conducted by Dr. Iqbal Shahid (P.W.10) and he observed first fire-arm wound on the right side of chest with corresponding exit wound on outer side of left chest. Injury No,2 was described;- "5 fire-arm wounds of entry one of them 2.5 c.m. x 2 c.m, and the remaining each 3/4 c.m. x 3/4 c.m.
On the outer side of right buttock. There was corresponding six exit wounds of each 1 c.m. x 1 c.m. On the inner side of right buttock. These pellets after their exit from the right buttock entered into the left buttock from the inner side at the same level causing six entry wounds of each 3/4 x 3/4 c.m.
The corresponding exit wounds were three in number of each 1 c.m. x 1 c.m. On the outer side of the left buttock. A wad and three pellets were recovered from the right buttock and three pellets were recovered from the left buttock."
' Injury No,3 was a gutter lacerated wound on the back of right forearm. Injuries attributed to Habib co-accused on the left buttock of Ijaz Ahmad deceased as per medical evidence were not result of independent fire and it seems that for the said reason at the trial it was alleged that the fire of Habib had hit Ijaz Ahmad deceased on the buttock and left side was omitted. Khan Muhammad P.O. Was also attributed repeated fire shots on the person of Ijaz hitting on different parts of his body. Only an independent fire-arm injury on the right chest was found and the injury on the outer side of left chest was an exist wound. As such number of the injuries attributed to the three accused on the person of Ijaz Ahmad deceased does not commensurate with the number of injuries found on the person of the said deceased.
17. We have also noticed that Mst. Tasneem Ijaz injured P.W.15, according to the statement of the complainant under section 154, Cr.P.C, was fired at by Khadim Hussain and Mustafa acquitted accused hitting on the foot and shoulder, but while appearing in the Court as P.W.14 he did not state the seats of the said injuries. She was medically examined by Dr. Aftab Ahmad (P.W.20) and he observed Injury No,l a rounded wound of about 1/2 c.m. Diameter on the front of left upper chest towards outer side while Injury No,2 on the dorsum of the left foot was an abrasion. Injury No,2 was declared to have been caused by blunt weapon and Injury No,l was kept under observation for kind of weapon. During the cross-examination the doctor P.W.20 clarified that the advice for X-ray of injury No,l was given so as to determine the nature of said injury vis-a-vis type of weapon, but no such X-ray was produced and injury No,l on the person of Mst. Tasneem Akhtar most probably be with a blunt weapon. So it cannot be said that Mst. Tasneem Ijaz (P.W.15) had received any fire-arm injury during the occurrence and to this extent as well the ocular account is in contradiction with the medical evidence.
18. From the above discussion it is clear that the medical evidence did not fully support the ocular account. The eye- witnesses had also made dishonest improvements in this regard and also changed the venue of the incident outside the house by introducing a fact that the accused had encircled the deceased and the P.Ws, and then fired at them. The site- plan does not disclose that the accused had encircled the deceased and the eyewitnesses as they were not in such position.
Mst. Kalsoom sister of the appellants, namely, Muhammad Afzal and Muhammad Ashraf, Mst.
Tasneem injured P.W.15 had received injuries with blunt weapon. Mst. Sarwar deceased also received two of the injuries with blunt weapon, but the said injuries were not explained by the P.Ws.
The eye-witnesses also are not found truthful witnesses as they had suppressed the injuries on the persons of Muhammad Afzal and Muhammad Ashraf appellants. Though in the F.I.R, it was stated by Muhammad Iftikhar Ahmad complainant that in self-defence he had also fired, yet he did not disclose specifically that who had received injuries as a result of firing by the complainant.
However, while appearing in the Court as P.W.14 he had improved his statement by introducing that he fired with revolver at the accused. Even at the trial he did not disclose that the shots fired by him hit which of the accused. It also appears that the injuries on the persons of the accused were declared as were caused by two different weapons and in order to bring the Case in line with the medical evidence regarding the injuries on the persons of the accused, in his statement at the trial Mubarik Ali (P.W.17) also claimed that he also fired with . l2 bore gun on the accused. The said improvements appear to be dishonest and the witnesses had not spoken the whole truth.
19. On the other hand the appellants Muhammad Afzal and Muhammad Ashraf as per their claim which is supported by the medical evidence had received injuries during the incident and they were medically examined by Dr. Aftab Ahmad (P.W.20) at Tehsil Headquarters Kamalia on the same day at 11-30 a.m. And Mst. Kalsoom Akhtar daughter of Muhammad Amin (sister of the appellants) was also medically examined at 11-40 a.m. And she had received an injury on the left side of head with blunt weapon and the nature of the injury was kept under observation. On the same day at 11-45 a.m. Muhammad Ashraf D appellant was medically examined by the same doctor and he observed the following injuries on his person;-
(1) An oval wound of 2 c.m. x 1 c.m. On the front of the right lower abdomen on the outer side. The edges were lacerated and inverted. This was the entry wound caused by fire-arm weapon. There was corresponding exit wound of 8 c.m. X 4-1/2 c.m. With everted edges on the front of the right abdomen. Corresponding holes were present in the Qameez which were blood-stained.
(2) A lacerated wound of 3 c.m. x 1/2 c.m. X scalp deed on top of the head at middle.
(3) An oval wound of 1 c.m. x 3/4 c.m. On front of left thigh. The edges were lacerated and inverted.
This was the entry wound caused by fire-arm weapon. There was corresponding exit wound of 4 c.m. X 3 c.m. With everted edges on the outer side of the left thigh."
' All the injuries were kept under observation and injuries. Nos. 1 and 3 were declared as fire-arm and injury No,2 with blunt weapon and the duration of the injuries was declared as within six hours.
He was referred to Allied Hospital on the same day at 11-50 a.m. (P.W.20). The same doctor also medically examined Muhammad Afzal appellant, who had received four injuries and all the injures were caused by fire-arm weapon. During the cross-examination it was admitted by the Medical Officer that the said appellant was in a serious condition and he was referred to Allied Hospital, Faisalabad without giving any treatment to him and he also declared that injuries Nos.l and 3 on the body of Afzal might be caused by some bullet. So it has been established beyond any shadow of doubt that Muhammad Afzal and Muhammad Ashraf along with their sister Mst. Kalsoom had also received the injuries during the incident. We are satisfied that the occurrence had not taken place in the manner narrated by the prosecution and no sanctity is attached to the statements of even the injured P.Ws, and they cannot be relied upon unless the roles attributed to the appellants are corroborated by some other pieces of evidence on the record.
20. It is notable that the P.Ws, had nominated 11 accused in the incident, who all were alleged to have made firing at the four deceased and two injured ladies and injuries were specifically attributed to some of the accused. We agree with the learned counsel for the appellant that in the facts and circumstances of the present case, it was not humanly possible for the witnesses to witness all the accused making firing and receiving of each and every injury by the victims. It is also found that the prosecution witnesses cannot be declared as truthful witnesses, who appear to have magnified the role of the accused and minimized the role played by them during the incident.
21. We do not find their statements confidence-inspiring also due to the reason that they had also involved Habib, Anwar alias Majha, Khadim Hussain, Mustafa, Saleem and Tariq with the role of causing injuries to the deceased and injured P.Ws., who had already been acquitted by the learned trial Court. We have also found the medical evidence in contradiction with the ocular account regarding the roles attributed to the accused persons. The statements of the said witnesses cannot be relied upon against the appellants as well without any independent corroboration. Reliance is placed on Ghulam Sikandar and another v. Mamraz Khan and another PLD 1985 SC 11; Sarfraz .Alias Sappi and 2 others v. The State 2000 SCMK 1758 and Iftikhar Hussain and another v. The State PLJ 2004 SC 552.
22. The recoveries are inconsequential as none of the empties recovered from the spot which were sent to the Office of the Forensic Science Laboratory and subsequently the weapons were also sent allegedly recovered from the appellants had matched with the said weapons. ##TE# The conduct of the Investigating Officer is deplorable as he admitted during cross- examination that he never asked the complainant party to produce the weapons used during the incident and did not make any effort to recover the same and sent the said, weapon to the office of Forensic Science Laboratory as well for ascertaining that whether the empties recovered from the spot were fired at from the weapons used by the complainant party. The Investigating Officer has also blatantly made false statement as he firstly stated that he did not come to know that the accused were also injured during the incident and subsequently stated that when he went to DHQ Hospital, Kamalia where Mst. Tasneem Kausar P.W. Was examined he came to know that Afzal and Ashraf were also medically examined and they had also received fire-arm injuries during the incident. He was confronted with his previous statement. The standard of evidence of police official had gone to this extent that they are not hesitant in making a blatantly false statements in the Court. The Investigating Officer is bound to collect the evidence but in the present case he has tried to conceal the true facts and had made false statement and we are constrained to observe about his conduct subsequently.
23. The motive was not proved as Nazir Ahmad alias Faqir Muhammad, who was allegedly injured by the same accused a day earlier to the instant occurrence and Ijaz Ahmad deceased being the Lamberdar had rendered help to him was not produced to prove the said factum. Moreover, no F.I.R, of the earlier incident had been brought on the record.
24. Now we come to the defence plea raised by the appellants, reproduced in para. No,7 ante. It appears that the appellants had also not spoken the whole truth as the incident admittedly had taken place near the house of the complainant party and if they while armed with weapons had to manage an attack upon the accused when they were returning to their house, the loss suffered by the complainant party into the death of four persons and receiving of injuries by two ladies could not occur. As observed earlier, the incident had also not taken place in the manner narrated by the complainant party as the injuries on the persons of Afzal with fire-arm were having burning which means that the said injuries could be caused from a very close range and if the prosecution story is believed and Afzal was armed with rifle, it was not possible for anybody to cause injury to him' from such a close distance while taking the risk of his own life. The defence plea is also not believable for the reason that not only the deceased, namely, Zahoor Ahmad, Sarwar and Ijaz deceased received fire-arm injuries during the incident but a household lady Mst. Zubaida Bibi also received the injuries during the firing by the accused party. It seems that the occurrence had also not taken place in the, manner narrated by the defence. Both the parties had suppressed the true facts including the origin of the fight and participation of the parties in the incident and firing by each of the members of the said party. However, the participation of Muhammad Ashraf and Muhammad Afzal appellants during the occurrence has been established as they themselves admitted their presence at the spot, which is further stamped by the receiving of the injuries by them during the same incident.
25. As a result of the above discussion we find that the prosecution has not been able to prove the case against' Iftikhar Ahmad appellant as he according to the F.I.R, had fired at Sarwar deceased hitting on different parts of his body. At the trial P.W.14 did not state the seat of the injury attributed to Iftikhar Ahmad appellant and according to him injury on the belly of Sarwar was caused by Muhammad Afzal appellant. On the other hand the remaining three P.Ws. 15, I6 and 17 attributed injury on the chest of Muhammad Sarwar deceased to Iftikhar Ahmad appellant, but they did not state that any other injury on the belly of Sarwar was caused by Muhammad Afzal appellant. As such to the extent of the role attributed to Iftikhar Ahmad appellant, all the four eye-witnesses had contradicted each other. Similarly Muhammad Khalid appellant had been attributed fire-arm injuries on the right buttock and the chest of Ijaz Ahmad deceased, but simultaneously it was stated by the witnesses that Habib co-accused also fired at Ijaz hitting on his left buttock. Khan Muhammad P.O. Was also alleged to have fired repeatedly at Ijaz hitting on the different parts of his body. We have also observed earlier that the injuries on the left buttock were not result of the independent fire, which according to the F.I.R, were specifically attributed to Habib co-accused. It could not be said with certainty that as to which fire of the three accused had hit the deceased on what part of the body. The possibility of widening the net by involving maximum members from the family of the accused party cannot be ruled out. We find that to the extent of Iftikhar Ahmad and Muhammad Khalid appellants, the ocular account is neither fully supported by the medical evidence nor it finds corroboration from any other independent piece of evidence. As such we have no hesitation in holding that to their extent the prosecution had failed to prove its case beyond any shadow of doubt. Resultantly, the convictions and sentences recorded against Iftikhar Ahmad and Muhammad Khalid appellants are set aside and they are acquitted of the charges by extending them the benefit of doubt, who shall be released forthwith, if not required in any other criminal case. Criminal Appeal No, 1800 of 2000 to their extent stands partly accepted.
26. Now we are left with Muhammad Ashraf and Muhammad Afzal appellants, whose participation in the incident has been established not only from the ocular account, but also from the other circumstances of the case. They admitted their presence at the spot and participation in the occurrence, but in a different manner. We have already observed that the said appellant had also not spoken the whole truth and concealed the real facts. Four persons were murdered and two injured from the complainant side. We have perused their statements wherein they admitted to have fired in the incident. The injuries on the persons of Afzal and Ashraf were with fire-arm and if they had received such injuries in the manner narrated by them, they would not have been in a position to fire at the complainant party and murdered the deceased. The defence failed to prove that it was a case of self-defence as the occurrence had taken place near the house of the complainant side and if the occurrence had taken place as narrated by the defence, then not more loss could be done to the complainant party. Even three ladies from the complainant side were injured out of whom Mst. Zubaida died. The defence failed to disclose that how the said three ladies had participated in the occurrence and injured. Hence, to the extent of Muhammad Ashraf and Muhammad Afzal appellants, we have no hesitation in holding that to their extent sufficient material is on the record for declaring them guilty and their convictions recorded by the learned trial Court under section 302(b), P.P.C, is maintained.
27. So far as quantum of sentence is concerned, we have already observed that both the parties had not come with clean hands and suppressed the real facts. The origin of the occurrence was not disclosed. Both the appellants also received fire-arm injuries during the incident, which were materially suppressed by the complainant side. We have also held earlier that it was humanly impossible to attribute specific injuries to each of the accused when 11 accused had made firing at the time of incident as per prosecution's case. We find that in the facts and circumstances of the case, the awarding of capital sentence of death would be a harsh order and as an abundant caution the death sentence awarded to Muhammad Ashraf and Muhammad Afzal appellants is not maintained and the same is converted to life imprisonment. However, the direction for payment of compensation of Rs,1,00,000 to each of the appellants as directed by the learned trial Court is maintained, but in default of payment thereof they will further undergo S.I. For six months each. They shall also be extended the benefit of section 382-B, Cr.P.C. So far as the sentence recorded by the learned trial Court against the said appellants under section 440, P.P.C, is concerned, suffice it to say that later on the venue of the occurrence was changed by the prosecution from the house to the Chowk outside the house and it cannot be said that after committing such a heinous offence, the accused would dare to enter the house of the complainant for destroying the household articles. Moreover, both the appellants were also injured during the occurrence and according to the medical evidence their condition was serious. It is doubtful that in such a condition they were able to go inside the house after the incident and destroyed household articles. Thus they are acquitted of the charge under section 440, P.P.C. The impugned judgment is modified accordingly and to their extent. Criminal Appeal No, 1800 of 2000 stands partly dismissed.
28. Criminal Appeal No,2023 of 2000 filed by Muhammad Iftikhar complainant is dismissed having not been pressed during the arguments.
29. Murder Reference No,653 of 2000 is replied in the negative and death sentence is not confirmed.
30. Before parting from this judgment we are constrained to observe about the deplorable conduct of Shahryar Investigating Officer (P.W.26) during the investigation and also at the trial. He appears to have intentionally avoided to bring the true facts on the record and also failed to collect the available evidence- and properly investigate the case, which could be relevant for enabling the Court to reach a definite conclusion about the guilt of otherwise of the accused as different types of crime empties were claimed to have been recovered' from the spot showing that different weapons had been used. The complainant also admitted to have made firing in the incident. The said/Investigating Officer during the cross-examination admitted that he did not ask the complainant party to hand over their weapons which they had used during the incident and the complainant party also had licensee weapons. If the said weapons recovered and sent to the office of Forensic Science Laboratory during the investigation, it could be ascertained that whether the said weapons had been used by the complainant party or not. Moreover, during the cross- examination he also admitted that he did not investigate how the accused side sustained injuries and who caused the injuries to them. Due to this intentional avoidance of bringing on record certain evidence he is prima facie guilty of framing incorrect record with intent to save person from punishment, which is covered by section 218, P.P.C, etc. The learned Sessions Judge, Toba Tek Singh is directed to move for registration of a criminal case against the said Investigating Officer at the relevant police station.
31. Similarly we have also noticed that while appearing in the Court as P.W.26, the said Investigating Officer apparently had made false statement on different occasions during the cross-examination.
Firstly he stated that it did not transpire during investigation that Ashraf and his sister Kalsoom were also injured in the occurrence, but conceded that in the F.I.R, it was clearly mentioned that some of the accused were also injured. Then it was stated that he had come to know from the doctor that Ashraf, Afzal accused and Mst. Kalsoom had left the hospital and this fact was told to him by the doctor, who had medically examined them. Again said that it was not brought to his notice tliat Ashraf, Afzal and Kalsoom were already referred to Allied Hospital, Faisalabad, but in the same breath conceded that the complainant party had informed him that the above named three injured were present in Civil Hospital, Faisalabad. Then he voluntarily stated that they were not present. But again he conceded that he did not mention in his statement dated 9-6-1994 before the Special Court that they were not present in the Civil Hospital, Faisalabad. He is prima facie guilty of giving false evidence during the judicial proceedings. The learned Sessions Judge, Toba Tek Singh is also directed to serve Shehr Yar, the then Inspector (P.W.26)/Investigating Officer of this case with a notice to show cause that why he be not proceeded under section 476 read with section 195, Cr.P.C, and punished under section 193, P.P.C.