' ASIF SAEED KHAN KHOSA, J.---Akhlaq Ahmad appellant was convicted for an offence under section 302(b), P.P.C. Vide judgment, dated 22-8-2002 handed down by the learned Sessions Judge, Hafizabad and was sentenced to imprisonment for life and to pay a sum of Rs.1,00,000 to the heirs of Tanvir Ahmad 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. The benefit under section 382-B, Cr.P.C. Was extended to the appellant. The appellant's co-accused namely Chiragh Din was acquitted by the learned trial Court on the merits of the case whereas Amjid co-accused was acquitted on the basis of a compromise between the said accused and the heirs of the deceased.
Two other co-accused of the appellant namely Taj Din and Sajjad Hussain had died during the trial.
The appellant has challenged his conviction and sentence before this Court through Criminal Appeal No.356-J of 2002. Muhammad Sadiq complainant had preferred Criminal Revision No.984 of 2002 before this Court seeking enhancement of the appellant's sentence. I have heard both these matters together and I propose to decide the same together through the present consolidated judgment.
2. The prosecution's case unfolded in the F.I.R. Was that Muhammad Sadiq complainant, Liaqat Ali P.W. And Muhammad Afzal. P.W. Were present near Ramke Chatha Bus Stop within the area of Police Station City, Hafizabad at 8-15. p.m. On 17-4-2000 when they heard a report of a gundshot from the side of a flour-mills situated at Jagganwala Road. All of them went towards that direction and saw Taj Din accused having a shopping bag full of red chillies in his hand raising lalkaras, the appellant armed with a pistol .30 bore, Sajjad Hussain accused armed with a razor, Billa accused armed with a pistol .30 bore and Chiragh Din accused present there empty-handed. Within the view of the complainant party the appellant and his co-accused waylaid the complainant's son namely Tanvier Ahmad who was present there at that time, Taj Din accused threw red chilies in the eyes of Tanvir Ahmad deceased and the appellant fired a shot at the deceased hitting the latter on his thigh and testicles. Upon receipt of those injuries the deceased fell on the ground. When the complainant and the other eye-witnesses tried to go near the deceased Billa accused fired at them but the complainant and others managed to save themselves by lying down. Thereafter Chiragh Din accused sat on the neck of the deceased whereas Sajjad Hussain accused started cutting the tendon of the deceased's left leg. After that Billa accused took the razor from Sajjad Hussain accused and started cutting the deceased's tendon. The hue and cry raised by the complainant and others attracted many persons to the spot whereupon the appellant and his co- accused decamped from there while firing in the air and hurling abuses. Tanvir Ahmad deceased was then taken by the complainant and others to Civil Hospital, Hafizabad in an injured condition but due to his precarious condition he was referred to Mayo Hospital, Lahore. Thereafter Tanvir Ahmad deceased was taken to Mayo Hospital, Lahore where he was admitted for treatment. The complainant then reported to Hafizabad and lodged F.I.R. No.175 in respect of the said incident at Police Station City, Hafizabad at 6-40 p.m. On 19-4-2000 for offences under sections 324/148/149, P.P.C. Tanvir Ahmad died during the night between 23/24-4-2000 and consequently section 324, P.P.C. Was substituted in the F.I.R. By section 302, P.P.C.
3. The investigation of this case was conducted by Zulfiqar Ali, A.S.-I. (P.W.5) and Sadiq Ali, S.H.O.
(P.W.11) and during the investigation the place of occurrence was inspected, the dead-body was got subjected to post-mortem examination, the appellant and his co-accused were arrested, a pistol was recovered from the appellant's possession and upon completion of the investigation a challan was submitted.
4. At the commencement of the trial the learned trial Court framed a charge with two heads under sections 148 and 302/149, P.P.C. Against the appellant and his co-accused to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced as many as twelve witnesses in support of its case against the appellant and his co-accused. Muhammad Sadiq complainant (P.W.7) and Liaqat Ali (P.W.5) furnished the ocular account of the incident in question. Muhammad Sadiq complainant (P.W.7) also deposed about the motive. Recovery of a pistol from the appellant's possession during the investigation of this case was proved by Khushi Muhammad (P..W.2). The medical evidence was provided by Dr. Captain Khalid Farooq (P.W.3) and Dr. Nusrat Abbas (P.W.6). Zulfiqar Ali, A.S.-I.
(P.W.5) and Sadiq Ali, S.H:O. (P.W.11) 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 of formal nature.
6. In their statements recorded under section 342, Cr.P.C. The appellant and his co-accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They, however, opted not to make statements on oath under section 340(2), Cr.P.C. And did not produce any witness in their defence.
7. At the conclusion of the trial the learned trial Court acquitted the appellant's co-accused but, after finding the prosecution's case against him to have been proved beyond reasonable doubt, convicted and sentenced the appellant as mentioned and detailed above. Hence, the present appeal and the connected revision petition before this Court.
8. I 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 appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt as the eyewitnesses produced by the prosecution did not inspire confidence and they had failed to receive corroboration from any independent source. As against that the learned counsel for the complainant as well as the learned counsel for the State have maintained that the prosecution had succeeded in establishing the guilt of the appellant to the hilt and, therefore, his conviction recorded by the learned trial Court does not warrant any interference by this Court. The learned counsel for the complainant has gone on to maintain that the sentence of the appellant needs to be suitably enhanced.
9. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has been observed by me that the occurrence in this case had taken place during a night and the electric bulb which was claimed by the eye-witnesses to be a source of light at the spot had not been taken into possession by the Investigating Officer. The F.I.R. In this case had been lodged after two days of the alleged occurrence and no plausible explanation for such an inordinate delay had been advanced by the complainant party. Muhammad Sadiq complainant (P.W.7) had maintained that the original complaint submitted by him before the police had been written by a friend of his but he had failed to specify such a friend. The original complaint (Exh-PH) did not bear any date or time of filing of the same before the police. Both the eye-witnesses produced in this case by the prosecution, i.e. Muhammad Sadiq complainant (P.W.7) and Liaquat Ali (P.W.8) were not only closely related to Tanvir Ahmad deceased but they were also chance witnesses who had failed to advance any reason whatsoever for their presence at the scene of the crime at the relevant time. Muhammad Sadiq complainant (P.W.7) was the father of Tanvir Ahmad deceased whereas Liaqat Ali (P.W.8) was a son of the complainant's sister and, thus, a first cousin of the deceased. Both the said eye-witnesses had admitted before the learned trial Court in so many words that their places of residence of or business were situated nowhere near the place of occurrence. No reason or explanation had been advanced by these eye-witnesses during the investigation or even before fhe learned trial Court to show as to why they were present at the place of occurrence at the relevant time when they had ostensibly no reason for being present there is ordinary circumstances.
10. Both the eye-witnesses produced by the prosecution had made contradictory statements before the learned trial Court and their credibility and veracity was, therefore, irretrievably shaken.
Muhammad Sadiq complainant (P.W.7) had maintained that Tanvir Ahmad deceased used to do business in the local Sabzi Mandi whereas Liaquat Ali (P.W.8) had stated that the deceased used to indulge in cultivation and he was doing that for the last many years. Both the said eye-witnesses had categorically maintained during the investigation and also before the learned trial Court that red chillies had been thrown by the accused party in the eyes of Tanvir Ahmad deceased during the alleged incident but Dr. Nusrat Abbas (P.W.6) had expressly stated before the learned trial Court that he had not found any such chillies on the body or clothes of the deceased at the time of his medical examination. Muhammad Sadiq complainant (P.W.7) had maintained that while handling his injured son his own clothes had become stained with blood but no such blood- stained clothes of the complainant had been produced before the Investigating Officer. The most glaring contradiction found on the record of this case is that Muhammad Sadiq complainant (P.W.7) and Liaquat Ali (P.W.8) had insistently maintained during the investigation as well as during the trial that they had taken Tanvir Ahmad deceased in an injured condition to the hospital whereas the Medico-legal Certificate (Exh.PP) issued by Dr. Nusrat Abbas (P.W.6) showed that the deceased had been brought to the hospital by Muhammad Afzal P.W. It is of critical importance to mention here that the said Muhammad Afzal P.W. Was a first cousin of Tanvir Ahmad deceased and he had been cited in the Calendar of Witnesses as an eye-witness but before the learned trial Court he had been given up by the prosecution as having been won over. This clearly hinted at a real possibility that the claims made by the eye-witnesses produced by the prosecution before the learned trial Court were not sacrosanct and all was not well with the ocular account furnished by the prosecution. In view of such state of the evidence produced by the prosecution I have felt reluctant in placing a whole-hearted reliance upon the statements made by the eye-witnesses produced by the prosecution and have, thus, felt persuaded to look for independent corroboration.
11. It has already been observed above that the F.I.R. In this case had been lodged with delay of two days for which no plausible explanation had been advanced by the prosecution. I have found such an inordinate delay in lodging of the F.I.R. In a case of this nature to be rather unusual and intriguing.
12. The motive set up by the prosecution was criminal litigation between the parties and it had been admitted by Muhammad Sadiq complainant (P.W.7) before the learned trial Court that the criminal case forming the motive had been lodged by the present appellant against Tanvir Ahmad deceased and the latter had been challaned in that case.
' That motive case had subsequently been followed by a murder case in which Muhammad Sadiq complainant (P.W.7) was himself arrayed as an accused person. In these circumstances there appears to be a background of pitched enmity between the parties and, thus, a false implication of the appellant by the complainant party of this case in a case of this nature could not be ruled out of consideration. It is trite that motive is a double-edged weapon which can cut both ways.
13. The alleged recovery of a pistol from the appellant's possession during the investigation of this case was legally inconsequential inasmuch as no crime-empty had been recovered from the place of occurrence so as to connect the said pistol with the alleged offence. Thus, the ocular account had failed to receive corroboration even from this piece of evidence.
14. As I have already expressed doubts about the claimed presence of the eye-witnesses at the place of occurrence at the relevant time, therefore, the medical evidence produced by the prosecution could not provide the requisite support to the ocular account as, by its nature, medical evidence cannot 'identify the culprit perpetrating an offence. It has already been observed above that the medical evidence had contradicted the ocular account regarding throwing of red chillies by the accused party in the eyes of the deceased during the alleged incident.
15. Sadiq Ali, S.H.O. (P.W.11), one of the Investigating Officer, had stated before the learned trial Court about many persons appearing before him during the investigation of this case and maintaining before him that after hearing the report of a gunshot at the time of the alleged occurrence they had seen two unidentified persons running away from the spot. In that backdrop lodging of the F.I.R.
In this case after two days of the occurrence fortifies an impression that the incident in question had remained unwitnessed, the culprits perpetrating the alleged offence had remained unidentified and the eye-witnesses in this case had been procured and planted by the police at a subsequent stage.
16. For what has been discussed above a conclusion is irresistible that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and the appellant is, therefore, entitled to be extended the benefit of such doubt. Criminal Appeal No. 356-J of 2002 is, therefore, allowed, the conviction and sentence of Akhlaq Ahmad appellant recorded by the learned trial Court are set aside and the appellant is acquitted of the charge. He shall be released from the jail forthwith if not required in any other case.
17. For the reasons recorded above Criminal Revision No.984 of 2002 filed before this Court by Muhammad Sadiq complainant is hereby dismissed.