Shahid Hameed Dar, J.--The appellant Riaz -Hussain has been convicted by the learned Addl.
Sessions Judge, Chakwal on a charge of murder of Muhammad Mumraiz. The appellant was sentenced as under: U/S 302 (b) P.P.C.
Death with order to pay Rs, 1,00,000/- as compensation to the legal heirs of the deceased u/S. 544- A Cr.P.C., in default thereof to undergo six months S.I.
2. The convict has filed Crl. Appeal No, 251 of 2006 against his conviction/sentence and Mst. Mehr Bhari complainant, PW-6 has filed an appeal against the acquittal of Alam Sher, Respondent No, 1, besides, there is a usual reference U/S. 374 Cr.P.C. for the confirmation of the sentence of death, transmitted by the learned trial Court. This judgment will dispose of the above said appeals and the reference.
3. The crime is said to have been committed at 10:00 a.m on 25.03.2002, in the area of Jasial situated within the jurisdiction of Police Station, Sadar Talagang which is at a distance of 4(1/2) miles from the place of the incident.
4. The facts culminating in this incident were that Mst. Mehr Bhari and his son Muhammad Mumraiz (deceased) went to Jasial necropolis for the maintenance of the graves of their nears and dears on 25.03.2002; on way back to their house, they were on a bicycle, when they reached a kuchha passage, leading to village Akwal, at about 10:00 a.m., they were ambushed by Mumtaz Hussain (since dead), Riaz Hussain (appellant) and Alam Sher (since acquitted), all armed with pistols, who emerged from densely grown reeds; Mumtaz raised lalkara that Mumraiz be not spared and be murdered within the view of his mother; Mumraiz threw his bicycle and attempted to run but Riaz Hussain (appellant) fired straight at him with his pistol which landed on his right hip, followed by another fire shot with his pistol by Muhammad Mumtaz Hussain (since dead) which landed on the left ear of Muhammad Mumraiz; Alam Sher (since acquitted) also fired with his pistol which hit Muhammad Mumraiz on the right lumber region due to which he fell on the ground; all the accused thereafter, jointly fired at the fallen son of the complainant and caused injuries on his right thigh and lumber area; Muhammad Mumraiz succumbed to the injuries instantaneously; the occurrence was witnessed by Sharaf Khan PW-7 and Muhammad Ashraf, PW (not produced); the accused fled away after committing the occurrence.
5. The motive behind the occurrence related to a dispute of growth of a tree due to which a quarrel had taken place between Muhammad Mumraiz (deceased) and Mumtaz Hussain etc, five days prior to the occurrence, wherein both the sides had showered abuses _upon each other; besides, previous litigation between Alam Sher (since acquitted) and the complainant.
6. According to Muhammad Nauman SI, PW--9 on receipt of information reached the place of occurrence where Mst. Mehar Bhari complainant (PW-6) appeared before him and got recorded her complaint Exh. PF qua the above said incident. Muhammad Nauman SI examined the dead body, prepared injury statement Exh.PD, inquest report Exh.PE and dispatched the deadbody of Muhammad Mumraiz (deceased) to the mortuary under the escort of Muhammad Javed 692/C, (PW-3). The police proceedings recorded by PW-9, underneath the complaint, reveal that he had completed the proceedings of the complaint, at 12:00 noon on 25.03.2002, at the place of occurrence.
7. Muhammad Nauman S.I, PW-9 thereafter inspected the spot, prepared the rough site-plan Exh.
PM of the place of occurrence, collected blood-stained earth vide memo. Exh.PG, attested by Sharaf Khan, PW-7 and Muhammad Ashraf PW (not produced). The I.O. also secured cycle P-6 vide memo. Exh.PJ. He took into possession three crime empties of .30 bore P-1/1-3 and two missed bullets P-9/1-2 vide memo. Exh.PH. All the aforesaid memos. were attested by Sharaf Khan, PW-7 and Muhammad Ashraf PW (not produced). The I.O. took into possession last worn blood-stained clothes of the deceased Shalwar P-2, Qameez P-3, vest P-4 and a sealed phial containing bullet head P-5 vide memo. Exh.PB attested by Hashim Khan, PW-8, Ameer Khan PW (not produced) and Muhammad Javed 692/C PW-3. He got prepared the site-plan in triplicate Exh.PA, Exh.PA/1 and Exh.PA/2 by Mehram Khan Patwari, PW-2 in the scale of 1 inch equal to 80 karams. He arrested Mumtaz Hussain (since dead) and Riaz Hussain (appellant) on 01.04.2002. Riaz Hussain appellant, on his disclosure, led to the recovery of pistol .30 bore P-10 on 08.04.2002 vide memo. Exh.PL, attested by Manzoor Hussain PW (not produced) and Hashim Khan PW-8 and Mumtaz Hussain (since dead) pursuant to his disclosure, got recovered pistol .30' bore P-9, vide memo. Exh.PK, attested by Zafar Iqbal PW (not produced) and Sharaf Khan, PW-7, the same day. The I.O. prepared the rough site-plans Exh.PM and Exh.PK/1 qua the places of recovery of the above said weapons.
The I.O. completed the investigation and challaned the accused except Alam Sher (since acquitted) as he was not found involved in the occurrence.
8. The dead body of Muhammad Mumraiz deceased was subjected to autopsy by Dr. Malik Zubair, M.O., PW-5 THQ Hospital, Talagang at 2:15 p.m. on 25.03.2002, vide post-mortem examination report Exh. PC (pictorial diagrams Exh. PC/1 & Exh. PC/2) who found following injuries thereupon:-- (1)A fire-arm wound of entry on right temple above right ear (8 mm in dia) having inverted edges.
(2)A fire-arm wound of exit with everted edges on left ear (1.1 cm dia) near auditory canal.
(3)A fire-arm wound of entry right upper thigh near the inguinal region, (1 cm dia) on the outer aspect.
(4)A fire-arm wound of entry on right thigh (8 mm dia) with inverted edges on outer aspect at almost greater trochanter level.
(5)A fire-arm wound of entry with inverted edges on left lower chest laterally approximately 8 mm dia, almost in mid axillary line.
(6)A fire-arm wound of exit 1.2 cm dia on right sub-costal region on lateral aspect, almost along posterior axillary line, having everted edges.
The cause of death, as recorded by the Medical Officer, was due to severe shock and haemorrhage caused by the above said injuries. All the injuries were ante-mortem and caused by fire-arm.
The probable time, elapsed between injuries and death was worked out by the Medical Officer as 'immediate' and between death and post-mortem as within 12 hours.
9. The appellant in his statement u/S. 342 Cr.P.C., denied having committed the offence and professed his innocence, while answering the question, "Why this case against you and why the PWs have deposed against you" and contended as under:-- "The entire prosecution story is false. Witnesses are interse related. No witness whatsoever was present at the time of so called occurrence. In fact it was an unseen murder. Deceased met his unnatural death much earlier to the time of occurrence introduced by prosecution. Witnesses are also inimical towards me. Alam Sher accused two days earlier to this occurrence got registered FIR No, 34 at same Police Station against Hashim Khan and Muhammad Ashraf (PWs). They were wanted in that case. Myself and Mumtaz accused (late) had supported Alam Sher in that case.
When Mumraiz Khan was found dead being unattended thereafter complainant party made a guess work. At a belated stage after deliberations and consultations having connivance with police the complainant and witnesses opted to involve me and my co-accused Mumtaz in this case.
There was no reason for me to commit the mu:der of Mumraiz. I was taken to Police Station after 3 or 4 days of the occurrence where I alongwith Mumtaz was kept under illegal confinement for many days. I was physically tortured there and in this regard on my production before Area Magistrate for the first time, on 02.04.2002 I had submitted an application against police whereafter I and Mumtaz were medically examined and we were found being tortured. Prior to that complainant party had provided the weapons to police with which so called empties and bullets were prepared which were planted on us while sitting in Police Statian. I am quite innocent in this case."
10.Mst. Mehr Bhari PW-6 is the mother Of the deceased. Sharaf Khan, PW-7 is the real paternal uncle and Muhammad Ashraf PW (not produced) is the son of the complainant. Obviously these PWs are the close kith and kin of the deceased.
11.Mst. Mehr Bhari, .PW-7 submits in her testimony that she alongwith her son Muhammad Mumraiz traditionally went to the graveyard to visit the graves of her departed relations on 25.03.2002 as it was the 10th of Moharram-ul-Haraam. When she was returning to her village on a bicycle driven by her above named son, they were ambushed by Mumtaz (since dead), Riaz Hussain (appellant) and Alam Sher (since acquitted), all armed with pistols .30 bore who emerged from a cluster of reeds.
Muhammad Mumraiz by throwing his bicycle attempted to run away when he was fired at, one after the other, by Riaz Hussain, appellant-accused, Mumtaz Hussain (since dead) and Alam Sher (since acquitted). The fire shot-of the appellant-accused landed on the right hip area, the shot fired by Mumtaz Hussain accused (since dead) landed on left side of the head near ear and the missile fired by Alam Sher (since acquitted) landed on right flank of Muhammad Mumraiz (deceased). The occurrence was witnessed by Sharaf Khan PW-7 and Muhammad Ashraf PW (not produced) besides herself. The accused took to their heels after committing the occurrence. The motive alleged was a dispute between the deceased son of the complainant and Mumtaz Hussain etc. (accused) which took place a few days prior to the occurrence besides the litigation between Alam Sher accused (since acquitted) and the deceased party. Sharaf Khan delivered a similar statement when he appeared before the trial Court as PW-7.
12.The learned Addl. Sessions Judge examined the evidence of the prosecution witnesses and found their testimonies reliable and credit- worthy as to the incident and formulated the opinion that they had witnessed the occurrence being present at the spot at the relevant time.
13. We have examined and scanned the eye-witness account with required degree of care and caution.
14.So far as the main story of the occurrence goes the evidence of PW-6 and PW-7 is consistent and of uniform character. There is nothing in their cross-examination to show as to why their evidence should be discarded nor any particular reason has been shown on the record as to why the witnesses of ocular account would render false evidence against the. appellant-accused. The alleged occurrence took place at about 10:00 a.m. on 25.03.2002, on a kuchha passage where Muhammad Mumraiz (deceased) and his mother Mst. Mehr Bhari, -complainant, PW-6 were ambushed by Riaz Hussain appellant-accused, allegedly joined by his co-accused Alam Sher (since acquitted) and Mumtaz Hussain (since dead) as they sat in wait in a cluster of reeds wherefrom they emerged at the time of occurrence. The appellant-accused in cahoots of his co- accused allegedly committee the occurrence in the perspective of a dispute qua plantation of a tree, between Mumtaz Hussain etc. and Muhammad Mumraiz (deceased) a few days prior to the occurrence wherein both the sides had showered abuses upon each other. The other part of the motive relates to registration of a criminal case by Alam Sher, accused (since acquitted) against the deceased and others.
15.It was 10th of Moharram-ul-Haram on the day of the occurrence and it is a common practice and ritual that the muslims in our country regardless of their faith and sect, observe Aashura with great reverence and veneration. They visit the graveyards where their deceased relatives are resting in peace. The contention of Mst. Mehr Bhari, PW-6 and that of Sharaf Khan PW-7 qua paying a visit to the graveyard, on the fateful day, cannot be disbelieved for the foregoing reason. It is however, to be seen whether all the three accused including the appellant-accused had participated in the occurrence. It cannot be denied that there is an ever growing tendency to cast the net too wide to falsely implicate as many sympathizers of the principal accused as possible so as to make sure that no one would come to the help and rescue of the actual assailant(s). The appellant-accused has been burdened with the liability of causing an injury on the right hip of Muhammad Mumraiz which is perfectly corroborated by the medical evidence, furnished by Dr. Malik Zubair M.O., PW-5.
16.The witnesses of ocular account PW-6 & PW-7 have deposed in their testimonies that Alam Sher (since acquitted) launched a missile with his pistol which landed on the right flank of the deceased son of the complainant but it is not corroborated by the medical evidence as the post- mortem examination report Exh.PC does not disclose any such entry wound on the body of the deceased. There, we find Injury No 6 on the right sub-costal region on lateral aspect, almost along the posterior axillary line but this is the exit wound, having everted edges. The false implication of Alam Sher accused (since acquitted) in this case cannot be ruled out as he was the complainant of a criminal case, lodged against the deceased son of the complainant, a few days prior to the occurrence. Had Alam Sher accused (since acquitted) any motive to commit the occurrence in issue, he was not supposed to spare Ashraf PW (not produced) who was present at the time of occurrence and at the mercy of the accused. He was the man with whom Alam Sher had direct conflict so the question arises, why would he spare the person with whom he had a direct dispute.
The inaction on the part of the acquitted accused qua Muhammad Ashraf PW creates a serious doubt about his involvement in the occurrence. He was found not present at the place of occurrence at the relevant time during the course of investigation. The unfortunate occurrence provided a golden chance to PW-6, PW-7 and Muhammad Ashraf PW (not produced) to fabricate a story for false. implication of Alam Sher accused so as to settle score with him. The Investigation Officer Muhammad Nauman SI, -PW-9 has categorically stated in his testimony that he had verified the plea of innocence of Alam Sher accused during the course of investigation which was verified by the Circle Officer as well.
17. So far as the implication of Mumtaz Hussain accused (since dead) in the occurrence is concerned there exist more than one circumstance which establish the correctness of the prosecution case against him but to discuss the same would be an exercise in futility as he died during the course of the trial so to his extent, the prosecution case stands abated.
18.As discussed earlier, Riaz Hussain appellant-accused is well linked with the murder of Muhammad Mumraiz deceased as the ocular account is perfectly supported by the medical evidence. We are of the view that on the merits of the case, the evidence of these eye-witnesses is riot open to any question or doubt so far as the appellant-accused is concerned. Their presence at the spot, at the relevant time is natural, as the passage leading to the above said graveyard from the village Dhoke Ladhar Dakhli Jasial was used by the villagers to attend the graves of their deceased relations to offer Fateha etc. All the PWs, produced or not produced are the close relatives interse so their presence at the spot together is hardly questionable. In the circumstances we confirm the conviction of the appellant-accused, as recorded by the learned trial Court.
19.Learned counsel for the appellant has seriously challenged the conviction of the appellant but at the same moment has stoutly urged for the reduction of his sentence. He argued that the prosecution had setup a specific motive in aforementioned terms but badly failed to establish the same through any cogent or plausible evidence. Adds that the non-establishment of motive would give rise to an extenuating circumstance in favour of the appellant and the failure on the part of the prosecution, in this regard, shall cause them face its consequences. Further submits that Riaz Hussain appellant-accused had nothing to do with the criminal case got lodged by his acquitted co-accused as he was not a witness of the said case. Even otherwise, the motive alleged by the _prosecution, in complaint Exh.PF appears to have been abandoned by them as PW-6 and PW-7 have not uttered even a single word qua a dispute involving the growth of a tree. The fatal injury on the head of the deceased has not been caused by the appellant-accused as the locale of injury attributed to him is on the right thigh. The learned counsel for the complainant has contended that the previous grudge nurtured by the accused side speaks volumes about the correctness of the prosecution case and that the appellant-accused alongwith his co-accused had fired effectively upon the deceased and thereby caused his death. The learned Law Officer is also of the same view and adds that the appellant-accused has been correctly dealt with by the learned trial Court and the act of the appellant-accused, having ambushed the deceased in the company of his co- assailants gives rise to irresistible conclusion that the accused had launched a premeditated attack, in furtherance of common intention of them all.
20.We hardly find any substance in the arguments of learned Law Officer and the learned counsel for the complainant as we have discussed in the preceding paragraphs that the motive alleged by the prosecution had gone un-established as they failed to produce any supporting evidence in this regard and they have to bear the brunt thereof. Besides, the fatal injury, as discussed earlier, has not been attributed to the appellant-accused.
21.Insofar as recovery of pistol .30 bore P-8 at the instance of Riaz Hussain appellant-accused is concerned, Hashim Khan, PW-8 and Muhammad Nauman SI, PW-9 have been produced by the prosecution to establish the factum of the aforesaid recovery. The I.O./PW-9 has deposed that he had arrested the accused-appellant, obtained his physical remand who, on 03.04.2002 made a disclosure during investigation and thereafter led the police party and the PWs to his residential house and got recovered a pistol .30 bore P-8 wrapped in a polythene bag, lying in a room of the house which was taken into possession by the I.O. vide memo. Exh.PL attested ,by Hashim Khan PW- 8 and Manzoor Hussain PW (not produced). The I.O. also prepared a site-plan Exh.PN qua the place of recovery. The Investigation Officer Muhammad Nauman, PW-9 inspected the place of occurrence, on 25.03.2002 and took into possession three crime empties P-1/1-3 vide recovery memo. Exh.PH attested by Sharaf Khan PW-7 and Muhammad Ashraf PW (not produced).
According to the report of Forensic Science Laboratory, Lahore Exh.PP the scaled parcel of the crime empties was received in the said office on 03.04.2002, whereas the sealed parcel of the pistol was received by them on 22.04.2002. The report Exh.PP released by the above said lab shows that the above said crime empties had been fired through the pistol, got recovered by Riaz Hussain, the appellant. The aforesaid report though entails the points of similarities observed on crime and test empties yet it can hardly be taken into consideration for the reason that the appellant accused, according to the statement of Muhammad Nauman PW-9 was arrested on 01.04.20Q2 and three days thereafter, the prosecution decided to dispatch the parcel of the crime empties to the office of Forensic Science Laboratory, Lahore. What did they wait for till the arrest of the appellant- accused. It gives rise to a fair amount of doubt as to the delayed dispatch of the crime empties to the above said lab. The probability cannot be ruled out that the parcel of the crime empties had been dispatched to the above said office after having been tampered with so as to ensure the availability of a positive report. The evidence of recovery of the pistol P-8 is inconsequential, hence, brushed aside.
22.When we come to the case of Alam Sher, the respondent-accused in criminal Appeal No, 305 of 2006 we find that the conclusions drawn by the learned trial Court are cogent and plausible as both the eye-witnesses have been unable to connect him with the alleged occurrence and their statements qua his participation in the incident are divergent and at variance.
23.As discussed earlier the injury specifically attributed to the respondent-accused has not been described in the post-mortem examination report Exh. PC and the said injury has been mentioned by the Medical Officer as the exit wound. Alam Sher respondent-accused has earned double presumption of innocence, one, the basic principle of justice that everyone is innocent till proved otherwise and the other by way of the judgment of the trial Court.
24.To upset or alter a judgment of acquittal is not a routine affir nor it should be so done sparingly rather, exceptional grounds are required to interfere with such a finding of exoneration of an accused by a competent Court of jurisdiction which we are afraid, do not exist in the instant case.
There may be a possibility, by keeping in view the objection raised by learned counsel for the complainant, qua the acquittal of Alam Sher, that another view was possible qua the guilt of the acquitted accused from the evidence on the record, in parallel to the view expressed by the learned trial Court but it does not suffice to create a justification for altering or upsetting the judicial verdict in favour of the said accused, as the law requires that no other view, except that of the guilt of the acquitted accused may necessitate the undoing of the judgment of acquittal. We do not find any justification or good reason for upsetting the impugned judgment qua acquittal of Alam Sher, which does not call for interference by this Court.
25. Same is the situation in respect of the appellant-accused as in his case too we do not find the impugned judgment to have been passed on conjectures or surmises. It does not suffer from non- reading or misreading of any evidence on the record. The ocular account we find as trustworthy, reliable and unfailing so far as the appellant-accused is concerned.
26. In this view of the matter and in the circumstances 'mentioned hereinbefore we are of the view that the sentence of imprisonment for life in case of Riaz Hussain appellant would meet the ends of justice, so, the death sentence awarded to him by the learned trial Court is converted to Imprisonment For Life accordingly, with benefit of Section 382-B, Cr.P.C. The sentence regarding payment of compensation amount to the legal heirs of the deceased, as recorded by the learned trial Court, shall remain intact. The Crl. Appeal No, 251 of 2006 is partly allowed/dismissed in aforementioned terms in respect of Riaz Hussain appellant.
27.The Murder Reference No, 501 of 2006 is rejected and answered in the NEGATIVE.
28.So far as Crl. Appeal No, 305 of 2006 filed by the complainant Mehr Bhari is concerned, we, for the foregoing reasons, do not find any substance therein and dismiss the same accordingly.