' MUHAMMAD FARRUKH MAFIMUD, J.---The appellants Muhammad Ashiq, Faryad Hussain, Abdul Sattar, Riaz and Muhammad Younas son of Fazal Din along with Muhammad Ramzan, Nazeer Ahmad, Ilyas, Safdar, Nawazish, Asif, Muhammad Nawaz, Tariq, Muhammad Afzal, Mustafa, Earn Din, Muhammad Ishaque and Muhammad Younus son of Muhammad Sharif were tried by Mr. Ishtiaq Ahmad, learned Additional Sessions Judge, Faisalabad, in case F.I.R. No,448 registered at Police Station Nishatabad on 13-9-1995 for offences under sections 302/ 324/109/148/149, P.P.C. By means of judgment dated 31-12-2001 the learned trial Judge, while acquitting the rest of the accused, convicted and sentenced the appellants as follows:---
(i) Muhammad Ashiq for offence under section 302(b), P.P.C. To death plus payment of Rs,20,000 as compensation to the legal heirs of the deceased, in default whereof to undergo S.I. For six months;
(ii) Faryad for offence under section 324, P.P.C. To four years' R.I. Plus payment of Rs,10,000 as fine, in default whereof to further undergo S.I. For six months;
(iii) Abdul Sattar for offence under section 337F(i), P.P.C. To suffer R.I. For three years plus payment of Rs,4000 as Daman to Imtiaz/injured;
(iv) Abdul Sattar for offence under section 337F(ii), P.P.C. To undergo R.I. For one year plus payment of Rs,1000 as Daman to Imtiaz/ injured;
(v) Riaz for offence under section 337F(iii), P.P.C. To suffer R.I. For three years plus payment of Rs,4000 as Daman to Imtiaz;
(vi) Riaz for offence under section 337F(ii), P.P.C. To undergo R.I. For one year plus payment of Rs,1000 as Daman to Imtiaz; and
(vii) Muhammad Younus son of Fazal Din for offence under section 337F(ii), P.P.C. To suffer R.I. For one year and to pay Daman amounting to Rs,1000 to Imtiaz/injured.
' The convicts Abdul Sattar, Riaz and Younus were to be kept in jail till realization of Daman under the law. The benefit of section 382-B, Cr.P.C. Was also granted to the cenvicts.
2. Muhammad Ashiq, convict/ appellant, through Criminal Appeal No,123 of 2002 and Faryad Hussain, Abdul Sattar, Riaz and Muhammad Younus, convicts/ appellants, through Criminal Appeal No,102 of 2002, have challenged their above noted convictions and sentences, while Muhammad Younus son of Ghulam Qadir, complainant/petitioner, has brought Criminal Revision No,346 of 2002 seeking enhancement of sentence of all the appellants, whereas the learned trial Court made a reference bearing Murder Reference No,339 of 2002 seeking confirmation or otherwise of death sentence inflicted upon Muhammad Ashiq. All these matters are being decided through this judgment.
3. The facts of the case, in brief, per complaint Exh.P.F. Recorded by Mumtaz Hussain Shah, S.- I./P.W.17, on 13-9-1995 at 8-05 a.m. At the instance of Muhammad Younus son of Ghulam Qadir, complainant/ P.W.10, basing the registration of formal F.I.R. Exh.P.F./1, are that on 13-9-1995 at about 7-00 a.m., the .Complainant and his brother Muhammad Ashraf-deceased (who was employed in DC Office, Faisalabad) were going to the fields to answer the call of nature. When they reached near Killa No,18 of Square No,30 belonging to Abdul Hameed, Ashiq-appellant armed with .7 mm rifle, Muhammad Ramzan armed with .222 bore rifle, Nawazish armed with ::7 mm rifle, Faryad- appellant armed with .222 bore rifle, Abdul. Sattar-appellant, Asif, Nazeer Ahmad and Riaz- appellant, all armed with .12 bore guns, Ilyas armed with .7 mm rifle, Muhammad Younus son of Fazal Din (appellant) armed with .12 bore gun, Muhammad Nawaz armed with .222 bore rifle, Tariq armed with .7 mm rifle, Muhammad Afzal and Mustafa, both armed with .12 bore guns, and Safdar armed with .7 mm rifle emerged out of the sugarcane crop and came across the complainant party. Nazeer Ahmad and Riaz Ahmad raised Lalkara that both Muhammad Ashraf and Muhammad Younus should not go alive. Meanwhile, Ashiq-appellant fired a shot hitting Muhammad Asliraf on his right temporal side. Muhammad Ashraf fell down. The complainant, due to fear of life, laid in the Khal. Ramzan continued firing from his .222 rifle and raising Lalkara that if any one tried to come near would be done to death. On hearing the fire reports, Zulfiqar/P . W.11 and Imtiaz/P. W.12 came at the spot. Faryad-appellant fired at Zulfiqar hitting him on the back of his right shoulder. The second fire was caused by Abdul Sattar-appellant which hit on, the back side of his right shoulder. The third fire caused by Muhammad Younusappellant hit Imtiaz on his back. The fourth fire made by Riaz-appellant hit him on the back of his right thigh and left shin. Safdar, Ilyas, Muhammad. Nawaz, Tariq, Muhammad Afzal and Mustafa continued aerial firing. On the alarm raised by the complainant, Muhammad Iqbal and Muhammad Hussain rushed to the spot. They also witnessed the occurrence and beseeched the accused. The accused, while resorting to indiscriminate firing, left the scene of tragedy. Muhammad Ashraf succumbed to the injuries at the spot.
' The motive behind the occurrence was that Ashiq etc. Were in possession of an Ihata situated in Chak No,55/JB. Thereafter the complainant, his brother Muhammad Ashraf and others took possession of the said Ihata. Due to that grudge, Ashiq etc. On the abetment and conspiracy of Ilam Din, Muhammad Ishaq and Muhammad Younus, the acquitted co-accused, caused the murder of Muhammad Ashraf and injuries to Imtiaz and Zulfiqar, P.Ws. Both the injured were taken to Allied Hospital, Faisalabad, for medical treatment.
4. On 13-9-1995 Mumtaz Hussain, S.-I./P.W.17, after recording the complaint Exh.P.F. At Adda Nalka Kohala at the instance of the complainant and sending the same to the police station, went to place of occurrence; examined the dead body of the deceased; prepared its injury statement. Exh.
P. G. /3 and inquest report Exh. P G. /II; sent the dead body for post-mortem examination and collected blood stained earth and sealed the same into a parcel vide memo. Exh. P. M. The Investigating Officer/I.O. Took into possession empties of .7 mm rifle, .222 bore rifle and of .12 bore gun from the spot through memo. Exh.P.E. He also prepared rough site plan of the place of occurrence (Exh.P.N.). On 15-9-1995, the I.O. Recorded the statement of Imtiaz injured. On 16-9-1995 the supplementary statements of the complainant was recorded. The statement of Zulfiqar injured was recorded on 17-9-1995. While the statements of Khalil and Waris about the abetment were recorded on 18-9-1995. After completion, of investigation, the appellants were sent up to face the trial.
5. To substantiate its version at the trial, the prosecution produced seventeen witnesses in all and after tendering in evidence the reports of Chemical Examiner Exh.P.O. And Serologist Exh.P.O. /1 closed its side.
6. In their statements recorded under section 342, Cr.P.C., the appellants pleaded their innocence and false implication. Muhammad Ashiq-appellant, in reply to question "Why this case against you and why the P.Ws. Made statements to involve you ' made the following statement (which was also adopted by his coaccused/appellants): --- ' "P.Ws. Have made false statements. They did not eyewitness the occurrence. They are related with the complainant and deceased and inter se. In fact the aforesaid Ihata was in possession of Sardar Muhammad etc. Said Sardar Muhammad was forcibly evicted by the complainant and his deceased brother and himself occupied it. Sardar Muhammad had got registered two criminal cases to this effect. The complainant side had called some armed persons of Bhola party and Ghulam Nabi party from neighbouring village in order to sustain their illicit possession. On the fateful day with the appearance of dawn, they fired as, a result thereof Ashraf was killed and P.Ws.
Imtiaz and Zulfiqar received injuries. The purpose of the firing was to terrify Ilam Din and others of his side who had brought police for the arrest of the said parties which included some notorious persons. The place of incident was collusively changed. In fact Ashraf, Zulfiqar and Imtiaz were injured while in the Ihata of Sardar. All the accused are innocent and have been implicated falsely for black-mailing us. I have been declared innocent by the police during successive investigations."
' The appellants did not appear as their own witnesses under section 340(2), Cr.P.C. However, they produced Haji Muhammad Yasin Inspector retired as D.W.1, who investigated the case from 30-7- 1997 to 5-1-1998; heard both the sides, inspected the spot and after conducting through investigation found all the accused not responsible for the incident. He also observed that Ilyas Nazeer, Safdar, Faryad and Muhammad Ashiq were left at the mercy of the Court because of having been challaned earlier by the local police. According to this witness, his investigation was approved by the then S.P. Range Crime and D.I-G. Police.
7. Learned counsel for the appellants submits that the parties were, admittedly, inimical towards each other; that the P.Ws. Made dishonest improvements in their statements before the learned trial Court; that the motive set in the F.I.R. Could not be proved; that it is proved from the evidence on record that a dispute existed between Sardar etc. And the complainant and his deceased brother over an Ihata and it was the complainant party who had dispossessed Sardar from the Ihata; that a very large number of accused have been implicated in this case; that the person implicated by the complainant party for causing murder was never arrested by any of the Investigating Officers; that the statements of inimical eye-witnesses were not corroborated by any independent evidence; and that the prosecution case was replete with doubts.
8. Conversely, the learned counsel for the complainant submits that the motive was established; that the presence of Zulfiqar and Imtiaz, the injured P.Ws., cannot be denied, as both received injuries during the occurrence; that Abdul Sattar, Faryad, Muhammad Younus and Riaz, who accompanied the rest of the accused, especially Muhammad Ashiq-appellant, have been convicted for different offences but they should have been convicted for having common object with Ashiq and having formulated an unlawful assembly; that direct evidence is corroborated by the medical evidence; that it was a broad day light occurrence and the parties were know to each other, so there was no question of non-identification or mis-identification; that case of the acquitted was different from that of the appellants, as the acquitted accused had not caused any injury to the deceased or the P.Ws.; that the I.O. Had given dishonest concession to the accused while preparing the inquest report Exh.P.N. The learned Additional Prosecutor General for the State supports the judgment passed by the learned trial Court.
9. We have heard the learned counsel for the parties at a great length and have also gone through the record.
10. The prosecution case rests on the statements of Muhammad Younus/P.W.10 brother of the deceased and complainant of the case and P.Ws. Zulfiqar and Imtiaz sons of Mukhtar Ali. Imtiaz and Zulfiqar, P.Ws., were injured during the occurrence. It is proved form over-whelming evidence that Sardar, on one side, and the complainant party, on the other side, were A inimical towards each other over possession of Ihata which measured one Kanal and nine Marlas. It was stated in F.I.R. That Ashiq and others were in possession of the disputed Ihata situated in Chak No,55/JB but during evidence, as noted above, it was proved that the Ihata was in possession of Sardar who was dispossessed by the deceased, his brother and the two P.Ws. The complainant admitted that in F.I.R. It was stated that he, his brother and other residents of the locality took possession of the Ihata and the others included Zulfiqar and Imtiaz, P.Ws., only. Zulfiqar P.W. Also admitted that he had connections with Younus and his family since long. They belong to the same brothery and they occupied the Ihata jointly because of their connections. Imtiaz P.W. Also stated that they took the possession of disputed Ihata one month prior to the occurrence. According to the complainant, the Ihata was vacant and Sardar was in possession thereof 4/5 months prior to the incident. However, he admitted it to be correct that on 13-8-1995, i.e, exactly one month prior to this occurrence, Sardar Muhammad got registered a case under sections 448/ 148/149, P.P.C. Against accused, which included Ashraf-deceased, Ghulam Qadirfather of Muhammad Ashraf (deceased) and complainant, Zulfigar-P.W. And his father Mukhtar. He also admitted that Sardar got another case registered under sections 324/ 148/149, P.P.C. On 5-9-1995, i.e, eight days prior to this occurrence.
The accused in that case included Muhammad Ashrafdeceased, Zulfiqar and Imtiaz, P.Ws. He could not deny that the disputed Ihata of this case was also shown as cause of the incident of the case registered at the instance of Sardar. Imtiaz/P.W.12 on this regard admitted that two criminal cases were registered at the instance of Sardar against him, Zulfigar-P.W., Younuscomplainant, Ashraf- deceased and his brothers and the police was after their arrest. The hostility between the parties is apparent from the fact that fifteen persons armed with deadly weapons were shown to B be present at the place of occurrence, while three others were implicated for abetment and conspiracy. For five injuries five persons were implicated. The fatal injury was attributed to Ashiq.
Injury on the person of Zulfiqar was attributed to Faryad and three injuries on the person of Imtiaz were ascribed to Abdul Sattar, Muhammad Younus son of Fazal Din and Riaz, appellants. In this perspective, the statements of the P.Ws. Require deeper scrutiny and corroboration through independent source. During trial, the complainant made dishonest improvement by stating that the reason behind the occurrence was that there was State owned Ihata in Chak No,55/JB in possession of the C accused, who vacated it. Thereafter he and his brother occupied this Ihata. Tins statement was totally opposed to the narration in the F.I.R. That earlier the Ihata was in possession of Ashiq and others. Then the complainant and his deceased brother along with others took possession of it. He was duly confronted with his earlier statement. The complainant and injured witness Imtiaz both dishonestly modified their statements before the learned trial Court by stating that Ilyas, Mustafa, Afzal, Tariq, Nawazish, Safdar, Ashiq and Nawaz had fired at them. Of course, both of them were confronted with their earlier statements. The complainant is not shy of telling lies and he also improved upon his supplementary statement by stating that he had seen Ashiq in the Baithak of Ilam Din. He was duly confronted with his supplementary statement Exh.D.B. The mere fact that Zulfiqar and Imtiaz had received injuries during the occurrence would not turn them into truthful witnesses, especially when their partiality and hostility towards the accused stands established.. Undeniably, the statement of Imtiaz was recorded on 15-9-1995 two days after the occurrence, in his Chak. There is no explanation as to why his statement was not recorded immediately after the occurrence. There is no evidence that he was not fit to make a statement for two days or that he was admitted in the hospital. Similarly, the statement of Zulfiqar was recorded on 17-9-1995 four days after the occurrence in Chak No,55/JB. He had received one injury on the back of his shoulder. There is no evidence that he was not fit to make a statement. The belated statements of both these P.Ws. Cast heavy shadow on their veracity and there would be strong presumption that their statements were recorded after due deliberations. It was observed by the apex Court in the case of Muhammad Khan v. Maula Bakhsh and another 1998 SCM R 570 that credibility of a witness was looked with serious suspicion if his statement under section 161, Cr.P.C.
Was recorded with delay without offering any plausible explanation. In the case of Syed Saeed Muhammad Shah and another v. The State 1993 SCM R 550 the Honourable Supreme Appellate Court held that the statements recorded by police after delay and without explanation were to be ruled out of consideration. It may be noted here that the statement of the complainant was not recorded at police station. Rather it was recorded at Adda Nalka Kohala by Mumtaz Hussain Shah, S.-I./P.W.17, who was, per chance, present there along with other police officials. It has been held by E the superior Courts in a number of cases that inherent doubts surround the F.I.Rs,, which are not recorded at the police stations, that those were recorded at the spot after due deliberations. As far as the instant case is concerned, the statements of the P.Ws. Are mutually destructive. According to Imtiaz-P.W. After Ashraf sustained injuries, Younus-complainant jumped into Khal to see the event and he remained clinging with the bank of the Khal while sitting in the Khal and his face was just to the level of the Khal towards the accused's side, while according to Zulfiqar, Younus went on his knees and palms on the ground and saw the occurrence in semi-lying condition. Leaving aside the contradictory statements of ale P.Ws., the accused, who were fifteen in number and were armed with deadly weapons, would not have spared Younus if he had been present there. It is worth-while to mention here that the presence of Younus has not been shown in the rough site plan Exh.P.N.
Prepared by Mumtaz Hussain/S.-I. Mumtaz Hussian/S.-I. Was cross-examined on this point and he admitted that he could not tell as to where the complainant was present as per his own statement.
He further stated that he had not indicated the place where the accused had ambushed.
According to him, if the complainant had pointed out the spot, he would have mentioned the same in Exh.P.N. Imtiaz-P.W. On the point of occurrence stated that it lasted from 2 to 5 minutes and that within a second of the firearm injuiries to Ashraf, he was hit and his brother Zulfiqar had sustained fire-arm injury prior to them. According to him, his brother Zulfiqar had bent with an evasive action when the fire hit him. He further stated that he was facing south when he received fire-arm injuries at the hand of the accused who were in north. According to medical evidence all the injuries were on the back of Imtiaz. Three persons have been implicated for the injuries. It remained a mystery as to how could Imtiaz specify the injuries to the accused while the same were caused on his back and he was on the run. The mere fact that he specified that three accused caused such and such injury on his back is enough to show that he was not a truthful witness.
11. It is pertinent to note that complainant admitted it to be correct that Ashiq accused was never arrested by the police till his statement was recorded in the Court. He further admitted that Ashiq accused had been appearing before S.P. City and Range Crimes. There is no evidence that he remained absconder. The factum of the non-arrest of Ashiq appellant by any of the Investigating Officers of different ranks cannot be overlooked.
12. In order to show involvement of Ashiq, the motive was directly attributed to him in the F.I.R., wherein it was stated that the Ihata was earlier in possession of Ashiq and others and, subsequently, the complainant and his deceased brother along with others took the possession.
Not only during trial, as already noted above, the complainant made dishonest improvement about the Ihata but it is also proved from the record the contention over the possession of Ihata was between Sardar on the one side, and the complainant, on the other side. It will not be out of place to mention here that at page 3 of the inquest report Exh.P.G./II, prepared after the registration of the F.I.R., brief facts of the rn case have been jotted down. In almost in all cases the brief facts are in accordance with the story , given in the F.I.R. But in the instant case, on the relevant page, the motive behind the occurrence has been mentioned (in Urdu language), the English translation whereof reads as follows:--- ' " The motive is that prior to the occurrence, Sardar and others were in possession of an Ihata situated in Chak No, 55/JB. Thereafter complainant and his brother along with others took possession of Ihata which caused grievance to Sardar Muhammad and others...."
' The above facts expose the dishonesty of the complainant who tried to level direct motive against Ashiq appellant.
13. As far as medical evidence is concerned, it supports that the prosecution G case to the extent that the deceased and the P.Ws. Received fire-arm injuries but no further.
14. Recovery of the weapons is of no consequence and cannot be used against any of the appellants, as the empties recovered H from the spot were neither sealed into parcel nor counted nor sent to the Forensic Science Laboratory.
15. As regard the defence plea which has already been detailed in para 6 ante, the same finds support from the statement of P.w.17 Mumtaz Hussain Shah/S.I who after consulting the recordof the case brought on the record the findings of Gulbaz/S.-I. Recorded on 28-11-1997 after investigation of the case.
16. The upshot of the whole discussion is that not only the statements of the P.Ws. Who were highly inimical towards the appellants, were not confidence inspiring and also were not corroborated by any independent reliable evidence. The prosecution case is not free from doubt. Hence, this appeal is allowed and the judgment passed by the learned trial Court is set aside. The appellants are acquitted of all the charges. Muhammad Ashiq appellant would be released forthwith if not required in any other case. The rest of the appellants are on bail. Their bail bonds are cancelled and the sureties are discharged. The death sentence is not confirmed. The murder reference is answered in the negative.