' SYED HUSSAIN MAZHAR KALEEM, J.-The above titled appeal and reference arise out of the proposed orders of the learned members of District Court of Criminal Jurisdiction, Bhimber giving dissenting views whereby District Qazi convicted and awarded death sentence under section 302, A.P.C. And one year simple imprisonment under section 13/20/65, A.A. To accused Muhammad Aslam and Muhammad Ilyas while the other member learned Sessions Judge acquitted them.
2. The necessary facts are that a case under sections 302/109, 34, A.P.C. Was registered at Police Station, Barnala on the complaint of Muhammad Ismail. It was reported that on 20-11-2000 at 2-20 p.m! a buffalo was injured due to Indian firing. Ali Asghar alias Israel son of Muhammad Khan and Jamil Akhtar son of Muhammad Ismail went to see the injured animal. While coming back when reached at the place known as Nabin, Muhammad Aslam son of Gul Muhammad and Muhammad Ilyas son of Muhammad Hussain who waylaid attacked them. Muhammad Aslam fired a burst with Kalashnikovs which hit Ali Asghar. Muhammad Ilyas accused sitting at a short distance also targeted Jamil Akhtar and fired three shots with .222 bore rifle. The victims fell down after receiving the injuries. While on the way to hospital Ali Asghar died whereas Jamil Akhtar succumbed to the injury after arriving in hospital. The occurrence was stated to be witnessed by Muhammad Hussain son of Jalal Din and Munshi Khan son of Allah Ditta. It was alleged that due to conspirational efforts of Israel son of Yaqoob Ali, Muhammad Shabir son of Muhammad Shafi, Mian Khan son of Sakhi Muhammad, Muhammad Hussain son of Ilam Din, Muhammad Akram son of Muhammad Khan, Muhammad Ishaq son of Muhammad Hussain and Sajid Ali son of Muhammad Sadiq, the accused person committed the offence. Sajid Ali was alleged to have provided the weapons for commission of the offence. The dead bodies were taken to Bandala on cots from there they informed Police Headquarter, Bhimber about the occurrence. The dead bodies were shifted in a vehicle and were taken to Barnala Police Station via Bhimber.
3. During investigation Muhammad Hussain, Muhammad Ishaq, Muhammad Shabir, Arbab alias Mian, Jsrael, Muhammad Akram and Sajid Ali were given benefit of section 169, Cr.P.C. And section 109, A.P.C. Was deleted whiel a challan for offence under section 302/34, A.P.C. Was submitted against Muhammad Aslam and Muhammad Ilyas before the trial Court. On conclusion of the trial, learned members of District Court of Criminal Jurisdiction, Bhimber and difference of opinion.
Learned District Qazi proposed death sentence under section '302, A.P.C.' to both the accused person and one year S.I each under section 13/20/65, A.A. While the other member, learned Sessions Judge acquitted them of the charge. Hence the reference and the above titled appeal.
4. Learned counsel for Muhammad Aslam and Muhammad Ilyas accused argued that F.I.R. Was lodged after a considerable delay. The prosecution witnesses were closely related to the deceased and an enmity was prevailing between the parties. They concocted a story to rope them in a false case. The presence of the eye-witnesses at the place was highly doubtful and in fact it was unseen occurrence. No independent witness or any corroboration to the ocular version was brought on record. According to the learned counsel the complainant nominated nine accused persons in the F.I.R. The eyewitnesses supported the claim but during investigation seven of them were found innocent and were given benefit of section 169, Cr.P.C. It clearly indicates that the complainant and the eye-witnesses made deliberate attempt to involve innocent people in a false case on account of enmity, therefore, their statements were not worth relying even to the extent of Muhammad Aslam and Muhammad Ilyas. He further argued that Muhammad Ilyas accused was alleged to have fired with .222 bore gun but no crime empty of the said weapon was recovered form the people of occurrence. He stated that as per site -plan Exh.PL Muhammad Aslam and Muhammad Ilyas accused were attributed to have fired at Muhammad Asghar and Jamil Akhtar from the points Nos.3 and 4 while the crime empties of Kalashinkovs were seized from two different places shown as Nos.7 and 8 at a distance of 15 and 10 feet form the place of firing. The learned counsel contended that the prosecution story about the injured buffalo was improbable and was designed to justify the presence of the parties at the place of occurrence. Postmortem reports negate the claim, of prosecution for distance between the assailants and the victims. He submitted that the prosecution failed to prove the alleged motive. The origin of fight and manner of occurrence were shrouded in mystery. The learned District Qazi failed to appreciate that the prosecution story being highly doubtful was not worth consideration, therefore, the sentence proposed by him were of no consideration and the view of learned Sessions Judge, based on correct appreciation of facts be taken into consideration.
5. On the other hand, it was argued that the occurrence took place during broad daylight. The accused persons were nominated in the F.I.R. By the complainant and their identification was not in doubt. The prosecuting had given a reasonable explanation of delay in lodging the F.I.R. The names of the accused persons, victims and the eye-witnesses were specifically given there. The place occurrence was not disputed and it was also proved during investigation through the recovery of bloodstained clay. According to the learned counsel the recovery of crime empties crime form the place of occurrence and weapons of offence at the instance of the accused person support the prosecution version. Forensic Science Expert's report regarding Kalashinkovs recovered from Muhammad Aslam accused and postmortem reports also lend support to the ocular version.
Alleged motive, origin of fight and manner of occurrence were successfully proved during trial. The eyewitnesses had given a true-account of the occurrence which stands corroborated by recovery of weapons, crime empties, blood stained clay and post-mortem reports etc. He contended that in light of the material brought on record by the prosecution it stands established that due to conspiracy of Muhammad Hussain, Muhammad Ishaq, Muhammad Shabir, Muhammad Akram, Arbab alias Mian Khan, Israel, Muhammad Akram and Sajid Ali, the accused persons committed the offence. He further contended that on the sole ground that some of the accused persons were given benefit of section 169, Cr.P.C. For want of proof, the credibility of the eye-witnesses cannot be doubted. Mere relationship between the complainant and the eye-witnesses was also not sufficient to disbelieve the ocular version. The learned Sessions Judge failed to appreciate the material on record in a judicial fashion while the learned Qazi arrived, at correct decision after considering all aspects of the case, therefore, the sentence proposed by him may be upheld.
6. Learned Assistant Advocate General supported the arguments advanced by the learned counsel for the complainant.
7. Since the appeal and the reference arise out of the orders of members of the trial Court, therefore, these shall be disposed of through this common judgment.
8. I have heard the learned counsel for the parties and gone through the record of the case including the opinions of learned members of the trial Court.
9. According to the deposition of the complainant, on 20-11-2000 the buffalo of Bashir son of Punun Khan was injured due to Indian firing. At about 2-20 p.m. Ali Asghar alias Israel son of Muhammad Khan and Jamil Akhtar son of Jamil went there and while on way back when reached the place known as Nabin, Muhammad Aslam alias Achoo and Muhammad Ilyas who way laid attacked them. Aslam alias Achoo fired at Ali Asghar with Kalashinkovs which hit him in his chest., In the meantime Ilyas fired three single shots with .222 bore rifel at the chest of his son Jameel Akhtar. The victim fell down after receiving injuries. On hue and cry the residents of locality came at the place of occurrence and took the injured persons to small dispensary situated in Nali. Ali Asghar died in the way while Jamil Akhtar also succumbed to the injury after reaching the hospital. The occurrence was also witnessed by Muhammad Hussain and Munshi Khan. Motive behind the occurrence was stated to be some family dispute and litigation between the parties. The accused persons ran away after committing the offence. It further appears from the statement that Muhammad Aslam and Muhammad Ilyas committed the offence due to conspiracy hatched by Israel son of Yaqoob Ali, Muhammad Shabir son of Muhammad Shafi, Mian Khan son of Sakhi Muhammad, Muhammad Akram son of Muhammad Khan, Muhammad Hussain son of Ilam Din, Muhammad Ishaq son of Muhammad Hussain and Sajid Ali son of Sadia residents of Jalalpure.
Sajid Ali was attributed to have provided the .Weapons to the accused persons for commission of the offence. Muhammad Hussain and Munshi Khan eye-witnesses also repeated the same story and further added that they were with the victims, at the time they went to see the injured buffalo.
10. The above mentioned ocular version was'relied upon by the learned District Qazi while proposing death sentence under section 302, A.P.C. And one year S.I. Under section 13/20/65, A.A. He was of the opinion that the prosecution succeeded in proving its case against the accused persons. In light of the record it stands established that deceased were killed with fire-arm weapons which were recovered at the instance of accused persons and crime empties were also recovered from the place of occurrence. The alleged motive was proved. The witnesses were found "Adil" in purgation. There were no contradictions in their statements and minors discrepancies were not relatable to the main occurrence, therefore, were not worth consideration.
11. Learned Sessions Judge who conducted a detailed scrutiny of the evidence and proposed acquittal, was of the view that he presence of the complainant at the place of occurrence at relevant time was doubtful as he did not claim to be an eyewitness at the time of lodging F.I.R. The statements of the other eye-witnesses were full of contradictions. The prosecution failed to prove the alleged motive. Muhammad Bashir owner of the injured buffalo was not cited as witness while his statement was essential for just decision of the case. The claim of Munshi Khan and Muhammad Hussain that they went to the house of Muhammad Bashir along with the victims was not mentioned in the F.I.R. The eye-witnesses were closely related to the deceased. The use of .222 bore gun by Muhammad Ilyas was not proved as no empty of said weapon was recovered from the place of occurrence. The recoveries were doubtful and the postmortem reports contradicted the ocular version regarding distance between assailants and the victims. The learned member disbelieved the prosecution story and proposed acquittal.
12. I have considered the above mentioned opinion and the prosecution evidence with care. The alleged motive behind the occurrence was a family dispute and the litigation between the parties though no record pertaining to any case or details of family dispute were brought on record -but a least it stands established that some enmity was prevailing between the parties.
13. According to the prosecution case the victims went to see the injured buffalo of Muhammad Bashir. As per deposition of the eye-witnesses he also came at the place after the occurrence. The statement of Investigating Officer shows that he did not bother to confirm the presence of the victims at the place where the injured buffalo was also found. In this situation the statement of Muhammad Bashir was necessary to prove prosecution's claim regarding presence of the victims at the place of occurrence but was not cited as witness.
14. According to the ocular version that fires made by Muhammad Aslam and Muhammad Ilyas hit the victims at their chests which shows that they were assaulted from the front while from perusal of the post-mortem reports Exh.PN and Exh.PM it appears that both the victims were assaulted form the right backside. Ali Asghar sustained injury at the right lateral side of his chest while Jamil Akhfar suffered injury at his back below the chest on the right side at about renal area and exit wound were present at their chests. As per statement of P.W. Doctor, Ali Asghar victim was not fired upon from the front and was hit form the right side while Jamil Akhtar was fired upon from the back which clearly shows that the reports and deposition of P.W. Doctor negates the ocular version and it reveals that the eye-witnesses were not present at the place of occurrence as they could not perceive the manner of occurrence correctly. It also indicates that seat of injuries were in conflict of ocular version thus it implies that the eye account was doubtful.
15. According to the record Kalashinkovs was recovered at the instance of Muhammad Aslam through seizer memo. Exh.PG on 24-1-2000 from Kathy ala Nali Jungle. Muhammad Asif son of Muhammad Siddique and Javed Iqbal son of Munshi Khan were the attesters while .222*i)ore rifle was recovered at the instance of Muhammad Ilyas from Majarian where it was hidden in bushes through seizer memo. Exh.P.C.C. On 12-12-2000 in presence of Muhammad Hussain and Alif Khan.
Thus it is clear that the recoveries were effected from open places. The. Attesters were closely related to the deceased and inter se and also inimical towards the accused party thus being interested cannot be relied upon, therefore, the recovery of weapons was not above doubt. It may be mentioned here that at the time of submission of challan the accused persons were not charged under section 13/20/65 A.A and no question about the commission of offence was asked form them during proceedings under section 242, Cr.P.C. Which shows that the prosecution was not satisfied with the material collected by it regarding the offence. In view of the aforesaid facts, I am of the opinion that the recovery of alleged weapons was of no consideration.
16. It is evident that F.I.R. Was lodged after 18 hours of the occurrence, whereas the distance between the place of occurrence and police station was 20 K.Ms. and according to the complainant he informed Police Headquarter Bhimber about the occurrence form Bandala but no evidence in this regard or to show that the complainant and the eye-witnesses disclosed the allegation leveled against the accused persons to any other persons before lodging the F.I.R. Was brought on record. In the given circumstances it cannot be ruled out that during this period the complainant might have concocted a story to rope the accused persons in the case on account of enmity.
17. In light of the facts listed above it stands established that an enmity was prevailing between the parties. The part of the prosecution story about the injured buffalo and motive was not proved during trial. No crime empty of .222 bore gun was recovered from the place of occurrence. Ocular version regarding manner of occurrence was contradicted by the medical reports. The eye- witnesses and attesters of the recovery memos, were closely related to the deceased and were inimical - towards the accused persons. No corroborative material from some independent source in support of the prosecution story was brought on record and in this situation the deposition of the eye-witnesses and attesters was not worth consideration.
18. The upshot of the above discussion is that prosecution story being highly doubtful was not worth relying, The learned District Qazi failed to appreciate the above mentioned facts while the learned Sessions Judge by applying its judicial mind arrived at a correct decision, therefore, Muhammad Aslam and Muhammad Ilyas accused persons are acquitted of the charges by extending benefit of doubt.
19. The reference and the appeal stands disposed of accordingly.