Hasnat Ahmad Khan, J.--Walayat-appellant (in Crl. Appeal No, 2012/2002), Ali Muhammad- appellant (in Crl. Appeal No, 2017/02) and Sakhawat Ali acquitted co-accused, were tried by the learned Additional Sessions Judge, Faisalabad in the case F.I.R No, 725, dated 20.10.2001, registered at Police Station Tandlianwala, District Faisalabad, in respect of offences under Sections 302/109, 364, 34 PPC. Vide judgment dated 14.11.2002, whereby, he found Walayat and Ali Muhammad guilty for the murder of Noor Ahmad deceased and, hence, convicted as well as sentenced Walayat to death under Section 302(b)/34 PPC with a direction to pay a sum of Rs,50,000/- under Section 544-A, Cr.P.C. to the legal heirs of the deceased, or in default of payment thereof, he was directed to undergo six months' imprisonment, extra. The said appellant was also convicted under Section 364 PPC for abducting Noor Ahmad deceased and sentenced to imprisonment for life with a fine of Rs,25,000/- and in default of payment of the said fine, to undergo further imprisonment for six months, extra. The learned trial Court convicted as well as sentenced Ali Muhammad to imprisonment for life under Section 302(b)/34 PPC with a direction to pay a sum of Rs,50,000/- under Section 544-A, Cr.P.C. to the legal heirs of the deceased, or in default of payment thereof, he was directed to undergo another imprisonment for six months. Benefit of Section 382-B Cr.P.C, however, was given to both the appellants/convicts. Sakhawat Ali co-accused was acquitted of the charge by giving him benefit of doubt.
2. Aggrieved by the said 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, 141/2003 seeks confirmation or otherwise of the sentence of death awarded to appellant Walayat (in Crl. Appeal No, 2012/2002). This consolidated judgment will dispose of all the said matters. Pertinent to mention here that Crl. Appeal No, 2144/2002 was filed by complainant Zohray Khan against Sakhawat Ali acquitted co-accused which was dismissed by a learned Division Bench of this Court vide order dated 31.3.2003.
3. Compendiously, the prosecution's story, as narrated by the complainant Zohray Khan (PW8), through his complaint (Exh.PA) which culminated into F.I.R (Exh.PE/1) was/is to the effect that on 6.10.2001 appellant Walayat came to his house on a motorcycle and took Noor Ahmad deceased alongwith him on the pretext of some necessary chore. However, Noor. Ahmad did not return home till evening, upon which, complainant became perturbed, therefore, he, alongwith Umar Hayat PW, went to the house of Walayat-appellant who was not present there. On the next day they again visited his house but were told by Walayat appellant that Noor Ahmad deceased had returned to his house on the same day, and he showed his complete ignorance about the whereabouts of Noor Ahmad (deceased). It was further alleged in the F.I.R. that on 20.10.2002 at a. gut 8.30 p.m. the complainant alongwith PWs Umer Hayat and Muhammad Ashraf was proceedings towards the out house/Dhari of accused Walayat on a motorcycle, when they heard a commotion near the said dhari and witnessed, in the headlight of their motorcycle, that accused Walayat armed with a 0.12 bore Carbine and Ali Muhammad unarmed were wrangling with Noor Ahmad deceased, thereafter, Walayat fired straight at Noor Ahmad which landed on his chest upon which he fell down and succumbed to his injury at the spot. Thereafter, the accused decamped from the spot raising Lalkaras.
4. The motivating factor behind the occurrence is stated to be that accused Walayat had received an amount of Rs, ,1,50,000/- (Rupees one lac and fifty thousand) from Noor Ahmad deceased for sending him to Saudi Arabia, but failed to fulfil his commitment. On demand of payment of said amount, he murdered Noor Ahmad deceased with the abetment of Sakhawat co-accused.
5. After completing the investigation, the Investigating Officer found the appellants as well as Sakhawat Ali (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 ten witnesses Abdul Razzaq, Head Constable. who had drafted the formal F.I.R., appeared in the witness box as PW1.
Muhammad Nawaz Patwari came forward as PW7 and proved the site-plan of the place of occurrence, which was prepared by him on the asking of police. Zohray Khan-complainant entered into the witness as PW8 while Muhammad Ashraf appeared as PW9. Both of them claimed to be the eye-witnesses of the occurrence. Dr. Muhammad Azam Athar Gill (PW2) who had conducted autopsy on the dead body of Noor Ahmad deceased, furnished the detail of injuries, observed by him on the corpse of the deceased, as under:-- "1. A fire-arm wound entrance 5 cm x 31/2 cm on front of right lower chest, within inverted margin 1/2 cm from midline interiorly, 1 1/2 cm above from epigastria. Margins burnt, six pallets were recovered on dissection. Corresponding holes of fire were present on clothes and the clothes were blood stained.
2. A contused swelling 6 cm x 2 cm on outer aspect of left upper arm".
The said doctor opined that Injury No, 2 was the cause of death due to haemorrhage shock, and was sufficient to cause death in the ordinary course of nature. According to him, both the injuries were ante-mortem, Injury No, 1 was caused by fire-arm whereas Injury No, 2 by blunt edged weapon and probable time, that elapsed between injury and death, was immediate and between death and postmortem approximate 12 hours. Asadullah Khan Inspector, who 'had prepared report under Section 173, Cr.P.C, was asked by the Court to appear as CW1. Rest of the witnesses, being formal in nature, need not to be discussed.
7. After tendering in evidence the report of the Chemical Examiner (Exh.PM) and the report of Serologist (Exh.PN), the learned SPP closed the prosecution's evidence.
8. The appellants and Sakhawat Ali(acquitted co-accused) made their statements under Section 342 Cr.P.C, they denied the prosecution's version and claimed that they were innocent and termed the prosecution's version as fake and fictitious. While responding to the question as to why this case registered against them, Walayat accused-appellant stated as under:-- "The murder of Noor Ahmad deceased was blind one. His dead body was thrown in the Dhari of Umra. Khichi and police on account of suspicion enrobed me in this case. Complainant and PW Muhammad Ashraf are father and son inter-se. They were convinced by the I.O. about my involvement. The deceased was either killed by some dacoits or by some of his customers and his dead body was placed on an un-attended Dhari belonging to Umera Khichi. Motive was also falsely raised to strengthen the case against me. I am innocent and made scapegoat by I.O. to avoid investigation of this blind murder".
Ali Muhammad accused-appellant replied as under:-- Walayat accused is my relative. The complainant had apprehension that I would be pursing the case of Walayat.
Because of this reason, I have been involved in this case. It is mentionable that the complainant party and I reside in one locality and Walayat PW used to call me in grief and happiness".
The appellants, however, denied to appear as their own witnesses under Section 340(2) Cr.P.C.
9. Learned counsel for appellants in both the appeals i,e, Crl. Appeal No, 2012/2002 filed by Walayat-appellant and Crl. Appeal No, 2017/02 filed by Ali Muhammad-appellant, have contended that the prosecution's story is a cooked book; that as a matter of fact the deceased was gunned down by some un-known murderer/murderers; that the un-fortunate occurrence/crime was, not witnessed by the eye-witnesses produced by the prosecution in the witness box; that the ocular version furnished by Zohray Khan (PW8) and Muhammad Ashraf (PW9) is full of contradictions and improvements; that admittedly, both the alleged eye-witnesses are residents of a place - situated at a distance of 13/14 kilometers from the place of occurrence - therefore, they, being chance witnesses, are mot worth reliance and that, in short, the prosecution has failed to prove its case against the appellants beyond a shadow of doubt, therefore, the appellants are entitled to acquittal.
10.Conversely, the learned Additional Prosecutor General, has opposed both the above mentioned appeals and contended that the prosecution has succeeded to prove its case against both the appellants to the hit by producing the dis-interested witnesses whose testimony stands corroborated by the medical evidence, motive behind the occurrence and the recovery of the weapon of offence at the instance of the appellants.
11. After going through the evidence, as well as other material available on the record, with the assistance of the respective learned counsel for the parties, we have gathered that as far as the motivating factor behind the occurrence is concerned, the complainant claimed that Noor Ahmad deceased had bilked Walayat appellant to the tune of Rs, 1,50,000/- on the pretext of sending him abroad but the letters written by Noor Ahmad deceased, recovered from his pocket during the investigation, contradicted the said claim. In the said letters, different story and version regarding the motive, has been given. Besides, the contents Of these letters, do not reconcile and synchronize with the prosecution's case. Further, no motive, whatsoever for. killing Noor Ahmad (slain), has been alleged by the prosecution against Ali Muhammad appellant. In these circumstances, we are of the considered view that the prosecution has failed to prove its story qua motive beyond reasonable doubt.
12. We have further gathered that Noor Ahmad deceased was gunned down admittedly in the dark hours of the night. The other salient features of the case are that according to the complainant Zohray Khan (PW8), Walayat appellant visited complainant's place of abode on 6.10.2001 and took his son Noor Ahmad (deceased) alongwith him on his motorcycle. He further alleged that Noor Ahmad did not return home which caused panic to the complainant, therefore, he alongwith his brother Umar Hayat (not produced PW) visited Walayat appellant's house who was not available at his house. Consequently, the complainant and his said brother again visited the abode of the appellant, who claimed that Noor Ahmad deceased had returned from his home. According to the complainant, he alongwith his brother Umar Hayat (not produced) and son Muhammad Ashraf (PW9), on 20.10.2001, went in search for his said son Noor Ahmad and witnessed the occurrence in the head-lights of their motorcycle.
13. According to the prosecution, a Carbine was recovered, during investigation, from the possession of Walayat appellant, so, the prosecution case comprises ocular version, medical evidence, the motivating factor behind the occurrence and the recovery of the weapon of offence.
14. Insofar as the first phase of the alleged occurrence is concerned, the prosecution's story appears to be economic with truth inasmuch as after the dis-appearance of Noor Ahmad deceased, the complainant failed to report the matter to the police for fourteen days. Moreover, it is not believable that in the background of the alleged motive, Noor Ahmad deceased would have accompanied Walayat appellant. After failure of Noor Ahmad to return home, the natural reaction of the complainant Zohray Khan (PW8) should have been to report the matter to the police against Walayat appellant, who, according to him, had refused to give any clue of Noor Ahmad, to the complainant. Moreover, the complainant's brother, Umar Hayat, who had allegedly accompanied the complainant to inquire from appellant Walayat about Noor Ahmad (deceased) but did not appear in the witness box, rather he was given up by the prosecution. In these circumstances, we have concluded that the prosecution has failed miserably insofar as the background and the first episode of the occurrence is concerned.
15. Insofar as the ocular evidence is concerned, the same comprises complainant - Zohray Khan (PW8) and Muhammad Ashraf (PW9). At the cost of repetition it is observed that Noor Ahmad deceased was assassinated during the dark hours of the night. It is also an admitted fact that Noor Ahmad was gunned down on a public road. It is further admitted that both the eye-witnesses are not natural witnesses, for, according to the complainant himself, they are residing at a place, 13/14 miles away from the place of occurrence, no witness of the vicinity where Noor Ahmad (deceased) was done to death, was produced in the witness box by the prosecution. According to the prosecution, Walayat appellant had taken Noor Ahmad deceased alongwith him on 6.10.2001. A perusal of the contents of the F.I.R. reveals that the complainant and his brother Umar Hayat visited Walayat appellant to inquire about Noor Ahmed deceased but he claimed ignorance about him. After 14 days of the occurrence. Noor Ahmad deceased was done to death in presence of the complainant party as alleged by Zohray Khan (PW8) and Muhammad Ashraf (PW9). According to them, Noor Ahmad deceased was shot dead near the outhouse (dhari) of Walayat appellant.
However, the said witnesses miserably failed to prove that the said outhouse belonged to the appellant, rather, it came on record that the said dhari belonged to one Umra Khichi. The complainant Zohray Khan(PW8) tried to deny the said factum on the basis of his ignorance but Tariq Mehmood SI/I.O., while appearing as PW10 candidly admitted that the said dhari belonged to Umra Khichi. However, he tried to show that Walayat appellant was lessee of the said Umra Khichi but hastened to concede that he had not collected any evidence in this regard. He further conceded that he did not join the said Umra Khichi with the investigation. The motorcycle in the head-lights of which the alleged occurrence was seen by the eye-witnesses, was not taken into possession by the Investigating Officer which fact also makes the prosecution version a bit doubtful and hazy. There is no denying the fact that none of the residents of the nearby farm houses/dharis were examined during the investigation. Besides, the accidental arrival of the alleged eye-witnesses at the time and place of occurrence has created some doubts.
It is not believable that after detaining Noor Ahmad deceased for fourteen days, why would the appellants assassinate him on a road and specially in the headlights of the motorcycle. Moreover, we have found that both the witnesses made certain improvements to strengthen the prosecution's case.
16. It is true that there is no longstanding enmity between the parties but the conviction cannot be maintained simply on the ground that the eye-witnesses are not inimical to the appellant. For convicting the accused on a capital charge, the prosecution has to prove its case against the appellants on the basis of wholly reliable, trustworthy and convincing evidence and it is the intrinsic value of the ocular evidence which indeed matters for relying upon it. In the peculiar circumstances of the case, we have found that both the eye-witnesses, namely complainant Zohray Khan (PW8) Muhammad Ashraf (PW9), beside being chance witnesses, are not reliable witnesses. Apart from above they are closely related to the deceased. Zohray Khan (PW8) is father of deceased Noor Ahmad while Muhammad Ashraf (PW9) is the real brother of the said deceased.
Further, their version has failed to get any support from the motive or any other piece of evidence.
17. Insofar as the recovery is concerned, the same, as has been held by the learned trial Court, is not helpful for prosecution. Neither any empty was found from the place of occurrence nor is there any report of the Forensic Science Laboratory. Besides, the prosecution' version that after un- loading the Carbine - recovered from Walayat appellant - an empty cartridge was found in the barrel of the same, is not believable because the said recovery was affected after 21 days of the occurrence.
18. As far as the medical evidence is concerned, same can only show the number of injuries and the kind of weapon of offence used during the occurrence. Obviously, the same cannot pin point the murderer. Further, in this. case, it appears that a deliberate effort was made to strengthen the prosecution casein-as-much-as, according to Dr. Muhammad Azam Athar Gill (PW2), a cartridge alongwith pellets was found in the wound of dead body of the deceased. During his cross- examination, he further conceded that the said cartridge did not find mention in the whole of the proceedings regarding the postmortem examination conducted by him. He went on to admit, at page 21 of the , Paper Book, as under :-- ".....It is correct that the cartridge is a piece of ammunition.
Volunteered that was un-used ammunition. It is incorrect that I willfully retained the said cartridge with me to strengthen the prosecution case. It is correct that the Injury No, 1 mentioned in Exh.PB does not carry any exit wound...
On the said point, the Investigating Officer made following statement during his cross-examination as recorded at page 41 of the Paper Book: The cartoos mentioned in Exh.PC was not taken into possession by me at the time of examination of the dead body of the deceased at the place of occurrence. Volunteered I did not move or remove the said cartoos. I do not know whether the said cartoos was live one. Again said the said cartoos was live one. The said cartoos was present in the only wound on the person of the deceased.
Therefore, we have concluded that the medical evidence is not helpful for the prosecution.
19. In nutshell, we have reached an in-escapable conclusion that the prosecution has failed to prove its case against both the appellants beyond a shadow of doubt, rather, doubts are floating on the surface of the case. It is established law that benefit of doubt, howsoever light, goes to the accused. Consequently, both the appeals i,e, Crl. Appeal No, 2012/2002 filed by Walayat-appellant and Crl. Appeal No, 2017/02 filed by Ali Muhammad-appellant are accepted, the impugned judgment of conviction dated 14.11.2002 passed by the learned Addl. Sessions Judge, Faisalabad, is set-aside and appellants Walayat and Ali Muhammad are acquitted of the charge. Walayat appellant is in Jail. He is ordered to be released from Jail, if not required to be detained in any other case. Appellant Ali Muhammad's sentence was suspended by this Court on 24.3.2003 and he was released on bail. He is discharged of his bail/surety bonds.
20. Murder Reference is answered in the Negative and death sentence awarded to appellant Walayat is not confirmed.