' ASIF SAEED KHAN KHOSA, J.-Javed Akhtar appellant was convicted for an offence under section 302 (b), P.P.C. Vide judgment dated 5-6-2003 handed down by the learned Sessions Judge, Mianwali and was sentenced to imprisonment for life and to pay sum of Rs,2,00,000 to the heirs of Muhammad Ilyas Khan 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 has challenged his conviction and sentence before this Court through Criminal Appeal. No, 1067 of 2003 which has been heard by me along with Criminal Revision No,669 of 2003 preferred by the complainant seeking enhancement of the convict-appellant's sentence. I propose to decide both these matters together through the present consolidated judgment.
2. The prosecution's case unfolded in the F.I.R. Was that on 11-1-2001 Alam Sher Khan complainant, his nephew namely Muhammad Ilyas Khan and the latter's mother namely Mst. Bakht Bhari were proceedings from Wan Bachran on a taxi-car towards their Dera Baigu Khelan Wala and upon reaching a graveyard near the said Dera they got down from the taxi-car and started walking on a soling road towards their Dera. When at about 4-00 p.m. They reached near the Dera of Saleem Akhtar Baigu Khel suddenly Javed Akhtar appellant, armed with a pistol 30 bore, emerged from a bush behind which he had concealed himself and raised a lalkara that he had come to avenge his insult. The appellant then fired from his pistol at Muhammad Ilyas Khan hitting him under his left armpit. The appellant then fired successive shots at Muhammad Ilyas Khan hitting the latter on his front chest, right of front chest, back, lower side of back and left wrist. Upon receipt of those injuries Muhammad Ilyas Khan fell down. The hue and cry raised by the complainant, etc. Attracted Hafeez Ullah Khan to the spot as he was available nearby and he too witnessed the said occurrence along with the complainant and Mst. Bakht Bhari. The complainant and the other two witnesses did not go near the appellant and the deceased on account of fear. Thereafter the appellant ran away from the spot. The motive set up in the F.I.R. Was that about two months prior to the said occurrence Muhammad Ilyas Khan had insulted the appellant and had also given him a beating.
The complainant then arranged a vehicle and was taking Muhammad Ilyas Khan in an injured condition to District Headquarters Hospital, Mianwali but Muhammad Ilyas Khan succumbed to his injured on the way and died. The complainant then took the dead body of the Muhammad Ilyas Khan to police station Musa Khel, District Mianwali and lodged F.I.R. No,6 thereat at 5-00 p.m. On the same day for an offence under section 302, P.P.C.
3. After registration of this case the investigation of the same was conducted by Ata Ullah, S.-I.
(P.W.11) who got the dead body subjected to post-mortem examination, visited the spot, collected the blood-stained earth therefrom, recorded the statement of witnesses and later on arrested the appellant and recovered a pistol from his possession. After completion of investigation a challan was submitted before the learned trial Court.
4. At the commencement of the trial the learned trial Court framed a charge with one head under section 302, P.P.C. Against the appellant to which he pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced eleven witnesses in support of its case against the appellant. The ocular account was furnished by Alam Sher Khan complainant (P.W.9) and Hafeez Ullah Khan (P.W.10) who also deposed about the motive. Ata Ullah, FC (P.W.6) proved the recovery of a pistol from the appellant's possession during the investigation of this case. Dr. Mehr Khan (P.W.4) provided the medical evidence. Ata Ullah, S.-I (P.W.11) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
6. In his statement recorded under section 342, Cr.P.C. The appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. He opted not to make a statement on oath under section 340(2), Cr.P.C. And also did not produce any witness in his defence. However, he produced some documents in evidence before the learned trial Court.
7. At the conclusion of the trial the learned trial Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt and, thus, the appellant was convicted and sentenced 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 eyewitnesses produced by the prosecution were related, inimical and chance witnesses who had failed to receive any independent corroboration and, thus, the prosecution had failed to prove its case against the appellant beyond reasonable doubt entitling him to acquittal. As against that the learned counsel for the State as well as the learned counsel for the complainant have argued that the occurrence in this case had taken place in broad-daylight and the F.I.R. In respect of the same had been lodged with reasonable promptitude wherein the appellant had specifically been nominated as the sole perpetrator of the murder in issue. They have further maintained that the consistent ocular account produced by the prosecution had received ample support from the medical evidence and, therefore, the learned trial Court was quite justified in finding the prosecution's case against the appellant to have been proved to the hilt. The learned counsel for the complainant has gone on to argue that in the circumstances of this case the sentence passed by the learned trial Court against the appellant warrants suitable enhancement by this Court.
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 in broad-daylight and the F.I.R. In that respect had been lodged with sufficient promptitude wherein the present appellant had been nominated as the sole perpetrator of the alleged murder. It is true that substitution of the real culprit is a rare phenomenon but at the same time it cannot be lost sight of that the question of substitution becomes relevant when there is no doubt about the presence of the eye- witnesses at the scene of the crime at the relevant time. In the case in hand I have found a number of circumstances rendering the claimed presence of the eyewitnesses at the spot at the time of the occurrence quite doubtful and, thus, the question of substitution pales into irrelevance in this case.
10. The prosecution had produced two eyewitnesses before the learned trial Court, i.e, Alam Sher Khan complainant (P.W.9) and Hafeez Ullah Khan (P.W.10). Both the said eyewitnesses were not only related and interested witnesses but they were also chance witnesses who had failed to advance any plausible explanation for their presence at the place of occurrence at the relevant time. Alain Sher Khan complainant (P.W.9) was a paternal uncle of Muhammad Ilyas Khan deceased and Hafeez Ullah Khan (P.W.10) was a paternal cousin of the complainant besides being a cousin of the deceased's father. They were, thus, both very clearly related to the deceased. The documents available on the record as Exhibit-DB, Exh.DC, Exh.DD and Exh.DE show that the parties to this case are related to each other and they had remained locked in civil litigation over the matter of inheritance of their ancestral property. Apart from that the documents available on the record as Exh.DBB, Exh.DCC, Exh.D1 and Exh.DJ establish that the parties to this case had also remained locked in different murder cases involving the appellant's father on the one side and some close relatives of the above mentioned eyewitnesses on the other. In that backdrop of strained, bitter and stressed relations between the appellant's immediate family and the eyewitnesses produced by the prosecution since the year 1976 the latter could well be termed as interested of inimical witnesses.
Both the said eyewitnesses were also admittedly chance witnesses as the places of their residence were situated far away from the place of occurrence and the reasons advanced by them for their presence at the spot at the time of the present occurrence had remained far from being established. Alam Sher Khan complainant (P.W.9) had maintained that on the day of occurrence he had gone to Wan Bhachran with the deceased and he had hired a taxi-car to return to his village along with the deceased and at the time of the alleged occurrence he had already alighted from the taxi-car and was proceeding to his village along with the deceased on foot. However, either during the investigation or during the trial, the complainant had completely failed to advance any reason for his going to Wan Bhachran on the day of occurrence along with the deceased. He had failed to describe the taxi-car hired by him for the purpose and had also failed to identify or to produce their driver of that taxi-car. It is settled law that a chance witness can be believed by a Court only if he satisfies the Court about C the reason for his availability at the spot and not otherwise. The position of Hafeez Ullah Khan (P.W.10) on this score Is not different from that of the complainant. Hafeez Ullah Khan (P.W.10) was also a chance witnesses and he had claimed that at the relevant time he was proceeding towards a turbine but he too had failed to advance any reason for his proceeding to the turbine at the relevant time and had also failed to produce any witness, either during the investigation or during the trial, to substantiate his claim in that regard. The statements of Hafeez Ullah Khan (P.W.10) and Muhammad Khalid Hussain Shah, Patwari (P. W.3), when read with the rough and formal site-plans of the place of occurrence prepared in this ease, show that the turbine towards which this witness was statedly proceeding at the relevant time was situated towards the north of Link Chhidru Road whereas the place of occurrence was situated towards the South of Link Chhidru Road. According to the evidence available on the record the occurrence had taken place about four furlongs away from Link Chhidru Road towards its South. In view of such evidence being available it was physically impossible for this witness to have seen the occurrence taking place at the spot. In this view of the matter the explanation advanced by this witness for his presence at the place of occurrence and for his witnessing the same was not only improbable but the same had also remained unsubstantiated through any independent evidence. All this has convinced me that the eyewitnesses produced in this case were related, interested and chance witnesses whose explanations for their presence at the place of occurrence were neither readily D acceptable nor the same had been established independently and that these witnesses could have been procured and planted in this case at a subsequent stage. This conclusion puts me on caution and call for independent corroboration of the statements of these eyewitnesses before they can safely be relied upon in this case involving a capital charge.
11. There are many circumstances available in this case which indicate that the claim of the eye- witnesses regarding their witnessing the occurrence in issue may not be correct. For insistence, both the eyewitnesses had claimed before the learned trial Court that there were cotton/wheat crops near the place of occurrence which claim was proved on the record to be unfounded.
Muhammad Khalid Hussain. Shah, Patwari (P.W.3) had stated before the learned trial Court in clear terms that there was absolutely no crop available at or near the place of occurrence. Khasra Girdawries available on the record as Exh.DF and Exh.DH also confirm the said factual aspect of the matter. This shows that the eye-witnesses knew very little about the place of occurrence. It has also been noticed by me that both these witnesses had maintained that the culprit firing at the deceased had used a pistol. 30 bore but the document available on the record as Exh.DEE shows that some empty cartridges had been recovered by the police from the place of occurrence. It is common knowledge that a pistol. 30 bore does not emit a cartridge. This also indicates that the eyewitnesses produced by the prosecution might not have witnessed the occurrence at all. It is significant importance to mention here that according to the F.I.R. The appellant had fired six effective shots at the deceased and each one those shots had actually hit the deceased at different specified part of his body. If this were to be so then the deceased ought to have received at least six entry wounds. The medical evidence, however, contradicted the F.I.R. In that regard.
According to Dr. Mehr Khan (P.W.4) the deceased had received only four entry wounds. During the trial both the eyewitnesses changed their original version in that regard and maintained that the deceased had received four effective shots and the locale of the relevant injuries had been specified by them before the learned trial Court. When their statements in that respect are compared with the medical evidence they are once again established to be false inasmuch as some of the injures stated by them are shown by the medical evidence to be exit wounds. Thus, instead of providing support to the ocular account the medical evidence produced by the prosecution in fact contradicted the eye- witnesses and rendered their claim regarding witnessing the occurrence further doubtful. As if they were not enough even some memoranda prepared by the Investigating Officer soon after the occurrence tends to show that till after the occurrence it was not known as to who had committed the murder of Muhammad Ilyas Khan deceased. Exh.PG regarding securing of blood-stained earth from the place of occurrence, Exh.PE in respect of receiving the last-worn clothes of the deceased after the post-mortem examination and Exh.PJ, the rough site-plan of the place of occurrence prepared by the Investigating Officer during his first visit to the spot, shows that the space against `13anam) in all those memoranda had been left vacant.
All those memoranda had been prepared by the Investigating Officer soon after reporting of the matter by the complainant party to the police and if the F.I.R. In this case had been recorded prior to such visit of the Investigating Officer to the spot and if the appellant had actually been nominated before the police straightaway then there was no earthly reason for the Investigating Officer for not putting the appellant's name in those memoranda against the word of `Banam'. This factor also goes a long way in creating an impression in my mind that the occurrence in this case had taken place in the absence of any eyewitnesses and at the initial stages the culprit had remained unidentified and unnamed. This factor further detracts from the veracity of the eyewitnesses produced in this case by the prosecution.
12. The motive set up by the prosecution had remained far from being established and it has not surprised me to learn that the learned trial Court had disbelieved and discarded the motive. It had been alleged by the prosecution that about two months prior to the present occurrence Muhammad Ilyas Khan deceased had insulted the appellant and had given him a beating and the appellant had killed the deceased in order to avenge that insult. Before the learned trial Court both the eyewitnesses had also deposed about the motive but they had never claimed to have themselves witnessed the incident forming the motive. No detailed particular of the alleged incident of motive had been specified by the complainant in the F.I.R. And no witness of the said alleged incident had been produced either before the police or before the learned trial Court. It has been argued before me by the learned counsel for the complainant that the civil and criminal litigation between the parties was quite old 'and the said disputes had ended long ago and, thus, the eyewitnesses produced in this case had no reason to falsely implicate the appellant in the present case. This argument can conveniently be turned around to observe that if the earlier disputes between the parties already stood settled long ago and if the alleged immediate cause of annoyance to the appellant had remained unproved then there was no occasion for the appellant to kill Muhammad Ilyas Khan deceased. Be that as it may, the fact remains that the ocular account in this case had failed to receive any corroboration from the motive.
13. The alleged recovery of a pistol and five live bullets from the possession o the appellant during the investigation of this case was legally inconsequential because the pistol so recovered was never sent to the Forensic Science Laboratory for its matching with any crime-empty. The prosecution, thus, could not connect the said pistol with the alleged offence. In these circumstances the alleged recovery could not provide any corroboration to the ocular account.
14. It has already been observed above that instead of providing sufficient to the ocular account the medical evidence produced by the prosecution had gone a long way in discrediting the credibility of the ocular account.
15. The discussion made above shows, and shows quite clearly, that the eyewitnesses produced by the prosecution were related, interested and chance witnesses and they had failed to receive corroboration from any independent source. I have, therefore, found it to be extremely unsafe to rely upon such evidence produced by, the prosecution so as to uphold and maintain the appellant's conviction and sentence recorded by the learned trial Court. Criminal Appeal No,1067 of 2003 is, therefore, allowed, the conviction and sentence of the appellant recorded by the learned trial Court are set aside and the appellant is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required in any other case.
16. For the reasons recorded above Criminal Revision No,669 of 2003 is dismissed: