Ijaz Ahmad Chaudhry, J.--Shahzad appellant was convicted for an offence under Section 302(b), PPC vide judgment dated 24.8.2001 rendered by the learned Additional Sessions Lahore and was sentenced to death for committing `qatil-i-amd' of Amir Ali alias Munira deceased with direction to pay a sum of Rs. 50,000/- to the heirs of the above said deceased by way of compensation under Section 544-A, Cr.P.0 or in default of payment thereof to further undergo S.1 for six months. Through the same judgment, co-accused namely Raja Fazal Elahi and Muhammad Ali @ Bhola were acquitted of the charges by the learned trial Court while extending them the benefit,of doubt.
Shahzad appellant has challenged his conviction and sentence before this Court through the instant Criminal Appeal No. 1375 of 2001 which has been heard by us alongwith Murder Reference No. 596 of 2001 sent by the learned trial Court under Section 374 Cr.P.0 seeking confirmation of the sentence of death passed by the learned trial Court against Shahzad appellant. We propose to decide both these matters together through the present consolidated judgment.
2. Succinctly the facts of the prosecution's case unfolded in the FIR (Ex. PA/1) got lodged by Tariq Faqir complainant (PW-3) are that Muhammad Amir alias Munira was real cousin (Tayazad) of the complainant. 5/6 days prior to the occurrence, his brother had to pay some amount to Muhammad Ali alias Bhola (acquitted accused), whose maternal nephew Shahzad (appellant) came to their house but after quarreling with. Amir Ali alias Munira (deceased) went away. On the day of occurrence, at about 8:30 p.m. Tariq Faqir complainant (PW-3) alongwith Muhammad Aslam (not produced) and Mazhar Hussain (PW4) was sitting in the shrine of Madhu Laal Hussain.
In the meanwhile, his brother Amir Ali (deceased) had come to call him. On the back side of the shrine, Muhammad Ali alias Bhola (acquitted accused), Shahzad appellant, Raja Fazal Elahi (acquitted accused) alongwith two unknown persons who all armed with mousers, had caught hold of his brother. Muhammad Ali alias Bhola (acquitted accused) inflicted butt blow with his mouser on the face of Amir Ali (deceased) while Shahzad appellant fired with mouser which hit Amir Ali (deceased) on his right flanks Then Raja Fazal Elahi (acquitted accused) fired with his mouser which hit on the right knee of Amir Ali (deceased). Then Bhcla Butt (acquitted accused) with his mouser simultaneously fired 5/6 shots with his mouser which hit Amir Ali (deceased) on his legs and also on the different parts of his body. The complainant tried to come forward but the accused persons threatened him with, dire consequences whereupon due to fear the complainant did not come forward. Amir Ali (deceased) brother of the complainant after becoming injured fell down on the ground.. The accused persons'while raising lalkars succeeded in fleeing away. Besides the complainant the occurrence had been witnessed by Muhammad Aslam (not produced) and Mazhar Hussain (PW 4) with their own eyes. It is also alleged that Muhammad Ali alias Bhola, Raja Fazal Elahi Butt (acquitted accused) and Shahzad (appellant) alongwith two unknown persons in consultation with each other had injured Amir Ali alias Munira with firing in order to kill him.
3. The investigation of this case was conducted by Mushtaq Ahmad, S.I (PW-13) and Rashad Amin S.I (PW 14) and during the investigation, the deadbody of the deceased was inspected, injury statement and inquest report were prepared, statements of the witnesses under Section 161 Cr.P.C. were recorded, the place of occurrence was inspected, blood-stained earth was secured, rough site-plan of the place of occurrences was prepared, the dead body was set to the mortuary for autopsy, the last-worn clothes of the deceased were received, formal site-plan of the place of occurrences was got prepared, the appellant was arrested on 22.5.1997 who on 25.5.1997 while in police custody led to the recovery of pistol (P-4) alongwith five live bullets (P-05/1-5); and after completion of the investigation a challan was submitted in the Court.
4. At the commencement of the trial the learned trial Court after supplying copies of the documents required under Section 265-C, Cr.P.C. to the appellant and his co-accused framed a charge 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.
The ocular account of the incident in question was furnished by Tariq Faqir complainant (PW-3) and Mazhar Hussain (PW 4) who also deposed about the motive. PW-2 Muhammad Latif Constable had escorted the deadbody of the deceased to mortuary for autopsy while PW-11 Mehmood Awan had identified the deadbody of the deceased at the time of post-mortem examination. The medical evidence was provided by Dr.. Muhammad Obaidtillah (PW-5), Dr. Aamer Mirza (PW-10) and. Dr. Tahir Qadeer Khan (PW-15) while NIushtaq Ahmad; S.I (PW-13) and Rashad Amin, S.I (PW- 14) 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 appellant and the co-accused had denied and controverted all the allegations of fact levelled against them by the prosecution and had professed their innocence. However, to a question that "why this case against you and why the PWs have deposed against you? Shahzad appellant replied in the following terms.
'The deceased Amir Ali was a history sheeter and a number of cases were stand registered against him at different police stations of Lahore including case u/S. 302 PPC and case for abduction for ransom in which abductee was a Gold Smith of Qilla Gujjar Singh, Lahore who was recovered from the residence of deceased. The alleged occurrence was committed by some unknown -persons and I have been involved in this case falsely.
'The PWs have deposed against me falsely being relative of the deceased and due to rivalry with my co-accused namely Raja Fazal Elahi who was Ex-Councillor of the Halqa and Muhammad Ali @ Bhola. The are interested witnesses and were not present at the time of occurrence at the spot. No independent PW has conic forward to support the prosecution story".
'In reply to the aforesaid question, co-accused namely Muhammad Ali and Raja Fazal Elahi also professed their innocence. However, they did not opt to make statements on oath under Section 340(2) Cr.P.C. but they produced Anj um Qadeer (DW-1) Muhammad Anwar (DW-2) and Muhammad Mumtaz. (DW-3) in their defence while the learned trial Court in order to reach a just conclusion examined Muhammad Aslam as (CW 1) and Muhammad Hanif as (CW-2).
7. Upon conclusion of the trial the learned trial Court after finding the prosecution's case against the appellant to have been proved beyond reasonable doubt, he was 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 appellant contends that the FIR had not been recorded with promptitude at the hospital as per prosecution's case because Tariq Faqir complainant (PW-3) and Mazhar Hussain (PW-4) in their statements admitted that the FIR was recorded on the next day at the Police Station; that the eyewitnesses had not witnessed the incident and they were not present at the spot at the time of occurrence; that there are contradictions in the statements of both the eyewitnesses; that acquittal of the co-accused of the appellant namely Raja Fazal Elahi and Muhammad Ali on the same evidence from the charge of murder of Amir Ali alias Muhira deceased by the learned trial Court had created a serious dent in the prosecution's case towards the involvement of the appellant as well, and thus, the same eyewitness could not be believed by the learned trial Court against the appellant in the absence of any independent corroboration that the recovery had been witnessed by Rashad Amin, S.I (PW-14), Mushtaq Ahmad, S.I (PW-13). and Mehdi Kazmi, ASI (PW-6), but according to the Investigating Officer door of the house of Anjum Qadeer (DW-1) was locked and it was opened by the accused with the key while the other. PW of the recovery stated that one person was inside the room and it was knocked and he opened the door; that the recovery had beer witnessed by the police officials only and the same having been effected in violation of Section 103 Cr.P.C. could not be believed; that even otherwise, DW-1 Anjum Qadeer while appearing in the Court had denied the effecting of recovery form his house; that PW- 7 Muhammad Ramzan FC who had taken the empties to the office of Forensic Science Laboratory admitted that the accused had already been arrested when the empties were sent to the office of Forensic Science Laboratory; that the appellant had no motive to commit the murder of the deceased, but the motive had I:Neen attributed to Muhammad Ali Alias Bhola who has already been acquitted by the learned trial Court and the prosecution has failed to prove the motive. It is also contended that only disinterested witnessed can be relied upon. Relies upon 1995 SCM R 1627, and prays for acquittal of the appellant and setting aside of the impugned judgment of conviction and sentence.
9. On the contrary, the learned counsel for the State have vehemently opposed the appeal on the ground that the learned trial Court had rightly relied upon the evidence against he appellant and both the eyewitnesses had no enmity or grudge to falsely implicate the appellant in the present case; that the eyewitness were residents of the same vicinity and their presence at the spot was not doubtful; that they had made consistent statements regarding. the time, place and the manner in which the occurrence had taken place; that the FIR had been registered with promptitude; that the medical evidence also supported the ocular account; that the recovery of weapon had been effected on the pointing out of the appellant; that the prosecution had succeeded in proving the case against the appellant beyond any shadow of doubt and the appeal filed by the appellant may be dismissed.
10.We have heard the learned counsel for the parties at length and also gone through the record of this case with due care and caution.
11.The occurrence in the present case according to the prosecution. had taken place at 8:30 p.m on 4.5.1997 within the area of shrine of Madhu Laal Hussian 1 k.m away towards South East from Polite Station Shalamar District Lahore whereas the matter was claimed to be reported by Tariq Faqir complainant (PW-3) through statement (Ex PA) recorded by Mushtaq Ahmad, S.I (PW-13) at Mayo Hospital, Lahore on 4.5.1997 at 11.30 p.m on the basis' of which formal FIR (Ex.PA/1) was drafted by Ghulam Hassan, S.1 under Section 324/148/149 PPC the same night at 12:30 p.m. However, subsequently on 18.5.1997, Arnir Ali alias Munira had succumbed to the injuries in the hospital whereupon Section 302 PPC was added. Tariq Faqir complainant while appearing as PW-3, denied that his statement had been recorded at the hospital and he stated that his statement had been recorded by the police on the following day at the Police Station. Similarly, PW-4 Mazhar Hussain stated that statement of the complainant had been recorded on the following day at the Police Station. It was categorically denied by both the eye-witness that statement of the complainant under Section 154 Cr.P.C. had been recorded at the hospital. So it is found that there was contradiction in the statement of the complainant (Ex.PA) as according to the Karward Police, statement of the complainant had been recorded at the Emergency Ward of Mayo Hospital, Lahore by Mushtaq Ahmad, S.I while Tariq Faqir complainant (PW-3) categorically stated that Mushtaq Ahmad, S.I (PW-13) did not visit the hospital on the night of the incident. In such circumstances it has been found that the FIR had not been recorded at Mayo Hospital, Lahore as per statement of the eyewitness in the manner as claimed by the prosecution. Hence, the A F.I.R. cannot be used as a corroborative piece of evidence to the ocular account and the prosecution ifeidence has to be seen with utmost care and caution.
12. To prove the ocular account the prosecution had produced Tariq Faqir complainant (PW-3) and Mazhar Hussain (PW-4), Both the eye-witnesses were real paternal cousins of the deceased as such they B. were related inter se and with the deceased closely. Tariq Faqir complainant (PW-1) was resident of House No. 2, Street No. 161, Mohallah Shah Abdul Ghani, Baghbanpur, Lahore and Mazhar Hussain (PW-4) in his statement before the police under Section 161 Cr.P.0 had shown the same place of r esidence and while appearing as PW-4 Mazhar Hussain also gave the same address but during the cross-examination he admitted that he was residing at Ghausia Colony and Tariq Faqir complainant (PW-1) also admitted that Mazhar Hussain (PW-4) was residing in the house located on the back side of the house of the complainant. Mazhar Hussain (PW-4) at the trial stated that Tariq Faqir complainant (PW-1) and Amir Ali alias .Munira (deceased) came there who called him as he was sitting in the shrine of Hazrat Madhu Laal Hussain but the complainant in the FIR (EX. PA/1) stated that he alongwith Muhammad Aslam (not produced ) and Mazhar Hussain (PW-5) were sitting at the shrine of Hazrat Madhu Laal Hussain when Amir Ali alias Munira (deceased) came to call them. So both the C eyewitnesses are in contradiction with each other regarding the manner in which they were sitting at the shrine. During the cross-examination both the eyewitnesses failed to give any reasonable explanation for their being present at the spot at the time of occurrence. Admittedly, they were chance witnesses who were bound to give reasonable explanation for their being present at the spot and witnessing the incident but they had failed to do so.
13.The presence of the eyewitnesses at the spot is also found doubtful from the evidence of CWs- 1 and 2. The statement of Muhammad Hanif (CW-2) was recorded by the police and he also put his signature on it which is mark-A: According to it none of the witnesses were present and the- deceased was going alongwith him from his house and when they reached near the shrine of Hazrat Madhu Laal Hussain the deceased was fired at by Shahzad appellant. However CW-2 Muhammad Hanif stated that deceased and Muhammad Aslam (not produced) were sitting in their baithak when he went there and the deceased took him to his baithak where they started playing cards. In the meanwhile, some person knocked at the door and -called Amir Ali alias Munira (deceased) out but soon thereafter he came back. It is found that in his statement recorded by the police which has been placed on the record as (Mark-A), he did not mention the name of the eyewitnesses present at the time of incident. Muhammad Aslam (CW 1) was also recorded as an eyewitness in the F.I.R. but he also did not support the prosecution story. According to him after receiving the information about the occurrence they had reached the spot and found Amir Ali alias Munira in injured condition lying on the ground near the Park of Darbar. From the evidence of CWs-1 and 2, it is found that it was an unwitnessed occurrence and the ocular accounts was concocted afterwards..
14. The medical evidence is also found in contradiction with the ocular account as in the FIR, it has been stated that the appellant had fired shot with mouser hitting the deceased on his right flank but PW-4 Mazhar Hussain while appearing in the Court stated that shout fired by the appellant had it the deceased on his left flank. During the cross-examination Dr, Muhammad Obaidullah (PW-5), who had medically examined the deceased on 4,5.1997 at about 8:45 p.m explained that there was no injury on the left flank and the only shot attributed to the appellant was on the right flank.
However, according to the doctor there was no injury on the right or left flank though there was no injury on the right side of the chest and the other injuries were on the knee and thighs of the deceased. So the medical evidence is also not in line with the ocular account.
15.There is another aspect of the case that according to the ff iniedico legal report the deceased had received 10 injures, but only one injury had been attributed to the appellant and the remaining injuries had been attributed to Raja Fazal Elahi arid Muhammad Ali alias Bhola co-accused with mousers, who have already been acquitted by the learned trial Court through the same judgment while disbelieving the same eyewitnesses. The impugned judgment to their extent has attained finality. It has been repeatedly held by the Hon'ble Supreme Court in the cases of Ghulam Sikandar and another v Mamraz Khan and another (PLD 1985 SC 11). Sarfraz Alias Sappi and two other v. The State (2000 SCM R 1758) and Iftikhar Hussain and another v. The State (PLJ 2004 SC 552) that eyewitnesses who are disbelieved against some accused persons attributed active and effective roles cannot be believed against the other accused persons unless they receive independent corroboration qua the other accused persons. In the case in hand, no such independent corroboration was available vis-a-vis the present appellant.
16. The motive setup by the prosecution was that the deceased had to pay some amount to Muhammad Ali alias Bhola (acquitted accused) while Shahzad appellant came to their house and after quarrelling with Arnir Ali alias Munira (deceased) went away. During the cross-examination both the eyewitnesses frankly stated that they were not present at the time of quarrel between the appellant and the deceased. Even otherwise, the time and the date of the quarrel had net been mentioned and no documentary evidence was produced in this connection. The learned trial court has only relied upon the suggestion put to the complainant by the learned counsel appearing on behalf of the appellant that he had been falsely involved due to the quarrel which had taken place 5/6 days ago. It is settled law that the suggestions put by the learned defence counsel to the. PWs during the cross-examination and denied by them eannot be used as a corroborative piece of evidence, if the prosecution itself fails to produce cogent evidence to prove some point. Even otherWise, Muhammad Ali alias Bhola, co-accused who had to take money from the deceased as per contents of the FIR has already been acquitted by the learned trial Court. Hovvever, at the trial both the PWs changed their stand while stating that the deceased had stood surety, but they failed to disclose the name of the person who had to make payment. so the prosecution also failed to prove the motive against the appellant.
17. Now we come to the recovery evidence. According to the prosecution, the appellant had been arrested on 22.5.1997 and on 25.5.1997 he led to the recovery of pistol (P-5) which was taken into possession vide recovery memo (Ex PI') in the presence of Asghar Ali, ASI (given up PW) Mehdi Kazmi. ASI (PW-6) by Rashad Amin, SI (PW14). According to the recovery memo the appellant had held to the recovery of pistol from the house of Anjum Qadeer WW-1) in street No. 56, Bahgbanpura, Lahore, which was lying near the Western Wall in a box. The respectables of the locality had not been joined in the recovery proceedings which is violation of Section 103 Cr.P.C. and it is not case of the prosecution that the private persons of the locality were not available or they were reluctant to join the recovery proceedings. Mehdi Kazrni, ASI appeared as (PW-6) and stated that nobody from the locality had been joined in the recovery proceedings. Moreover, there were shOps but no shopkeeper had been joined. PW-6 further explained that when they went to the house fOr effecting recovery, the landlord, of the house was not present and only one male member was present in the house at that time. PW-14 Rashad Amin, S.I was the Investigating Officer, who stated that they had gone to the place of recovery on a private vehicle to effect recovery which was hired from a person and inmates of the house were not present at the time of effecting of recovery. Both the recovery witnesses are also found in contradiction with each other that now the door of the house was opened. Such witnesses cannot be believed to 'prove the recovery of weapon from the appellant as both of them had made cortradictuty statements Moreover, according to the prosecution five empties had been recor ,red from the spot on 5.5.1997 i.e. on the following day of the incident in the presence of Mazhar Hussain (PW-4) and Muhammad Aslam (not produced'. It is found that the examination in chief of PW-4 Mazhar Hussain had been recorded by the-learned trial Court on 9.4.2001 when he stated that the police if had collected anything on the site accor ding to law, he did not know, because he was present at the hospital. However, on the next day e. on 10.4.2001 when he again appeared in the Court for further examination he stated that five empties had been recovered from the spot. Due to the contradictory statement made by PW-4 regarding effecting of recovery of empties from the spot he cannot be believed as a truthful witness. The second statement made by PW-4 on the next day can be result of some tutoring.
Except for the statement' of Mushtaq Ahmad, S.I (PW-13), who was Investigating Officer there is no evidence to support that any empty had recovered form the spot. Moreover, according to the recovery witness (PW-4) their statements had been recorded on the next day at the Police Station.
We have also noticed that according to the prosecution the empties had been sent to the office of Forensic Science Laboratory through Muhammad Ramzan (PW-7) who during the cross- examination with no hesitation stated that when he had taken the empties to the office of Forensic Science Laboratory on 19.8.1997, the appellant was already in the custody of the police. Thus the claim of the Investigating Officer that the appellant had been arrested on 22.5.1997 was belied from the prosecution evidence itself. It is strange that the empties had not been sent to the office of Forensic Science Laboratory immediately after its recovery on 5.5.1997, but those were sent only after the arrest of the appellant and during this period the empties remained lying at the Police Station It is also strange that Shahzad appellant was only alleged to have made on fire during the occurrence, but all the five empties recovered from the spot were reported to have matched with the revolver allegedly recovered, which. casts serious doubt about the veracity of the report of Forensic Science Laboratory (Ex. PS). The accumulative of the discussion is that recovery of weapon from the appellant cannot be used as a corroborative piece of evidence to the ocular account, which even otherwise has not been found trustworthy by us.
18.During the cross-examination on the Investing Officer (PW-13) it transpired that he had recorded the statement of the deceased in injured condition in which he stated on the line of the story given in the F.I.R. Although PW-13, claimed that he had recorded the statement of the victim after obtaining permission from the doctor, but no doctor was produced to supplement the same.
Although the said statement was not tendered in evidence, but the same is available on the police record. on 6.5.1997 and we have taken judicial notice of the same. The said statement was not signed by the doctor and no witness was produced in whose presence the said statement of the deceased in injured condition was recorded. Even otherwise on the application (Ex. PK) whereby the doctor had firstly declared the patient not fit for statement and then on 6.5.1997 he was declared fit, the figure 6 was over written. From the whole prosecution evidence it is not clear that in which circumstances the statement of the deceased in injured condition had been recorded by the police under Section 161 Cr.P.C. during the investigation and no sanctity is attached thereto.
19.For what has been discussed above, we have come to an irresistible conclusion that the prosecution had not been able to prove the case against the appellant beyond any shadow of doubt.. Hence, Criminal Appeal No. 1375 of 2001, is hereby accepted, the impugned judgment of conviction and sentence recorded by the learned trial Court against the appellant is set aside and he is acquitted of the charge by extending him the benefit of doubt, who shall be released from la forthwith, if not required in any other criminal case.
20.Consequently, the death sentence awarded to Shahzad appellant is not confirmed and Murder Reference No 596 of 2001 is replied in the negative.