' IJAZ AHMAD CHAUDHRY, J.---Muhammad Nawaz and Qutab Ali appellants were convicted under section 302(b), P.P.C. Read with section 149, P.P.C. For the Qatl-e-Amd of Ahmad and were sentenced to undergo death with fine of Rs,30,000 (Thirty thousand) each payable to the legal heirs of the deceased or in default of payment thereof to undergo further R.I. For six months, vide judgment, dated 31-8-2001, passed by learned A.S.J., Faisalabad. They were also convicted under section 302(b). P.P.C. Read with section 149, P.P.C. For qatl-e-amd of Noor deceased and were sentenced to undergo imprisonment for life with fine of Rs,20,000 (twenty thousand) each payable to the legal heirs of the deceased or in default of payment thereof to undergo six months' R.I. More.
They were also convicted under section 148, P.P.C. And sentenced to one year's R.I. All the sentences were ordered to run concurrently. Mansha, Aslam, Sakhi Muhammad alias Sakhawat and Qudrat Ullah appellants were also convicted under section 302(b), P.P.C. Read with section 149, P.P.C. For qatl-e-amd of Ahmad deceased and were sentenced to undergo life imprisonment with direction of payment o1 Rs, 30,000 (thirty thousand) each as compensation under section 544-A, Cr.P.C. Or in default of payment of thereof to further undergo six months, R.I. For the murder of Noor deceased they were also convicted under section 302(b), P.P.C. Read with section 149, P.P.C. And were sentenced to undergo life imprisonment each with the direction to pay Rs,20,000 (twenty thousand) each as compensation payable to the legal heirs of the deceased or in default of payment thereof to further undergo R.I.. For six months each. One accused namely Ameen had died during the course of trial while Murtaza and Akram alias Baggu accused were declared proclaimed offenders. As the prosecution could not prove its case against Dost Muhammad, Zahid Iqbal, Mohabbat, Muhammad alias Mani, Humayun, Nawaz and Meer accused so they were acquitted from the charges by giving benefit of doubt. All the above said accused-appellants have challenged their convictions and sentences through different appeals either from Jail or through their counsel. Nawaz son of Qutab Ali and Qutab All son of Malla have challenged their conviction, and sentence through Criminal Appeal No,315-J of 2001 filed from Jail. Through another Jail appeal i,e, Criminal Appeal No,316-J pf 2001 Qudiat Ullah appellant has challenged his conviction and sentence, Mansha, Sakhi alias Sakhawat and Muhammad Aslath appellants have challenged their conviction and sentence through Criminal Appeal No,1442 of 2001.Ghulam Qadir complainant has filed a Criminal Revision No,873 of 2001 for the enhancement of sentence of Mansha, Sakhi alias Sakhawat, Muhammad Aslam and Qudrat Ullah. All the matters above said have been heard- by us along with the Murder Reference No,603 of 2001 sent by the learned trial Court for confirmation of death sentence awarded to Muhammad Nawaz and Qutab Ali appellants. We propose to decide all these matters through the present consolidated judgment.
2. The occurrence in the present case was alleged to have taken place in the area of Chak No, 598- G.B. On 27-10-1994 at Deegarwela. As per contents of the F.I.R. Narrated by Ghulam Qadir complainant through complaint Exh. P.A. On the day of occurrence Ghulam Qadir along with Ahmad and Noor sons of Kabeer (Both deceased) were returning home ' after purchasing some house-hold articles from Tandlianwala and when they reached a little ahead of Hasooki Wan Dakhli all of a sudden, the accused namely Mansha, Aslam, Sakhi Muhammad Armed with 12 bore guns, Murtaza alias Moggi armed with 7 mm rifle, Muhammad Nawaz armed with .12 bore gun, Qutab Ali armed with 7 mm rifle, Qudrat Ullah armed with .12 bore gun, Akram armed with gun 12 bore, Muhammad Amin armed with 7 mm rifle, Dost Muhammad, Zahid Iqbal armed with .12 bore guns and Muhammad armed with .12 bore gun emerged from maize field while raising lalkaras. In the meanwhile, on hearing alarm Dost Muhammad son of Bahlak and Sakhawat Ali son of Meer P.Ws. Arrived there. Zahid Iqbal, Mohabbat and Dost Muhammad attacked while making shots on Noor deceased which went astray. Then Akram alias Gullo fired a shot of .12 bore gun hitting Noor deceased on his right thigh, then Amin fired shot with 7 mm rifle on Noor deceased which also hit on his right left thigh and Noor deceased fell down and succumbed to the injuries at the spot.
Ahmed deceased fled towards heap of sand to take refuge while the complainant hid himself under the reeds. Ahmad deceased tried to take shelter of the heap of sand when all the aforesaid accused came in front of him and Mansha accused fired shot with 12 bore gun hitting Ahmed on his right elbow then Aslam fired gun shot hitting Ahmad at the same place. Sakhi Muhammad fired gun shot hitting right thumb of Ahmad deceased. Qudrat Ullah fired gun shot hitting the left elbow of Ahmad deceased. Thereafter Nawaz fired with .12 bore gun which hit right side below chest of Ahmad. Qutab Ali fired a shot with 7 mm rifle hitting Ahmad on the front of his chest. Then Murtaza alias Moogi fired a rifle shot which hit Ahmed on the left side below the chest and he fell down and succumbed to the injuries at the spot. The accused decamped from the spot and they took away along with them the rifle belonging to Ahmad. Besides the complainant (P.W.4) Dost Muhammad and Sakhawat Ali (P.W.3) also witnessed the occurrence.
3. The motive behind this occurrence according to the complainantwas a long standing enmity of murders between the accused and deceased. According to the complainant the above said occurrence had taken place on the abetment of Muhammad Alias Manni, Humyun, Nawaz and Meer (acquitted accused) made on 25-11-1994 at noon time at the Dhari of Sarang in the presence of Shahadat (P.W.7) son of Hassan and Ahmad son of Waryam.
4. The investigation of the case was conducted by Manzoor Ahmad. S.-I., who initially after visiting the spot prepared the inquest report Exh.P.D. Of Ahmad deceased as well as injury statement Exh.P.G. He also prepared the injury statement of Noor deceased Exh.P.F. And the inquest report of Noor deceased Exh.P.G. He dispatched both the dead bodies to Civil Hospital Tandlianwala for postmortem examination under the escort of Alamsher constable. Thereafter, he took into possession the blood-stained earth from the place of murder of Noor vide memo Exh.P.H. He also secured the blood-stained earth from place of occurrence of the murder of Ahmad deceased vide memo. Exh.P.G. He also prepared the site plans of both the places of murders vide memo Exhs.P.Q.
And P.R. Respectively. Manzoor Ahmad S.-I. Arrested Muhammad Nawaz who got recovered .12 bore gun P.1 which was taken into possession vide memo. Exh.P.K. He then arrested Muhammad Akram alias Bagoo who also led the police to his Dhari and got recovered 12 bore gun P.2 which was also taken into possession vide memo. Exh.P.L. Murtaza accused while under police custody got recovered 7 mm rifle P.3. Which was taken into possession vide memo Exh.P.M. He also got recovered 8 mm rifle P.4 belonging to Ahmad deceased vide memo. Exh.P.N. He completed the investigation of the case and found Murtaza alias Moogi, Muhammad Akram, and Nawaz son of Qutab Ali as guilty and challaned them whereas the remaining accused namely, Mansha, Sakhi Muhammad, Muhammad Aslam, Qutab Ali, Qudrat Ullah, Dost Muhammad, Zahid Iqbla, Muhammad Amin and Mohabbat were declared innocent. The accused of abetment namely Mani, Hamayun, Nawaz and Meer were neither arrested nor challaned.
5. Being aggrieved by the order of discharge of 9 accused who were named in the F.I.R., the complainant filed a writ petition before this Court which was accepted and case was remitted to the Court of Ilaqa Magistrate for appropriate order. Thereafter the police submitted the second report under section 173, Cr.P.C. On 25-1-1997 showing 8 accused in column No, 2 as P.O. While 3 accused in column No,3. Final report in this regard under section 173, Cr.P.C. Was submitted on 23- 2-1997 showing Qudrat Ullah, Qutab and Dost appellants in column No,2 as P.O. While 9 accused were shown in column Nos.3 and 4. The accused of abetment were shown innocent.
6. At the commencement of the trial the appellants along with theirco-accused were charge- sheeted. The prosecution in all produced 11 P.Ws. The ocular account was furnished by complainant Ghulam Qadir (P.W.4), Sakhawat Ali (P.W.3). The complainant also deposed about the motive and abetment. The medical evidence was furnished by Dr. Munawar Ahmad (P.W.2). Ch. Mukhtar Ahmad D.S.P. (P.W.10)acquainted with the handwriting of Manzoor Ahmadwho conducted the investigation of the case initially. He also verified he recovery memos. The remaining evidence produced by the prosecution was more or less formal in nature, which need not to be discussed here. However medical evidence was furnished by Dr. Munawar Ahmad (P.W.2).
7. When examined under section. 342, Cr.P.C. All the appellantsdenied the allegations levelled by the prosecution and professed their innocence. However, to a question that "why this case against you and why the P.Ws. Have deposed against you?" Nawaz appellant son of Qutab Ali appellant made the following reply:-- "P.Ws. Are related inter se and due to relationship with the deceased have deposed falsely against him. P.Ws. Are interested and inimical towards us. I have enmity of murders against my co- accused Murtaza Akram since P.O.s. Therefore, I cannot join hands with my co-accused mentioned above.
' The actual facts are that on the day of occurrence, funeral ceremony of the one Nooran widow of Wali Muhammad Rajlka was held. Murtaza. Co-accused since P.O., Akram since P.O. Were returning to their village and when they reached at the place of occurrence, Ahmad and Noor deceased persons while armed with fire-arm weapons came there on motorcycle which was being driven by Muhammad Iqbal alias Bala son of Fazal Lohar and when they reached near Murtaza and Akram, both Ahmad and Noor deceased started firing on them and Murtaza and Akram P.Os. In their self defence fired at Ahmad and Noor deceased persons and during cross firing Ahmad and Noor received injuries. I had not taken part in the occurrence and was present there after funeral ceremony of Mst. Nooran and was empty handed at the time of occurrence. No other co-accused was present at the spot at the time of occurrence. At that time, one Shamsher alias Boney, Muhammad Iqbal alias Bala and Alamgir were present there, who were also returning from funeral ceremony of said Nooran. No P.W. Was present there at the time of occurrence. The complainant party involved three families who have previous enmity with them so that none should remain to persue the case I was minor at the time of occurrence and my date of birth is 10-2-1978, I produce my school leaving certificate as Exh.D.C."
' To the same question all the remaining accused-appellants replied that they had been involved in this case falsely and the P.Ws. Had stated against them at the instance of the complainant. They also relied upon the statement of Nawaz son of Qutab Ali co-accused. They also claimed that they were not present at the spot. However, none of all the appellants opted to make statement under section 340(2), Cr.P.C. Or produce any witness in their defence.
8. Upon conclusion of the trial the learned trial Court convictedand sentenced the appellant as detailed in para No,1 ante. Hence the present appeals Nos.315-J, 316-J of 2001, 1442 of 2001 and Murder Reference No,603 of 2001 as well as Criminal Revision No,873 of 2001 before this Court.
9. Learned counsel for the appellants contends that the eyewitnesses were inimical towards the appellants on account of previous litigation of murders between the parties but there was no independent evidence available on the record to corroborate the ocular account that the eye- witnesses were admittedly chance witnesses, who failed to give any plausible explanation for their presence at the spot; that the ocular account was in contradiction with the medical evidence; that it was an un-witnessed occurrence and the relatives of the deceased were falsely shown to be eye-witnesses by concocting prosecution story and attributing one injury each to the 9 accused persons, which was not possible for the witnesses to see; that the F.I.R. Was not got lodged promptly, but it was registered after due deliberation and preliminary investigation, otherwise there was reason for delayed postmortem examination, which was conducted on the next day after 16/17 hours of the occurrence, which leads to an inference that the witnesses were not present at the spot and that even the accused persons were inimical inter se on account of murder cases and there was no occasion for them to join hands with each other for commission of this occurrence and the complainant party had involved them due to previous enmity.
10. Learned counsel for the complainant on the other hand opposes all the appeals on the ground that both eye-witnesses were natural and independent, whose presence at the spot had been established as the F.I.R. Was got lodged immediately after the incident and the names of the witnesses and the accused were duly described in the said F.I.R. With the specific roles and the medical evidence supported the ocular account, which was further corroborated by the recoveries so effected from the accused and that the accused had committed the heinous offence while sharing the common intention and their conviction and sentence may be maintained whereas the sentence of life imprisonment awarded to Qudrat Ullah, Mansha, Sakhi and Muhammad Aslam appellants may be enhanced to death sentence while accepting the Criminal Revision.
11. Learned counsel for the State have also adopted the same arguments advanced by the learned counsel for the complainant.
12. We have heard the learned counsel for the parties and also perused the record with due care and caution.
13. To prove the ocular account the prosecution had produced Sakhawat Ali (P.W.3) and Ghulam Qadir complainant (P.W.4). Ghulam Qadir was nephew of both the deceased while Sakhawat Ali was first cousin of both the deceased and as such both the eye-witnesses were closely related inter se and with the deceased. No doubt mere close relationship of the witnesses is not a ground to declare them interested witnesses. However, in the present case the previous enmity between the accused and the eye-witnesses was even admitted in the F.I.R. By the complainant and the enmity of murders was going on between the parties since long. So it can safely be said that the eye-witnesses were not only related inter se with the deceased but were inimical towards accused and they can be termed as interested witnesses. Furthermore, both the eyewitnesses were residents of Thatha Haveli Dakhli, Mauza Kudh, Tehsil Tandlianwala while the occurrence had taken place at about evening time within the area of Chak No,598-G.B. And according to Ghulam Qadir (P.W.4) the place of occurrence was at a distance of 2 to 3 K.M. From their place of residence.
Hence they could, be termed chance witnesses and they were bound to explain reasonable cause for their being present at the spot at the time of incident, but they had only stated that they were returning from Tandlianwala after purchasing some house-hold articles. To establish their claim nothing was taken into possession by the police officer allegedly purchased by them from Tandlianwala. There oral statements are not found sufficient in this regard. We have also found that according to the Doctor (P.W.2) injuries were sustained by Noor deceased only on the thigh and his death was not immediate which was opined to be within one hour after sustaining the 'said injuries, but no effort was made by the eye-witnesses for his immediate removal to the Hospital to save his life, which was against the human conduct being close relatives. On the other hand it was claimed in the F.I.R. That Noor deceased after sustaining the injuries had immediately died at the spot and thereafter the injuries were caused to Ahmad deceased. It leads to an irresistible inference that the eye-witnesses were not present at the spot, who were summoned subsequently and made witnesses being close relatives of the deceased. Even otherwise both the eye-witnesses had a motive to implicate the accused/appellants in the present case. After perusal of statement of the eye-witnesses, they are also found to be in contradiction with each other regarding range of firing at the deceased by the accused. It was also admitted by P.W.3 that accused inter se had been involved in the criminal litigation. Moreover, Mst. Shahnaz niece of Murtaza and Mst. Dani sister of Murtaza accused were murdered inthe year, 1992 and a case was registered against Ghulam Qadir complainant as well as two brothers of Sakhawat Ali and they had also got a cross case registered against the other party. Similarly, in the year, 1989 brother of P.W.3 was murdered for which Qudrat Ullah, Dost Muhammad and Nawaz accused were cited as accused in that case.
P.W.3 also admitted that Murtaza and Zahid accused were sons of Muhammad. Shah accused.
Sakhawat, Muhammad Yar and Aslam accused were brothers of Mansha and uncle of Murtaza and Zahid accused. Akram was son of Aslam accused. Amin and Humayun were brothers of Akram, Qudrat Ullah, Nawaz and Dosa were sons of Mohabbat. Nawaz was son of Qutab, Meera and Mohabbat were brothers inter se. It was also admitted that Shahadat brother of Qutab was murdered and in the said murder case, Mansha and Aslam accused in the present case were accused. Ali Muhammad uncle of Mansha, Aslam, Muhammad Yar and Sakhi accused are grandfather of Mansha. Amir .Accused was murdered and case was registered against Bhagaila uncle of Mohabbat accused and Shahadat was first cousin of Mohabbat accused, Shahadat P.W.
And Shahadat son of Ishmaeel were sentenced to death and Bhagaila was sentenced to 14 years'
R.I. Muhammad Bakhsh son of Amir was husband of sister of father of Amin, Humayun and Akram accused. Murtaza. And Zahid accused were murdered and case was registered against Muhammad father of Qudrat Ullah and one first cousin of Qudrat Ullah namely Qutab and Mansha.
So it was established on their record that the accused-appellants were also' inimical towards each other being involved in murder case inter se.
14. According to the prosecution version, the occurrence in the present case had taken place on 27-10-1994 at Deegar Wela, while on the statement of Ghulam Qadir complainant recorded by Manzoor Ahmad, S.-I. In the area of Chak No,597-G/B at 5 p.m., the F.I.R. Was lodged promptly at 6- 05 p.m. At Police Station Bahlik situated at a distance of 8 miles from the place of occurrence, but the Postmortem Examination on the dead bodies was conducted by Dr. Munawar Ahmad (P.W.2) on the next day i,e, 28-10-1997 with the delay of 16/17 hours after the alleged incident in spite of that the Investigating Officer had reached the spot after about half an hour, who then immediately prepared the inquest reports and injury statement of both the deceased and the 'dead bodies were sent to the mortuary for postmortem examination which was conducted with the delay of 16/17 hours. It creates doubt in the prosecution version that the F.I.R. Was got lodged with such promptitude. It is also strange that the complainant Ghulam Qadir (P.W.4) in the statement recorded under section 154, Cr.P.C. Had involved 12 accused who according to him were armed with lethal weapons and out of them 9 accused were specifically attributed single shots on different parts' of both the deceased while three accused namelyDost Muhammad, Zahid Hussain and Mohabbat were attributed ineffective firing. We arc satisfied that it was not possible for a human being to distinguish the weapons of 12 persons alleged to have participated in the incident and attribute the injury with fire-arm to each of the accused specifically when such a large number of the accused had allegedly participated in the incident. The possibility of recording of the F.I.R. With due deliberation and after preliminary investigation cannot be ruled out while fabricating a false story of attributing injuries to each of the accused for making out their case for conviction. It is also strange that 12 persons had made firing in the incident and two persons had died while the Investigating Officer had reached the spot immediately thereafter when the eye- witnesses were also present at the spot, but not a single empty was recovered from the spot at the time of his first inspection of the spot.
15. From the above evidence it is established that presence of the eye-witnesses at the spot was doubtful, who were also inimical towards the appellants accused and had they been present at the spot, they would also have been murdered or injured by the accused who were 12 in number while armed with fire-arm and there was, nothing to stop them from causing injuries to these P.Ws. When the same motive was available against them as well.
16. In view of the above discussion, we find that ocular account was interested and inimical, but there was no independent piece of evidence available on the record to corroborate the same. The recovery of weapons from some of the appellant was of no use as no empty was recovered from the spot for the comparison with the said weapons. The motive is always considered to be a double edged weapon and it can be used as well for the false implication of the opponents by widening the net. The medical evidence cannot corroborate the ocular account as it does not pinpoint the accused who participated in the incident and caused the injuries. It can only, at the most support the prosecution version regarding nature of injuries and use of weapon. Even after perusal of the medical evidence, we find that it does not fully support the prosecution case because some of the injuries were with black margins to be fired from a close range and not from a distance of 6/7 karms as claimed by the eye-witnesses. The defence version cannot be taken into consideration according to which only Akram and Murtaza co-accused had participated in the occurrence, who have still to face the trial as they were declared P.Os.
17. As a result of the above discussion we find that the prosecution has miserably failed to prove the case against the appellants beyond any shadow of doubt and the impugned judgment of conviction and sentence is sustainable in the eye of law. Criminal Appeal No,315-J of 2001 filedby Qutab and Muhammad Nawaz, Criminal Appeal No,316-/2001 filed by Mansha, Sakhi alias Sakhawat and Muhammad Aslam appellants arc accepted, the judgment dated 31-8-2001 is set aside and all the appellants were acquitted for the charges by extending them the benefit of doubt, who shall be released from the Jail forthwith if not required in any other criminal case.
Criminal Revision No,873 of 2001 filed by the complainant seeking enhancement of the sentences of Mansha, Sakhi alias Sakhawat and Muhammad Aslam appellants as per above discussion, is found to be meritless and the same is dismissed.Murder Reference No,603 of 2001 is replied in the negative.