' MUHAMMAD FARRUKH MAHMUD, J.---This judgment will dispose of Criminal Appeal No.624 of 2002 filed by Muhammad Hafeez, Liaqat All and Muhammad Ashraf who along with Muhammad Yousaf, Muhammad Sadiq and Muhammad Arif faced trial . In case F.I.R. No.265, registered at Police Station Jaranwala, District Faisalabad., on 10-4-2000, for offences under sections 302/ 324/109/34, P.P.C, before learned Additional Sessions Judge, Faisalabad, who after conclusion of trial, vide his judgment dated 17-4-2002, while acquitting Muhammad Yousaf, Muhammad. Sadi and Muhammad Arif, convicted Muhammad Hafeez-appellant under section 302(b)/34, P.P.C. And sentenced him to death, whereas Liaqat Ali and Muhammad Ashraf- appellants were convicted under sections 302(b)/34, P.P.C. And sentenced to imprisonment for lift. All the three appellants were directed to pay fine amounting to Rs.1,00,000 each or in default two years' R.I. They were also directed to pay compensation amounting to Rs.1,00,000 each or in default six month's R.I. Each.
2. Murder Reference No.306 of 2002 for confirmation or otherwise of death sentence awarded to Muhammad Hafeez appellant shall also be disposed of through this single judgment.
3. Brief facts of the case as mentioned in F.I.R. Exh.P.W.4/A are that Qaim Din-complainant along with his brother Anwar Baig had boarded Bus No.3865/AJKA near Chak No.31/GB for going to Jaranwala. Kutchery in connection with bail matter of their nephews Munawar and others. At about 7-30 a.m. When the bus reached near 55-wala Pull three persons Muhammad Ashraf son of Taj Din, son of Sadiq Kharal of 27/GB who was limping due to fire-arm injury on his foot and one unknown person, who could be identified on coming before him, armed with fire-arms, came from behind on a motorcycle and stopped the bus. Muhammad Ashraf stood in front of the bus and raised Lalkara that Muhammad Anwar should not go alive. The son of Sadiq Kharal and the third unknown person went inside the bus and started dragging Muhammad Anwar, who resisted. The unknown person caused fire with .30 bore pistol, which hit on the left thigh of Muhammad Anwar.
On the beseeching of P.Ws. And the passengers the accused left the spot. The occurrence was witnessed by the complainant and Haji Nazir Ahmad as well as the passengers of the bus.
4. The motive behind the occurrence was that Arif and others had murdered Arshad (nephew of the complainant) and the trial was pending before the Special Court. Arif and others were compelling Muhammad Anwar for compromise, who did not agree. For that revenge the accused on the instigation of Sadiq, Arif and Yousaf committed the murder of Muhammad Anwar.
5. After registration of formal F.I.R.The investigation of the case was taken over by Muhammad Akram, S,I./P.W.10, who reached Civil Hospital, Jaranwala, and moved an application to the Doctor for recording of statement of the injured, if he was in fit condition, but the Doctor reported that the injured was not in a position to make any statement. Thereafter he inspected the spot and secured the blood from the bus, where Muhammad Anwar received injuries, vide memo. Exh,P.W.7/A. He also took into possession the bus in which the incident had taken place vide memo. Exh.P.W.10/B. After death of Muhammad Anwar, he prepared inquest report .Exh.P.W.10/E and injury statement Exh,P.W.10/F. On 30-4-2000 he arrested Muhammad Hafeez, Liaqat Ali and Muhammad Ashraf.
Muhammad Hafeez, while in custody on 7-5-2000, led to the recovery of pistol Exh.P.W.9/1, which was taken into possession vide. Memo. Exh.P.W.9/A. On the same day Liaqat Ali led to the recovery of motorcycle, which was taken into possession vide memo.- Exh.P.W.10/G. On 26-6-2000 he also arrested Muhammad Sadiq and Muhammad Arif.. After completion of investigation, the accused were sent up to face trial.
6. At the trial, the prosecution in order to prOve its case produced 11 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.PZ closed its case.
The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence and false implication. They did. Not appear as witness under section 340(2), Cr.P.C. After conclusion of trial, the learned trial Court, while acquitting Muhammad Yousaf, Muhammad Sadiq and Muhammad Arif, convicted and sentenced the appellants as stated above.
7. The learned counsel for the appellants 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 in support of this appeal has contended that all the witnesses were chance witnesses; they were also related to the deceased and were inimical towards the appellants; that neither name of Liaqat Ali nor name of Muhammad Hafeez was mentioned in the F.I.R. Although they were previously known to the P.Ws; that the statements under section 161, Cr.P.C. Of Haji Nazir Ahmad and Muhammad Asghar were recorded on the next date but no reason has been advanced why their statements were not recorded on the very first day, moreover name of Muhammad Asghar was not mentioned in the F.I.R. As witness; that the P.Ws, who were closely related to the deceased, would not allow their near one to die through loss of blood and would have tried to bandage the wounds, if they would have been present at the time of occurrence; that it was stated by the complainant that Liaqat Ali had received a bullet wound and he could be identified because of his limp; that the learned trial Court observed that there was no sign of bullet injury on the foot of Liaqat Ali nor he limped; that the motive lied with the acquitted co-accused and not the appellants; that no corroboratory evidence worth reliance was produced before the learned trial Court; that the story of travelling in bus could not be proved, as all the witnesses gave different versions about the purchase of tickets and seats of passengers; and that the Investigating Officer admitted that the driver of the bus did not support the prosecution story.
8. On the other hand, the learned Additional Prosecutor General submits that the presence of the complainant is proved from the fact that he was one who took the injured to the Hospital; that his statement is corroborated by the statements of -Muhammad Asghar and Haji Nazir Ahmad; that the ocular account is supported by the medical evidence and corroborated by the circumstances of the case; that the ocular account was further supported by the .Recovery of pistol from Muhammad Hafeez-appellant and motorcycle from Liaqat Ali-appellant. He supports the judgment passed by the learned trial Court.
9. We have heard the learned counsel for the parties at length and gone through the entire evidence with the able assistance of the learned counsel for the parties.
10. In order to prove its case the prosecution produced three eye-witnesses before the learned trial Court. Qaim Din complainant P. W.7. Is brother of the deceased; Muhammad Asghar P.W.8 is son of the deceased, while deceased was Mamoonzad of Haji Nazir Ahmad P.W.9. All the witnesses were not only related to the deceased but they were also chance witnesses and admittedly inimical towards Muhammad Arif and other acquitted co-accused, who were related to the appellants. The occurrence took place in Chak No.55/GB, while the complainant and the P.Ws. Were residents of Chak No.30/GB. According to the prosecution story, the complainant and his brother Muhammad Anwar boarded a bus from Chak No.31/GB in order to go to the Courts situated at Jaranwala. The occasion mentioned in the F.I.R. Was the hearing of bail of nephews of the complainant, namely Munawar and others. However, it was never brought on the record' that whether any date of hearing was fixed or not. Neither Munawar nor any of the nephews was produced before the learned trial Court to justify their going towards Courts. As per F.I.R. Bus was forcibly stopped by three accused, who were armed with firearms. It was near Chak No.55/GB. One of the accused was mentioned as Muhammad Ashraf-appellant, while the other accused was mentioned as son of Sadiq Kharal who used to limp because of fire-arm injury on his foot. According to complainant the third accused was not known to him and he could identify him on coming across. Muhammad Ashraf stood outside the bus and raised Lalkara that Muhammad Anwar should not be spared. Son of Sadiq Kharal and the accused, who .Was not previously known to the complainant, entered the bus. They tried to drag Muhammad Anwar out of the bus, who resisted. Meanwhile, the unknown accused caused fire with .30 bore pistol, which hit on the left thigh of Muhammad Anwar. The complainant and Haji Nazir Ahmad P.W.9 along with other passengers saw the occurrence; however, they did not interfere. The accused left the bus on beseeching of the passengers and the P.Ws. It may be noted here that the relationship of Haji Nazir Ahmad was not mentioned in the F.I.R.
Muhammad Asghar P.Ws. Was also not named as witness therein. The motive behind the occurrence was that Muhammad Arif (since acquitted) had murdered Arshad nephew of the complainant and the case was pending before the Special Court and Arif and others used to force Muhammad Anwar to enter into compromise, who refused.
11. The matter was reported to Muhammad Akarm, SI/P.W.10 at Civil Hospital, Jaranwala, at about 9- 15 a.m. During trial Qaim Din P.W.7 named Liaqat Ali who was mentioned as limping acused in the F.I.R. He also named Muhammad Hafeez as, accused, who had fired at Muhammad Anwar.
According to him, due to perplexity he could not mention the name of Muhammad Hafeez and Liaqat All in Fard Byan. However, his explanation does not fit in the circumstances of the case.
During cross-examination when questioned about the number of bus which had been mentioned in the F.I.R. He stated that he did not know the number of bus as he was illiterate and in the F.I.R. His nephew has got recorded the number of the bus. Tie further stated that crime report (Fard Bayan) was got recorded by his nephew Muhammad Asghar P.W. And he had thumb marked the same only. Muhammad Asghar appeared as P.W.8. -He admitted that his statement was recorded on the next date of occurrence i.e. 11-4-2000 at 10-00 a.M. At Police Station. Furthermore, his name was not mentioned in the F.I.R. So by stating that it was Asghar on whose statement Fard Bayan was recorded, Qaim Din told a lie under oath. He shifted later on and, stated that in fact it was Sarwar, who was mentioned as nephew, who had got recorded the F.I.R. He further stated that Sarwar nephew knew Muhammad Hafeez accused very well. In that case the name of Muhammad Hafeez must have been mentioned in the F.I.R.
12. In the F.I.R. The complainant described Liaqat Ali-accused as son of Sadiq Kharal, who used to limp due to firearm injury. During cross-examination it was suggested to him that Liaqat All accused had never received any fire-arm injury on his . Foot but he denied it, therefore, at that stage both the feet of accused Liaqat Ali were shown to the witnesses as well as to the Court.
According to the observation of the Court, (available at page 22 of the paper book) there was no visible fire-arm injury on any of the foot of Liaqat Ali.
13. In the instant case the injury was un the thigh of Muhammad Anwar-deceased According to Dr. Anwar. Saood Saqih, the cause of death was haemorrhage and shock, which resulted from injuries.
He further opined that time between injuries and death was about 9 to 10 hours. Obviously after receipt of 'injury Muhammad Anwar was bleeding profusely. The relatives of the deceased, if present there, would not have allowed Muhammad Anwar to bleed to death and they must have given him some first aid and must have tried to stop the bleeding. On the contrary, Qaim Din, who was real brother of the deceased, after admitting that he always wore a turban stated that the injury of the deceased was not bandaged by him or other P.Ws. And blood remained oozing. He further stated that he did not put his turban around the injury and added that he did not want to get his turban stained with blood. No brother would do that in case of being present. Life of a brother would be much more precious than the price of a turban. On the similar point HO. Nazir Ahmad P.W., who was cousin of the deceased stated that despite availability of a big handkerchief no bandage was applied to the deceased either by him or by any other related P.W. He admitted that his brother Muhammad Anwar died on account of loss of blood after receipt of injury. Similarly Asghar Ali, who was real son of the deceased, in case he. Would have been B present at the time of occurrence, would have tried his level best to stop the bleeding and would not care whether turban or handkerchief were stained with blood or spoiled. It was observed by the Supreme Court in para.12 of the judgment passed in the case of Arif Hussain and another v. The State (1983 .SCMR 428) that "it also does not appeal to reason that father and brother (of deceased) who reached the spot on the alarm of the deceased Ibrar Hussain would come out of their house without arming themselves properly, or on the spot they would not make any attempt to save the life of one of their dear ones".
14. Qaim Din in his examination-inchief, which was recorded on 1-4-2002 stated that the said two motorcyclists after entering into bus grappled with Muhammad Anwar-deceased and dragged him outside the bus, but later on the chute his statement by stating that the injury was caused inside the bus. According to him, he had taken Anwar, while he was injured, to Hospital. In the same bus, wherein he was shot. However, according to Muhammad Akram, S.I/P.W.10, the bus was not present in the Hospital rather it was at the spot. He further stated that probably injured was brought to the Hospital in a Dalla. Neither any passenger nor the driver of the bus has been produced to support the story of boarding the bus and incident inside, it. However, P.W.10 stated that he recorded the statement of the bus driver but he was not shown as witness in the calendar of witnesses because he did not support the prosecution version. The P.Ws. Also remained unable to tell as to who purchased the tickets and if purchased why the same were not given to the Investigating Officer in proof of their presence.
15. Asghar Ali P.W.8, who is son of the deceased, admitted that enmity existed between the accused and the complainant party since 1997 and 4/5 criminal cases were under trial between them. His presence at the time of occurrence is not free from doubt, as in case of this presence he would not allow his father to bleed. Furthermore his statement was recorded on the next dated at 10-00 a.m.
In case he would have been present in the Hospital then his statement would have been recorded then and there. Most importantly his name was not mentioned in the F.I.R. As witness. According to him, his father had suffered bruises while he was being dragged and the fire was caused from a distance of 2/3 feet. While according to medical evidence no bruises were observed on the person of the deceased and there was no blackening around the wounds, which meant that fire was caused from some distance and not from the close range of 2/3 feet.
16. The statement of Haji NazirAhmad was also recorded on the next date. He told a patent lie before the learned trial Court by stating that his statement was recorded by the police for the first time on the fateful day at Jaranwala Hospital at 8/8-30 a.m. The learned trial Court observed that file has been checked and the statement of the witness was recorded on the following day and was not on the fateful day. Muhammad Asghar also stated that his and statement of Nazir Ahmad were recorded on 11-4-2000 at 10-00 a.m. At police station. P.W.10 Muhammad Akram S.-I. Stated that when he reached the Hospital, the complainant was accompanied by only one Jahangir. If the witnesses were travelling along with the complainant and the deceased then they must have been present at the Hospital. Neither the' Investigating Officer nor both the P.Ws. Could give any reason as to why their statements were not recorded immediately after recording of Fard Bayan.
Muhammad Akram/P.W.10 frankly conceded that he could not say anything why the said two P.Ws.
Appeared before him late on 11-4-2000.
17. As already noted above, Nazir Ahmad, though cousin of the deceased, did not make any effort to stop the bleeding. It was observed by the Honourable Supreme Court in the case of Muhammad Khan v. Maula Bakhsh and another (1998 SCM R 570) that "credibility of a witness is looked with serious suspicion if his statement under section 161, Cr.P.C. Is recorded with delay without offering any plausible explanation". Similarly the Honourable Supreme Appellate Court observed in the case of syed Saeed Muhammad Shah and another v. The State (1993 SCM R 550) that "statements recorded by police after delay and without explanation are to be ruled out of consideration."
18. Nazir Ahmad P.W.9 stated before the learned trial Court that the P.Ws. Had been talking to each other at, Jaranwala Hospital as to against whom case was to be registered and as to who and who were to be made witnesses. The statements of the P.Ws. Are also contradictory on various material points of the case. Nazir Ahmad stated that Sarwar was not available at the Hospital while according to Qaim Din it was Sarwar who got the F.I.R. Recorded. All the witnesses have given divergent statements about the seats occupied by the injured and the P.Ws. In the bus.
19. The above noted circumstances lead to a logical conclusion that none of the P.Ws. Was present at the time of occurrence. Qaim Din was first who after receipt of information took his brother to the Hospital and thereafter story was cooked up and developed step by step till the statements were made before the learned trial Court.
20. As far as the medical evidence is concerned, it supports the prosecution version that the deceased received fire-arm injury on his left thigh but no further. It F was not mentioned in the F.I.R.
Whether the injury was caused on the front of thigh or back of thigh. According to medical evidence, the fire was caused on the back of thigh and it exited from its front. Contrary to Asghar's statement no bruises were observed on the body of the deceased. Similarly no blackening was seen around the wound, which ruled out the possibility of causing of injury from a very close range.
21. The motive in this case cuts both ways, as admittedly the parties were inimical to each other and in an G unwitnessed occurrence it was most likely that the enemies would be roped in the case.
22. Alleged recovery of .30 bore pistol is of no consequence and cannot be used against Muhammad Hafeez as neither any empty nor pistol was sent to Forensic Science Laboratory.
Furthermore no H independent witness was cited as recovery witness in the memo. Qaim Din and Nazir Ahmad P.Ws., who were witnesses of the recovery, did not state a word about the recoveries when their examination-in-chief was recorded on 1-4-2000. Thereafter an application for their re- examination was moved. The learned trial Court allowed-the same by advancing reasons that in fact it would be further examination and not re-examination, so in their further examination they narrated about the recoveries. But the fact remains that they could hardly be called independent witnesses. Both these witnesses were also witnesses of the alleged recovery of motorcycle at the instance of ,Liaqat Ali. The evidence of recovery of motorcycle was also not worthy of any credence for the reason that the registration number of the motorcycle was not mentioned in the F.I.R. I and no independent witness was associated during the recovery proceedings. Furthermore the motorcycle belonged to one Rana Arshad, who got it back on Superdari.
23. In the above noted circumstances, we are of the considered opinion that the prosecution case is not free from doubt. Thus, while extending benefit of j doubt in favour of the appellants, we allow this appeal, set aside the impugned judgment and acquit the appellants from all the charges.
Muhammad Hafeez-appellant would be released from Jail forthwith, if not required in any other case. Liaqat Ali and Muhammad Ashraf-appellants are on bail, their bail bonds are cancelled and the sureties are discharged.
24. Murder Reference is answered in the negative and the sentence of death is not confirmed .