' MUHAMMAD FARRUKH MAHMUD, J.---The appellants Ghulam Shabbir, Bashir, Sajid, Muhammad Sharif, Mulazim Hussain and Allah Ditta were tried by Khawaja Hassan Wall Khan, learned Additional Sessions Judge, Shorkot, District Jhang, in case F.I.R. No,240 registered at Police Station Ahmadpur Sial on 3-12-2000 for offences under sections 302/324/248/149, P.P.C. Vide judgment, dated 28-5- 2002, the learned trial Judge convicted and sentenced the appellants as follows:-
(i) Ghulam Shabbir for offence under section 302(b), P.P.C. To death plus payment of Rs,1,00,000 as compensation to the legal heirs of the deceased;
(ii) Ghulam Shabbir, Bashir, Sajid, Allah Ditta, Mulazim Hussain and Muhammad Sharif for offence 148, P.P.C. To undergo R.I. For two years each;
(iii) Ghulam Shabbir, Bashir, Sajid, Allah Ditta, Mulazim Hussain and Muhammad Sharif for, offence under section 324, P.P.C. To suffer R.I. For five years each;
(iv) All the convicts were also directed to pay Rs,25,000 each as fine, in default whereof to further undergo S.I. For three months each.
' Both the sentences were to run concurrently. Benefit of section 382-B, Cr.P.C. Was given to the convicts.
2. Ghulam Shabbir, Bashir and Sajid through Criminal Appeal No,1034 of 2002 and Muhammad Sharif, Mulazim Hussain and Allah Ditta through Criminal Appeal No,1089 of 2002 have challenged their above noted convictions and sentences. Murder Reference No,413 of 2002 seeking confirmation or otherwise of death inflicted upon Ghulam Shabbir appellant has also been placed before us. We propose to decide all these matters through this consolidated judgment.
3. The facts of the prosecution case, in brief, per statement Exh.PK, recorded by Amar Mushtaq, Inspector/P.W.11 at the instance Abdul Rasheed, complainant/ P. W.7, which based the registration of formal F.I.R. 'Exh. PK/1, are that on 3-12-2000 at about 4-30 p.m. The complainant, Ihsan Ahmad/P.W.8 and Abdul Ghaffar were present in the shop of Aslam Kumhar in connection with the purchase of certain articles, when all of a sudden Mulazim Hussain armed with Sota, Allah Ditta armed with .12 bore gun, Muhammad Sharif armed with hatchet, all Channar by caste, came from western side, while Ghulam Shabbir armed with .12 bore gun, Bashir armed with Sota and Sajid armed with .30 bore pistol came from southern street. Bashir raised Lalkara that the Channars had earlier destroyed their honour and then were after their lives. Thereafter both the parties started firing upon each other. It was just after ten minutes that suddenly Abdul Latif came in front of the shop of Muhammad Aslam on a bicycle from the side of a bridge, when Ghulam Shabbir raised Lalkara that despite his forbidding repeatedly, Abdul Latif ,who had been helping the Channars, had come again and that he would be taught a lesson. Ghulam Shabbir fired a shot from his gun, which hit Abdul Latif on his chest, as result whereof Abdul Latif fell down. Besides the complainant, the occurrence was witnessed by Abdul Ghaffar and Ihsan Ahmad. Ghulam Shabbir and others decamped from the scene of occurrence. After a few moments, Channar Group stopped firing.
Abdul Latif succumbed to the injuries at the spot.
' The motive behind the occurrence was that sister of Ghulam Shabbir was abducted by Allah Ditta Channar and was subsequently given back to her parents through a Panchayat. Ghulam Shabbir suspected that Abdul Latif had been helping Allah Ditta Channar in the abduction of his sister and on account of that grudge, Ghulam Shabbir committed the murder of the deceased.
4. On 3-12-2000 at 4-30 p.m. When Amar Mushtaq, Inspector/P.W.11, was present at Adda Kassoana in connection with patrol duty, the complainant appeared before him and got recorded his statement Exh.PK, which based the registration of formal F.I.R. Exh.PK/1. Then the Investigating Officer (I.O. ) went to the place of occurrence; took the dead-body into possession; prepared its injury statement Exh.PH and inquest report. Exh.PJ and sent the dead body for postmortem examination.
He also took into possession cycle through memo. Exh.PM. The I.O. Collected blood-stained earth from the spot and sealed the same into a parcel vide memo. Exh.PL. He prepared rough site plan of the place of occurrence Exh.PP. On 21-12-2000, the I.O. Got prepared the scaled site plan Exh.PN of the place of occurrence from the Draftsman. He arrested all the appellants. Sajid led to the recovery of the pistol P.1 from his Dab, which was taken into possession vide memo. Exh.PA. .12 bore gun P.2 was recovered from Allah Ditta and was taken into possession vide memo. Exh.PB. Mulazim Hussain produced Sota P.3, which was taken into possession through memo. Exh.PC. The hatchet P.4 produced by Muhammad Sharif was taken into possession through memo. Exh.PD. Ghulam Shabbir produced repeater P.5 and its licence P.6, which were taken into possession vide memo.
Exh.PE. The Sota P.7 produced by Bashir was taken into possession through memo. Exh.PF. The recoveries effected from all the accused except Sajid were attested by Muhammad Aslam/P.W.3 and Khalid (not produced during trial). The recovery effected at the instance of Sajid was attested by Khushhal Khan/P.W.2 and Safdar Ali (not produced). After completion of investigation, all the accused were sent up to face trial. As the accused denied the charge and claimed to be tried, the trial commenced.
5. To substantiate its case at the trial, prosecution produced eleven witnesses. Ocular account was furnished by Abdul Rasheed/P.W.7 and Ihsan Ahmad/P. W W.
8. In addition to that, Abdul Rasheed also stated about the motive, while Ihsan Ahmad stated about the recoveries effected from the spot. Khushhal Khan, A.S-I./P.W.2, and Muhammad Aslam/P.W.3 stated about the recoveries effected from the appellants. Dr. Ahmad Ali Jaffar/P.W.4 conducted post-mortem examination on the dead body of the deceased on 4-12-2000 and found three injuries on his person. Injuries Nos.1 and 2 were on the chest, while injury No,3 was on the right upper arm. In the opinion of the doctor, death was caused due to shock and haemorrhage caused by injuries ' Nos.1 and 2 which were sufficient to caused death in the ordinary course of nature. All the injuries were caused by firearm weapon. Duration between the injuries and death was half an hour, while between death and post-mortem examination was 15 to 30 hours. Amar Mushtaq, Inspector/P.W.11 stated about the drafting of complaint/statement Exh.PK at the instance of the complainant, its dispatch to the police station for formal registration of the F.I.R. And the investigation thereafter. The rest of the witnesses, being formal in nature and need not be discussed. After placing on record the reports of Chemical Examiner Exh.PR and the Serologist Exh.PS, the prosecution closed its side.
6. In their statements recorded under section 342, Cr.P.C., all the accused/appellants pleaded their innocence and false implication. There are two sets of accused. First set consists of Ghulam Shabbir, Bashir and Sajid, while the second one, consists of Allah Ditta, Muhammad Sharif and Mulazim Hussain. From the first set of accused, Ghulam Shabbir pleaded his innocence in the following words:--- ' "I along with my co-accused Bashir and Sajid was standing towards northern side of the shop of Muhammad Aslam Komhar whereas Allah Ditta etc. Channar party were present towards western side of the shop of said Muhammad Aslam Komhar. From opposite party Allah Ditta armed with .12 bore gun made firing upon me and my co-accused. In our self-defence I made firing upon Channar party. In the meanwhile, Abdul Latif deceased came from eastern side on metalled road riding on bicycle and when he reached in front of the shop of said Muhammad Aslam, Allah Ditta accused from Channar party fired at Abdul Latif deceased which hit Abdul Latif deceased who fell down from his bicycle and resultantly he died. Allah Ditta accused was gunman of Mehr Ghulam Qasir Sargana resident of Mauza Kassoana P.S. Ahmadpur Sial. Said Ghulam Qasim Sargana is a big landlord and influential personality. He had good relations with Abdul Ghaffar. P.W. Who is cousin of Abdul Latif deceased. Said Abdul Ghaffar given up P.W. Is respectable person in the family of deceased. In connivance of Mehr Ghulam Qasim Sargana and Abdul Latif (given up P.W..) a compromise was effected between heirs of deceased and Allah Ditta etc. Channar party before registration of this case. In order to save his gunman Allah Ditta and his co-accused Channar by caste, the liability of the murder of Abdul Latif deceased was shifted upon me and my co-accused.
The P.Ws. Are closely related to deceased Abdul Latif and the I.O. Dishonestly investigated this case and deposed falsely in the Court. The evidence of the remaining P.Ws. Are of formal nature."
' The statement of Ghulam Shabbir was adopted by his co-accused Bashir and Sajid. From the second set of the accused, Allah Ditta made the following statement:--- ' "All the P.Ws. Are related inter se. The deceased Abdul Latif had good relations with me. The complainant was aggrieved with us due to our cordial relations with Abdul Latif deceased. The complainant involved me and my co-accused Channar by caste due to suspicion that Abdul Latif deceased was murdered by Ghulam Shabbir and his co-accused Arain by caste because of cordial relations between me and deceased. Abdul Rashid P.W. Many times forbade his brother Abdul Latif for disconnecting relations with me but he declined to do so. Accused Ghulam Shabbir and his co-accused Arain party suspected that I had illicit relations with his sister and that in these affairs he suspected that Abdul Latif deceased had been helping me. Ghulam Shabbir. And his co- accused Arain party, wanted , to kill me but I took shelter behind the wall. In the meanwhile Abdul Latif deceased came at the scene and was murdered by fire of accused Ghulam Shabbir. I was present at the spot empty-handed. My co-accused Channar by caste were not present with me.
The P.Ws. Have falsely deposed the fact of cross-firing. "
' The statement of Allah Ditta was adopted by his co-accused Muhammad Sharif and Mulazim Hussain. None of the accused from either set appeared as witnesses under section 340(2),' Cr.PiC.
Nor produced any witness in defence.
7. Mr. Bashir Abbas Khan, learned counsel for the appellants in Criminal Appeal No, 1034/02 submits that both the eye-witnesses were not only related to the deceased but were also chance witnesses, who failed to explain their presence at the time of occurrence; that according to P.Ws., they had gone to the shop of Aslam Kumhar to purchase certain articles, while it has been brought on record that real brother of the complainant also ran a Karyana shop which was nearer to the house of the complainant then the shop of Aslam Kumhar; that it was most Unlikely that the complainant would remain, present at the shop of Aslam Kumhar while the parties were engaged in firing right in front of the shop of Aslam Kumhar; that according to recovery memo, it was the weapon of Allah Ditta which was used during the occurrence; that the I.O. Admitted that case against Ghulam Shabbir was doubtful; that it is shrouded in doubts as to whose shot caused the death of Abdul Latif, brother of the complainant; that the ocular account is not supported by evidence of recovery, as neither any empty was recovered nor the weapon was sent to the Forensic Science Laboratory (F.S.L.); that the best witness in the case was Aslam Kumhar who was not produced; that according to prosecution case, the deceased was coming from the eastern side and undeniably, Channar Group was sitting on the western side; that in that case, the firing caused by the Channar Group would hit on the chest and not by the appellant who was on the northern side; that in the injury statement, the name of the complainant has been left blank, which reveals that the complainant was summoned subsequently, that for unexplained reasons, the matter was not reported at the police station and rather it was reported at Adda Kassoana; that it is common knowledge that the F.I.Rs, which are not registered at the police stations are, in fact, recorded after preliminary investigation and deliberations; and that the prosecution failed to prove the motive.
8. Ch. Muhammad Abdus Saleem, learned counsel for the appellants in Criminal Appeal No, 1089/02 submits that the learned trial Court has convicted the appellants in the absence of any incriminating evidence.
9. Conversely, the learned Additional Prosecutor-General for the State submits that both the witnesses had no ill will or enmity against the appellant Ghulam Shabbir so as to involve him in a false case; that the real brother would not substitute the actual killer with an innocent person; that the ocular account is- fully supported by the medical evidence and corroborated by the evidence of motive and circumstances of the case. He, however, frankly concedes that the rest of the appellants, were wrongly convicted for offences under sections 148, P.P.C., as they belonged to different groups.
10. We have, heard the learned counsel for the parties at a great length and have also gone through the record.
11. According to prosecution, case sister of Ghulam Shabbir appellant eloped with Allah Ditta and was given back to her parents through Panchayat. The enmity existed between the parties. It is noteworthy that Ghulam Shabbir, Bashir and Sajid, appellants, were Arain by caste, while Allah Ditta son of Mulazim Hussain, Muhammad Sharif son of Mulazim Hussain and Mulazim Hussain were Channar by caste. On the fateful day, Mulazim Hussain armed with Sota, Allah Ditta armed with .12 bore gun and Muhammad Sharif armed with hatchet, all Channars, were present on the western side of the shop of Aslam Kumhar, Ghulam Shabbir armed with gun, Bashir armed with Sota and Sajid armed with .30 bore pistol emerged from a street situated towards south. Bashir Arain raised Lalkara that the Channars had firstly insulted them and then were after their lives. Thereafter, both the parties, Arains and Channars, started firing at each other after taking shelter and the firing continued till ten minutes. Suddenly, Abdul Latif emerged from the side of the bridge on a bicycle and while he was in front of the shop of Muhammad Aslam, he was fired upon by Ghulam Shabbir, who, prior to firing, raised Lalkara that despite his forbidding Abdul Latif had reached the scene of occurrence to help the Channar party. The deceased, complainant and P.W. Ihsan are Jatt by caste and had no direct enmity with either of the parties. Abdul Rasheed-brother of. The deceased and Ihsan Ahmadi-nephew of the deceased furnished the ocular account. Abdul Rasheed- complainant was resident of the locality, while Ihsan Ahmad lived in a different Ch'ak situated at a distance of ninety miles. He claimed to be there per chance, as he was co-owner of eleven acres of land. According to F.I.R., complainant, P.W. Ihsan and Abdul Ghaffar (who was not produced) saw the occurrence at about 4-30 p.m. While they were present at the shop of Muhammad Aslam Kumhar which was situated in front of the road where the deceased received shot. The house of the complainant was at a distance of seven Killas from the spot, while the house of Abdul Ghaffar was at a distance of four Killas. Abdul Rasheed/P.W.7 and Ihsan Ahmad/P.W;8 claimed to be present at the shop of Muhammad Aslam Kumhar for purchasing certain articles. Except for that there was no other reason. During cross- examination, the complainant admitted that shop of Muhammad Aslam Kumhar was that of Karyana. He added that as that was month of Holy Ramzan, sweets and Pakauras were available at the shop during those days. He admitted it to be correct that his brother Aslam also owned a shop at a distance of one acre on the western side of the place of occurrence. He further admitted it to be correct that the shop of his brother was also that of Karyana and that the shop of his brother fell in the way while going to, the shop of Aslam Kumhar mentioned above. In the light of these admissions, it is difficult to believe that leaving the shop of his brother the complainant would opt for the shop of a stranger though both the shops contained the same material. Similarly, Ihsan Ahmad, being a nephew, would also go to the shop of his uncle and not to that of a stranger. Furthermore, the complainant stated that he was at a distance of four Karms from the shop of Aslam Kumhar when the occurrence took place. The question would be, as to why would he remain present near the place of occurrence where firing was being exchanged between two rival groups and any stray pellet could cause harm to him. The firing continued for ten long minutes prior to emerging of Abdul Latif. There was no justification for the P.Ws to remain present near the shop for ten minutes while firing was on, risking, their lives.
Normally either they would hide in the shop or run away as they never knew about the appearance of the deceased on the spot. As noted above, Ihsan Ahmad P.W. Was resident of a village which was at a distance of ninety miles. His explanation for being present at the spot was that he owned agricultural land jointly in the village of the occurrence. During cross- examination, he stated that he had gone only a day earlier to the village. After claiming that he was owner of eleven acres of land, he was unable to give any square number of Killa number of his holdings. His ignorance about the facts can be measured by the fact that according to him, the road where the incident took place ran from north to south, which is contrary to the admitted facts and the site plan. The rivalry existed between the Arains and the Channars over abduction of sister of Ghulam Shabbir Arain. Both the witnesses, being Jatt, were not related to either of the parties. So, as noted above, they would not remain present risking their lives when the firing was exchanged between the parties.
12. In this case, the matter was not reported at the police station, rather it was reported at Adda Kassoana where the S.H.O. Amar Mushtaq/P.W.Ll was present per chance. It is common knowledge that such-like F.I.Rs, are registered after due deliberation. We are fortified in our view after perusing Exh.PH, the injury statement of the deceased, prepared by Amar Mushtaq, S.H.O./P.W.
11. On the top of the injury statement, it is mentioned but the name of the complainant has not been mentioned in it and the space has been left blank.
13. According to medical evidence, Dr. Ahmad Ali Jaffar appeared as P.W.4 and stated that be conducted post-mortem examination on the dead body of Abdul Latif on 4-12-2000, i.e, on the next date of occurrence. The doctor observed three injuries on the person of the deceased. All Jhe three injuries were entry wounds. Injuries Nos.l and 2 were on the left side of the chest, while injury No, 3 was on right upper arm. However, during cross- examination, the doctor explained that all the injuries were result of one fire. Admittedly,, the road where the occurrence took place ran from east to west and according to F.I.R., it was the Channar party who was present on the western side of the road, while Arain party, i.e, Ghulam Shabbir and others, were present on the eastern side, although according to scaled map Exh.PN, Ghulam Shabbir and others were present on the northern side. In any case, it was more likely that the deceased received injuries by a fire which was caused from western side, as the deceased was facing towards west and had received injury on his chest.
14. According to recovery memo. Exh.P.E., Ghulam Shabbir produced his gun and licence before the I.-O. On 18-12-2000 while the latter was present at Adda Kassoana. However, the recovery cannot be used against the appellant, as no empty was recovered from the scene of occurrence nor the weapon 'was sent to the Forensic Science v Laboratory. The investigation of this case is not upto the mark. It was claimed that both the parties continued firing at each other for ten minutes yet not a single empty was recovered, by the I.O. Who claimed to have visited the place of occurrence soon after recording the statement of Abdul Rasheed. The I.O. Admitted that the place of occurrence was a metalled road which ran from east to west. He further admitted it to be correct that Abdul Latif was emerging to the place of occurrence from the side of the bridge which was situated on the eastern side of the place of occurrence and that it was correct that the. Deceased was going from east towards west. He also verified during investigation that both the parties, i.e, Arain and Channar, were engaged in firing against each other prior to murder of Abdul Latif. He further stated that according. To his investigation, it was doubtful whether the deceased died due to the shot caused by Ghulam Shabbir.
15. Now coming to the motive. As noted above, dispute lied between Arain Group and Channar Group. The deceased was not related to any of the parties. It was alleged in the F.I.R. That Ghulam Shabbir suspected that Abdul Latif had been helping Allah Ditta Channar in the abduction of his sister but no independent oral or documentary evidence is available in support of the suspicion. It was a case of elopement and Allah Ditta hardly needed the support of any one else. The I.O. On this point stated that according to his investigation, Abdul Latif was a thorough gentleman and had no hand in the abduction of the sister of Ghulam Shabbir. The complainant also admitted that Abdul Latif was a thorough gentleman and did not cause trouble to any one and had no association with the persons of ill repute and had no hand in the abduction of sister of Ghulam ^ Shabbir. After admitting that the accused suspected that the deceased had helped Allah Ditta, the complainant stated that Abdul Latif was not member of the Panchayat which restored the sister of Ghulam Shabbir. Going back to the scene of occurrence; both the rival groups were firing at each other.
Their main concern was to save their lives and to cause harm to the other party. Undeniably, Abdul Latif when emerged on the scene was empty- handed. So he could not be of any help to Allah Ditta Group and did not cause any threat to Ghulam Shabbir Group. Normally, Ghulam Shabbir would not come out of his hiding exposing himself to the fires of the rival party. Ghulam Shabbir in his statement has admitted his presence along with his companions. On the contrary, D Allah Ditta in his statement claimed to be empty handed. He also claimed to be alone. The statement of Allah Ditta is patently incorrect. Had he been alone, then Ghulam Shabbir and others would not have wasted g any time in launching assault at him. After thorough analysis of the whole evidence on record, we are of the opinion that both the eye-witnesses were not present at the time of occurrence and the complainant was persuaded by Allah Group that the deceased lost his life due to firing caused by Ghulam Shabbir, as, admittedly, Allah Ditta had been Gunman of Ghulam Qasim Sargana who was an influential person and close to Fayyaz, a near relative of the deceased and the complainant. The prosecution case is not free from doubt.' Hence, we allow the appeals and set aside the judgment passed by the learned trial Court. The appellants are acquitted of all the charges. Ghulam Shabbir is in jail. He would be released forthwith if not required in any other case. The rest of the appellants are on bail. Their bail bonds are cancelled and the sureties are