' IFTIKHAR MUHAMMAD CHAUDHRY, J.--- This appeal by leave of the Court has been filed against the judgment dated 16th March, 2001 passed by the Lahore High Court, Lahore in Criminal Appeal No,592 of 1994.
2. Precisely stating facts of the case are that Mst. Akhtari wife. Of Muhammad Aslam and Mst.
Surriyya wife of Ashiq son of Latif disappeared from their respective houses and returned after 8/10 days. Mushtaq alias Haji was suspected of having hand in disappearance of the ladies from their houses. Haji Mushtaq alias Haji and his father Rehmat came to know that women were murdered by their relatives. They summoned P.Ws. Liaqat Ali and Muhammad Aslam and told them about the information received in respect of murder of both the women at the hands of their relatives and in order to inform the police about the occurrence, both of them accompanied by the P.Ws. Went to a local councillor. The said local councillor asked the deceased to inform the police and that he would be following them. Mushtaq alias Haji and Rehmat along with both the eye-witnesses of this case, thereafter started for the police station but when they reached near the house of Mirza Kaleemullah Baig, Muhammad Aslam, Muhammad Ashiq, Liaqat Ali sons of Muhammad Latif, Muhammad Latif, Fayyaz Ahmad and certain other accused (since discharged) came out of the `Baithak' of Bashir Ahmed. Muhammad Latif son of Rehman Khan, raised Lalkara to catch hold of Mushtaq alias Haji and Rehmat to teach them a lesson with regard to the abduction of their women. Whereafter Muhammad Ashiq son of Muhammad Latif inflicted blows with butt of gun to the head of Mushtaq and also fired in air. Muhammad Aslam accused inflicted blows with butt of his rifle to the head of Rehmat. The accused fired in air and dragged Mushtaq and Rehmat into their Haveli. It was also the prosecution case that Mushtaq and Rehmat were murdered by the accused and their bodies were cut into pieces and were thrown into nearby canal. On completion of codal formalities appellants were sent up to face trial. As they did not plead guilty to the charge read over to them, therefore, prosecution led evidence to substantiate accusation against them.
On completion of trial, appellants were sent up to face trial. Learned trial Court charged them for offences under sections 302/ 364/336/148/149/201, P.P.C. To which they pleaded not guilty. The prosecution was called upon to substantiate accusation against the convicts. On completion of trial, however, they were found guilty under sections 364/149, P.P.C. As such following sentences were awarded to them:--
(1) Under sections 364/149, P.P.C.Life imprisonment each with fine of Rs,50,000 each and in default whereof to undergo 4 years' S.I.
Each.
(2) Under section 148, P.P.C.Three years' S.I. Each with fine of Rs,10,000 each and in default whereof six months' S.I. Each.
' All the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended to them.
' The appeal was preferred on behalf of the convicts before the High Court. Simultaneously, a revision was also filed by the complainant challenging the acquittal of appellants under section 302, P.P.C. Learned High Court vide impugned judgment maintained the conviction/sentence awarded to appellants by the trial Court under sections 364/149, P.P.C. And their acquittal under section 302, P.P.C. Was not interfered. Concluding para. From the impugned judgment reads as under thus:-- "28. In view of the above, I am of the considered opinion that prosecution has been able to prove its case beyond doubt against Muhammad Aslam, Muhammad Ashiq, Liaqat Ali, Fayyaz alias Pappu and Latif accused persons except Khushi Muhammad accused under sections 364/149, P.P.C. And therefore, they are convicted and sentenced under sections 364/149, P.P.C. To imprisonment for life each with a fine of Rs,50,000 each and in default of payment of fine to four years' S.I. Each. Accused Muhammad Aslam, Muhammad Ashiq, Liaqat Fayyaz alias Pappu and Latif are also convicted under section 148, P.P.C. And sentenced to three years' S.I. Each with a fine of Rs,10,000 each or in default of payment of fine to six months' S.I. Each. All the above-mentioned sentences shall run concurrently. Accused persons shall also be given benefit of section 382-B, Cr.P.C. They are on bail and are ordered to be taken into custody and sent to jail to serve the above-mentioned sentences.
29. Case against Khushi Muhammad accused is not proved who is not named in the F.I.R. Nor was present at the time of murder of two deceased in the Haveli of accused. As murder is also not proved thus, he is given the benefit of doubt and is acquitted of the charges."
3. Leave to appeal against the above judgment was granted vide order 2nd April, 2002, which reads as under:- "Leave is granted to reappraise the evidence to satisfy whether the conviction recorded by the Courts, below and sentence awarded to the petitioner is sustainable. Petitioner No,3 is about 96 years old and when occurrence took place he was about 83 years. Leave has been granted to reappraise the evidence, therefore, we suspend the sentence of petitioner No,3 and he is allowed to be released on bail subject to furnishing bail bonds in the sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of the trial Court."
4. Learned counsel for appellants contended that prosecution has miserably failed to substantiate accusation against the appellants as the evidence so adduced by it, to prove guilt, suffers from material contradictions and improbabilities, therefore, they have been illegally convicted/sentenced, as such on reappraising the evidence, they may be acquitted of the charge.
5. Learned counsel appearing for complainant frankly conceded that the Investigating Agency had left important lacunas in investigation. However, he contended that as oral testimony of.P.Ws., Liaqat Ali and Muhammad Aslam, has furnished trustworthy evidence, therefore, they have rightly been held liable for the commission of the offence, at least to the extent of deceased Haji Mushtaq alias Haji and Rehmat Ali.
6. Learned counsel supported the impugned judgment and prayed for dismissed of appeal.
7. We have heard parties' counsel and have also gone through the impugned judgment carefully.
As it has been pointed out hereinabove that the episode of murdering Haji Mushtaq and Rehmat Ali is a second incident because prior to it allegedly appellants have committed the murder of Mst.
Akhtari wife of Muhammad Aslam and Mst. Surriya wife of Muhammad Ashiq (appellants), because allegedly they disappeared and according to their suspicion, they had eloped with Haji Mushtaq and Rehmat Ali, who are son and father, respectively. With regard to said incident, the F.I.R. No,236 of 1998 under sections 302/149/148, P.P.C. Was registered. It may be noted that challan of the said case was put up before the Additional Sessions Judge, Pattoki who acquitted all the accused from the charge on 23rd January, 1996 for want of sufficient evidence. Unfortunately, in instant case as well, the prosecution could not produce convincing evidence, as a result of which the appellants have been acquitted of the charge under sections 302/149, P.P.C. And the High Court had maintained the said judgment in appeal. In respect of charge under sections 364/148/149, P.P.C., the prosecution was bound as well to produce convincing evidence against the appellants.
Learned High Court had not gone into detail discussion to ascertain as to whether they are guilty for the commission of the offence or otherwise. It is an admitted fact that the Investigation Officer failed to recover dead bodies of deceased Haji Mushtaq and Rehmat Ali, inasmuch as the evidence of Muhammad Saleem (P.W.3) and Muhammad Nazir (P.W.7), produced before the trial Court to substantiate that they were done to death in presence of these witnesses was not found credible by the trial Court as well as by the High Court, because both these witnesses were planted subsequent to incident with a view to procure their conviction. Since the acquittal of appellants under section 302 has not been interfered by the High Court, as such inference would be that whatsoever evidence was produced by the prosecution to the extent of murder case was not found worthy of credence, as a result whereof appellants were acquitted from the charge of murder of Haji Mushtaq and Rehmat Ali. As far as -Liaqat Ali (P:W.1) and Muhammad Aslam (P.W.2) are concerned, they appeared as witnesses in respect of incident of abduction of Haji Mushtaq and Rehmat Ali. According to version of former, convict Muhammad Ashiq resorted to ineffective firing but gave a blow of "butt" of rifle on the head of Mushtaq alias Haji deceased who fell down. Similarly Aslam convict also gave a blow of "butt" of rifle on the head of Rehmat deceased who also fell down. Accused kept on resorting to ineffective firing as well as giving blows to both the deceased with the "butt" of fire-arm as well as Sota, which accused were keeping with them. He further stated that accused then took both Mushtaq as well as Rehmat deceased to their house while firing. He came back to his house and then moved an application (Exh.P.A.) for the registration of the case, which bears his signature. In the cross-examination, he stated that some drops of blood had fallen on the place of occurrence because of giving beating by the accused to deceased. He further stated that he had not noticed any trail of blood beyond one Karam. It was also his version that accused took away Mushtaq and Rehmat deceased by dragging and they also raised alarm when they were being dragged by the accused. He also confirmed that drops of blood fallen on earth were shown to the police. According to him no crime empty was taken into possession by the police, as the same were not available at the place of occurrence. P.W.2 Muhammad Aslam also appeared in support of prosecution case and furnished mostly same evidence which was given by P.W.1 Liaqat Ali. P.W. Muhammad Ashraf, A.S.-I., Police Station, Chhanga Manga received application (Exh.P.A.) i.e, a complaint from P.W. Liaqat Ali, when he was on patrol duty in main Bazar Raja Jang.
He made report Exh.P.A./2 on it and sent the application to Police Station Mustafa Abad for registration of case through Mehmood Ahmed. Then he inspected the spot and prepared the site plan (Exh.P.F.). From the place of incident, he took into possession a pair of shoes (Softi) Exh.P.5/1-2 vide memo. Exh.P.F. In cross-examination, he deposed that he had not noticed the traces of dragging of the person, nor he found any trail of blood, nor such place was pointed out by the witnesses. It is important to note that this witness had not effected the recovery of empties nor had taken into possession blood-stained earth. In view of such variations, in the statements of P.Ws. (1 and 2) i.e, Liaqat Ali and Muhammad Aslam and P.W.9 Muhammad Ashraf, A.S.-I., question for consideration would be as to whether eye-witnesses P.Ws. Liaqat Ali and Muhammad Aslam, had seen the incident or not.
8. A careful consideration of the other evidence as well as evidence furnished by P.W.9 Muhammad Ashraf, A.S.-I. Persuades us to hold that the statements of the eye-witnesses would have been accepted if their version had got support from corroborative evidence i.e, the recovery of crime- empties from the place of incident, blood-stained earth as well as traces of dragging of deceased Haji Mushtaq and Rehmat Ali by the accused persons. Besides it, the witnesses are admittedly interested in the prosecution case and no corroboration is available to their statements, therefore, we are of the opinion that it would not be safe to accept their version.
9. It may be noted that statement of an interested witness can be considered to be a strong incriminating evidence against the accused, provided it is established that the witness had no motive or personal whereas in instant case, it is an admitted fact that both the witnesses are closely related to the victim party and appellants had personal grudge against Haji Mushtaq and Rehmat Ali because they had abducted Mst. Akhtari wife of Muhammad Aslam (appellant No,1) and Mst. Surriya wife of Ashiq (appellant No,2), who are the real brothers, therefore, without independent corroboration, their evidence was not worthy of acceptance.
10. It has also been noticed by us with concern that the Investigating Officer(s) had not taken pains in properly conducting the investigation of the case because no efforts were made to effect the recoveries of the incriminating articles including the blood-stained earth, crime-empties and traces of dragging the abductees by the appellants, inasmuch as despite receiving an information that the dead bodies of both the abductees after cutting into pieces -have been thrown into the canal but no effort were made to trace even the pieces of dead bodies, to prove that prosecution story is true.
11. Learned counsel appearing for complainant, in view of the facts and circumstances of the case noted above, rightly conceded that the investigation has not been conducted properly, due to which appellants are likely to get benefit. What further we had noticed invariably in appellant number of persons who are responsible for such defective investigation and consider that it has become past and closed transaction, whereas position is contrary to it and the Police Department is bound to take action against the person(s) who are responsible for conducting poor investigation.
12. Thus, for the foregoing reasons, we are of the opinion that the prosecution had failed to establish guilt against the appellants, therefore, by extending them benefit of doubt, they are acquitted of the charge and direct that they be set at liberty forthwith if not required in any other case.
13. Copy of this judgment be sent to Inspector-General of Police (Punjab) for conducting enquiry against the delinquent Officer(s) in accordance with law.
14. Above are the reasons of our short order of even date.