Tariq Shamim, J.--Appellants, namely, Muhammad Nawaz and Muhammad Ramzan alongwith seven acquitted co-accused, namely, Ghulam Farid, Manzoor Ahmad, Abdul Shakoor, Ehsanullah, Attaullah Shah Muhammad alias Shahu and Noor Muhammad, were tried by the learned Additional Sessions Judge, Sargodha in the case F.I.R No, 281 dated 3.9.2001, in respect of offences under Sections 302/148/149 read with Section 109 PPC, Police Station Silanwali, District Sargodha.
Vide judgment dated 20.7.2002, he found the appellants guilty for the murder of Muhammad Mumtaz-deceased and, hence, convicted as well as sentenced both the appellants to death each under Section 302(b)/34 PPC with a direction to pay a sum of Rs,50,000/- each under Section 544- A Cr.P.C. to the legal heirs of the deceased, or in default of, payment thereof, they were directed to undergo six months SI each extra. However, Ghulam Farid, Manzoor Ahmad, Abdul Shakoor, Ehsanullah, Ataullah, Shah Muhammad alias Shahu and Noor Muhammad were acquitted of the charge by the learned trial Court by giving them benefit of doubt. Benefit of section 382-B, Cr.P.C, however; was given to the appellants/convicts.
2. Aggrieved by the judgment of the learned trial Court, both the appellants have challenged their convictions and sentences by filing the above-mentioned Criminal Appeals while Murder Reference No, 619/2002 seeks confirmation or otherwise of the sentence of death awarded to the appellants. This consolidated judgment will dispose of all the said matters.
3. Compendiously, the prosecution's story, as narrated by the complainant through his complaint (Exh.PA) which culminated into F.I.R (Exh.PE/1) was/is to the effect that on 2-9-2001, after Isha prayer, the complainant along with Noor Muhammad and his brother Muhammad Mumtaz went to their Behk situated in Square No, 56, Killa No, 24 and slept there as usual on their cots. The cot of Muhammad Mumtaz was about 10/12 karams away from the cots of the former. At midnight, they heard barking of dogs upon which they got up and saw that Ehsanullah-accused armed with gun and another unknown person of normal stature, armed with 12-bore gun were standing on the side of their heads, who exhorted to them that if they raised any noise, they would be killed. Manzoor- accused caught hold of Muhammad Mumtaz by his legs and another unknown person, who was young and of normal stature, caught hold of by the arms of his brother. They also saw Muhammad Nawaz alias Bhutto, Muhammad Ramzan and Ataullah accused, armed with hatchets, standing by the side of the cot of complainant's brother Mumtaz, on whose neck Muhammad Nawaz alias Bhutto gave hatchet blow. Muhammad Ramzan accused gave hatchet blow on the right cheek of his brother under the right ear. Then Ataullah accused gave a hatchet blow on the left hand of complainant's brother. They raised alarm. Sikandar Hayat and Manzoor Ahmed, PWs, who were present near their Behk and were going towards complainant's Behk, challenged the accused and on their reaching all the accused fled away with their weapons. Besides the complainant, Noor Muhammad, Sikandar and Manzoor Ahmed witnessed the occurrence. When the accused persons left the place of occurrence, the complainant and others attended Muhammad Mumtaz, who had succumbed to his injuries at the spot.
4. The motivating factor behind the occurrence is stated to be that the complainant-party had beaten Ataullah, Ehsanullah's real uncle Noor Muhammad, Ramzan and Manzoor Ahmed and on account of that revenge, Muhammad Nawaz, Manzoor Ahmed, Muhammad Ramzan, Ataullah, Ehsanullah and unknown accused with their common intention, on the abetment and consultation of Farid, Shahu, Noor Muhammad, had murdered the brother of the complainant.
5. After completing the investigation, the Investigating Officer found the appellants as well as (acquitted co-accused) guilty and challaned them to face the trial.
6. During the trial, the prosecution, in support of its case, produced as many as 11 witnesses.
Muhammad Ramzan-complainant entered the witness box as PW.9 and gave the ocular account of the occurrence.
Sikandar Hayat and Muhammad Ramzan appeared as PW.8 and PW.9, respectively and supported the version of the complainant.
Zawar Hussain, S.I, appeared as PW. 11 and furnished the detail of investigation conducted by him.
Dr. Munawar Ali, who had conducted the autopsy on the dead body of the deceased appeared as PW.3 and furnished the detail of injuries, observed by him on the corpse of the deceased, as under:- - "1. An incised wound measuring 8 cm x 3 cm going deep on right mandible, 3 cm from right angle of mouth, 7 cm from angle of right eye.
2. An incised wound measuring 12 cm x 3 cm going deep on front and right side of neck 5 cm below from Injury No, 1.
3. An incised wound measuring 3 cm x cm x bone exposed on back of left hand 5 cm from left wrist joint."
According to the said doctor, death had occurred due to combined effect of Injury No, 1 and Injury No, 2 which had been inflicted by a sharp edged weapon, antemortem and sufficient to cause death in ordinary course of nature. He further opined that Injury No, 3 had some additive effect which also had been inflicted by a sharp edged weapon and ante-mortem in nature.
7. After tendering in evidence the reports of the Chemical Examiner (Ex. PK, PL, PM) and that of the Serologist (Exh.PK/1 to PM/1), the learned D.D.A closed the prosecution's evidence.
8. The appellants made their statements under Section 342 Cr.P.0 in which they denied the prosecution's version and claimed that they were innocent and termed the prosecution's version as false. The appellants, however, did not appear as their own witnesses in terms of section 340(2)
Cr.P.C.
9. The learned counsel for the appellants submits that both the eye-witnesses are not only related to the deceased and inimical towards the appellants but were also chance witnesses; that the delay in lodging the F.I.R. reflects that the witnesses were not present at the place of occurrence at the relevant time; that both the eye-witnesses could not justify their presence at the spot; that as per contents of the F.I.Rs, Sikandar Hayat (PW-8) reached the spot after the occurrence; that the ocular account is belied by the medical evidence and that the occurrence could not have been seen by the witnesses ii. the moon light.
10.The learned Deputy Prosecutor General contends that the medical evidence is in line with the ocular account to the extent of the appellants; that the parties were known to each other therefore, there was no chance of mis-identification of the appellants; that the presence of the eye- witnesses at the place of occurrence is well explained; that evidence of motive and recovery of weapons from the appellants fully support the prosecution case and that the judgment of the trial Court is based on proper appraisal of evidence therefore, no interference is called for in the conviction and sentence of the appellants.
11.We have heard the learned counsel and have gone through the record.
12. In this case the prosecution case mainly rests on the ocular account furnished by Sikandar Hayat (PW-8) a first cousin of the deceased and Muhammad Ramzan, the brother of the deceased and the complainant of the F.I.R (PW-9). It is an admitted fact that enmity existed between the parties over beating given by the complainant side to Noor Muhammad, Farid, Manzoor Ahmad acquitted accused and Ramzan appellant. The acquitted accused as well as the appellants belong to one family as admitted by Ramzan complainant in his evidence. The complainant in his statement before the trial Court reiterated the contents of the F.I.R. and deposed that on the night between the 2nd and the 3rd of September, 2001 at about midnight he and Noor Muhammad after Isha Prayer went to the Behk and slept there on cots. The deceased was sleeping at a distance of about 4/5 karams from them. At about midnight they were awakened by the barking of the dogs upon which they got up and in the moon light they saw the appellant and their acquitted co- accused standing by the side of the cot of the deceased Mumtaz. In their view Muhammad Nawaz appellant inflicted a hatchet blow on the neck of the deceased, Muhammad Ramzan caused an injury on the right cheek of the deceased and Atta Ullah inflicted an injury on the right hand of Mumtaz deceased with his hatchet. The appellants and their co-accused were challenged by Sikander and Manzoor PWs whereupon they escaped from the place of occurrence. This witness further deposed that 8 days prior to the occurrence at about noon time while he was passing by the dera of Ghulam Farid (acquitted accused), he heard Noor Muhammad and others including the appellants hatch a conspiracy to eliminate the deceased. This witness did not report the matter to any one for eight days and according to Zawar Hussain S.I., the Investigating Officer, Muhammad Ramzan complainant claimed to be the witness of conspiracy for the first time on 21- 9-2001 which is after 18 days of the occurrence. All the co-accused of the appellants were declared innocent by the police in successive investigations and were acquitted by the learned trial Court as well. This has a negative bearing on the prosecution case and raises serious doubt about the credibility of the evidence adduced by Muhammad Ramzan (PW-9). This witness has failed to provide any plausible explanation in support of his presence at the Behk where the occurrence took place as according to his own showing he is residing at his own dera with his other family members. The second eye-witness Sikandar Hayat (PW-8) is not only the cousin of the deceased and the complainant, he is residing at a distance of about two squares from the place of occurrence. It is revealed from the contents of the F.I.R. and the statement made by the complainant at the trial that this witness arrived at the spot after injuries had been inflicted by the appellants and their acquitted co-accused Atta Ullah. Further, this witness saw the occurrence in the moon light from a distance of about eighty feet (16 karams). We carry serious doubts in our minds as to this witness having seen the occurrence with such clarity from that distance. Sikandar Hayat (PW-8) has also not come out with any explanation as to why he felt obliged to visit the deceased at his Behk at about midnight.
13. According to the complainant (PW-9), the occurrence took place at about midnight whereas the F.I.R. was lodged by him at the police station (2/1) k.m. away from the place of occurrence at 8:00 a.m. There is no explanation as to why the matter was not reported to the police for almost 8 hours. This obviously shows that the F.I.R. was recorded after due deliberations, thus, no reliance can be placed thereon. Further, the possibility of the occurrence being an unseen one and the F.I.R. being lodged on discovery of the dead body in the morning cannot be ruled out.
14. As far as the motive is concerned, both the parties were admittedly inimically opposed to each other. Thus, the motive behind the murder cuts both ways and in such circumstances it could not be used as a supporting piece of evidence.
15. The medical evidence was furnished by Dr. Munawar Ali (PW-3) who conducted the post- mortem examination on the dead body of the deceased. His statement to the extent of injuries ascribed to the appellants is in consonance with the account furnished by the eye-witnesses.
However, we must not lose sight of the fact that the witnesses had ample time to view the injuries on the body of the deceased before lodging the F.I.R. Further, to the extent of injury attributed to Atta Ullah acquitted co-accused there is conflict between the eye-witness account and the medical evidence inasmuch as in the F.I.R the Complainant mentioned that the injury was caused by him on the right hand of the deceased whereas in his testimony before the learned trial Court he deposed that Atta Ullah had caused injury on the left hand of the deceased. This was obviously done by the witness to bring his statement in line with the medical evidence and thus, a material improvement was made by this witness at the trial. This also casts doubt on the credibility of the eye-witness and the benefit of even the slightest doubt must be given to the accused.
16. Now coming to the evidence of recovery of blood stained hatchets from the appellants P-4 and P-5 secured through memos Ex.PG and Ex.PH, the witnesses of recovery are none other than Sikandar Hayat (PW-8) and Muhammad Ramzan (PW.9). Although admittedly the house of the appellants was located in an inhabited area but no one from the locality was associated with the recovery proceedings by the police. The hatchets were recovered from the house of the appellants on 10.9.2001 at the instance of Muhammad Ramzan and on 23.9,2001 on the pointation of Muhammad Nawaz @ Bhutto from two separate rooms. According to the Investigating Officer (PW- 11) both the rooms were unlocked and the doors were open at the time of recovery. Both the appellants had plenty of time to dispose of the weapons. In the given circumstances no reliance can be placed on the evidence of recovery of weapons from the appellants.
17. Now we consider the defence plea taken by the appellants at the trial of false implication by the complainant due to enmity. It has come out in the statement of the complainant that the deceased was involved in a number of criminal cases of heinous nature including abduction of a school teacher and outraging the modesty of a female. He on being convicted served time in jail as well. Evidently he had strong enmity with a number of other persons of the area and the possibility of someone else having committed his murder can not altogether be ruled out. Although the appellants had failed to establish their plea to the satisfaction of the learned trial Court but the fact remains that their plea/version might reasonably be true.
18. From the above made discussion we are convinced that the prosecution has failed to establish its case against the appellants beyond reasonable doubt. Consequently we ALLOW the appeal filed by Muhammad Nawaz and Muhammad Ramzan appellants, set aside the impugned judgment and acquit them of all charges. The appellants should be released forthwith if not required in any other case. The death sentence imposed upon the appellants is NOT CONFIRMED. The murder reference is answered in the NEGATIVE.
19. For the reasons recorded above, Criminal Revision No, 914 of 2002 for enhancement of compensation is dismissed.