' MUHAMMAD ANWAR BHAUR, J.---The appellants, namely, Muhammad Ashiq, Ghulam Hussain, Bilal Ahmad, and their father Rasool Bakhsh were tried by the learned Additional Sessions Judge, Liaqatpur, District Rahim Yar Khan for the murder of Abdul Majeed deceased in case F.I.R. No,108, dated 19-4-2002, registered with Police Station Pacca Laran, District Rahim Yar Khan for offences under sections 302, 460, 201 read with section 109 P.P.C. The learned trial Judge by virtue of his judgment dated 27-9-2006 found the appellants guilty, convicted and sentenced them as under:-
(1) Under Section 302(b) P.P.0
(a) Muhammad Ashiq-appellant to death with further direction to pay a sum of Rs,1,00,000 to the legal heirs of the deceased as compensation under section 544-A Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for one year.
(b) Ghulam Hussain and Bilal Ahmadappellants to imprisonment for life with further direction to pay a sum of Rs,50,000 to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months.
(II) Under section 460 P.P.C.
' Muhammad Ashiq, Ghulam Hussain and Bilal Ahmadappellants to undergo imprisonment for life.
(III) Under section 109, P.P.C.
' Rasool Bakhsh to undergo rigorous imprisonment for five years.
' The sentences awarded to Ghulam Hussain and Bilal Ahmadappellants under sections 302(b)/34 and 460, P.P.C. Were crdered to run concurrently.
2. The appellants by filing Criminal Appeal No,319 of 2006 have called in question the convictions and sentences awarded to them through the impugned judgment, whereas the learned Additional Sessions Judge has sent Murder Reference No,60 of 2006 seeking confirmation or otherwise of the death sentence awarded to Muhammad Ashiq-appellant. We propose to dispose of both these matters together through this single judgment.
3. Occurrence in the instant case had taken place on 19-4-2002 at 2.00 a.m., within the area of village Choharwala, situate at a distance of six kilometers from Police Station Pacca Laran, District Rahim Yar Khan and the matter was reported by Abdul Aziz son of Wahid Bakhshcomplainant brother of Abdul Majid deceased to Alamdar Hussain, Inspector/ SHO (P. W.14) at police station on the same day at 3.35 a.m., who, as per dictation of the complainant, drew up F.I.R (Exh. PE) without any addition or alteration on his part.
4. Concisely the prosecution story as enunciated in the F.I.R. (Exh.PE) by the complainant (P.W.11) is that he is resident of village Choharwala and is an agriculturist by profession; on the fateful night, he along with his brother Abdul Rashid and Muhammad Din son of Khan Muhammad, his relative went to the house of his brother Abdul Majeed in order to consult some domestic affairs; as they became late, they stayed with Abdul Majeed and slept in his house; at about 2.00 a.m. In the night, they woke up on hearing commotion raised by Abdul Majeed and saw that three persons carrying firearms were dragging Abdul Majeed on the ground; in the sight of the complainant, Abdul Rashid and Muhammad Din, one of the accused suspected to be Ghulam Mustafa son of Ghulam Yasin fired a shot through his weapon at Abdul Majeed, which hit him on his abdomen, whereas the remaining two accused continued to drag Abdul Majid; the complainant along with his companions tried to rescue Abdul Majeed, but the accused persons threatened them not to step forward, otherwise they would be done to death; Abdul Majeed succumbed to the injuries at the spot; the complainant suspected that Ghulam Yasin, Muhammad Yousaf and Ghulam Mustafa committed the crime in question.
' Motive behind the scene, according to the complainant, was that there was dispute of the accused with Ghulam Yasin and Muhammad Yousaf, who happened to be step brothers of the complainant and due to that dispute over the land, Abdul Majeed was murdered; leaving Abdul Rashid and Muhammad Din to guard the dead body, the complainant left for the police station and got the aforesaid F.I.R. Registered.
5. After registration of the case, investigation into the crime commenced, during course whereof the complainant made supplementary statement alleging therein that Ghulam Hussain and Bilal Ahmad caught hold of Abdul Majeed from his arms, whereas Muhammad Ashiq fired at him, which proved fatal; that Muhammad Ashiq, Bilal Ahmad and Ghulam Hussain committed the crime on the abetment of their father Rasool Bakhsh just to snatch Rs,1,00,000 from Abdul Majid, who resisted, as a result whereof he was done to death. After completing all legal formalities, the Investigating Officers completed the investigation and submitted challan against the appellants for their trial in accordance with law.
6. The trial Court proceeded to frame a charge against the appellants, to which they pleaded not guilty and claimed to be tried. In order to prove its case, the prosecution ventured to produce as many as sixteen prosecution witnesses, namely, Syed Tanveer Ahmad, constable (P.W.1), Abdul Rehman constable (P.W . 2) Muhammad Nazir, Patwari (P.W.3), Dr. Zahid Iqbal Bhatti (P.W.4), Muhammad Iqbal (P.W.5), Manzoor Ahmad (P.W.6), Abdul Qadir (P.W.7), Muhammad Ajmal (P.W.8), Noor Ahmad (P.W.9), Saeed Ahmad (P.W.10), Abdul Aziz-complainant (P . W . 11), Abdul Rashid (P .W .
12), Hafeez Ahmad, A.S.-I. (P.W.13), Alamdar Hussain, Inspector/SHO (P.W.14), Rao Bashir Ahmad (P.W.15) and Mashood-urRahim, SP (P.W.16), whereas Muhammad Javed, DSP and Ghulam Fareed, DSP were examined as C.Ws.1 and 2, respectively.
' Learned Prosecutor closed the case of prosecution by giving up rest of the witnesses and tendering in evidence copy of Chemical examiner (Exh.PO) and copies of five F.I.Rs (Exhs.PP., PR,PS,PT and PU).
7. Thereafter, all the incriminating material was put to the accused under section 342 Cr.P.C, who denied the allegations brought against them and claimed their absolute innocence in the matter.
They alleged their false involvement in the matter due to animosity. Their consistent standpoint while answering question "Why this case is against you?" was that the complainant nominated Ghulam Yaseen, Muhammad Yousaf and Ghulam Mustafa in the F.I.R. And thereafter sniffing dogs were summoned, whereupon they were falsely involved in this case due to enmity and under suspicion. They did not opt to either make statements on oath under section 340(2), Cr.P.C. Or to adduce evidence in defence.
8. Upon culmination of trial, the trial Court pronounced verdict of guilt against the appellants as aforementioned.
9. Learned counsel for the appellants in support of this appeal argued that in this case, F.I.R. Was lodged by Abdul Azizcomplainant (P.W.11), real brother of Abdul Majeed deceased, wherein he claimed that he saw this occurrence along with Abdul Rashid and nominated three persons, namely, Ghulam Yasin, Muhammad Yousaf, his step-brothers, and Ghulam Mustafa, as accused, but name of the appellants is not mentioned in any context in the F.I.R.; that the other witness mentioned in the F.I.R. Is Abdul Rashid (P.W.12), who stated in his cross-examination that Abdul Aziz went to the police station after remaining at the spot for about ten minutes after the occurrence, but even then names of the appellants are not mentioned in the F.I.R., that both the eyewitnesses are not residents of the house, where the alleged incident took place, as the place of occurrence is house of the deceased and both of them are residents of different areas, therefore, they have not given any plausible explanation for their presence at the spot; that Abdul Rashid (P.W.12) while appearing before the Court has implicated the appellants while his stance is belied from the fact that he had thumb marked the inquest report (Exh.PC), wherein the same facts are mentioned, which were incorporated in the F.I.R.; that both the eye-witnesses claimed that they identified the appellants in the light of lantern, but this fact was not mentioned in the F.I.R.; that admittedly the appellants have enmity with the complainant party because during cross-examination, Abdul Rashid (P.W.12) has declined to have any knowledge of the registration of case against him and others, whereas Manzoor Ahmad (P.W.6) while appearing before the Court has categorically admitted that Rasool Bakhsh had lodged case F.I.R. No,104/77, under section 325, P.P.C. Against him, his brother Noor Muhammad P. W . , Rashid Ahmad P. W . , Azeem Bakhsh, his father, Wahid Bakhsh, his uncle and other relatives, therefore, the witnesses are admittedly inimical towards the appellants; that as far as witnesses of conspiracy are concerned, their statements are highly improbable and cannot be believed as they claimed that they while passing nearby the house of Rasool Bakhshappellant heard him when he was instigating his co-accused to commit the offence and, as such, they are eaves droppers and evidence of such witnesses cannot be relied upon as held in the case of Fakku Mia alias Motahar v. The State (1969 SCM R 620); that both the witnesses claim that they heard Rasool Bakhshappellant instigating his co-accused to commit murder of the deceased, but they did not inform about this fact either to the deceased or anybody else and they have not given any reason or explanation for not informing them, therefore, no reliance can be placed on their statements; that similarly insofar as witnesses of extra-judicial confession, namely, Noor Ahmad and Saeed Ahmad (P.Ws.9 & 10) are concerned, though their examination in chief was recorded, but thereafter they were given up by the prosecution as having won over and, as such, the defence had not been given the opportunity of cross-examining them, as such, no reliance can be placed on their statement, but the trial Court has relied on the same as well while observing in paragraph 16 of the impugned judgment that all the accused went to the Dera of Noor Ahmad (P.W.9) and in the presence of P.W.9 and P.W.10 made extra-judicial confession seeking to be got pardoned; that as far as witnesses of Wajtakar, namely, Muhammad Iqbal and Manzoor Ahmad (P.Ws.5 & 6) are concerned, their evidence is also not probable because there was no occasion for them to remain at their fields at odd hours of night i.e, 2.00 a.m. And their enmity with the appellants is also admitted and their names are not even mentioned in the F.I.R.; that there is no evidence on record to prove guilt of the appellants, as such, they deserves acquittal.
10. Learned Deputy Prosecutor General Punjab for the State while opposing this appeal submits that the prosecution has proved its case beyond any reasonable doubt and minor discrepancies are ignorable and it is the quality of evidence, which is to be seen by the Court, therefore, the appeal be dismissed.
11. We have heard learned counsel for the appellant as well as learned Deputy Prosecutor General Punjab for the State at considerable length and have also gone through the record with their able assistance.
12. In this case, the eventful incident took place on 19-4-2002 at 2.00 a.m., in the area of village Choharwala, which is at a distance of six kilometers from the police station (Pacca Laran) and the matter was reported by Abdul Aziz-complainant (P.W.11) to the police on the same day at 3.35 a.m.
And as per dictation of the complainant F.I.R. (Exh.PE) was recorded by Alamdar Hussain, Inspector/SHO (P. W.14).
13. Prosecution in order to prove its case examined as many as sixteen witnesses, whereas Muhammad Javed Baryar, DSP and Ghulam Farid, retired DSP were examined as C.Ws. 1 and 2.
Ocular account in this case has been furnished by Abdul Aziz-complainant and Abdul Rashid (P.Ws. 11 & 12), who are real brothers interse. In the F.I.R., the complainant (P.W.11) alleged that he along with his brother Abdul Rashid and Muhammad Din son of Khan Muhammad, their relative, went to the house of Abdul Majeed deceased in order to consult some domestic affairs, where they became late and slept there in the night. At about 2.00 a.m., on hearing hue and cry raised by Abdul Majeed, they woke up and saw three persons, who were carrying fire-arms, dragging Abdul Majeed on the ground. Within their view, one of those persons, who was suspected to be Ghulam Mustafa, shot a fire at Abdul Majeed hitting his abdomen, whereas rest of the accused continued to drag him. The complainant nominated two others, namely, Ghulam Yasin and Muhammad Yousaf as suspect accused. Thereafter, he made a supplementary statement, wherein he involved the appellants as the real culprits for the commission of murder of Abdul Majeed deceased. While appearing in Court, he stated that when he returned from police station after getting the case registered, a number of people had gathered there, out of whom Abdul Rashid (P.W.12), Muhammad Din, Iqbal and Manzoor told him that Ashiq, Bilal and Ghulam Hussain had committed the murder of Abdul Majeed. He further stated that Abdul Rashid and Muhammad Din told him that Bilal and Ghulam Hussain, who were carrying pistols, overpowered Abdul Majeed, whereas Ashiq made a fire with his rifle at Abdul Majeed and they had identified the accused in the lantern light.
According to him, Ashiq, Bilal and Ghulam Hussain had committed the crime on the abetment of Rasool Bakhsh, their father.
14. We have noted that in the F.I.R. The complainant (P.W.11) claimed to have witnessed the occurrence along with Abdul Rashid (P.W.12) and they both are real brothers of the deceased. He initially nominated three persons, namely, Ghulam Yasin, Muhammad Yousaf and Ghulam Mustafa, in the F.I.R., as the culprits of murder of Abdul Majid deceased and even against those persons, he is not definite and mere suspicion has been shown. The appellants were subsequently involved in this case on the basis of supplementary statement made by the complainant (P.W.11) and the prosecution has produced evidence under the following heads:-
(a) eye-witness account;
(b) medical evidence;
(c) conspiracy;
(d) Wajtakkar;
(e) Extra-judicial confession.
Insofar as ocular account is concerned, it consists of the statements of Abdul Aziz-complainant and Abdul Rashid (P. Ws .11 & 12). The complainant (P.W.11), as we have already observed, B nominated three persons in the F.I.R. And while appearing in Court he stated that he did not identify the accused at the spot and he has relied on the statement of Abdul Rashid (P.W.12).
Abdul Rashid (P. W.12) while appearing before the Court has implicated the appellants, but his testimony cannot be relied upon because of the following reasons:-
(a) his name finds mentioned in the F.I.R. And he stated that the complainant remained at the spot for ten minutes after the occurrence, so if the story narrated by him is correct, then names of the appellants must have been mentioned in the F.I.R.
(b) that he has thumb marked the inquest report (Exh.PC) and in the relevant column of the inquest report, the same story is narrated as is given in the F.I.R. But before the Court he (P.W.12) has narrated a different story;
(c) this witness initially did not accept the registration of cases against him by the appellant side but subsequently admitted the same.
15. As regards medical evidence, it has been observed that Dr. Zahid Iqbal Bhatti (P.W.4) had conducted autopsy on the dead body of Abdul Majeed deceased and found following injuries on his person.
(1) There was lacerated wound of size 01 c.m. x 01 c.m. x blind deep on the lift lumbar region. The abraded collar was present. The margins were inverted the clotted blood was present on dissection. The trace was going downward toward the middle off analcleft. The jejunum, the peritoneum and sigmoid colon at the anal canal was ruptured. The left common iliac artery was also ruptured. The peritoneal cavity was filled with blood.
' There was a lacerated wound of size 2 cm x 2 cm on the lower part of natal "anal cleft". The margins were outward. The correspondent parts of the clothes had also holes in it. The heart was healthy and empty. The left lumbar wall was ruptured. The left lower peritoneum was ruptured. The jejunum was ruptured. The sigmoid colon and anal canal were ruptured.
' In his opinion, injury No,1 caused damage to sigmoid colon. Jejunum and anal canal left common iliac artery leading to severe hypovolumec shock and peritoneum full of blood is sufficient to cause death in the ordinary course of nature. According to him, the time which elapsed between injury and death, was zero to thirty minutes, whereas that elapsed between death and postmortem was 12 to 24 hours. He has not found any mark of dragging on the dead body and this circumstance negates the story of the prosecution that the accused dragged the deceased on the ground. The other version of the complainant that the fire shot made by Muhammad Ashiq appellant landed on the abdomen of the deceased is also belied by the fact that the doctor during postmortem examination had found the injury on the lumbar region. Hence, the medical evidence ruled out the possibility of the complainant and Abdul Rashid (P.Ws.11 & 12) having seen the occurrence, meaning thereby they were not present at the spot.
16. Insofar as the evidence of conspiracy or abetment is concerned the prosecution examined.
Abdul Qadir and Muhammad Ajmal as P.Ws. 7 and 8, respectively. Both of them while appearing before the Court stated that after offering Eisha prayer, they were passing through the house of Rasool Bakhsh-appellant and heard that Rasool Bakhsh-appellant was asking his co-accused, namely, Ashique, Bilal and Ghulam Hussain to commit the crime and they saw all this over wall of the house, but they did not inform any body, so the conduct of these witnesses is highly unnatural and improbable, therefore, their testimony cannot be relied upon because' both of them are chance witnesses and, D eavesdroppers and none of them informed what they heard either to the deceased or to any public authority. Reliance can profitably be made to Fakku Mia's case (supra).
17. Next piece of evidence is evidence of Wajtakkar, which has been furnished by Muhammad Iqbal and Manzoor Ahmad (P.Ws.5 & 6). They both claimed that they were present in their fields at about 2.00 a.m. For just having a round of wheat crop, which is highly improbable because no sane person can accept their presence at such odd hours and they have also admitted criminal litigation between them and the appellant side and even a case was registered at the instance of appellant side, in which Abdul Rashid (P.W.12) was also accused, thus, they are inimical witnesses and as such their testimony is also of no avail to the prosecution.
18. Insofar as the evidence of extrajudicial confession is concerned, the same has been furnished by Noor Ahmad and Saeed Ahmad (P.Ws. 9 & 10) and they while appearing before the Court stated that the appellants had confessed their guilt before them, but they were subsequently given up by the prosecution and no chance was given to the appellants to cross-examine them. The trial Court has relied upon their testimony, which is not legal.
19. Considering the case from all angles, we have come to the conclusion that the prosecution story is highly improbable and the prosecution has failed to prove its case beyond any shadow of doubt against the appellants. It is well settled that if there are doubts in the prosecution story, then the benefit thereof will go to the accused not as a matter of grace but as a matter of right. Reliance in this behalf is placed on the case of Muhammad Akram v. The State (2009 SCM R 230).
20. Keeping in view the facts and circumstances of the case as discussed above and following the principles of law laid down by the honourable apex Court, we extend the benefit of doubt to the appellants. Accordingly, this appeal is allowed, convictions and sentences awarded to the appellants vide the impugned judgment are set aside and they are acquitted of the charges. The appellants, namely, Muhammad Ashiq, Ghulam Hussain and Bilal Ahmad are in custody. They are directed to be released from custody forthwith, if not required in any other case. Rasool Bakhsh- appellant is on bail and he stands discharged of his bail bonds.
21. Death sentence awarded to Muhammad Ashiq-appellant by the learned trial Court is NOT confirmed and Murder Reference in answered ins the negative.