' SYED SHABBAR RAZA RIZVI, J.--- By this single judgment we propose to decide Criminal Appeal No,1709 of 2003 filed by Yaqoob alias Bhuugi, Criminal Appeal No,1050 of 2004 filed by Bakht and Murder Reference No,933 of 2003 sent up by the trial Court for confirmation of death sentence of Yaqoob alias Bhugi, appellant. All the matters are outcome of the same F.I.R.
2. The appellants in both the appeals were tried along with Sarfraz (since acquitted) by the learned Additional Sessions Judge, Hafizabad in F.I.R. No,431 of 2001 (Exh.P.J./1) under sections 302, 148 and 149, P.P.C. Registered at Police Station Thana Sukheki, District Hafizabad for committing murder of Mukhtar alias Mukhi. After conclusion of the trial, the trial Court convicted both the appellants under section 302(b) read with section 34, P.P.C. Vide judgment, dated 2-6-2003. Yaqoob appellant was sentenced to death and Bakht appellant was sentenced to imprisonment for life with benefit of section 382-B, Cr.P.C. Both the convicts were also directed to pay compensation of Rs,1,00,000 to the legal heirs of the deceased. Mukhtar, failing which they would suffer further S.I. For six months.
3. The prosecution case set up as per F.I.R. Exh.P.J./1 drawn on the basis of complaint Exh.P.J. Got recorded by Mst. Rasoolan, complainant is that in 1998, Noor son of Sarang of Par Lakhan village had attacked the house of her nephew Wilayat along with others with a view to kill him. Khizar Hayat was murdered by the bullet fired by one of the companions of the assailants. Noor accused had lodged a case against five persons including Walayat and Mukhtar alias Mukhi at Police Station Sukheki vide F.I.R. No,301 of 1998 under sections 148, 302, 149, 109, P.P.C. Walayat Khan had also lodged an F.I.R. No,171 of 1998 under sections 148/324/149, P.P.C. Mukhtar alias Mukhi, son of the complainant Rasoolan Bibi used to pursue the cases at Sheikhupura and Lahore High Court, Lahore. On the fateful day, the complainant along with her deceased son Mukhtar and Muhammad Khan son of Kameer came to Mandi Sukheki for going further to Lahore. She stood at the bridge of Saim Nala to await her son Mukhtar. At about 11 a.m. Mukhtar along with Khushnood came on a motorcycle No,195/SAE. Mukhtar went to nearby shop for fueling the motorcycle. In the meantime, Noor son of Sarang Bhatti armed with Kalashnikov (P.O.) Mujahid son of Noor (P.O.) armed with .30 bore pistol, Bakht alias Bakhu son of Ahmad Chandar of Jalana armed with pistol .30 bore and Yaqoob alias Baghi son of Ghulam Muhammad (Nai) armed with .30 bore pistol came on two motorcycles. Noor raised Lalkara that Mukhtar be taught a lesson for pursuing the said cases, fired at him hitting him above the abdomen. It was followed by a fire made by Mujahid Hussain with Mauzer hitting the deceased on the ribs on the right side and also on thighs. The deceased fell down in the shop. Bakht alias Bakhu then fired on the back of the deceased with his pistol. Then Yaqoob fired with his pistol hitting the deceased below the ribs. Noor son of Sarang then fired a burst with Kalashnikov hitting the deceased on both, the hands and wrists. The deceased died at the spot and the accused ran away towards Jalalana on the Saim Patrhi. Besides the complainant, Muhammad Khan and Khushnood also witnessed the. Occurrence.
4. Rafi Ullah, S.-I./P.W.8 conducted the investigation of this case while posted at Police Station Sukheki. On 9-1-2002, he got inspected place of occurrence, through Draftsman got prepared site plan Exh.P.M. And Exh.P.M./1. He recorded the statements of the P.Ws. Under section 161, Cr.P.C. On 19- 1-2002 he got issued warrants Exh.P.C., Exh.P.D. And Exh.P.D./1. On 22-1-2002, Bakhat himself appeared before him and Investigating Officer made his arrest pending. On 1-2-2002, he issued proclamation of Yaqoob alias Bughi, Noor and Mujahid Exh.P.F. Exh.P.G. And Exh.P.H. On 2-2-2002, he recorded the statement of Habib Ahmad, Constable under section 161, Cr.P.C. On 4-3-2002 Yaqoob alias Bughi and Bakhat were arrested by him. He got their physical remand. On 12-3-2002, the investigation of this case was transferred to S.P. Hafizabad. Then again on 17-3-2002 investigation of this case was entrusted to him. On the same day, on pointation of Yaqoob appellant, he recovered pistol P.6 from the house of the accused which was taken into possession through memo. Exh.P.B., attested by Shahbaz Hussain and Nasir Ali, P.Ws. He also prepared the site plan of recovery of pistol Exh.P.B./1. He also recorded statements of the P.Ws. Under section 161, Cr.P.C. On 18-3-2002, the accused were sent to judicial lock-up. On 1-4-2002, statements of Muharrar Muhammad Ashraf and Habib Ahmad, Constable were recorded. On 5-4-2002, he arrested Sarfraz accused and then on 6-4-2002 the accused was sent to judicial lock-up. On 7-4-2002 he prepared the challan.
' Muhammad Iqbal, S.-I. Who had conducted the preliminary investigation of this case had died during investigation. Rafi Ullah, S.-I. Worked with him and was fully acquainted with his writing and signatures. In the Court, Rafi Ullah, S.-I. Perused the file and stated that complaint Exh.P.J. Was duly endorsed the same. He also confirmed that post-mortem report Exh.P.O., inquest report Exh.P.P., site plans Exh.P.Q. And Exh.P.A. Were in the handwriting of Muhammad Iqbal, S.-I.
5. The medical evidence was furnished by Dr. Asghar Ali who was examined as P.W.9. He conducted the post-mortem examination on the dead body of Mukhtar on 13-11-2001 at 9-30 a.m. He further stated that injuries Nos.1, 4, 6 and 8 were ante-mortem and were sufficient to cause death in ordinary course of nature. Probable time between injuries and death was instantaneous and between death and post-mortem was 22/23 hours.
6. Mst. Rasoolan Bibi, complainant of the case was examined as P.W.5. She was eye-witness of the occurrence and supported the prosecution story as narrated by her in statement Exh.P.J.
Muhammad Khan, P.W.6 was also an eye-witness of the occurrence. His statement was in line with that of P.W.5.
7. P.W.1 Muhammad Ashraf, H.C. Kept the sealed parcel of bloodstained earth in Malkhana.
Thereafter, he handed over the same to Habib Ahmad, P.W.4 for its transmission to the office of Chemical Examiner. He also kept parcel of pistol .30 bore handed over to him by Rafi Ullah, S.-I. P W.2 Mohsin Abbas identified the dead body of deceased Mukhtar. Nasir Ali P.W.3 was recovery witness of pistol P.6. Habib Ahmad constable, P.W.4 proved the deposit of parcels to the office of Chemical Examiner as given to him by P.W.1. Muhammad Ashraf, A.S.-I. Was examined as P.W.7 recorded the statements of Shah Muhammad and Mumtaz (given up) under section 161, Cr.P.C. On 15-3-2002. Rafi Ullah, S.-I. P.W.8 recorded the statement as mentioned above. Imtiaz Ahmad Constable was examined as P.W.10. He along with Mukhtar Ahmad, Constable escorted the dead body of Mukhtar for postmortem examination to the mortuary on 12-11-2001. On 13-11-2001, after post-mortem examination, he handed over the last-worn clothes of the deceased to the Investigating Officer which were taken into possession through memo. Exh.P.A. P.W.11 Maqsood Ahmad Bhatti, Draftsman prepared the scaled site plan of the place of occurrence through memo.
Exh.P.M. And Exh.P.M./1.
8. The prosecution evidence was closed after tendering in evidence reports of Chemical Examiner Exh.P.S., Serologist Exh.P.T. And that of Forensic Science Laboratory Exh.P.U.
9. After finishing of prosecution evidence, statements of the appellants were recorded under section 342, Cr.P.C. They denied the allegations and claimed their innocence. In reply to question "why this case and why the P.Ws. Deposed against you", Yagoob alias Bhugi, appellant replied as under:--- "The murder case of Khizar Hayat had been decided at the time of present occurrence against the son of the complainant and others. In the above said murder case accused Bakhat and Yagoob are the eye-witnesses of that case whereas Sarfraz accused was witness of abetment and in that murder case Walayat nephew of complainant was sentenced to life imprisonment. Complainant offered money to me and Bakhat accused to withdraw from their evidence against the son of the complainant and others in the murder case of Khizar Hayat, but I declined to accept the offer of complainant and due to this grudge they implicated me and my co-accused in this false case."
' The statement of Bakhat appellant to the same question was similar.
10. The trial concluded into conviction and sentence of the appellants as mentioned above while acquittal of Sarfraz.
11. The learned counsel for the appellants argued that appellants are innocent; the eye-witnesses had not seen the occurrence, they were planted; the appellants were implicated in this case in view of the previous murder case of one Khizar Hayat in which son of the complainant and tilers were involved and present appellants appeared as eye-witnesses.
12. The learned Deputy prosecutor-General, Punjab supported the impugned judgment of the learned trial Court.
13. To examine case of the prosecution, in detail, statements of P.W.5 and P.W.6 need to be examined. According to P.W.5, Mst. Rasoolan Bibi aged 80/90 years old, mother of the deceased, her son Mukhtar Ahmad, deceased was perusing the cases at Lahore and Sheikhupura already pending between the parties. On the fateful day, she and Mukhtar Ahmad, deceased made a programme to go to Lahore. She further stated that one Umar Khan and she came to Sukheki by bus from their village. The deceased was to join them at Sukheki to go to Lahore. P.W.5 Mst.
Rasoolan and Muhammad Khan, P.W.6 were standing beside Saim Nala while waiting for deceased on a road leading to Lahore. The deceased along with one Fahid came there on motor bicycle.
Fahid stood with them but in the meanwhile deceased went to a nearby shop for fueling his motor bicycle. Meanwhile, accused also arrived on motor bicycles. Noor accused raised Lalkara that deceased be taught lesson for pursuing the case and made a fire of kalashnikov at deceased which hit on his belly. The accused, Mujahid Hussain (P.O.) made a fire of pistol at deceased which hit on his right ribs. Mukhtar Ahmad deceased after receiving the above injury fell down. Then appellant, Bakhat made a fire shot which hit deceased in lying condition on his ribs. Appellant, Yaqoob made a fire with his pistol which hit on ribs and other different parts of body of the deceased. Thereafter, Noor accused (P.O.) made a fire with Kalashnikov which hit deceased on his hands and wrists. Thereafter, accused rode away on their motor bicycles towards Saim Nala, Jalalana and deceased succumbed to the injuries at the spot. According to P.W.5, she left with P.W.6 for police station while leaving deceased's dead body at the spot. On her way to police station, she recorded complaint and thereafter went to police station and produced the written complaint Exh.P.J. To Muhammad Iqbal S.-I.
14. P.W.5 stated that she had made a plan with deceased to go to Lahore but in her statement she stated that she had come to Rohi Nala, Sukheki to go to Lahore with P.W.6. P.W.5 did not disclose why did not she come along with deceased from her home? She did not state that deceased was living somewhere else and not with her. P.W.5 also failed to state why she wanted to .Go to Lahore, normally at the age of 80/90 as shown on page 24, the ladies do not go to prosecute family criminal cases etc. In the District or High Court. Before the Court, P.W.5 stated that appellant Bakhat's fire hit the deceased on his ribs whereas in F.I.R. She had recorded seat of injury caused by appellant, Bakhat alias Bakhu at back of the deceased. Likewise, P.W.5 stated that appellant, Yagoob fired with his pistol which hit deceased on ribs and different parts of the deceased. In the F.I.R. She had recorded that fire of Yaqoob had hit deceased below ribs. Different parts of body were not mentioned. She also stated that on her way to police station she had recorded complaint and thereafter went to police station. She never explained who had recorded the statement? In cross- examination, she admitted that she had not recorded in Exh.P.J. That Fahid, P.W. Stood beside her while Mukhtar Ahmad went to nearby shop as shown in the site plan. In cross-examination, she stated that she had recorded in her statement Exh.P.J. That the fire shot of appellant, Bakhat hit deceased on ribs, whereas, as stated above, and also confronted in the Court, it was not mentioned in Exh.P.J. Same is her stance and attitude regarding location of fire, fired by appellant, Bakhat. In cross-examination, she failed to disclose as to whom she had recorded Exh.P.J. On her way from place of occurrence to police station. She conceded that both the appellants were eye- witnesses in a case which was registered against his deceased son. She categorically stated that she did not remember the cases pending in Lahore High Court for which she had made a plan with the deceased to go to Lahore. She also conceded that she was neither a witness nor had any link with any case pending in any Court in Lahore. She further disclosed that the Saim Nala where she was standing with P.W.6 at the place of occurrence situated only one acre from the police station.
In the above circumstances, it was unbelievable that she would get her complaint Exh.P.J.
Recorded with somebody whose name she failed to disclose, before going to the police station itself.. She conceded that place of occurrence is full of shops and it was a day time occurrence yet prosecution could not find any witness except close relatives of the deceased. Though P.W.5 herself stated that occurrence was witnessed by a number of people in and around the above stated shops. She also strangely stated that she had not touched the body of her deceased son. Though she left for police station after half an hour of the occurrence, according to P.W.5 police came at the scene of occurrence at 12, i.e. After one hour. We have already noted above, that police station is only one acre away from the place of occurrence. According to P.W.5, the dead body remained at the place of occurrence it was only removed after arrival of Nawaz, S.-I., a nephew of the complainant. She stated that they had reached hospital for post-mortem at evening time though the post-mortem was performed at 9 a.m. On the following day. P.W.5 declined the suggestion that information of the occurrence was received by her at late night. At this stage, to judge the veracity of P.W.5's statement, it would be appropriate to examine and discuss statement of P.W.6 Muhammad Khan, son of Kameer Ali. P.W.6 stated that appellant, Bakhat made a fire shot which hit on backside of the deceased while in lying condition. We have already noted that this injury was stated by P.W.5 on ribs. P.W.6 further stated that a fire shot made by Yaqoob appellant hit deceased underneath the ribs. P.W.5 did not mention "underneath". According to her, the fire had hit on ribs and other parts of body of the deceased. P.W.6's description of seats of injury is consistent with the F.I.R., whereas P.W.5's narration is in total conflict with the F.I.R. P.W.6 also conceded that appellants were eyewitnesses in murder cases of Khizar Hayat in which deceased was an accused person. P.W.6 stated that he along with P.W.5 proceeded to police station immediately after the occurrence, but P.W.5 stated that she left for police station after half an hour of the occurrence. P.W.6 stated that Exh.P.J. Was scribed 10/15 yards away from police station in a shop. P.W.5 stated that Exh.P.J. Was recorded on their way to police station. P.W.6 also stated that police removed the dead body of deceased Mukhtar Ahmad at police 'station at 3-30 p.m. For post-mortem examination. P.W.6 conceded that, "it is correct that local police and A.S.P. During investigation declared them (appellants) innocent in this case". He also conceded that the police had inquired about the occurrence from the shopkeepers who were not made eye-witnesses or witnesses. P.W.6 denied the fact that the shopkeepers were not made the witnesses as according to them, at the time of murder, one unknown person remained sitting on the motor bicycle whereas, other one, fired at the deceased. He further stated that it was incorrect to suggest that one shopkeeper stated that at the time of occurrence two persons riding at the motorcycle came at the spot and killed the deceased. P.W.6 also declined to concede the suggestion that they were informed late about the occurrence.
15. We propose to further examine above two statements in the light of statement of P.W.8 Rafi Ullah S.-I. According to him, on 25-12-2001, he was posted at Police Station Sukheki. On the same day he was entrusted with the investigation of the instant case. On 22-1-2002, appellant Bakhat himself appeared before him and made his arrest. According to P.W.8 Muhammad Iqbal S.-I. Who conducted the preliminary investigation had died. He further stated that he had worked with Muhammad Iqbal S.-I. And was fully acquainted with his handwriting and signatures. According to him, complaint Exh.P.J. Was duly endorsed by Muhammad Iqbal S.-I. (since dead) on 12-11-2001. He further stated that injury statement Exh.P.N., application for postmortem Exh.P.O., inquest report Exh.P.P., site plans Exit P.Q., Exh.P.A., recovery memo. Exh.P.K. And recovery memo. Exh.P.L. In handwriting of S.-I. Muhammad Iqbal, deceased and bore his signatures. P.W.8 admitted that it was correct that Muhammad Iqbal S.-I. Had examined all shopkeepers of vicinity. Liaquat Ali, Faiz Ali and Akbar Ali, shopkeepers stated before the Investigating Officer Muhammad Iqbal that two unknown persons riding on motorcycle came at the spot, out of them, one accused made fire shot at the deceased while the other one kept standing near motorcycle and after the occurrence they left. At this stage, it may be pointed out that we ourselves examined the record and read statements of the above mentioned shopkeepers which were recorded under section 161, Cr.P.C. By Muhammad Iqbal, S.-I. On 12-11-2001 in Daily Diary No.1 at 11-30 a.m. P.W.8 also endorsed the plea of appellant, Bakhat was that at the time of occurrence he was present at Government Girls Middle School, MM Rehman from 8-30 a.m. To 12-30 p.m. P.W.8 further conceded that he had gone through Daily Diary No.39, dated 13-6-2002 recorded by Muhammad Ali A.S.P. Saddar Circle, Hafizabad in which he associated Mst. Bushra Firdous Headmistress, Government Middle School MM Rehman Malik Ghulam Abbas Naib Qasid, Khalida Parveen and Zaib-un-Nisa, teachers of said school and found in his investigation that appellant Bakhat was not present at the time of occurrence but he was accused of abetment. We have also examined from the original record, contents of Daily Diary No.39, wherein it so recorded by the A.S.P.
16. At this stage, we may also examine statement of P.W.9 Dr. Asghar Ali Hunjra, M.O. R.H.C. Pindi Bhattian. According to him, on 13-11-2001, at 9-30 a.m. He conducted internal post-mortem of deceased, Mukhtar Ahmad. The dead body was brought by constables Mukhtar Ahmad, 489/C and Imtiaz Ahmad, 417/C. According to him, injury No.1 is a fire-arm wound of exit 1-1/2 c.m. x 1-1/2 c.m. x coming out on the back of lumber vertebra column. Edges were everted, there was a hole in Kameez. This injury is attributed to appellant, Bakhat but according to P.W.9 it was an exit injury.
Injury No.5 came out on the back and outer side of middle left side of chest is also declared as an exit injury. No injury is mentioned on the ribs. Almost all the injuries are mentioned burnt and tattooed. That clearly shows that these injuries were caused within the distance of 3 to 4 feet, therefore, the distance expressed by P.W.5 and P.W.6 and shown in site plan is in conflict with medical evidence. P.W.9 further stated that he had started post-mortem of the deceased at 9-30 a.m. On 13-11-2001 and he had received relevant papers in respect of post-mortem examination 20 minutes before 9-30 a.m. On the other hand, P.W.6 had stated that police had removed the dead body of deceased Mukhtar deceased from police station at 3-30 p.m. On 12-11-2001 for post- mortem. If the police had taken deceased at 3-30 p.m. On the day of occurrence i.e. 12-11-2001, the post-mortem would have been conducted by the doctor on the same day and not at 9-30 a.m. On 13-11-2001.
17. The detailed survey and examination of evidence of P.W.5, P.W.6, P.W.8 and P.W.9 leaves no doubt in our mind that occurrence did not take place as stated by the learned Deputy Prosecutor- General, Punjab. The deceased was attacked from a very short distance as it reflects from the statement of P.W.9. All the injuries were burnt and tattooed. Therefore, we observe that there is complete conflict between statement of P.W.9 and statements of P.W.5/P.W.6. It appears that the dead body of the deceased was not taken on time and date as stated by P.W.6. Shopkeepers including shopkeeper in whose shop the deceased was killed clearly mentioned that two persons had come on a motorcycle.
One of them entered into shop and caused injuries to the deceased whereas other one stood nearby the motorcycle and after commission of the occurrence both rode away the motorcycle.
This fact get corroboration from the statement of P.W.6 and P.W.B. In addition to that, we ourselves examined the original record wherein we found original statements of shopkeepers who were deliberately not produced in the Court, though, their statements were recorded under section 161, Cr.P.C. By S.-I. Muhammad Iqbal. The presence of P.W.5 and P.W.6 is not convincing. According to record, P.W.5, mother of the deceased was 80/90 years old. It was very unnatural for her to make a programme with deceased son to go to Lahore for prosecution of a case in the above circumstances. No mention is found as to what was the case and what was her interest or role in the said case. It also remained mysterious that P.W.5 had a plan to come to Lahore with deceased why did not she come with him from home? Why the deceased had come from some where else with P.W. Fahid and then suddenly went to a shop to get fuel for his motorcycle! The occurrence had taken place at 11 a.m. On 12-11-2001 yet post-mortem was performed on the following day at 9- 30 a.m. Whereas, the occurrence had taken place not very far from the hospital or police station. It may be pointed out that P.W.6 stated that at 3-30 p.m. On 12-11-2001, the dead body of the deceased was taken in the tractor-trolley for post-mortem examination, whereas, P.W.9, doctor stated that he had received police papers for post-mortem examination 20 minutes prior to 9-30 a.m. On 13-11-2001. The description of locale of injuries at the deceased was differently described by P.W.5 and P.W.6 in the Court. There are discrepancies in their statements on several material points.
Both of them admitted enmity and the fact that deceased was tried in a murder case in which both appellants appeared as eye-witnesses, thus, in the above background, the defence version appears to be more probable than the prosecution. The version of the prosecution is replete of doubts and contradictions. Thus, prosecution failed to prove its case beyond any shadow of doubt.
18. As a result of the above, we accept both appeals, i.e. Criminal Appeal No.1709 of 2003 and Criminal Appeal No.1050 of 2004. Resultantly, the conviction and sentence of appellants, Yaqoob alias Bhugi and Bakhat is set aside and they are acquitted of the charges. They are ordered to be released forthwith if not required to be kept in any other case in jail.
19. Consequent upon the above, Murder Reference No.933 of 2003 is answered in the negative.