' MUHAMMAD FARRUKH MAHMUD, J.---This judgment will dispose of Criminal Appeal No,243 of 1999 filed by Naseeb Ullah and Criminal Appeal No,244 of 1999 filed by Khalid Mehmood appellants, who were convicted and sentenced by the learned Additional Sessions Judge, Sialkot, in case. F.I.R.
No,460, registered at. Police Station Ugoki, on 7-8-1995 for offences under sections 302/34, P.P.C., vide his judgment dated 1-4-1999 as under:--- Naseeb Ullah Death with compensation of Rs,50,000 or in default two years' R.I. Under section 302(b), P.P.C. For causing murder of Sajjad Anjum.
Khalid Mehmood Death with compensation of Rs,50,000 or in default two years' R.I. Under section 302(b), P.P.C., for causing murder of Arshad Mehmood.
Murder Reference No,169. Of 1999 for confirmation or otherwise of death sentence awarded to the appellants shall also be disposed of through this single judgment.
2. Brief facts of the case as mentioned in F.I.R. Exh.P.A. Recorded on the statement of Muhammad Anwar (complainant/P.W.1) are that on 7-8-1995 at 7-30 p.m. The complainant along with his sons Sajjad Anjum (deceased) and Muhammad Arshad, Khalid Mehmood sons of Siraj Din (P.W.2), Arshad Mehmood son of Nawab Din (deceased) and Nawab Din son of Faqir Muhammad was sitting in the courtyard of his house and were gossiping with each other. All of sudden they heard noise and abuses from the roof of the house of Muhammad Ashraf, Lumberdar. They all went to the roof of house of complainant and saw Khalid Mahmood and Naseeb Ullah accused armed with .222 rifles and Muhammad Boota empty handed were present there. Muhammad Boota father of Naseeb Ullah raised Lalkara that Sajjad Anjum and others were teasing them almost daily and exhorted his son Naseeb Ullah and Khalid Mehmood that Sajjad Anjum and others be finished today. Hence, Khalid Mehmood fired a burst, which hit Arshad Mehmood on left side of his abdomen and on his left thigh. Naseeb Ullah also fired which hit Sajjad Anjum on his right eye. The complainant and other P. Ws. Saved their lives by throwing themselves on the roof. Thereafter the accused made good their escape. It is also mentioned in the F.I.R. That both the injured were taken to Allama Iqbal Memorial Hospital, Sialkot in a Suzuki Pickup but they succumbed to the injuries while they were on the way.
' The motive behind the occurrence as set down in the F.I.R. Was that 5/6 years earlier to the occurrence the complainant party had a quarrel with Khalid Mehmood and Muhammad Boota, which resulted into strained relations between both the parties. On the day of occurrence a quarrel also took place between Muhammad Asif son of the complainant and Naseeb Ullah on striking of motorcycle. For that grudge all the three persons with common intention launched murderous assault and committed the murders.
3. After registration of formal F.I.R., the investigation of the case was taken over by Bakar Hussain, Inspector/P.W.8. He reached the Hospital, took over the dead body, prepared inquest reports Exh.P.K. And Exh.P.L. And injury statements Exh.P.K./1 and Exh.P.L./1, of both the deceased. On 8-8-1999 he proceeded to the place of occurrence and took into possession bloodstained earth from the places of murders of Arshad Mehmood and Sajjad Anjum vide memos. Exh.P.F. And Exh.P.E.
Respectively. On 31-8-1995 he arrested Naseeb Ullah and Khalid Mehmood accused. On 13-9-1995 at the instance of Naseeb Ullah, P.W.8 recovered .12 bore gun P.7 and took the same into possession vide memo. Exh.P.D. On 14-9-1995 Khalid Mehmood led to the recovery of .222 rifle, which was taken into possession vide memo. Exh.P.G. After completion of investigation, both the accused were sent up to face trial. Muhammad Boota could not be arrested and thereafter declared proclaimed offender.
4. At the trial, the prosecution in order to prove its case produced 9 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.P.R. And that of Serologist Exh.P.S., and photocopy of Rapat No,227 of 1990 of Police Station Ugoki Exh.P.T., closed its case. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence. They did not appear as witness under section 340(2), C.P.C. After conclusion of trial the appellants were convicted and sentenced as stated above.
5. After having read the entire prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. And other relevant material available on record, the learned counsel for the appellants in support of both these appeals submits that it is established through the record that the witnesses had not seen the occurrence; that both the witnesses made dishonest improvements during their statements recorded before the learned trial Court after knowing the post-mortem report; that F.I.R. Was recorded after due deliberations and much delay; that the ocular account was not supported by the medical evidence nor was corroborated by any independent reliable evidence; that the investigation was conducted with dishonesty as neither Muhammad Ashraf nor Rehmat Ali were associated with the investigation and their statements were not recorded; that according to the P.Ws. The occurrence took place on the roof of the house of Muhammad Anwar-complainant, while one of the dead-bodies was lying on the roof of the house of Rehmat Ali and the other was lying on the roof of Muhammad Anwar; that the learned trial Court has wrongly held that the house of Muhammad Ashraf and the complainant were adjacent, as according to site plan the house of Muhammad Ashraf was across the street; and that the prosecution case was replete with doubts.
6. Kh. Awais Mushtaq, Advocate, the learned counsel appearing on behalf of the complainant submits that the occurrence took place when the light was available and the identification of the assailants was not doubted; that both the witnesses have given consistent account of the version before the learned trial Court; that minor discrepancies between the statements of the witnesses would not affect the prosecution case; that the ocular account was supported by the medical evidence and corroborated by the motive. Mr. Muhammad Azhar, Advocate, another learned counsel for the complainant submits that the occurrence took place while the light was available; that the occurrence took place over the roofs; that the parties were facing each other; that the ocular account is supported by the circumstantial evidence as well as medical evidence; that non- recovery of empty would not benefit the appellants; that Muhammad Anwar was the star witness of the case and had no enmity with the appellants to involve them in a false case; that the P.Ws.
Were the natural witnesses of the occurrence; that the venue of occurrence was not challenged by the defence; that Naseeb Ullah accepted the motive; that contradictions between the story narrated in the F.I.R. And the story narrated before the learned trial Court would not matter as the F.I.R. Was not an exhaustive piece of evidence if details are not given therein; that the motive is admitted by Naseeb Ullah; that substitution was rare. Phenomenon in this case and no reasons existed to substitute the real killer for an innocent person; that both the appellants acted in a cruel manner and deserve no leniency.
7. The learned counsel appearing on behalf of the State have adopted the line of arguments advanced by the learned counsel for the complainant.
8. We have heard the learned counsel for the parties at great length and scanned the entire record minutely. According to the prosecution case on the fateful evening, the complainant and his sons Sajjad Anjum (deceased) and Muhammad Arshad, and Khalid Mehmood P.W.2, Arshad Mehmood son of Nawab Din (deceased) and Nawab Din son of Faqir Muhammad was present in his house.
While they were gossiping, they heard noise and abusing from the roof of the house of Muhammad Ashraf, Lumberdar. All of them went to the roof of the complainant's house and saw that Khalid Mehmood and Naseeb Ullah-appellants, both armed with .222 rifles, and Muhammad Boota father of Naseeb Ullah, empty handed, were present there. Muhammad Boota raised Lalkara thereafter Khalid Mehmood-appellant fired a burst with his rifle, which hit Arshad Mehmood on his abdomen and on the front side of left thigh. Naseeb Ullah also fired with his rifle, which hit on the right eye of Sajjad Anjum. The complainant and the P.Ws. Saved their lives by throwing themselves on the roof.
Sajjad Anjum and Arshad Mehmood were taken to Allama Iqbal Hospital, Sialkot, in a Pickup.
However, they lost their lives while they were on the way. The motive behind the occurrence was that 5/6 years prior to the occurrence some dispute occurred between Khalid Mehmood P.W. And Muhammad Boota and other accused. On the fateful day Muhammad Asif son of the complainant and Naseeb Ullah-appellant quarrelled with each other over striking of motorcycle.
9. In order to prove its case the prosecution produced P.W.1 Muhammad Anwar, father of Sajjad Anjum-deceased and P.W.2 Khalid Mehmood, who was related to Sajjad Anjum deceased. Enmity between the P.Ws. And the appellants is admitted, hence, their statements need deeper scrutiny.
10. Both the witnesses made dishonest improvements during trial on almost of all the material points of the case and were duly confronted with their earlier statements. As against F.I.R., the complainant and Khalid Mehmood P.W.2 stated before the Court that the appellants were holding .12 bore rifles. The complainant insisted that he had not got recorded that the appellants were in possession of .222 rifles. Of course, the complainant and Khalid Mehmood P.W. Were confronted with their earlier statements. This dishonest improvement was made by the P.Ws. To bring their evidence in conformity with the medical evidence. As according to medical evidence the pellets were removed from the bodies of the deceased, which were sealed and handed-over to Talib Hussain, Constable/P.W.5. Doctor further cleared the matter by stating during cross-examination that it were the pellets, which were recovered from the dead bodies and no bullet was discovered during the course of postmortem examination. Not that P.Ws. Did not know the difference between rifle and .12 bore gun but they deliberately lied before the learned trial Court, which is evident from the fact that the complainant admitted that he was holder of license of .7 mm rifle and the rifle was available with him. He also admitted that his son Muhammad Arshad was holder of a valid license of revolver. Khalid Mehmood P.W. Also admitted that Muhammad Anwar had license of holding weapon and knew the difference between rifle and .12 bore gun. These facts leave no doubt that both the witnesses made dishonest improvements about the weapon after knowing about the post-mortem report.
11. Dishonest improvements made by the witnesses during trial did not end there and many new facts were introduced. For example, it was stated by the complainant/P.W.1 that Khalid Mehmood and Naseeb Ullah appellants were friends and related to each other. P.W.2 also stated that they were friends. Both the witnesses were duly confronted with their earlier statements wherein it was not mentioned that both the appellants were' friends or related to each other. Both the witnesses introduced an additional motive by stating that Mst. Pervin mother of Naseeb Ullah wanted to marry her daughter with Khalid Mehmood-appellant, which was objected to by Muhammad Anwar-complainant, as many persons having ill-repute used to visit the house of Mst. Pervin. Both the witnesses were once again duly confronted with their earlier statements. The story of marrying the sister of Naseeb Ullah with Khalid Mehmood was introduced to bring on record the link between both the appellants. P.W.1 and P.W.2 also introduced time of altercation, which took place between Muhammad Asif and Naseeb Ullah earlier over colliding of motorcycle, by stating that the same took place at 7-00 p.m. It was also stated that Naseeb Ullah was slapped by Muhammad Asif son of the complainant. The witnesses were duly confronted with their earlier statements vis-a-vis addition made by them before the learned trial Court. In addition to that, Muhammad Asif appeared as P.W.4, who did not say that altercation between him and Naseeb Ullah took place at 7-00 p.m. Both the witnesses further improved their stories by stating that after occurrence the accused went to the house of Khalid Mehmoodappellant and that the deceased were taken to the doctor who pronounced them dead. They were duly confronted with their earlier statements. In F.I.R.
It was stated that both the deceased died while they were being taken to hospital and it was not mentioned at all that they were examined by the doctor or doctor pronounced them dead.
12. The statements of both these P.Ws. About the occurrence are also contradicted by the circumstances of the case. According to F.I.R., the occurrence took place on the roof of the house of complainant Muhammad Anwar where the deceased and the witnesses were present, while according to site plan dead-body of Sajjad Anjum was lying on the roof of the house of Rehmat Ali and the dead-body of Arshad Mehmood was lying on the roof of the house of Muhammad Anwar- complainant. As against F.I.R., Khalid Mehmood/P.W.2 stated that he had seen the occurrence while he was present on the roof of the house of Rehmat Ali. Khalid Mehmood P.W.2 admitted that enmity existed between him and Khalid Mehmood-appellant and he was visible to the appellants, in that case they would not have spared him. The site plan Exh.P.M. Makes it clear that the house of Muhammad Ashraf was not adjacent to the house of Muhammad Anwar rather it was across the street. All the above noted facts, especially presence of the dead-bodies on the roofs of the two different houses, knock out the story given in the F.I.R. And it reflects on the presence of the P.Ws. At the time of occurrence.
13. Both the P.Ws. Have also contradicted each other on all the material points. According to Khalid Mehmood/P.W.2 he accompanied the complainant in a Rickshaw to the police station but his statement was not recorded by the Investigating Officer as he remained outside and did not enter the police station. On the contrary, the complainant stated that Khalid Mehmood, Arshad Mehmood and Nawab Din P.Ws. Had gone with him to the police station. He further stated that statements of all the witnesses were also recorded in the police station.
14. We have gone through the inquest reports (Exh.P.K. And Exh.P.L.) of both the deceased, wherein the names of the witnesses have been added in the last three lines. Name of Khalid Mehmood has been mentioned in the relevant column on the last page of both the inquest reports but his signatures are missing thereon, while signatures of other two witnesses are present. It further strengthens our view that Khalid Mehmood/P.W. Was not present at the time of occurrence.
15. It has been urged by the prosecution that F.I.R. Was lodged promptly but the statement of the complainant does not support it. According to F.I.R., the matter was reported at the police station at 9-00 p.m. Within 1-1/2 hours. On the contrary, the complainant stated that he reached the hospital after 50 minutes of the occurrence and remained in the hospital for about 1-1/2 hours and thereafter he left for police station. He further stated that Bakar Hussain, Inspector, came to the police station after 35 minutes of his arrival. If the time is calculated then the case could not be registered before 10-30 p.m. When it was put to the complainant that police post was situated just near the emergency ward of the hospital, his reply was that he did not know. In the light of the above noted facts it cannot be said that the F.I.R. Was lodged at the time which was reflected in the F.I.R.
16. As far as the medical evidence is concerned, it contradicts the version given in the F.I.R. That the deceased died due to fires caused by the rifles. It only shows that the cause of death of both the deceased was fire-arm injuries caused by gun fires.
17. So far as motive is concerned, the prosecution could succeed only in establishing that enmity existed between the appellants and the P.Ws. The P.Ws. Tried to improve their statements before the learned trial Court and also introduced an additional j motive. They were confronted with their earlier statements. No independent witness has been produced in support of the motive. Mere admission of Naseeb Ullah that an altercation had taken place between him and Muhammad Asif would not help the prosecution in any manner.
18. Recovery of weapons a1 the instance of the appellants can also be not used against them, as neither the weapons were sent to the Forensic Science Laboratory nor any empty was recovered from the scene of occurrence.
19. In the above noted circumstances, we are of the considered opinion that the eye-witnesses were not worthy of credence and the prosecution case was not free from doubt. Hence, we allow both these appeals (Criminal Appeals Nos.243 and 244 of 1999) and set aside the judgment passed by the learned trial Court. The appellants are acquitted of all the charges. They would be released from jail forthwith, if not required in any other case.
20. Murder reference is answered in the negative. Death sentence is not confirmed.