' HASNAT AHMAD KHAN, J.---Through this single judgment we intend to dispose of Criminal Appeal No,1911 of 2002, Criminal Appeal No,2037 of 2001 and Criminal Revision No,923 of 2001 as all .These matters have stemmed from one and the same impugned judgment dated 22-11-2001, handed down by the learned Additional Sessions Judge, Jhang, whereby Muhammad Riaz has been convicted and sentenced as under:-- "Under section 302(b), P.P.C. Sentence of death as Ta'zir. Fine of Rs,1,00,000 as compensation under section,544-A, Cr.P.C. To the legal heirs of the deceased, in default whereof to undergo R.I. For six months.
' Under section 337-A(i), P.P.C. R;1. For two years. To pay Rs,2,000 as Daman to the injured P.W. And till the payment of Daman he shall be kept in jail.
' Under section 452, P.P.C. R.I. For two years in default thereof to undergo S.I. For two months."
' Vide the same judgment Muhammad Shafi, Mumtaz and Nawaz, respondents in Criminal Appeal No,2037 of 2001 have been convicted and sentenced as under: ' Muhammad Shafi "Under section 337-A(i), P.P.C. R.I. Imprisonment for two years and to pay an amount of Rs,2000 as Daman to the legal heirs of deceased and till the payment of Daman he shall be kept in Jail.
' Under section 452, P.P.C. R.I. For two years and in default thereof to undergo Si for two months.
' Mumtaz "Under section 337-A(i), P.P.C. R.I. Imprisonment for two years and to pay an amount of Rs,2,000 as Daman to the injured P.W. And till the payment of Daman he shall be kept in Jail.
' Under section 452, P.P.C. R.I. For two years and in default thereof to undergo S.I. For two months.
' Nawaz "Under section 337-F(i), P.P.C. R.I. Imprisonment for one year and to pay an amount of Rs,2;000 as Daman to the injured P.W. and till the payment of Daman he shall be kept in Jail.
' Under section 452, P.P.C. R.I. For two years and in default thereof to undergo S.I. For two months.
' Vide Criminal Appeal No,1911 of 2002 Riaz appellant therein has sought his acquittal while Sheikh Ahmad appellant/complainant has challenged the acquittal of respondents Nos. 1 to 3 under section 302(b), P.P.C. 'Similarly said Sheikh Ahmad complainant by way of filing Criminal Revision No,923 of 2001 has sought enhancement of the sentence awarded to the respondents mentioned therein. Criminal Appeal No,2037 of 2001 was admitted to regular hearing by this Court vide order dated 9-5-2005.
2. Murder Reference No,878 of 2001 for confirmation or otherwise of the death sentence awarded to Riaz convict shall also be replied through the same judgment.
3. Shorn of unnecessary details the prosecution story as unfurled in the F.I.R., lodged at the instance of Sheikh Ahmad complainant/P.W.8 is that on the night between 14th and 15th May, 1999 while he (complainant) along with this brother Akbar Ali, Khan Muhammad son of Suleman, Qasim son of.
Khan Muhammad was sitting in the courtyard of his Haveli, at 10-00 p.m. Muhammad Shafi, Riaz, Mumtaz and Nawaz while armed with fire-arm weapons barged into the said Haveli and on raising of Lalkara/ululation by Muhammad Shafi, Riaz appellant shot at Akbar Ali while hitting his chest.
Thereafter Muhammad Shafi co-convict allegedly gave a butt blow on the head of the said Akbar Ali (deceased), where after Mumtaz shot at and injured the eyebrow of Qasim Ali, P.W.10.- According to the complainant Nawaz co-convict shot at and injured left knee of the complainant.
Thereafter Muhammad Shafi fired at the forehead of the complainant. The commotion raised by the complainant side, statedly, attracted Muhammad Yousaf son of Jalal and Muhammad Yousaf son of Ahmad, witnesses. Muhammad Yousaf son of Jalal allegedly tried to apprehend Muhammad Raiz who hit his mouth by causing an injury with the barrel of his gun. All the accused allegedly succeeded in fleeing from scene of occurrence. Thereafter Akbar Ali was found dead. The motivating factor behind the occurrence was stated to be an acrimony over the murders of the father and uncles of Muhammad Riaz appellant. With these allegations the complainant triggered the criminal proceedings.
4. After the investigation all the said accused/convicts were challenged and the trial was conducted by a learned Additional Sessions Judge, Jhang. During the trial the prosecution produced as many as 12 witnesses to bring home the guilt of the accused. The medical evidence was provided by Dr. A.R. Tahir, P.W.3 who had conducted the autopsy on the dead body of Akbar Ali (deceased) and had medically examined Muhammad Yousaf son of Jalal P.W.9, Qasim Ali P.W.10, Khan Muhammad (not produced), Sheikh Ahmad P.W.8/complainant. While making his statement the above said doctor gave the detail of injuries received by deceased as under:--
(1) A lacerated wound Of fire-arm entry 5 cm x 5 cm x chest cavity deep on the front of left side of chest and in the middle.
(2) A lacerated wound 3 cm x 1 cm scalp deep on the right side of the head in the middle.
(3) A lacerated wound 1/2 cm x 1/2 cm muscle deep on the front and upper part of right thigh. The edges of wound were inverted and blacken. This was fire-arm entry wound.
CRANIUM AND SPINAL CORD: Scalp damages at the site of injury. Rest of the organs were healthy.
THORAX abdominal wall damaged and ruptured in the front and middle of left chest, 5th and 6th ribs fractures on front side. Plaeura damaged on left side chest. Left long and pericardium and heart damages. Blood vessels damages at the site of injury.
ABDOMEN Diaphragm damaged on the left side of chest. Stomach contained semi-digested food and was healthy. Small intestines and large intestines were healthy and contained paste like material. Urines bladder was healthy and contained about 40 cc urine. Rest of the organs were healthy.
MUSCLES, BONES, JOINTS: Already mentioned 5th and 6th ribs were fractured on the front.
' NOTE: A plastic was recovered from chest cavity along with ten small pellets from left lungs and heart.
' In my opinion the death was caused by injury No,1 which caused hammarage, shock and ultimately death in ordinary course of nature. All injuries were ante mortem, injuries. Nos.1 and 3 were caused by fire-arm weapon, rest by blunt weapon."
' Postmortem report and diagram of injuries were proved as Exh.EE and EE/1.According to the said doctor the detail of injuries suffered by Muhammad Yousaf son of Jalal is as under: ' He further deposed that on 15-5-1999 at 7-20 a.m.- he had medically examined Muhammad Yousaf son of Jalal Caste Salara aged 26 years, brought by Muhammad Iqbal Constable No,43/C6, Police Station Saddar Chiniot and had found the following injuries on his person:
(1) A lacerated wound 2 cm. x 1.4 cm. x skin deep on the right side of nose.
(2) A contusion mark 3 cm x 2 cm on the right side of cheek.
' According to him all injuries were Shajjah Khafifah under section 337-A(i).
' He further deposed that while medically examining Qasim Ali he had observed the following injuries:--
(4) A lacerated wound of fire-arm entry 1 cm x 1.4 cm x skin deep on the left side of forehead just above the left eye-brow.
' Injury No,1 was kept under observation for X-ray and report. No X-ray was produced, and the result of injury was not declared.
' Besides that he further proved the Medico-legal Certificate Exh.PC pertaining to Khan while giving the details of injuries as under:
(1) A lacerated wound 4 cm x 1 cm x scalp deep on the left side of forehead.
(2) A contusion mark 2 cm x 1.5 cm just below the left eye.
' All the injuries were Shujjah Khafifah under section 337-A(i), P.P.C. Exh.PC is the correct carbon copy of my M.L.R. MP/438/99.
' According to the said doctor Sheikh Ahmad, complainant had received one injury mentioned as under:
(1) A lacerated wound of fire-arm entry and exit same with blackened edges of size 3 cm x 2 cm on the back of left knee joint. The wound was skin deep.
' The injury No,1 was Jurrh Ghair Jafia Damiah. The, injury was caused by fire-arm and the duration was 1050 to 12 hours.
' The Medico-legal Certificates pertaining to the said witnesses were proved as Exh. PA, PB, PC and PD respectively.
5. The ocular evidence in this case was provided by the prosecution by producing Sheikh Ahmad, Muhammad Yousaf and Qasim Ali as P.W.8, P.W.9 and P.W.10 respectively. Muhammad Akbar who had identified the dead body of Akbar Ali deceased appeared as P.W.5 while , Nusrat appeared as P.W.6 and tried to prove the recovery of .12 bore gun Exh.P.3 along with 4 live cartridges Exh.P4/l-4 and P4/1 vide recovery memo. Exh.PH. Said Mumtaz was allegedly apprehended by the police in presence of the said Nusrat P.W.6. Similarly one Mallah appeared as P.W.7 and tried to prove the factum of recovery of .12 bore gun. Exh.P7 along with live cartridges Exh.P8/1 to 3 from Muhammad Shall vide Exh.PK and a .12 bore gun Exh.P5 along with 4 live cartridges Exh.P6/1 to 4 from Riaz convict-appellant. Abdul Majeed Inspector who had registered the F.I.R. Exh.PC on the statement of Sheikh Ahmad had stepped into the witness box as P.W.11. Apart from proving the F.I.R. He proved the unsealed site plan Exh.PM, recovery memo of blood-stained earth Exh.PN and injury statement and inquest report of deceased as Exh.PF and Exh.PG respectively. According to him after the postmortem he had received last-worn clothes of deceased. He further deposed that he had got prepared the site plan Exh.P0 and P0/1. After his transfer the investigation was taken by Muhammad Younas Inspector who showed up in the witness box as P.W.12. He deposed that he had arrested the accused from whom the recovery of weapons of offence was effected and after the completion of investigation the accused/convicts were challaned. Rest of the prosecution witnesses being of formal nature need not be mentioned. After tendering the report of Chemical Examiner Exh.PQ and that of Serologist Exh.PR the prosecution evidence was closed by the learned A.P.P.
' After conclusion of the prosecution evidence the accused/convicts were examined under section 342, Cr.P.C. Wherein all of them claimed complete innocence and advanced the plea of total denial. In reply to Question No,9.
' Muhammad Raiz convict-appellant stated as under:-- "All the P. Ws. Are inter se related and are inimical towards me and my co-accused. They, are tenants and personal servants of Sardarzada Fazal Abbas and Syed Ashiq Hussian son of Jewan Shah. I and my family members have long-standing enmity with Syed Ashiq Hussain and his family who is "Sala" of Sardarzada Fazal Abbas Shah. Sardarzada Fazal Abbas Shah was elected as a member of Zila Council of Provincial Assembly. He is an influential person of the area. During the late hours of the night some thieves trespassed into the house of Khan Muhammad, his wife Mst.
Noondan raised hue and cry which attracted neighbourers and other people of the locality. The thieves ran away from the place of occurrence and were chased by the people of the locality and during that process the thieves fired upon Alq)ar Ali in the street near the Mosque adjacent to the house of Khan Muhammad and they ran away from the place of occurrence. The matter was informed to Syed Ghulam Abbas Shah Manager of Haji Muhammad Shafi owner of Crescent. Textile Mills and Sardarzada Fazal Abbas Shah who informed the police. The Investigating Officer after inspecting the place of occurrence traced foot-prints of the thieves and when failed to locate the real culprits, he registered the case at the spot against me and, my co-accused at the instance of Sardarazada Fazal Abbas Shah falsely due to their personal enmity and grudge against me and my family. After some time Akbar son of Pehlwan Gadgor was arrested in the said case by Muhammad Tariq Inspector/S.H.D., Police Station Chak Jhumra and during investigation he disclosed that on the fateful night he along with Shikra, Dhamraya, Zulfiqar, Nawaz and Mumtaz Haral went in the house of Khan Muhammad as Mst. Zubeda wife of said Akbar Gadgor had informed them about the presence of gold ornaments in the house of Khan Muhammad and during that process Mst. Moondan woke up and she raised hue and cry. They ran from the place of occurrence and were chased by the people of the locality and in order to save their skin they fired at the people of the locality as a result of which Akbar died and Qasim and Sheikh Ahmed sustained minor injuries. The investigation was then transferred to Muhammad Arshad Zahid, Inspector S.H.O. Chiniot He also arrested said Akbar Gadgor son of Pehlwan in a theft case of P.S. Chiniot and during the investigation he opined that in' fact Akbar and his companions during the theft had committed Qatl-e-Amd of Akbar Ali and caused injuries to the P.Ws. After the registration of the case I appeared before Abdul Majid the then Inspector/S.H.O., Police Station Saddar Chiniot and pleaded innocence before him and offer to produce Special Nian/oath about my innocence.
He did not arrest me and my co-accused and reported the matter to S.P. Jhang about our false involvement but during this period Sardarzada Fazal Abbas got stopped the investigation through the orders of D.I.G. Faisalabad and in this way he saved Akbar etc. From the legal punishment."
' However, all of them refused to appear under section 342, Cr.P.C. But produced two witnesses namely Muhammad Arshad Zahid, Inspector Motorway/D.W.1 and Muhammad Malik Inspector/S.H.O./D.W.2 and closed their evidence.
6. After the conclusion of the trial the accused were found guilty under different provisions of law and sentenced as mentioned above vide judgment dated 22-11-2001.
7. While seeking acquittal of Riaz convict-appellant and defending Criminal Appeal No,2037 of 2001 whereby the reversal of the judgment of acquittal of Muhammad Shafi, Mumtaz and Nawaz has been sought, Mr. M.Asghar Khan Rokhari, Advocate has contended that the F.I.R. In this case was lodged with a delay of more than nine hours which shows that the same was registered after due deliberations and consultations and the convicts were involved as a result of political rivalry; that the prosecution's case is totally false and a cooked book; that it was a night time .Occurrence which was resulted due to an attempt of dacoity/theft; that the occurrence had not taken place in the manner as claimed by the prosecution, that the story of the motive as claimed by the prosecution is not believable as previous murders had taken place in the year 1974 and thereafter that no untoward incident had taken place between the parties till the date of the present case.
Therefore, it is not believable that the accused out of whom some were not even born on the date of previous murders would avenge after passage of period of more than two decades, to be more precise after 24 years; that the occurrence being a night time affair, the identification of the assailants was doubtful especially when there was no source of light. He adds that the prosecution's story that the culprits were identified in the light of a bulb had been falsified by the attending circumstance; that the medical evidence had failed to support the prosecution's version inasmuch as a fire-arm injury received by Akbar Ali, deceased on his right thigh was not explained by the complainant while lodging the F.I.R. Further adds that a careful perusal and examination of injury No,1 received by the deceased clearly depicts that the same was caused by pressing the fire-arm tightly on the chest of deceased.
8. Conversely, the learned counsel for the complainant has contended that the prosecution's case is supported by the evidence of injured witnesses who being the inmates of the house are natural witnesses and therefore, their evidence cannot be discarded. Adds that there was no reasons for substitution of the real accused/culprits. Further adds that the investigation in this case was conducted dishonestly to give the benefit to the accused and therefore, the lapses of the investigation, if any, are liable to be ignored. However, on court's query he has candidly admitted that Abdul Majeed P.W.11 who according to him had conducted the investigation dishonestly was not got declared hostile by the prosecution. In the end he has prayed that the conviction and sentence awarded to Riaz appellant be maintained while respondents Muhammad Shafi, Mumtaz and Nawaz be awarded death sentence under section 302(b), P.P.C. For shari common intention with main accused for causing the murder of Akbar Ali (deceased).
9. After hearing the arguments put forth by both the sides we have concluded that the prosecution evidence is based upon the evidence of motive, ocular evidence, medical evidence and the recoveries of weapons of offence. As far as the alleged recoveries of weapons of offence at the instance of Riaz, Mumtaz and Muhammad Shafi convicts are concerned, the same are not much helpful to the prosecution inasmuch as no crime empty was recovered from the spot and therefore the weapons of offence were not sent to the Fire-arm Expert. Consequently the prosecution cannot take benefit out of said recoveries.
10. As far as the alleged motive for the occurrence is concerned, the same was disbelieved by the learned trial Court. The concluding paragraph of the judgment of the learned trial court in this regard is reproduced as under:- "Keeping in view this fact at the time of arguments, the learned counsel for the complainant Mian Muhammad Zahoor Lali Advocate has frankly admitted that the alleged motive has not been substantiated by the prosecution as the P.Ws. Or the complainant or their other relatives were neither the accused/victim nor the P.Ws. Of that murders and they had no bearing with those murders."
' Despite the fact that the story of the motive was disbelieved by the trial. Court we have ourselves gone through the evidence regarding the motive and have come to the conclusion that the same was disbelieved by the learned trial court for the valid reasons inasmuch as according to the prosecution's version as mentioned in the F.I.R. The convicts had committed the murder of Akbar Ali and injured the .Other witnesses due to the reasons that the father of Riaz appellant as well as his two uncles were murdered sometimes ago, however, while appearing as P.W.8 Sheikh Ahmad complainant candidly admitted that the said murders had taken place 23/24 years ago (from the date of his appearing in the witness box). He had further admitted that the murderers of said deceased had also been murdered. It was further admitted by him that at the time of the murders of uncles and father of Raiz convict, Shaft convict was 7/8 years old while the other convicts had not even born at that time. He had further admitted that neither the deceased nor the injured witnesses were involved in the said murder cases. It is not the case of the prosecution that during the said period of more than two decades any untoward incident had taken place between the parties. These reasons hold much water to convince us that the prosecution Story regarding motive was rightly disbelieved by the learned trial Court.
11. As far as the medical evidence is concerned the same has not fully supported the prosecution version inasmuch as one of the injuries received by deceased on his thigh Was not explained by the prosecution and even otherwise the medical evidence can only prove the time of occurrence, nature of injuries, the weapons used for causing the injuries but the same does not provide a guarantee that the witnesses are speaking truth. We are mindful of the fact that having the stamp of injuries on their person in the normal course of circumstances the evidence of the injured witnesses requires to be given due weight. The injuries on the person of injured witnesses can prove their presence at the spot of occurrence but mere presence of injuries on their person would not raise any presumption that whatever be they are telling is whole truth. Moreover, the fact that the prosecution witnesses had sustained injuries during the occurrence would not guarantee as to their being truthful witnesses and the said fact does not absolve the court from critically analyzing the evidence and more so when it involves awarding of major penalty. While holding so we are pinning our faith on the cases of Mehmood Ahmad and 2 others v. State 1995 SCM R 127, Ghulam Shabir v. Bachal and another 1980 SCM R 708; Said Ahmad v. Zammured Hussain and 4 others 1981 SCM R 795, Naseer Ahmad and 5 others v. State 1984 M LD 1461 and The State v. Fateh Muhammad and 5 others 1980 PCr:LJ 1245.
' For judging the intrinsic value of the statements made by the injured witnesses we have gathered that according to the prosecution the occurrence had taken place at 10-00 p.m. While admittedly the F.I.R. Was lodged at 7-10 a.m. The distance between the place of occurrence and the police station has-been stated to be six miles. Admittedly while lodging the F.I.R. The complainant was accompanied by Sardarzada Fazal Abbas who is admittedly a landlord and politician of a good stature. It has come cm the record that another supporter of the complainant namely Ghulam Abbas owned a car and a jeep. Similarly it was not denied by P.W.8 that telephones were not installed in the home of said Sardarzada Fazal Abbas. The complainant had candidly admitted during his cross-examination that the place of occurrence was connected with the police station by a "Pacca Road" but to cover the delay he denied the suggestion that the transport facility was available. However, he made his clean breast by stating that the complainant party owned tractors and motorcycle but interestingly enough they waited for more than nine hours for lodging the F.I.R. a fact which gives rise to gray clouds of doubt in our minds. Similarly it has come on record that the injured witnesses were not rushed to the hospital immediately after the occurrence and they were medically examined after 7-00 a.m. The delay in lodging the' F.I.R. Further assumed importance while considering the evidence of Abdul Majeed Inspector P.W.11 who had admitted during his cross-examination that the injury statement of the injured P.Ws. Was prepared at 9-30 a.m. He further admitted that while preparing the inquest report he had not given the number of the F.I.R. That shows that at the time of preparation of inquest report the- F.I.R. Had not been registered. Similarly he had admitted that in the injury statement the number of F.I.R. Was missing.
Said facts clearly show that at the time of recording of said documents the F.I.R. Had not been registered and it further reveals that possibly the F.I.R. Was registered after due consultation and deliberation when this fact is considered in the light of defence version Which was put forth before the Investigating Officer from the day one that as a matter of fact Akbar Ali was murdered during an attempt of robbery/theft and the injured P.Ws. Had received pallet injuries while chasing the unknown bandits/thieves, the defence version rings true. This fact further gets support from the fact that though it is the case of the prosecution that at the time of receipt of injuries the deceased as well as injured P.Ws. Were sitting on cots but admittedly the said cots were neither found to be blood-stained nor were the same taken into possession. Besides that though it is the case of the prosecution that the accused were identified in the light of the bulb but evidence of P.W.11 tells us otherwise as according to him while inspecting the place of occurrence he had not mentioned the existence of bulb at the spot. Similarly he had admitted that while preparing unsealed site plan the existence of bulb at the spot was not shown. This fact also makes the identification of the assailants doubtful.. It has come on the record that the accused side had some enmity with Sardar Ashiq Hussain and Sardarzada Fazal Abbas who were supporting the complainant as is obvious from the F.I.R. Which shows that at the time of lodging of the same Sardar Fazal Abbas was accompanying the complainant. In these circumstances possibility of false implication of accused instead of robbers who according to the defence version had caused injuries to the deceased as well as injured P.Ws. During an attempt of robbery cannot be ruled out.
12. For all the said reasons we have come to the conclusion that the ocular evidence of the interested eyewitnesses is not trustworthy. On such uncorroborated evidence, the convicts cannot be sent to gallows.
13. To put in a nutshell, we have come to a definite conclusion that the prosecution has failed to prove its case beyond any shadow of doubt. It is established law that benefit of doubt, howsoever slight it may be has to go to the accused. Even otherwise it is better to err in acquittal rather than in conviction as has been laid down in the ease of Tahiz Khan alias Niazi v. State 2005 YLR 2220.
14. For what has, been stated above by giving the benefit of doubt to Riaz convict the Criminal'
Appeal No,1911 of 2002 filed by him is accepted and he is acquitted of the charge. He be from jail if not I required in any other case. Similarly while exercising our suo motu powers- the conviction and sentence awarded to. Shafi, Mumtaz and Nawaz is also set aside. Consequently notice issued to them in. Criminal Appeal No,2037 of 2001 is discharged. As a corollary of above said discussion Criminal Revision No,923 of 2001 filed by the complainant also fails. Murder Reference No,878 of 2001 filed by the State is answered in NEGATIVE and the sentence of death awarded to Riaz convict IS NOT CONFIRMED.