' MUHAMMAD FARRUKH MAHMUD, J.---The appellants Abdul Jabbar Khan and Noor Hussain along with one. Riaz Hussain were booked in case F.I.R. No,13 registered at P.S. Mochh on 21-1-1998 for offences under sections 302/ 324/34, P.P.C. Muhammad Riaz absconded and could not be arrested and was subsequently murdered and not tried. However, the appellants were tried by the learned Sessions Judge, Mianwali, who, vide judgment dated 25-10-2000 convicted and sentenced the appellants as under:---
(I) Abdul Jabbar for offence under section 302(b), P.P.C. To death plus payment of rupees one lac as compensation to the legal heirs of the deceased, in default thereof to udergo R.I. For six months;
(II) Noor Hussain for offence under section 302(b), P.P.C. To imprisonment for life plus payment of rupees fifty thousands as compensation to the legal heirs of the deceased. In case of default in payment thereof, he would suffer further R.I. For six months. He was extended the benefit of section 382B, Cr. P.C .
2. The appellants Abdul Jabbar Khan and Noor Hussain have questioned the legality of their above noted conviction and sentence through the instant appeal, while Haji Muhammad Aslam, complainant/ petitioner, has filed Criminal Revision No,943 of 2000, seeking enhancement of compensation as well as the sentence of Noor Hussain, appellant/respondent. Murder Reference No,648 of 2000, seeking confirmation or otherwise of death sentence imposed upon Abdul Jabbar Khan-appellant has also been placed before us. We propose to decide all these matters through this consolidated judgment.
3. The brief facts of the prosecution case per F.I.R. Exh.P.A. Recorded by Ghulam Murtaza, Inspector/P.W.14, at the instance of Haji Muhammad Aslam, real brother of the deceased/complainant/P.W.1, are that on 21-1-1998 at about.4-30 p.m., the complainant, his brothers Sana Ullah Khan/P.W.2, Tariq Inayat Ullah Khan-deceased, an employee in P.A.F., and one Lal Khan alias Zareef Khan were on the way to their house after seeing their ailing brother Muhammad Asghar Khan in Civil Hospital, Mianwali, and having crossed Saiful Bridge of Dilaywali reached at a distance 200/300 yards from the bridge towards village Dalaywali, when all of a sudden, Abdul Jabbar Khan, Riaz Hussain (since dead) and Noor Hussain, all armed with fire-arms, came there on a motorcycle and after getting down from the motorcycle, all of them, while raising Lalkaras, resorted to straight firing upon the complainant party, as a result whereof Tariq Inayat Ullah Khan sustained injuries and fell on the ground, whereas the complainant and the P.Ws. Saved their lives while lying on the ground. On the hue and cry raised by the P.Ws., the accused, while brandishing their respective weapons, decamped from the scene of occurrence on their motorcycle. The P.Ws. Attended to Inayat Ullah but he had succumbed to the injuries at the spot.
The complainant along with his companions, while leaving Sana Ullah to guard the dead body, went to the police station to report the matter.
' The motive behind the occurrence was old enmity between the parties.
4. After registration of case at the instance of the complainant on 21-1-1998 Ghulam Murtaza, Inspector/P.W.14; took over the investigation. He went to the spot; prepared injury statement Exh.P.H.
And inquest report Exh.P.K. Of the deceased and sent the dead body for post-mortem examination.
He prepared rough site plan Exh.P.O. Of the place of occurrence. He collected blood stained earth from the spot and sealed the same into parcel vide memo. Exh.P.B. He also recorded supplementary statement of the complainant. He got prepared the scaled site plan Exh.P.C. From the Draftsman. On 8-2-1998 Ghulam Abbas/P.W.6 produced motorcycle P.1 with registration book P.1/1, which were taken into possession by the I.O. Through memo. Exh.P.D. On 17-2-1998 Noor Hussain/appellant was arrested by Ahmad Sajjad, S.-I./P.W.12, and while in custody on the same date he led to the recovery of .7 mm rifle P.10 with five live rounds P.11/1 to 5, which were taken into possession through memo. Exh.P.L. On 11-3-1998 Abdul Jabbar/appellant was arrested by Abdul Hameed, in connection with another case bearing F.I.R. No,11/98, and while in custody on the same day, he led to the recovery of .12 bore double barrel gun P.7 with five live rounds P.8/1 to 5, which were taken into possession vide memo. Exh.P.F. After completion of investigation, both the appellants were sent up to face trial.
5. During trial prosecution produced fifteen witnesses in support of its case, ocular account was furnished by Muhammad Aslam/P.W.1 and Sana Ullah/P.W.2. In addition to that, they also stated about the motive. Ghulam Abbas Shah/P.W.6 stated about the sale of motorcycle (which was used by the appellants during the occurrence) to Abdul Jabbar, its return by the appellant on account of his failure to pay the sale price to him and then its subsequent production by the P.W. Before the I.O.
Dr. .Malik Jahangir/P. W.9 conducted post-mortem examination on the dead body of Tariq Inayat Ullah-deceased. He, while observing four entry wounds and one exit wound on the person of the deceased, opined that cause of death was injuries Nos.1 to 4 which were sufficient to cause death in the ordinary course of nature. All the injuries were caused by fire-arm weapon. The duration between the injuries and death was immediate, while the time which elapsed between the death and post-mortem examination was from 12 to 15 hours. Ghulam Murtaza, Inspector/P.W.14, stated about the recording of F.I.R. At the instance of the complainant and the investigation thereafter.
Ahmad Sajjad, S.-I./P.W.12, stated about the arrest of Noor Hussain appellant and recovery of .7 mm rifle with five live rounds at his instance. Abdul Hameed, A.S-I./P.W.13, stated about the arrest of Abdul Jabbar appellant in case F.I.R. No,11/98 and recovery of .12 bore double barrel gun with five live pellets and its licence at the instance of the appellant. The rest of the evidence, being formal in nature need not be discussed.
6. In their statements recorded under section 342, Cr.P.C. The appellants pleaded their innocence and false implication.
6A. Learned counsel for the appellants submits that both the eye-witnesses Muhammad Aslam/P.W.1 and Sana Ullah/P.W.2, besides being real brothers of the deceased, are chance witnesses, as, according to him, P. W.1 came to the spot from a distance of four Kilometers, while P.W.2, a school teacher at Bani Afghan, reached the place of occurrence from a distance of 40 Kilometers and, thus, both of them got together per chance at the scene of occurrence after visiting their ailing brother, which fact, according to the learned counsel, has not been established at all, as neither any certificate to the effect that their brother was ever admitted in any hospital nor their said brother was ever produced; that the deceased himself was employed at P.A.F., Mianwali, and his duty ended at 2-00 p.m. And he also per chance happened to go there; that the two brothers are grossly inimical towards the appellants; that their presence at the spot has been manipulated and not supported by the medical evidence, as, according to both the P.Ws., firing was made from a distance of 60/65 yards, while injury No,1 bore blackening, which, according to the doctor, could have been caused from a distance of six feet; that the complainant as well as the public prosecutor cross-examined the doctor with respect to the locale of buttock injury as having been caused on the left side, whereas the witnesses deposed that it was caused on the right side of the buttock; that the P.Ws. Made dishonest improvements during trial by specifying the weapons carried by the accused and the seat of injuries, whereas in the F.I.R., neither any weapon nor the locale of injury was specified; that the injury caused by Abdul Jabbar was attributed by P.W.2 to.
Noor Hussain to 'show his active participation in the occurrence, whereas the fire attributed to him was earlier said to have been missed; and that the P.Ws. Were duly confronted with their earlier statements. On these premises, the learned counsel contends that the prosecution has failed to prove its case against the appellants.
7. Learned counsel for the complainant submits that though the eyewitnesses are related to the deceased but they have given very consistent account; that the details of the occurrence were not given in the F.I.R. But subsequently given before the trial Court that would not amount to improvements/contradictions between the two statements; that the ocular account was fully supported by the medical evidence and the circumstances of the case, especially the lodging of F.I.R. Without any loss of time. The learned State counsel, while adopting the line of arguments of the learned counsel for the complainant, supports the judgment passed by the learned trial Court.
8. We have heard the learned counsel for the parties and have also gone through the record of the case.
9. Haji Muhammad Aslam, complainant/P.W.1, and Sana Ullah/P.W.2, the eye-witnesses, are real brothers of the deceased. The house of P.W.1 was at a distance of four Kilo-meters, while P.W.2 was a school teacher at Bani Afghan, which A was at a distance of forty Kilo-meters from the place of occurrence. Admittedly, serious enmity existed between the appellants and the complainant since 1995. So the witnesses are not only related to the deceased but they are also inimical and chance witnesses. According to the P.Ws., the reason of their being together along with the deceased was that their brother Asghar Khan was admittedly in Civil Hospital, Mianwali, and they had gone there to inquire about his health. At about 4-30 p.m. They left the hospital for their house. No documentary evidence was brought on the record about the admission of Asghar Khan in the Civil Hospital, Mianwali, nor Asghar Khan was produced before the trial Court in support of the claim of the P.Ws. That they had assembled in the hospital, where their brother was admitted. So the very foundation that the P.Ws. And the deceased were together at B, the spot falls on the ground like house of cards.
10. According to F.I.R., after leaving the dead body of his brother in the care of Sana Ullah/P.W. The complainant went to the police station and reported the matter. In F.I.R., the nature of the weapons was not mentioned nor was the number of fires mentioned. Similarly, specific fires were not attributed to the accused nor the seat of injuries was mentioned. During trial, the complainant made dishonest improvements by stating the nature of the weapon, which were being carried by the accused, and by specifying the seat of the injuries and by attributing specific fires to the accused. He was duly confronted with his earlier statements. P.W.2 Sana Ullah, however, in his statement recorded under section 161, Cr.P.C. Described the weapons carried by the accused. He also attributed specific fires and the seat of injuries but during trial he also made dishonest improvements and was duly confronted with his earlier statement Exh.D.A. The most glaring of the improvements was that he attributed specific fire which hit on the buttock of the deceased to Noor Hussain appellant, while in his earlier statement, he had stated that the fire caused by Noor Hussain missed and did not cause any injury to any body. The fire on the buttock in his statements Exh.D.A. Was attributed to Abdul Jabbar but during trial in order to show the active participation of Noor Hussain, the same was attributed to Noor Hussain.
11. According to the P.Ws., the assailants did not go near to them, while they were lying on the ground and left without causing any injury to them. It would be strange behaviour on the part of the assailants, as the assailants were equally inimical towards the P.Ws. According to P.Ws., the accused fired from a distance of 60-65 yards, which is equal to 180/190 feet, while according to the doctor, blackening was observed around the entry wound caused on the chest-injury No,l. The doctor explained during cross-examination that blackening occurred when the distance between the victim and the assailants was within six feet.
12. The above noted facts lead to irresistible conclusion that the P.Ws. Were not present at the time of occurrence.
13. As far as motive is concerned, it cuts both ways, as it could very well be a reason for causing the occurrence and could also be the reason for implicating the accused in the case. In the circumstances, it cannot be used against the appellants.
14. Now coming to the recoveries. According to the Investigating Officer (1.O.), Abdul Jabbar, while in custody, led to the recovery of double barrel gun from his house on 11-3-1998. It was a licensed weapon and its presence in the house of Abdul Jabbar was not unusual. Similarly, allegedly Noor Hussain, while in custody, led to the recovery of .7 mm rifle. Neither the rifle nor the gun was sent to Forensic Science Laboratory nor was any empty recovered from the scene of occurrence. During recovery proceedings, no one from the public was associated. In these circumstances, the recoveries of weapons would be of no consequence and could not be used against the appellants.
15. It was mentioned in the F.I.R. That accused used motorcycle during the occurrence. During trial the complainant made improvement in his statement by stating that the accused had reached the spot on a Yamaha motorcycle. Ghulam Abbas Shah appeared as P.W.6 and stated that he had sold his motorcycle to Abdul Jabbar/accused on credit and the payment was to be made within two months of the sale. He further stated that as the payment was not made even after two months, the motorcycle was returned to him on 7-2-1998. He did not say that it was returned to him by Abdul Jabbar, rather according to him, it was returned to him through some one. During cross- examination, he admitted that the registration book of the motorcycle was in the name of Ijaz Ali Shah. He further admitted hat he did not know as to who left the motorcycle at his house on 7-2- 1998. He could not produce any receipt or any agreement about the sale or purchase of motorcycle. In the circumstances, we are of the opinion that the prosecution failed to link the motorcycle with the appellants.
16. It is settled law that one doubt genuinely arising out of the circumstances of the case would be enough to record acquittal, whereas the instant case is replete with doubts. Hence, we allow this appeal H and set aside the judgment passed by the learned trial Court. The appellants are acquitted of all the charges. They would be released forthwith if not required in any other case. The death sentence imposed upon Abdul Jabbar/appellant is not confirmed. The murder reference is answered in the negative.
17. For the same reasons, Criminal Revision No,943 of 2000 filed by Haji Muhammad Aslam/complainant seeking enhancement of sentence of Noor Hussain as well as compensation is dismissed.