IJAZ AHMAD CHAUDHRY, J. - Muhammad Khalid, Allah Ditta and Manzoor Hussain alias Jura appellants were convicted under section 302(b), P.P.C, vide judgment dated 9.5.2000 handed down by the learned Additional Sessions Judge, Gujranwala and were sentenced to death for committing 'Qatl-i-Amd' of Muhammad Rafique alias Mangu son of Muhammad Siddique and Muhammad Siddique son of Muhammad Boota deceased. All the three appellants were ordered to pay a sum of Rs. 50,000/- each to the heirs of both the deceased by way of compensation under section 544- A, Cr.P.C. All the three appellants were further convicted under section 148, P.P.C, and sentenced to three years each with direction for payment of Rs. 5,000/- each or in default of payment thereof to further undergo six months' imprisonment each. Through the same judgment, Ghulam Rasul, Faiz Muhammad and Miraj Din co-accused were, however, acquitted by the learned Trial Court while Muhammad Tariq accused had died during the pendency of the trial and to his extent the case had abated whereas Muhammad Akram and Muhammad Boota accused were declared as Proclaimed Offenders and their perpetual warrants of arrest were directed to be issued. The appellants have challenged their convictions and sentences before this Court through the present appeal which has been heard by us alongwith Murder Reference No. 369 of 2000 seeking confirmation of the sentences of death passed , by the learned Trial Court against the appellants.
We propose to decide both these matters together through the present consolidated judgment.
2. The prosecution's case unfolded in the F.I.R. (Ex. PQ) got lodged by Muhammad Hanif complainant (not produced) was that his brother Muhammad Rafique alias Mangoo deceased had strained relations with Khalid appellant on account of litigation. The respectable of the village got effected a compromise 10/12 days earlier between them in that litigation. On 17-4.1996 at about 8.00 a.m. The complainant alongwith his brother Abdul Hameed (PW.8) and one Amanat Ali (PW.9) was present near the shop of Mukhtar Teli. Muhammad Rafique alias Mangoo deceased, complainant's brother, was coming from the barber's shop namely Yaqoob after getting himself shaved and when he reached near the house of Nazir Changer, Muhammad Akram alias Makha son of Ghulam Rasul armed with repeater gun, Allah Ditta armed with gun 12-bore, Muhammad Boota alias Foga armed with pistol 30 bore, son of Ghulam Rasul, Khalid armed with rifle 7-MM, Tariq alias Hero armed with pistol 30 bore, sons of Nazir Ahmad, Manzoor alias Jhura son of Inayat armed with pistol 30 bore, all Changer by caste who were sitting ambush in the house of Nazir emerged in front of Rafique deceased. Muhammad Boota raised a lalkara that Muhammad Rafique deceased should be taught a lesson for not withdrawing from the litigation upon which Muhammad Akram fired with his gun which hit the abdomen of Muhammad Rafique deceased.
Allah Ditta fired with his gun which hit the left side of the chest of Rafique deceased. All the above- said accused then started firing with their respective weapons upon Muhammad Rafique which injured different parts of the body, who fell down. At that time, Muhammad Akram alias Makha brought a 'Toka' from inside the house and gave three 'Toka' blows on the person of Rafique deceased who died due to all the above injuries at the spot.
All the accused then went to the complainant's father Muhammad Siddique who was sitting outside the village near his cattle. Khalid fired with his rifle at Muhammad Siddique which it on his neck. Tariq fired with his pistol which hit the back of Muhammad Siddique. All the accused then chased Abdul Hameed (PW.8) who saved his life by hiding himself. All the accused then fled away while firing in the air and raising 'lalkaras'. The occurrence was witnessed, by Abdul Hameed (PW.8) and Amanat Ali (PW.9) besides the complainant. The complainant further alleged that the above- said accused had committed murders of Muhammad Rafique and Muhammad Siddique on the abetment of Ghulam Rasool, Faiz Muhammad and Miraj Din. Then the complainant while leaving Muhabbat Ali, Manzoor Hussain and Barkat Ali etc. With the dead-bodies of Muhammad Rafique and Muhammad Siddique, reached the Police Station and reported the occurrence through F.I.R.
(Ex.PQ) recorded by Tahir Majeed Khan, S.I./SHO (PW.14) at Police Station, Ladhewala Warriach,.
District .Gujranwala on 17.4.1996 at 10.00 a.m.
3. The investigation of this case was conducted by Tahir Majeed khan, S.I./SHO (PW.14), Naeem Ashfaq, S.I. (PW.10) and Muhammad Faruq Sajid DSP/SDPO (PW-15) and during the investigation the places of both the occurrences were inspected', blood-stained each was secured from the respective places, Toka (blood-stained) was recovered from the spot, rough site-plans of the places of occurrence was prepared, the dead-bodies were sent to the mortuary for autopsy, the last-worn clothes of both the deceased were received, the statements of the complainant and the witnesses under' section 161, Cr.P.C, were -recorded, formal site-plans of the places of occurrence were got prepared, the appellants and the co-accused were arrested, recovery, of different weapons of offence from the 'appellants' possession was effected and after completion of the investigation a challan was submitted.
4. At the commencement of the trial and learned Trial Court framed a charge under sections 302/148/149/109, P.P.C, against the appellants and the co- accused to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced as many as fifteen witnesses in. Support of its case against the appellants and the co-accused. The ocular account of the- incident in question was furnished by Abdul Hameed (PW.8) and Amanat Air (PW.9) who also deposed about the motive.
PW.8 also deposed about different recoveries including recovery of weapons from some of the accused while Muhammad Latif (PW7) stated about the recovery of pistol 30 bore (P.7) from Manzoor appellant during the investigation of this case. The medical evidence was provided by Dr. Rao Asif AN Khan (PW.11) while Tahir Majeed Khan, S.I. (PW.14), Nadeem Ashfaq, S.I. (PW.10) and Muhammad Faruq Sajid, DSP (PW.15) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature.
6. In their statements recorded under section 342, Cr.P.C.', the appellants and the co-accused had denied and controverted all the allegations of fact levelled against them by the prosecution and has professed their innocence. However, to a question that "why this case against you and why PWs have deposed against you?" Muhammad Khalid appellant replied as under:- "I had not participated in this occurrence. Rather I had been roped in due to relationship with co- accused as the relations between us and the complainant party were strained due to the hostilities shown by the complainant party. The deceased Muhammad Rafique and Councilor and was police tout who had made various attempts to involve my family members in different cases by submitting frivolous and fake applications against us. I am innocent. I was not present in my .Village and that date. Rather I was present in a village Alditta Police Station Tatlay Aali where my real sister resides."
To the same question, Allah Ditta appellant in following terms:- "I am innocent in this case, In fact on the fateful day Muhammad Rafique deceased was passing through the road while I was standing in front of my house to leave for my daily labour. Said Rafique deceased was a man of immoral character, police tout and earlier his real brother Abdul Hameed PW had committed forcibly Zina with my sister Mst. Rashidan Bibi who thereafter committed suicide. The relations between us and the complainant party were hostile. Said Rafique deceased had filed frivolous applications * against myself and my family due to the close relationship with the local police. On the morning of 17.4.1996 he again passed indecent remark "how is Mst. Shakeela and when she would be presented. She is stated to be photo-copy of her mother.
[(urdu words)] Upon which I hurdled abuses to Rafique who flared up and picked up a toka from his dera which is adjacent to the place and tried to kill me. I raised hue and cry upon which Akram and Boota came out who were present in the house with their weapons and 'they under the impulses and passion and Ghairat ' fired at Rafique and they left the place. During this process, the complainant party also approached while armed with fire-arms and started reckless firing as a resuit of which shot hit Muhammad Siddique who was present on the road side and died as a result of those fire-arms injuries. I myself did not participate in the occurrence. I am innocent."
Similarly, Manzoor Hussain appellant to the same question replied in the following terms:- "In fact Abdul Hameed PW and committed zina-bil- jabr with Mst. Rasheedan Bibi sister of Allah Ditta accused about one year and eight months before this occurrence. My sister-in-law Mst. Rani wife of Riaz had seen them while committing zina-bil-jabr. She informed about the occurrence to the respectables of the village which annoyed the complainant party and I myself strongly deprecated the conduct of complainant party in the Punchayat. This caused annoyance to the complainant party and I was involved in this case as a counterblast. I was not present in the village at the time of occurrence rather had gone earlier to City Gujranwala in pursuance of daily livelihood. I am innocent in this case."
Allah Ditta and Manzoor Hussain, appellants did not opt to make statements on oath under section 340(2), Cr.P.C, or produce any defence evidence. However, Qasim Ali and Mst. Zubaida Bibi were produced as DW-1 and DW-2, by Muhammad Khalid appellant who also appeared as DW-3 to make statement on oath under section 340(2), Cr.P.C, in his defence.
7. Upon conclusion of the trial the learned Trial Court acquitted the appellants' three co-accused namely Ghulam Rasul, Faiz Muhammad and Miraj Din but after finding the prosecution's case against the appellants to have been proved beyond reasonable doubt, they were convicted and sentenced by it as mentioned and detailed above. Hence, the present appeal and the connected Murder Reference before this Court.
8. The learned counsel for the appellants contends that both the eye-witnesses were not present at the spot and had not seen the occurrence; that Abdul Hameed (PW.8), according to the defence plea, had committed rape with Mst Rasheedan Bibi wife of Muhammad Boota who subsequently had committed suicide one year and eight months prior to the incident, which was the bone of contention between the parties resulting into commission of this incident and had PW.8 been present at the spot, he would have been murdered first; that PW.9 Amanat Ali stated that crime empties were present at the spot and the same were produced before the Investigating Officer, which fact was denied by Tahir Majeed Khan, S.I, /I.O. (PW.14); that defence plea is borne out from the record and is nearer to the truth; that the eye-witnesses had contradicted each other on material points regarding the places of occurrences and the manner in which the occurrence had taken place, who being not worthy of reliance, their statements may be discarded; that the recovery of weapons from the appellants was legally inconsequential as no empty was recovered from' the spot; that the whole prosecution story is doubtful which is not corroborated by any piece of evidence and the prosecution had not succeeded in proving the case against the appellants beyond any reasonable doubt entitling them to acquittal by this Court.
9. On the contrary, learned counsel for the State has maintained that the eye-witnesses were residents of the same locality and they had succeeded in establishing their presence at the spot; that they remained consistent on material points and the prosecution's case was fully proved against the appellants; that the motive was also proved and the ocular account was supported by the medical evidence; that the F:I.R, was lodged immediately after the incident which eliminates the possibility of concoction of story and false implication of the appellants by letting off the real culprits; that the appellants had committed heinous offence alongwith the co-accused and tire prosecution had succeeded in proving the case against the appellants beyond any shadow of doubt, therefore, the convictions and sentences of the appellants recorded by the learned Trial Court do not warrant any interference by this Court.
10. We have heard the learned counsel for the^ parties at some length and also gone through the record of this case with due care and caution.
11. To prove the ocular account, the prosecution had produced Abdul Hameed (PW.8) and Amanat Ali (PW.9). PW.8 Abdul Hameed is real brother of Muhammad Rafique deceased and is son of Muhammad Siddique deceased while. PW.9 Amanat Ali, according to PW.8 Abdul Hameed was from their brotherhood. As such PW.8 Abdul Hameed was closely related with both the deceased while PW.9 Amanat Ali was also related to them. PW.8 Abdul Hameed during the cross-examination admitted that a meeting was held in the village to settle the dispute over the theft between Rafique deceased and Khalid appellant, In the same breath he stated that 10/12 days prior to the occurrence, another meeting was held which was not in connection with the dispute of theft, but failed to explain the reason of the said meeting though it was attended by . Number of persons, Khalid and Manzoor appellants had also attended the said meeting and suggestions were given by th^ participants in order to effect compromise between Khalid and the complainant party and the said compromise was not in connection with the theft, It was also conceded by PW.8 Abdul Hameed that a quarrel had taken place about one year prior to the occurrence between the complainant and the accused party in which Khalid, Akram, Muhammad and Tariq took part from their side while Rafique, Rehmat, Niamat and Amanat took part in the said quarrel. He also conceded that said Amanat was PW in the present case. However, it was denied by PW.8 Abdul Hameed that the said quarrel had taken place in connection with the allegation that PW.8 Abdul Hameed and committed rape with Mst. Rasheedan Bibi sister of Boota, Allah Ditta appellant and Akram and sister-in-law of Khalid appellant, It was also denied by this PW that Mst. Rani sister-in- law of Manzoor appellant having seen the occurrence of rape had informed the elders of the village about the said occurrence one year and eight months prior to the occurrence.
12. PW.8 Abdul Hameed was the bone of contention between the parties as per cross-examination and quarrel had also taken place between the parties in this regard while PW.9 Amanat Ali had participated on behalf of the complainant party in the said incident as well and some criminal case was also got registered in which Amanat Ali PW.9 and Abdul Hameed PW.8 were PWs alongwith the others. So both the eye-witnesses were previously inimical towards the accused party and they cannot be termed, as independent witnesses., but they were interested witnesses, whose statements have to be taken into consideration with due care and caution to ascertain that whether they had spoken the whole truth or not.
13. It is admitted position that father and brother of Abdul Hameed PW.8 had been murdered in the present case at two different places and claim of PW.8 is that he was present at the time of murder of Muhammad Rafique, who was murdered first and thereafter they had committed murder of Muhammad Siddique through firing who was sitting near the cattle at a distance of 60 to 65 feet from the first place of occurrence. PW.8 also claimed to have seen the occurrence. According to PW.8 the accused after the occurrence had also chased him, but he saved himself by hiding. As has been discussed above; the main bone of contention was PW.8 and if he had been present alongwith PW.9 Amanat Ali at both the places, who also had earlier quarreled with the accused party, they would not have been spared by the accused as according to the case of the prosecution, six accused while armed with fire-arms had attacked upon the complainant party, which was not armed with any weapon and the said PWs were visible to* the accused. So their presence at the spot is found doubtful.
14. During the cross-examination it has been found that there are certain contradictions with the previous statements of both the eye-witnesses regarding the injury caused by Manzoor appellant on the right shoulder of the deceased. Both the eye-witnesses also failed to explain that who had fired at after causing murder of Muhammad Rafique, It is strange that they were unable to identify the accused who had fired at in which both the deceased had received injuries, It is also found that the eye-witnesses were not consistent on the other points and PW.8 Abdul Hameed during the cross-examination admitted that the complainant Muhammad Hanif had gone to the Police Station for recording of his statement under section 154, Cr.P.C, without consulting them whereas PW.9 Amanat Ali stated that all the three witnesses had remained present at the spot for about 1/2 hour after the incident and also consulted about the incident as well as participation of the accused with each other. Both the eye-witnesses have also contradicted each other as PW.8 Abdul Hameed had not stated that any empty was recovered from the spot while PW.9 Amanat Ali categorically stated that empties were. Recovered from the places of murder of both the deceased. This fact was denied by PW.14, Tahir Majeed Khan, S.I./I.O. Who had inspected the spot after the incident. The presence of both the eyewitnesses at the spot is also found doubtful as according to PW.8 Abdul Hameed and PW!9 Amanat Ali they had separate dears and they used to milk the buffaloes, which work started at 6/7 a.m., who after milking buffaloes sold that milk and then freed after about 2/3 hours. We have noticed that if it was their routine work to start milking of buffaloes at 8.00 a.m., then at the time of the occurrence, they must be present at their dears, but they failed to explain that why they had not gone to their dears as usual on the said day for milking buffaloes, It is also found that Amanat Ali (PW.9) had no land at the place of occurrence, who had also failed to produce any documentary evidence in support of his plea of residence in the village where the occurrence had taken place. He also appeared to be criminal bent of mind has he had remained fugitive from justice and also had fallen the person from the roof of the mosque and thrown bricks on his legs, which were fractures, In such circumstances, not only his presence at the spot is found doubtful, but he was not a man of good character and he can be expected to make false statement as well, It is also strange that the distance between the places of both the occurrences of the murders of Muhammad Rafique and Muhammad Siddique was 60/70 - feet and the said places were surrounded by number of houses, but not a single independent person had attracted to the spot. The story of the ocular account is further falsified from the. Site plan (Ex.PC) according to which the occurrence had taken place on the right side of the road and there were houses as well as shops on the right side of both the roads but no person from the locality came to the spot in the month of April at 8.00 a.m. When the possibility of presence of the inhabitants of the village around the place of occurrence cannot be ruled out and their not- attracting to the spot can lead to an inference that the occurrence might have not taken place at the time given by the prosecution io make it a case of ocular account.
15. The medical evidence also creates doubt in the ocular account regarding the time of occurrence at 8.00 a.m. As the case was registered at 10.00 a.m. And according to the Investigating Officer the dead-bodies were sent to the mortuary after preparing the inquest reports as well as injury statements for the post-mortem examination on both the dead-bodies which was conducted at 4.30 p.m." with the delay of more than 8 hours, but according to the opinion of Dr. Rao Asif Ali Khan (PW.11) who had rconducted the postmortem examination, the probable duration between the death and post-mortem examination was within 12 hours. Keeping in view such duration, the possibility cannot be ruled out that the occurrence had taken place at 4.00 a.m.
During dark hours of night. Though in normal circumstances such a variation in the time given by the doctor is not considered fatal regarding the time of occurrence, but coupled with the other facts discussed above, the opinion of the doctor in the present case cannot be ignored.
16. We have also noted down that according to the defence version, Allah Ditta appellant was attacked upon by the deceased etc! With "Toka", when Muhammad Akram, P.O. Attracted there and fired at him and incident had not taken place in the manner narrated by the complainant party.
We have also found that according to the medical evidence Muhammad Rafique deceased had received three incised wound i.e. Injuries Nos. 1 to 3 to have been caused with sharp-edged weapon. According to the ocular account, all the accused were armed with guns, pistols and rifles and Muhammad Rafique deceased was fired at by Muhammad Akram and the second shot was fired at by Allah Ditta on the left side of chest of Muhammad Rafique deceased while the third shot was made by Manzoor on the right shoulder. Then all the accused also made reckless firing. The prosecution evidence is silent that when the fata] injuries had already been caused through firing, what was reason for bringing "Toka" by Muhammad Akram from his house and for causing injuries with the said "Toka" on the head of Muhammad Rafique deceased and admittedly the head or any part of the body and not been out down by the accused for giving examplenary punishment, which is not case of the prosecution, It is also doubtful that why the accused had wasted time for bringing 'Toka' for causing injuries on the head of the deceased when he was already fired at on the vital part and had fallen on the ground and the accused had still the intention to attack upon the other deceased as well as Abdul Hameed (PW.8), who was allegedly present at the spot. From all this an inference can be drawn that the occurrence had not taken place in the manner narrated by the PWs and possibility of attacking upon Allah Ditta by the deceased while armed with "Toka" at the time of incident and the causing of injuries to Muhammad Rafique deceased and then fired at him by Muhammad Akram accused cannot be ruled out and the defence plea seems to be nearer to truth, It is also strange that the fire-arms allegedly used by the accused had been taken away alongwith them but "Toka" was left at the place of occurrence, which also leads to an inference that "Toka" was not owned by them, but it was left at the spot being property of the complainant party, It js thus proved on the record that the eye-witnesses had not spoken the whole truth and the occurrence had surely not taken place in the manner narrated by both the eye-witnesses, who are not worthy of reliance for maintaining convictions and sentences of the appellants in a case entailing capital sentence.
17. The recovery of different weapons from the appellants was inconsequential as no empty was recovered from the spot and there was no evidence to hold that the weapons allegedly recovered from the accused were used by them in the incident and same cannot be treated as corroborative piece of evidence to the ocular account.
18. On the other hand, Muhammad Khalid and Manzoor Hussain appellants had taken specific plea that they were not present at the spot and Muhammad Khalid had not only produced the witnesses but also appeared as DW.3 under section 340(2), Cr.P.C. He was not put any suggestion regarding his presence at the spot and participation in the occurrence, It will be relevant to point out here that all the investigating Officers had found that Muhammad Khalid and Manzoor Hussain appellants had not participated in the incident, Moreover, no weapon was recovered from their possession. Though opinion of the police is not binding on the Courts having got no legal evidentiary value yet it can be taken as a circumstance coupled with the other facts to arrive at a just conclusion. To substantiate his plea of alibi, Muhammad Khalid had produced the defence witnesses which were also produced before the Investigating Officer during the investigation, It is settled law that the prosecution is duty bound to prove the case against the appellant beyond any shadow of doubt through the evidence of unimpeachable character and defence plea or its truthfulness and falsity can only be looked into if the prosecution had succeeded in proving the case beyond any shadow of doubt against the accused.
19. For what has been discussed above we have arrived at an inescapable conclusion that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. This appeal is, therefore, allowed, the convictions and sentences of all the three appellants recorded by the learned Trial Court are set aside and the appellants are acquitted of the charges by extending the benefit of doubt to them. They shall be released from jail forthwith if not required in any other case.
20. Murder Reference No. 369 of 2O0O is answered in the negative and the sentences of death passed by the learned Trial Court against Muhammad Khalid, Allah Ditta and Manzoor Hussain alias Jura appellants are not confirmed.