' IJAZ AHMAD CHAUDHARY, J.---Abdul Aziz, Muhammad Ramzan and Muhammad Saleem appellants were convicted for an offence under section 302(b), PPC vide judgment dated 16-3- 2005 handed down by the learned Additional Sessions Judge, 1 Bhakkar in a complaint case titled Bakht Ali v. Abdul Aziz and seven others and were sentenced to life imprisonment each and a fine of Rs, 1,00,000 each or in default of payment thereof to further undergo simple imprisonment for three years. Each. The benefit under section 382-B, Cr.P.C. Was extended to them. The appellants have challenged their convictions and sentences before this Court through the present appeal. On the other hand the complainant Bakht Ali has filed Criminal Revision No, 392 of 2005 for enhancement of sentences of the appellants. Both these matters are being disposed of through this single judgment.
2. The background of this criminal case is that initially the above said accused, persons along with others were booked in a criminal case vide No, 245 registered at Police Station Sadar Bhakkar on 13-7-2004 in respect of offences under sections 302/148/149, P.P.C. The investigation was concluded and report under section 173, Cr.P.C. Was submitted on 14-09-2004. The learned trial court after distributing copies and other documents to the accused framed a charge against them on 29-10- 2004 to which they pleaded not guilty and claimed a trial.
3. It is significant to point out here that the complainant did not satisfy with the investigation conducted in the above said F.I.R. And, consequently, during the progress of trial he filed a (private complaint) in the Court of Judicial Magistrate, Bhakkar which was entrusted to the court of learned Additional Sessions Judge, Bhakkar and as per settled law the proceedings in the State case were kept in abeyance and trial of the accused persons in complaint case started.
4. The prosecution story unfolded in the complaint is that Manzoor Hussain father of the complainant reached home situated at Chak No, 56/10-A through bicycle. It was 8-00 p.m. When Manzoor Hussain was sitting in his house and the accused persons Abdul Aziz, Muhammad Irfan, Muhammad Ramzan, Muhammad Saleem, Muhammad Saleem son of Farzand, armed with Dandas, Muhammad Naeem, Ihsan-ul-Haq and Ghulam Mustafa, armed with Hunters came there and took Manzoor Hussain father of the complainant to their Dera while raising lalkara that he would be given a taste for litigating with them. Upon this Muhammad Irfan accused gave a Danda blow on the neck of Manzoor Hussain, Ihsan-ul-Haq, inflicted injuries with his Hunter on the right leg of complainant's father, Ghulam Mustafa and Muhammad Saleem caused injuries with Danda and Hunter on the head of victim, Muhammad Saleem son of Abdul Aziz and Naeem gave Danda and Hunter blows on his right and left elbows respectively, while Abdul Aziz caused a Danda blow on his left leg and Muhammad Ramzan gave Danda blow on his left leg and thereafter all the accused jointly attacked at the father of the complainant with Dandas, Hunters and they also gave kicks and fists blows which the victim sustained at different parts of his body like left ankle, right legs, right and left buttocks and right shoulder and also on back side. Upon hue and cry raised by the victim the complainant alongwith Muhammad Yaqoob and Muhammad Ramzan came at the spot and witnessed the occurrence. The accused persons escaped from the scene of the crime and proceeded towards their respective houses. The motive was stated to be the previous litigation between the complainant's father and Abdul Aziz, etc. It is stated in the complaint that all the accused hatched conspiracy with each other and injured the father of the complainant in furtherance of common intention. The injured was brought to Civil Hospital Bhakkar whereat he succumbed to his injuries and died. It is also stated in the complaint that all the above said facts were stated before the police but the same were not recorded by the police correctly. Thereafter the learned trial court recorded cursory evidence and summoned the accused persons to face a trial. Charge under sections 148/449/149/302, P.P.C. Was framed to which the accused persons pleaded not guilty and claimed a trial. During the trial the complainant has examined as many as six witnesses to prove its case against the accused. The ocular account was furnished by Bakht Ali complainant (P.W.5) and Muhammad Ramzan (P.W.6). Medical evidence was provided by Dr. Muhamamd Ramzan (P.W.I), Medical Officer. Shafa Ullah (P.W.4) was the recovery witness. The remaining witnesses produced by the complainant in this case are less or more formal in nature.
5. In their statements recorded under section 342, Cr.P.C. The appellants denied and controverted all the allegations of fact levelled against them by the complainant and professed their innocence.
They, however opted not to make statements on oath under section 340(2), Cr.P.C. And did not produce any witness in their defence. In addition to the above said witnesses statement of Abdul Hameed, S.-I. (C.W.1) was also recorded who stated about various steps taken by him during the investigation of this case. Sher Bahadur, Inspector/Investigating Officer appeared as C.W.2 and also stated about various step taken by him during the investigation. Upon completion of the trial the learned trial Court found the case against the appellants to have been proved beyond reasonable doubt and, thus, it convicted and sentenced them as mentioned and detailed above.
Hence, this appeal.
6. The learned counsel for the appellants has contended that the incident allegedly has taken place at 8-00 p.m. In the dark hours of the fateful night. The story of the prosecution is unbelievable as the complainant was present at the scene of the crime and the accused were armed with Dandas and Hunters but the complainant and his other witnesses did not intervene to rescue his father. According to the judgment the learned trial court did not satisfy whether the appellants had participated in the incident or not. In his statement under section 154, Cr.P.C. The complainant has failed to specify the roles particularly committed by the appellants during the incident and improved his statement subsequently by filing a private complaint. The recovery planted upon the appellants was legally inconsequential because the recovered Dandas were not bloodstained. In his statement Sher Bahadur, Inspector/investigating officer (C.W.2) has categorically stated that one Bashir son of Abdul Aziz who was not nominated in the F.I.R. Has caused the injuries to the deceased. Injury No, 1 which was declared the cause of death was attributed to Muhammad Irfan who has been acquitted by the learned trial Court and the appellants have only been attributed injuries on the legs of the deceased which are simple in nature. The head injury was neither mentioned by the complainant in the F.I.R. Nor the same was attributed to any particular appellant, thus, there is no doubt that the complainant was not himself present at the scene of the crime. It has lastly been argued by the learned counsel for the appellants that the complainant has miserably failed to prove his case against the appellants beyond reasonable doubts and, thus, the learned trial Court was not justified in recording the convictions and sentences of the appellants.
7. On the other hand the learned counsel for the complainant has argued that Muhammad Ramzan P.W.6 is an independent witness while Bakht Ali P.W.5 is son of the complainant who has fully supported the story of the prosecution's case. The medical evidence also lends support to the ocular account. Recovery has been effected from the appellants and motive is also proved. The learned trial Court has not given justifiable reasons for awarding lesser punishment for life to each appellant. The learned Deputy Prosecutor-General appearing for the State has maintained that the prosecution had succeeded in establishing the appellants' guilt to the hilt and, therefore, their convictions and sentences recorded by the learned trial Court do not warrant any interference by this Court.
10. After hearing the learned counsel for the parties and going through the record it has straightaway been noticed by me that the incident in the present case had taken place at 8-00 p.m. On 12-7-2004 and F.I.R. In respect of the same incident was recorded at 11-00 p.m. In night on 13-7-2004 on the basis of which formal F.I.R. Was recorded at 12-45 a.m. The incident in the present case took place within the area of Chak No, 56 about 20 kilometers away from Police Station Sadar, Bhakkar. Statement of Bakht Ali was recorded at Civil Hospital, Bhakkar and according to the claim of the prosecution deceased Manzoor Hussain was medically examined at District Headquarter Hospital, Bhakkar when he was still alive at 11-30 p.m. Dr. Muhammad Ramzan P.W.1 has medically examined the victim. During the cross-examination he admitted that Manzoor Ahmad according to the Medico-legal Report was brought by police. So the story of 'the prosecution that the deceased was brought in an injured condition by the complainant subsequently police arrived at the Civil Hospital and recorded the statement of Bakht Ali is falsified the statement of P.W.1 and it cannot be said that F.I.R. In the same manner has been recorded and it cannot be said that the F.I.R. Has been recorded with such a promptitude. The prosecution in order to prove the ocular account had examined two witnesses namely Bakht Ali complainant P.W.5 and Muhammad Ramzan P.W.6.
Bakht Ali complainant P.W.5 is the son of the deceased while Muhammad Ramzan P.W.6 was the relative of the complainant party. Muhammad Ramzan P.W.6 during his cross-examination has submitted that he is resident of another place which is 3/4 miles far from the place of occurrence.
During cross-examination he has also admitted that he was a chance witness. The law has now well settled that a chance witness has to explain reason for his being present at the place of occurrence. He had given the reason that he was doing labour there. During the cross-examination the said reason was not found satisfactory especially at 8-00 p.m. And his presence at the spot was found doubtful. As far as Bakht Ali P.W.5 is concerned he was real son of the deceased. During his cross-examination and in his statement under section 154, Cr.P.C. He had admitted that there was litigation pending between the complainant party and the accused persons. In his statement under section 154, Cr.P.C. He had nominated eight accused persons who were armed with Dandas and Hunters. They raised lalkaras and had took out his father from the house of the complainant and also raised lalkara that they will teach him a lesson for the litigation with them and they started beating by their respective weapons which hit on different parts of his father. He has not ascribed any specific role to any of the accused person in the F.I.R. Lodged by him with the police but decided to file a private complaint after three and a half months of the alleged incident wherein he has only specified roles of the accused and had made dishonest improvements in his statement and also alleged injury No,1 to be sufficient to cause the death and attributed the same to Muhammad Irfan one of the accused who had been acquitted by the learned trial Court. During the cross-examination he had admitted that the incident taken place when there was darkness prevailed. He has not shown any source of light at the time of the incident in his statement under section 154, Cr.P.C. And also has not mentioned any source of light in his private complaint or in his examination-in-chief. Similarly P.W.7 also has not disclosed any source of light at the spot at the time of alleged occurrence. In Ex. PH which has been prepared by Liaquat Ali, Patwari he had also not given any source of light at the time of incident and stated that no Bulb was taken into possession but during the cross-examination he had stated that Bulbs were lightening at the sight when the incident had taken place and he had witnessed the incident in the electric light but C.W.1 Abdul Hameed, Sub-Inspector who had conducted the investigation at the spot stated that he prepared documents at the sight in the light of the vehicle. In these circumstances it can be said with every degree of certainty that P.W.1 is not a truthful witness who has changed his stance and compromised with the circumstances in order to show his presence at the spot. His presence at the spot and witnessing the occurrence is highly doubtful. Even otherwise the conduct of this P.W.
Shows that he was not present at the spot because he claimed that his three brothers and mother were also present in the house when the deceased was taken out by the accused. Ft is very astonishing that neither his other brothers and mother raised any hue and cry nor even tried to rescue their father and husband respectively and remained only the silent spectators at the spot.
The population of village was statedly about 300/400 persons. It is admitted that they did not raise any hue and cry. The conduct allegedly displayed by the P.W. At the spot that the deceased was being dragged and was given beating in presence of all his other family members and they did not try to rescue the deceased is abnormal and caste a serious doubt to the effect that whether the incident has taken place in the manner and mode as narrated by the complainant and other relatives in their statements. Even otherwise after perusal of the statements made by P.W.5 and P.W.6 I felt satisfied that they had not spoken the truth while adducing their evidence before the learned trial Court and they made dishonest improvements in their statements and possibility cannot be ruled out that they had not seen the incident and in this way tried to falsely implicate the present appellants in this case. The incident had not taken in the manner as narrated by these two eyewitnesses. There is no other evidence to provide any corroboration to the statement of these witnesses. Thus, this Court has, come to the conclusion that the ocular account is not proved.
Another corroborative piece of evidence is recovery in this case. Although it is alleged that some Dandas have been recovered from some of the accused persons yet it is admitted fact that the recovered weapons have not stained with blood and, therefore, it cannot be confidently said that the recovered weapons are the same which were used in the incident to commit the murder of deceased. Moreover the same evidence has been disbelieved qua the acquitted accused Muhammad Wan who has caused the main injury and the same evidence cannot be believed qua the appellants. The learned trial Court has expressed in the judgment that he is not sure that whether the accused had participated in the incident and, thus, the appellants have been convicted and sentenced by the learned trial Court on the basis of surmises and conjectures. In this view of the matter the ocular account could not find any support from the recoveries effected in this case. Similarly the medical evidence alone cannot by itself be made basis for maintaining the convictions and sentences awarded to the appellants especially in the circumstances when the ocular account and the recoveries have been disbelieved by this Court. Motive is a double edged weapon which can cut either side. The complainant had himself mentioned in the F.I.R. As well as in the complaint that there existed previous litigation between the accused and his father.
Thus, the element of false implication of the appellants in the present criminal case cannot be ruled out of consideration.
11. For what has been discussed above a conclusion is irresistible and inescapable that the prosecution has failed to prove its case against the appellmts beyond reasonable doubt. The convictions and sentences passed against the appellants are not sustainable. This appeal is, therefore, allowed, the convictions and sentences of the appellants recorded by the learned trial court are set aside and the appellants are acquitted of the charge by extending the benefit of doubt to them. They shall be released from the jail forthwith if not required to be detained in connection with any other case.
12. As a sequel of my discussion made above the connected Criminal Revision No, 392 of 2005 filed by Bakht Ali complainant for enhancement of the sentences of convicts is hereby dismissed.