' TARIQ SHAMIM, J.--- This judgment shall dispose of Criminal Appeal No,211 of 2003 filed by Akhtar Hussain alias Kaka, Criminal Appeal No,212 of 2003 filed by Tanvir Ahmad alias Bhaga, Criminal Revision No,218 of 2003 (for enhancement of compensation) filed by Mst. Anwar Begum and Murder Reference No,230 of 2003 submitted by the learned trial Court for confirmation or otherwise of sentence of death awarded to the appellants, as all the matters arise out of the same judgment, dated 7-2-2003.
2. The appellants have challenged the judgment passed by the learned Additional Sessions Judge, Sialkot, in case bearing F.I.R. No,227 of 1998, dated 23-4-1998, registered with Police Station Uggoki, Sialkot, for offence under section 302/34, P.P.C. Whereby he convicted and sentenced the appellants as under:--- {{TABLE}} Akhtar Hussain alias Kaka Under section 302(b), P.P.C. Sentenced to death as Ta'zir with a direction to pay a sum of Rs,1,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased and in default whereof to undergo simple imprisonment for six months. Tanvir Ahmad alias Under section 302(b), Sentenced to death as Ta'zir with a Bhaga P.P.C. Direction to pay a sum of Rs,1,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased and in default whereof to undergo simple imprisonment for six months. {{TABLE}}
3. The prosecution story, as narrated in the F.I.R., in brief, is that on 23-4-1998, at about 8-00 p.m., Mst. Anwar Bibi (P.W.2) the complainant along with her husband Sikandar Ali (deceased) were going to the doctor for obtaining medicine. Tanveer alias Bagha and Akhtar alias Kaka appellants who were present near the gate of Mosque Jafria, on seeing them pulled out their pistols. The appellants raised a Lalkara whereafter Tanveer appellant fired two shots with his pistol which landed on the left and right sides of the chest of Sikandar Ali. Akhtar alias Kaka appellant fired two shots with his pistol which hit on the neck and back of Sikandar Ali. Tanveer appellant again fired a shot with his pistol which hit the deceased below the right armpit who fell down and succumbed to the injuries. Apart from the complainant, Muhammad Aslam and Ghulam Jafar had witrssed the occurrence.
4. After investigation, report under section 173, Cr.P.C. Was submitted in the learned trial Court. The prosecution in order to prove its case produced Talib Hussain (P.W.1), Dr. Fakhar-uz-Zaman (P.W.4), Ihsan Ullah Constable (P.W.5), Barkat Ali (P.W.6), Abdur Razzaq Head Constable (P.W.7), Zafar Iqbal constable (P.W.8), Altaf Hussain, SubInspector/S.H.O. (P.W.9), Arif Hussain, Draftsman (P.W.10), Waqar Javed, S.H.O. (P.W.11) including Mst. Anwar Bibi, the complainant, (P.W.2) and Ghulam Jaffar (P.W.3) as eye-witness of the occurrence. The learned S.P.P. After tendering necessary documents closed the prosecution evidence. At the conclusion of the prosecution evidence the appellants were examined under section 342, Cr.P.C. In response to the question as to why the case against him and why the witnesses had deposed against him, Tanveer Ahmad alias Bagha, appellant, replied as under:--- "All the witnesses are inter-related and have grudge and grouse against me."
' In response to the question as to why the case against him and why the witnesses had deposed against him, Akhtar Hussain alias Kaka, appellant, replied as under:--- "I am innocent. Witnesses are interested witnesses. (Deceased) Sikandar was highly involved in selling of narcotics and immoral activities like Jagga Tax etc. He was remained behind the bars many times but he never cared. I as, however, respectable of the locality, used to forbid him from such-like activities. Occurrence was of unwitnessed occurrence and took place in the darkness of night. I am involved just on the basis of suspicion."
5. The appellants neither opted to appear as their own witnesses in disproof of the allegations levelled against them as required under section 340(2), Cr.P.C. Nor did they adduce any defence evidence. The learned trial Court at the conclusion of the trial convicted and sentenced the appellants as stated earlier, which has been assailed through these appeals.
6. The learned counsel for the appellants argued that the occurrence took place at late hours of the night and was an unseen one; that the F.I.R. Was lodged after due deliberation and consultation on the basis of suspicion only; that the eye-witnesses were not natural witnesses and had failed to provide any plausible explanation for their presence at the place of occurrence which was one mile away from their residence; that the witnesses were closely related to the deceased therefore, independent corroboration was required which was lacking; that there were dishonest improvements and material contradictions in the statements of the witnesses; that the medical evidence did not support the ocular account therefore, an inference could be drawn that the witnesses had not seen the occurrence as they were not present at the place of occurrence; that the investigation was conducted by the Investigating Officer in a dishonest manner that no evidence was led by the prosecution in support of the motive which even otherwise was lacking in details; that the recovery part of the evidence was not established as the witness who had taken the parcels to the concerned quarter did not take the witness stand; that the report of the Forensic Laboratory was not put to the appellants at the trial and that the empties as well as the weapons recovered from the appellants were sent together to the Forensic Science Laboratory.
7. The learned Deputy Prosecutor-General assisted by the learned counsel for the complainant contended that the prosecution had succeeded in proving its case against the appellants beyond a shadow of doubt; that the ocular account was confidence-inspiring and furnished by witnesses whose presence at the spot was natural and well-explained; that the ocular account was fully corroborated by the medical evidence and the evidence of recovery of weapons from the appellants and that the judgment of the trial Court was in consonance with evidence adduced at the trial therefore, it did not call for interference by this Court.
8. We have heard the learned counsel and have gone through the paper book with their able assistance.
9. It has straightaway been noticed by us that Mst. Anwar Bibi (P.W.2) and Ghulam Jaffar (P.W.3) who are the eye-witnesses of the occurrence are closely related to the deceased i.e., his wife and brother and are residing at a distance of one mile from the place of occurrence. Ghulam Jaffar of his own showing arrived at the place of occurrence 2/3 minutes before the occurrence by chance.
No plausible explanation has been put forth by this witness to justify his presence at the spot. Mst.
Anwar Bibi stated that she had accompanied the deceased in order to obtain medicine from the doctor as she was suffering from low blood pressure, fever and some nerve disorder. No prescription was produced by this witness before the police in support of her claim. The conduct of this witness is also unnatural inasmuch as while her husband was lying in an injured condition on the ground she did not make any effort to even touch him. She also failed to disclose the name of the person who had taken the deceased to the hospital. Further, both the eye-witnesses in their statements before the police mentioned that the deceased suffered one injury on the neck, two injuries on the left and right side of the chest and one injury on the back but while taking the witness stand the locale of the injury on the left side of the chest was shifted downward, the injury near the armpit Was introduced for the first time and the injury statedly on the back was totally excluded. This was done by the witnesses in order to bring their testimony in line with the medical evidence. In their statements before the police the witnesses ascribed two fire-shots to each appellant however, at the trial three shots were attributed to Tanvir appellant whereas only shot was ascribed to Akhtar appellant. According to these witnesses four shots were fired by the appellants in the occurrence and four empties of .30 bore pistol were taken into possession by the police from the spot. However, Dr. Fakharuz-Zaman (P.W.4) who had conducted the post-mortem examination on the dead body of Sikandar Ali stated that the bullet after entering through injury No,3 on the upper right side of chest took a transverse course under the pectoralis major muscle and emerged through injury No,5 in axilla without entering chest cavity and re-entered the right upper arm through injury No,6 while exiting from injury No,4. Meaning thereby that the injuries attributed to Tanvir appellant on the left side of the chest and near the armpit were in fact caused by one fire-shot. The description of this injury suggests that in all probability it was caused from an angle as the bullet did not penetrate the chest cavity which again is at variance with the ocular account according to which shots were fired from the front. Thus, there are glaring inconsistencies between the ocular account and the medical evidence which when coupled with other infirmities in the eye-witness account referred to above lead to an inescapable conclusion that these witnesses had not seen the occurrence and their testimony before the trial Court is not based on truth.
10. Although after having disbelieved the ocular account there is no need to discuss the evidence of motive and recovery but for our own satisfaction we would like to undertake the exercise. Insofar as the motive is concerned Anwar Bibi (P.W.2) and Ghulam Jaffar (P.W.3) deposed about the same which according to the witnesses was that the appellants were involved in nefarious activities and were forbidden by the deceased from doing so. It has been observed that firstly, Anwar Bibi and Ghulam Jaffar are not eye-witnesses of the motive part of the prosecution case and secondly, contrary to what was stated by them instead of the appellant the deceased was involved in criminal cases and had been in jail in connection with a case under the Prohibition (Enforcement of Hadd) Order, 1979. To all questions put by the defence to Anwar Bibi regarding involvement of the deceased in criminal cases evasive answers were given by the witness. Certificates Exh.P.N. And Exh.P.O. Reflect that both the appellants were non-record-holders. Admittedly no evidence was produced by the complainant in support of the motive before the Investigating Officer. It is, therefore, manifest that the motive behind the murder of the deceased was not proved by the prosecution at the trial.
11. Now adverting to the recovery of weapons pistols .30 bore P.5 and P.6 from the appellants it has been observed by us that the empties recovered from the spot as well as the pistols were sent to the Forensic Science Laboratory together which were received on 15-7-1998 and the report of the Forensic Science Laboratory was not put to the appellants in their statements recorded in terms of section 342, Cr.P.C. As a circumstance against them. In view thereof the evidence of recovery of weapons from the appellants has to be excluded from consideration.
12. From the above discussion it is evident that the prosecution has failed to prove its case against the appellants beyond a reasonable doubt. Consequently, by extending the benefit of doubt to the appellants we acquit them of all the charges. They be set free forthwith if not required in any other case. The appeals are "accepted" and sentence of death awarded to Akhtar Hussain alias Kaka and Tanvir Ahmad alias Bhaga, appellants, is "not confirmed." Murder Reference in the is answered in the "negative."