' IJAZ AHMAD CHAUDHRY, J.- This judgment will dispose of Criminal Appeal No.375 of 2002 filed by Muhammad Nawaz and Muhammad Shahbaz (appellants) against their conviction and sentence along with Murder Reference No.400 of 2002 sent by the learned trial Court under section 374, Cr.P.C. For the confirmation of death sentence awarded to the aforesaid appellants, as both the matters have arisen from the same judgment dated 28-2-2002 through which the learned Additional " Sessions Judge, Gujranwala had convicted the appellants under section 302(b), P.P.C.
And sentenced them to death for the murder of Munir Ahmad (deceased) subject to confirmation by this Court. The appellant 2007 were also convicted under section 324/34, P.P.C. And sentenced to 10 years' R.I. For attempting to commit qatl-i-amd of Haji Muhammad Munawar by causing firearm injuries to him. The benefit of section 382-B, Cr.P,C. Was also extended to' the appellants.
However, remaining coaccused namely Manzoor alias Zahoor, Muhammad Saeed Bhatti, Abdul Waheed, Muhammad Ashraf alias Achhu alias Tedi and Rashid Javed were acquitted of the charges by giving them the benefit of doubt.
2. The occurrence in the present case had allegedly taken place on 13-4-1998 at 4-20 p.m. In the area, of Iftikhar Colony Khiali Bye-Pass situate at a distance of 4 Kilometers from the Police Station Saddar Gujranwala. The matter was reported by Haji Muhammad Munawar, complainant, father of the deceased at 5-15 p.m. On 13-4-1998 through application (Exh.PI) submitted before Shahid Mehboob, the then S.H.O. (P.W.8) while present at Iftikhar Colony, Gujranwala and on the basis of the same formal F.I.R. No.396 of 1998 (Exh.Pl/1) under sections 302, 324, 148/149, P.P.C. Was drafted by Akbar Munir, the then H.C/Moharrar (P.W.7) on the same day at 5-45 p.m. At Police Station Saddar, Gujranwala.
3. The brief facts of the prosecution case are that On 13-4-1998 the complainant and his son Muhammad Munir were present in their house. At about 4-20 p.m. On hearing knocking at the outer door of the house, the complainant opened it and saw that Muhammad Saeed Bhatti and Muhammad Ashraf alias Achhu (acquitted accused) armed with pistols respectively were standing there, who on seeing the complainant started firing. In the meanwhile Muhammad Munir (deceased) son of the' complainant also came in front of them, who after receiving the shots fired by the aforesaid accused persons on the front side, fell on the ground and succumbed to the injuries at the spot. One fire shot also hit the complainant on the palm of his left hand. Thereafter, Abdul Waheed and Rashid Javed (co-accused) along with two unknown persons armed with fire- arms also arrived there and stood on the road near the place of occurrence to defend the said accused persons, who after the occurrence ran away. The occurrence was witnessed by Muhammad Aslam P.W. As well.
4. The motive behind the occurrence was alleged to be previous enmity due to some quarrel took place between children of.The parties prior to this occurrence, on the basis of which the accused persons after looting the house-hold articles of the complainant had set his house at fire and the accused persons always used to extend the threats to the complainant for taking possession of his residential house.
5. On 13-4-1998 on the receipt of information about the incident, Shahid Mehmood, the then S.H.O.
(P.W.8) reached the place of occurrence, where he received a complaint Exh.PI from Haji Muhammad Munawar, complainant and then after necessary proceedings, sent the same to the police station through Muhammad Tufail Constable No. 1408 for registration of formal F.I.R.
(Exh.Pl/1). Then he along with police officials inspected the place of occurrence, dead body of Muhammad Munir (deceased), prepared injury statement (Exh.PJ), inquest report (Exh.PK) and drafted an application for post-mortem examination of the deceased. He sent the dead body of the deceased to the mortuary of DHQ Hospital, Gujranwala through Muhammad Ashraf C-896 (P.W.4) and Shafique Constable No.76 " along with relevant papers. Thereafter he inspected the place of occurrence, prepared the site-plan without scale Exh.PM, collected the blood-stained earth and took the same into possession vide recovery memo. Exh.PB. He also collected 4-empties of pistol .30 bore P-1/1-4 from the spot and took the same into possession vide recovery memo.
Exh.PC. The statements of witnesses under section 161, Cr.P.C. Were also recorded. On 14-4-1998 after the post-mortem examination of the deceased, Muhammad Ashraf C-896 (P.W.4) produced before the last worn clothes of the deceased, which were taken into possession vide recovery memo. Exh.PD. On the same day the I.O. Again went to the place of occurrence along with Masood Ahmad Bhatti, draftsman (P.W.9), who took rough notes on the direction of I.O. And pointation of the P.Ws. And later on, the draftsman handed over the scaled site-plan Exh.PN and Exh.PN/1 to the I.O.
Thereafter, the investigation was transferred from P.W.8. On 20-4-1998, the file for investigation of this case was handed over to Muhammad Saleem Butt, Inspector Range Crime, Gujranwala (P.W.
10). On 21-4-1998, the nominated accused person of this case along with 105 persons of the locality had appeared before this I.O. And pleaded their innocence. Then the I.O, summoned the complainant, who did not appear before the but on 3-5-1998 Mst. Zarina Begum (P.W.6) mother of the deceased appeared and got her statement recorded before the under section 161, Cr.P.C. And the also recorded statement of Zulfiqar Ali (P.W.11). On 26-5-1998, the accused- appellants Muhammad Nawaz and Shahbaz appeared before the I.O., who got their physical remand and joined them in the investigation. Then Munir Ahmad S.-I. (P.W. 14) was deputed to effect the recovery of weapon and on 9-5-1998 he recovered pistols .30 bore (P.5 and P.7) along with live bullets (P-G and P. 8/1-2) on the pointation of the P.Ws. Which were taken into possession vide recovery memo. (Exhs.PF and PG). After the completion of the investigation, on 6-6-1998, the I.O.
Sent both these appellants to judicial lock-up while declaring them guilty.
6. Consequently, the report under section 173, CR.P.C. Was submitted in the Court, copies of the documents required under section 265-C, Cr.P.C. Were supplied to the appellants and the coaccused and the charge was framed against them to which they pleaded not guilty and claimed to be tried.
7. The prosecution in order to prove its case produced as many as 14 witnesses. The ocular account was furnished by Mst. Zarina Begum (P.W.6), real mother of the deceased and Zulfiqar Ali (P.W. 11), while the medical evidence was furnished by Dr. Arif-ur-Rehman, M.O. DHQ Hospital, Gujranwala.
(P.W. 1), who had conducted the post-mortem examination of Muhammad Munir (deceased) and Dr. Ajmal Aqeel Mirza, M.O. DHQ Hospital, Gujranwala (P.W.5), who medically examined injured Haji Munawar, complainant/father of the deceased and the investigation was conducted by Shahid Mehboob S.H.O. (P.W.8), Muhammad Saleem Butt, Inspector (P.W. 10) and Munir Ahmad, S.-I. (P.W.
14). The remaining witnesses are of formal nature and need not to discuss here.
8. The appellants along with their coaccused in their statements recorded under section 342, Cr.P.C. Denied the allegations and professed their innocence. However, to a question that "why this case against you and why P.Ws. Have deposed against you?" they unanimously replied in the same manner which is as under: ~ "It was a blind murder and I have been falsely involved in this case due to suspicion. I have been involved by the police being a scape-goat and the case is false and fictitious one and the same is the result of mala fides of the complainant."
' However, the appellants-accused did not opt to make the statements under section 340(2), Cr.P.C. And had also not produced any witness in their defence.
9. The learned trial Court after hearing the arguments of both the parties had passed the impugned judgment of convictions and sentences against the appellants. Hence, both Ihese matters before this Court.
10. The learned counsel for the appellants has contended that the F'.'I.R. Was not got registered at the given time^ that both the appellants were not named in the F.I.R.; that the prosecution had not been able to prove the ocular account as only Zulfiqar Ali (P.W.Ll) was produced as eye-witness, but in the Court he could not identify the appellants as the culprits, who had fired at the deceased and he also admitted that he was told about the names of the accused-appellants by the persons of the locality, but he did not know the name of the accused; that the statement of Mst. Zarina Begum (P.W.6) real mother of the deceased was also not helpful for the prosecution. As she did not see appellants, while firing at the deceased and only claimed that it was told to her by the complainant immediately after the incident that the appellants had fired at the deceased, but this is belied from the contents of the F.I.R., which was registered with the delay and the names of both these appellants were not mentioned as accused; that the prosecution had not been able to prove the case against the appellants beyond any shadow of doubt that the report of the Forensic Science Laboratory cannot be relied upon as the empties allegedly collected from the spot had been sent to the said laboratory after the arrest of the appellants; that it was a blind murder case and the appellants along with the coaccused had been involved in the present case merely on the suspicion, who are entitled to acquittal as well.
11. The learned Deputy Prosecutor General has opposed this appeal on the ground that Zulfiqar Ali (P.W.Ll) was an independent witness, while Mst. Zarina Begum (P.W.6) was a natural witness and if the police had recorded their statements with the delay, it would not be fatal to the prosecution version; that both the eye witnesses had made consistent statements; that recovery of weapons had been effected from both the appellants, which had matched with the empties recovered from the spot, according to the report of the Forensic Science Laboratory (Exh.PQ) and the same provided sufficient corroboration to the ocular account; that the prosecution had been able to prove the case against the appellants beyond any shadow of doubt, whose convictions and sentences recorded by the learned trial Court may be maintained.
12. We have heard the arguments advanced by the learned counsel for the parties and perused the record with due care and caution.
13. The incident in the present case had taken place at 4-20 p.m. On 13-4-1998 in the house of the deceased and his father Haji Muhanjmad Munawar, complainant. According to the prosecution an application (Exh.PI) had been submitted before the then S.H.O. Shahid Mehmood (P.W.8) by the complainant at Iftikhar Colony, Khaili Bye-pass situate about 4 Kilometers away from the Police Station Saddar, Gujranwala at 5-15 p.m. On the basis of which formal F.I.R. (Exh.Pl/1) was registered at 5-45 p.m. On the same day. Then immediately there-after I.O. Allegedly inspected the dead body, prepared inquest report and injury statement of the deceased and sent the dead body of the deceased to the mortuary for the post-mortem examination, but it is strange that the post- mortem examination had been conducted on the next day i.e. Bn 13-4-1998 at about 10-00 a.m.
During the cross-examination, the doctor explained that he had conducted the post-mortem examination on the dead body of Muhammad Munir deceased within 10/15- minutes after receiving the police papers. As per statement of the doctor, the police papers were presented before him at 9-45 a.m. It casts serious doubt about the registration of the F.I.R. With promptitude.
The possibility cannot be ruled out that the time had been c'onsumed in concocting the prosecution story, which resulted in late submission of police papers before the doctor, otherwise, if the police papers had been prepared immediately after the occurrence, the same would have been presented before the doctor the same day and he could have conducted the postmortem examination on the dead body of the deceased on the same day of the occurrence. The names of the appellants were also not mentioned in the F.I.R., which had been recorded on the written application moved by the complainant. So the F.I.R. Cannot be used, as a corroborative, piece of evidence to the ocular account and great care and caution is required to see the prosecution version.
14. To prove the ocular account the prosecution got examined Mst. Zarina Begum (P.W.6), who was mother of Munir Ahmad deceased as well as widow of Haji Muhammad Munawar complainant, who died later on during the trial and Zulfiqar Ali (P.W.Ll). The latter however was not related to the deceased or the complainant. A bare perusal of P.W.6 would reveal that she had not witnessed the occurrence and her evidence was based on whole hearsay. She specifically stated that at the time of knocking at the door she was in the kitchen whereas her husband Munawar complainant (now dead) opened the door and her son Munir also followed the door/gate, who had just come out of the gate when the firing started. She ' followed her son Munir deceased and also heard sound of firing. According to her when she reached out of the gate, her husband told that their enemy after committing murder of their son Munir had run away while he also received injuries on his hand and her husband also told that the said enemies were Saeed, Ashraf, Rashad (acquitted accused), Nawaz and Shehbaz (appellants). During the cross- examination she further explained that when she reached the place of occurrence she only found her son lying murdered and her husband was injured while the accused had already left the place of occurrence. She also admitted that her statement under section 161, Cr.P.C. Was recorded after about 20 days of the occurrence without any plausible explanation. She was Confronted with her previous statement recorded by the police (Exh.DA) wherein it was. Not mentioned that her husband had told her that Nawaz and Shehbaz appellants had fired at her son. We have perused Exh.DA, which was recorded on 3-5-1998, but the names of the present appellants do not find mentioned and it was specifically stated by her that the husband had told her that Saeed Bhatti and Achhu Taidi (acquitted accused) had made firing and they fled away after the occurrence along with Rashid Javed and Waheed (two other acquitted accused). The other witness, namely Zulfiqar All (P.W.11) though claimed that at the time of the occurrence he was present at Service Station adjacent to Sharif Petroleum when he heard the fire shots and saw towards the house of Munawar complainant that two persons were firing at Muneer deceased and Haji Munawar complainant, who (accused) then ran towards them (P.Ws) and their names were Nawaz and Shehbaz the present appellants. According to the witness the said accused- were armed with pistol .30 bore.
However, during the cross-examination P.W.11 explained that both the appellants were not previously known to him and he did not identify them when the accused crossed in front of him after the firing, but when they crossed him, the unknown people told him that they were Nawaz and Shehbaz. He further stated to have informed the police that the names of the accused had been told to him by the inhabitants of the locality, whose names were not known to him. He also showed inability to recognize the accused even at the time of recording his statement in the Court and specifically stated that the accused present in the Court at that time were not the accused who had committed the murder. P.W.11 also explained that he had appeared before the police after two months of the occurrence.
15. This was the all evidence produced by the prosecution, which was not sufficient to prove the ocular account and bring home guilt to the appellants beyond any shadow of doubt. It may be noticed that even the names of both the appellants were not mentioned in the application (Exh.P-I) submitted by the complainant (now dead) as the culprits, who had participated in the C occurrence wherein the names of the two acquitted accused, namely, Muhammad Saeed Bhatti and Muhammad Ashraf alias Achhu were specifically mentioned that they along with two unknown accused had committed this occurrence. We have already observed that the F.I.R. In the present case had not been recorded at the given time. Although the name of Zulfiqar (P.W.11) is found mentioned as an eyewitness therein and if he had already come to know about the names of.
Present appellants as the culprits who had participated in the present occurrence, their names would also have been mentioned by the complainant, whose presence at the spot was not at all doubtful having been stamped by the sustaining of the fire-arm injury during the same occurrence and he was medically examined by Dr. Ajmal Aqeel Mirza (P.W.5) on the same day of the occurrence at 6-00 p.m. And duration of the injuries was given as fresh. It may also be noticed that according to the complainant four accused persons had participated in the occurrence, but on the other hand P.W.11 claimed that only the present appellants had participated in the occurrence and his evidence has already been discussed above. As an abundant caution we have also gone through his statement recorded by the police. Under section 161, Cr.P.C. Which was recorded on 16- 5-1998 and we find that the names of the present appellants or the other accused had not been got mentioned by him even in the statement before the police. Thus P. W.11 had made improvements while appearing in the Court D for the involvement of the present appellants in the present case.
15-A. From the above discussion, it is proved that it was in, fact a case of no evidence, but the learned trial Court had Committed material illegality while recording conviction and capital sentence of death against the, present appellants, when the said Court had simultaneously acquitted the four co-accused with the same role.
16. So far as the motive set up in the F.I.R. Is concerned, we have noticed that the prosecution to substantiate the same produced no oral as well as documentary evidence and as such the motive also could not be proved.
17. The medical evidence though shows that the deceased as well as the complainant had sustained fire-arm injuries during the occurrence, but this in no way is G sufficient to prove that the said injuries had been caused by the present appellants when the ocular account has already been disbelieved by us.
18. Now comes the recovery evidence. According to the prosecution version four empties had been recovered from the spot on the first day of the occurrence i.e. On H 13-4-1998 vide recovery' memo.
(Exh.PC) but no independent person from the locality was joined in the recovery proceedings to attest the same. Both the appellants were arrested on 26-5-1998 and the alleged crime weapons were shown to be recovered from them on 29-5-1998 and according to the report (Exh.PQ) of the Forensic Science Laboratory the empties recovered from the spot matched with the said weapons.
A bare perusal of the said report shows that the parcels of the pistols and empties had been received in the said office on 16-64998 and 27-7-1998 respectively and earlier to that those remained with the police at the police station jointly for a long period. It may be noticed that the parcel of the blood-stained earth which had been collected from the spot simultaneously along with the alleged four crime empties had already been sent to the office of the Chemical Examiner on 21-4-1998; but there was no plausible explanation for delayed transmission of the said crime empties to the office of Forensic Science Laboratory on 27-7-1998 even after the receipt of the parcel of pistols thereon 16-6-1998. It is noticed that even in the Inquest Report the availability of the four crime empties at the spot near the dead body had not shown in the relevant column thereof. From such facts and circumstances, the possibility of fabricating this evidence to produce a positive report cannot be ruled out and as such no importance can be given to the positive report of the Forensic Science Laboratory to reach into the guilt of the appellants when this Court in the preceding paragraphs has already discarded the other evidence against them.
19. For the foregoing discussion we have no hesitation in our minds in holding that the prosecution had miserably failed to bring home guilt to both the present appellants through any sufficient evidence and even their case was on better footing than the already acquitted co-accused, but the learned trial Court committed material J illegality while recording conviction against them on the basis of all hearsay evidence, which even otherwise was inadmissible in evidence. Resultantly, this appeal (Criminal Appeal No.375 of 2002) is accepted, the impugned judgment of conviction and sentence is set aside and Muhammad Nawaz and Muhammad Shehbaz appellants are acquitted of the charges, who shall be released from the jail forthwith, 'if not required in any other criminal case.
20. In view of above, Murder Reference No.400 of 2002 sent by the learned trial Court seeking confirmation of death penalty awarded to both the appellants is replied in the negative as this Court has acquitted them.
21. Before parting from this judgment, we are constrained to write about the deplorable judicial approach of Mr. Sardar Ahmad Maikan, the then Additional Sessions Judge, Gujranwala in the present case, who had recorded conviction and death penalty against both the appellants in this case in clear disregard of the principles laid clown by the Superior Courts on the totally hearsay evidence led by P.Ws. 6 and 11, as discussed above, and the opinion of the I/O, which even otherwise was inadmissible in evidence. A perusal of the impugned judgment prima facie shows that the said judicial officer was either inefficient in the discharge of the judicial work or involved in the corrupt practices as the four accused had been acquitted out of whom two were very much named in the F.I.R. While the case of the appellants was on better footing, who were not nominated as accused in the present case in the F.I.R. Or the statements of the witnesses recorded by the police under section 161, Cr.P.C. But they were convicted and bound to remain in the death cell for the last about five years. The Registrar of this Court is directed to place the copy of this judgment along with Paper Book of this case before the competent authority, which may look into the conduct of the said officer in the discharge of the judicial functions and consider that whether such like judicial officer should remain in the judicial field to play with the liberty, of the innocent accused persons.