' IJAZ AHMAD CHAUDHRY, J.--- Sharafat Ali son of Asghar Ali and Manzoor Ahmad alias Jhuri appellants were convicted under section 302(b)/34, P.P.C. Vide judgment dated 3-4-2001, rendered by the learned Additional Sessions Judge, Kasur and were sentenced to death for committing the intentional murder of Rashid Mahmood deceased with direction to pay a sum of Rs,50,000 each to the heirs of the above-said deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to further undergo six months S.-I. Each. However, through the same judgment co-accused namely Asghar Ali and Sharafat Ali son of Khushi Muhammad were acquitted of the charges by the learned trial Court while extending benefit of doubt to them.
' Sharafat Ali son of Asghar Ali and Manzoor alias Jhuri appellants have challenged their conviction and sentences before this Court through Criminal Appeal No,528 of 2001, which has been heard by us along with Murder Reference No,275 of 2001 sent by the learned trial Court under section 374, Cr.P.C. Seeking confirmation of the sentences of death passed by the learned trial Court against Sharafat Ali son of Asghar Ali and Manzoor Ahmad alias Jhuri appellants. We propose to decide both these matters together through the present consolidated judgment.
2. Succinctly the facts of the prosecution case set up in the private complaint (Exh.P.A./1) got lodged by Muhammad Ashiq complainant (P.W.1) are that on 13-1-1998 at about 5-20 p.m. He was coming to his house from haveli after `milking the cattle and when he reached near the shop of Sadiq Kamboh, he saw that Sharafat Ali son of Asghar Ali and Manzoor alias Jhuri son of Asghar Ali appellants armed with rifles, Sharafat Ali son of Khushi Muhammad (acquitted accused) armed with gun 12 bore-pump action and Asghar Ali (acquitted accused) empty handed were quarrelling with his paternal nephew Rashid Mahmood deceased. Meanwhile, Asghar Ali (acquitted accused) raised a Lalkara that Rashid Mahmood be taught a lesson for not leaving their land whereupon Sharafat Ali son of Asghar Ali appellant made straight fire with his gun, which hit Rashid Mahmood deceased on the left side of his head while the second fire made by Manzoor Ahmad alias Jhuri son of Asghar Ali appellant tit Rashid Mahmood deceased on his left ear. Rashid Mahmood paternal cousin of the complainant after smearing with blood fell down. Then Sharafat Ali son of Khushi Muhammad (acquitted accused) also started indiscriminate firing with his gun 12-bore pump-action. Upon raising alarm by the complainant and also the sound of firing, Muhammad Amin (given up P.W.), Tariq Mahmood (P.W.2) and Zahoor Ahmad (given up P.W.) along with other persons reached the spot, who rescued Rashid Mahmood deceased from the clutches of the accused. The accused while making firing fled away. The complainant along with other P.Ws. Was taking Rashid, Mahrnood in serious injured condition to General Hospital, Lahore, but while reaching just close to the hospital he succumbed, to the injuries.
' The motive behind the occurrence was alleged to be that the accused persons wanted to release the land which the complainant party had taken on lease. Due to this grudge, the accused persons in consultation with each other had murdered Rashid Mahmood deceased paternal nephew of the complainant. Leaving behind the dead body of Rashid Mahmood deceased under the guard of Muhammad Amin and Zahoor Ahmad the complainant was proceeding to report the matter to the police, but in the way at Sabzi Mandi Khudian, he met with Khalid Pervaiz, S.-I. (P,W.8) on 13-1-1998 at 10-30 p.m. And made statement (Exh.P.A.) to him, on the basis of which formal F.LR. No,26 (Exh.P.A./1) was subsequently drafted by Muhammad Abbas, H.C. (P.W.4) at Police Station, Khudian District Kasur on 13-1-1998 at 10-40 p.m. Under section 302/34, P.P.C.
3. The investigation of this case was conducted by Khalid Pervaiz, S.-I. (P.W.8) and Muhammad Sharif Bhatti, Inspector (C.W.1) and during the investigation, the dead body of. Rashid Mahmood 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 occurrence was prepared, the dead body of the deceased was sent to the mortuary for autopsy, the last-worn clothes of the deceased were received, formal site-plan of the place of occurrence was got prepared, the appellants were arrested, and after completion of the investigation a challan was submitted. The complainant being dissatisfied with the conduct of the investigation lodged the instant private complaint.
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 appellants and their co-accused framed a charge under section 302/34', P.P.C. Against them to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced as many as ten witnesses in support of its case against the appellants and their co-accused. The ocular account of the incident in question was furnished by Muhammad Ashiq complainant (P.W.1) and Tariq Mahmood (P.W.2) who also deposed about the motive while the medical evidence was provided by Dr. Jamil Ahmad Janjua (P.,W.10).
Khalid Pervaiz, S.-I. (P.W.8) and Muhammad Sharif Bhatti, Inspector (C.W.1) 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 appellants and their 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 is against you and why the P.Ws. Have deposed against you?" Sharafat Ali son of Khushi Muhammad (acquitted accused) replied as under:-- ' "The P.Ws. Are related to each other inter se and inimical towards me as Asghar Ali my co- accused is my paternal uncle in relation. I have been falsely involved in this case along with my co- accused namely Zahoor, Asghar and Sharafat son of Asghar Ali at the instance of Ghulam Hussain, who is an influential person and is a big terror in the area, who is also a professional murderer in the area In fact this ,case was investigated by Ansar Mahmood and Muhammad Sadiq D.S.P., where numerous persons of the respectables of the locality appeared before the Investigating Officer specially the shopkeepers of the place where this occurrence took place and they deposed that Rashad deceased quarrelled with Latif shopkeeper and gave slaps to him where Doctor Iqbal asked the cause of this quarrelling and Rashad deceased told him that Latif raised a "Burrakh" to see him, whereupon Latif said that he had not raised "Burrakh'', he was encouraging to small kids who were running. Upon this Muhammad Ashiq, apologized then at 7-00 p.m. a brother of Rashad deceased came there where Siddique and Amin, co-accused of the State case came there and they gave slap to Tariq in order to take the revenge of beating Muhammad Latif shopkeeper as Muhammad Latif is a poor man, upon which Muhammad Tariq ran to his house and told Rashad deceased who came there and started firing where Siddique and Amin in retaliation also started firing in which Rashad deceased received injury by Muhammad Siddique and this fact was witnessed by Haji Muhammad Tufail. Dr. Iqbal, Muhammad Siddique, Muhammad Sabir, Maqbool Ahmad, Kareem, Niaz, Muhammad Younas, Muhammad Anwar, Muhanunad Inayat, Muhammad Iqbal Anjum, Khalil Ahmad and other respectables of the locality and this fact was verified by Ansar Mehmood, Inspector and made the opinion that I and my co-accused namely; Sharafat, Manzoor and Asghar Ali are innocent and they were not present at the spot and this fact was also verified by Muhammad Sadiq D.S.P. As the complainant lodged the F.I.R. Against us, he received "Diyat" and compensation from Siddique and Amin accused of the State case, who were challaned by the Police, then the complainant, after a long period with the consultation of their counsel, filed this private complaint after premeditation and after concocting a false story against me and my co- accused at the instance of Ghulam Hussain, who is an influential criminal person of the locality and who has terror on the complainant party. I and my co-accused have no land on lease by the complainant party. I am innocent."
' In reply to the above said question, Sharafat Ali, Manzoor Hussain appellants and their co- accused made the similar reply with slight difference. The appellants and their co-accused, however, opted not to make statements on oath under section 3400, Cr.P.C. And they did not produce any witness in their defence.
7. Upon conclusion of the trial the learned trial Court after finding the prosecution's case against the appellants to have been proved beyond reasonable doubt, they were convicted and sentenced by it as mentioned and detailed above. Hence, this Criminal Appeal and the connected murder reference before this Court.
8. The learned counsel for the appellants contends that both the eyewitnesses were interested witnesses being related inter se and with the deceased closely that they had not witnessed the incident and they were not present at the spot at the time of occurrence; that the occurrence did not take place at the place where they could be usually present; that during the investigation statements of these witnesses had been discarded and new set of the accused namely Muhammad Amin and Zahoor Ahmad was introduced against whom the report under section 173, Cr.P.C. Was submitted in the Court to face trial; that the complainant had filed the private complaint with mala fide intention; that there are contradictions in the statements of both the eye- witnesses; that the medical evidence also does not support the ocular account; that post-mortem examination on the dead body of the deceased was conducted with the delay of about 29 hours after the incident which shows that the F.I.R. Was not got registered with promptitude as claimed by the prosecution, but the time was consumed in concocting the story that the eye-witnesses had not spoken the truth; that the recovery from the appellants was immaterial as no empty had been recovered from the spot and it could not be proved that the said weapons allegedly recovered from the possession of the appellants had been used in the incident; that even otherwise the recovery proceedings, were not plausible as those had been conducted in violation of section 103, Cr.P.C.; that motive was also not proved and that the prosecution had failed to prove the case against the appellants beyond any shadow of doubt.
9. On the other hand, the learned counsel for the complainant and.The State have maintained in unison that the matter was reported to the police immediately after the incident and the deceased was taken to General Hospital, which finds support from the factum that the dead body was sent to the mortuary from General Hospital and some time must have been consumed in taking the deceased in injured condition to the hospital to save the life of the deceased; that the delay in lodging the F.I.R had been fully explained; that the doctor had given wrong opinion about the recovery of pellets from the body of the deceased as those might be D-shape bullet; that both the eyewitnesses had no previous enmity or grudge to falsely implicate the appellants instead of the real culprits if the appellants had not participated in the occurrence; that the recoveries had been effected from the appellants and the medical evidence also supported the ocular account.
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. According to the complainant the incident had taken place at 5-20 p.m. On 13-1-1998 in the area of Rajwal Kohna while initially the F.I.R. Was recorded on the statement of Muhammad Ashiq, (P.W.l) at Sabzi Mandi Khudian the same night at 10-30 p.m., on the basis of which formal F.I.R. Was recorded at 10-40 p.m. According to the complainant the injured had been firstly taken to General Hospital, but he died before reaching there, and the police, accompanied him to General Hospital from where the dead body was sent, to mortuary for the purpose of autopsy through Allah Wasaya Constable (P.W;6). According to Dr. Jamil Ahmad Janjua (P.W.10), who had conducted the postmortem examination on the dead body of the deceased on 14-1-1998 at 3-00 p.m., the probable time which elapsed between death and the post-mortem was about 29 hours. So it was delayed post-mortem and no documentary evidence has been produced except the oral statements of the witnesses about taking of the deceased to General Hospital Lahore in injured condition. On the other hand, there was Civil Hospital at Khudian and the deceased could be medically examined there and first aid would be provided to him at the local Hospital if he had been taken to the said hospital. In such circumstances, it is not believable that the F.I.R. Was registered at the time given by the prosecution and no importance can be given to the names of the witnesses and the accused mentioned therein as the delay in conducting the postmortem examination on the dead body of the deceased is sufficient to draw an inference that the police papers were not prepared and due to that reason the postmortem examination had been conducted in the evening at 3-00 p.m. On the next day. Even the prosecution story was belied during the investigation and the complainant was constrained to file the instant private complaint.
As such utmost care is required for believing the complainant's evidence.
12. To prove the ocular account Muhammad Ashiq, complainant appeared as P.W.l and produced Tariq Mehmood (P.W.2). Muhammad Ashiq complainant (P.W.l) was uncle of the deceased while R.W.2 Tariq Mehmood was real brother of the deceased. No doubt both the eyewitnesses are related inter se and with the deceased closely, but they had no previous enmity with the accused and they cannot be termed as interested witnesses. However, this alone is not sufficient to hold that they had stated the gospel truth. It is admitted position that the incident had not taken place in front of their houses or at the place of their business, where they could be present in routine. They were- residents of four Kanals away from the place of incident, but they had not shown any reason in their statements before the police for their being present at the spot. Even otherwise the occurrence had taken place at 5-20 p.m. According to them in the bazaar and F.I.R. Was recorded at 10-40 p.m. We have already observed that the F.I.R. Was not recorded at the time given by the prosecution and the witnesses cannot be termed as truthful witnesses, who had concealed certain facts. For instance P.W.l Muhammad Ashiq admitted that the incident had taken place in the bazaar and there were shops of Sadiq, Ghulam Rasool and Dr. Muhammad Idrees nearby the place of incident. It was also conceded by P.W.l that the incident had taken place in a very thickly populated area and there were also houses of Abdul Ghaffar, Niaz and Younis along with other 44 houses at the place where the occurrence had taken place. Tariq Mehmood while appearing as P.W.2 during the cross-examination stated that there was only one shop of Sadiq at the place of occurrence though the incident had taken place in the bazaar. He denied the suggestion that there were shops of Ghulam Rasool and Dr. Muhammad Idrees, but subsequently he stated that these shops were closed. Moreover, both the eye-witnesses appear to have made improvement regarding the motive ascribed in the present case as according to the prosecution's version narrated in the F.I.R. The accused persons wanted to get released the land which had been taken on lease by them. In the F.I.R. It has not been shown that the said land was owned by the accused or by anybody else. Both the eye-witnesses did not give description of the said land and even name of the owner thereof was not mentioned but while appearing at the trial first time the name of Ghulam Hussain was introduced by the complainant that he was owner of the land. It is not understandable that if the land was owned by Ghulam Hussain then why the accused wanted to get released the said land from the complainant party and what was the claim of the accused over the said land. During the cross- examination it has been admitted by the complainant that neither the lease deed nor any revenue record was produced during the investigation to show that they were in possession of the land as lessees. Even the witnesses of the transaction for obtaining the land on lease were not produced. It was however, explained by the eye-witnesses that the land was leased out for two years while the occurrence had taken place after one year of the lease and one year before the expiry of the lease deed. There is nothing on the record to show that the appellants had any connection with said land and they were interested in taking the possession thereof from the complainant party. Even otherwise according to Tariq Mahmood (P.W.2) who is real brother of the deceased the said land was in his possession and he was cultivating the same while the deceased was student of F.Sc. In the college and admittedly was not cultivating the said land. If Tariq Mehmood (P.W.2) was also present at the spot as claimed by him and there was any dispute over the land which was in his possession, there was no reason to commit the murder of Rashid Mahmood deceased who being student of F;Sc. Had no concern with the leased land. In such a situation main target of the accused would be Tariq Mehmood (P.W.2), but he had not been caused any harm. Thus not only the motive was proved, but it also casts doubt about the presence of Tariq Mehmood (P.W.2) at the spot.
13. The delay of five hours in lodging the F.I.R. And then conducting of the postmortem on the next day in the evening is sufficient to belie the prosecution story. As discussed above it was wrongly claimed by the witnesses that the deceased had been first taken to General Hospital at Lahore, which was at a far off place, but the first priority of the witnesses would be to take the deceased in the local hospital at Khudian. During the trial no document was produced to show that the deceased was at least examined by any doctor at General Hospital for confirming his death. Even there is no death certificate of the deceased on the file from the said hospital and the said story of taking the deceased to the hospital for medical treatment seems to have been introduced in order to cover up the delay in the F.I.R. This story is also found to be doubtful as according to the doctor the probable time between the injuries and the death was within half an hour. Even otherwise, Muhammad Ramzan (P.W.3), who had witnessed the recovery of blood-stained earth from the place of occurrence stated that police came at the spot at 2-30 p.m. And escorted, the dead body from the spot to mortuary. The time of occurrence is also not supported by the medical evidence as according to Dr. Jamil Ahmad Janjua (P.W.10), the time between the death and post-mortem examination was 29 hours which means that the incident might have taken place at 11/12 a.m. On 13-1-1998. In such circumstances, the possibility of correctness of the statement of Muhammad Ram2an (P.W.3) cannot be ruled out that the police had visited the spot at 2-30 a.m. And sent the dead body from the spot to mortuary. However, as the story was to be cocked up and the close relatives were to be summoned and the accused were to be nominated, the time was consumed in' lodging the F.I.R.
14. The medical evidence is also found in contradiction with the ocular account as according to the prosecution both the appellants namely Sharafat Ali son of Asghar Ali and Manzoor Ahmad alias Jhuri were armed with rifles and they had fired at the deceased. Injury No,2 on the left side of head of the deceased was attributed to Sharafat Ali son of Asghar Ali appellant while Manzoor Ahmad alias Jhuri appellant was ascribed Injury No, l, which was on the left ear of the deceased. According to Dr. Jamil Ahmad Janjua (P.W.10), during the post-mortem examination the pellets were - recovered which shows that the injuries were not caused with the rifle as alleged by the prosecution. This also throws doubt about the presence of the witnesses at the spot, who if had witnessed the occurrence, would have disclosed the correct fire-arm used by the assailants in the occurrence and also give the correct name and address of the deceased before the doctor at the time of post-mortem examination as Dr. Jamil Ahmad Janjua (P.W.10) admitted that in the report of post-mortem examination there was cutting in column of the name of the deceased and residence of the deceased. The possibility cannot be ruled out that the close relatives reached later on and then this correction of name and address of the deceased was made.
15. It is also notable that during the investigation number of persons appeared before the police, who were the natural witnesses being the shopkeepers and the residents of the same area-, who professed about the innocence of the appellants and their acquitted accused whereupon the police came to the definite conclusion that the appellants and their acquitted accused had not participated in the incident, but the actual culprits were Muhammad Amin and Zahoor Ahmad and report under section 173, Cr.P.C. Was submitted against them. In the present case the complainant of this case filed private complaint being not satisfied with the opinion of the police ^ and the trial was conducted in the present case. It was not opinion of the police rather it was documentary evidence in the shape of report under section 173, Cr.P.C. Submitted by the police relying upon the witnesses of the locality about involvement of Muhammad Amin and Zahoor Ahmad in the occurrence. We are conscious that opinion of the police is not binding on the Courts being not a substantial piece of evidence, but we have independently reached to the conclusion in the above discussion that both the eye-witnesses had not spoken the truth, they had not witnessed the incident, the F.I.R. Had been registered with the delay, medical evidence contradicted the ocular account and the eye- witnesses were not natural but they were chance witnesses who had failed to establish their presence at the spot. A perusal of the statements of the eyewitnesses also indicates that they had not spoken the truth and had tried to conceal the certain facts. In such circumstances, independent corroboration was required to the statements of these eye-witnesses which is lacking in the present case. Though the weapons were shown to have been recovered from the spot yet in spite of the facts that according to the prosecution the j fire was made but no empty had been recovered from the spot and it has not been proved that the said weapons were used in the said incident.
16. 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 appellants beyond any shadow of doubt. Hence, Criminal Appeal No,528 of 2001 is hereby accepted, the impugned judgment of conviction and sentence recorded by the learned trial Court against the appellants is set aside and they are acquitted of the charges by extending them the benefit of doubt, who shall be released from jail forthwith, if not required in any other criminal case.
17. Consequently, the death sentences awarded to Sharafat Ali son of Asghar Ali and Manzoor Ahmad alias Jhuri appellants are not confirmed and Murder Reference No,275 of 2001 is replied in the negative..