' MUHAMMAD FARRUKH MAHMUD, J.--- The appellants Bashir, Zakir and Jaffar along with Allah Yar and Muhammad Siddique were booked in case F.I.R. No,1209 registered at Police Station Tandlianwala on 9-10-1998 for offences under sections 302/148/149, P.P.C. Muhammad Siddique- accused was tried separately under the Juvenile Justice System Ordinance, 2000, and was acquitted by the learned Additional Session Judge/Juvenile Court, Faisalabad, vide judgment, dated 12-11-2001. However, the rest of the accused were tried by the learned Sessions Judge, Faisalabad, who, vide judgment, dated 20-10-2001, while acquitting Allah Yar co-accused, convicted and sentenced the appellants as follows:-
(I) Bashir for offence under section 302(b), P.P.C. To death plus payment of Rs,50,000 as compensation to legal heirs of the deceased-Muhammad Yousuf; and
(II) Zakir and Jaffar for offence under section 302(b), P.P.C. To death each plus payment of Rs,25,000 each as compensation to the legal heirs of deceased-Muhammad Yaqoob.
2.. Bashir, Zakir and Jaffar, appellants/convicts, have challenged their above noted conviction and sentence through the instant appeal. Murder Reference No,734 of 2001 seeking confirmation or otherwise of death sentence imposed upon the appellants has also been placed before us. We propose to decide both these matters through this judgment.
3. The brief facts of the case per complaint Exh.P.A recorded by Ghulam Sarwar, S.-I./P.W.10, at the instance of Muhammad Ali, complainant/P.W.1, which based the registration of formal F.I.R.
Exh.P.A./1, are that on 8-10-1998 at about 8-30 a.m. The complainant along with is daughter Mst.
Zubaida, Nawaz and .Shahadat/P.W.2 was sitting in his Dhari, while his two sons Muhammad Yaqoob and Muhammad Yousuf were working in nearby Killa No,20, suddenly Bashir armed with .8 mm rifle, Zahir Hussain armed with .30 bore pistol, Jaffar armed with .12 bore gun, Allah Yar and Siddique, both empty-handed, reached there. Allah Yar and Siddique (both acquitted co-accused) raised Lalkara that they had come to teach a lesson for not giving the hand of complainant's daughter for marriage. Bashir fired a shot hitting Muhammad Yousuf on his left shoulder. The fire shot by Zakir hit Muhammad Yaqoob on his right hand. Jaffar's fire hit Muhammad Yaqoob on the right side of his neck. Both Yaqoob and Yousuf fell down. The above said P.Ws. Beseeched the accused, who, while brandishing their respective weapons, proceeded to their Dhari. Muhammad Yaqoob succumbed to the injuries at the spot. Muhammad Yousuf in injured condition was taken to Tandlianwala Hospital in a wagon by Muhammad Hussain and Mazhar Iqbal. (Muhammad Yousuf also subsequently died on his way to Civil Hospital, Faisalabad).
' As to the motive, it was alleged that Bashir had requested for the hand of complainant's daughter Mst. Ruqayya for Jaffar but both the deceased did not accede to the proposal and on account of that grudge the accused had committed the offence.
4. On 9-10-1998, Ghulam Sarwar, S.-I. /P.W.10, on receipt of information about the occurrence, went to the place of occurrence; recorded the statement Exh.P.A. Of Muhammad Ali/complainant. After that the Investigating Officer/Investigating Officer sent the dead body of Muhammad Yaqoob to the mortuary for post-mortem examination. On spot inspection, the Investigating Officer collected blood-stained earth from the place of murder of Muhammad Yaqoob and sealed the same into a parcel vide memo. Exh.P.B. He also collected blood-stained earth from the place where Muhammad Yousuf was injured and sealed the same into a parcel through memo. Exh.P.C. On receipt of information that Muhammad Yousuf injured had died, the Investigating Officer went to Civil Hospital Tandlianwala; prepared the inquest report of Muhammad Yousuf and got the post- mortem examination of Muhammad Yousuf. The Investigating Officer also prepared the rough site plan Exh.P.R. Of the place of occurrence. Scaled site plan Exhs.P.H. And P.H./1 was got prepared from the Patwari. On 31-10-1998, Zakir Hussain-appellant, who was already in the police lock-up, was formally arrested in the instant case. Zakir Hussain led to the recovery of .12 bore double barrel gun P.8 which was taken into possession vide memo. Exh.P.G. The rest of the accused were arrested on 2-11-1998 by Rab Nawaz, Inspector/ P.W.11. At the time of arrest, Bashir-appellant produced .8 mm rifle P.1 with its licence P.2, which were taken into possession vide 'memo Exh.P.D. After completion of investigation, the appellants along with their acquitted co-accused were sent up to face trial.
5. To substantiate its version at the trial, prosecution produced eleven witnesses in all and after tendering in evidence the report of Chemical Examiner Exh. P.T. Closed its side. In their statements recorded under section 342, Cr.P.C. The appellants pleaded their innocence and false implication due to enmity with the complainant party. However, neither the appellants appeared as their own witnesses as contemplated by section 340(2), Cr.P.C. Nor did they produce any witness in their defence.
6. Learned counsel for the appellants contends that the F.I.R. Was not recorded at the police station but was recorded at the spot at 1.1-00 a.m., while the occurrence took place at 8-30 a.m.; that the motive as set down in the F.I.R. Was not proved and the motive was too weak to launch a murderous assault; that the Investigating Officer also did not probe into the motive; that no independent witness was produced in support of the motive; that it was proved from the record that the occurrence did not take place at 8-30 a.m. The learned counsel has referred to the statement of P.W.7 available at page 28 of the paper book where it was stated by the doctor that the patient was brought into hospital early in the morning at about 6-00/7-00 a.m. The learned counsel has referred to the statement of P.W.3 Muhammad Sarwar/constable at page 45 of the paper book wherein it was stated that two dead bodies were handed to him at about 6-00/7-00 a.m. In the morning on 9-10-1998 at the spot; that Muhammad Ali, who is father of both the deceased and Shahadat Ali who is related to Muhammad Ali, did not go along with Muhammad Yousuf while he was injured and was being taken to the hospital; that according to prosecution case, Muhammad Hussain and Mazhar Iqbal had taken Yousuf to the hospital; that both of them were not produced during trial; that the statements of P.Ws. Are not supported by the circumstances of the case; that the place of occurrence was shifted from Killa No,20 to Killa No,22; that both the witnesses had also implicated Allah Yar and Muhammad Siddique in the case who were acquitted; that both the witnesses made dishonest improvements by attributing specific injuries to the appellants; that according to P.W.2, the S.H.O. Reached the place of occurrence at about 9-30/10-00 a.m., while according to the complainant, the S.H.O. Reached the place of occurrence at 11-00 a.m.; that P.W.2 had personal enmity with Allah Yar (acquitted co-accused).
The learned counsel has summed up his arguments by stating that it was an unwitnessed occurrence which took place during wee hours and the two dead bodies were in fact found lying in the field by the villagers who informed the police and thereafter the case was cooked up at the spot.
7. Conversely, the learned Additional Prosecutor-General submits that it was a daylight occurrence; that both the P.Ws. Have given consistent account of the occurrence and their statements vis-a-vis the appellants are convincing; that the statements of P.W.1 and P.W.2 are supported by the medical evidence and their statements were enough to record conviction of the appellants; that no motive existed to falsely implicate the appellants in the case; that the defence plea taken during the cross-examination of P.W.1 was ridiculous and was not supported either by any evidence or circumstances of the case; that after suggesting defence plea to P.W.1 forgot the same and did not suggest it to the rest of the witnesses; that it was not a case of substitution which was a rare phenomenon; that the complainant whose one son had died and the other was injured was too shocked to go to the police station immediately.
8. We have heard the learned counsel for the parties and have also gone through the entire record.
9. In support of its case prosecution has produced P.W.1 Muhammad Ali and P.W.2 Shahadat Ali.
Muhammad Ali is father of both the deceased, while Shahadat Ali is related to Muhammad Ali, as wife of Shahadat Ali is the sister of the mother of Muhammad Ali complainant. According to F.I.R., the occurrence took place at 8-30 a.m. On 9-10-1998. However, neither the complainant nor any of the P.Ws. Went to report the matter at police station. Ghulam Sarwar, S.-I./ P.W.10, after receipt of information, reached the place of occurrence and recorded the statement of Muhammad Ali at 11- 00 a.m. On the spot A after about two and a half hours of the occurrence. No explanation was offered by Muhammad Ali in his Fard Biyan Exh.P.A. As to why the matter was not reported to the police for about 2-1/2 hours. According to F.I.R., Muhammad Yaqoob lost his life on the spot, while Muhammad Yousuf, who was critically injured, was taken to Tandlianwala Hospital by Muhammad Hussain and Mazhar Iqbal, P.Ws., in a wagon. Both the witnesses were not produced before the learned trial Court. Both the eyewitnesses did not accompany Muhammad Yousuf, while he was being taken to the hospital. Out of the two P.Ws. Muhammad Ali, being father of Muhammad Yousuf, should, in ordinary circumstances, have accompanied him while he was being taken to the hospital. During trial Muhammad Ali stated that Yousuf was taken to Civil Hospital, Tandlianwala by Nawaz and Shahadat, P.Ws, along with some other people of the village and due to his serious condition he was being shifted to Civil Hospital, Faisalabad, but he died before reaching the hospital. He purposely did not mention the names of Mazhar Iqbal and Muhammad Hussain as against F.I.R. However, Shahadat Ali stuck to the original story that Yousuf was taken in a wagon to Civil Hospital, Tandlianwala, by Muhammad Hussain and Mazhar Iqbal and from there while he was being shifted to Civil Hospital, Faisalabad, he lost his life on the way. As already noted above, both the witnesses did not accompany Muhammad Yousuf while he was being shifted to the hospital.
However, they came out with the details that Yousuf was taken to Tandlianwala Hospital and from there to Civil Hospital, Faisalabad. Both the witnesses did not disclose the source of their information. The story that Muhammad Yousuf was firstly taken to Civil Hospital Tandlianwala and the Medical Officer due to serious condition of Yousuf referred him to Civil Hospital, Faisalabad, is not supported by the statement of any Medical Officer. The two statements of Dr. Captain Muhammad Anwar (P.W.7) who conducted post mortem examination on the dead bodies of Muhammad Yousuf and Muhammad Yagoob were recorded firstly on 17-2-2001 and then on 22-9- 2001. In his earlier statement during cross-examination, he stated that police papers were prepared by 4'O clock in the hospital and he immediately started the post mortem examination. He further stated that when Yousuf was brought to the hospital, he was already dead. He was unable to tell whether the dead bodies of Yagoob and Yousuf were brought in the hospital at the same time or at different times. According to him, all he knew was that both the dead bodies were brought in the hospital by Muhammad Sarwar, constable/P.W.3: He conceded that in the relevant column relating to probable time that elapsed between injuries and death, firstly he mentioned three hours and then scored out the same. We have examined the post mortem report Exh.P.J.
Wherein after scoring out "immediate" was entered. We have also noticed that in the post mortem report of Muhammad Yousuf Exh.P.M. In the relevant column relating to the time that elapsed between injuries and death, firstly immediate was entered and then it was scored out and substituted by two hours. The matter did not end here. As statement the statement of Yousuf while he was injured (dying declaration) was recorded at 10-50 a.m. On the fateful day, the doctor was summoned again as in his earlier statement he had not mentioned about the dying declaration.
On 22-9-2001 the statement of Dr. Captain Muhammad Anwar was against recorded. He stated before the learned trial Court that on 9-10-1998 while he was posted in Civil Hospital, Tandlianwala, after examining Muhammad Yousuf injured, he opined in writing, vide Exh.P.S./2, "fit for statement".
He was subjected to cross-examination. During cross-examination, as against his earlier statement, he stated that Yousuf was brought into the hospital in the morning at about 6-00/7-00 a.m. And he had prescribed medicines which were administered to the patient and that patient was admitted- to the hospital. However, he had not brought any relevant record about the admission of Yousuf in the hospital at 6-00/ 7-00 a.m. And he conceded that did not prepare any medico legal report. Exh.P.S./2 which is available at page 118 of the paper book contains the signatures of P.W.7 and the statement is confined to the words "Fit for statement". Perusal of Exh.P.S. Further reveals that it was recorded at 10-50 on 9-10-1998 in the presence of Mehar Amjad Saleem Tehsildar/Duty Magistrate. Undeniably, the matter was not reported to the police till then. The statement of Mehar Amjad Saleem, who had allegedly recorded the statement of Muhammad Yousuf was also recorded twice; firstly on 28-2-2001 and then on 22-9-2001. In his earlier statement available at page 51 of the paper book, he stated that at about 10-15 a.m. a brother of Muhammad Yousuf whose name was not disclosed moved written application before him for recording the statement of Muhammad Yousuf and thereafter he went to the hospital and recorded the statement. He was also cross-examined. Neither in his examination-in-chief nor in cross- examination he mentioned that he had consulted the Medical Officer and asked about his petition as to whether the injured was in a fit condition of making any statement or not. He also did not mention as to whether he informed the relevant police officer or not. In his subsequent statement available at page 52 of the paper book, P.W.9 made a detailed statement wherein he stated that Mazhar Iqbal, who was Khalazad of Muhammad Yousaf, had requested him through written application to record the dying declaration of Muhammad Yousuf, who was admitted in the Civil Hospital. He further improved his statement by stating that he went to the hospital, met the doctor on duty and asked for his opinion. Thereafter he recorded the statement of Muhammad Yousuf.
During cross-examination he conceded that the application of Mazhar Iqbal did not bear his signatures, order or any observation. He was unable to remember that the statement of doctor "Fit for statement" was recorded in his office or in the Ward. He was unable to remember who wrote the words "312/RT/2-11-1998" marked P.S./1. He conceded that he did not ask for any medico-legal report (MLR) of the patient and he did not certify that the patient was examined by the doctor in his presence and during the examination the patient remained in senses. He further stated that he handed over the statement Exh.P.S. To police which was already present there; however, without sealing it in any envelope. As already noted above, two statements of Mehar Amjad Saleem were recorded by the learned trial Court on different dates. Both the statements are divergent. The statements of the Medical Officer on the point of recording statement of Muhammad Yousuf while he was injured are also divergent. According to prosecution case, the matter was reported to the police at 11-00 a.m. At the spot. Thereafter, formal F.I.R. Was registered. In that case, no police officer/official could be present in the hospital at 10-50 a.m. In lieu of this case. The statement Exh.P.S. Does not reveal that any Police Officer was present in the hospital. It is not mentioned anywhere that the statement was being handed over to any police officer. According to post 'mortem report, due to the injury on the right scapula, ribs beneath the scapula were broken into pieces in the wounded, 5th, 6th, 7th ribs and 3rd, 4th and 5th vertebrae were broken on the internal side of the thoracic cavity. The injury was caused from a very close range, as the margins were blackening. After receiving such a serious injury, it would not be possible for the injured to make a statement. Undeniably, no MLR was prepared while Muhammad Yousuf was alive. Firstly, the doctor stated that Yousuf was already dead when he was brought to the hospital. Subsequently, he stated that Yousuf was brought to the hospital at 6-00/7-00 a.m. Let it be noted that according to prosecution case, occurrence took place at 8-30 a.m. As narrated by the Medical Officer. These statements are also against the story narrated by P.W.1 and P.W.2 that firstly Muhammad Yousuf was taken to the Civil Hospital, Tandlianwala, and as his condition was serious, he was referred to Civil Hospital, Faisalabad and while he was on his way to the hospital he lost his life. In these circumstances, no reliance can be placed on the dying declaration Exh.P.S. It is a piece of fabrication. Having come to this conclusion, we have give our anxious thought as to why prosecution felt it necessary to forge the evidence of dying declaration when according to the prosecution case, the occurrence has taken place in the presence of four witnesses, i.e. Muhammad Ali P.W.1 and Shahadat Ali P.W.2 and Mst. Zubaida and Muhammad Nawaz, who were not produced during trial. It appears that it was an unwitnessed occurrence. This view is supported by the factum of delay in lodging the F.I.R. As well as non-accompanying of father with Muhammad Yousuf who was critically wounded. Both the witnesses also made dishonest improvements during trial by specifying the seat of injuries as well as by coming out with a story that Yaqoob raised his hands and at that time the fire caused by Zakir hit on the hand of Yaqoob. Let it be mentioned here that the injury was on the back of the hand of Yaqoob and not on palm and was only a grazing wound. Both the witnesses also changed the place of occurrence. In F.I.R. It was stated that Yaqoob and Yousuf were working in Killa No,20, while they were assaulted upon by the accused, whereas during trial was stated that both the deceased were working in Killa No,22. The witnesses were duly confronted with their earlier statements. It may be mentioned here that in the rough site plan Exh.P.R. Prepared by the Investigating Officer soon after the occurrence and scaled site plan Exh.P.H./1, the dead bodies were lying in Killa No,2 of Square No,71. In both the site plans, Killa Na.20 of Square No,70 where according to F.I.R. The deceased were working has not been mentioned.
10. The medical evidence leads support to the prosecution case to the extent that both the deceased lost their lives due to fire-arm injuries but it does not lead to the assailant.
11. The recovery of weapons from Bashir Ahmad and Zakir appellants would be of no consequence, as no empty was recovered from the spot and weapons were not sent to Forensic Science Laboratory to ascertain whether those were in working order or not. Bashir Ahmad himself produced the licensed rifle at the Thana, while at the time of recovery of weapon at the instance of Zakir, no public witness from the locality was associated with the recovery proceedings.
12. As far as motive is concerned, no independent witness has been produced in support of it. The Investigating Officer admitted that he did not probe into the evidence of the motive. Even otherwise, the motive was not a substantive piece of evidence and could only be used as corroboratory evidence. The learned Additional Prosecutor-General has laid much stress on the suggestion made to P.W.1, according to which both the brothers shot on each other. According to him, it was the defence plea and it was ridiculous and unsupported by any evidence. We agree with the learned counsel for the prosecution that the suggestions made to P.W.1 during cross- examination did not appeal to reason but weakness of defence plea or falsity of defence plea would not strengthen the prosecution case which has to stand on its own legs.
13. The upshot of the whole discussion is that according to our considered opinion, the prosecution case is not free from doubt. Hence, we allow this appeal and set aside the judgment passed by the learned trial Court to the extent of appellants. The appellants are acquitted of all H the charges and would be released forthwith if not required in any other case. The death sentence is not confirmed.
The Murder Reference is answered in the negative.