' TARIQ SHAMIM, J.---The appellants Ahmad Nawaz and Sultan were convicted under section 302(b), P.P.C. Read with section 34, P.P.C. By Mr. Zafar Iqbal Khan, the learned Additional Sessions Judge, Jhang vide his judgment, dated 25-6-2002 in case F.I.R. No. 121, dated 29-2-2000 for offence under section 302/34, P.P.C. Registered at Police Station Mochiwala, District Jhang, for committing the murder of Ahmad deceased and were sentenced to death each with a fine of Rs.30,000 each or in lieu thereof to further undergo 1 year's S.I. Each. In addition to this, they were also directed, to pay a sum of Rs.1,00,000 each as compensation to the legal heirs of the deceased or in default whereof to undergo 1 year's S.I. Each. By the same judgment, Javaid co-accused of the appellant was acquitted of the charge of murder. The learned trial Court has forwarded a reference (Murder Reference No.524 of 2002) for confirmation of death sentence awarded to the appellants. Both these matters i.e. Criminal Appeal No.1221 of 2002 and the Murder Reference No.524 of 2002 are being disposed of by this judgment.
2. Briefly, the prosecution story is that in the evening the complainant and his younger brother Ahtnad Ali along with the P.Ws. Were going towards their village from their Dharies. When Ahmad Ali reached near the land of Falak Sher at about 6-00 p.m., Jhandir and Ahmad sons of Shah Baig, Sultan son of Toraij along with one unknown person while armed with guns came there on bicycles.
Ahmad accused raised a Lalkara that they had come to take revenge of the murder of their father Shah Baig. Thereafter, Ahmad accused fired two shots simultaneously and Sultan fired one shot at Ahmad Ali deceased hitting him near his right ear on the back side, on the upper side of his left flank and left arm, as a result of which Ahmad Ali fell on the ground. The occurrence was witnessed by the complainant Kamir and Saeed. The other P.Ws. Immediately rushed towards the place of occurrence and on seeing them the assailants while brandishing their respective weapons ran away from the scene of occurrence on their bicycles. Ahmad Ali later succumbed to the inj Hies.
The motive of the occurrence was stated to be murder of Shah Baig, the father of appellant No.1, 32/33 years ago committed by Ahmad Ali deceased and his close relatives. Being nominated in that case the deceased was challaned along with others, however subsequently he was acquitted of the charge by the trial Court. Feeling aggrieved, he assailants in furtherance of their common intention murdered Ahmad Ali deceased.
3. In order to prove its case, the prosecution produced as many as nine witnesses. Dr. Muhammad Aslam Randhawa (P.W.1) conducted the postmortem examination on the dead-body of Ahmad Ali deceased, who observed the following six injuries on his person:-- -
(1) Lacerated wound with inverted margins 4 c.m. x 2.9 c.m. Over front of neck, below chin.
Blackening and burning was present. (It was an entry wound.)
(2) Six lacerated wounds with Reverted margins on the back of right side of head in an area of 6 c.m. x 5 c.m. Each would measured 1 c.m. x 1 c.m. No blackening or burning was found. It was in continuation of injury No.l. (It was exit wound.)
(3) A lacerated wound 4 c.m. x 2.6 c.m. With inverted margins on the outer side of left arm 9 c.m.
Above left elbow. Blackening and burning was present. Corresponding hole on the shirt was present (Wound of entry).
(4) Lacerated wound 10 c.m. x 5 c.m. With everted margins, over inner side of left arm. No blackening or burning was present there. Corresponding hole on shirt was present. This injury was in continuation of injury No.3. (It was exit wound).
(5) Eight lacerated wounds in an area of 5.7 c.m. x 5.5 c.m. Over outer side of left chest 6.5 c.m.
Below axilla. Each wound measured 3/4 c.m. x 3/4 c.m. Corresponding holes were present on the shirt. It was also in continuation of injury No.4.
(6) A lacerated wound 1 c.m. x 1 c.m. With everted margins on the front of left chest. Corresponding hole was present on the shirt. It was continuation of one pellet of injury No.5.
' In the opinion of the doctor, the cause of death was brain damage as a result of injury No.1, inflicted by fire-arm weapon and damage to lung and heart as a result of injury No.3, which continued as injury No.5 (leading to damage to lung and heart), inflicted, by fire-arm weapon. Both injuries were sufficient to cause death individually and collectively in ordinary course of nature. All the injuries were ante mortem. The probable time that elapsed between injuries an death was immediate and that elapsed between death and postmortem report was 12 to 18 hours.
4. Zulfiqar Khan Revenue Patwari (P.W.2) prepared the site plans Exh.PA and Exh.PA/1 on the direction of the police and on the pointation of eye-witnesses. (P.W.3) Muhammad Constable was handed over a sealed parcel containing blood-stained earth for onwards transmission to the office of the Chemical Examiner, Lahore, which he delivered there intact. Ghulam Shabbir, A.S.-I. (P.W.4) being Muharrer of the Police Station recorded formal F.I.R. (Exh.PE/1) on the complaint (Exh.PE) without any addition or omission. On the same day, he was handed over a sealed parcel containing blood-stained earth for keeping the same in safe custody, which he later handed over to Muhammad Hanif Constable for onwards transmission to the office of the Chemical Examiner, Lahore. Muhammad Amjad (P.W.5) escorted the dead-body 'of the deceased to Rural Health Center Mochiwala and after the autopsy, doctor handed over to him blood-stained clothes of the deceased which he handed over to the Investigating Officer. (P.W.6) Wali Muhammad identified the dead-body of the deceased at the Rural Health Center Mochiwala at the time of its postmortem examination. Kamal (P.W.7) being the complainant of the case, reiterated the story as narrated in the F.I.R. (P.W.8) Kamir being eye-witness of the occurrence supported the complainant Kamal (P.W.7). Muhammad Aslam, Inspector (P.W.9) partially conducted the investigation of the case. The learned APP after tendering the report of the Chemical Examiner as Exh.PL. And that of the serologist as Exh.P.M., closed the case of prosecution.
5. Ahmad Nawaz, appellant/convict when examined under section 342, Cr.P.C. Took the plea that during investigation conducted by SSP Jhang he was declared innocent as it transpired that one Zafar and his accomplice Karim had committed the murder of the deceased with fire-arm weapons. The residents of Jhandir tribe, who had witnessed the occurrence taking place had informed the complainant and the P.Ws., close relatives of the deceased, about the incident. As Zafar and Karim were not known to P.Ws., therefore, the appellants had been falsely involved in the case on account of previous enmity. Sultan appellant was also examined under section 342, Cr.P.C.
Who took the same plea as Ahmad Nawaz appellant. Both the appellants desired to produce evidence in their defence, however, they did not opt to appear as their own witnesses in terms of section 340(2), Cr.P.C. Muhammad Khan (D.W.1) appeared in defence and deposed that he had appeared before the Investigating Officer as well as the. SSP during investigation and supported the plea of alibi taken by Ahmad Nawaz appellant. Muhammad Yousaf (D.W.2) appeared before the SSP and got recorded his statement in support of the alibi plea of Sultan appellant.
6. Tariq Masood Yasin, SSP Jhang (the Investigating Officer) was summoned as a Court witness by the learned trial Court. He while appearing as D.W.1 deposed that during investigation Ahmad Nawaz and Sultan were found innocent and consequently their names were mentioned in column No.2 of the supplementary challan, whereas the name of Javaid was placed in column No.3. He further deposed that Zafar, Karim, Noor and Javaid were responsible for the murder of the deceased.
7. The learned counsel for the appellants contended that the motive as alleged by the prosecution was farfetched and could not be proved at the trial; that there were glaring contradictions between the eye-witness account furnished by Kamal (P.W.7) and Kamir (P.W.8) and the medical evidence as in fact all the injuries suffered by the deceased were found to have been caused from the front side and not from the back and that the said injuries were the result of two fire shots only; that in view thereof, it was safe to assert that it was an unseen occurrence and that the eyewitnesses had falsely implicated the appellants in the case due to previous enmity; that the recovery of gun (P.4) from Ahmad Nawaz appellant was of no consequence as no crime empties were recovered from the place of occurrence; that no weapon of offence was recovered from the possession of Sultan appellant; that during the investigation conducted by Tariq Masood Yasin, SSP Jhang who appeared before the learned trial Court as CW-1, the appellants were declared innocent and since the investigation was based on tangible material, therefore, it had created doubt about the involvement of the appellants in the crime; that the eye-witnesses were closely related inimical and chance witnesses and had the motive to falsely implicate the appellants in the crime and that in fact the F.I.R. Had been lodged after investigation by the police.
8. The learned Additional Prosecutor-General has contended that the conviction of the appellants by the learned trial Court was based on proper appreciation of evidence adduced at the trial; that the motive for the occurrence had been proved by the prosecution; that the ocular account furnished by Kamal (P.W.7) and Kameer (P.W.8) was confidence inspiring and in spite of lengthy cross-examination, the defence could not shatter their testimony; that the gun recovered from Ahmad Nawaz, appellant No.1, had provided further support to the prosecution case and even though the appellants had been declared innocent during the course of investigation by the SSP, Jhang who appeared as a Court witness, the same was rightly rejected by the learned trial Court being ipse dixit of the police and that the conviction and sentence awarded to the appellants by the learned trial Court was in consonance with law which did not call for any interference by this Court.
9. We have heard learned counsel for the appellants as well as the learned Additional Prosecutor General and have gone through the record with their able assistance.
10. The evidence of motive in this case was furnished by Kamal (P.W.7), the complainant of the case, and Kameer (P.W.8), which, according to the said witnesses, was the murder of Shah Baig, father of Ahmad Nawaz, appellant No.1, in which the deceased was nominated as one of the accused but was subsequently acquitted by the trial Court. The murder of the father of Ahmad Nawaz appellant took place about 32/33 years ago. There is no explanation forthcoming from any source as to why the appellants had to wait for such a long time before taking revenge of the said murder. In our opinion, the motive as alleged by the prosecution appears to be farfetched and not very convincing. It has also been noticed that Kamal (P.W.7) and Kameer (P.W.8) have their respective Dharies in different directions and place of occurrence does not fall on their way to village. The occurrence took place at about 6 p.m. In the month of February in an open field owned by one Falak Sher. It is reasonably dark at 6 p.m. In the month of February and it is not the case of the prosecution that there was any source of light in which the appellants had been identified by the prosecution witnesses. Further doubt about the prosecution case is created by the fact that in the investigation conducted by Tariq Masood Yasin, SSP Jhang who took the witness stand as C.W.1, the appellants had been declared innocent. The opinion was formed by the SSP (Investigation) on the basis of evidence collected by him in the course of investigation. It is in the testimony of the said witness that while appearing before him, Kameer (P.W.8) had stated that all the accused mentioned in the F.I.R., had their faces muffled at the time of occurrence, whereas the complainant in his statement before him had given wrong description of the clothes worn by the deceased at the time of occurrence. The plea of alibi advanced by Sultan and Ahmad Nawaz was verified by the said police officer who had found the same to be creditworthy and confidence inspiring.
11. Before proceeding to discuss the eye-witness account, we would like to dilate upon the medical evidence furnished by Dr. Aslam (P.W.1), who had conducted the postmortem examination on the dead-body of the deceased. According to this witness, the deceased had not suffered any injury on the back of the head near the left ear as stated in the F.I.R. But had in fact suffered a firearm injury on the front of his neck with an exist wound on the back right side of his head. Similarly, the injury attributed to appellant No.1 which purportedly hit the deceased on the left flank was in fact injury received by the deceased on outer side of left arm above the elbow, which exited from the inner side of the left arm and re-entered the body of the deceased on the outer side of left chest.
Injury No.6 was in fact the exit wound which was is continuation of one pellet of injury No.5. Further, there was no entry wound on the back of the head of the deceased; there was no entry wound on the back side near the right ear; there was no injury on the left flank; injuries Nos.3 to 6 were the result of a single shot and that all the injuries suffered by the deceased were the result of two fire shots. The foregoing discussion in respect of conflict between the eye-witness account and medical evidence leads to an inescapable conclusion that the eyewitnesses Kamal (P.W.7) and Kameer (P.W.8) had not witnessed the occurrence. The possibility of the deceased being murdered by someone else and false implication of the appellants by the complainant party on account of previous enmity cannot be ruled out particularly in the light of finding of innocence of the appellants by the SSP, Jhang (C.W.1).
12. Adverting to the eye-witness account, it has been observed that the same was furnished by Kamal (P.W.7) and Kameer (P.W.8). In the F.I.R., (P.W.7), the complainant of the F.I.R., stated that Ahmad Nawaz appellant had fired two shots from his .12 bore gun at the deceased, whereas Sultan had fired one shot. The first shot landed on the back of the head near the left ear, the second shot hit the deceased on the left flank and the third shot caused injury on the left arm of the deceased.
In his statement before the learned trial Court. Kameer (P.W.8) furnished an account of occurrence which is in line with the testimony of Kamal (P.W.7). It is once again reiterated that the medical evidence is in direct conflict with the eye-witness account put-forth by the said witnesses and in the investigation conducted by a senior police officer i.e. SSP, Jhang (C.W.1) the appellant were declared innocent. Consequently, we are constrained to hold that the occurrence was not witnessed by the said witnesses. Further dishonest improvements were made by Kamal and Kameer in order to cover up contradictions in the medical evidence and the eye-witness account.
13. Insofar as the evidence of recovery is concerned, gun (P.4) was recovered from Ahmad Nawaz, however the same does not, in any manner, further the prosecution case as no empty was recovered from the place of occurrence and consequently none was wedded or matched with the weapon. Insofar as Sultan' appellant is concerned, during the course of investigation no weapon was recovered from his possession.
14. From the evidence available on the record, it is discernible that the witnesses are not only inimical towards the appellants but are also closely related to the deceased and related inter se and further they had a motive to falsely implicate the appellants, therefore, corroboration from an independent source was required which, we are afraid, , is not forthcoming from any independent source.
15. In view of the foregoing, we have no hesitation in holding that the prosecution has miserably failed to bring home the guilt of the appellants beyond any reasonable doubt. Consequently, we accept this appeal and set aside the conviction and sentence of the appellants. The appellants are acquitted of the charge. They shall be released forthwith if not required in any other case. The death sentence is not confirmed and the Murder Reference is answered in the negative.