' MUHAMMAD FARRUKH MAHMUD, J.---Muhaminad Inayat, Sultan Ahmad, Mushtaq Ahmad, Ghulam Shabbir-appellant, Riaz Ahmad, Sikandar and Mumtaz along with two unknown persons were booked in case F.I.R. No. 245 registered at Police Station City Mandi Baha-ud-Din on 5-12-1994 for offences under sections 302/324/379/ 148/149, P.P.C. Sikandar and Mumtaz were declared proclaimed offenders and could not be tried . However, the rest of the nominated accused were tried by the learned Sessions Judge, Mandi Bahauddin. Vide judgment, dated 24-5-1999, the learned trial Court, while acquitting Muhammad Inayat, Mushtaq, Sultan and Riaz Ahmad, co- accused, convicted the appellant Ghulam Shabbir for offence under section 302(b), P.P.C. And sentenced him to death plus payment of Rs.1,00,000 as compensation to the legal heirs of the deceased.
2. Ghulam Shabbir-appellant has challenged his conviction and sentence by filing the instant appeal. Murder Reference No.254 of 1999 seeking confirmation or otherwise of death sentence awarded to the appellant has also been placed before us. We propose to decide both these matters through this single judgment.
3. The brief facts of the prosecution case per complaint Exh. PB recorded by Muhammad Akram, Inspector/P.W.9, at the instance of Jahanda Khan, complainant/P.W.2, which based the registration of formal F.I.R. Exh.PB/1, are that on 5-12-1994 after-noon the complainant along with is brothers Zafar Iqbal, Bashir Ahmad/P.W.2 and Azmat Hussain came out of his house and reached Phalia Road. They were going to Lorry Adda. Zafar Iqbal and Azmat Hussain were ahead of Jhanda Khan and Bashir Ahmad. When they reached in front of godown building, suddenly Sikandar and Mumtaz came from behind on a motorcycle, being driven by Sikandar, followed by a car in which Muhammad Inayat, Mushtaq Ahmad, Sultan, Shabbir and Riaz, while armed with fire-arms, were sitting. Mumtaz fired a shot from .12-bore gun which hit Zafar Iqbal on his left flank. Azmat/P.W.
Escaped towards one side of the road. The fire-shot by Sikandar from his .12-bore gun hit Iqbal Zafar Iqbal on the left side of his neck. Zafar Iqbal fell down. Muhammad Inayat, Mushtaq, Sultan Shabbir and Riaz alighted from the car and started firing upon Zafar Iqbal. The fire-shot from the rifle by Shabbir hit Zafar Iqbal on the back side of his right shoulder. Two unknown persons were also with the aforesaid accused who were also armed with fire-arms and had also fired upon Zafar Iqbal. The complainant, Bashir Ahmad and Azmat Hussain took shelter on the road side and saw the occurrence. One of the fires shot by the accused hit one Shaukat, a passer-by. The accused also took .7-mm licensed rifle of Zafar Iqbal. All the accused, while firing, fled away from the scene of occurrence in the car and the motorcycle. Zafar Iqbal succumbed to the injuries at the spot.
' As to the motive, it was alleged that Muhammad Aslam father of Sikandar-accused was murdered and a case in that regard was registered against Zafar Iqbal etc. And in order to take revenge of the said murder, Sikandar etc. Had committed the murder of Zafar Iqbal.
4. On 5-12-1994 on receipt of information about the incident, Muhammad Akram, Inspector!P.W.9, while on his way to the place of decurrence came across the complainant in front of Lorry Adda at about 1-00 p.m. And recorded his statement Exh.PB, which was sent to the police station for, registration of formal F.I.R. Shaukat Ali injured P.W. Also reached there Muhammad Akram/Investigating Officer prepared his injury statement and sent him to the hospital for medical examination and treatment. Thereafter the Investigating Officer/Investigating Officer went to the place of occurrence. He prepared the inquest report Exh.PJ and injury statement Exh:PK of Zafar Iqbal and sent the dead body to the mortuary for post-mortem examination. He collected blood- stained earth from the spot and sealed the same into a parcel vide memo. Exh.P.C. He also collected a bag belonging to Zafar Iqbal deceased from the spot. The said bag contained 19 live bullets of .7-mm and one arm licence, which were taken into possession vide memo. Exh.PD. He got prepared the scaled site plan Exh.PN of the place of occurrence from the Draftsman. On 22-1-1995, all the accused including the appellant except Sikandar Hayat and Mumtaz were arrested by Manzoor Hussain, retired Inspector/P.W.7. After completion of investigation, the appellant along with his acquitted co-accused was sent up to face trial.
5. To substantiate its version at the trial, the prosecution produced nine witnesses in all and after tendering in evidence the reports of Chemical Examiner Exh.PO and Serologist Exh.PQ closed its side. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false involvement in following words:-- "The complainant party has enmity with me, therefore, they have falsely implicated me in this case.
In fact, on 5-12-1994 the eventful day I along with Muhammad Inayat accused had gone to village Chanhot in District Jhelum and returned on the following day because a daughter of one Anar son of Aslam had died and we had to go for condolence. The eye-witnesses are interested and inimical. They have deposed against me falsely."
'However, neither the appellant made his own statement as contemplated by section 340(2), Cr.P.C. Nor did he produce any witness in his defence.
6. Learned counsel for the appellant submits that the F.I.R. Was recorded after due deliberations and on the spot; that the eye-witnesses were inimical towards the appellant, that both the witnesses were chance witnesses; that the only independent witness Shaukat who received injury during the occurrence was not produced; that both the witnesses have contradicted each other on all the material points; that their statements are not supported by medical evidence; that both the witnesses made dishonest improvements before the learned trial Court in order to bring their statements in line with the medical evidence; and that the prosecution case was replete with doubts.
7. Conversely, the learned counsel for the complainant submits that the F.I.R. Was lodged with promptitude, so there was no chance of fabrication; that the statements of both the witnesses .Were supported by the medical evidence, as, undeniably, the deceased lost his life due to fire-arm injuries; that both the witnesses have supported each other on almost all the material points and have reasonably explained their presence at the time of occurrence; that the acquittal of rest of the accused would not benefit the appellant, as specific injury was attributed to him in the F.I.R.
Itself; and that the ocular account is supported by the motive. The learned counsel appearing on behalf of the State have supported the judgment passed by the learned trial Court.
8. We have heard the learned counsel for the parties and have also gone through the entire record.
9. The ocular account has been furnished by Jhanda Khan and Bashir Ahmad who appeared before the learned trial Court as P.W.2 and P.W.3. Jhanda Khan is brother of the deceased and admittedly enmity existed between him and the accused over the murder of Aslam who was father of Sikandar-accused (since absconding) and brother of Inayat and Sultan (acquitted accused).
The appellant is married with the sister of Muhammad Inayat and Sultan (acquitted accused). The deceased along with others was one of the accused in the above noted case. In his cross- examination, Bashir Ahmad/P.W.3 also admitted the existence of enmity between him and the accused. The occurrence took place at a distance of 4/5 acres from the place of residence of both the P. Ws. Who claimed to be present at the time of occurrence per chance. Nine persons, seven of whom were named in the F.I.R., were roped in this case. Both the witnesses escaped injuries at the hands of the accused. However, one Shaukat, who was a passer by, received injuries during the occurrence but he was not produced during trial. P.W.2 and P.W.3, being inimical towards the accused and being chance witnesses, need deeper scrutiny of their evidence. It is also noteworthy that the statement of Jhanda Khan/ complainant was not recorded at the police station which was at a distance of 1-1/2 furlong. Such-like F.I.Rs. As surrounded by inherent doubt that those were recorded at the spot after due deliberation. Reliance in this respect can be placed upon Muhammad Siddique v. The State (PLD 1958 (W.P.) Lahore 601) wherein it was held by a learned Division Bench of this Court that "in view of the prevalence of the objectionable practice of not recording the first information reports at the police stations, because the Thanedar conveniently happens to be present somewhere in the vicinity, the inference is unavoidable that in fact the c first information report was recorded at the place of occurrence after preliminary investigation." A similar view was expressed in the case of Allah Bakhsh v. The State (1969 PCr.LJ 1204-Lahore).
According to F.I.R., the complainant, his deceased brother Zafar Iqbal and Bashir Ahmad/P.W. Along with Azmat Hussain were going towards Lorry Adda and while they were at Phalia Road and Zafar Iqbal and Azmat Hussain were ahead of the party, the accused surprised them. Sikandar and Mumtaz (both asconders) came on a motor cycle, while Inayat, Mushtaq, Sultan, Riaz and Shabbir- appellant reached the spot on a car. All the accused were armed with fire arms. Mumtaz-accused fired from .12-bore gun which hit on the left flank of the deceased, while Sikandar who was also armed with a .12-bore gun caused fire which hit on the left side of the neck of the deceased who fell down. Thereafter the accused including the appellant who were in a car came out of it and started firing at Zafar Iqbal. The fire caused by Shabbir appellant hit on the back of the right shoulder of the deceased. The two accused who were not known to the P.Ws. And were also armed, also caused firing. However, no specific injury was attributed to them. It was mentioned in the F.I.R. That out of the fires caused by the accused one hit to Shaukat, a passer-by, who got injured. In this detailed F.I.R., no injury on the right buttock/hip of the deceased was mentioned, while according to medical evidence, injury No.4 consisted of nine fire-arm entry wounds going deep into the right hip with exist wounds. Had the P.Ws. Been present at the time of occurrence, they would not have missed narrating the injury on the hip of the deceased. Both the P.Ws. Made dishonest improvements before the learned trial Court in order to bring their statements in conformity with medical evidence. According to F.I.R., the fire caused by Sikandar hit on the left side of the neck of the deceased. During trial it was stated that the fire caused by Sikandar hit on the back of Zafar Iqbal and made its exist from the left side of neck. An improved statement was also made about firing of Mumtaz by stating that the fire caused by him hit the deceased on left flank on the front side. It was not mentioned in the F.I.R. That the fire hit from the front side and the modified statement was made before the learned trial Court after going through medical evidence, according to which injury No.3 was entry wound going deep into the chest over front and middle part of left side of the chest below left nipple with exit wound three numbers over the back. The witnesses also made dishonest improvement by attributing the hip injury to Muhammad Inayat (acquitted co-accused) and by attributing the injury of Shaukat to Mushtaq (acquitted co-accused). Needless to say that the witnesses were duly confronted with their earlier statements. Both the P.Ws. Have also contradicted each other on material points. The exact time of occurrence was not given in the F.I.R., wherein it was stated that the occurrence had taken place afternoon. The complainant in his statement before the learned trial Court stated that it was 12-30 p.m. When he along with his deceased brother and P.Ws. Came out of his house, while Bashir Ahmad/P.W.3 stated that he left his house at about 11-15/11-30 a.m. And he was coming out of his house per chance when Zafar Iqbal and Jhanga met him. The colour, make and registration number of car or motorcycle were not mentioned in the F.I.R. Both the witnesses improved their statements on that regard before the learned trial Court and were duly confronted by their earlier H statements. There is no explanation available on the record as to why the complainant remained in his house on the fateful day till 12- 30 p.m., as, according to him, he owned two buses which used to ply between village Gohar and Mandl Bahauddin. In normal circumstances he should reach the bus stand in early hours of the morning. The complainant also claimed that Zafar Iqbal deceased was Headmaster who was posted at Government Iqbal High School in Chak No.14. In that case, the deceased should have been in his school and not in the house of the complainant. P.W.3, at the time of occurrence, was working as Chashier in Muslim Commercial Bank, Mandi Bahauddin Branch. Obviously, he should have been in the bank at the time of occurrence and not with the complainant and the deceased.
So he came out with a novel explanation. According to him, he had gone to the bank in the morning on the fateful day. However, before the occurrence he went back to his house after obtaining short leave, as he had received information that his wife was not feeling well. So after receiving the information at about 9-30 a.m. He went to his house on the motorcycle and had been arranging for a doctor. He knew it that according to prosecution case, he, complainant and the deceased were on foot, so he came out with the explanation that he gave the motorcycle to some relative to lake the doctor back to his clinic and he himself proceeded towards the bank on foot. He further stated that the motor cycle did not belong to him and was borrowed from some one when he was going to his house. During cross-examination he firstly stated that he went to the bank and told his friend that the motor cycle would be returned. Then he shifted and stated that he had requested his friend on the telephone. He further modified his statement by stating that he did not go to the bank and only informed on the telephone. Knowing fully well that his going to the bank did not fit in the story being an eye-witnesses. The accused were equally inimical towards the complainant and P.W.3 and in case the eyewitnesses had been there, the accused would not have spared them. Both the P. Ws. During trial attributed specific injury on the hip of the deceased to Muhammad Inayat. They were disbelieved and Muhammad Inayat was acquitted. No appeal has been filed against his acquittal. In the above noted circumstances, Ghulam Shabbir appellant can be convicted only on the basis of very strong independent corroboratory evidence which is lacking in this case. As already noted above, medical evidence does not support the prosecution case, as injury on the hip of the deceased was not mentioned in the F.I.R. At all and subsequently, the witnesses dishonestly modified their statements to bring the same in conformity with the medical evidence. The learned counsel for the complainant has submitted that injury No.3 was specifically attributed to the appellant but it would not advance the prosecution case, as the witnesses had not been telling the whole truth and were disbelieved qua the other accused. The medical evidence only states about the seat of injury but not to the assailant who cause it. The accused after his arrest remained in police custody for fourteen days but no recovery was affected from him nor, any empty was recovered from the scene of occurrence.
10. The motive in this case like a double edged sword cuts both ways; it could be the reason behind the occurrence and it could also be the reason for involving the accused. The motive was a4so available against the rest of, the accused who have been acquitted ; hence, no reliance can be placed on the motive as against the appellant.
11. The defence plea taken by the appellant that on the fateful day he along with Inayat had gone to village Chanhot District Jhelum to the house of one Anar, whose daughter had died, for condolence, finds support from the statement of Manzoor Hussain Shah, retired Inspector/P.W.7, who admitted during cross-examination that Anar and other villagers appeared before him in support of the plea taken by the appellant. There is no evidence against the appellant that he was proclaimed absonder.
12. In the above noted circumstances, in our opinion, the case of the prosecution against Ghulam Shabbir 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 the appellant. He is acquitted of all 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.