' CH. MUHAMMAD TARIQ, J.---Muhammad Iqbal alias Shaddi, Muhammad Kashif and Sarfraz, appellants-accused, have filed Criminal Appeals Nos.1821 of 2003, 1822 of 2003 and 440-J of 2003 respectively against their sentences in case F.I.R. No. 24 dated 19-2-2002, for the offences under sections 302/109/34, P.P.C., registered with Police Station Massan, District Jhang. The complainant has also filed Criminal Appeal No. 1907 of 2003 against acquittal of accused Muhammad Aslam, Ghulam Abbas, Javed Iqbal, Allah Bakhsh and Muhammad Naveed and Criminal Revision No. 1052 of 2003 for enhancement of sentence of Muhammad Kashif and Muhamamd Iqbal alias Shaddi. All these criminal appeals as well as criminal revision shall be disposed of through this single judgment as all these arise out of one and the same judgment dated 27-9-2003 passed by Mr. Ikram-ul-Haq Chaudhry, learned Sessions Judge, Jhang, whereby the learned Sessions Judge acquitted Muhammad Aslam, Ghulam Abbas, Javed Iqbal, Allah Bakhsh and Muhammad Naveed accused, convicted the appellants-accused Sarfraz, Muhamamd Iqbal alias Shaddi and Muhammad Kashif under section 302(b)/34, P.P.C. And sentenced Sarfraz appellant to death while Muhammad Iqbal alias Shad di and Muhammad Kashif to life imprisonment each as Tazir. Vide the same judgment, all the three accused-appellants were ordered to pay compensation of Rs.100,000 each to the legal heirs of the deceased Haji Ghulam Muhammad as required under section 544-A, Cr.P.C. And in case of default of payment of compensation, they were to further undergo six months S.I. Each. The benefit of section 382-B, Cr.P.C. Was also awarded to appellants-accused Muhammad Iqbal alias Shaddi and Muhammad Kashif.
2. Capital Sentence Murder Reference No. 672 of 2003 sent by the learned trial Court under section 374, Cr.P.C. Read with section 338-D, Cr.P.C. For confirmation of death of Sarfraz, appellant-accused or otherwise will also be answered through this judgment.
3. Learned counsel for the complainant submits that he wants to withdraw Criminal Appeal No.1907 of 2003 filed against the acquittal of accused Muhammad Aslam, Ghulam Abbas, Javed lqbal, Allah Bakhsh and Muhammad Naveed, who have been acquitted vide judgment mentioned hereinabove and also to withdraw Criminal Revision No.1052 of 2003 filed for enhancement of sentence of accused Muhammad lqbal alias Shaddi and Muhammad Kashif.
4. According to the F.I.R. Lodged on the complaint of Mushtaq Hussain, son of the deceased, on 19- 2-2002 at 7-30 a.m., Haji Ghulam Muhammad deceased after offering his Fajr prayer and reciting Holy Quran was going to pay visit to shrine of Hazrat Abdul Gillani and when he reached in the bazaar at a distance of 10 karam from the mosque gate towards south, Sarfraz accused armed with pistol, Muhammad Iqbal alias Shaddi accused armed with pistol and Muhammad Kashif accused armed with .222 bore gun emerged there. Muhammad Kashif accused raised lalkara that they had come there to take revenge of murder of Umar Draz, whereupon Sarfraz accused fired with his pistol on Haji Ghulam Muhammad which hit him on the left side of his chest while Muhammad Iqbal alias Shaddi accused fired with his pistol hitting on the right eye of Haji Ghulam Muhammad and on receipt of these injuries Haji Ghulam Muhammad fell down and succumbed to the injuries at the spot. The complainant along with Ghulam Akbar and Saifullah proceeded towards the accused to overpower them but the accused while brandishing their respective firearms succeeded in fleeing away from the place of occurrence. Thereafter, a cot was brought whereby the deceased was taken to the hospital.
5. The motive of the occurrence according to the F.I.R. Is that the brother of the complainant namely Muhammad Nawaz, who is also the son of the deceased, has been acquitted by the court in an earlier case F.I.R. No. 145 of 1996 registered for the offences under sections 302/324/148/ 149/109, P.P.C. Due to this grudge, the accused Sarfraz and others had committed the Qatl-i-amd of the deceased in furtherance of their common intention. The F.I.R. Also mentions that when the accused were planning to kill the deceased at Sial Medical Store Toba Road Jhang, Muhammad Umair Ijaz son of Muhammad Sher, who came there to purchase some medicine, heard there planning and told the complainant party thereabout. According to F.I.R., the murder of deceased has been committed by Sarfraz, Muhammad Iqbal alias Shaddi and Muhammad Kashif at the behest of Muhammad Aslam, Allah Bakhsh, Ghulam Abbas, Javed Iqbal and Muhammad Naveed.
6. After culmination of the investigation, the police submitted report under section 173, Cr.P.C. The copies of the challan were provided to all the accused, as required under section 265-C, Cr.P.C. The charge was framed which was denied by all the appellants-accused who pleaded their innocence and false implication in the case. In order to prove its case, the prosecution produced as many as 13 witnesses out of which P. Ws. Amanullah, Muhammad Iqbal, Ghulam Akbar and Umair Ijaz were given up being unnecessary while Muhammad Aslam S.-I., Muhammad Ameer Gondal S.-I. Were given up being manoeuvred with the accused party. Muhammad Riaz, D.S.P. Could not be produced in evidence because of his death.
7. During the trial, the ocular account was furnished by Mushtaq Hussain Complainant/P.W.10 (real son of the deceased) and Saifullah, P.W.11 (son-in-law of the deceased) who reiterated the contents of the F.I.R.
8. Riaz Hussain, S.-I. (P.W.12) deposed that the investigation of this case was entrusted to him on 11- 6-2002, he arrested accused Muhammad lqbal alias Shaddi on 12-6-2002 and accused Muhammad Aslam and Ghulam Abbas on 26-6-2002. He stated that the investigation was then transferred to the S.P. Range Crimes, Faisalabad.
9. Yousuf Ali Haral, S.P. Range Crimes, Faisalabad P.W.13 deposed that on 9-5-2002, Muhammad Riaz Khan D.S.P. Range Crimes, Faisalabad was working under his supervision who had expired on 28-2-2003. He identified the signatures and handwriting of the late D.S.P. He deposed that the late D.S.P. Had summoned the parties on three dates, given them hearing in his office, visited the spot and had made interrogation from the accused in jail. He further deposed that the said D.S.P. Had concluded that accused Sarfraz, Muhammad Iqbal alias Shaddi, Muhammad Kashif, Muhammad Islam, Javaid lqbal and Ghulam Abbas were the real accused but the late D.S.P. Had found the accused Allah Bukhsh and Muhammad Naveed Shehzad as innocent. He further stated that on 10- 6-2002, D.I.G. Faisalabad had approved the investigation of the late D.S.P., but the I.G. Police had subsequently directed. D.I.-G. Faisalabad Range Crimes, Faisalabad to get the investigation reviewed and verified by S.P. Range Crimes, Faisalabad on the application of the accused, so he started the investigation on 6-8-2002 while accused Allah Bukhsh had appeared before him on the same day and, thereafter, parties were given hearing on three dates. He further submitted that after completion of investigation, he had fully verified the investigation conducted by Muhammad Riaz Khan (Late D.S.P.), had sent his report to D.I.G. On 25-9-2002 who had agreed with the investigation, so this witness had sent the file to S.P. (Investigation) on 26-9-2002 for completion of the challan.
10. Umar Daraz (P.W.6) deposed that on the pointation of accused Sarfraz while in the police custody, he got recovered the pistol P-5 along with two live bullets P-6/1-2. P.W.-2 Muhammad Rafique deposed that he received one crime empty of .30 bore and a .30 bore pistol in separate sealed parcels which he handed over to Haqnawaz Constable for delivery to Forensic Science Laboratory.
11. P.W.3, Dr. Zafar Abbas, who conducted the autopsy, observed the following injuries on the body of the deceased:-- "1(a) A fire-arm entrance wound with inverted margins 0.5 cm x 0.5 cm on front of left chest, 6 cm medial to left nipple;
(b) A fire-arm exit wound with everted margins 1.2 cm x 1.0 cm on back of left chest (middle part), 2.5 cm from the mid line. This injury was in continuation of injury No.1(a).
2(a) A fire-arm entrance wound with inverted margins, 1 cm x 1 cm on right cheek, 3 cm in front of right ear tragus.
(b) A fire-arm exit wound with everted margins 1.5 cm x 1.5 cm on right cheek, 3 cm medial to injury No.2 and 2 cm below right eye. This injury was in continuation of injury No .2(a). "
' According to the doctor, the dead body was clad in a shirt, chadder, saafa and jersi (all blood stained) and the death in this case had occurred due to injury No.1 resulting injuries to the vital organs i,e, heart and left lung, haemorrhage and shock. He was of the view that this injury was sufficient to cause death in ordinary course of nature.
12. The other witnesses being formal in nature need not to be discussed here.
13. After close of prosecution evidence, the accused were examined under section 342, Cr.P.C., wherein all the accused admitted their relationship inter se, and denied the planning of abetment scheme on 18-2-2002 at about evening time at the Medical Store of Muhammad Aslam accused, or arrival of the P.Ws. Muhammad Umar Ejaz and Sher Muhammad or their hearing the abetment plan regarding qatl-e-amd of Haji Ghulam Muhammad deceased. All the accused also declared the medical prescription allegedly written by Muhammad Aslam accused as a fabricated piece of evidence. All the accused although admitted that Muhammad Nawaz son of Haji Ghulam Muhammad deceased along with others were challaned and acquitted but all the accused denied rest of the portion of motive by stating that if this motive would have been true, then Muhammad Nawaz would have been the target and not the deceased because the deceased was not an accused in the earlier murder case. All the accused denied to the alleged prosecution story regarding presence of Musthaq Hussain, his brother Ghulam Akbar, going of Haji Ghulam Muhammad deceased towards the shrine of Hazrat Abdul Qadir Gillani, emerging of accused armed with crime weapons, raising of lalkara by Muhammad Kashif accused, inflicting of fire arm injuries by accused Sarfraz. Muhammad Iqbal alias Shaddi or good escape of the three accused by waving the weapons in the air. All the accused refuted the reports of warrants of arrest and the proceedings of proclamation orders against the accused Muhammad Kashif and Javaid Iqbal by agitating that the reports were fabricated, that these accused had been joining the investigations and their respective pleas were duly recorded by the I.Os. All the accused also denied the suggestions regarding securing the crime empty (P-7) its transmission to the office of Forensic Science Laboratory, Lahore for comparison, subsequent sending of pistol (P-5) to the office of Forensic Science Laboratory, Lahore and receipt of report of Expert and the accused alleged that this Expert report was against the prosecution story. Which had been trying to fabricate the evidence against them. All the accused jointly took the plea that the case registered and the P.Ws.
Had deposed against them because they were inimical towards them and they were also related to the deceased, so the accused averred that they were falsely involved in this case.
14. The accused Sarfraz came up with a version that he was innocent, that no blood stained earth was secured from the place of occurrence, that the deceased was done to death at some other place and was thrown near his house and due to suspicion and grudge of the earlier case of murder of his brother, he was falsely roped in this case. Accused Muhammad Kashif and Muhammad Kashif claimed that they have been declared innocent by the Investigation Agencies.
All the three appellants-accused neither adduced any evidence in their defence nor opted to appear as their own witness on oath as required under section 340(2),. Cr.P.C.
15. After conclusion of the trial, the learned trial Comt found the appellants guilty of offence and sentenced them as stated above.
16. Learned counsel for the appellants contends that there is no incriminating evidence available on the record against the appellants and the story narrated in the F.I.R. Is unnatural, illogical and fabricated one as according to the prosecution version, the deceased Haji Ghulam Muhammad, in the month of February, was coming after offering his Fajr prayer and reciting of Holy Quran at 7-30 a.m. When the accused caused injuries to the deceased, however, Fajar prayer in the mid-February is offered at about 5-45/6-00 a.m. And there was no time of Fajr prayer at 7-30, as claimed by the prosecution. Further contends that the deceased suffered two firearm injuries but astonishingly, no blood could be found or recovered from the place of occurrence. Further contends that alleged occurrence admittedly had taken place in an area which is surrounded by abadi but none has come forward as witness to support the prosecution version except the complainant, who is the real son of the deceased and Saifullah, P.W.11, who is son-in-law of the deceased. Learned counsel has also pointed out that according to the report of Forensic Science Laboratory, the empty does not match with the allegedly recovered weapon of crime and further that the medical evidence does not corroborate the ocular account as not only the inquest report is unsigned but also the doctor had opined that the occurrence took place at about 3-00/ 4-00 a.m. And not at 7-30 a.m.
As claimed by the complainant party. Further contends that the occurrence, as opined by the doctor, has actually taken place at about 3-00/4-00 a.m. But the F.I.R. In this case was lodged at 8- 15 a.m., after about 4-5 hours, in connivance with the police and after due deliberations and consultations, which cannot be believed upon. He further contends that the deceased had been murdered by some unknown person but due to the animosity with the appellants, which is admitted by both the parties, the appellants-accused have falsely been implicated in this case.
Further contends that no recovery was effected from the accused Muhammad lqbal alias Shaddi and Muhammad Kashif despite the fact that they remain on physical remand for a long time.
Further contends that the prosecution has failed to prove the motive of the occurrence. He argued that if the accused had to take revenge, they would have killed the young son of the deceased who according to the prosecution was at the spot and not an old man of 70 years of age. Further contends that it is also unnatural that P.W.11 who is resident of Peerkot Sudhana, District Jhang was present at 7-30 in the morning in the Khokha situated outside the girls school. He avers that P.Ws. 10 and 11 are not the truthful witnesses and they have not witnessed the occurrence but only due to enmity, they have deposed against the appellants. He lastly contends that thg prosecution has failed to prove its case beyond any shadow of doubt as required under the law, therefore, the appellants be acquitted of the charge.
17. On the other hand, learned A.P.-G Punjab assisted by learned counsel for the complainant has controverted the arguments advanced by the learned counsel for the appellants on the grounds that it is a case of promptly lodged F.I.R., the accused have been nominated with specific roles and ocular account is fully corroborated by the medical evidence. Further contends that the abscondence of accused Muhammad Kashif and Muhammad Iqbal after the occurrence corroborates that they have committed the offence. Further contends that the occurrence is result of the admitted enmity between the parties. Further contends that Saifullah is a natural witness who runs a khokha in front of Masali Girls School and this fact is fully established from the site plan Exh. PG. Further contends that crime empty was recovered from the place of occurrence and the report of Forensic Science Laboratory is not against the prosecution as according to the report Exh.
PQ, the empty does not contain point of identification sufficient enough to hold comparison with the test empty of .30 bore pistol, hence nothing could be opinionized whether or not the crime empty mark has been fired from the pistol recovered from the accused. Further contends that the place of occurrence is admitted but since the fire hit the left side of the chest of the deceased and all blood accumulated in the cavity of chest which could not be come out, that is why there was no blood at the place of occurrence. Further contends that the prosecution has proved its case beyond any iota of doubt and despite the fact that the P.Ws were subjected to lengthy cross- examination, the defence side has failed to put any dent in the prosecution story, therefore, the appeals be dismissed and conviction and sentence passed by the learned Sessions Judge be maintained.
18. I have heard the arguments advanced by the learned counsel for the parties as well as the learned A.P.-G and have also gone through the entire evidence with their able assistance.
19. The core issue on which the defence has emphasized much is the time of occurrence. The deceased who was an old man and had also performed the Hajj might have been a pious man and had been offering prayers regularly. In the mid of month of February, the time of Fajr prayer is about 5-45/6-00 a.m. The version of the prosecution that the deceased was coming back after offering Fajr prayer and reciting the Holy Quran at 7-30 a.m. Is illogical because in village, most of the people getup early in the morning. The next important question is non-recovery of bloodstained earth from the place of occurrence. According to the prosecution version, two bullets of .30 bore pistol hit Haji Ghulam Hussain, deceased, one at the left side of chest and the other under his right eye and thereafter he fell down on the earth. According to the report, pleura of left lung of injured, chest cavity was full of blood, the pericardium and heart were injured and both the chambers of heart were empty and the shirt, chadder saafa and jersi wherein the dead body was clad were bloodstained and despite all that not a single drop of blood was available on the place of occurrence is unbelievable, particularly when after suffering fire arm injuries, the deceased fell down on the ground. According to the prosecution story, the place of occurrence is surrounded by abadi but none has come forward to support the version of the prosecution. P.W.10 Mushtaq Hussain complainant is the real son of the deceased who was allegedly present outside the girls school near the place of occurrence. The appellants-accused despite that they were armed with lethal weapons, they fired at the deceased and murdered an old and weak man of 70 years of age who was already in the last spell of his life and moreover, they had no motive against him and not at the young son of the deceased is also not convincing. Similarly, P.W.11 is the son-in-law of Haji Ghulam Muhammad who is resident of another village but on the date of occurrence, he has been shown as a chance witness.
20. Further, the record does not speak about the meeting of the deceased Haji Ghulam Muhammad with PW-10 or PW-11 in the morning before he left his house for offering Fajr prayer, so the version of the A prosecution that after offering Fajr prayer and reciting the Holy Quran, the deceased proceeded towards the Shrine of Hazrat Ghulam Qadir Gillani is just a padding in the story. Further despite that appellants Muhammad Kashif and Muhammad Iqbal alias Shaddi remained on physical remand but no recovery could be effected from these accused. Learned counsel for the complainant has argued that the accused remained absconder for a considerable time which is corroborative of their crime. But the learned counsel for the appellants has pointed out that no question about the abscondence was put to the accused during their examination under section 342, Cr.P.C., so the prosecution cannot take any benefit from this and the objection of the complainant is also negated from the statement of P.W.12 Riaz Hussain S.-I. Who in his cross- examination has categorically stated that the accused Muhammad Iqbal alias Shaddi had been appearing before the Investigating Officers.
21. The epitome of the whole discussion is that P.W.10 and P.W.1 are neither natural nor truthful witnesses. In the circumstances of the case, it has prima facie come out that P.W.10 and P.W.11 were not present at the spot and the occurrence had also not taken place at the alleged place of occurrence or in the manner as claimed by the prosecution. Hence, the Criminal Appeals Nos.1821 of 2003, 1822 of 2003 and 440-J of 2003 are accepted and the appellants 'acquitted of the charge.
Capital Sentence Reference No.672 of 2003 submitted by the learned trial Court for confirmation of death sentence or otherwise in respect of Sarfraz appellant is answered in Negative. The appellants be released forthwith if not required in any other case. No order as to costs.
22. Criminal Appeal No.1907 of 2003 and Criminal Revision No.1052 of 2003 are dismissed as having been withdrawn.