' KHALIL AHMED, J.---This judgment shall dispose of Criminal Appeal No, 1334-04 (Muhammad Abbas v. The State), Criminal Appeal No, 1329-04 (Mukhtar Ahmad v. The, State) and MR No, 597/04 sent by the learned Trial Court for confirmation or otherwise of the sentence of death and life imprisonment awarded to Muhammad Abbas and Mukhtar Alimad, appellants.
2. The appellants alongwith two others were tried in case FIR No 438/2003, dated 23.10.2003 registered under section 302/34, PPC at PS Kanganpur by the learned ASJ Chunian who vide judgment dated 27.7.2004 convicted and sentenced as under: MUHAMMAD ABBAS, APPELLANT ' U/s. 302(b), PPC sentenced to death and Rs, 1,00,000/- as compensation to legal heirs of the deceased under section 544-A, CrPC and in case of default of payment of compensation, to undergo six months' S.I.
MUKHTAR AHMAD, APPELLANT ' Life imprisonment under Section 302(b), PPC and Rs, 50,000/- as compensation to the legal heirs of deceased under section 544-A, Cr.P.C. And iii case of default of payment of compensation, to undergo six months' S.I. He was also given the benefit of Section 382-B, CrPC.
3. Brief facts of the case as per complaint lodged by the complainant are that on 8.11.2003 at about 10.30 a.m., he alongwith Abdul Ghaffar, Arshad and Khalid Maqsood, went in the fields of Moulvi Muhammad Rafique, situated in village Rukkanpura to labour there. That meanwhile accused Muhammad Abbas while armed with 7-MM rifle, reached there and raised Lalkara to Khalid Maqsood to teach him a lesson for quarreling with their younger brother, then accused Muhammad Abbas made fire shot with his 12-bore Gun on the left thigh of Khalid Maqsood.
Thereafter, Muhammad Ahmad made fire shot with his Rifle 7-MM on the right thigh of Khalid Maqsood, who fell down on the ground after receiving these injuries. The accused ranaway from the spot while raising Lalkaras; that Muhammad Arshad and Abdul Ghaffar has also seen the occurrence. That when they were shifting Maqsood to Hospital, in an injured condition, he succumbed to the injuries in the way.
4. Motive for the occurrence is stated to be that about one month ago a scuffle took place in- between the younger brothers of the accused with Khalid Maqsood. Who gave beating to them and the accused had the grudge over it.
5. After completion of investigation, the appellants were challaned. Charge was framed against the appellants to which, they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as 11 PWs in all and also tendered documentary evidence.
6. The accused in their statements recorded under section 342, Cr.P.C. Denied the prosecution allegation and evidence against them. They also declined to appear as their own witnesses under Section 340(2), Cr.P.C.
7. The learned Trial Court 'after scrutinizing the evidence and hearing the learned counsel for the parties convicted and sentenced the appellants/accused as stated above. Hence this appeal.
8. Learned counsel for.. The appellants contends that registration of case at 12.45 noon on 8th of November, 2003 is highly doubtful; that it is a precedent in our society to conduct earlier burial of a corpse after the death of an individual; that in the present case, the alleged incident took place on 10.30 a.m. On 8.11.2003 and was statedly within the books of police at 12.45 p.m. On the same day; that the close relatives of the deceased must have insisted the police to get conducted the post- mortem examination of deceased on the same day. He has drawn the attention of this Court that on 8.11.2003 the autopsy of the decesed was never conducted. The matter was delayed till next day at 9.00 a.m. Learned counsel further adds that; it is an admitted fact that without producing the copy of FIR and inquest report, the Doctor does not conduct the post-mortem examination of an individual; that in the present case the dead-body of Khalid Maqsood deceased was foundunattended and the names of assailants were not known to the complainant party; that after the recovery of dead-body, they sat together joined their heads and afier consultation, deliberation and investigation fabricated the present FIR; that as a matter of fact both the witnesses PW.9 Muhammad Ramzan father of deceased and PW.10 Abdul Ghaffar his maternal uncle were not present at the venue of incident; that according to the Doctor, the duration between injuries and death was about two hours. Had these witnesses been present at the spot; they must had taken the deceased to Hospital to save his life. Learned counsel further submits that as a matter of fact both of them did not take the deceased to the Hospital because of their absence from the spot; that the motive part of this incident remained unproved on record; that no direct evidence was produced to prove the incident .Of motive; that the ocular account of the present case is shaky.
Both the witnesses are not resident of vicinity where the alleged (occurrence took place; that the son of Muhammad Ramzan, complainant was in an injured condition. Had the PWs taken the deceased to the Hospital then their clothes must have been stained with blood. Adds that the police did not take into possession the clothes of complainant and Abdul Ghaffar PW which indicates that they' have made a wrong statement that they were taking the deceased to Hospital when he passed away and that they were not present at the venue of incident; that according to FIR, Mukhtar Ahmad, appellant was armed with 7.MM rifle and Muhammad Abbas armed with a. 12- bore gun. According to the FIR, Mukhtar Ahmad fired his 7-MM rifle causing an injury on the right thigh of deceased, whereas the gun fired by Muhammad Abbas appellant injured his left thigh.
Learned counsel for. Mukhtar Ahmad appellant submits that no injury with 7.MM rifle was found on the person of deceased. He submits that there was only one injury on the body of deceased, which was "caused by a '12-bore weapon; that the role assigned to Mukhtar Ahmad appellant is belied by . The medical evidence. Learned counsel for Muhammad Abbas appellant has drawn the attention of this Court towards the site plan Ex.PA, according to which Muhammad Abbas appellant fired his gun from a distance of 2 Karams i.e, 11-feet. A perusal of the injuries suffered by Khalid Maqsood deceased indicate that, only one fire short was received by which landed on his left thighand the said injury was surrounded by burning. Learned counsel further submits that from a distance of 11- feet a weapon like gun would not cause burning around the wounds; that there is a glaring conflict between the ocular account and medical evidence; that it happened so because both the witnesses did not seen this occurrence; that only one fire shot injury hit both the legs but the eye- witnesses have attributed the injuries of both the legs to different assailants; that the evidence 41f both the witnesses is contradictory and materially improved; that both the witnesses have not come forward with clean hands; that in view of the hostility between the parties and the conduct of PWs, ii is required that some independent witnesses must have come forward to 'support the evidence of eye-witnesses. Learned counsel for appellants have also claimed that status of both the witnesses is of chance witnesses. They claimed that they were statedly present at the venue of incident per chance; that the status of chance witness is like the status of interested and inimical witnesses; that in order to rely upon the deposition of these witnesses some independent source must have come forward to corroborate their depositions; that in the absence of independent corroboration the evidence of both the eye-witnesses may not be relied upon. Adds that empties were recovered from the venue of incident. These empties were kept in Malkhana. Afterwards, a weapon was planted upon the appellants. The empties and the weapon of offence were sent to the office of Forensic Science Laboratory on the same day: that the empties and the weapon of offence were kept in the Malkhana together and during this process, possibility cannot be ruled out; that the weapons, were must used, empties were fabricated and thus manoeuvred favourable report: that the report of Forensic Science Laboratory is not worthy of reliance; that the investigation conducted by, PW.11 Muhammad Ilyas is dishonest. He fabricated various pieces of evidence. His deposition is not put to mark. States that the statement of like Police Officer cannot be relied upon.
9. While discussing their case, learned counsel for the appellants submits that the prosecution case is highly doubtful and the benefit of doubt goes to the appellants.
10. After completion of the arguments of learned counsel for appellants, learned Additional Prosecutor General submits in rebuttal that it is a case of promptly lodged FIR; that the incident occurred in the day light, therefore the identity of the assailants was not mistaken; that the appellants are named in the FIR and specific role has been assigned to them. Learned counsel for the State 'has drawn our attention towards the contents of FIR, where the names of witnesses do figure. The motives of the incident is 'also detailed in it; that the witnesses produced by the prosecution have fully proved the incident of motive; that the absence of niotive would not effect the case of prosecution: He further submits that it is not binding upon the prosecution to prove motive part of the prosecution case; that no enmity exists between the PWs and complainant party. PW.9 and, .PW.10 are independent witnesses. They have no motive to exaggerate or falsely implicate the appellants; that the evidence of both the eyewitnesses remained the same before the I.O. And also before the learned Trial Court. Their stand is consistent. They have given full detail of occurrence before the learned Trial Court, implicating appellants and held them responsible for the Qatl-e-Amd of deceased; that the evidence of both the eye-witnesses is corroborating each other.. Their evidence is well supported by the medical evidence; that weapon of offence was recovered from Muhammad Abbas, appellant. Was sent to the office of Forensic, Science Laboratory alongwith the empties and vide report Ex. PC' it was found that empty collected from the spot of incident was fired from the weapon of offence, this is a valuable piece of evidence supporting the ocular account of the present case; that the prosecution has proved its case against the appellants beyond any shadow of doubt; that the learned Trial Court has rightly convicted the appellants and - sentenced them accordingly. He prays that the conviction and sentence - of the appellants he maintained. Learned counsel further submits' that distance between the assailants and the deceased given by the witnesses is always-tentative in nature; that this distance is not accurate; that it not serious discrepancy on the basis of which ocular account may he disbelieved; that the witnesses produced by the prosecution were illiterate and they might have created a minor discrepancy which is liable to be ignored. Adds that the substitution in the like cases is rare phenomenon. It is possible in our society to falsely implicate the innocent person besides the guilty one but it never happen that the actual responsible person is let off and innocent person is substituted.
11. We have heard the respective contentions of learned counsel for the parties and perused the record with their able assistance.
12. In the present case, the occurrence took place at a place where the presence of the witnesses is not natural. Both the witnesses have failed to offer a plausible explanation justifyilig their mailability at the venue of incident. The status of both the eye-witnesses is of chance witnesses. Who are like interested and inimical witnesses. In order to rely upon the evidence of such witnesses, the Courts must require the prosecution to produce an independent witness whose deposition must be self- sufficient for the conviction of an accused person. In the present case; Muhammad Ramzan is father of Khalid Maqsood deceased and Abdul Ghaffar his maternal uncle {{URDU TEXT}}. Both these witnesses are closed relative of the deceased. According . To post-mortem report, the deceased died due to shock and haemorrage and the difference between the injuries and death was about two, hours. Had the father and Abdul Ghaffar maternal uncle taken the deceased to Hospital, their clothes must had become blood-stained. There is nothing on record that the clothes of these witnesses became stained with blood. From this fact, it can easily concluded that both the witnesses were not present at the spot nor they witnessed this occurrence. There is another important fact that despite the lapse of two hours, the deceased could not be taken to Hospital.
Had the father and maternal uncle rushed to the hospital to make the rescue of their lad possibility cannot be ruled out that his life could have been saved. The ocular account of the present case is also belied by medical evidence. According to the FIR and the ocular account Mukhtar Ahmad appellant was armed with a 7-MM rifle. The Doctor had not noticed any injury with the rifled weapon on the body of the deceased. According to the prosecution, he fired a shot which hit the left thigh of Khalid Maqsood on its front side. Even this version of the PW is not correct. The injury suffered by the deceased was on his left thigh went through and through and also injured his right thigh. According to the Doctor, there was only one injury on his person, which injured various organs of his body. In this respect, also the medical evidence contradicts the ocular account.
According to the site plan Ex.PA, the distance between Muhammad Abbas appellant and the deceased was about 2-Karams, which is equal to 11-feet. A perusal of injury. No, I caused on the left thigh of the deceased burning was noticed around the wounds. From a distance of 11-feet, the wounds suffered from the fire of a 12-bore gun would not carry burning around it. In this respect, medical report is not supporting the ocular account. After the detailed discussion, we of the view that both the witnesses were not present at the spot. After the incident they were called at the venue of incident and made. Cocked up witnesses. Their evidence carries various material discrepancies and they also made a number of improvements. The evidence of like witnesses cannot be relied upon.
13. We have already discussed above, that the medical evidence of the present case have failed to give support to the ocular account of this case.
14, It is prosecution case that on the day of occurrence, 12-bore empties cartridges were seized by the appellants from the venue of incident and sealed in to a parcel. On 5.12.2003 Muhammad Abbas appellant statedly got recovered a 12-bore gun, which was also taken into possession by the police and sealed into a parcel. Both the articles remained in the Malkhana together. It is not understandable as to- why the empty cartridges secured on 8.11.2003 were not sent to the office of Forensic Science Laboratory till 29.12.2003. The weapons of offence and empty cartridges secured from the spot of occurrence remained together in the Malkhana. During this process, possibility cannot be ruled out that an empty was secured from the weapon statedly recovered from the custody of Muhammad Abbas appellant and the said empty and the above-mentioned gun were sent to, the office of Forensic Science Laboratory and favourable report' was manoeuvred. Another important aspect cannot be lost side that Abbas appellant was armed with a 12 bore gun. It is a weapon which does not ejaculated the empty itself. It is the prosecution case that Muhammad Abbas appellant fired only one shot. The prosecution has not alleged that Abbas appellant repeated the fife, or ejected the empty from his weapon. In the circumstances, the seizer of empty from the spot of occurrence become highly doubtful. In the circumstances mentioned above, we are of the view that the empty sent to the Forensic Science Laboratory was not original. Even otherwise the gun was recovered from. The Dharee' of Muhammad Abbas, appellant. Under Section 103, CrPC, it is binding duty of the I.O. To engage the persons at least two respectables of the locality to the witness the recovery proceedings. In the present case, the respectables have never called to watch these proceedings. The close relatives of the deceased were made eye-witnesses of this recovery. In view of the violation of the provision of Section 103, CrPC we cannot make any reliance upon the recovery of 12-bore gun. The I.O. Of the present case was dishonest. He fabricated various pieces of evidence. His conduct is highly objectionable. The evidence of like witnesses cannot be relied upon. Prosecution case is highly doubtful and benefit of doubt goes to the appellants.
15. Resultantly, both the appeals are accepted, conviction and sentence of both the appellants is set aside. They are in custody. They be set at liberty, if not required in any other case.
16. Death sentence awarded to Muhammad Abbas appellant is not confirmed.
17. Murder reference is answered in negative.