M.A. ZAFAR, J. -This judgment will dispose of Criminal Appeal No. 1009 of 2003 filed by Muhammad Azam, Muhammad Inayat, Muhammad Ashraf and Muhammad Nawaz appellants, who were convicted and sentenced by learned Addl. Sessions Judge, Mandi Baha- ud-Din vide impugned judgment dated 28.5.2003 as under:-- Under Section 302 fbV149. PPC.
Death on three counts with the direction to pay Rs. 100,000/- each as compensation on. Each count or in default thereof to further undergo six months' SI on each count.
Under Sections 148/149. PPC.
One year's RI each.
Under Section 429. PPC.
Imprisonment for six months each with a fine of Rs. 5000/- each to Muhammad Nawaz and Muhammad Inayat.
Murder Reference No. 370 of 2003 for confirmation of death sentence br otherwise of all the appellants shall also be answered through this single judgment.
2. Brief facts of the case as described by Riasat AN complainant are that on 1.2.2000 he alongwith Nazar Hussain, Faisal Mehmood and Aurangzeb were coming towards their village and at about 8.30 p.m. Zaka Ullah deceased, Liaqat AN deceased were coming towards village on a Tonga alongwith Muhammad Abbas deceased. When they reached in front of Maddrass-ul-Madina of village Thatha Hasat an electric bulb was lighting. At that time a car came from northern side and stopped in front of Tonga at a distance of 10/12 steps. From the said car the accused, namely, Abbas armed with 8-MM rifle and Klashinkove, Nawaz, Ashraf, Azam accused all armed with 8-MM rifles, Inayat accused armed with 7-MM rifle emerged and started firing. Firstly Ghulam Abbas accused (since P.O) fired a brust from his 8-MM rifle, which landed on the left eye of Zaka Ullah.
Thereafter, Muhammad Ashraf and Muhammad Azam accused made firing, which hit Zaka Ullah and Liaqat AM deceased on their head' and neck. Thereafter, Muhammad Nawaz accused ' and Muhammad Inayat accused made fire, which hit Muhammad Abbas deceased and the mare.
Thereafter, all the accused made indiscriminate firing on Zaka Ullah, Liaqat and Abbas, who died at the spot. The mare also died at the spot.
Motive behind the occurrence was that for the last 10/11 years there is enmity between the complainant and the accused party about murders. It is further stated that the occurrence took place on the^abetment of Mst. Fatima Bibi widow of Muhammad Shafi and Sarfraz Ahmad accused.
3. Investigation of the case was taken over by Rashid Ahmad, SI PW.12. He reached at the spot, inspected the place of occurrence, took into possession blood-stained earth from the dead-body of Zaka Ullah, Liaqat Ali and Muhammad Abbas vide memo. Ex.PL, Ex.PN and Ex.PM, he also took into possession 18 empties of 8-MM rifle from the place of occurrence vide recovery memo. Ex.PP, prepared application for post-mortem Ex.PC/2, injury statement Ex.PC/3, inquest report Ex.PC/4 regarding Liaqat Ali deceased prepared application for post-mortem Ex.PD/2 and inquest report Ex.PD/3 regarding Zakaullah deceased and application for post-mortem Ex.PE/2, inquest report Ex.PE/3 regarding Abbas deceased, took into possession tonga from the spot vide memo. Ex.PQ, prepared rough site plan without scale of the place of occurrence Ex.PR. On 20.2.2000 he arrested Muhammad Nawaz accused and on 27.3.2000 arrested Fazal and Imtiaz accused whereas Ashraf accused was arrested on 20.4.2000. On 28.4.2000 Muhammad Azam and Inayat accused were arrested. Thereafter, the investigation of the case was entrusted to Rana Muhammad Hayat, DSP Range Crime, Gujranwala DW.1, who in his investigation found four accused, namely, Ghulam Abbas, Imtiaz, Muhammad Mansha and Fatima Bibi involved whereas the remaining accused were not found involved in this case. However, after completion of the remaining formal investigation, the challan was submitted against the accused persons in the Trial Court.
4. At the trial, the prosecution in order to prove its case produced 12 witnesses in all, out of them, PW.1 Ijaz Hussain constable executed non-bailable warrants of arrest of Ghulam Abbas accused, PW.2 Dr. Muhammad Nawaz conducted post-mortem examination on the dead-body of the deceased, PW.3 Muhammad Ashraf constable delivered three parcels containing blood-stained earth and one sealed parcel containing empties to the office of Chemical Examiner and Forensic Science Laboratory, Lahore, PW.4 Muhammad Ansar constable escorted the dead-bodies of the deceased to the hospital for post-mortem examination, PW.5 Akhtar Naqash draftsman prepared site plan in duplicate Ex.PJ and Ex.PJ/1, PW.6 Riasat AN complainant/eye-witness of the occurrence, PW.7 Aurangzeb another eye-witness, PW.8 Azmat Ullah recovery witness of blood-stained earth and crime empties taken into possession from the spot, PW.9 Muhammad Ehsan identified the dead-bodies of the deceased at the time of post-mortem examination. PW.10 Muhammad Younas and PW.11 Khizar Hayat witnesses of abetment and PW.12 Rashid Ahmad, SI investigated the case.
Learned A.D.A. After tendering in evidence reports of Chemical Ex.PT, Ex.PU, Ex.PV, reports of Serologist Ex.PW, Ex.PX, Ex.PY and report of post-mortem of Mare Ex.PZ closed the prosecution case.
Rana Muhammad Hayat, DSP Range Crime, Gujranwala/lnvestigator, Murawat Hussain, SI Range Crime, Gujranwala/lnvestigator, Zafar Ullah, Muhammad Hayat, Muhammad Ramzan and Sana Ullah were examined as -DW.1 to DW.6 respectively. Thereafter, the statements of the accused u/s. 342, Cr.P.C. Were recorded in which they pleaded innocence and claimed false implication due to previous enmity.
5. Learned counsel for the appellants having read the prosecution evidence and statements of the accused under Section 342, Cr.P.C. Submits that impugned judgment of learned Trial Court is illegal and incorrect and is not sustainable in the eyes of law. According to the learned counsel for the appellants, previous enmity exists between the parties and it is admitted by the complainant in FIR; Adds that the occurrence took place at 8:30 p.m. In the days of winter and had not been witnessed by any person and alleged eye-witnesses are chance witnesses rather they had not seen the occurrence with their own eyes. Learned counsel further submits that no weapon was recovered from the appellants and it is evident from the statement of 10 that only crime empties of rifle 8-MM had been collected by him from the spot and the said rifle was allegedly used by Ghulam Abbas son of Muhammad Shafi accused who was declared proclaimed offender by learned Trial Court and for this reason no weapon of offence alleged in the F.I.R. By the complainant and eye- witnesses had been recovered from the appellants and this fact also corroborates the defence plea that the eye-witnesses were not present at the place of occurrence at the time of occurrence, rather the present appellants have been implicated in this triple murder case due to previous enmity and relationship with Ghulam Abbas P.O. While concluding his submissions, learned counsel submits that motive alleged by the complainant party is also against Ghulam Abbas accused/PO and not against the present appellants and prosecution has badly failed to prove its case against the present appellants beyond reasonable shadow of doubt, therefore, the appellants are entitled to their acquittal.
6. On the other hand learned Addl. Prosecutor General assisted by learned counsel for the complainant vehemently opposes the contentions of the learned counsel for the appellants and supports the judgment of learned Trial Court and submits that learned Trial Court rightly convicted the appellants in this triple murder case. Adds that the prosecution has proved its case by producing ocular account and medical evidence in corroboration to each other and in this scenario the appellant does not deserve for any leniency.
7. We have heard the learned counsel for the parties at considerable length and have perused the record with their able assistance.
8. In the instant case the occurrence had taken place at 8:30 p.m. On 01.02.2000 within revenue estate of Thattha Hassat District Mandi Baha-ud-Din which is at a distance of one mile from Police Station Pharianwalli while the matter was reported to Police at 09:00 p.m. On 01.02.2000 by Riasat AN son of Muhammad Rafique where he made his statement Ex.PK and formal F.I.R. Was recorded by Rasheed Ahmed, SI. There are three deceased in this case, namely Zaka Ullah, Liaquat AN and Ghulam Abbas. Mare was also died during the occurrence. Riasat Ali complainant and Aurang Zaib who appeared as PW.6 and PW.7 respectively furnished the ocular account. Riasat Ali complainant while appearing as PW.6 before learned Trial Court re-iterated all the facts narrated by him in his statement Ex.PK. He is real brother of Liaquat AN deceased and also related to Zaka Ullah deceased. Previous enmity between the complainant, PWs and accused party is admitted by the prosecution witnesses in F.I.R. As well as during recording of evidence before learned Trial Court at pages Nos. 70, 71 & 74 of the paper book. Aurang Zaib while appearing before learned Trial Court as PW.7 corroborated PW-6, complainant. This PW has also admitted the previous long-standing enmity with the accused party for the last 10/12 years. During cross-examination at Page No. 84 of the paper book he stated as under:- "I was child when the enmity Started between complainant party and accused persons."
9. Dr. Muhammad Nawaz conducted postmortem examination on the dead-bodies of Liaqat AN, Zaka Ullah and Muhammad Abbas deceased. According to the said doctor there were 28 injuries on the dead-body of deceased Liaqat AN, 4 Injuries on the dead-body of Zaka Ullah and 6 injuries on the dead-body of Muhammad Abbas. The said doctor opined that probable duration between the injuries and death was immediate and between death and post-mortem was within 18 hours.
There is no denying the fact that the injuries as alleged by the eyewitnesses are present on the person of the deceased but those do not speak of their inflictor and the same has to see the culprit on the basis of the evidence on record before it. Medical evidence may confirm the ocular evidence regarding seat of injury, nature of injury, the weapon used, duration between injury and death but not establish identity of accused.
10. A perusal of the evidence reveals that Mst. Sajida sister of Ghulam Abbas accused/P.O. And Bhawaj of Inayat and Muhammad Azam convict/appellant, had been abducted by Nazir Ahmed of complainant party due to which enmity started between them and several persons had been murdered from both the parties. The motive whatsoever alleged by the complainant and PW Aurang Zaib is apparently related with Ghulam Abass P.O. And not with the present appellants.
Aurangzeb while appearing as PW-7 at page 84 in his cross-examination of the paper book deposed as under:--- "Accused persons present in Court are the relatives of Abbas accused".
He, in his cross-examination at Page 86 of the paper book, deposed as under: "It is correct that accused namely Inayat, Azam, Nawaz, Ashraf have no grudge against our party because neither any person having close relationship with the above-said accused persons or injured was murdered at our hands nor any person out of our party was involved by them in any case or abduction of any female of above-said accused persons."
Similarly PW-7, in his cross-examination at page No. 84 of the Paper Book deposed as under: "Accused persons present in Court are the relatives of Abbas accused. We were not on speaking terms with Abbas accused after the occurrence of abduction of Mst. Sajida sister of Abbas accused which is main bone of contention between both the parties."
Similarly, Riasat Ali, PW. 6, complainant while appearing before the Trial Court in his cross- examination deposed:--- "It is correct that enmity started between both the parties from the abduction of Mst. Sajida Bibi"
11. It is pertinent to mention here that 18 crime empties of only 8-MM rifle had been collected by the IO from the spot. According to F.I.R. Inayat convict/appellant was stated to be armed with 7-MM Rifle but no specification of the weapon of offence carried by Azam convict/appellant is.
Mentioned. Accused Ghulam Abbas (since P.O), Nawaz and Ashraf convicts/appellants were nominated in the F.I.R. Carrying 8-MM rifles but no weapon of offence was recovered on the disclosure of Nawaz and Ashraf, appellants though they have exhausted full period of remand.
12. It is correct that in this case apart from a mare, three persons also lost their lives but the Court has to see whether the prosecution has proved its case against the accused/convict/appellants through.' ocular testimony pf unimpeachable character. The answer to this question is big 'No' for the reasons given in the preceding paragraphs. The factum of previous enmity and the motive against Ghulam Abbas PO has been proved on record and is clear like a day. The relationship of all the convicts/appellants one way or the other has also come on record.
The nature of the evidence brought on record by the prosecution suggest that the possibility of false implication of convicts/appellants in this case cannot be ruled out rather the doubts with regard to implication of the appellants are floating on the surface of the record, the benefit whereof, has to be given ungrudgingly to the appellants. The evidence is not of such a nature on which implicit reliance can be placed without independent strong corroboration.
13. Haying analyzed-the entire prosecution and the defence of the appellants were are of the considered opinion that the case against the* appellants as alleged by the prosecution seems to be of doubtful nature so while extending the benefit of doubt we accept the appeal filed by the convicts/appellants, set aside the conviction and sentence recorded against them by the learned Trial Court vide impugned judgment and acquit them of the charge. The. Death sentence of all the four appellants is NOT CONFIRMED and the Murder Reference is answered in the NEGATIVE. The appellants are in jail, they shall be released forthwith if not required to be detained in any other case.