' SYED SHABBAR RAZA RIZVI, J.---Appellant Nadir Hussain son of Muhammad Manak filed this Criminal Appeal No,396-J of 2002 against the judgment, dated 31-10-2002 passed by the learned Additional Sessions Judge, Gujrat. He was tried in F.I.R. No,218 of 2001, dated 2-11-2001, under sections 302, 109, 34, P.P.C., registered at Police Station Tanda. After conclusion of the trial he was convicted and sentenced under section 302(b), P.P.C. And sentenced to death on two counts for committing Qatl-i-Amd of Atif Maqsood and Zaheer alias Babar. He was also ordered to pay compensation of Rs,200,000 each payable to the respective legal heirs of deceased Atif Maqsood and Zaheer alias Babar. In case of default, he would have to undergo 6 months' S.I. The compensation was ordered to be recovered as land revenue.
2. Through the same judgment Muhammad Manak and Mufti Ghulam Haider were acquitted of the charge.
3. The prosecution case set up as F . I . R. Exh. P. E. , is that on 2-11-2001, Maqsood Hussain, P.W.6 lodged the F.I.R. Stating that he was resident of village Dhariwal and a Zamindar. On 1-11-2001 at evening time, Zaheer alias Babar son of Muhammad Bashir, caste Barber, resident of Sook Kalan, a friend of his son Atif Maqsood came to his house and stayed that night in their house. On the following morning, at about 8-15 a.m. His son Atif Maqsood went along with his friend Zaheer for seeing him off and when he was proceedings towards Bhagowal on road, the complainant along with Maqbool Hussain and Muhammad Awais, his brother also followed them at some distance to go to their dera on the same road. In the meanwhile, within their view, Ghulam Haider, Sajjad Hussain (since proclairred offender) and Nadir Hussain sons of Muhammad Manak, armed with .12 bore guns while riding on the motorcycle crossed them and within their view, Ghulam Haider raised Lalkara that Atif should not be let alive and simultaneously by halting the motor bicycle Ghulam Haider fired at Atif Maqsood with .12 bore gun, hitting on front of his neck, who fell down. The second fire made by Nadir Hussain with his .12 bore gun hit Atif Maqsood on the rear side of right ear, whereas Zaheer alias Babar fell on Atif Maqsood. On which, Sajjad Hussain (P.O.) fired at him with his .12 bore gun hitting Zaheer Babar on left side of his chest, who was seriously injured. Thereafter, all the accused started indiscriminate firing hitting Atif Maqsood and Zaheer on different parts of their bodies. The complainant along with others ran towards the place of occurrence, all the accused ran away raising Lalkara. Atif Maqsood and Zaheer succumbed to the injuries at the spot.
The complainant further stated that the occurrence was committed at the abetment of Muhammad Manak. The motive for the occurrence was that about two years ago, Atif Maqsood and others caused fire-arm injuries to Ghulam Haider accused.
4. After recording the F.I.R., Muhammad Javed, S.-I./P.W.12 along with Muhammad Afzal, F.C., Afzal, F.C. And Riaz, F.C. Proceeded to the place of occurrence. He inspected the place of occurrence and prepared application for post-mortem examination of Zaheer alias Babar deceased through Exh.P.H. And collected the blood-stained earth and sealed the same into a parcel through memo.
Exh.P.R. Then he prepared his injury statement Exh.P.N. He also prepared application for post- mortem examination of Atif Maqsood Exh.P.J. He prepared his injury statement through memo.
Exh.P.M. And collected the blood-stained earth through memo. Exh.P.S. He prepared the rough site- plan of the place of occurrence through memo. Exh.P.U. He prepared the inquest report of Zaheer through memo. Exh.P.K. And that of. Atif Maqsood through memo., Exh.P.L. He handed over the dead bodies to Ilyas and Afzal Constables. He also received the last worn clothes of the deceased, Zaheer Babar through memo. Exh.P.C. And that of Atif Maqsood through memo. Exh.P.D. He recorded the statements of the P. Ws. Under section 161, Cr.P.C. On 8-11-2001 he visited the spot along with eye-witnesses with Patwari, who took the rough notes and handed over to the Investigating Officer site-plans with scale Exh.P.A. And Exh.P.A./1 on 14-11-2001. He also collected site- plans with scale of occurrence Exh.P.B. And Exh.P.B./1 from the Patwari Sardar Hussain, P.W.2 on 14- 11-2001. Thereafter, he was transferred from the police station. Muhammad Anar Khan, S.-I. P.W.13 on 18-12-2001 took over the investigation of this case. On 19-12-2001 he arrested Ghulam Haider and Nadir Hussain accused. On 1-1-2002 he got recovered the weapon of offence gun P.7 from Nadir Hussain, appellant which was taken into possession through memo. Exh.P.T., attested by Ilyas and Qaiser, P. Ws. He got declared Ghulam Haider and Muhammad Manak to be innocent. On 2-1-2002 he filed an application Exh.P.W. For issuance of warrant of arrest of Sajjad accused, who was not arrested. Thereafter, he got declared Sajjad Hussain, declared proclaimed offender. He prepared the report under Section 173, Cr.P.C. And submitted the same in the Court.
5. The trial Court framed the charge on 5-6-2002 which was denied by the accused and they claimed trial. During the trial prosecution examined as many as 13 witnesses to prove the guilt of the accused.
6. The medical evidence was furnished by Dr. Muhammad Tariq, P.W.8, who on 2-11-2001 at 5 p.m.
Conducted the post-mortem examination on the dead body of Zaheer alias Babar and found the following injuries:--
1. A lacerated fire-arm wound of entry 4 x 4 c.m. On left anteriolateral aspect of chest 2 c.m. Lateral to nipple.
1B. A fire-arm wound of exit 4 in number on right lateral aspect of chest, scattered in an area 9 x 4 c.m. And 07 c.m. Lateral to right nipple 3 c.m. Below the axilla each injury 1 x 1 c.m.
2. Fire-arm wound of entry 4 in number on right medical aspect of upper arm each injury was 1 x 1 c.m.
2B. Two fire-arm wound exit on right lateral aspect of upper arm each measuring 1-1/2 x 1-1/2 c.m.
' Two metallic foreign bodies were removed from upper arm, sealed in bottle and handed over to the police. Two metallic foreign bodies and one plastic was removed from lateral right aspect of chest.
3. A fire-arm wound of entry x 4 c.m. On left anterior aspect of left shoulder 5 c.m. Below top of shoulder. Two fire-arm wounds of entry each 1-1/2 x 1-1/2 c.m. On left anterior aspect. Of shoulder 1 c.m. Above Injury No,3.
3B. A fire-arm wound exit 3 x 4 c.m. On lateral aspect of left upper arm.
' In the opinion of the doctor, the injuries mentioned were ante mortem, caused by fire-arm, death occurred due to injuries to vital organs, i.e, heart, lung and excessive haemorrhage leading to haemorrhage and shock and finally cardiopulmonary arrest under ordinary course of nature.
Probable time between injuries and death was immediate and between death and post-mortem was 8 to 12 hours.
' On the same day the same doctor at 4-30 p.m. Conducted the post-mortem examination on the dead body of Atif Maqsood and found the following injuries:-
1. A fire-arm wound of entry 7 x 3 c.m. On front of neck.
1B. A fire-arm wound of exit 7 x 5 c.m. On back of occipital region. Brain matter lying out of wound.
2. A fire-arm wound of entry 4 x 2 c.m. On back of left ear.
2B. A fire-arm wound of exit 3 in number.
(i) Exit wound 2 x 1 c.m. On front of right ear.
(ii) Exit wound 1-1/2 x 1 c.m. Below right ear.
(iii) Exit wound 1-1/2 x 1 c.m. On pinna of right ear.
(iv) Exit wound 1-1/2 x 1 c.m. On bridge of nose.
' In the opinion of the doctor, the injuries were ante-mortem, caused by firearm, death occurred due to injuries to the vital organs, i.e, brain by Injuries Nos.1 and 2, both injuries individual and collectively caused death and death occurred due to severe haemorrhage, shock, leading to cardiopulmonary arrest under ordinary course of nature. Probable time that elapsed between injuries and death was immediate and between death and postmortem was 8 to 12 hours.
7. The ocular account was furnished by Maqsood Hussain, P.W.6 who was complainant in this case.
He supported the prosecution story as stated by him in the F.I.R. Exh.P.E. Muhammad Awais, P.W.7 was also an eye-witness of the occurrence. His statement was in. Line with the statement of Maqsood Hussain, .P.W.6.
8. Muhammad Arif, F.C. Was examined as P.W.1, who on 20-11-2001 delivered the sealed parcel of blood-stained earth to the office of Chemical Examiner, Lahore. Sardar Shah Patwari Halqa was examined as P.W.2, who prepared the site-plan of the place of occurrence of Atif Maqsood through memos. Exh.P.A. And Exh.P.A./1 that of place of murder of Zaheer alias Babar Exh.P.B. And Exh.P.B./1.
Muhammad Ilyas, F.C. Was examined as P.W.3. He on 2-11-2001 escorted the dead body of Zaheer alia Babar to A.B.S. Hospital, Gujrat for post-mortem examination. After post-mortem examination, the doctor handed over to him last worn clothes of the deceased, which he handed over to the Investigating Officer through memo. Exh. P.C. Muhammad Afzal, F.C./P.W.4 escorted the dead body of the Atif Maqsood to A.B.S. Hospital, Gujrat for the post-mortem examination. After post-mortem examination, the doctor handed over to him last worn clothes of the deceased and X-ray report which he delivered to the Investigating Officer through memo. Exh. P.D.P. W.5 Muhammad Jamil, F.C. On 10-1-2001 delivered the sealed parcel of .12 bore gun, to the Office of Chemical Examiner. Sikandar Hayat, A.S-I. P.W.9 on 1-1-2002 was posted as Moharrir in the police.
On the same day, the Investigating Officer handed over to him sealed parcel of .12 bore gun which he kept in safe custody and then on 10-1-2002 he handed over the same to Muhammad Jamil, F.C.
For onward transmission to the office of Forensic Science Laboratory. Nazim Hussain, P. W.10 deposed that on 2-1-2002 warrant of arrest Exh.P.P. Of Sajjad accused were entrusted to him for its execution. He tried to arrest the accused but failed as the accused was not traceable. He made report as Exh.P.P./1. Thereafter, he was entrusted with the proclamation Exh.P.Q. Which he affixed on the Court premises and one on the outer door of the accused. Muhammad Ilyas, P. W.11 attested the recovery memo. Of blood-stained earth where dead body of Zaheer alias Babar was lying through memo. Exh.P.R. Likewise, he attested the recovery memo. Exh.P.S. Of blood-stained earth where the dead body of Atif Maqsood was lying. He also attested the memos. Of last worn clothes of the deceased Exh. P.C. And Exh. P. D. Thereafter, he stated that in his presence Nadir Hussain accused led to the recovery of .12 bore gun from the upper storey of his residential house situated in village Dhariwal. The .12 bore gun P.7 double barrel was sealed into a parcel and taken into possession vide memo. Exh.P.T. Which was also attested by him.
9. The prosecution evidence was closed by tendering in evidence reports of Chemical Examiner Exh.P.X., Serologist Exh.P.Z. And Forensic Science Laboratory Exh. P.Y.
10. After close of the prosecution evidence, statement of the appellant, Nadir Hussain was recorded under section 342, Cr.P.C. He denied the allegations and claimed his innocence. In reply to question, " Why this case against you", he stated as under:-- ' "Zaheer alias Babar and Atif deceased were desperate, hardened dangerous criminals. They had made a gang of desperados. On the night of occurrence they might have committed some dacoity or theft and both the deceased might have received the injuries from their desperado criminal. I and my family have been involved in this case due to enmity and suspicion. I am totally innocent in this case."
10A.The trial concluded into conviction and sentence of the appellant as mentioned above and acquittal of co-accused.
11. We have heard the learned counsel for the appellant as well as the learned Deputy Prosecutor- General, Punjab.
12. We intend to examine prosecution version and evidence firstly, at length, since two persons were murdered and the appellant also stands convicted on two counts. In this efforts, we will take up ocular account offered by P.W.6 Maqsood Hussain and P.W.7 Muhammad Awais. According to P.W.6, on 1-11-2001, at about 8-15 a.m., his son Atif Maqsood left home to see off his friend Zaheer alias Babar towards the path leading to village Bhagowal. P.W.6 along with Maqbool Hussain and Muhammad Awais also followed them to go to his dera on the same path. Suddenly, accused Ghulam Haider, Nadir Hussain (appellant) and Sajjad came on motorbikes in a manner that Ghulam Haider was riding on one motorbike and $ajjad Hussain and Nadir Hussain were riding on the other motorbike. All the three were carrying .12 bore gun. Ghulam Haider stopped his motorbike in front of Atif Maqsood and Zaheer Babar (deceaseds). He raised Lalkara and thereafter, fired upon Atif Maqsood deceased, hitting him on the front side of neck. Atif Maqsood fell down. In the meanwhile, Nadir (appellant) fired upon Atif Maqsood, deceased hitting him on his right ear-side.
Zaheer alias Babar tried to intercept and fell on Atif Maqsood, deceased, whereupon, Sajjad accused (P.O.) fired upon Zaheer alias Babar hitting on his chest. He also fell down by sustaining the injuries. Thereafter, they fired 3/4 shots, some of them hit on the body of Zaheer alias Babar and then the accused fled away. According to this account, three fires of .12 bore were shot which hit both the deceased and 3/4 more shots were fired which also hit on the body of Zaheer alias Babar.
In the same context, in cross-examination, P.W.6 stated that the fire upon Atif Maqsood, deceased was shot by connecting barrel with his body. Two shots were fired on Atif Maqsood, deceased, second was also fired from a close range. According to P.W.7, in examination-in-chief, Ghulam Haider accused alighted from motorbike and raised Lalkara that Atif Maqsood should not be let alive and simultaneously he while putting the barrel of .12 bore gun in front of neck of Atif fired upon him, who fell down. He further elaborated in cross-examination as under:-- ' "Ghulam Haider, accused fired upon Atif deceased while keeping the muzzle with the front side connecting the neck of the deceased. Atif was facing towards village Dhariwal. Atif deceased fell down after receiving the injury. The second fire was also shot by keeping the barrel of the gun near the head of the deceased (this second fire according to the F.I.R. Is attributed to the present appellant). The accused even fired upon Zaheer deceased from a distance of 1/2 inches."
(According to site-plan this distance was of 2 karms i.e, 11 feet).
' However, according to Dr. Muhammad Tariq, P.W.8, "The blackening on the wound is possible within 6 feet if fire is shot from a .12 bore gun. Tattooing is possible if muzzle is connected with the fire wound. It is correct that in Injury No,1 of Atif Maqsood deceased there was no burning, blackening or tattooing. There is a possibility that the fire on the deceased Atif Maqsood was shot beyond the range of 6 feet. It may be possible that fire was shot beyond the range of 12 feet. Same is the condition with Injury No,2." This conflict or discrepancy between an expert opinion and ocular account cannot be reconciled or harmonized. The man of ordinary knowledge and prudence also knows the arequence if somebody is fired upon by a .12 bore gun while keeping the gun right on the neck or touching any part of the body. A Seeing or observing the nature of injuries explained by P.W.8, the statement of both eye-witnesses P.W.6 and P.W.7 cannot be believed and cast a serious doubt about their witnessing the occurrence.
13. P.W.6 further stated that Atif Maqsood and Zaheer alias Babar had succumbed to the injuries till their arrival at the spot. This fact is further elaborated by P.W.6 in his cross-examination in the following words:-- ' "I, Maqbool and Awais were following the deceased jointly. We were, however, in a queue, Atif and Zaheer were ahead of us at a distance of about 25/30 karams. The accused crossed us by motorcycle a short time before the occurrence."
25 to 30 karams means 150 to 160 feet away. In other words, occurrence was witnessed by the P.W.6 from distance of 150 to 160 feet. It is not easy to give an B account of occurrence in a manner given by P.W.6 and P.W.7 from the above noted distance. It needs to be examined carefully instead of believing it straightway in conjunctions with other pieces of evidence and facts on the record.
14. According to P.W.6, the occurrence took place on the path leading to Bhagowal village. In cross- examination, P.W.6 further stated that Atif deceased received the fire shot and fell down on the path made by bricks. According to him, Zaheer, deceased after receiving the injuries had diverted down from main path.
' There was distance of about 2 karams between the deceased persons. According to P.W.7, deceased Atif Maqsood was going to see off his friend Zaheer alias Babar on the road made of bricks, leading to Bhagowal. He (P.W.6) along with Maqbool and Maqsood P.Ws. Were following them on the same road at a distance of about 20/25 yards. According to P.W 12 Muhammad Javed S.-I., the road from Bhagowal to Dhariwal is made of bricks. He further elaborate that he arrived at the place of occurrence at 9/9-30 a.m., there were many persons present at that time at the spot.
He stayed at the place of occurrence for 45 minutes till completion of legal formalities. He categorically stated that no cartridges or empties were recovered from the place of occurrence.
Despite the above statements that occurrence took place on a road made of bricks in presence of so many people, yet no empties could be recovered. It may be reminded that reportedly the occurrence took place at 8-15 a.m. And P.W.12 also arrived at 9/9-30 a.m. So it was an occurrence of broad-daylight. Therefore, there was no question of disappearance of empties of .12 bore cartridges if the occurrence had taken place as narrated by P.W.6 and P.W.7. According to P.W.6 and P.W.7 (eye-witnesses), at least three shots directly hit both the deceased and apart from that discriminate tiring was also resorted to by the accused persons. This fact makes us wonder whether we should believe or not, the place of occurrence and manner it occurred as stated by P.Ws. And particularly eye-witnesses, P.W. 6 and. P.W.7.
15. According to the prosecution, the appellant is connected with the commission of the offence on ground of recovery of weapon of offence also. According to P.W.13, he arrested present appellant on 19-12-2001 along with co-accused, Ghulam Haider. On 1-1-2002, he got the weapon of offence recovered from appellant's residential house situated in village Dhariwal. As discussed above, no empties of .12 bore gun were recovered from the place of occurrence though allegedly more than three .12 bore gun shots hit the deceased and a number of shots were fired as a result of indiscriminate firing in a broad-daylight in the presence of so many witnesses. A lot of people got assembled soon after the c occurrence, police alsq had arrived within 40/45 minutes. According to the prosecution own story, it was not an occurrence in a jungle or in a field during a night. Thus, in such circumstances, the recovery of .12 bore gun from the appellant is not reliable and worth of any credence. At this point, statement of P.W.2 may also be briefly mentioned. P.W.2, Sardar Shah Patwari Halqa Bhagowal had prepared the site-plan of the place of occurrence Exh.P.A. And Exh.P.A./1. In his cross-examination, he stated that place of occurrence is Killa No,10 belongs to village Bhagowal. He does not explain any further though he clarifies that the place of occurrence is agricultural land and is not a "Tibba".
16. According to P.W.12, dead bodies were sent to the mortuary after about 30/45 minutes of his arrival at the place of occurrence through Ilyas and Afzal, Constables, whereas, P.W.3 Muhammad Ilyas, FC 1209 stated that dead bodies were firstly taken to the police station and then they escorted the dead bodies to the hospital after `Likhat Parhat' in the police station. So both P. Ws. Who happen to be police officials are not sure how and when the D dead bodies were taken to the hospital. As mentioned above', Muhammad Afzal FC 304 also accompanied the dead bodies who appeared as P.W.4. There is a lot of conflict in statements of P.W.3 and P.W.4 as to where they were when information of occurrence was received at the police station and how did they arrive at the scene of occurrence. According to P.W.3, "Moharrir received the information of murder at about 8-15 a.m.
We arrive at the place of occurrence including S.H.O. And other police officials in total 7/8 persons on a private vehicle/Toyota pickup. He did not known who informed about the occurrence. He did not know whether the informer was accompanying them. He did not enquire from the Muharrir about the informer. He did not know who arranged the private vehicle which was called from the adda. He did not know who brought the vehicle. According to him, "we left the police station after 10/15 minutes after arrival of the vehicle". However, P.W.4 stated that, "I was on patrol duty when I received the information about the occurrence along with Javed Malhi, S.-I. And Ilyas, F.C. (P.W.3).
We were present at Bhagowal Chowk, since 7/8 a.m. We were standing in the chowk. We left the police station at about 6-30 a.m. Muhammad Javed S.-I. Noted the departure in the roznamcha.
We were on police vehicle". According to P.W. 3, he was at the police station when Moharrir informed him about the occurrence and thereafter, he left with other police officials towards the place of occurrence, whereas, P.W. 4 stated that they were already on the patrol duty and they had left police station at 6-30 a.m. From Bhagowal Chowk after receiving information they straightaway left for the place of occurrence.
17. So on very material point statement of one P.W. Is not corroborated E or supported by another P.W. Including the eye-witnesses as discussed at the beginning of this discussion.
18. According to prosecution version deceased, Zaheer alias Babar was very close friend of deceased Atif Maqsood son of P.W.6/complainant, yet P.W.6 did not know anything about Zaheer alias Babar, deceased. He neither knew his father's name nor his work or the time since then both deceaseds were friends. In such circumstances, the criminal record of both deceaseds which figures in the record of this case does not auger well. In such facts and circumstances, we do not find ocular account beyond any shadow of doubt and so is our opinion regarding other pieces of evidence i.e, recovery and motive. The F medical evidence also fails to provide needed support and corroboration to the ocular account which has been discussed at quite some length.
19. Thus, as a result of the above, this Criminal Appeal No,396-J of 2002 is allowed. The order of the learned trial G Court is set aside. The appellant shall be released from jail forthwith if not required in any other case.
20. For the same reasons, Murder Reference No,882 of 2002 is answered in the Negative.