Asif Saeed Khan Khosa, J.--Muhammad Akram appellant was convicted for an offence under Section 302(b), P.P.C. vide judgment, dated 30-3-2001 delivered by the learned Additional Sessions Judge, Sargodha and was sentenced to death and to pay a sum of Rs. 50,000 to the heirs of Shah Muhammad deceased by way of compensation under Section 544-A, Cr.P.C. or in default of payment thereof to undergo simple imprisonment for fix months. A co-accused of the appellant namely Muhammad Aslam had been declared a Proclaimed Offender by the learned trial Court and his case had been separated by it from that against the appellant. Two other co-accused of the appellant namely Zulfiqar Ali and Mubarik Ali had separately been tried by the learned trial Court earlier and they were convicted and sentenced by it but they had been acquitted by this Court through an appeal filed by them. Muhammad Akram appellant has challenged his conviction and sentence before this Court through Criminal Appeal No. 76-J of 2001 whereas Muhammad Hussain complainant has preferred Criminal Revision No. 378 of 2001 before this Court seeking enhancement of the sentence passed by the learned trial Court against the appellant. We have heard both these matters alongwith Murder Reference No. 283 of 2001 seeking confirmation of the sentence of death passed by the learned trial Court against the appellant and we propose to decide all these matters together through the present consolidated judgment.
2. According to the prosecution's case unfolded in the F.I.R. Muhammad Hussain complainant was a resident of Mauza Mirza Virkan situated within the area of Police Station Saddar, Sheikhupura and a brother of the complainant namely Muhammad Arshid had earlier been murdered. Muhammad Akram appellant was one of the accused persons in the said case of murder and at the time of the present occurrence he was a Proclaimed Offender in that case. The complainant and his father namely Shah Muhammad alongwith Syed Hamza Ali Naqvi and Ghulam Muhammad had gone to Chak No. 91/NB Shomali situated within the area of Police Station Factory Area, Sargodha in search of the appellant and they had spent the night between 29/30.6.1995 at the house of one Abdul Husnain who was a former member of the local Union Council. At about 7-00 a.m. on 30-6-1995, after failing to find the appellant in the Chak, the complainant and his companions were returning home but when they reached near the abadi of Chak No. 85/NB Shomali within the area of Police Station Factory Area, Sargodha suddenly Muhammad Akram appellant armed with a double barrel gun .12 bore, Muhammad Aslam accused armed with a single barrel gun 12 bore, Zulfiqar Ali accused armed with a hatchet and Mubarik Ali accused also armed with a hatchet emerged there while riding a donkey-cart and raising lalkaras. At that time the complainant's father namely Shah Muhammad was walking a few steps behind the complainant and others. The appellant and his co-accused stopped Shah Muhammad and told him that he was to be taught a lesson for making efforts to trace the appellant. Thereafter, within the view of the complainant and others Muhammad Akram appellant fired at the complainant's father namely Shah Muhammad and the shot hit Shah Muhammad on his chest. Simultaneously Muhammad Aslam accused also fired at Shah Muhammad hitting him on his left wrist and arm. After receipt of those injuries Shah Muhammad fell down and died at the spot. In the meanwhile Zulfiqar Ali and Mubarik Ali amused had been raising lalkaras while proclaiming that if anybody tried to come near the accused party then he too would be done to death. The complainant and others beseeehed the appellant and his co-accused whereafter the appellant and his co-accused left towards Chak No. 91/NB Shomali on the same donkey cart while firing in the air. The motive set up in the F.I.R. was that about two years prior to the present occurrence Muhammad Akram appellant and co-accused namely Allah Dad, Yaqoob Ali and Yameen had Murdered the complainant's brother namely Muhammad Arshid when Muhammad Arshid had asked for return of his money which had been borrowed from him by the accused party. Muhammad Akram appellant had been declared a Proclaimed Offender in the said case of murder and at the time of the present incident the complainant and others were returning home after making an effort to trace the present appellant. Leaving the dead-body of Shah Muhammad deceased at the spot in the care pf Syed Hamza Ali Naqvi and Ghulam Muhammad P.Ws. Muhammad Hussain complainant went to Police Station Factory Area, Sargodha and lodged F.I.R. No. 100 thereat in respect of the said incident at 302, P.P.C. read with Section 34, P.P.C.
3. The investigation of this case was initially conducted by Faiz Muhammad, Inspector and then by Muhammad Aslam Khan, Inspector/S.H.O. (P.W.6). During the investigation the place of occurrence was inspected, an injury statement and an inquest report were prepared, the dead-body was dispatched to the mortuary for autopsy, blood-stained earth and two crime-empties were recovered from the spot a rough site-plan of the place of occurrence was prepared and statements of witnesses were recorded. After the post-mortem examination of the dead-body the last-worn clothes, of the deceased were secured and later on a formal site-plan of the place of occurrence was got prepared. The appellant was declared a Proclaimed Offender and he was , subsequently arrested and upon completion of the investigation a challan was prepared and submitted in connection with this case.
4. At the commencement of the trial the learned trial Court framed a charge with one head under Section 302, P.P.C. read with Section 34, P.P.C. against the appellant to which he pleaded not guilty and claimed a trial.
5. During the trial, the prosecution produced ten witnesses in support of its case against the appellant. Muhammad Hussain complainant (P.W.3) and Ghulam Muhammad (P.W.4) furnished the ocular account of incident in question and they also deposed about the motive. Muhammad Hussain (P.W.7) stated about spending of the relevant night by Shah Muhammad deceased and Sycd Hamza Ali Naqvi P.W. at his house. Muhammad Younas, A,S.-I. (P.W.9) and Tariq Mahmood, F.C.
(P.W. 10) stated about the efforts made by them to serve the appellant with warrants and a proclamation before the appellant was declared a Proclaimed Offender. The medical evidence was provided by Dr. Safdar Mehmood (P.W.8). Faiz Muhammad, Inspector, the initial Investigating Officer, had died before the trial and the steps taken by him during the investigation of this case were proved by Sanawar Hussain, A.S.-I. (P.W.5). Muhammad Aslam Khan, Inspector / S. H.O. (P.W.6) deposed about arrest of the appellant and submission of challan against him. The remaining evidence produced by the prosecution was more or less formal in nature.
6. In this statement recorded under Section 342, Cr.P.C. the appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. He, however, opted not to make a statement on oath under Section 340(2), Cr.P.C. and did not produce any witness in his defence.
7. Upon conclusion of the trial the learned trial Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt and, thus, it convicted and sentenced the appellant as mentioned and detailed above. Hence, the present appeal, revision petition and the connected Murder Reference before this Court.
We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that the eye- witnesses produced in this case by the prosecution were related, chance and inimical witnesses and the presence of the said eye-witnesses at the scene of the crime at the relevant time had remained far from being established. She has also argued that motive is a double-edged weapon and it could cut both ways. She has gone on to contend that there was no evidence available on the record to establish that the appellant knew about registration of the present case against him and, thus, he could not have been declared a Proclaimed Offender in connection with this case. It has been submitted by the learned counsel for the appellant that no weapon had been recovered from the appellant's possession during the investigation of this case. She has further contended that the medical evidence had squarely contradicted the ocular account furnished in this case. It has, thus, been canvassed by her that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and therefore, the appellant deserves to be acquitted by the Court. As against that the learned counsel for the State and the learned counsel for the complainant have maintained in unison that the prosecution had succeeded in establishing the appellant's guilt to the hilt and, therefore, reference by this Court. They have pointed out that the appellant has already been convicted in the case of murder of the complainant's brother namely Muhammad Arshid which case had formed the motive in the present case and thus, the appellant deserves-no sympathy in the matter of sentence. The learned counsel for the complainant has gone on to submit that in the circumstances of this case the compensation ordered by the learned trial Court to be paid by the appellant may suitably be enhanced by this Court.
9. After hearing the learned counsel for the parties and going through the record of this case with their assistance we have observed that both the eye-witnesses produced in this case by the prosecution, i.e. Muhammad Hussain complainant (P.W.3) and Ghulam Muhammad (P.W.4) were related, inimical and chance witnesses. Muhammad Hussain complainant (P.W.3) was a son of Shah Muhammad deceased whereas Ghulam Muhammad (P.W.4) was a first maternal cousin of the deceased. According to the statements made by both the said witnesses before the learned trial Court a brother of Muhammad Hussain complainant (P.W.3) namely Muhammad Arshid had allegedly been murdered by the present appellant and others and the present appellant was a Proclaimed Offender in connection with the said murder. Both Muhammad Hussain complainant (P.W.3) and Ghulam Muhammad (P.W.4) were prosecution witnesses in the said case of murder.
Muhammad Hussain complainant (P.W.3) had stated twice before the learned trial Court about 'enmity' of the complainant party with the present appellant. He had also admitted before the learned trial Court that two of his relatives had also been challaned in connection with a murder of the present appellant's father and even he himself had been nominated as an accused person in the case of murder of the appellant's father Muhammad Hussain complainant (P.W.3) had further Stated before learned trial Court that the appellant was equally inimical towards him and his father namely Shah Muhammad deceased and, thus, we have found it to be rather strange that despite the claimed presence of the above mentioned eye-witnesses near Shah Muhammad deceased at the time of the present occurrence the said eye-witnesses had not even been aimed at or fired at by -the appellant. Both Muhammad Hussain complainant . (P.W.3) and Ghulam Muhammad (P.W.4) had statedly travelled with Shah Muhammad deceased and Syed Hamza Ali Naqvi P.W. from their house in District Sheikhupura to the place of occurrence situated within District Sargodha in order to locate and find out the present appellant and they had claimed to have stayed at the house of one Abdul Husnain in Chak No. 91/NB Shomali during the night between 29/30-6-1995 and the present occurrence had taken place at about 7-00 a.m. on 30-6- 1995 when they had left the house of Abdul Husnain for going towards their own home in District Sheikhupura. Muhammad Hussain a son of the said Abdul Husnain had appeared before the learned trial Court as P.W.7 and he had categorically stated that it was Shah Muhammad deceased and Syed Hamza All Naqvi P.W. who had stayed at their house for the relevant night. He had never confirmed the fact that even Muhammad Hussain complainant (P.W.3) and Ghulam Muhammad (P.W.4) had stayed for the relevant night at the house of Abdul Husnain or that the above mentioned eye-witnesses were accompanying Shah Muhammad deceased and Syed Hamza Ali Naqvi P.W. on that occasion. The statement made by Muhammad Hussain (P.W.7) before the learned trial Court had pulled the rug away from under the feet of the above mentioned eye-witnesses and had exposed the hollowness of their claim regarding accompanying the deceased on the relevant occasion. It is, thus, abundantly clear to us that both the said eye- witnesses had been procured and planted in this case at some subsequent stage and that they were not accompanying Shah Muhammad deceased at the time of the present occurrence. Apart from that Muhammad. Hussain complainant (P.W.3) had claimed that the dead-body of Shah Muhammad deceased had been removed from the spot initially to the Police Station at 3/4.00 p.m. on 30-6-1995 and then from the Police Station to the mortuary at about Maghrib prayer time on that day. Even Ghulam Muhammad (P.W.4) had claimed that the dead-body of the deceased had been removed from the place of occurrence at Deegarwela. Both the said witnesses had, however, been given a lie in this respect by Muhammad Nawaz, F.C. (P.W.1) who had clearly stated before the learned trial Court that the dead-body of the deceased had been removed by him from the place of occurrence to the mortuary at about 10-30 a.m. on 30-6-1995. Sanawar Hussain, A.S.-I. (P.W.5) was the Moharir posted at the relevant Police Station on the day of the present occurrence and he had stated before the learned trial Court that information about the present occurrence had been received at the relevant Police Station at about 6/7-00 a.m. on 30-6-1995, it may be pertinent to mention here that according to the above mentioned eye-witnesses produced by the prosecution the occurrence in this case had taken place at 7-00 a.m. on 30-6-1995 and an F.I.R. in that regard had been lodged at 7-45 a.m. on that day. The occurrence in the case in hand had taken placed at a deserted and an isolated place. Gahna Khan, Patwari (P.W.2) had stated before the learned trial Court that the place of occurrence was about one square away from the village abadi and also that the murder in issue had taken place not on a thoroughfare but in crop. The statement made by Muhammad Hussain complainant (P.W.3) before the learned trial Court shows that Shah MUhammad deceased had many enemies apart from the appellant inasmuch as Shah Muhammad deceased had been challaned in the case of murder of one Idrees and also that eleven persons of his family had been murdered in the year, 1998 on the basis of an on-going enmity with the perpetrators of those murders. In the above mentioned backdrop we have entertained no manner of doubt that Muhammad Hussain complainant (P.W.3) and Ghulam Muhammad (P.W.4) had been procured and planted in this case at some subsequent stage and that the murder of Shah Muhammad deceased in the area of a District other than the District of his residence had remained un-witnessed.
10. Instead of providing support to the ocular account the medical evidence furnished in this case had gone a long way in contradicting and discrediting the eye-witnesses. The occurrence in this case had taken place at about 7-00 a.m. on 30-6-1995 and an F.I.R. in that regard had been lodged at 7-45 a.m, but, the post-mortem examination of the dead-body had been conducted at 8-30 a.m. on the following day, i.e. 1-7-1995. Muhammad Nawaz F.C. (P.W.1) had stated before the learned trial Court that the dead-body had been handed over to him at the spot at 10-30 a.m. on 30-6-1995 and he had taken the dead-body for the hospital at 11.00 a.m. on the same day. Dr. Safdar Mehmood (P.W.8) had maintained that he had started the post-mortem examination of the dead-body when the dead-body had been produced before him. His statement shows that as a matter of fact the dead-body had been produced before him on 1-7-1995 and not on 30-6-1995.
An explanation for that delay had become available from the statement of Muhammad Nawaz, F.C.
(P.W.1) who had unmincingly stated before the learned trial Court that "The post-mortem commenced on the arrival of the legal heirs of the deceased on the second day". Apart from that such a delay in conducting post-mortem examination of a dead-body is generally suggestive of an un-witnessed occurrence wherein time is utilized by the complainant party and the police in order to procure and plant eye-witnesses and to cook up a story of the prosecution. It may also be relevant to mention here that according to the site-plan of the place of occurrence (Exhibit-PB) the distance between the appellant and the deceased at the relevant time was two and a half karams and Muhammad Hussain complainant (P.W.3) had mentioned that distance as 12/13 feet but according to the Post-mortem Examination Report (Exhibit-P1) and also according to the statement made by Dr. Safdar Mehmood (P.W.8) Injury No. .1 sustained by the deceased had "slightly blackish edges" such blackening on that injury was not possible from the distance mentioned above. It may also be relevant to mention here that Dr. Safdar Mehmood (P.W.8) had found the stomach of the deceased to be empty whereas the small intestines contained semi- solid contents and the large intestines contained faecal matter. No eye-witness had mentioned anything about taking of breakfast by the deceased before leaving the house of Muhammad Hussain (P.W.7) in the morning and, thus, it could well be that Shah Muhammad deceased had a rendezvous with his death some time during the night between 29/30-6-1995 and the entire story about his having been murdered at 7-00 a.m. in the morning of 30-6-1995 had been falsely cooked up. The duration between the death and the post-mortem examination given by Dr. Safdar Mahmood (P.W.8) was about 25/26 hours, In the above mentioned circumstances we have found the medical evidence available in this case to be destructive of the ocular account.
11. It had been alleged by the prosecution that the appellant had become a Proclaimed offender in connection with this case and he had been arrested on 5-3-1999 i.e. after about four years of the present occurrence. In his statement recorded under Section 342, Cr.P.C. the appellant had maintained that after his implication in the case of murder of the complainant's brother namely Muhammad Arshid about two years prior to the present occurrence he had gone to Karachi on account of fear of retaliation by the complainant party and, thus he had no knowledge about the present case. That stand of the appellant could well be true because even according to the prosecution's own case the appellant was a Proclaimed Offender in the earlier case of. murder of Muhammad Arshid and he was not available at his normal place of residence at the time of the present occurrence and that is why the complainant party of the present case was looking for the appellant in different districts at the time of the present occurrence. In that backdrop the efforts allegedly made by Muhammad Younas, A.S.-I. (P.W.9) and Tariq Mehmood, F.C. (P.W. 10) for serving the appellant with warrants and a proclamation were not of much avail to the prosecution because according to the prosecution's own case the appellant was not available in the vicinity at the relevant time. There is no independent evidence available on the record of this case to infer that the appellant knew about the efforts made by the above mentioned witnesses to serve him with warrants or a proclamation and that he had wilfully abstained from joining the investigation of this case at the relevant time.
12.Admittedly no weapon had been recovered from the appellant's possession during the investigation of this case and, thus, no corroboration to the ocular account was forthcoming on this score.
13.The only other piece of evidence left in this case is the motive but, as is proverbial, motive is a double-edged weapon and it can cut both ways. Pitched enmity between the parties to this case is an admitted fact and, thus, mere motive alleged by the prosecution has been found by us to be insufficient to clinch the issue regarding the appellant's culpability vis-a-vis the murder of Shah Muhammad deceased.
14.For what has been discussed above a conclusion is irresistible, inescapable and unavoidable that the prosecution had failed to prove its case against the appellant beyond reasonable doubt.
Criminal Appeal No. 76-J of 2001 is, therefore, allowed, the conviction and sentence of the appellant recorded by the learned trial Court are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case.
15.In view of acquittal of Muhammad Akram appellant recorded by us above Criminal Revision No. 378 of 2001 preferred before this Court by Muhammad Hussain complainant has lost its relevance and the same is, therefore, dismissed.
16.Murder Reference No. 283 of 2001 is answered in the negative and the sentence of death passed by the learned trial Court against Muhammad Akram appellant is not confirmed.