' ASIF SAEED KHAN KHOSA, J.-Mandi appellant was convicted for an offence under section 302(b), P.P.C. Vide judgment, dated 9-5-2001 handed down by the learned Additional Sessions Judge, Sheikhupura and was sentenced to imprisonment for life and to pay a sum of Rs,1,00,000 to the heirs of Haider Ali 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 said appellant. Through the same judgment the learned trial Court had acquitted three co-accused of the appellant namely Mandi son of Salabat, Arif and Ijaz. Mandi appellant has challenged his conviction and sentence before this Court through Criminal Appeal No,826 of 2001 and Muhammad Sarwar complainant has preferred Criminal Revision No,285 of 2002 before this Court seeking enhancement of the sentence passed against Mandi appellant by the learned trial Court. Mazhar Iqbal appellant was declared to be a `child' for the purposes of the Juvenile Justice System Ordinance, 2000 and was separately tried in the same criminal case. He was also convicted for an offence under section 302(b), P.P.C. Vide judgment dated 26-11-2001 rendered by the learned Juvenile Court/Additional Sessions Judge, Sheikhupura and was sentenced to imprisonment for life and to pay a sum of Rs,1,00,000 to the heirs of Haider Ali 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 also extended to him. Mazhar Iqbal appellant has challenged his conviction and sentence liefore this Court through Criminal Appeal No,2005 of 2001 and Muhammad Sarwar complainant has filed Criminal Revision No,169 of 2002 before this Court seeking enhancement of the sentence passed against Mazhar Iqbal appellant by the learned trial Court. At the request of the learned counsel for the parties, and keeping in view the fact that all the above mentioned appeals and revision petitions have arisen out of the same criminal case, I have heard all these matters together and I proposed to decide the same together through the present consolidated judgment.
2. The prosecution's case unfolded in the F.I.R. Was that at about 03-00 p.m. On 19-2-1999 Muhammad Sarwar complainant and his brother-in-law namely Haider Ali were returning to their village along with their relatives namely Arif Ali and Sher Baz after purchasing an ox from a cattle- market in Khanqah Dogran when they were ambushed by Mandi and Mazhar Iqbal appellants and their two acquitted co-accused namely Arif and Ijaz at an open place near village Mian Ali Dogran, District Sheikhupura. According to the F.I.R. Ijaz accused raised a Lalkara that Haider Ali might not be spared and he ought to be taught a lesson for the ongoing enmity between the parties and thereafter, Mandi appellant fired a shot from his rifle .7-MM hitting Haider Ali on his left shoulder and making him fall on the ground. Mazhar Iqbal appellant then fired from his gun .12 bore at the back of Haider Ali. The complainant and the other witnesses, out of fear generated by the assault launched by the accused party, dived into a nearby canal and swam to the other side of the canal and hid themselves in bushes available on that side. It was alleged in the F.I.R. That the accused party had also fired at the complainant and the other witnesses as well as at Haider Ali when the complainant and the other witnesses were swimming towards safety but they remained unhurt by that firing. From the bushes available on the other side of the canal the complainant and the other witnesses saw that Arif and Ijaz accused were repeatedly twisting the neck of fallen Haider Ali and thereafter the appellants and their co-accused decamped from the spot while raising Lalkaras.
After the departure of the accused party the complainant and the other witnesses swam back to the place of occurrence and found Haider Ali to be dead. They noticed various injuries on his person and found the bone of his neck and his left shoulder to have been broken. Leaving the dead body of Haider Ali deceased at the spot in the care of Arif Ali and Sher Baz P.Ws. Muhammad Sarwar complainant proceeded to report the matter to the police and on the basis of his statement in respect of the alleged incident F.I.R. No,46 was registered at Police Station Khanqah Dogran, District Sheikhupura at 4-05 p.m. On the same day, i.e, 19-2-1999 for an offence under section 302, P.P.C. Read with section 34, P.P.C. During the investigation of this case section 109, P.P.C.
Was added to the F.I.R. As it had been maintained by the complainant party that the murder of Haider Ali deceased had been committed by the appellants and their acquitted co-accused namely Arif and Ijaz with the abetment of Mandi son of Salabat accused.
3. The investigation of this case conducted by Arshad Latif, Inspector (P. W.13), who visited the place of occurrence, got the dead body subjected to post-mortem examination, arrested the appellants and their co-accused, recovered some weapons from the custody of some of the accused persons and then completed the investigation. Subsequently a challan was submitted before the learned trial Court and still later the case of Mazhar Iqbal appellant was separated for trial by a Juvenile Court.
4. At the commencement of the trial a charge for offences under sections 302/ 34/109, P.P.C. Was framed against the appellant and their co-accused by the different Courts trying the appellants and their co-accused and the appellants and their co-accused had pleaded not guilty to the charge. During the trial of Mandi appellant and his three acquitted co-accused statements of thirteen witnesses produced by the prosecution were recorded by the learned trial Court. The statements of all the prosecution witnesses recorded in the trial of Mandi appellant and his three acquitted co-accused were adopted by the learned Juvenile Court in the trial of Mazhar Iqbal appellant and this was done with the consent and concurrence of all the parties. In their respective statements recorded under section 342, Cr.P.C. The appellants and their co-accused had denied and controverted all the allegations of fact levelled against them by the prosecution and had professed their innocence. The appellants and their co-accused had opted not to make statements on oath under section 340(2), Cr.P.C. And they did not produce any witness in their defence. At the conclusion of the trial the learned trial Court acquitted the appellants' co-accused namely Mandi son of Salabat, Arif and ljaz but, through their respective judgments passed in respect of Mandi appellant and Mazhar Iqbal appellant, convicted and sentenced the said appellants as mentioned and detailed above. Hence, the present appeals and the connected revision petitions before this Court.
5. I have heard the learned counsel for the parties and have gone through the record of this case with their assistance. The learned counsel for the appellants have maintained that the prosecution had miserably failed to prove its case against both the appellants whereas the learned counsel for the complainant and the learned counsel for the State have submitted that the prosecution had succeeded in establishing the appellants' guilt beyond reasonable doubt. The learned counsel for the complainant has further maintained that the sentences passed by the learned trial Court against both the appellants ought to be suitably enhanced by this Court.
6. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has straightaway been observed by me that both the eye-witnesses produced by the prosecution were not only closely related to Haider Ali deceased but they were also admitted inimical as well as chance witnesses. Muhammad Sarwar complainant (P.W.9) as well as Arif Ali (P.W.10) were brother-in-law of Haider Ali deceased and pitched enmity and blood feud between the parties is a fact which was admitted by both the parties to this case. In one of the murders committed in the ongoing blood feud between the parties Muhammad Sarwar complainant (P.W.9) had himself been convicted by the learned trial Court and was, thus, nothing but an inimical witness. On account of his close relationship with Haider Ali deceased and Muhammad Sarwar complainant (P.W.9) the interest and motivation against the accused party on the part of Arif Ali (P.W.iO) was also a forgone conclusion. Both the above mentioned eye-witnesses were residents of a place which was situated many kilometers away from the place of occurrence and they were indisputably chance witnesses who had B utterly failed to establish the reasons for their presence at the spot at the relevant time. It had been maintained by these eye witnesses that they had gone to a cattle market in Khanqah Dogran in the company of Haider Ali deceased, had purchased an ox from that market from one Ghulam Mustafa, had obtained a receipt in respect of such purchase and were returning to their village with Haider Ali deceased and the purchased ox at the time of the present occurrence. The record of this case, however, shows that it had never been proved before the learned trial Court that a cattle market was in fact held in Khanqah Dogran on the day of occurrence or that an ox had in fact been purchased by these witnesses or their companions in such a market. The seller of the ox namely Ghulam Mustafa had neither been associated with the investigation of this case nor was produced before the learned trial Court.
Although receipt in respect of the purchase of an ox had statedly been obtained by these witnesses but no such receipt had been made available on the record of investigation of this case nor any such any receipt was produced before the learned trial Court. These witnesses had claimed that they had travelled to the cattle market in a bus neither any passenger of that bus nor a ticket for the travel had been produced before the Investigating Officer or the learned trial Court.
No witness was produced during the investigation or the trial claiming to have seen these eyewitnesses in the cattle market on the day of occurrence. The Investigating Officer visiting the place of occurrence had never seen any ox to be available thereat and Arshad Latif, Inspector (P.W.13), the Investigating Officer, had stated before the learned trial Court in so many words that no evidence whatsoever had been produced before him by the complainant party confirming the visit of these eye witnesses to the cattle market or regarding purchase of an ox from such a market. I have, thus, felt no hesitation in concluding that the reason asserted by these eye- witnesses for their presence with Haider Ali deceased at C the place of occurrence at the relevant time had not been established at all through any independent material or evidence. It is also of significance to observe that these very eye-witnesses had alleged before the learned trial Court that two of the acquitted co-accused of the appellants namely Arif and Ijaz had actively participated in the alleged occurrence and had caused injuries to Haider Ali deceased but the said co-accused of the appellants had been acquitted by the learned trial Court and the ocular account furnished by these eye-witnesses qua them had been disbelieved and discarded by the learned trial Court. In that backdrop it is quite likely, nay quite probable, that these eye-witnesses were procured and planted by the prosecution at a subsequent stage and on account of the ongoing blood feud between the parties they had come forward and volunteered to pose themselves as eye-witnesses in this case. It may be of some relevance to mention here that Niamat Ali (P.W.6) had conceded before the learned trial Court that the dead body of Haider Ali deceased was taken from the place of occurrence to the police station and thereafter the dead body was shifted to the mortuary after registration of the F.I.R. In this view of the matter the locale of the injuries sustained by the deceased was visible to the police and the subsequently procured witnesses and the weapon of offence used for causing of such injuries was discernible making it easy for the police and such witnesses to cook up a story with specific attribution to different accused persons. In these circumstances the related, inimical and chance witnesses, who have already been disbelieved to the extent of three acquitted co-accused of the appellants, have failed to inspire my confidence and I have thought it prudent to look for independent corroboration of their statements made before the learned trial Court.
7. The motive set by the prosecution was pitched enmity and a blood feud between the parties and the said motive could surely cut both ways. It has, however, been significally noticed by me that the central character in the said motive from the side of the accused party was Ijaz, one of the acquitted accused in this case, and the present appellants had no direct connection with the said motive. It has been admitted before me by the learned counsel for all the parties that the present appellants were not directly or personally involved in any of the previous murder cases between the parties. It has intrigued me to notice that although Muhammad Sarwar complainant (P.W.9), having previously been convicted in one of the murder cases between parties and having a direct concern with the motive set up by the prosecution, was statedly available at the place of occurrence but he had conveniently been spared by the appellants and their co-accused. It has also been found by me to be rather curious that Ijaz accused, around whom the motive set up by the prosecution revolved, was allegedly personally present at the scene of the crime with a fire- arm yet he had not effectively used his fire-arm and had not caused any injury to any person during the occurrence. Be that as it may the fact remains that personal motivation on the part of the present appellants is a factor which has remained far from being established in this case.
8. The evidence produced by the prosecution. Through Haider Ali (P.W.11) regarding hatching of a conspiracy by the appellants and their co-accused to do away with Haider Ali deceased has already been discarded by the learned trial Court and three of the appellants' co-accused have already been acquitted by the learned trial Court after rejecting that aspect of the prosecution's case.
9. The ocular account available in this case had failed to receive corroboration from the recoveries allegedly affected from the accused party. It had been alleged in the F.I.R. And it had been deposed before the learned trial Court by the eye-witnesses that Mandi appellant was armed with a rifle 7- MM at ' the time of the alleged murder but during the investigation a gun .12 bore had been recovered from his possession. No weapon had been recovered from the possession of Mazhar Iqbal appellant during the investigation of this case. It is admitted at all hands that no crime- empty had been recovered from the place of occurrence and, thus, the weapon allegedly recovered from the possession of Mandi appellant had F remained unconnected with the alleged murder. It is also not disputed that the gun allegedly recovered from Mandi appellant's possession had never been sent to the Forensic Science Laboratory so as to establish that it was in working order. The F recoveries of weapons in this case were, thus, legally inconsequential.
10. Instead of providing support to the ocular account the medical evidence produced in this case had irretrievably shaken and destroyed the credibility of the ocular account. The eye-witnesses had consistently deposed before the leaned trial Court that Mandi appellant had caused fire-arm injury on the left shoulder of Haider Ali deceased but the post-mortem examination of the dead body had established that the injury sustained by the deceased on his left shoulder was an exit wound. The eye-witnesses had attributed one fire-arm injury on the back of Haider Ali deceased to Mazhar Iqbal appellant but Dr. Shaukat Hayat (P.W.1) had found two entry wounds on the back of the deceased and one entry wound on the left elbow joint of the deceased. Thus, at least one fire- arm injury on the back of the deceased and one on his left elbow joint had remained unaccounted for by the prosecution. It had been mentioned in the F.I.R and the eyewitnesses had consistently deposed before the leaned trial Court that Arif and Ijaz accused had repeatedly twisted the neck of Haider Ali deceased and the eye-witnesses had found the bone of the deceased's neck and his left shoulder to have been broken but during the post-mortem examination of the dead body no such injury had been found by the doctor. It has also been noticed by me that the occurrence in this case had taken place at 3-00 p.m. On 19-2-1999 and, according to Niamat Ali (P.W6), soon thereafter the dead body of the deceased had been removed to the police station but still the post-mortem examination of the dead body was carried out on the next day, i.e, 20-2-1999. There is no explanation available on the record as to why such a delay in conducting the postmortem examination had been occasioned. It may also be relevant to mention here that Dr. Shaukat Hayat (P.W.1) had noticed blackening around all the three injuries found on the dead body of Haider Ali deceased whereas Muhammad Riaz, Draftsman (P.W.3) had stated before the learned trial Court that the place from where the accused party had fired at the deceased was situated fourteen feet away from the deceased and, thus, even on this score the medical evidence had contradicted the ocular account.
11. For what has been discussed above a conclusion is irresistible that the prosecution had utterly failed to prove its case against Mandi and Mazhar Iqbal appellants beyond reasonable doubt as the related, inimical and chance eye-witnesses produced by the prosecution, who had already been disbelieved and discarded by the learned trial Court in respect of three acquitted co- accused of the present appellants, had failed to receive corroboration from any independent source so as to convince this Court to place implicit reliance upon their testimonies for holding the appellants to be guilty of the charge. Criminal Appeal No,826 of 2001 filed by Mandi appellant and Criminal Appeal No,2005 of 2001 filed by Mazhar Iqbal appellants are, therefore, allowed, the convictions and sentences of these appellants recorded by the learned trial Courts through their respective judgments are hereby set aside and both the said appellants are acquitted of the charge. They shall be released from the jail forthwith if not required in any other case. As a necessary corollary to the conclusions arrived at above Criminal Revision No,285 of 2002 and Criminal Revision No,169 of 2002 are hereby dismissed.