' MUHAMMAD FARRUKH MAHMUD, J.--- The appellants Muhammad Riaz and Ghulam Abbas were tried by Mr. Abdul Manan Khan, Additional Sessions Judge, Mianwali, in case F.I.R. No,60 registered at Police Station Paikhel on 1-7-2001 for offences under sections 302/34, P.P.C. Vide judgment, dated 13-3-2002, the learned trial Court convicted and sentenced the appellants as follows:--
(I) Muhammad Riaz for offence under section 302(b), P.P.C. To death plus payment of rupees one lac as compensation to the legal heirs of the deceased;
(II) Ghulam Abbas for offences under section 302(b)/34, P.P.C. To undergo imprisonment for life plus payment of Rupees fifty thousand as compensation to the legal heirs of the deceased. Benefit of section 382-B, Cr.P.C. Was given to him.
2. Aggrieved by their above noted convictions and sentences, both the convicts/appellants have filed the instant appeal, while the complainant Latif Ullah Khan has brought Criminal Revision No,408 of 2002 for enhancement of sentence of Ghulam Abbas-convict. The learned trial Court has made a reference bearing Murder Reference No,329 of 2002 seeking confirmation or otherwise of death sentence inflicted upon Muhammad Riaz convict. All these matters are being decided through this consolidated judgment.
3. Briefly, the facts of the case per F.I.R. Exh.P.K. Recorded by Khalid Mahmood, S.-I./P.W.11, on the statement of Latif Ullah Khan, complainant/P.W.9, are that on 1-7-2001 at 10-45 a.m. The complainant along with Gul Hameed Khan deceased, Ansar Khan/P.W.10 and Khalid Khan boarded a Hilux from near Khelanwala, Mianwali, to go home. The complainant and his nephew Gul Hameed Khan sat on the front seat, while Ansar Khan and Khalid Khan sat on the roof of the Hilux on account of rush of passengers in the vehicle. At about 11-45 a.m. The driver stopped the vehicle at Adda Chah Abbas Wala Dakhli to drop the passengers, when, in the meanwhile, Muhammad Riaz and Ghulam Abbas, appellants, armed with .30 bore pistols, came on a motorcycle, which was being driven by Ghulam Abbas, who stopped it in front of the wagon and raised Lalkara that Gul Hameed should not go alive. Muhammad Riaz alighted from the motorcycle, went towards the left gate of the wagon, opened it, placed the pistol at the left side of chest of Gul Hameed and fired. Gul Hameed, in injured condition, 'stumbled and fell outside the wagon. Muhammad Riaz sat behind Ghulam Abbas on the motorcycle and fled away from the scene of occurrence. Besides the complainant, the occurrence was witnessed by Ansar Khan and Khalid Khan from the roof of the wagon. Gul Hameed succumbed to the injuries at the spot.
' The motive behind the occurrence was that Ghulam Rasool brother of Muhammad Riaz appellant was murdered and Tahir Khan brother of Gul Hameed Khan was challaned and sentenced to death. On account of that grudge, Muhammad Riaz and Ghulam Abbas committed the murder of the deceased.
4. On 1-7-2001, after registration of the case at the instance of the complainant, Khalid Mahmood, S.-I./P.W.11, went to the place of occurrence; prepared injury statement Exh.P.C. And inquest report Exh.P.D. Of the deceased and sent the dead body for post-mortem examination. The Investigating Officer (I.0.) prepared the rough site plan Exh.P.L. Of the place of occurrence. He collected blood- stained earth from the spot and sealed the same into a parcel through memo. Exh.P.J. He got prepared the scaled site plan Exh.P.A. Of the place of occurrence from the Patwari Halqa. On 6-7- 2001, the Investigating Officer took into possession Hilux No,2188/PRJ (which was produced by Abdul Sattar) through memo. Exh. P. F. The appellants were arrested on 8-7-2001 and on 10-7-2001, Muhammad Riaz, while in custody, led to the recovery of .30 bore pistol P.3 along with five bullets P.5/1-5, which were taken into possession vide memo. Exh.P.E., attested by Ahmad Khan/P.W.7 and Haq Nawaz (not produced). On the same date, Ghulam Abbas, while in custody, led to the recovery of motorcycle which was taken into possession vide memo. Exh.P.H., attested by the same witnesses. After completion of investigation, both the appellants were sent up to face trial. As the accused/appellants denied the charge and claimed to be tried, the trial commenced.
5. In order to prove its version at the trial, prosecution produced eleven witnesses. Ocular account was furnished by Latif Ullah Khan/P.W.9 and Ansar Khan/P.W.10. In addition to that, P.W.9 also stated about the motive, while P.W.10 stated about the recoveries from the spot. Ahmad Khan/P.W.7 stated about the recoveries effected at the instance of the appellants. Dr. Maqbool Mubarak/P.W.3 conducted postmortem examination on the dead body of the deceased. He while observing two fire-arm injuries, i.e. One entry wound on the front of left side of chest and the other exit wound on the right side of back of abdomen, opined that death was caused due to excessive haemorrhage and cardiac shock as a result of damage of heart, left lung diaphragm, liver and right kidney.
According to the doctor, both the injuries were sufficient to cause death in the ordinary course of nature. In the opinion of the doctor, the time which elapsed between injuries and death was instant, while between the death and post-mortem examination, it was five to eight hours. Khalid Mahmood, S.-I./P.W.11, stated about the registration of the case and the investigation thereafter.
After placing on record the reports of Chemical Examiner Exh.P.M. And Serologist, the prosecution closed its side.
6. In their statements recorded under section 342, Cr.P.C. Both the accused/appellants pleaded their innocence and false implication due to previous enmity. However, neither they appeared as their own witnesses under section 340(2), Cr.P.C. Nor did they produce any witness in defence.
7. Learned counsel for appellants submits that both the eyewitnesses were not only related to the deceased and inimical towards to the appellants but were also chance witnesses; that they could not reasonably explain their presence at the spot; that there are material contradiction in their statements; that the medical evidence is in conflict with the so-called ocular account; that no empty was recovered from the spot nor the pistol recovered at the instance of Muhammad Riaz appellant was sent to any expert, so the evidence of recovery is not helpful to the prosecution; and that the prosecution has failed to prove its case against the appellants.
8. Conversely, learned counsel for the complainant submits that it was a daylight occurrence and the parties were known to each other, so there was no question of substitution; that the F.I.R. Was lodged with promptitude; that both the eye-witnesses have reasonably explained their presence at the spot; that the ocular account is fully supported by the medical evidence and corroborated by the recovery evidence; that the motive was proved against Muhammad Riaz appellant.
9. Learned Additional Prosecutor-General for the State, while adopting the line of arguments of the learned counsel for the complainant, has supported the judgment passed by the learned trial Court.
10. We have heard the learned counsel for the parties at, a great length and have also scanned the entire record.
11. The prosecution case rests on the statements of P.W.9 Latif Ullah/complainant, uncle of the deceased, and P. W.10 Ansar Khan, who was also related to the deceased. Both the witnesses admit their enmity with the accused which existed since 1993. The occurrence took place at Adda Chah Abbaswa la. Which was at a distance of four kilometers from the residences of the P.Ws., while the deceased and the P.Ws. Were returning from Mianwali, which was at a distance of 25/30 kilometers from the houses of the witnesses. Since P.Ws.9 and 10 are chance IA witnesses, the first thing to be seen would be, whether the P.Ws. Plausibly explained their presence at the time of occurrence.
According IA to F.I.R,, complainant, deceased, Ansar Khan P.W. And Khalid Khan boarded Hilux at Khelanwala, which was situated near Mianwali, at 10-45 a.m. They were going to their houses. The complainant and the deceased sat on the front seat, while due to rush of passengers, Ansar Khan and Khalid Khan sat on the roof of the Hilux. The purpose of their .Visit to Mianwali was not mentioned in the F.I.R. It is true that F.I.R. Is not exhaustive piece of evidence and the witness can narrate details, lacking in F.I.R., while his statement is recorded before the trial Court. However, it is to be adjudged by the Court, whether the details were improvements or not. In his statement before the learned trial Court, the complainant did not mention that Ansar and Khalid Khan sat on the roof of the Hilux due to rush of the passengers in the wagon. During cross-examination, he explained that Ansar met him at Mianwali and they boarded the wagon from near Sunbal House in the Civil Lines Area. On the same point, Ansar Khan stated before the learned trial Court that he reached Mianwali Wagon stand at about 10-30 a.m. Where complainant and deceased Were already present. This version is against F.I.R. And the explanation of the complainant before the learned trial Court. Now coming to the point of sitting of Ansar Khan and Khalid Khan at the roof of the Hilux; as noted above, according to F.I.R., they sat on the roof due to rush of passengers. After stating in examination-in-chief that he and Khalid Khan sat on the roof of the Hilux due to rush of passengers in the wagon, P.W.10 admitted during cross-examination that 5/6 passengers were sitting inside the wagon, while twelve passengers could sit inside the wagon. He also admitted it to be correct that if he and Khalid Khan had been sitting inside the wagon, they might not have seen the occurrence. The purpose of visiting Mianwali was not mentioned in the F.I.R. Nor in the statement of Ansar recorded under section 161, Cr.P.C. Ansar insisted that he had narrated the purpose.Of his visit in his statement recorded under section 161, Cr.P.C. (Exh.D.C.). He was duly confronted with his earlier statement. According to him, he had gone to Mianwali for taking medicine but he did not know the name of the medicine which he purchased on the date of occurrence. He conceded that Mochh village was at a distance of 5/6 kilpmeters from his house, where a medicine shop was situated in the Bazaar. He further stated that he purchased the medicine from Mianwali fifteen days prior to the occurrence and then after fifteen days of the occurrence. He went on to say that Khalid P.W. Who was not produced before the learned trial Court had gone with him to Mianwali to purchase medicine and he had met Dr. Tahir Bashir about ailment of his child. He conceded that he did not show the medicine to the police on the day of occurrence. However, his explanation was that police did not ask him about the medicine. Now coming to the complainant; after stating that he had not mentioned in the F.I.R. The purpose of his going to Mianwali, he came out with the story that he and deceased had gone to Mianwali in order to consult their lawyer. He further stated that brother of the deceased was murdered 2-1/2 years prior to the occurrence. According to the complainant, the occurrence took place on Sunday which was a holiday. In that case, there was no occasion to meet the lawyer at 10-45 a.m.
12. As per F.I.R., at about 11-45 a.m., the driver stopped the wagon at Adda Chah Abbaswala for dropping the passengers. Meanwhile, Muhammad Riaz and Ghulam Abbas appellants, who were on a motorcycle and armed with pistols, reached there. The motorcycle, which was being driven by Ghulam Abbas, was stopped in front of the wagon. Ghulam Abbas' raised Lalkara that Gul Hameed should not be spared. Thereafter Muhammad Riaz alighted from the motorcycle; went to the left door of the wagon, opened it and fired at the deceased by placing pistol on his chest. The deceased, who was sitting on a seat, stumbled and fell outside the wagon after receipt of fire. Both the appellants left the spot on their motorcycle. Before the learned trial Court, the complainant admitted that on 13-8-2001, he appeared before Rao Saleem Akhtar, D.S.P. Headquarters, Mianwali, and made a statement. However, he denied that Exh.D.A. Was copy of the statement. He also denied it to be correct that according to Exh.D.B., Riaz accused boarded the "Jungla" of the Datsun when the Datsun stopped at Adda Chah Abbaswala, Riaz accused came down from the Datsun and fired at Gul Hameed and injured him. After due confrontation, Exh.D.B. Was brought on the record of the case and is available at page 75 of the paper book P.W.11, who conducted first investigation in the case, also stated before the learned trial Court that according to his investigation, both the accused had not come together at one motorcycle. During investigation, agreement, Exh.D.A. Was executed. The same is available at page 73 of the paper book. Briefly, according to the contents of the agreement, Ghulam Abbas had neither raised any Lalkara nor he was armed with pistol. This conclusion was arrived at in the light of the special oath on the Holy Qur'an taken by Abdullah, who had done so in accordance with the terms of the agreement between both the parties. The complainant did not deny the execution, of the agreement Exh.D.A.
He also admitted it to be correct that Abdullah had entered the mosque and took special oath on the Holy Qur'an but, according to him, this was all done under compulsion. It may be noted here that Exh.D.A. Was drawn on 9-7-2001 but there is no record that the complainant made any protest against it till the recording of his statement before the learned trial Court.
13. According to the complainant, Riaz placed the pistol on the chest of the deceased and fired.
Ansar also stated that the fire was caused at the deceased by almost placing the pistol on his chest. The deceased was young boy of fifteen years of age. He must have bled profusely after the receipt of fire. The first concern of the P. Ws. Should have been to save the life of the deceased and make their best to stop the loss of blood. The complainant claimed that he and the P.Ws. Attended the dead body but according to him, neither the clothes of the P.Ws. Nor their hands were stained with blood. While the two things did not go side by side; either the deceased remained unattended or whosoever attended him, his clothes and hands must have been smeared with blood. It is also noteworthy that according to complainant, he was sitting by the side of the deceased towards the driver's seat at the time of fire. In that case, the gushing out blood of the deceased must have stained the clothes of the complainant. He admitted that he came to know that the bullet had made exit on the right side where he was sitting with the deceased. However, surprisingly, the bullet did not hit him. It may be added here that neither any blood nor any bullet or led was lifted form the Hilux which had left before the arrival of the police. The complainant, however, insisted that there was no blood in the Hilux. The registration number of the Pick-up was not mentioned in the F.I.R. And on that regard supplementary statement of complainant was recorded on 4-7-2001.
14. According to medical evidence injury No,1, which was on the front of left side of chest, above the left nipple had blackened edges. Burning and charring around the wound has not been mentioned.
During cross-examination, the doctor admitted it to be correct that if the injury was inflicted within the distance of four feet, the burning and singeing of hair would occur and after the distance of four feet, the burning and singeing of hair would not be present and the blackening around the wound would exist till the distance of six feet. The opinion of the doctor does not support the ocular version that the injury was caused from point blank range. According to the opinion of the doctor, the death was due to excessive haemorrhage and cardiac shock as a result of damage to heart.
As already noted above, if the near and dears had been present at the spot, they would have done their best to stop the loss of blood.
15. As far as motive is concerned, undeniably, Tahir Khan, brother of the deceased, who had caused the murder of Ghulam Rasool, brother of Muhammad Riaz appellant, had been convicted and sentenced to death. After conviction and infliction of capital sentence, the accused must have felt satisfied. The brother of Riaz was murdered in the year 1993. At that time, the deceased was hardly seven years of age and could, in no way, be held responsible for the murder caused by his elder brother. The enmity between the parties existed, so in an unwitnessed occurrence, it would be more likely that the enemies would be involved.
16. It has been abundantly held by the superior Courts that related and inimical evidence should only be believed in the presence of strong, reliable independent corroborative evidence, which is lacking in this case. According to the prosecution case, Riaz appellant was arrested on 8-7-2001 and on 10-7-2001, while in custody, he led to the recovery of pistol .30 bore P.4 which had been placed underneath a stone under a culvert. The magazine contained five live bullets. Neither any empty was recovered from the spot nor the pistol nor the bullets were sent to any Expert. In order to prove the recovery, Ahmad Khan was produced as P.W.7. He was nephew of complainant and real brother of Khalid Khan who was mentioned as eye-witness in the F.I.R., though not produced in the trial Court. He was also related to the deceased. Futile to say that he could hardly be called an independent witness. The other witness, who had attested the recovery memo. And was not produced before the learned trial Court, was Haq Nawaz, who was also related to the complainant being his father-in-law. According to Investigating Officer, the witnesses had gone to the police station on their own and he took G them along. The Investigating Officer further admitted that no other person from public except the recovery witnesses mentioned in the memo. Was associated.
The place of recovery was accessible to all. P.W.7 also stated about the recovery of Yamaha Motorcycle at the instance of Ghulam Abbas from his residential room. The witness claimed that no male member was present in the house of Ghulam Abbas at the time of recovery and that there was no door on the outer side of the room and the door of the room was open at that time. The Investigating Officer had to admit that the place of recovery of motorcycle was just contiguous to the Baithak of Ghulam Abbas from where both the accused were arrested on 8-7-2001. According to him, the door of the room wherefrom the motorcycle was recovered was not locked. However, he did not remember whether the door was lying open or not when he entered for the recovery. It is hard to believe that the Investigating Officer would not have searched the house at the time of arrest of the accused and could not spot the motorcycle which was lying in the next room. Both the P.Ws. Have also contradicted each other on H material points. In the above noted circumstances, no reliance can be placed on the evidence of recovery.
17. It is well-settled proposition of law that suspicious however grave are after all suspicious and cannot take the place of proof. In our considered opinion, the presence of the P.Ws. At the time of occurrence 1J is not free from doubt.
18. For the foregoing reasons, we allow this appeal; set aside the judgment passed by the learned trial Court and acquit the appellants of all the charges. They would be released forthwith, if not required in any other case. The death sentence imposed upon Muhammad Riaz appellant is not confirmed. The murder reference is answer in the negative.
19. With the acquittal of convict-respondent Ghulam Abbas, Criminal Revision No,408 of 2002, seeking enhancement of his sentence, merits dismissal and the same is dismissed.