' MUHAMMAD AHSAN BHOON, J.---This judgment shall dispose of Criminal Appeal No. 178 of 2002 filed by Khalid alias Khala son of Hatam Ali and Muhammad Arshad alias Kaka son of Nazir Ahmad and Criminal Appeal No.182 of 2002 filed by Muhammad Ahsan son of Atta Muhammad as both arise out judgment, dated 29-1-2002 passed by the learned Additional Sessions Judge, Gujrat.
2. The appellants through the above said appeals have challenged their convictions and sentences recorded by the learned Additional Sessions Judge vide his judgment, dated 29-1-2002, whereby the appellants Muhammad Ahsan and Khalid. Alias Khala were convicted under section 302(b), P.P.C. And sentenced to death on two counts along with compensation of Rs.1,00,000 each to be paid to the legal heirs of the deceased and in case of default to undergo S.I. For two years each while Muhammad Ashraf was convicted under section 302(b), P.P.C. And sentenced to undergo imprisonment for life on two counts along with compensation of Rs.50,000 to be paid to the legal heirs of the deceased and in case of default to undergo S.I. For one year in case F.I.R.
No.62, dated 9-2-2000 offence under sections 302/148/149, P.P.C. Registered at Police Station, Saddar Gujrat.
3. Apart from the above appeals, the learned trial Court has submitted Murder Reference No.521 of 2004 for confirmation of death sentences of Mohammad Ahsan and Muhammad Khalid alias Khala as required under section 374, Cr.P.C.
4. The prosecution case in brief as contained in the F.I.R. Is that on 8-2-2000 at about 7-00 p.m.
Khalid alias Khala son of Hatam Ali Caste Jat Gondal resident of Lala Chowk came to Shaheen Chowk at the Dera in order to meet Zahid Ullah, brother of the complainant, and asked him that at 8-30 p.m. Tonight he (Zahid Ullah) and other friends were invited at Khalid's house where all friends would be gathered; that now he ought accompany him to village Jamna for inviting Nasrullah son of Ata Muhammad; that then Zahid Ullah brother of the complainant accompanied Khalid alias Khala and they proceeded to village Jamna; that at about 9-00 p.m. When the complainant was available in his home in the village Lala Chak and his uncle Nazar Muhammad had also come in his home where his cousin Nawaz came and informed that in the Bethak of Khalid alias Khala, Zahid Ullah brother of the complainant and Nasrullah resident of Jamna along with three four other persons was present and busy in eating and making noise and sometimes they also abused each other, and they be asked not to do so and they should behave like gentlement and sit like respected people; that the complainant, Nazar Muhammad and Muhammad Nawaz went to the house of Khalid alias Khala and found Khalid alias Khala, Zahid Ullah, brother of the complainant, Nasrullah resident of Jamna and 3/4 others (who can be recognized if brought before him) sitting in the Bethak of Khala and were eating and raising noise who were forbidden by the complainant party and then came back ;that Zahid Ullah brother of the complainant did not come back during the whole night; that on following day i.e. 9-2-2000 at 7-00 a.m. Asmat Ullah son of Ata Ullah and Mansha Ullah son of Ghulam Muhammad caste Jat resident of Jamna came to his house and informed him that on the road/soiling leading towards village Lala Chak, Zahid Ullah and Nasrullah were lying dead smeared with blood in front of the plot situated in Kashmir Colony; that the complainant along with others reached near the dead bodies and saw that his brother Zahid Ullah and Nasrullah residents of Jamna, both were lying dead smeared with blood on the soiling and near to their dead bodies Motorcycle No.JMB/9007 CD 70 Honda red colour was also lying on the ground; that Zahid Ullah and Nasrullah were murdered by Khalid alias Khala and his companions for some unknown reasons.
5. After due investigation report under section 173, Cr.P.C. Was submitted in the learned trial Court Charge was framed against the appellants who denied of the charge, pleaded not guilty and claimed trial. The prosecution produced its evidence. The appellants were examined under section 342, Cr.P.C. Neither they did opt to appear as their own witnesses in disproof of the allegation levelled against them as required under section 340(2), Cr.P.C. Nor did they adduce defence evidence. In answer to question No.11 appellant Khalid alias Khala stated as under:-- "I am innocent and falsely involved due to suspicion. The deceased were in the habit of using intoxicants and during odd hours of the night they were killed by some unknown persons."
' In answer to question No.11 Muhammad Ashraf alias Khala appellant stated as under:-- "I am innocent, falsely involved in this case due to suspicion because of my friendship with Ahsan and Khalid alias Khala, co-accused. All the P.Ws. Are related inter se; nothing was recovered from me during investigation. The deceased used to take illicit liquor and at odd hours of the night when they were under the influence of liquor, some unknown assailants murdered them."
' In answer to question No.11 Muhammad Ahsan appellant stated as under:-- "I am innocent and falsely involved due to suspicion. The deceased were in the habit of using intoxicants who were done to death by unknown persons during odd hours of the night."
' The learned trial Court after hearing learned counsel for the parties passed the above said conviction and sentence, which is being assailed through these criminal appeals.
5A. The learned counsel for the appellants has contended that it was blind murder; there is no direct evidence for the murder of both the deceased Zahid Ullah and Nasrullah; that wajtakkar and last seen evidence was mere concoction and the same was self-contradictory; the motive alleged was farfetched and the same is also negated by the story of F.I.R. Itself as if accused and deceased had any dispute why they were sitting together allegedly in the Baithak of appellant Khalid alias Khala; that the evidence of recovery was planted one and report of Forensic Science Laboratory is of no avail to the prosecutor; that admittedly empties of alleged recovered .12 bore gun and rifle were sent together to the office of Forensic Science Laboratory.
6. On the other hand, learned DPG assisted by the learned counsel for the complainant has argued that there was no motive for false implication of the appellants in the case; that last seen and wajtakkar evidence was of confidence-inspiring and same was furnished through independent witnesses; that medical evidence is in line with the ocular account as different weapons of offence was used and that the weapon of offence were recovered at the instance, of the appellants and lastly prayed for dismissal of appeals.
7. We have heard the learned counsel for the parties, perused the record and scrutinized the evidence on record carefully.
8. Admittedly, there is no eye-witness of this occurrence. The whole case of the prosecution depends upon the circumstantial evidence. No motive has been alleged in the F.I.R. (Exh.PE) lodged by the complainant. However, later on, the motive was alleged that there was a A dispute of money matter between the appellants and the deceased but in the whole evidence of the complainant P.W.2. Azmat Ullah, brother of Zahid deceased, nothing surfaced in evidence that what kind of money dispute was between the appellants accused and both the deceased and particularly when they had no business transaction with each other nor had surfaced on the file that the appellants had given any amount to the deceased for some particular purpose or the same amount was ever demanded by the appellant from the deceased. Similarly, there is no evidence on record that as to whether anybody saw both the deceased or any of the deceased at the time of passing of money from the appellants-accused and even story of motive was an afterthought, hence bare reading of F.I.R. And statements of witnesses would show that both the deceased, according to the prosecution, had gone to the house of the appellant Khalid alias Khala on a dinner where other accused were present and they were busy in eating and drinking. They were also talking in a loud voice for which the complainant and Nazar Muhammad (P.W.1) asked them to behave in the manner and thereafter the witnesses came back. So if there had been any quarrel between the appellants and deceased then there was no justification for both the deceased Zahid Ullah and Nasrullah to join the appellants-accused. We can safely hold that the prosecution has failed to establish any motive for the alleged occurrence.
9. Evidence of last seen was furnished by Azmat Ullah, complainant (P.W.2), brother of the deceased Zahid Ullah and Nazar Muhammad (P.W.1), who is from brothery of the complainant, had seen both the deceased in the Baithak of the accused Khalid alias Khala along with other accused including the appellant Muhammad Ahsan and Muhammad Ashraf. In the F.I.R. Only appellant Khalid alias Khala was nominated as an accused. It was stated by Nazar Muhammad, (P.W.1) that all the accused appellants Khalid alias Khala, Ahsan, Muhammad Ashraf alias Kala and Sana Ullah were present there along with both the deceased and he admitted in his cross-examination that all the three accused were recognized by him as well as the complainant. If this was the position the complainant P.W.2 and Nazar Muhammad P.W.1 should have nominated the appellant Muhammad Ahsan and Muhammad Ashraf alias Kala as well as in the F.I.R., it was also stated by P.W.1 in his cross-examination that while sitting in the Bethak the accused as well as deceased were talking amicably in the very low tone and Khalid alias Khala accused was demanding money from the deceased but he also admitted this fact that no quarrel between them took place. There seems no justification that when there was any dispute between them then why the accused and deceased were enjoying dinner amicably. In the circumstances mentioned above the complainant as well as prosecution witnesses have failed to bring home guilt against the appellants accused beyond any shadow of doubt. We have no option but to disbelieve the story of prosecution given by the complainant as well as P.W.1., Azmat Ullah (P.W.2) complainant stated in his cross- examination that Tariq Mahmood and Aslam P.W. Told him to names of the accused. Tariq Mahmood appeared as P.W.3 but he did not utter a single word that he had ever told the complainant about the names of the accused. He further deposed that he was coming from the Dera along with Khalid P.W. And they saw Nasrullah and Zahid (both deceased) and Khalid appellant riding on motorcycle. They were going towards Lala Chak. This evidence of the prosecution is contra to the statement of P.W.2 Azmat Ullah, complainant, who stated that names of other accused were told to him by P.W.3 but he even not deposed about their presence along with the deceased. The version given by P.W.3 is also not believable and confidence inspiring when he admitted this fact that there was odd hours when he was coming from the Dera and there was no source of light where he saw both the deceased and Khalid appellant-accused. He also admitted this fact that he did not talk with the complainant with regard to the occurrence on that day nor afterwards. Similarly, his statement is contra to P.W.6 Muhammad Afzal, who was accompanying him as he further stated that it was about 9-00 p.m. When he saw both the deceased and Muhammad Afzal whereas Muhammad Afzal P.W.6 stated that it was about 8-00 p.m., whereas, as per statement of P.W.1 Nazar Muhammad and Azmat Ullah P.W.2 as well as in the F.I.R. Exh.PE both the deceased and the accused were present in the Bethak of appellant Khalid alias Khala till 9-00 p.m. As is evident from the F.I.R. Itself. The other witness namely Muhammad Aslam P.W.7 stated that it was 8-30 p.m. When one Muhammad Sharif resident of Jamna asked him to reach village Lala Chak and when they reached near Kashmir Colony they heard noise of some people and they were Zahid and Nasrullah, deceased and all three appellants Khalid alias Khala, Ahsan appellants were armed with rifle and 12 bore gun respectively. Same is also contra to the story of F.I.R. As well as statement of the complainant and even this P.W. Was unable to tell the name of son of said Muhammad Sharif because the purpose of company of Sharif was to get the employment of his son. This P.W. Stated that there was jungle and no sourc of light was available there. It was odd hours and nobody met them in the way. Relevant portion is re-produced below:-- "There was Jungle and no source of light and it was a dark night."
A The above mentioned facts would show that all the witnesses of last seen have contradicted to each other on material points i.e. About the time of occurrence as well as story of identification which could not be believed for the purpose of capital punishment.
10. Muhammad Latif appeared as P.W.8 who was the witness of wajtakkar and he deposed that he heard reports of firing from the eastern side of the village and they saw the accused running and on their inquiry they stated that they had no time and would tell him in the morning and on the next day P.W. Came to know about the murder of the deceased. This P.W. Admitted that on the next day when he came to know about the scene of occurrence the police had already reached at the scene of the occurrence. The complainant and the other P.Ws. Accompanied the dead bodies along with police. Evidence of Tariq Mahmood, P.W.3 is contradictory to the statement of P. W.8.
Muhammad Nawaz P. W.10, paternal cousin of the deceased Zahid Ullah tried to improve the story of motive and altercation between the deceased and appellants-accused on time of their presence in the Bethak of Khalid alias Khala in the company bf P.W.1 and P.W.2 but his statement also runs contra to the whole case of the prosecution as discussed above with regard to the statement of P.W.l_Nazar Muhammad and complainant P.W.2.
11. As far as evidence of recoveries is concerned Abdul Majeed P. W.11 admitted that he deposited two parcels of blood-stained earth, two parcels of rifle and gun and two parcels containing crime empties in the office of Chemical Examiner and Forensic Science Laboratory on 27-5-2000. He also admitted this fact that his statement was recorded on 27-5-2000. Admittedly, empties and rifle were deposited together. So I fabrication or tampering with cannot be ruled out particularly when accused had already been arrested on 12-3-2000 and 21-3-2000 respectively. Rifles and .12 bore gun, though were found wedded but are of no avail to the prosecution in the above situation.
12. As far as recovery of Motorcycle from the place of occurrence is concerned, during the investigation it did not surface on file that who was the owner of said Motorcycle P.3., which was taken into possession, vide recovery memo. Exh. P. D. Whether the motorcycle belonged to any of the deceased or the accused, does not furnish any corroboration to the case of the prosecution. As far as recovery of blood-stained earth is concerned, the place of occurrence is not disputed in the present case. So there is no need to dilate upon this piece of evidence.
13. Medical evidence does show that both the deceased died unnatural death but the injuries caused to them itself do not speak that the same were caused by some particular individual when occurrence was unseen and story given by the prosecution witness i.e. Last seen and wajtakkar was self contradictory to each other and demolishing the whole case of the prosecution. We may observe that in case of circumstantial evidence the evidence produced must be in geometrical progression, and the chain of evidence from one side, it should be touching to the dead bodies and from other it should be touching to the neck of the accused and if the one ring from chain is missing then the whole case would fall on the ground and for the purpose of conviction and sentence in a case of capital punishment there must be strong corroboration regarding each and every fact particularly in a case of circumstantial evidence but in the instant case we have found that the whole evidence is contradictory on all material points as discussed above, and even not one link is connected to other one. So we can safely hold that the prosecution has failed to establish its case beyond any shadow of doubt against all three appellants.
14. For what has been discussed above, these appeals are allowed and conviction and sentence recorded by the learned Additional Sessions Judge, Gujrat vide his judgment, dated 22-1-2002 is set aside and the appellants namely Khalid alias Khala, Muhammad Ashraf and Muhammad Ahsan are acquitted of the charge by giving them benefit of doubt. They are in custody.. They shall be released forthwith if not required in any other case.
' Murder Reference is answered in negative