' ASIF SAEED KHAN KHOSA, J.---Walayat, Qutba and Abul. Hassan appellants were convicted for and offence under section 302(b), P.P.C. Each vide judgment dated 26-9-2001 handed down by the learned Additional Sessions Judge, Okara and were sentenced to death each and to pay a sum of Rs,1,00,000 'each to the heirs of the respective deceased by way of compensation under section.
544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months each. Through the same judgment the learned trial Court had also convicted Mohabbat, Aineer alias Bagga, Mohsin and Aadil appellants for an offence under section 302(b), P.P.C. Each and they were sentenced to imprisonment for life each and to pay a sum of Rs,1,00,000 each to the heirs of the respective deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months each. The learned trial Court had, however, acquitted Shahadat, Shera, Noor Samand and Sarang accused through the same judgment. Walayat appellant has challenged his conviction and sentence before this Court through Criminal Appeal No,31-J of 2002, Qutba appelalnt has filed Criminal Appeal No,32-J of 2002, Abul Hassan appellant has preferred Criminal Appeal No,334 of 2002, Mohabbat appellant has filed Criminal Appeal No,3414 of 2001, Ameer alias Bagga appellant has challenged his conviction and sentence through Criminal Appeal No,342-J of 2001, Mohsin appellant has preferred Criminal Appeal No,3434 of 2001 and Aadil appellant has challenged his conviction and sentence before this Court through, Criminal Appeal No, 344-J of 2001. We have heard all these appeals along with Murder Reference No,714 of 2001 seeking confirmation of the sentences of death passed by the learned trial Court against Walayat, Qutba and Abul Hassan appellants and we propose to decide all these matters together through the present consolidated judgment.
2. According' to the prosecution's case unfolded in the F.I.R. Walt Muhammad complainant was a resident of Chak No,7/GD situated within the area of Police Station Chauchak, District Okara and was an agriculturist by profession. At about 1-30 p.m. On 16-6-1997 a sister-in-law of the complainant namely Mst. Fatima Bibi. Was busy in getting the crop of Barseem thrashed through a thrasher when Sahadat accused armed with a gun .12 bore, Mohabbat appellant armed with a gun .12 bore, Ameer alias Bagga appellant armed with a gun .12 bore, Walayat appellant armed with a gun .12 bore, Qutba appellant armed with a rifle, Aadil appellant armed with a gun .12 bore, Mohsin appellant armed with a gun .12 bore, Sarang accused armed with a rifle, Abul Hassan appellant armed with a gun .12 bore and Noor Samand accused armed with a gun .12 bore came to that place and asked Mst. Ghulam Fatima to stop the thrasher and simultaneously Shahadat accused fired from his gun. Upon hearing the report of fire Muhammad .Sarwar, Bakhsha, Muhammad Abbas, Ali Akbar, Mumtaz, Mst. Zohra, Mst. Ameeran and Mst. Sakina Bibi P.Ws. Ran towards Mst.
Ghulam Fatima and the complainant also rushed towards the said police behind them. Shahadat accused raised a lalkara that they should all be done to death whereupon Qutba appellant and Mohsin appellant fired from their weapons hitting Mst. Ghulam Fatima who fell down upon receipt of her injuries. Shahadat accused fired at Muhammad Sarwar and then Abul Hassan appellant also fired at Muhammad Sarwar and upon receipt of his injuries he too fell down. Aadil appellant fired at Bakhsha and Mohabbat appellant also fired at Bakhsha and he also fell on the ground upon receipt of his injures. Ameer alias Bagga appellant then fired at Mst. Ameeran Bibi and she also fell' down upon receipt of her injury. Noor Samand accused then fired at Muhammad Abbas, Walayat appellant fired at Ali Akbar, Sarang accused fired at Mumtaz and Shera accused also fired at Mumtaz. Thereafter Qutba appellant fired at Mst. Zohra, Aadil appellant fired at Mst. Sakina Bibi and that fire also hit an ox. The hue and cry raised by the complainant and others attracted Noor P.W.
And Qutba P.W. To the place of occurrence and many other men belonging to the relevant village also came towards the place of occurrence. Upon seeking the said witnesses and others approaching the place of occurrence Shahadat accused and others left the spot while resorting to firing. The complainant, Noor and Qutba P.Ws. Handled Bakhsha and others but found that Bakhsha, Muhammad Sarwar, Mst. Ameeran Bibi and Mst. Ghulam Fatima had already succumbed to their injuries and had died at the spot. Muhammad Abbas, Ali Akbar, Mumtaz, Mst. Zohra and Mst.
Sakina Bibi were present there in an injured condition and they were sent to the hospital for medical treatment. The motive set up in the F.I.R. Was that the complainant party was locked in a murder feud with Shahadat accused and others for a long time and it was in that background of enmity that Shahadat accused and others had committed the above mentioned murders and had caused injuries to the other victims. Leaving the dead bodies at the place of occurrence in the care of Noor and Qutba P.Ws. Wali Muhammad complainant went to Police Station Chuchak, District Okara and lodged F.I.R. No,230 thereat in respect of the above-mentioned incident at 3-00 p.m. On 16-6-1997 for offences under sections 302/324/148/149, P.P.C.
3. The investigation of this case was conducted by Muhammad Ashraf, S.-I. And. Muhammad Naeem Virk,. Inspector (P.W.16). During the investigation the ' injured victims were got medically examined, the place of occurrence was inspected, injury statements and inquest reports were prepared, the dead bodies were sent to the mortuary for autopsy, blood-stained earth was secured, a rough site-plan of the place of occurrence was prepared and the statements of witnesses were recorded: After the post-mortem examination of the dead bodies the last-worn clothes of the deceased were secured and later on a formal site-plan of the place of occurrence was got prepared, the appellants and their co-accused were arrested and some weapons were recovered from different accused persons. Upon completion of the investigation a challan was prepared and submitted in connection with this case.
4. At the commencement of the trial the learned trial Court framed a charge with ten heads under sections 148/302/324/149, P.P.C. Against the appellants and their co-accused to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced eighteen witnesses in support of its case against the appellants and their co-accused. Wali Muhammad complainant (P.W.1) and Qutba (P.W.2) furnished the ocular account of the incident in question and they also deposed about the motive.
Muhammad Sharif (P.W.3) and Liaqat Ali, FC (P.W.17) stated about recovery of different weapons from different accused persons during the investigation of this case. The medical evidence was provided by Dr. Ghulam Hussain Alvi (P.W.6), Dr. Ateeq-ur-Rehman (P.W.10).
And Lady Dr. Nadra Jabeen Qureshi (P.W.12). The initial Investigating Officer of this case namely Muhammad Asliraf, S.-I. Was unavailable during the trial of this case and, thus, the steps taken by him during the investigation of this case were proved before the learned trial Court by Talib Hussain, HC (P.W.18). Muhammad Naeem Virk, Inspector (P.W.16) also stated about the various steps taken by him 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 denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. While responding to a question as to why he had been implicated in this case and as to why the prosecution witnesses had deposed against him Walayat appellant had stated as follows:-- ' "As already stated by me co-accused and myself the complainant party had a- strong motive to take revenge for the murder of Muhammad son of Fazal and Qutba son of Wagh for which case F.I.R. No,149 of 1996, under sections 302, 109/34, P.P.C. Was registered at Police Station Satghara, Okara. With this background on the day of present occurrence 1 along with Abul Hassan co- accused had gone to Thatha, Jhedu for offering a Fatiha Khawani in their village and when we reached in the land of my co-accused Shahadat and Mohabbat situated in Square No,8, seventeen persons of the complainant party after having fire, arms trespassed in the said land of Shahadat and Mohabbat. Shera co-accused and Manak son of Shera were repairing the corners of the fields after ploughing the land with a tractor. Mst. Salabat Bibi, Daulat Bibi and Bakhat Bibi had brought meals for Shera etc. While Mst. Parveen and Mst. Muraddan were grazing their cattle herds in the said land. The complainant party fired indiscriminately and murdered three ladies of our family and injured two ladies. I was having my licensed .12 bore gun with me and my co-accused Abul Hassan had a licensed weapon of his cousin. We both fired to save lives of our ladies and Shera etc. As a result for which three male persons of the complainant party died. Mst. Ghulam Fatima and Mst. Ameeran received injuries in the melee who had come at the spot on hearing the alarm. I am innocent and had pleaded so before the police. We used to keep our weapon with us for our personal safety due to the enmity with the opposite party."
' Abul Hassan appellant had also taken the same stand in the following words:- ' "My co-accused Walayat had made a detailed statement. I also rely on the same and it may be read as a part of my statement. To take revenge of case F.I.R. No,149/96 dated 11-8-1996 Police Station Satghara relating to the murders of Muhammad son of Fazal and Qutba son of Wagh, the complainant party after having armed with firearms came in the land owned and under possession of Shahadat and Mohabbat co-accused the complainant party trespassed therein, murdered Mst. Salabat Bibi, Mst. Daulat Bibi and Mst. Parveen of our family and caused, injuries to Mst. Muraddan and Mst. Bakhat Bibi of our family. Walayat and myself were returning after offering Fatiha Khawani from Thatha Jhedu and we in our self, defence and to save the lives of our family members, in the exercise of self-defence of person and property fired as a result of which Mst.
Ghulam Fatima, Mst. Ameeran, Sarwar, Bakhsha and Ali Akbar received injuries. The whole occurrence of the two cross-cases took place in the land of Shahadat and Mohabbat situated in Square No,8. The complainant party is the aggressor."
' The other appellants and their co-accused had also made statements on the above-mentioned lines. The appellants and their co-accused, however, opted not to make statements on oath under section 340(2), Cr.P.C. But they produced lady Dr. Yasmin Ashfaq (D.W.1) in their defence. The said lady doctor had conducted post-mortem examination of the dead bodies of three ladies belonging to the accused party of this case.
7. Upon conclusion of the trial the learned trial Court acquitted Shahadat, Shera, Noor Samand and Sarang accused but after finding the prosecution's case against the present appellants to have been proved beyond reasonable doubt it convicted and sentenced them as mentioned and detailed above. Hence, the present appeals and the connected Murder Reference before this Court.
8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellants that both the eye-witnesses produced by the prosecution were related, inimical and chance witnesses who had failed to receive any independent corroboration or support. It has also been argued by them that it had been established on the record of this case that the place of occurrence belonged to the accused party and that it was the complainant of -this case which had aggressed against the accused party. They have pointed out that three ladies belonging to the accused party had lost their lives and two other ladies had sustained injuries on their persons during the same incident at the hands of the complainant party put the murder of those ladies and sustaining of injuries of the other ladies belonging to the accused party had been completely suppressed by the complainant party of this case. They have gone on to argue that the motive set up by the prosecution had itself shown that at the time of the present occurrence it was the complainant party of this case which was aggrieved and, thus, it had a motive to launch an assault upon the accused party. It has also been highlighted by them that recovery of weapons effected in this case was legally inconsequential as no crime-empty had been recovered from the place of occurrence so as to connect the recovered fire-arms with the alleged offences. They have further maintained that the medical evidence had contradicted the ocular account and, thus, the eye-witnesses produced by the prosecution were quite untrustworthy. With these submissions they canvassed that the prosecution had failed to prove its case against the appellants beyond reasonable doubt and, therefore, they are entitled to be acquitted by this Court. As against that , the learned counsel for the State and the learned . Counsel for the complainant have maintained in unison that the occurrence in this case had taken place in board-daylight and an F.I.R. Had been lodged in respect of the same with reasonable promptitude wherein all the present appellants had been duly nominated and specific roles had been attributed to them. They have further maintained that the place of occurrence belonged to the complainant party and it had been duly established on the record of this case that it was the accused party of this case which had launched an aggression against the complainant party killing five persons and injuring four others belonging to the complainant party. They have, thus, maintained that the prosecution had succeeded in establishing the appellant's guilt to the hilt and, therefore* their convictions and sentences recorded by the learned trial Court do not warrant any interference by this Court.
9. After hearing the learned counsel for the parties at some length and after going through the record of this case from cover to cover with their assistance we have straightaway observed that although the case in hand involves a massacre of five persons belonging to the complainant party yet it appears that even the truth had also been massacred in this case by the prosecution. In F.I.R.
It had been alleged that the incident in issue had taken place as a result of an ongoing murder feud between the parties but no detail about the said feud had been divulged in the F.I.R. Wali Muhammad complainant (P.W.-l) and Qutba (P.W.2) had clarified the issue before the learned trial Court and had explained that one Ali belonging to the accused party of the present case had been murdered some time ago and four persons belonging to the complainant party of the present case had been booked for the said murder. They had further disclosed that two of the said accused persons involved in the said murder had subsequently been murdered and the remaining two had been found by the learned trial Court to be guilty and they were convicted and sentenced by it. It is, thus, evident that at the time of the present occurrence it was not the accused party of this case which' was aggrieved and it appears that the boot was on the other leg and it was now for the complainant party of this case to take their revenge for the murder of the two persons involved in the murder of the above-mentioned Ali. It is also of critical importance to mention there that according to Muhammad Naeern Virk, Inspector (P.W.16), one of the Investigation Officers, the complainant of this case namely Wali Muhammad (P.W.l) and some others belonging to the complainant party of the present case were also challaned in connection with a cross- case pertaining to the present incident in which three ladies belonging to' the accused party of this case had afso been murdered and' two other ladies belonging to the accused party ofrthe present case had been injured by the complainant party of this case at the same time and place. Lady Dr. Yasmin Ashfaq (D.W.l) had been produced in the present case by the defence and she had deposed about conducting post-mortem examination of the dead bodies of the three ladies belonging to the accused party of this case. Dr. Ateeq-ur-Rehman (P.W.l0) had also confirmed that he had medically examined two ladies belonging to the accused' party of this case -for their injuries received by them during the present occurrence. Unfortunately not a word had been uttered by the eye-witnesses produced in this case by the prosecution regarding murder of three ladies and sustaining of injuries by two other ladies belonging to the accused party of this case in the same incident. Such supersession of such a critical information indicates that the complainant party had suppressed its own role in the present occurrence and that appears to have been done only to defeat the plea of exercise of right of private defence taken by some of the appellants in the present case.
10. Both the eye-witnesses produced in this case by the prosecution, i.e, Wali Muhammad complainant (P.W.l) and Qutba (P.W.2) were related to the deceased belonging to their party.
Existence of a pitched enmity between the parties was admitted by both the above mentioned eyewitnesses and such enmity included many criminal cases against each other involving murder and murderous assault. We have significantly noticed that in the F.I.R. Lodged by him Wali Muhammad complainant (P.W.l) had not explained as to how and why he was present at the scene of the crime at the relevant time. He had never claimed in the F.I.R. That at the time of arrival of the accused party at the scene of the crime he was himself present with Mst. Ghulam Fatima at the spot. A perusal of the F.I.R. Also shows that he had not been attracted with the other eye- witnesses to the place of occurrence during or after the main occurrence. In the middle of the F.I.R.
He had suddenly stated about his own presence at the spot for which he had advanced no explanation whatsoever.
' However, before the learned trial Court Wali Muhammad complainant (P.W.l) had explained that at the time of inception of the incident in issue he was present in his own fields but he had never claimed that the place of occurrence also belonged to him. He had maintained that at the relevant time Mst. Ghulam Fatima deceased was thrashing a crop of barseem with a thrasher but no such thrasher had been shown in the site-plan of the place of occurrence (Exhibit-PU) and even barseem had not been mentioned in the said site-plan. The complainant had maintained before the learned trial Coiirt that at the relevant time he as well as Qutba (P.W.2) were present in the fields of the complainant party and he had gone on to admit that his land was situated in Square No,34 .Whereas the thrasher was in operation at the relevant time in Square No,l. This shows that after the inception of the present occurrence the complainant had travelled from Square No,34 to Square No,l and still he had managed to see the entire incident from its start to finish. It is significant to mention here that in the F.I.R. The complainant had clearly stated that upon a hue and cry raised by the complainant and Others Qutba (P.W.2) started approaching the place of occurrence from his own fields and upon seeing Qutba (P.W.2) and others approaching the place of occurrence the accused party left the scene of the crime. The F.I.R., thus, maintains that Qutba (P.W.2) had not himself witnessed any firing by the accused party and that upon seeing him approaching the place of occurrence the complainant party had left the spot. The F.I.R., thus, manifests that all the firing taking place at the place Of occurrence had already taken place before Qutba (P.W.2) had arrived at the spot. Qutba (P.W.2) had categorically stated before the learned trial Court that Wali Muhammad complainant (P.W.l) had reached the place of occurrence together with Qutba (P.W.2) after hearing the reports of firing. Thus, if the contents of the F.I.R.
Lodged by Wali Muhammad complainant (P.W.l) and the statement made by Qutba (P.W.2) before the learned trial Court are read together then it is evident that both Wali Muhammad complainant (P.W.l) and Qutba (P.W.2) had reached the spot after the firing was already over and, that they had not seen the main incident themselves. It may be relevant to mention here that Qutba (P.W.2) had disclosed before the .Learned trial Court that his land was situated about four squares away from the land of Mst. Ghulam Fatima deceased.
11. Wali Muhammad complainant (P.W.l) does not appear to have any regard for the truth. He had stated before the learned trial Court that the place of the present occurrence was situated in Square No,l whereas Qutba (P.W.2) had maintained that the place of occurrence was situated in Square No,8 belonging to Mst. Ghulam Fatima deceased. Both the said eye-witnesses produced by the prosecution 'had been given a big lie by Farooq Ahmad Halqa Patwari (P.W.Ll) who had clearly deposed before the trial Court that the place of occurrence in this case was situated in Square No, 8 which was in possession of Shahadat accused and Mohabbat appellant as they had purchased the said land through an auction as per record of right for the year 1995/96. He had gone on to state that Acre No,l of Square No,l was situated four acres away from the place of occurrence. This shows that Wali Muhammad complainant (P.W.l) wanted the place of occurrence to be shifted, at least four acres away from the actual place of occurrence and Qutba (P.W.2) wanted to establish that the place of occurrence belonged to the complainant party whereas the Revenue Record produced by the Halqa Patwari had disclosed that the place of occurrence was owned by the accused party. All this had clearly exposed both the above mentioned eye-witnesses produced by the prosecution and had established that they were false witnesses who had absolutely no regard for the truth.
12. We have also observed that in the F.I.R. - lodged by Wali Muhammad complainant (P.W.l) and in the statement made under section 161, Cr.P.C. By Qutba (P.W.2) both the said eye-witnesses had attributed an effective fire to Shera accused maintaining that he had caused a fire-arm injury to Mumtaz P.W. But before learned trial Court both Wali Muhammad complainant (P.W.l) and Qutba (P.W.2) had resiled from their earlier stand in that regard and had refused to level any allegation against Shera accused. It was suggested to them by the defence that their belated refusal to level any allegation against Shera accused was due to the fact that in the cross-case registered regarding the same incident they did not want to admit the presence of Shera accused at the spot as Shera accused was the complainant of the said cross-case. Both Wali Muhammad complainant (P.W.l) and Qutba (P.W.2) had made significant improvements before the learned trial Court regarding their attribution against different accused persons and they had been duly confronted in that regard with their earlier statements made before the police. It is also significant to mention here that in their statements made before the police as well as in their statements made before the learned trial Court Wali Muhammad complainant (P.W.l) and Qutba (P.W.2) had failed to specify any seat of injury of any of 'the deceased or any of the injured victims. We are also not unmindful of the fact that both the said eye-witnesses have already been disbelieved by the learned trial Court qua for co-accused of the present appellants against whom these eye- witnesses had levelled allegations of effective participation in the main occurrence. Wali Muhammad complainant (P.W.l) was admittedly a convicted murderer and he had already served a sentence of life imprisonment prior to the present incident. Even Qutba (P.W.2) had remained involved in many cases of murder, etc. And, thus, both the said witnesses were persons who were seasoned vis-a-vis case of murder and murderous assault. They could not therefore be believed by the learned trial Court without looking for independent corroboration which was non-existent in the present case.
13. We ljave already observed above that the parties to this case were locked in a murder feud for some time and also that at the time of the present occurrence it appeared to be a turn of the complainant party of this case to launch an aggression against the accused party of the present case. It is proverbial that motive is a double edged weapon and it can cut both ways. In the present case the said proposition applies with full force and, thus, we have found it to be quite unsafe to seek corroboration to the ocular account from such a background of hostility between the parties.
14. Although a gun .12 bore a rifle .7 MM a gun .12 bore and another gun .12 bore had allegedly been recovered from the possession of Walayat, Qutba and Abul Hassan appellants and their co- accused namely Noor Samand respectively during the investigation of this case yet admittedly no crime empty had been recovered from the place of occurrence so as to connect the recovered fire arms with the alleged offences and thus, the alleged recovery of weapons from the possession of the above mentioned appellants and their co-accused was legally inconsequential and no corroboration to the ocular account was forthcoming on the score either.
15. The occurrence in this case had taken place at about 1-30 p.m. On 16-6-1997 and an F.I.R. In that regard was lodged at 3-00 p.m. On the same day but four of the dead bodies belonging to the complainant party were subjected to postmortem examination' at about noon on the following day i.e, 17-6-1997 whereas the post-mortem examination of the fifth dead body was conducted on 21- 6-1997. Both Dr. Ghulam Hassan Alvi (P.W.6) and lady Dr. Nadra Jabeen Qureshi (P.W.12) had categorically stated before the learned trial Court that they had conducted post-mortem examination of the dead bodies soon after receipt of the relevant police papers and that the delay in conducting the postmortem examinations had not been occasioned on their part. Such a delay in conducting post-mortem examination of a dead body is generally suggestive of a real possibility regarding time having been utilized by the complainant party and the police in procuring and planting eyewitnesses and in cooking up a story of the prosecution. According to the prosecution Qutba appellant had fired at Mst. Ghulam Fatima deceased from his fire and Mohsin appellant had fired upon the said deceased with his gun but lady Dr. Nadra Jabeen Qureshi (P.W.12) had stated before the learned trial Court that both the injuries found on the dead body of Mst. Ghulam Fatima deceased could have been caused by the same weapon. We have also observed that one of the injuries found on the dead body of Ghulam Sarwar deceased one of the injuries found on the dead body of Mst. Ameeran Bibi deceased, one of the injuries found on the dead body of Bakhsha deceased and one of the injuries found on the dead body of Ali Akbar deceased had not been explained by the eye-witnesses at all. According to the eye-witnesses Ali Akbar deceased had died 2/3 days after the present occurrence but till his death no Medico-legal certificate had been obtained qua his injuries and we have notice that post-mortem examination of the dead body of Ali Akbar deceased had been conducted after five days of the occurrence. The learned counsel for the Complainant and. The learned counsel for the State had no explanation to offer in this regard. It is also pertinent to mention here that according to the prosecution four persons namely Abbas, Mst. Zohra, Mumtaz and Mst. Sakina belonging to the complainant party had also. Received fire-arm injuries on their person during the same incident but admittedly Abbas, Mst. Zohra and Mumtaz were never got medically examined for their injuries and the medical evidence produced by Dr. Ateeq-ur-Rehman (P.W.10) shows that Mst. Sakina had sustained only one injury on her person which had been caused by a blunt weapon. Normally an injured witness is a very important witness for the prosecution but we are surprised to find that none of the above mentioned injured victims had been produced by the prosecution before the learned trial Court so as to depose in support of the prosecution and against the appellants and their co-accused. This factor has further confirmed our conclusion that the prosecution in this case had a lot to hide and it had made every effort in this case to do the same to the maximum.
16. Without commenting upon the plea of the accused party regarding exercise of right of private defence by Walayat and Abul Hassan appellants lest it may prejudice the merits of the cross-case registered in respect of the same incident we have arrived at a confident conclusion that the prosecution in this case had utterly failed to prove its case against the appellants beyond reasonable doubt. All the above mentioned appeals are, therefore, allowed, the convictions and sentences of all the appellants recorded by the learned trial Court are set aside and all the appellants are acquitted of the charge by extending the benefit of doubt to them. They shall be released from the jail forthwith if not required in any other case.
17. Murder Reference No,714 of 2001 is answered in the negative and the sentences of death passed by the learned trial Court against Walayat, Qutba and Abul Hassan appellants are not confirmed.