' ASIF SAEED KHAN KHOSA, ],-Muhammad, Abbas Mubarik All and Muhammad Imran alias Mamu appellants were convicted for an offence under section 302(b), P.P.C., read with section 149, P.P.C.
Vide judgment, dated 6-7-2002, rendered by the learned Additional Sessions Judge, Gujranwala and were sentenced to death each and to pay a sum of Rs,1,00,000 each to the heirs of Ghulam Hussain 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 each. Through the same judgment Muhammad Iqbal appellant was also convicted for an offence under section 302, P.P.C. Read with section 149, P.P.C. And he was sentenced to imprisonment for life. The learned trial Court had further convicted Muhammad Abbas, Mubarik Ali, Muhammad Imran alias Manu, Muhammad Iqbal, Muhammad Ashraf, Muhammad Khalid, Hamid Nasir and Muhammad Shoaib appellants for an offence under section 148, P.P.C. And they were sentenced to rigorous imprisonment for one year each and a fine of Rs,2,000 each or in default of payment thereof to undergo simple imprisonment for three months each. The sentences of imprisonment passed against Muhammad Iqbal appellant were ordered to run concurrently and the benefit under section 382-B, Cr.P.C. Was extended to him. The learned trial Court had, however, acquitted the appellants' co-accused namely Saif Ullah. All the above mentioned appellants have challenged their convictions and sentences before this Court through Criminal Appeal No,1281 of 2002 whereas Muhammad Abid complainant has preferred Criminal Revision No,1041 of 2002 before this Court seeking enhancement of the sentences passed by the learned trial Court against Muhammad Iqbal, Muhammad Ashraf, Muhammad Khalid, Hamid Nasir and Muhammad Shoaib convicts. We have heard both these matters together along with Murder Reference No,533 of 2002 seeking confirmation of the sentences of death passed by the learned trial Court against Muhammad Abbas, Mubarik Ali and Muhammad Imran alias Manu appellants and we propose to decide all these mates together through the present consolidated judgment.
2. The prosecution's case unfolded in the F.I.R. Was that Muhammad Abid complaint was a resident of Qila Bhatian situated within the area of Police Station Tatlay Aali, District Gujranwala and was an agriculturist by profession. At about 2-00 p.m. On 26-12-1999 Muhammad Abid complainant and his brother namely Ghulam Hussain had gone to the Dera of one Muhammad Inayat Bhatti for the purpose of the collecting fodder for their cattle-head and when they reached the said Dera they saw that Mubarik Ali, appellant armed With a rifle .222 bore, Muhammad Khalid -appellant armed with a gun .12 bore, Hamid Nasir appellant armed with armed with a rifle 7 MM, Muhammad Abbas appellant armed with a rifle 7MM, Muhammad Iqbal appellant empty-handed, Muhammad Ashraf appellant armed with a gun .12 bore, Muhammad Shoaib appellant armed with a repeater gun and Muhammad Imran alias Manu appellant armed with a pistol .30 bore along with one unknown person armed with a rifle were sitting in their catle-shed with pre-concert. Upon seeing the complainant and his brother Muhammad Iqbal appellant raised a Lalkara that the complainant and his brother should not be spared alive. Thereafter, Muhammad Imran alias Manu appellant fired twice at the complaint's brother namely Ghulam Hussain which fires hit him on his right thigh.
Mubarik Ali appellant then fired a burst from his rifle .222 bore hitting Ghulam Hussain on the left side of his chest and right and left side of his abdomen and on his genitals. Upon receipt of those injuries Ghulam Hussain fell down and breathed his last at the spot. Thereafter, all the appellants and their co-accused resorted to incessant firing at the place of occurrence. The said incident had been witnessed by Muhammad Abid complainant, Haji Manzoor Ahmad and Allah Ditta and they raised hue and cry whereupon the appellants and their co-accused decamped from the spot while firing. The motive set up in the F.I.R. Was the ongoing litigation between the parties. It was alleged in the F.I.R. That the appellants and their unknown co-accused had committed the murder of Ghulam Hussain deceased with the abetment of one Dr. Saif Ullah. Leaving the dead body of his brother at the spot in the care of Haji Manzoor Ahmad and Allah Ditta P.Ws. Muhammad Abid complainant went to Police Station Tatlay Aali, District Gujranwala and lodged F.I.R. No,672 in respect of the above mentioned occurrence at 2-30 p.m. On 26-12-1999 for offences under sections 302/148/149/109, P.P.C.
3. The investigation of this case had been conducted by Muhammad Arshad, A.S.-I. (P.W.10), Imdad Hussain S.-I. (P.W.1) and Khurram Shakoor, A.S.P. (D.W.2). During the investigation the dead body of Ghulam Hussain deceased had been got subjected to post-mortem examination, the appellants and their co-accused namely Saif Ullah were arrested, different weapons of offences were recovered from the possession of some of the appellants and upon completion of the 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 three heads under sections 148, 302/149 and 302/109, P.P.C. Against the appellants and their co-accused to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced eleven witnesses in support of its case against the appellant and their co-accused. Muhammad Abid complainant (P.W.3) and Manzoor Ahmad (P.W.4) furnished the ocular account of the incident in question and also deposed about the motive, Muhammad Abid complainant (P.W.3) also stated about recovery of different weapons from the possession of some of the appellants. Faqir Muhammad (P.W.5) and Muhammad Ashfaq, FC (P.W.9) also deposed about the recoveries. The medical evidence was provided by Syed Shehzada Sohail, Record Keeper (P.W.8). Muhammad Arshad, A.S.-I. (P.W.10) and Imdad Hussain, S.- L (P.W.11) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature.
6. In their statements recorded under section 342, Cr.P.C. All the appellants other than Muhammad Abbas appellant denied ad controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. Muhammad Abbas appellant, however, advanced his own version of the incident issue and maintained that the had killed Ghulam Hussain deceased in exercise of his right of private defence. While answering to a question as to why he had been implicated in this cased and as to why the prosecution witnesses had deposed against him he had maintained as follows:-- ' "I have bee falsely involved in this case. The story narrated in F.I.R. By the complainant and P.Ws. In their statements was found false during investigation. The real facts of the case are that on the fateful day the deceased Ghulam Hussain armed with fire-arm along with some others and Abid Hussain complainant came at my dera armed with deadly weapons. At that time I was alone in my dera. The complainant party firstly started firing at my dera to kill me and I, in my self-defence, fired with my .12 bore gun. The deceased and Abid complainant along with others initiated the occurrence by firing and one fire shot of Abid complainant hit Imran alias Manu accused, who was injured and was taken by his father to THQ Hospital, Kamoke and from there he was referred to Mayo Hospital, Lahore. When the complainant party was firing at my dera, Nasir accused, who was the student of B.A., came at the dera and alighted from a wagon. When Nasir accused alighted from the wagon, Ghulam Hussain deceased, who was armed with fire-arm, fired at him, which was missed and he (Ghulam Hussain) tried to fire again on him, I fired with my .12 bore gun to save the life of Nasir and of my own life because Ghulam Hussain and Abid complainant along with others were firing at us and on our dera. If, I had not fired at Ghulam Hussain, he would have killed me and Nasir accused. I have committed no offence. I only fired to save my life and the life of Nasir accused. The complainant party was the aggressor. They firstly fire at our dera and injured Imran alias Manu and then in my self-defence and the defence of Nasir accused, I fired at the deceased.
During investigation, my first version was that, I fired at the deceased in my self-defence and in defence of Nasir accused.
' Mr. Khurram Shakoor, A.S.P./ S.D.P.O., Nowshera Virkan investigated the case from 12-8-2000 to 25- 10-2000. Both the parties appeared before him and he opined after through investigation that the complainant party was the aggressor and Imran alias Manu was injured by the fire of complainant party. He also opined that recovery from Imran alas Manu accused was fake. He opined that a cross-version case be registered against the complainant party. But with mala fide intention, the prosecution withheld the said P.W. And did not produce him during the trial. The other co-accused were not present at the spot. I did not repeat the shot.
' The complainant and the P.Ws. Are related inter se and they deposed against me and my co- accused due to previous enmity. The independent witnesses were also present at the time of occurrence but the prosecution did not produce them during the trial."
' The appellants and their co-accused opted not to make statements on oath under section 340(2), Cr.P.C, but they produced Dr. Nawazish Ali (D.W.1) and Khurram Shakoor, A.S.P. (D.W.2) in their defence. Dr. Nawazish Ali (D.W.1) had medically examined Muhammad Imran alias Manu appellant for his injuries soon after the occurrence and Khurram Shakoor, A.S.P. (D.W.2) had concluded his investigation of this case with a finding that the version of the incident advanced by Muhammad Abbas appellant was correct and that the said appellant had killed Ghulam Hussain deceased in exercise of his right of private defence. Khurram Shakoor, A.S.P. (D.W.2) had found that as a matter of fact it was the complainant party of this case which had aggressed against the accused party.
7. Upon conclusion of the trial the learned trial Court acquitted Saif Ullah accused but after finding the prosecution's case against all the appellants to have been proved beyond reasonable doubt it convicted and sentenced them as mentioned and detailed above. Hence, the present appeal/revision petition and the connected murder reference before this Court.
8. We 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 appellants that the prosecution had miserably failed to prove its version of the incident in issue and also that the version of the occurrence advanced by Muhammad Abbas appellant stood amply established on the record. They have, thus, maintained that the appellants are entitled to be acquitted by this Court. As against that the learned Deputy Prosecutor-General appearing for the State and the learned counsel for the complainant have maintained in unison that the prosecution had succeeded in establishing the appellants' guilt to the hilt and, therefore, their convictions recorded by the learned trial Court do not warrant any interference by this Court. The learned counsel for the complainant has gone on to submit that in the peculiar circumstances of this case the sentences passed by the learned trial Court against Muhammad Iqbal, Muhammad Ashraf, Muhammad Khalid, Hamid Nasir and Muhammad Shoaib appellants ought to be suitably enhanced 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 straightaway been noticed by us that the version of the incident advanced by Muhammad Abid complainant (P.W. 3) in the F.I.R. And by Manzoor Ahmad (P.W.4) in his statement recorded under section 161, Cr.P.C. Had squarely been contradicted by themselves when, holding a copy of the Holy Qur'an in their hands, they had made further statements during the investigation before Khurram Shakoor, A.S.P. (D.W.2) at a later stage. The said subsequent statement of Muhammad Abid complainant (P.W.3) had been brought on the record of this case as Exh.D.A. And the subsequent statement of Manzoor Ahmad (P.W.4) had been produced before the learned trial Court as Exh.D.B. And both the said eye-witnesses had been duly confronted before the learned trial Court with the said subsequent statements. In the F.I.R. Lodged by him Muhammad Abid complainant (P.W.3) had maintained that, it was only Mubarik Ali and Muhammad Imran alias Manu appellants who had effectively fired at Ghulam Hussain deceased but in Exh.D.A. He had made no mention of the said appellants or regarding their presence at the spot or a firing by them at the deceased. Likewise in Exh.D.B. Manzoor Ahmad (P.W.4) had also failed to specify and particular of specific injury caused to Ghulam Hussain deceased by Mubarik Ali and Muhammad Imran alias Manu appellants. The narration of the incident contained in the F.I.R.
Lodged by Muhammad Abid complainant (P.W.3) and in the statement made by Manzoor Ahmad (P.W.4) under section 161, Cr.P.C, was completely different from that contained in the statements of the said eye-witnesses brought on the record as Exh.D.A. and Exh.D.B. Such major contradictions in the earlier and the subsequent statements of these eye-witnesses regarding the self made incident have been found by us to be B sufficient to detract from the veracity of the eye-witnesses.
10. According to the prosecution Muhammad Abbas appellant had not caused any injury to Ghulam Hussain deceased and he had only resorted to ineffective firing whereas according to the statement made by Muhammad Abbas appellant under section 342, Cr.P.C. It was he alone who had injured and killed Ghulam Hussain deceased by firing at him in exercise of his right of private defence. A perusal of Exh.D.A. And Exh.D.B. Goes a long way in establishing that the version of the incident advanced by Muhammad Abbas appellant could well be true and that the occurrence in this case was not result of any premeditation but the situation on the ground had deteriorated at the spur of the moment and had taken an ugly turn wherein as a result of an aggression by Ghulam Hussain deceased against some members of the accused party Muhammad Abbas appellant could have resorted to firing at Ghulam Hussain deceased in exercise of his right of private defence. In this context we have noticed that according to the F.I.R. Itself it was the complainant party, including Ghulam Hussain deceased, which had gone towards the place where the accused party was already present peacefully. It is, thus, evident that it was not the accused party of this case which had launched a premeditated and concerted attack upon the complainant party. We have further observed that in the F.I.R. As well as during the investigation and even before the learned trial Court eye-witnesses produced by the prosecution had completely failed even to mention that Muhammad Imran alias Manu appellant had also received a fire-arm injury on his person during the same of occurrence, not to talk of explaining the circumstances in which the said appellant had received his fire-arm injury. Dr. Nawazish All (D.W.1) had confirmed the fact that the he had medically, examined Muhammad Imran alias Manu appellant within two hours of the alleged occurrence and had found a fire-arm injury on his chest.
The said fire-arm injury sustained by Muhammad Imran alias Manu appellant had been explained only by the defence and not by the prosecution. The sand taken by Muhammad Abbas appellant in his statement recorded under section 342, Cr.P.0 had substantially been confirmed by a Gazetted Police Officer conducting the investigation of this case, i.e, Khurram Shakoor, , A.SP. (D. W .2) who had found the complainant party to be the aggressor and the defence version to be true. In the circumstances of this case mentioned above we too have found that the version of the incident advanced by the defence' could be nearer the truth.
11. According to the prosecution Mubarik Ali appellant was armed with rifle 22z bore and Muhammad Imran alias Manu appellant was armed with pistol .30 bore and the shots fired by these two appellants had effectively hit Ghulam Hussain deceased. The prosecution itself maintains that all the other appellants had resorted to ineffective firing only. It is of critical importance to mention here that according to the post-mortem examination report (Exh. PJ) and the report of the Forensic Science Laboratory (Exh.PP) four lead pellets had been recovered from the dead body of Ghulam Hussain deceased. If claimed by the prosecution, Mubarik Ali and MUHAMMAD Imran alias Manu appellants were the only persons who had effectively fired at Ghulam Hussain deceased then instead of lead pellets some lead of bullets ought to have been recovered from the dead body of Ghulam Hussain deceased. Although the prosecution had alleged that Muhammad Abbas appellant was armed with a rifle 7 MM at the time of the alleged occurrence and he had resorted to ineffective firing from that weapon yet in his own statement recorded under section 342, Cr.P.C. Muhammad Abbas appellant had maintained that at the relevant time he was armed with a gun .12 bore from which he had effectively fired at Ghulam Hussain deceased in exercise of his right of private defence. Recovery of lead pellets from the dead body had provided some support to the stand of Muhammad Abbas appellant in that regard. Even on this score we find that there may be a real possibility of the defence version being true as against the prosecution's version which is contradicted by the medical evidence in the above mentioned respect.
12. For what has been discussed above we have arrived at an inescapable and irresistible conclusion that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. It is important to mention here that through his report, dated 4-9-2007 the Superintendent, Central Jail, Gujranwala has confirmed that Muhammad Abbas appellant had died inside the jail on 20-3-2005, Criminal Appeal No,1281 of 2002 has, thus, abated to his extent. To the extent of the remaining appellants the said appeal is allowed, their convictions and sentences recorded by the learned trial Court are set aside and they are acquitted of the charge by extending the benefit of doubt to them. Mubarik Ali and Muhammad Imran alias Manu appellants shall be released from the jail forthwith if they are not required to be detained in connection with any others case. The sentences passed by the learned trial Court against Muhammad Iqbal appellant had been suspended by this Court during the pendency of this appeal and the said appellant had been released on bail. His bail bonds and sureties shall stand discharged. We have been informed that Muhammad Ashraf, Muhammad Khalid, Hamid Nasir and Muhammad Shoaib appellants have already been released from the jail after serving out the sentences passed against them by the learned trial Court.
13. On account of acquittal of the relevant convicts recorded by us above Criminal Revision No,1041 of 2002 preferred before this Court by Muhammad Abid complainant has lost its relevance and the same is hereby dismissed.
14. Murder Reference No,533 of 2002 has become infructuous to the extent of Muhammad Abbas appellant on account of his death in the jail. However, to the extent of Mubarik Ali and Muhammad Imran alias Manu appellants the said murder reference is answered in the negative and the sentences of death passed against them by the learned trial Court are not confirmed.