MANZOOR AHMAD MALIK, J.---Abdul Hameed, Munir Ahmad, Nazir Ahmad and Shabbir Ahmad alias Shabbiree appellants were tried in a private complaint, filed by Muhammad Aslam complainant under sections 302/148/149, P.P.C. against the appellants for the murder of his brother Muhammad Akram. The learned Additional Sessions Judge, Bahawalpur v his judgment dated 21- 11-2001 convicted all the appellants under section 302(b), P.P.C. and each of them was sentenced to imprisonment for life as Ta'zir. They were further ordered to pay compensation of Rs, 50,000 each under section 544-A, Cr.P.C. to the legal heirs of deceased Muhammad Akram and in default whereof, each of them, to further undergo for one year R.I.
2. Feeling aggrieved by the above conviction and sentence,, the appellants filed Criminal Appeal No, 325 of 2001 titled "Abdul Hameed and others v. The State and others" against their conviction and sentence. Muhammad Aslam, complainant also filed Criminal Revision No,157 of 2001 titled "Muhammad Aslam v. Abdul Hameed and others for enhancement of sentence awarded to the appellants from imprisonment for life to death. Both these matters are being disposed of through this single judgment.
3. Briefly stated, the facts of this case, as disclosed in the Private Complaint Exh-PB, are that Muhammad Akram, brother of the complainant used to reside at Chah Ghulam Rasool Wala Dakhli Mauza Muhammad Bakhsh. His wife was ill because of pregnancy. Complainant went to see her and stayed there for night in the house of his brother. At about midnight, Mst. Irshad Bibi raised hue and cry. Upon which, complainant and Muhammad Akram (deceased) woke up. Electric bulb was on in the courtyard, they saw that Abdul Hameed armed with .12 bore gun, Munir Ahmad armed with hatchet, Nazir Ahmad armed with pistol, Shabbir Ahmad alias Shabbiree armed with carbine along with two unknown persons armed with sticks were present. Nazir Ahmad raised lalkara to his co-accused that Muhammad Akram be taught a lesson for litigation regarding plot and path.
Upon which, Nazir Ahmad made fire with his pistol which hit Muhammad Akram on his right flank, Shabbir Ahmad alias Shabbiree made fire which hit on his right leg, Abdul Hameed made fire with gun, Munir Ahmad gave a hatchet blow which hit on his head. The complainant and his Bhabhi requested the accused not to kill Muhammad Akram. On their hue and cry, accused persons fled away from the spot after opening the door. Munawar Tufail, Bashir Ahmad P.Ws. and other inhabitants of the village came there who saw the accused along with their weapons and identified them. Muhammad Akram succumbed to the injuries when he was in the way to hospital.
Motive, for the occurrence was that prior to this occurrence, Nazir Ahmad and others interfered into the matter of path and plot upon which Bashir Ahmad, paternal uncle of the complainant got registered a case against the accused and the deceased was a witness in that case and due to this grudge, the accused have committed the murder of Muhammad Akram deceased.
4. Firstly, the complainant reported the matter to police through a written application (Exh-PA) and a formal F.I.R. No,364 of 1998 (Exh.PA/1) under sections 302/34, P.P.C. was registered on 19-7-1998 at Police Station City Ahmadpur East. After registration of the F.I.R., the case was investigated by the police and the appellants were declared innocent. Feeling dissatisfied with the investigation of the police, Muhammad Aslam complainant filed the above mentioned private complaint on 25-1-2001.
After recording cursory evidence of the complainant, the appellants were summoned, formal charge was framed against them to which they pleaded not guilty and the complainant was directed to produce his evidence. The complainant examined as many as eleven witnesses to prove the allegation against the appellants. The appellants were examined under section 342, Cr.P.C. Neither they produced any evidence in their defence nor opted to appear as their own witnesses as provided under section 340(2), Cr.P.C. in disproof of the allegations levelled against them. However, in reply to question why this case and why the P.Ws. have deposed against them, the appellants replied as under:- "The case is based on enmity and suspicion of the complainant party against us. The complainant party earlier also involved us in a false case, in which we were also declared innocent. In this case also investigation was conducted by at least six Investigating Officers of the highest rank and all of them found the allegations against us to be false and declared the case to be untraceable and us as innocent. The case was consequently cancelled, The private complaint arising out of the same facts, which stand rejected is also false. We are innocent and we pray for our acquittal."
5. After conclusion of the trial, the learned trial Court convicted the appellants and sentenced them, as detailed above.
6. Learned counsel for the appellants, in support of this appeal, contends that the occurrence in this case took place on the night of 18-7-1998 at about midnight, the F.I.R. was got registered on 19- 7-1998 at 3-30 a.m. and investigation was conducted by a number of Police Officers. Firstly, the case was investigated by Abdul Hameed, Inspector/S.H.O. (P.W.10) then by ASP/SDPO, DSP Range Crime Branch, Bahawalpur and then by a pane' of investigators consisting of Sultan Ahmad Inspector Crime Branch, Bahawalpur, Taj Muhammad Inspector Crime Branch, Bahawalpur and Ch. Ali Akbar DSP Crime Branch, Bahawalpur. Then the investigation was conducted by Muhammad Zameer Khan DSP under the order of DIG and after all these investigations, the complainant was informed on 31-8-1999 in writing that the accused were innocent and the case was going to be consigned as un-traced and this fact has been admitted by Abdul Hameed ' Inspector (P.W.10) and the complainant has also acknowledged this information; that the complainant did not file any private complaint even thereafter for a period of more than one year and four months; that admittedly, it is a night time occurrence and Muhammad Aslam (P.W.1) is not a resident of the place of occurrence and he has admitted that his house is situated at a distance of three kilometers from the house of the deceased and the reason given by him for his presence in the house of the deceased is not plausible; that Mst. Irshad Bibi (P.W.2) has admitted that Muhammad Aslam (P.W.1) was a married person and lived' with his wife and children in a separate house; that there is no blackening around any wound though Muhammad Aslam (P.W.1) and Mst. Irshad Bibi (P.W.2) have stated that the deceased was fired at from a distance of 3/4 feet, that firstly, there was no mention of the place from where Munir Ahmad appellant caused injury to the deceased but thereafter, Point No, 12 was added in the site plan (Exh. P.G.) and it is clear that it was added subsequently as it is mentioned by the Investigating Officer that points Nos. 1 to 11 were written by him, that Points Nos. 1 and 2 are very close but Mst. Irshad Bibi did not receive any injury; that there is no corroboration to the ocular account; that as far as evidence of Bashir Ahmad (P.W.3) is concerned, he is not resident of the place of occurrence rather lives at a distance of 2/3 acres and has not given any explanation for his presence at the place of occurrence at odd hours; that as per complainant, the earlier case was got, registered against the appellants by Bashir Ahmad (P.W.3) and had Bashir Ahmad been present at the place of occurrence, he would have been the main target; that two empty cartridges were recovered from the spot and as per scaled site plan (Exh- PG), these empty cartridges were taken into possession from point. No,4 which is at a distance of 34 feet from point. No,1, where the deceased was sleeping; that Mst. Irshad Bibi (PW-2) has stated that she has five children and they all were sleeping in the courtyard of the house but in the site, plan only one cot is shown and even Altaf Hussain Tariq Sub-Engineer (P.W.6) who prepared the site plan has stated that only one cot was pointed out to him and same has been shown in the scaled site plan; that no empty of .30 bore pistol was recovered from the spot whereas, it was alleged that Nazir Ahmad appellant fired with his pistol; that in the F.I.R. it was clearly mentioned that Abdul Hameed appellant fired with his gun which hit on the chest of the deceased and in the private complaint, no fire arm injury is attributed to Abdul Hameed appellant; that there is no corroboration to the statement of Mst. Irshad Bibi and on the basis of her solitary statement conviction cannot be maintained. In support of his contentions, learned counsel for the appellants places reliance on "Shahsawar and 2 others v. The State" (1994 PCr.LJ 999), "Muhammad Yousaf and 2 others v. The State" (2009 PCr.LJ 1011) and "Abdul Wahab Khan v. Muhammad Nawaz and 7 others" (2000 SCM R 1904).
7. Learned Deputy Prosecutor-General assisted by the learned counsel for the complainant opposes this appeal on the grounds that the prosecution has proved its case through natural reliable and confidence inspiring ocular account which consists of Muhammad Aslam brother of the deceased (P.W.1) and Mst. Irshad Bibi widow of the deceased (P.W.2); that the presence of Mst.
Irshad Bibi in the house, where the occurrence took place cannot be questioned and even it has not been suggested by the defence that the occurrence did not take place in the house of the deceased where the presence of Mst. Irshad Bibi is natural. Similarly, Muhammad Aslam (P.W.1) is the brother of the deceased and he has given a plausible explanation for his presence at the spot; that Bashir Ahmad (P.W.3) is a witness who saw the appellants while coming out of the house of the deceased and the ocular account gets full support from the medical evidence available on the record; that there was no delay on the part of the complainant to institute a private complaint as the matter remained pending with the police for a considerable time. Also submits that the opinion of the police qua the innocence of the appellants is inadmissible in evidence. In support of his contentions, learned counsel for tile complainant places reliance on "Muhammad Ahmad (Mahmood Ahmad) and another v. The State" (2010 SCM R 660).
8. As far as Criminal Revision No,157 of 2001 is concerned, learned counsel for the petitioner contends that the learned trial Court has not given any reason for awarding lesser punishment to the appellant, when the case of the prosecution/complainant is proved. Further contends that the learned trial Court, under section 367(5) of Cr.P.C. is required to give reasons if lesser sentence is awarded.
9. I have heard the arguments of both the learned sides and have gone through the record with their able assistance.
10.In this case the occurrence took place on 18-7-1998 at midnight and the matter was reported to the police on the same night and formal F.I.R. was registered at 3-30 a.m. at Police Station City Ahmad pur Sharqia, District Bahawalpur. The distance between the place of occurrence and the police station was two miles. The investigation in this case was conducted by a number of police officers and all of them concluded that the appellants are innocent. Abdul Hameed Inspector (P.W.10) has stated that on 31-8-1999, he was instructed to intimate the complainant regarding the innocence of the appellants and he informed the complainant through Exh.DA. However, the complainant Muhammad Aslam (P.W.1) while appearing before the court has denied this fact. Said P.W. (P.W .10) has also stated that the investigation was conducted by ASP, SDPO, DSP etc. who all declared the appellants innocent. Even this fact has not been denied by Muhammad Aslam (P.W.1) and Mst. Irshad Bibi (P.W.2). Muhammad Aslam (P.W.1), in his cross-examination has stated as under:-- ' It is correct that Muhammad Saeed, A .S.P/S.D .P.O., after due investigation declared the accused as innocent persons. D.I.G., after due investigation has not declared the accused innocent, but directed the SHO, to re-investigate the matter. D.S.P./A.D.I.G., also declared the accused innocent. It is correct that investigation once again transferred to S.P. Range Crime, Multan. After due investigation, S.P. Range Crime, Multan has declared the accused as innocent."
However, the question arises whether the opinion of the police officers, regarding the innocence or guilt of an accused is admissible in evidence? The answer is very simple that the opinion of the police regarding the guilt or innocence of an accused is inadmissible in evidence and court is required to decide the ease on the basis of legally admissible evidence which 'has been produced before it. In a recent judgment reported as "Muhammad Ahmad (Muhamood Ahmad and another v. The State" (2010 SCM R 660), the Hon'ble Supreme Court of Pakistan was pleased to observe, at page 676, as under:- "37. It may be mentioned here, for the benefit and guidance of all concerned that determination of guilt or innocence of the accused persons was the exclusive domain of only the Courts of law established for the purpose and the said sovereign power of the Courts could never be permitted to be exercised by the employees of the police department or by anyone else for that matter. If the tendency of allowing such-like impressions of the Investigating Officers to creep into the evidence was not curbed then the same could lead to disastrous consequences. If an accused person could be let off or acquitted only because the Investigating Officer was of the opinion that such an accused person was innocent then why could not, on the same principle, another accused person be hanged to death only because the Investigating Officer had opined about his guilt. it may be added that the provisions of sections 155, 156, 157 and 174 of the Criminal Procedure Code permit a police officer only to investigate a case. "Investigation" stands defined by the provisions of section 4(1)(i) of the said Code in the following terms:- "Investigation includes all the proceedings under this Code for the Collection of Evidence conducted by a police officer.... "
(emphasis and underlining have been supplied)
' This then clearly indicates that the job of the Investigating Officer is only to collect evidence and to place the same before the competent Court, Therefore, whatever expertise, if at all, could be claimed by an Investigating Officer, would be vis-a-vis his field of operation, namely collection of evidence. Could his opinion ever become admissible in the medico-legal matters which is the area reserved for medical doctors or with respect to archeological matters to determine whether an item was or was not an antique or about handwritings or foot-prints or fingerprints or to find out whether a painting was the actual work of a renowned painter or a fake? If the answer be in the negative, which it has 'to be, then how come he could be considered an expert and his opinion becoming admissible vis-a-vis the guilt or innocence of an accused person? It may be added that in the last 110 years since the Code of Criminal Procedure had been in existence in its present form, not once had it been authoritatively declared that an Investigating Officer was an expert in the matter of determining the guilt or innocence of accused persons whose opinion was admissible for the purpose, under the law of evidence"
' However, the fact remains that the complainant instituted the private complaint on 25-1-2001 whereas, as per Abdul Hameed Inspector (P.W.10), he intimated the complainant about the result of the investigation on 31-8-1999. The said witness (P.W.10) was not declared hostile by the complainant. In this background, the evidence of the complainant/prosecution is to be scrutinized very carefully and cautiously. The appellants have been convicted by the learned trial Court in a private complaint on 21-11-2001 and since then they are in confinement. The prosecution/complainant, in order to establish the ocular account, has examined Muhammad Aslam (P.W.1), Mst. Irshad Bibi (P.W.2) and Bashir Almad (P.W.3). As far as P.W.1 and P .W.2 are concerned, they claimed that they have witnessed this occurrence with their own eyes whereas, P.W.3 has stated that he saw the appellants while coming out from the house of the deceased while they were armed with their respective weapons.
' Motive part of this case as narrated by Muhammad Aslam (P.W.1) is as under:-- ...Motive of this case is that accused trespassed in the house of my brother Akram deceased, on the dispute of street and plot. Due to which my uncle Bashir Ahmad lodged a complainant bearing No, 466 of 1997 against said accused, in the F.I.R., Muhammad Akram deceased was main witness. The case of said F.I.R. is still pending. Due to the enmity of that case, accused has committed such offence."
It was alleged that Muhammad Akram deceased was a witness in the case earlier registered against the appellants but surprisingly, Bashir Ahmad who got registered the case against the appellants while appearing as P.W.3 has not stated a single word about this motive, therefore the prosecution has not been able to prove motive part of the case.
11. As far as statement of Muhammad Aslam (P.W.1) is concerned, he is admittedly a chance witness. He is resident of a place which is at a distance of 2/3 Kilometers from the place of occurrence. He is a married man and living in a separate house along with his wife and children. He has stated that he stayed in the house of his brother because his wife (Akram deceased's wife) was pregnant. But, the reason given by him for staying in the house of his brother at night does not appeal to be plausible as it is not the job of a man to look after a pregnant woman. As far as Bashir Ahmad (P.W.3) is concerned, he has stated that he was going to the house of the deceased along with Munawar Tufail (given up P.W.) when he saw the appellants coming out from the house of the deceased while they were armed with their respective weapons. That, too, does not appeal to reason because at this odd time (midnight), one will not ordinarily go to see a relative/friend and that too, without any solid reason or justification and even if Bashir Ahmad was present there, the question arises why he was spared because as per P.W.1, Bashir Ahmad got registered a case against the appellants, therefore, the statements of P.W.1 (Muhammad Aslam) and P.W.3 (Bashir Ahmad), in the circumstances, cannot be accepted. Now the only witness remains in the filed is Mst. Irshad Bibi (P.W.2) who is admittedly resident of the same house where the occurrence took place but her testimony becomes doubtful by other circumstances of the case. Site plan (Exh. PG) shows that there was only one cot at the place of incident whereas, the case of Mst. Irshad Bibi (P.W.2) is that she along with her deceased husband (Muhammad Akram), Muhammad Aslam (P.W.1) and her children were sleeping in the courtyard and there were six cots in the courtyard but no other cot has been shown in the scaled site plan (Exh.PG). She has further stated that the deceased was fired at from a distance of 2/3 feet but this fact is not supported by the medical evidence as there was no blackening or tattooing around any wound. Moreover, two empty cartridges were recovered from a place which is 34 feet away from the place where the deceased was fired at. All these circumstances create doubt about the story narrated by this witness and if a doubt is created in the prosecution case, the accused is entitled for the same as a matter of right and not as-a matter of grace. The statement of this witness cannot be accepted without any independent corroboration which is absolutely missing in this case. As far as empty cartridges, taken into possession from the place of occurrence are concerned, they are of no avail to the prosecution because there is no recovery of gun from any of the appellants. Therefore, while extending benefit of doubt to the appellants, this appeal is allowed, the conviction and sentence awarded to the appellants is set aside. They are in jail, they be released forthwith if not required to be detained in any other criminal case.
12. For the above reasons, Criminal Revision No, 157 of 2001 is, hereby, dismissed.