' IJAZ AHMAD CHAUDHRY, J---- This judgment will dispose of criminal Appeal No. 2047 of 2002 filed by Muhammad Din and Muhammad Ali appellants against their convictions and sentences along with Murder Reference No.133 of 2004 sent by the learned trial Court under section 374 Cr.P.C. For confirmation of death sentence as both these matters have arisen out of the same judgment dated 31-10-2002 passed by the learned Additional Sessions Judge, Sheikhupura whereby he has convicted the said appellants under section 302(b)/34, P.P.C. And sentenced them to death with compensation of Rs.75,000 each payable to the legal heirs of Anwaar Ahmad Nasir deceased or in default of payment-thereof to undergo S.I. For six months. However, through the same judgment Muhammad Ramzan, Abdul Hameed Rehmat, Gulab Bibi, Ch. Ehsan Muhammad, Afzal Gujjar, Muhammad Afzal, Nazir Ahmad Aasi, Rani, Rehmat Bibi, Parveen and Bashiran Bibi co-accused were acquitted.
2. The occurrence in the present case allegedly had taken place at 1-30 a.m. On 5-5-1995 in the Abadi of Yousaf, within the area of Darya Nankana, Warburton Road, 3 miles away from police station Nankana Sahib District Sheikhupura and on the basis of the alleged statement (Exh.CW.1/A) of Mst. Ghulam Fatima real mother of the deceased Anwaar Ahmad Nasir recorded under section 154, Cr.P.C. By Rafiq Ahmad ASI (CW.1) at the spot at 2-40 p.m. The formal F.I.R. (Exh.CW.1/A) was drafted by Ashiq Hussain Moharrar Head Constable on the same day at 3-00 p.m. At 'Police Station Nankana Sahib.
3. The brief facts as narrated in the, F.I.R. (Exh.CW.1/A) by Mst. Ghulam Fatima (P.W.4) are that she had been married with Bashir Ahmad Nasir and out of the said wedlock a son Anwaar Ahmad Nasir (deceased in this case) was born. Thereafter, her husband divorced her about 19/20 years ago and she settled her residence in village Sangianwala Kalan with her son Anwaar Ahmad Nasir. About 1- 1/2 years ago his son Anwaar Ahmad Nasir married with her real niece Mst. Ramzana Bibi daughter of Mehr Din resident of Sanginawala Khurd by developing relations with . Her, therefore she expelled Anwaar Ahmad Nasir from her house for some period because of annoyance, who (Anwaar Ahmad Nasir) along with his wife started living in the house of Gulab Bibi alias Gulabo, caste Arain whose Dera was near her residence. However after some days said Gulab Bibi alias Gulabo and her daughters Bashiran Bibi etc. Got lodged a case against Anwaar Ahmad Nasir for theft who fled away because of fear. Then they left Mst. Ramzana Bibi to. The House of her parents and for this reason Muhammad Ramzan son of Mehr Din brother of Ramzana Bibi caste jat R/o Sangianwala and others along with Mst. Gulab Bibi alias Gualbo etd. Had developed grudge against Anwaar Ahmad Nasir. On the day of occurrence i.e.5-5-1995 at about 1-30 p.m. She along with her son Anwaar Ahmad Nasir reached near the land of Darya Adda Abadi Yousaf Warburton Road, when all of a sudden Muhammad Ramzan (acquitted accused) and Muhammad Din appellant armed with datar, Muhammad Ali appellant armed with Churri sons of Mehr Din, and the acquitted accused Mst. Rehmat Bibi wife of Mehr Din, Rehmat Ali son of Ahmad Din armed with Churri, Mst. Gulab Bibi alias Gulabo wife of Ahmad Din, Mst. Bashiran Bibi, Mst. Rani Bibi Mst. Parveen Bibi daughters of Ahmad Din, who were hiding themselves near the mosque with their common two ran towards them. Mst. Gulab Bibi and Rehmat Bibi raised a Lalkara to their sons to kill Anwaar Ahmad Nasir that day for teaching him lesson for the abduction of Ramzana Bibi and stealing ornaments. Anwaar Ahmad Nasir, her son, entered into the house of Manzoor Ahmad Bazigar by running. Muhammad Ramzan etc. Also entered the said hose by chasing him she also remained requesting the accused but Rehmat. Ali and Muhammad Ali caught hold arms of Anwaar Ahmad Nasir in her presence while Ramazan and Muhammad Din with their respective daters inflicted injuries one by one on the right side and left side of the throat of Anwaar Ahmad Nasir her son respectively. Her son Anwar Ahmad fell down on receiving the injuries. Rehmat Ali inflicted many injuries one by one on the throat with the Chhuri edge and Muhammad Ali Caused repeated injuries on the back side of left shoulder of Anwaar Ahmad Nasir with his Chhuri. Thereafter, Gulab Bibi took from Rehmat Ali and Mst. Rani Bibi took from Muhammad All the Churries and Gulab Bibi inflicted repeated injuries on the chin of her son and Rani Bibi caused repeated injuries on his back. Then Rehmat Bibi and Bashiran Bibi took the Churries. Mst. Bashiran Bibi cool down their angriness by inflicting repeated injuries to Anwaar Ahmad Nasir and on the left thigh and head by Mst. Rehmat Bibi Anwaar Ahmad Nasir her son lost his life at the spot, due to the said injuries and the accused persons went towards Sangianwala while waving their daters and Churries. The occurrence was witnessed by Rana Mukhtar Ahmad (CW-7), Fateh Ali Khan, Anayat Ali (CW-3) and Muhammad Ramzan (CW-5) apart from herself. Muhammad Ramzan etc accused persons have murdered her lonely son Anwaar Ahmad Nasir on the basis of pervious grudge with their common object. She was severely oppressed and wanted redressal.
4. The investigation of this case was carried out by Muhammad Rafique ASI (C.W.1), who at about 1- 45 p.m. Reached the spot on receiving the information of the occurrence and recorded the statement (Exh.C.W.1/A) of Mst. Fatima (P.W.4), prepared rough site plan (Exh.CW-1/B) and sent the complain to the PS for registration of the F.I.R. Then he prepared the inquest report (EX-CW-1/D) along with application-cum-injury-statement (Exh.PV) and handed over the dead-body to the police constable for post-mortem examination. Afterwards he received the last-worn clothes of the deceased and took the same into possession vide memo. (Exh.C.W.1/E) while the blood-stained earth had been taken into possession from the spot vide Memo (Exh.C.W.1/F). The scaled site-plan (Exhs.C.W.l/G and G/1) was got prepared from the draftsman. Muhammad Din appellant was arrested on 13-9-1995 and on 14-5-1995 got recovered Datar Ahni (P4) from his residential house, which was taken into possession vide memo. (Exh.C.W.1/H) and rough sketch (Exh.C.W.1/H/1) of the place of recovery was prepared. Muhammad Ali appellant was arrested on 17-5-1995 and during the investigation he led to he recovery of Churri (P.5), which was taken into possession vide memo (Exh. C .W . 1/I) and rough sketch (Exh.C.W.1/I/1) of the place of recovery was prepared. Rehmat Ali (acquitted accused was also arrested by C.W.1. The I/O concluded that in his opinion Muhammad Ali and Muhammad Din appellants were guilty while the remaining accused Muhammad Ramzan and Rehmat Ali were innocent, but they were challaned in column No.3.
5. Afterwards Mst. Ghulam Fatima resorted to file writ petition in this Court while alleging that the police had not correctly recorded her version, which was disposed of. Then Bashir Ahmad Nasir (P.W.1), father of the deceased filed the private complaint containing the following story.
6. On 5-5-1995 at night when he was in his office, Qari Javed Ahmad (P.W.5) told him that on the same day he along with Muhammad Mansha (given up P.W.) and Anwaar Ahmad Nasir (deceased) departed from Mauza Sangianwala, Tehsil Nankana Sahib, District Sheikhupura for Lahore. At about 1-30 p.m. When they reached at Abadi. Dera Muhammad Yousaf Warburton Road, they sat with Muhammad Yousaf. Then Rehmat Ali acquitted accused came there who took Anwaar Ahmad Nasir, deceased aside for talking. As Rehmat Ali had already taken Anwaar Ahmad Nasir into his confidence therefore he went with hint. Anwaar Ahmad Nasir did not come back for some time and disappeared from their sight. Qari Javaid and Muhammad Mansha rushed towards them and heard the hue and cry of Anwaar Ahmad Nasir who was crying for help to escape him.
Both turned towards him and saw one Muhammad Ashraf, since P.O. Armed with dater, who slaughtered the neck of Anwaar Ahmad Nasir in their presence, while Muhammad Din and Muhammad Ali appellants were catching hold of Anwaar Ahmad Nasir from his arms and the deceased was slaughtered from the right side of neck. Then with the same dater Muhammad Din appellant also slaughtered Anwaar Ahmad Nasir by moving on dater repeatedly and in the meanwhile Muhammad Ashraf and Muhammad Ali caught hold of Anwaar Ahmad Nasir, while Muhammad Ramzan also inflicted severe injuries with dater to Anwaar Ahmad Nasir. Due to the injuries received by Anwaar Ahmad Nasir he became incapable to resist and breathed his last at the spot. According to him, the occurrence had been witnessed by Qari Javaid (P.W.-5), Muhammad Mansha and others, who were empty handed.
7.The motive behind the occurrence was alleged that his son was aloofer by his mother and the deceased according IX) his own accord married with the sister of Din Muhammad etc. His son had enmity with the local police and some other officials, who wanted to eliminate him and his son.
Many times the deceased had pointed out of his murderer in different applications appeals and cases. Those considered his son as an obstacle in their, way, therefore those wanted to murder him, which ended into this occurrence. His son was murdered at the instance/abetment/consultations with Muhammad Afzal Gujjar Inspector, Nazir Ahmad A.S.-I., Muhammad Afzal A.S.-I., Hameeda Pehalwan, Rehmat and Ghulam Bibi etc. As he was moving applications against the police officials. He remained condemned unheard, so the complainant filed the present complaint. The complainant further alleged that a criminal case was registered on the alleged statement of mother of the deceased, which was pending adjudication. He prayed for relief to punish the accused persons under sections 148/149/302 read with section 109, P.P.C.
8.The proceedings had been conducted in the private complaint and after recording the preliminary evidence of the P.Ws. And the usual inquiry the appellants along with the acquitted accused and Muhammad Ashraf (P.O) were summoned to face the trial. The copies of the documents required under section 265-C, Cr.P.C. Were supplied to them, charge was framed against them to which they pleaded not guilty and claimed to be tried.
9.The complainant produced 10 P.Ws. In all to prove his version in the private complaint and the learned trial Court also examined 7.C.Ws. The complainant (P.W.l) was not an eyewitness of the occurrence while the ocular account had been furnished by Mst. Ghulam Fatima (P.W.4) .And Qari Muhammad Javed (P.W.5), the medical evidence had been provided by Dr. Khadim Hussain (P.W.10) and the investigation had been conducted by Muhammad Rafique A.S.-I.(C.W.l). Anyat Ali (C.W.-3), Muhammad Ramzan (C.W.4) and Mukhtar Ahmad (C.W.7) were mentioned as eye- witnesses in the F.I.R., but they did not support the version contained in the F.I.R. The other witnesses are of formal nature and need not to discuss here for the purposes of this appeal.
10.On the completion of the complainant's evidence the appellants along with the acquitted accused were examined under section 342, Cr.P.C., who denied the allegations of fact and professed their innocence. However, they did not opt to make statements under section 340(2), Cr.P.C. And also denied to produce any evidence in their defence.
11.After the conclusion of the trial the learned trial Court heard the learned counsel for the parties and convicted and sentenced both the appellants through the impugned judgment as detailed in para.No. 1 ante. Hence both these matters before this Court.
12.Learned counsel for the appellants contends that the appellants were innocent, who have been illegally convicted and sentenced while the complainant had failed to substantiate the charge against them beyond any shadow of doubt; that both the alleged eyewitnesses were chance witnesses who failed to give any plausible explanation to be present at the spot at the relevant time; that the P.Ws. Had contradicted each other, on the material points; that the story had been changed in the private complaint and new accused were included; that the appellants had been involved on account of suspicion due to previous enmity and whole of their family including the women folk were nominated as accused; that the three eyewitnesses mentioned in the F.I.R.
Appeared as C.Ws. 3, 5 and 7, but they did not nominate the present appellants as accused who had committed Qatl-i-Amd of Anwaar Ahmad Nasir and according to them four unknown persons had done the said job; that the previous enmity between the parties was even admitted by the P.Ws.; that the same evidence had been disbelieved qua the acquitted accused Muhammad Ramzan, Gulab Bibi alias Gulabo, Bashiran ibi and Mst. Rani, who had been attributed active role and the same evidence could not be believed qua the present appellants as no independent corroboration was available on the record to their extent as well; that the wavering motives had been set up and the same could not be proved and that the appellants are also entitled to acquittal.
13.Learned Additional Prosecutor General on the other had had opposed this appeal and supports the impugned judgment while contending that the P.Ws. Had no enmity with the appellants for their false implication in the present case and during the investigation they had been found guilty.
14.None has turned up on behalf'of the complainant to prosecute this appeal. This appeal was filed in the year 2002 and the two appellants had been sentenced to death, but the complainant did not brother to engage any counsel to defend this appeal, as no such Vakalatnama is available on the file. Thus we feel no need to hear the complainant. As well, if he was not interested in doing so. Even otherwise we have ' already heard the learned Additional Prosecutor General on behalf of the State.
15. We have, heard the arguments advanced by the learned counsel for the parties and also perused the record with due care and caution. It is straightaway noticed that'it was a case of twisted and wavering facts. Initially the F.I.R. (Exh.C.W.l/C) had been registered on the alleged statement (Exh.C:W. 1/A) of Mst. Ghulam Fatima (PW-4) recorded by the I/O (C.W.l), but later on she disowned recording of the said F.I.R. While alleging that she was in shock and the police obtained her thumb impression on the blank paper. As such the F.I.R. Cannot be used as corroborative piece of evidence to the ocular account. Even otherwise subsequently Bashir Ahmad Nasir (P.W.1) had filed private complaint on 16-9-1998 after more than three years of the occurrence while introducing the new story and increasing the number of accused involved in occurrence who had allegedly participated in the occurrence and the police officials and one Hameeda for hatching conspiracy for. This occurrence. The trial had been initiated in the private complaint.
16. The complainant (P.W.1) himself was not the eyewitness of the occurrence and his evidence is out of consideration as the same is based all on hearsay. To prove the ocular account the complainant produced Mst. Ghulam Fatima (P.W.4) and Qari Javed Iqbal (P.W.5) claiming them the eye-witnesses of the occurrence. Mst. Ghulam Fatima (PW-4) was the real mother of the deceased whereas Qari Javed Iqbal (P.W.5) explained that he was employee of the complainant (P.W.1). Although, mere relationship of the P.Ws. Inter se and with the deceased is not a ground for discarding their evidence, but in the present case we have noticed that the previous enmity between the parties on account of having contracted wilful marriage by the deceased with the sister of the appellants and registration of a case of theft against him by the accused party was admitted during the evidence of the P.Ws. Even otherwise both the alleged eye-witnesses were not residents of the same locality where the occurrence had taken plact. P.W.4 during the cross- examination explained that the place of occurrence located at a distance of 1/1-1/2 miles from their village. Similarly P.W.5 during the cross-examination stated that his residence was about 200 miles away from the place of occurrence but then he claimed that during the days of occurrence he was posted as school teacher in a school at Lahore which was being run by the complainant and his duty hours were from 8-00 a.m. To 2-00 p.m. He further explained that he had no business, agricultural land or any house at the place of occurrence. Hence both the eyewitnesses were the chance witnesses, but they failed to explain any plausible reason for their C being present at the spot, which they were bound to give. P.W.4 only stated that on 5-5-1995 at 1-30 p.m. She along with Qari Javed, Muhammad Mansha and the deceased was present at the Dera of Muhammad Yousaf to wait for the bus as they had to go to Lahore. She failed to give any purpose for going to Lahore or that what would be the place of their stay at Lahore and how P.W.5 rho was employee of her ex husband, had joined them. Alike P.W.5 did not state for what purpose he had come at the place of occurrence and how he had joined Mst. Ghulam Faima, who was divorcee of his employer and the deceased for going to Lahore. In the absence of any explanation by the said P.Ws. For being present at the spot, we are not inclined to rely upon their evidence as the alleged eye-witnesses of the occurrence. They had also contradicted each other on the material points as according to P.W.4 Muhammad Ashraf (PO) and Muhammad Ramzan (acquitted accused) had firstly D slaughtered the deceased from the neck and then the present appellants after snatching the weapons from the aforesaid co-accused caused injuries on the person of the deceased on various parts of his body. On the other hand P.W.5 claimed that the present appellants had also caused injuries on the neck of the deceased.
17. There are other reasons as well to discard the evidence of P.Ws.4 and 5. First of all it may be noticed that in the private complaint filed by the complainant (P.W.1) the name of Mst. Ghulam Fatima (P.W.4) was not mentioned as an eyewitness of the occurrence wherein it was specifically mentioned that Qari Javed Iqbal (P.W.5) had informed him (P.W.1) that he along with Muhammad Mansha and Anwaar Ahmad Nasir deceased was setting to come Lahore when the occurrence had taken place in the way. It was also specifically mentioned therein that the deceased had been aloof by his mother Mst. Ghulam Fatima which also ruled out the possibility of her presence along with the deceased at the time of the occurrence. It appears that subsequently Mst. Ghulam Fatima (P.W.4) had been introduced as an eye-witness of this occurrence while recording evidence of the P.Ws. The complainant (P.W.1) in the examination in chief also stated that he had divorced Mst.
Ghulam Fatima (P.W.4) when the deceased was about five years old and he was brought up by him (P.W.1) and thus contradicted the version of (P.W.4). That the deceased at the time of occurrence used to live with her and they used to live consistently along with the accused at the said place. Keeping in view such contradictions in the statements of father and mother of the deceased regarding his custody after the dissolution of their marriage, we are not inclined to accept the version of P.W.4 that she had been accompanying the deceased at the time of the occurrence. Moreover according to the version of P.W.4 she had become unconscious immediately after the occurrence. P.W.5 also supported the said version while stating that after the occurrence the mother of the deceased fell down on the ground due to shock and other persons of the vicinity also gathered there.
' It is strange. That according to the version of PW-5 as told to him Muhammad Mansha (given up PW) she had remained laying unconscious at the place of occurrence till the arrival of the police, who had obtained her thumb impressions on the blank papers, but none else who had gathered there did not remove her from there to give her medical aid for saving her life. Moreover P.W.5 in his examination-in-chief stated that he was not acquainted with the area so he was not definite about the police station. There is nothing on the record that when P.W.5 was not resident of the said place and as per his own version he had come there per chance how he was aware of the names, parentage and addresses of all the accused, who had allegedly participated in the occurrence and the story narrated in the private complaint having been based on his information cannot be treated as first hand version of the occurrence. Even otherwise the private complaint had been filed after F more than three years of the occurrence without any reasonable and plausible explanation and no reliance can be placed thereon.
18. Apart from the above the defence had brought on the record an affidavit (Exh.D-C) sworn by Mst. Ghulam Fatima (P.W.4) on 18-10-1995 wherein she alleged to have nominated Muhammad Din, Muhammad Ali appellants and other accused, namely, Rehmat Bibi and Muhammad Ashraf in the occurrence on the asking of the people merely due to suspicion and she did not raise any objection on their having been released on bail or acquittal as well. During the cross-examination P.W.-4 admitted the execution of the said affidavit and owning the same while appearing in the Court of the learned Additional Sessions Judge. However, she gave the explanation that she was coerced to execute the affidavit because they made her realize that she would be murdered because of the occurrence of her son. She also claimed that her granddaughter had been put under the danger of life. On the other hand she admitted that her granddaughter was still with her and she had not lodged any report about her abduction till the recording of her statement in the Court on 15-4-2002. As such we are not inclined to accept the version of PW-4 that she had sworn affidavit (Exh.D.C) under some coercion. Even otherwise the alleged eyewitnesses namely Anayat Ali Muhammad Ramzan and Mukhtar Ahmad mentioned in the F.I.R. While appearing as C.Ws.3, 5 and 7 specifically stated that the occurrence in this case had been committed by the four unknown assailants, who could not be identified at the spot. In these facts and circumstances, we are satisfied that the ocular account furnished by the complainant in the shape of P.Ws. 4 and 5 is not confidence inspiring and cannot be relied upon for maintaining convictions and sentences of the appellants recorded by the learned trial Court.
19. We don't find their statements confidence inspiring also due to the reason that they had involved Muhammad Ramzan co-accused with the greater role of causing H injuries on the neck of the deceased, who had already been acquitted by the learned trial Court and the impugned judgment to this extent has attained finality. It has been repeatedly held by the Hon'ble Supreme Court of Pakistan in the cases of Ghulam Sikandar and another v. Mamraz Khan and another (PLD 1985 SC 11), Sarfraz alias Sappi and 2 others v. The State (2000 SCM R 1758), and Iftikhar Hussain and another v. The State (2004 SCM R 1185) that eye-witnesses who are disbelieved against some accused persons attributed active and effective roles cannot be believed against- the other accused persons unless they receive independent corroboration qua the other accused I persons.
In the case in hand, no such independent corroboration was available vis-a-vis the present appellants to be discussed hereinafter,.
20. The motive could not be proved as the P.Ws. Had contradicted each other regarding the same.,:P.W.4 claimed that on account of contracting wilful marriage by the deceased with Mst.
Ramzana, sister of Muhammad Din appellant, the accused had borne a grudge against him. On the other hand P.W.-5, the alleged eye-witness of the occurrence stated that the motive behind the occurrence was that the deceased was well-educated person and he used to write against the corruption of police. The complainant (P.W.-1), also claimed that the police officials had made a planning for the murder of the deceased, who was writing against them. As such the wavering motive set up by the P.Ws. Cannot provide any corroboration to the ocular account, which has already been disbelieved by us.
21. Now we see the recovery evidence. According to Muhammad Rafique A.S.-I. (C.W.1) he had arrested Muhammad Din appellant on 13-5-1995 and he led to the recovery of Datar on 17-5-1995 after disclosure, which was buried in the corridor of his residential house. The said recovery according to the prosecution had been effected in the presence of Sufi Muhammad Ramzan (C.W.6) and Talib Hussain (C.W.4) by Muhammad Rafique A.S.-I. (C.W.1). Similarly Chhuri had been recovered according to the prosecution from the possession of Muhammad Ali accused from the Iron Paite lying in his residential room in the presence of same set of witnesses on 17-5-1995. Talib Hussain (C.W.4) and Muhammad Ramzan did not support the recovery. Now the only statement of Muhammad Rafique A.S.-I. (C.W.1) remains on the record to prove the recovery. The complainant and other witnesses had levelled serious allegations against CW.1 that he had obtained their signatures on the blank papers and in such circumstances his sole statement is not sufficient to prove the recovery and the learned trial Court had wrongly relied upon the same. We have also noticed that according to C.W.1 Muhammad Rafique A.S.-I. He had arrested Muhammad Din appellant on 13-5-1995 and on 14-5-1995 he had led to the recovery of Datar P.4 from his residential house which had been taken into possession vide recovery memo. Exh.CW.1/H but the said recovery memo. Finds mention- the date of recovery as 17-5-1995 and how such an official witness can be relied upon who was not aware of the exact date of the recovery.
22. 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 both the appellants as well beyond any shadow of doubt. Hence, this Criminal Appeal No. 2047 of 2002 is hereby accepted, the impugned judgment of convictions and sentences recorded by the learned trial Court against the appellants is set aside and they are, acquitted of the charge by extending them the benefit of doubt, who shall be released from jail forthwith, if not required in any other criminal case.
23. Murder Reference No.133 of 2004 is replied in the negative and the death sentences awarded to Muhammad Din and Muhammad All appellants by the learned trial court are not confirmed.