1. SARDAR MUHAMMAD SHAMIM KHAN, J.---Shahid Hussain, Qurban Hussain and Nazar Hussain, appellants, through two separate appeals, have challenged the conviction and sentence, passed against them in a case bearing F.I.R. No,121 dated 22-9-2004 for the offence under sections 302, 109 and 34, P.P.C., registered at Police Station Kala, District D.G. Khan. They were tried by Muhammad Rafat Sultan Sheikh, learned Additional Sessions Judge, Dera Ghazi Khan, who vide his judgment dated 30-5-2005 convicted and sentenced both Shahid Hussain and Qurban Hussain, appellants to Death under section 302(b), of P.P.C. with imposition of Rs,1,00,000 (each) as compensation under section 544-A, of Cr.P.C. to be paid to the legal heirs of the deceased which shall be recoverable as arrears of land, however Nazar Hussain, appellant was convicted under section 302(b)/109 of P.P.C. and sentenced to imprisonment for life. He was also liable to pay Rs,50,000 as compensation under section 544-A of Cr.P.C. to the legal heirs of the deceased Ghulam Shabbir which shall be recoverable as arrears of land. In default of payment he shall further undergo for Six Months' (S.I.). Benefit of section 382-B of Cr.P.C. was also extended to him.
2. 2.Murder Reference No,380 of 2005 for confirmation of sentence of death or otherwise, awarded to Shahid Hussain and Qurban Hussain, appellants and appeals (Criminal Appeal Nos.409 and 434 of 2005), tiled by the appellants for setting aside conviction and sentence, are pending before this Court. All these matters are being disposed together through this single judgment.
3. 3.Concisely the prosecution story as enunciated in the F.I.R. (Exh.PC) by the complainant Ghulam Hussain son of Muhammad Usman P.W.4 is that he was a handicapped person and had been running a small tea hotel and rented out T.V and CD player at Baig Chowk. During the night of 27th/28th of August, 2004, TV, CD player and cassettes were stolen from his shop and he doubted upon Khalid, Shahid sons of Wahid Bakhsh Hotwani, Wazir Ahrnad son of Ghulam Saddique Lojani.
4. They returned the articles after receiving "Bhonga" from the complainant. The complainant got registered a case against them. Police had conducting raid for their arrest. On 22-9-2004, at about 1230 noon, the complainant in the company of his son Riaz Hussain, his brother Haji Mubarak and Ghulam Shabbir son of Ghulam Hussain Gajani son in law of his brother were sitting at hotel.
5. Meanwhile, from eastern side Shahid and Khalid sons of Wahid Bakhsh armed with Kalashnikovs , Sadiq armed with rifle 10 Taki, Qurban armed with pistol .30 bore sons of Mir Khan caste Hotwani resident of Hotahotwani came over there Khalid raised Laikara that you were to be taught a lesson for getting registration of case. On saying this, Sadiq made fire from rifle which landed on left thigh of Ghulam Shabbir. Thereafter, all the accused Shahid, Khalid and Qurban made firing upon Ghulam Shabbir from their respective fire-arms which hit upon his testicles, left and right thighs and knees. He bathed in blood and collapsed down. Accused had been declaring that if anybody would come near, he would also be met with the same fate. The complainant and P.Ws. due to fear did not go to near. Accused Sadiq, Shahid, Khalid and Qurban after causing injuries to Ghulam Shabbir fled towards east. Ten minutes before the occurrence Nazar Hussain son of Talib Hussain Hotwani, police constable, came to Baig Chowk. Two motorcycle riders were with him. At that time, Sadiq accused was sitting at Baig Chowk Nazar Hussain accused by pointing showed Ghulam Shabbir to Sadiq accused and then took Sadiq in his company and went away. After departure of Nazar Hussain and Sadiq all the accused with common intention and object came there and murdered Ghulam Shabbir with fire arms. The occurrence had taken place at the instance of Nazar Hussain. Ghulam Shabbir in injured condition was taken to Shadan Lund Hospital. On his arrival there he succumbed to his injuries. The complainant P.W.4 came to police station at 1-30 p.m. on 22-2-2004. His statement Exh.PC was recorded by P.W.11 Ghulam Mustafa S.I: Its contents were read over to him, who affixed his thumb-impression as token of its correctness.
6. 4.Motive behind this occurrence, as stated by the complainant P.W.4 Ghulam Hussain, is that he used to run a tea hotel and also rented out TV anti CD Player. During the night of 27th/28th of August, 2004, TV, CD Player and cassettes were stolen from his shop. He doubted upon Khalid, present appellant, and Shahid sons of Wahid Bakhsh Hotwani, Wazir Ahmad son of Ghulam Siddique Lojani and they returned the said articles after receiving from him "Bhonga". The complainant got registered a case against them. Police had been conducting raid for their arrest.
7. Due to this grudge the, appellant Muhammad Khalid along with his co-accused had murdered his son Ghulam Shabbir.
8. 5.After completion of investigation, challan was submitted against the appellants. It is pertinent to mention here that the appellant Muhammad Khalid Hussain, remained proclaimed offender and was arrested on 7-10-2005. Charge was framed, to which, appellant pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as eleven (11) witnesses in all and also tendered documentary evidence.
9. ' P.W.1. Tanver Raza Jafri, Draftsman, prepared scaled site plan Exh. PA of the spot.
10. ' P.W.2. Muhammad Afzal 398/1-HC kept two sealed parcels containing blood-stained earth and empty cartridges in safe custody and on 24-10-2004 handed over these parcels to Ghulam Farid 337/C for its onward transmission to the office of Chemical Examiner and Forensic Science Laboratory, Lahore.
11. ' P.W.3. Rasheed Ahmad is also witness to memo Exh.PB, pertaining to collection of last-worn clothes of the deceased by P. W.9/1.0.
12. ' P.W.4. Ghulam Hussain, is the complainant and eye-witness of the occurrence.
13. ' P.W.5. Haji Mubarak Ali, is brother of the complainant and also eye-witness of the occurrence.
14. ' P.W.6. Ghulam Farid 737/C transmitted two sealed parcels said to contain blood stained earth and empties to the office of Chemical Examiner and Forensic Science Laboratory, Lahore. He delivered the same on 16-10-2004 in the respective offices. On 3-11-2004 he again transmitted two sealed parcel said to contain Kalashnikov and pistol .30 bore to the office of Forensic Science Laboratory, Lahore. He delivered the same on 4-11-2004.
15. ' P.W.7. Mohkam Din was the witness of abetment.
16. ' P.W.B. Abid Hussain, No,1037/C, escorted the dead body of deceased to the mortuary at District Headquarter Hospital, Dera Ghazi Khan.
17. ' P.W.9. Dr. Aagha Naimat Ullah, conducted autopsy on the dead body of deceased Ghulam Shabbir son of Ghulam Hussain and found the following injuries with external appearance:-- (i)oval shaped, lacerated wound 1/2 cm x 1/4 cm on lateral side of upper 1/3 of left thigh, the margins of wound were inverted. Wound was going deep. Blackening was present around the margin of the wound (wound of entry).
18. (ii)oval shaped lacerated wound 1/2 cm x 1/4 cm about 1 cm below and medial to injury No, 1 . The margins were inverted, wound was going deep. Blackening was present around the margin of wound, this was also wound of entry.
19. (iii)An oval shaped lacerated wound 1/2 cm x 1/4 cm on lateral side of left thigh situated vertically below injury to 2 at a distance of 5 cm. The margins was inverted, blackening was present. Wound was going deep. It was also wound of entry.
20. (iv)An oval shaped lacerated wound 3/4 cm x 1/4 cm on lateral side of left thigh about 5 cm above injury No,3, margins were inverted going deep, blackening was present. It was also wound of entry.
21. (v)An oval shaped lacerated wound 3/4 cm x 1/2 cm on aspect of upper 1/3 cm of left thigh. The margins were averted. It was wound of exit.
22. (vi)A lacerated wound irregular in shape on upper most of thigh 6 cm away from injury No,5. It was also wound of exit.
23. (vii)A lacerated wound 1 cm x 1/2 cm on medial side of upper part of left thigh about 4 cm below and medial to injury No,6. It was also wound of exit.
24. (viii)A lacerated wound 3/4 cm x 1/4 cm on inner side of left thigh about 3 cm below injury No,7. It was also wound of exit.
25. (ix)A lacerated wound on seriatim 7 cm x 6 cm, destroyed testis was visible through the wound.
26. There was also a lacerated wound 3 cm 1/2 cm on glans of penis. The scrotum and testis were injured due to injury No,4 (entry) and injury No,6 (exit.).
27. (x)A lacerated wound 4 cm x 1/2 cm on upper most part of right thigh on inner side. The margins were inverted and wound was going deep. It was wound of entry.
28. (xi)A lacerated wound 12 cm x 6 cm on front of right thigh almost in middle, muscle visible through wound, there is fracture of right femur, broken into pieces. Thigh was leavy almost double to left thigh due to heavy blood moss as clotted blood was present in right thigh. It is also wound of exit.
29. ' He further deposed that injury Nos.10 and 11 proved fatal which caused massive hemorrhage.
30. Death occurred due to shock and hemorrhage, as result of injury Nos.10 and 11 ' P.W.10. Bashir Ahmad witnessed the recoveries of Kalashnikov (P-6) and pistol .30-bore (P-7).
31. ' P.W.11. Ghulam Mustafa SI/10 conducted the investigation of this case.
6. After the closure of prosecution evidence, statement of the accused persons under section 342, Cr.P.C. was recorded, wherein they have denied the allegation, as asserted by the prosecution. The plea taken by the accused/appellant Shahid Hussain; in his statement under section 342, Cr.P.C. is reproduced as under:-- "I have been falsely involved in this case on suspicion and due to grudge of the theft case, got registered against me by the complainant. I had no enmity or grudge with the deceased. I did not commit the instant occurrence."
32. ' Plea taken by Qurban, appellant is reproduced as under:-- "I have been falsely involved in this case due to close relation with Shahid and Khalid co-accused. I have been falsely involved on suspicion due to close relationship with Shahid and Khalid co- accused. I did not commit the instant occurrence. I am innocent."
33. ' Plea taken by Nazar Hussain, appellant is re-produced as under:-- "Unfortunately co-accused of this case are my distant relatives. I have no concern with them except the said relationship. I am a police employee as constable. I was posted at police check post Pull 22000, within the limits of Police Station Taunsa which is 25 K.M. away from the alleged place of occurrence. At the time of alleged occurrence I was on duty on the said check post where Kalim Ullah 375/C, Saif Ullah 564/C, Muhammad Bakhsh Khan 242/C, Abdul Hamid 732/C were also posted there under the supervision of Zulfiqar Ali, HC. All the police officials who are posted at the said post appeared before the Investigating Officer to prove the plea of alibi. A departmental inquiry was also held in which I was exonerated by the local police. I was falsely involved in this case with the connivance of complainant. I was roped in this case due to apprehension that I might not help the accused. All the P. Ws. are inter se related as they are interested witnesses. They deposed against me on the direction of the complainant to strengthen the prosecution case. I have been falsely involved in this case. I am innocent."
34. 7.The accused persons did not opt to appear under section 340(2) of Cr.P.C. however, opted to produce evidence in their defence and closed the same after tendering certain documents in documentary evidence. The accused persons also produced Muhammad Eisa 1242/C and Zulfiqar Ali 849/HC in their defence.
35. 8.After hearing learned counsel for the parties and going through the record learned trial Court convicted the appellants as mentioned above.
36. 9.Learned counsel appearing on behalf of the appellant submits that the prosecution did not prove the motive part of prosecution story and that motive was improved at the time of trial; that if motive of the prosecution is believed then the complainant Ghulam Hussain or the P.Ws. Haji Mubarak and Riaz have been the first target of the appellants; that the appellants had no motive against Ghulam Shabbir deceased so there was no reason for them to commit the murder of Ghulam Shabbir, deceased; that the prosecution has examined P.W.4 Ghulam Hussain and P.W.5 Haji Mubarak as eye-witnesses of the occurrence who are close relative of the deceased and inspite of the availability of independent witnesses who also witnessed the occurrence no one from them was produced as witness to prove the prosecution story; that ocular account is in conflict with medical evidence; that the eye witnesses during trial have improved their statements which makes the whole prosecution story as doubtful; that according to eye-witnesses their clothes were stained with blood at the time of occurrence but they did not produce their clothes to establish their presence at the time of occurrence; that recoveries have also not been proved by the prosecution and the prosecution has failed to prove its case beyond reasonable doubt so the appellants are entitled to acquittal.
37. 10.Learned counsel appearing on behalf. Nazar Hussain, appellant contended that Nazar Hussain, appellant is relative of other appellants; that he was employed as constable in police department at that time and there was no evidence against Nazar Hussain, appellant to connect him with the commission of offence in this case; that the only allegation against Nazar Hussain was that he pointed out Ghulam Shabbir, deceased to Sadiq, accused (since Proclaimed Offender); that during investigation he was found innocent as he was on his duty at the time of occurrence and discharge report was prepared which was not agreed so he is entitled to the acquittal.
38. 11.On the other hand learned Deputy Prosecutor-General assisted by learned counsel appearing on behalf of the complainant has opposed the acceptance of the appeals of the appellant and have contended that the matter was reported to the police promptly after about one hour; that the appellants are nominated in the F.I.R. and there is specific allegation against Shahid and Qurban, appellants that they fired at the deceased with their respective weapons which resulted into his death; that ocular account has been confirmed by the Doctor who conducted post mortem examination on the person of the deceased; that the appellants have committed the murder of the deceased due to the motive as alleged by the prosecution which has been proved beyond reasonable doubt; that both the appellants Shahid and Qurban led to the recovery of Kalashnikov and pistol .30-bore, respectively and according to the report of Forensic Science Laboratory, Lahore, the pistol .30-bore recovered at the pointation of Qurban, appellant matched with crime empties of .30-bore so this recovery is a corroborative piece of evidence against Qurban, appellant; that prosecution has also proved the case against Nazar Hussain, appellant regarding his abetment so they have prayed for dismissal of the appeal.
39. 12.We have heard the learned counsel for the parties at length and perused the record with their able assistance.
40. 13.This case was registered on 22-9-2004 at 1-30 p.m. on the statement of Ghularn Hussain P.W.4.
41. In his statement Exh.PC Ghulam Hussain, complainant has furnished motive of this occurrence that he had established a tea stall and he also keeps Television and CD Player for providing it on rent.
42. On the night falling between 27th and 28th of August, 2004 some body committed theft of Television, CD Player and Cassette from his shop and he entertained suspicion of theft against Khalid, Shahid (accused in this case) and Wazir Ahmad. The accused persons returned him his articles after receiving BHONGA from him and he got a case registered against them and police kept on raiding to arrest aforementioned accused, who committed the theft and due to this reason the accused persons have committed the murder of Ghulam Shabbir, deceased.
43. 14.It is strange enough that Ghulam Shabbir, deceased in this case was neither complainant of aforementioned theft case nor he was sited as witness in the said case. The theft case was registered on the statement of Ghulam Hussain, complainant and in the said theft case Haji Mubarak and Riaz were witnesses. At the time of this occurrence allegedly Ghulam Hussain, complainant, Haji Mubarak and Riaz P.Ws. of theft case were available along with Ghulam Shabbir, deceased. Had the appellants want to take revenge of theft case their first target would have been Ghulam Hussain, complainant or Haji Mubarak and Riaz who were the witnesses of that case.
44. Ghulam Shabbir, deceased has no concern whatsoever regarding the motive part of the prosecution story. Shahid appellant and Khalid, appellant were suspects in that theft case but in this case Qurban, appellant and Sadiq (since Proclaimed Offender) and one Nazar Hussain are also accused who have no concern with the motive part of the prosecution story. It is .ununderstandable that theft case was registered against Shahid and Khalid, appellants then why Sadiq (since Proclaimed Offender), Qurban, appellant and Nazar Hussain, appellant committed this murder along with Shahid and Khalid.
45. 15.During trial P.W.4 Ghulam Hussain improved motive and deposed that Ghulam Shabbir, deceased supported him in the theft case and that Ghulam Shabbir also pointed out about the presence of accused persons of theft case. This improvement is afterthought and dishonest and simply a false reason has been created in order to involve the appellant in this case. Ghulam Hussain, complainant did not state in his F.I.R. Exh.PC that Ghulam Shabbir, deceased used to help him in the said theft case, or that he pointed out about the presence of the accused. According to Ghulam Hussain P.W.4 all the stolen articles were returned by the accused in the theft case after taking BHONGA from him so, when all the stolen articles were returned by the accused themselves, there was no need for any help by Ghulam Shabbir, deceased to the complainant in this regard.
46. The complainant also did not point out that what type of help Ghulam Shabbir, deceased was rendering him in said theft case. In our view the prosecution has failed to prove the motive against the appellants for committing the murder of Ghulam Shabbir, deceased in this case as Ghulam Shabbir, as stated above, had no concern with the previous theft case and we are of the considered view that Ghulam Hussain P.W.4 has created a false motive against the appellant to involve them in this case.
16. So far as the ocular account is concerned it has been furnished by Ghulam Hussain P.W.4 and Haji Mubarak P.W.5, who are real brothers inter se and Ghulam Shabbir, deceased was son-in-law of brother of the complainant. According to the evidence of both eyewitnesses there were many shops near the place of occurrence and other people of the vicinity also witnessed the occurrence but they did not mention their names as eye-witnesses so when other independent witnesses of the locality were eye-witnesses and they were not even cited in the F.I.R. as eye-witnesses and they were never produced before the police or before the court to prove the prosecution story. The prosecution withheld their beet and independent evidence in this case.
17. The ocular account is also in conflict with medical evidence and during the trial the P.Ws. improved their statements regarding the infliction of injuries by the appellants. According to F.I.R.
47. Sadiq accused (since Proclaimed Officer) fired with his rifle which hit Ghulam Shabbir on his left thigh whereas the appellant Shahid, Khalid and Qurban inflicted fire arm injuries with their respective weapons on left and right thighs, knee and testicles of the deceased. P.W.4 Ghulam Hussain when appeared before the learned trial Court he improved his statement and deposed that all the accused fired shots on the body of Ghulam. Shabbir, deceased which hit him on his left arm, both thighs and testicles. During cross-examination he stated that I had stated before the police that deceased received injuries on his arm. This portion of his statement was confronted with Exh.DC where it was not so recorded. Haji Mubrak P.W.5 further improved his statement during the trial and stated that all the accused started firing with their respective weapons which hit the deceased on his left arm and left thighs, testicles and on lower abdomen. The improved evidence of both P.Ws. is in conflict with medical evidence as during post modem examination the doctor neither observed any injury on the left arm of the deceased nor any injury on the lower part of the abdomen. According to the evidence of doctor injuries Nos.1, 2 and 3 were on the left thigh of the deceased. The perusal of injuries Nos.1, 2 and 3 reveals that all these three injuries are of same size and dimension and according to our opinion these three injuries can be the result of one burst made by Kalashnikov. According to the opinion of the doctor these injuries vvere inflicted from left side of the deceased. Injury No,4 on the person of the deceased is also on the left thigh whereas injury No,10 on the deceased is on the right thigh. The perusal of injury No,10 reveals that it was inflicted by assailant who was on the right side of the deceased. The perusal of the site plan Exh.PA reveals that all the accused persons namely Khalid, Shahid, Sadiq, Qurban fired at the deceased from Point No,3 which was on the left side of the deceased but prosecution is silent that who was on the right side of the deceased who caused injury No,10. Remaining all injuries are exit wounds, According to evidence of prosecution the fires made by the appellants also hit the testicles of the deceased. Perusal of evidence of doctor reveals that Scrotum and Testies were injured due to Injury No,4 which was inflicted on left thigh and it damaged the Scrotum and Testies of the deceased and made ultimately exit wound. So the evidence of P.Ws. is also in conflict with the medical evidence in this regard as no fire of the appellants hit on the testicles of the deceased, directly.
48. 18.Keeping in view the aforementioned contradictions between medical evidence and ocular account we are of the considered view that the P.Ws. were not present at the time of occurrence and they did not witness the occurrence and F.I.R. was chalked out when they observed the injuries on the person of the deceased.
49. 19.So far as the recovery of Kalashnikov from Shahid, appellant is concerned, the Kalashnikov was recovered on 18-10-2004 from his possession. This recovery of Kalashnikov is inconsequential as there is no report of Forensic Science Laboratory, Lahore regarding the recovery of Kalashnikov from Shahid, appellant. So far as the recovery of pistol .30-bore from Qurban, appellant is concerned, he also led to the recovery of .30-bore pistol on 18-10-2004. The report of Forensic - Science Laboratory, Lahore is positive regarding the recovery from Qurban, appellant but as we have already discussed that P.Ws. were not present at the time of occurrence so this recovery of pistol .30-bore from Qurban, appellant can also be planted by the prosecution in collusion with the police. Even otherwise recovery is a corroborative piece of evidence and when main evidence has been disbelieved, the evidence of recovery to the extent of Qurban would not be helpful for the prosecution.
50. 20.Now coming to the case of Nazar Hussain, appellant, he has been convicted under section 109 of P.P.C. read with sections 302 and 34 of P.P.C. There is no evidence on the record that Nazar Hussain, appellant instigated his co-accused to commit the murder of the deceased nor there is any evidence that he indulged in conspiracy with other co-accused for committing the murder of the deceased nor he aided them in any manner for the commission of murder of the deceased which are the necessary ingredients for conviction under section 109 of P.P.C. read with sections 302 and 34, P.P.C. The allegation that Ghulam Shabbir, deceased was shown to Sadiq accused (since PO) by making pointation with his finger is falsified by the evidence as this portion of evidence of P.W.4 Ghulam Hussain was confronted with his previous statement. The portion of evidence regarding Nazar Hussain, appellant which was confronted is reproduced as under:-- "I have stated before the police in Exh.PC that Nazar Hussain called for Sadiq accused (since PO). confronted with Exh.PC where not so recorded). I have stated to the police that Nazar Hussain made pointation with finger. (confronted with Exh.PC where not so recorded."
51. 21.The perusal of site plan Exh.PA reveals that Nazar Hussain, appellant allegedly showed the deceased to Sadiq accused (since PO) from a distance of 136-feet and between the point from where Nazar Hussain allegedly showed the deceased there is a road and there are shops and Varanda and others. During investigation he was found innocent and discharge report was prepared which was disagreed by the learned Magistrate. P.W.11 Ghulam Mustafa S.I./I.O. of this case has admitted that it is correct that I have attached copy of Log Book which is used for recording of Wireless Messages. It is correct that in this Log Book a Wireless Message of Bakht All from Police Station Kala is mentioned in which he asked the Incharge Check Post Pull-22000 to show absence of Nazar Hussain, appellant who was constable, from the night between 21st and 22nd of September, 2004 since 9-00 p.m., it reveals that Nazar Hussain, appellant was on his duty and the police was taking measures to show his absence from his duty.
52. 22.For what we have discussed above, in our view the prosecution has failed to prove motive, ocular account, medical evidence against the appellants. It was an unseen occurrence. According to the evidence of P.W.4 Ghulam Hussain a F.I.R. under section 302 of P.P.C. was got registered against Ghulam Shabbir, deceased at Police Station Kala which shows that the deceased had serious enmity of murder with other persons and he might have been murdered due to aforementioned enmity. The prosecution has failed to prove its case beyond reasonable doubt against the appellant. So we, while giving the benefit of doubt to the appellants set aside the judgment dated 30-5-2005 passed by Muhammad Rafat Sultan Sheikh, learned Additional Sessions Judge, Dera Ghazi Khan and we accept Criminal Appeal No, 409 of 2005 and Criminal Appeal No,434 of 2005 and acquit Shahid, Qurban and Nazar Hussain, appellants of the charges.
53. They shall be released forthwith, if not required in any other case.