' HASNAT AHMAD KHAN, J.--- Munir Ahmad and Qayyum appellants along with eleven acquitted co-accused were tried for the murder of Dildar by the learned Additional Sessions Judge, Lodhran, in case F.I.R. No,388 of 1998 dated 14-11-1998 registered under sections 302/324/148/149, P.P.C. With Police Station Galley Wal, District Lodhran, who vide judgment dated 30-10-2004 convicted Munir Ahmad appellant wider section 302(b), P.P.C. And sentenced him to imprisonment for life with a fine of Rs,50,000. In default of payment of fine he was ordered to suffer further one year's R.I. In case of payment of fine same was ordered to be paid to the legal heirs of Dildar deceased under section 544-A, Cr.P.C. Vide the same judgment Qayyum appellant was convicted under section 337-A(ii) and sentenced to undergo five years' R.I. And to pay Rs,17,000 as Arsh to be payable to the legal heirs of Dildar deceased. Rest of the co-accused were acquitted.
2. Challenging their conviction and sentence Munir Ahmad and Qayyum appellants had filed two separate appeals bearing Criminal Appeal No,730 of 2004 and Criminal Appeal No,699 of 2004.
Both the appeals are being dispose of together by this judgment.
3. Brief facts of the case as narrated by Intizar Ali (P.W.4) are that on 14-11-1998 at about 6-30 a.m.
The complainant and his brother Dildar Ali were going towards their "Bheni" (Cattle pen/byre).
When they reached near the under construction house of Muhammad Akbar suddenly thirteen accused including the two appellants, armed with various fire-arm weapons emerged at the scene and surrounded the complainant and his brother, Dildar (deceased). On raising of Lalkara by Muhammad Afzal acquitted co-accused and Qayyum (appellant) all the accused started firing upon complainant and his brother with their respective weapons. The complainant and his brother tried to hide themselves but could not succeed and Munir appellant targeted left clevical bone of Dildar (deceased) with his rifle shot. Acquitted co-accused Akram unsuccessfully shot at Gulzar Ali.
When Dildar Ali, who had fallen down tried to get up, Qayyum appellant gave a blow with handle of his gun hitting head of Dildar Ali (deceased) and hastened his end. The fateful occurrence was witnessed by Khalil Ahmad and Riaz P. Ws .
' The motivating factor behind the occurrence was civil litigation which was pending between the complainant party and Dr. Muhammad Afzal acquitted co-accused.
4. Investigation was conducted by Amjad Hussain (P.W.11) retired S.-I. Who after receipt of information of murder, visited the place of occurrence, where the complainant got recorded his statement for lodging the F.I.R. (Exh.P.E.). Thereafter he prepared the rough site plan, Exh.P.O. He also prepared injury statement (Exh.P.B.) and inquest report (Exh.P.C.). Then he secured four blank cartridges of .12 bore gun, six shells of .7 mm rifle, two empties of bullets of .222 rifle and blood- stained earth from the place of occurrence, vide separate recovery memos. Exh.P.F., Exh.P.G., Exh.P.H.
Respectively. One pair of shoes of deceased was also taken into possession by him, through recovery memo. Exh.P.K. He recorded the statements of the P.Ws. Also under section 161, Cr.P.C. On the pointing out of Rafique co-accused a .7 mm rifle was recovered by him on 15-11-1998, vide recovery memo. Exh.P.I. He sent the dead body to the hospital for post-mortem examination.
Thereafter, the investigation was handed over to D.S.P. Saddar.
5. After completion of the investigation all the accused were challaned to face the trial.
6. During the trial, the prosecution came forward with eleven witnesses in all to prove the prosecution case. Dr. Altaf Ahmad P.W.1 conducted the post-mortem examination on the dead body of the deceased. Intizar All P.W.4 and Khalil Ahmad P.W.5 gave ocular account, Mehboob Ahmad Rabbani, Inspector P.W.10 and Amjad Hussain P.W.11 provided the detail of the investigation conducted by them while the remaining are the formal witnesses.
7. Dr. Altaf Ahmad Khan, M.O. P.W.1 conducted the post-mortem examination of Dildar All deceased on 14-11-1998 and found the following injuries on his person:--
(1) A lacerated wound 4.5 c.m. x 1 c.m. Bone exposed present on the front and right side of forehead, just below hair margin.
(2) A fire-arm wound of entry 3/4 x 3/4 c.m. Going deep and downwards present on the front and left side of chest, just above left clavical. Margins of the wounds were inverted and black/and corresponding hole on shirt was present.
(3) A fire-arm wound of exit 1.5 c.m. x 1 c.m. Present on the back and right side of abdomen at level of spinal cord D.2, D.3. Margins of the wounds were everted and corresponding hole was present on shirt.
(4) A lacerated wound of 2 c.m. x 1/2 c.m. .x muscle deep on the back of right wrist joint.
(5) A laceration of 3 c.m. x 1-1/2 c.m. Present on the front of right leg.
(6) An abrasion of 3 c.m. x 1.5 c.m. Present in the medial side of left forearm.
' According to the opinion of the doctor, cause of the death was haemorrhage and shock. Injuries Nos.2 and 3 individually and collectively were sufficient to cause death in the ordinary course of nature and death was caused by fire-arm weapon. He further opined that the death was immediate after the injury and probable duration between death and post-mortem was about 8 hours.
8. After tendering report of Chemical Examiner Exh.P.Q. And that of Serologist Exh.P.R., the A.P.P.
Closed the prosecution evidence.
9. On the completion of the prosecution evidence the appellants as well as co-accused were examined under section 342, Cr.P.C. And in answer to question No,9 why this case against you and why the P.Ws. Have deposed against you? Munir Ahmad appellant replied as under:-- "I have been involved in this case due to previous enmity on the basis of lease amount. The complainant party also want to usurp the residential house which belong to my father as the same is adjacent to the house of complainant. Now the complainant party is in possession of that house.
P.Ws. Have deposed falsely against me as they are inter se related with the deceased and complainant."
10. Only Munir Ahmad appellant tendered documentary evidence in the shape of Exh.D.A. To Exh.D.D.
In order to show his previous enmity between the complainant party, whereas, the remaining accused did not opt to produce any defence evidence. None of the accused opted to appear in his own defence to make statement under section 340(2), Cr.P.C.
11. After conclusion of the trial, both the appellants were convicted and sentenced as stated in the first paragraph of this judgment. However, all the eleven co-accused were acquitted of the charge by giving them benefit of doubt.
12. Learned counsel appearing on behalf of Muhammad Munir appellant has contended that the prosecution miserably failed to prove its case against the appellant who is entitled to acquittal; that after the full-fledged trial, 11 of the co-accused were acquitted on the basis of same evidence, consequently, strong corroborating evidence was required to convict the appellant, but such evidence had not been brought on the record; that apart from the ocular evidence, all the other pieces of evidence were disbelieved by the learned trial Court; that uncorroborated evidence of the eye-witnesses should not have been believed by the learned trial Court for convicting the appellants; that the site plan prepared during the investigation had not been produced during the trial; that the ocular evidence was based upon the material contradictions and that the F.I.R. Was lodged at the spot after due investigation, hence lodging of the F.I.R. After due deliberation and inquiries cannot be ruled out.
13. Learned counsel appearing on behalf of Qayyum appellant has adopted the arguments advanced by the learned counsel for Munir Ahmad appellant.
14. Conversely, Rao Atif Nawaz, Advocate, for the State has opposed this appeal by contending that though the ocular evidence was not corroborated by the evidence of motive, medical and recoveries, yet the same was sufficient to convict the appellants who were rightly convicted and sentenced by the learned trial Court.
15. After hearing the arguments and going through the record, it has been straightaway noticed by me that the prosecution case is based upon following pieces of the evidence:--
(i) Motive, (ii) Recoveries, (iii) Medical evidence and (iv) Ocular account.
The learned trial Court had disbelieved the evidence of motive, recovery and medical evidence. I have gone through the findings of the learned trial Court and came to the conclusion that the learned trial Court had rightly disbelieved the said pieces of the evidence.
16. As far as the motive is concerned, according to the prosecution the deceased was murdered due to the pendency of the civil litigation between the parties, but the prosecution failed to produce any documentary evidence to substantiate the said allegations. Therefore, the learned trial Court was right in holding that the prosecution had miserably failed to prove the motive as against the accused.
17. According to the prosecution, during the occurrence 11 accused actively participated and resorted to firing with their 'respective fire-arm weapons, but during the investigation the recoveries of 7 mm rifle and 44 mm gun were only effected from Rafique acquitted co-accused and Munir Ahmad appellant respectively. During the investigation, lot of empties of cartridges and bullets were recovered by the police but ironically the recovered weapons of offence were not sent to the Forensic Science Laboratory for matching with the above mentioned shells recovered from the spot. Said factor made recoveries useless for the corroboration purposes. Apart from that, according to the F.I.R. Munir Ahmad accused had fired with his rifle of .222 bore, but recovery of .44 mm gun was allegedly effected at his instance. The said recoveries were not attested by the independent witnesses. For all the said reasons, the learned trial Court disbelieved the prosecution evidence qua recovery proceedings and after going through the evidence and conclusions of the trial Court, I have no valid reasons to differ with the said findings.
18. Similarly, the medical evidence was disbelieved by the learned trial Court and according to my view, the reasons advanced by the learned 'trial Court for disbelieving the medical evidence are neither illegal nor result of misreading or non-reading of the evidence. The said findings are not found to be perverse, as according to the prosecution version, the deceased was shot at from the distance of 30/40 feet, but doctor had found blackening around the injury No,2 which contradicts the prosecution case.
19. After disbelieving the prosecution evidence regarding motive, recoveries and medical, only ocular evidence remains in the field. After going through the record with the assistance of the learned counsel for the parties, I have concluded that even the ocular evidence is not trustworthy, as both the eye-witnesses had been disbelieved qua 11 acquitted co-accused. It is true that according to the law of land, while deciding the criminal cases, the Court can sift the grain from the chaff, but for the said purpose, certain standards have been laid down by the Honourable superior Courts including the apex Court, which requires that if the ocular account is disbelieved qua acquitted co-accused, then strong corroboration is required to believe the same, but in this case such corroboration is not forthcoming. As observed above, the other pieces of evidence i.e. Motive, recoveries and medical had been rightly disbelieved by the learned trial Court. Nevertheless, I have scrutinized the ocular evidence and come to the conclusion that the same is not worth acceptance, inasmuch as, the F.I.R. Which is basic document was admittedly recorded at the spot.
According to the Police Officer who had recorded the F.I.R. At the spot, he had received the information regarding the occurrence from some one else, but said source had not been disclosed.
It is established law that when the F.I.R. Is recorded at the spot, the prosecution case becomes a little doubtful as in such eventuality, the possibility of registering the case after due inquiries and deliberation cannot be ruled out. Apart from that, the evidence of both the eye-witnesses i.e. Intizar Ali P.W.4 and Khalil Ahmad P.W.5 is found to be contradictory to each other. According to Khalil Ahmad P.W.5, Intizar Ali and Yasin P.Ws. Had reached at the spot after hearing the noise of firing.
The said statement creates doubt about the presence of Intizar Ali P.W.4/complainant at the time of the occurrence. The ocular evidence is totally contradicted by the medical evidence. Inasmuch as, it was not the case of the prosecution that the deceased was shot at from a very close distance, rather it was the case of the prosecution that the deceased was shot at from the distance of 30 feet, but the blackening found around the injury No,2 on the body of the deceased tells otherwise. Similarly, there is yet another material contradiction, inasmuch as, according to the prosecution, only one blunt weapon injury was received by the deceased while according to the medical evidence, the deceased had received four blunt weapon injuries. Out of said four injuries, three remained unexplained by the prosecution which creates serious doubts. The said material contradictions in the evidence create a reasonable doubt in the mind of prudent man about the truthfulness of both the eye-witnesses. In the facts and circumstances of the case, possibility of the occurrence being unwitnessed cannot be ruled out.
20. All the discussion made above leads to an irresistible conclusion that the prosecution had failed to prove its case beyond any shadow of doubt. It is established law that doubt howsoever slight it may be, the benefit of the same should be given to the accused and it is better to err in acquittal rather than to err in conviction. Consequently, both the appeals are accepted. Resultantly, both the accused are acquitted of the charge. Muhammad Munir appellant be released from jail immediately, if not required in any other case, while bail bonds submitted by Qayyum appellant who is on bail are cancelled and sureties are discharged.