Muhammad Ahsan Bhoon, J.--Muhammad Akram, appellant has assailed the judgment dated 21.10.2002 passed by the learned Sessions Judge, Faisalabad convicting him under Section 302(b)
PPC to suffer death sentence and to pay compensation of Rs, 1,00,000/- to the legal heirs of the deceased Abid Hussain as required under Section 544A, Cr.P.C, in default whereof to undergo S.I., for six months, while Akbar, Shamman, Muhammad Nawaz and Soba were acquitted by the learned trial Court vide same judgment by extending them benefit of doubt in case FIR No, 135 dated 23.02.2001, offence under Sections 302/148/149 PPC registered at Police Station, Satiana District Faisaiabad.
2. Apart from the above appeal, the learned trial Court has submitted Murder Reference No, 37 of 2003 for confirmation of death sentence of the appellant as required under Section 374 Cr.P.C.
3. Briefly the prosecution case as contained in the FIR is that the complainant being issueless had adopted the son of his sister namely Abid Hussain. On 22.03.2001 at the time of sunset after taking meal the complainant alongwith Abid Hussain. deceased and Iftikhar Hussain were going towards their dhari to guard their cattle heads and when they were at a distance of three kanals from the dhari, Muhammad Akram appellant armed with .12 bore gun, Suba, armed with .7 MM, Rifle,. Akbar with .12 bore gun, Shamman with .12 bore gun, and Muhammad Nawaz empty handed emerged from the wheat field by raising lalkara. Akram fired with .12 bore gun, which hit Abid Hussain on his left thigh. Akbar fired a shot with his .12 bore gun which hit Abid Hussain at his left shin and third fire of Suba with .7 MM Rifle hit Abid Hussain on his right index finger, whereas, fourth firs was shot by Shamman with his .12 bore gun hitting at the left thumb of Abid Hussain. Muhammad Nawaz continued raising lalkaras that Abid Hussain should not be escaped alive. Hue and cry raised by complainant, attracted Muhammad Yousaf and Muhammad Ishaq, PWs at the spot who begged the accused persons and accused persons fled from the scene of occurrence, whereas Iftikhar PW saved his life by hiding himself in the wheat crop. Motive behind the occurrence' was that accused Akram suspected that his brother Aslam was got injured at the instance of Abid Hussain, deceased.
4. After due investigation report under Section 173 Cr.P.C. was submitted in the learned trial Court.
Charge was framed against the appellant and his acquitted accused, who denied of the charge, pleaded not guilty and claimed trial. The prosecution produced its evidence. The appellant and his acquitted accused were examined under Section 342 Cr.P.C. The appellant in answer to Question No, 7 stated as under: "PWs are related inter se and inimical towards me and my co-accused as I and my co-accused supporting Ghamran Ex-father in law of the complainant in connection with a dispute and quarrel of land which was in possession of the complainant. Deceased had enmity with the many persons to whom the deceased wanted murder them i,e, Tahira and Umera who abducted the sister of the deceased prior to the occurrence and deceased got registered a case against Tahira and Urnera.
Wife of complainant was married with Umera and Tahira was released from jail on bail prior to the occurrence and both were waylaying deceased. In fact some unknown persons Muhammad Abid in the darkness of night. It was a blind murder. I and my co-accused had been falsely involved in this case by fabricating false motive, as Abid had no concern with the motive case. During the investigation I and my co-accused were not found present at the spot at the time of occurrence. I produce these documents in my defence: - Attested photocopy of FIR No, 25/2000 dated 24.01.2000 which is Exh.DA, attested photo copy of report under Section 173 Cr.P.C. in case FIR No, 25/2000 dated 24.01.2000 under Section 10 Offence of Zina (Enforcement of Hadood) Ordinance, 1979, which is Exh.DB, attested copy of statement of Mst. Shehnaz Bibi daughter of Ghaffar Exh.DB/1-4, attested photo copy of statement of Muhammad Akbar son of Shahadat Khan, which is Exh.DC/1-4, attested copy of statement of Nazar Hussain, ASI which is Exh.DD, attested copy of post arrest bail application alongwith attested copy of bail order dated 18.4.2000 of accused Tahira in case FIR No, 25/2000 dated 24.01.2000 P.S. Satiana which is Exh.DE/1-6, attested copy of post arrest bail application of accused Umera in case FIR No, 24/2000 under Section 10 Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979 P.S. Satiana alongwith bail order dated 8.3.2000 which is Exh.DF/1-5, attested photo copy of report under Section 173 Cr.P.C. of accused Tahira and Umera in case FIR No, 25/2000 dated 25.01.2000 under Section 10 Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979 and attested copy of surety bonds of accused Tahira which is Exh.DG/1-2."
Neither he opted to appear as his own witness in disproof of the allegation levelled against him as required u/S. 340(2) Cr.P.0 nor did he adduce defence evidence. The learned trial Court after hearing the parties passed the above said conviction and sentence, which is being assailed through this criminal appeal.
5. Learned counsel for the appellant contends that on the same evidence four co-accused have been acquitted from the charge; that no recovery was effected from the appellant; that the FIR was lodged after due deliberation and consultation; that the deceased was man of bad character and the occurrence took place in the dark hours of night; that the eye-witnesses i,e, PW-6 and PW-7 are chance witnesses; and that the prosecution has failed to prove its case against the appellant; therefore, the appellant deserves for acquittal.
6. Conversely, learned DPG has defended the impugned judgment of conviction by arguing that the ocular account in this case was furnished by Muhammad Akbar, complainant (PW-6) and Muhammad Ishaq (PW-7) and their ocular account is in line with the medical evidence; and that the prosecution witnesses have no ill will to falsely implicate the appellant in the present case.
7. We have considered the respective contentions of the learned counsel far the parties and also perused the record.
8. Muhammad Akbar, complainant (PW-6) is an eye-witness of the occurrence. He has supported the version as narrated in the FIR as reproduced above in Para-3 above whereby the appellant Muhammad Akram was attributed role of causing fire-arm injury with .12 bore gun on the left thigh of Abid deceased, whereas, acquitted accused Akbar was attributed role of causing fire-arm injury on the lower leg of the deceased and Suba 'acquitted accused caused injury on the right hand of the deceased and Shamman acquitted accused caused fire-arm injury hitting on the left hand of the deceased. On perusal of evidence of Dr. Nasir Mehmood PW-2 the injury attributed to Akbar acquitted accused is not available on the body of the deceased Abid Hussain and this contradiction in ocular account is apparent from evidence referred above. Similarly, PW-6 has admitted in his evidence that I.O. recorded his statement at the Dera of Abdul Ghafoor Lamberdar.
It was not read over to him. However, thumb mark was obtained by the I.O. The authenticity of Exh.PE/1 looses its value when contents of same are not accepted by complainant particularly when the occurrence took place, according to the prosecution case, at Sham waila on 22.3.2001 and the FIR was lodged on next day i,e, 23.03.2001, after about 16 hours of the occurrence when the distance of spot from the Police Station was only six miles.
9. Another important aspect of the case is that as per version of FIR lodged by PW-6 Abid Hussain deceased in an injured condition was taken to Civil Hospital, Satiana and thereafter to Civil Hospital Faisalabad but he died at 1.30 a.m. (night) on 23.03.2001 due to the injuries suffered by him. PW-6 also stated in his statement before the trial_ Court that Abid Hussain deceased remained at Civil Hospital, Satiana for about 45-60 minutes. Relevant portion of the PW-6 is as under: The deceased Abid was taken to Satiana hospital within 30-45 minutes in injured condition. Abid deceased remained at Satiana hospital for about 45-60 minutes. He was medically examined at THQ Hospital, Satiana; thereafter he was referred to Civil Hospital, Faisalabad. We reached at DHQ Hospital, Faisalabad about 9/10 p.m., THQ Hospital Satiana is near to the police station. Ayub Sahi I.O. reached at THQ Hospital Satiana and I asked Ayub Sahi, I.O. that statement of injured may be recorded on which Ayub Sahi, S.I told us that Abid be shifted to DHQ Hospital, Faisalabad and I will record his statement at DHQ hospital."
The above quoted portion of evidence of the complainant runs counter to the whole case of the prosecution, as there is nothing on record that the deceased was ever admitted in any hospital or examined by any doctor prior to his autopsy. Similarly, the above-referred evidence has made clear that police officer Muhammad Ayub, S.I/SHO, who was the scribe of statement of the complainant appeared as PW-8 was very much present with the complainant at 9/10 p.m. on 22.03.2001 but FIR was lodged on next day at 9.25 a.m. on 23.3.2001 meaning thereby till that time the complainant was not aware about the culprits as he had not seen the occurrence. Later on, in his statement he has stated that the police arrived in the village on the preceding day about 7.30 a.m. Admittedly, occurrence in this case took place away from the village in the fields where, according to the prosecution, accused had hidden themselves in the field of wheat crop and that too was sunset time but Habib Ullah, S.I. (PW-5) who is one of the Investigating Officer, admitted this fact that during his investigation the occurrence took place at 7.00 p.m. in the darkness and identity of the accused was not possible. It was also admitted as correct by Habib Ullah, S.I. (PW-5) that all the accused appeared before him voluntarily alongwith respectables and they took the plea of innocence and it came to light during the investigation that the accused persons were not present at the spot but they were found in the surrounding area near the place of occurrence. This admission on the part of the Investigating Officer further shows that the occurrence was blind and unseen and Muhammad Akbar, complainant (PW-6) who was unable to furnish the true account of the occurrence. Similarly, it would be appropriate to mention here that complainant (PW-6) is real maternal uncle of the deceased (Abid) whereas, Muhammad Ishaq PW-7, another eye- witness is paternal under of the deceased. In these circumstances,' in our view they are closely related inter se and interested witnesses.
10.Another eye-witness Muhammad Akbar, PW-7 admitted in his cross-examination that he was resident of Chak No, 275-GB which, according to him, was, to distance of 7/8 miles from the place of occurrence and PW-6 sentence his statement that he had come in his village without any purpose. Whereas, according to the prosecution case, , distance of village of PW-7 was 25/30 KM so he is a chance witness and was unable to justify his presence at the place of occurrence: Evidence of both eye-witnesses was disbelieved by the learned trial Court qua the accused who were attributed effective role of causing injuries on the body of the deceased and their acquittal stood finalized, as the same was never challenged and no other independent corroboration is available for the purpose of conviction of appellant. We may observe here that testimony of eye-witnesses against the appellant is also not believable as there is nothing on record against him to connect him with the commission of crime.
11.As far as motive is concerned there is no evidence without the motive part of the prosecution story particularly the quarrel, as per prosecution story, had been taken place between Aslam and Mehra, maternal uncle of the deceased and the appellant suspected the involvement of Abid Hussain deceased behind that occurrence. There is no direct evidence qua the said incident of quarrel, which, according to the prosecution, was the motive but in fact the cause of said quarrel might be motive but in this regard nothing surfaced in evidence. We also disbelieve the motive part of the prosecution story.
12.Medical evidence is contradictory to the ocular account, as injury attributed to the acquitted accused, Muhammad Akbar was not found on the body of the deceased. Another injury allegedly caused by co-accused Shamman stood also disbelieved. We observe that no doubt the deceased was done to un-natural death but injuries itself do not furnish any corroboration with the post- mortem examination, that the same were caused by a particular individual unless an eye-witness of the occurrence who had seen the learned, furnishes the true ocular account.
13.During the investigation nothing was recovered from the appellant. Similarly no crime empty was taken into possession from the spot despite the fact that prosecution has mentioned in FIR that four accused persons made firing -discriminately. The blood stained earth taken into possession by the I.O. from the spot, can be helpful for the purposes of determination of the place of occurrence, which is not .disputed, in the present case.
14.For what has been discussed above, we hold that the deceased who was man of dubious character, which fact was admitted by Muhammad Akbar PW-6, real maternal uncle of the deceased that Abid Hussain, deceased was involved in sodomy cases and according to the prosecution witnesses theses cases were compromised later on but there is no material on record regarding proof of compromise, as stated by eyewitnesses.
15.In these circumstances, we are of the considered view that the deceased was done to death at the dark hours of the night and the occurrence was unseen and un-witnessed. The eye-witnesses who were disbelieved qua the acquitted accused, who were attributed specific role of causing injuries to the deceased and there is no other independent corroboration which can be helpful for rehabilitation of the prosecution case. It is however observed that for the purpose of conviction and sentence in case of capital punishment the evidence must come through an unimpeachable source being worthy of credence, which is lacking in the present case.
16.Resultantly, the prosecution has failed to prove the guilt of the appellant accused beyond any shadow of doubt. This appeal is allowed, by setting aside impugned judgment of conviction passed by the learned trial Court giving him benefit of doubt. He is in custody and be released