' RAUF AHMAD SHEIKH, J.---The appellant has assailed the vires of judgment dated 30-4-2009 passed by the learned Additional Sessions Judge, Rawalpindi, in case F.I.R. No,131 dated 24-5-2003 Police Station Rawat, District Rawalpindi, under sections 302/148/149, P.P.C., whereby he was convicted under sections 302(b)/34, P.P.C. And was sentenced to death. He was also ordered to pay a sum of Rs,100,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. And in case of default to undergo S.I. For six months. The learned trial court has submitted Murder Reference No,27/RWP of 2009 for confirmation or otherwise of the death penalty awarded to the appellant. Nazakat. Hussain complainant has filed Criminal Revision No,67, of 2009 praying therein that the compensation under section 544-A, Cr.P.C. Allowed by the learned trial court be enhanced. As all these matters are interconnected and interlinked so are being decided through this single judgment.
2. The facts, in brief, as set-forth in the F.I.R. (ExH.PH) recorded on the statement (ExH.PL) of Nazakat Hussain son of Muhammad Zaman, caste Rajput Dhamyal, cultivator, resident of Dhoke Gangaal Dakhli Takhat Pari, are that on 24-5-2003 he had come to village Kalri to see his sister. Tahir Mehmood, his maternal uncle's son, an Army Personnel had also come there on leave. The complainant met him and in his presence, he left the house for Kalri Adda. The complainant, Yasir Adnan son of Tariq Mehmood, Mst. Yasmin wife of Tariq Mehrnood also followed him to Kalri Adda in order to fetch household articles. Tahir Mehmood arrived near the shops on Pacca road at KaIri Adda, Muhammad Ashraf son of Muhammad Afsar armed with Pistol and Zulfiqar Ali son of Muhammad Ashraf armed with Rifle 8MM, residents of Kalri were already standing there and in the meanwhile at about 5-00 p.m., Ashfaq armed with Rifle 222 and Akhlaq armed with Rifle 222 sons of Muhammad Riaz, residents of Kalri, arrived there on a Motorcycle. Muhammad Riaz son of Sultan, resident of Kalri, also arrived there empty handed on a bicycle. The complainant and others also reached there. On seeing Tahir Mehmood, Muhammad Riaz raised a Lalkara and asked his sons and Ashraf, etc. That Tahir Mehmood should not be spared and be killed in order to take revenge of Ashraf's brother, Tahir Mehmood started running on Pacca road and as soon as he arrived in front of the gate of house of Muhammad Hanif, Ashfaq made a straight fire, which landed on back of Tahir Mehmood. The second fire was made by Muhammad Akhlaq, which hit Tahir Mehmood below his left ear. The 3rd fire was made by Zulfiqar, which hit Tahir Mehmood on right foot. Then Tahir Mehmood fell on the ground. While he was lying there, Muhammad Ashraf made a burst and the bullets landed on his chest and abdomen. Thereafter all the accused persons made indiscriminate firing, which hit on different parts of the body of Tahir Mehmood, who died at the spot. The accused persons fled away while brandishing their arms. The motive was stated to be old enmity over murders between Tahir Mehmood and Muhammad Riaz in respect of which cases were pending in the courts. The accused persons had murdered Tahir Mehmood after making consultation with each other by making fires with fire arms to take revenge of. Ashraf's brother's murder.
3. The appellant Akhlaq and Muhammad Riaz were arrested and after investigation were sent up to face the trial. The remaining accused persons were declared as proclaimed offenders. They were charged under sections 302/148/149, P.P.C. They pleaded not guilty and claimed the trial.
4. The prosecution has examined 14 witnesses in addition to the documentary evidence in support of its allegations. Nazakat Hussain complainant appeared as P.W.11 and almost reiterated the contents of the Statement (Exh.PL) with a little variation as to seat of injury allegedly caused by the appellant and maintained that the fire made by him had landed on the left shoulder of Tahir. Yasir Adnan (P.W.12) corroborated ' statement of P. W.1.1 to the extent of injuries caused by the other accused persons and stated that the fire made by the appellant hit Tahir Mehmood near his left ear and also contended that after the burst made by Ashfaq with his weapon, all the accused persons made indiscriminate firing.
5. P. W.13 Nazar Hussain Shah, retired DSP stated that on 11-2-2005 he interrogated the appellant and Muhammad Riaz, who made disclosure and led to the recovery of Rifles P.1 and P.3, which were secured through memo of recovery (Exh,PM and Exh.PN) respectively attested by the P. Ws. Nazakat Hussain (P.W.11) and Yasir Adnan (P.W.12) have stated that the I.O. Had collected bloodstained earth through memo (Exh.PJ) and four empties of Rifle 222 P.6/1-4 through memo (Exh.PK), which were attested by them. Mushtaq Ahmad 3738-C (P.W.7) has stated that Motorcycle No,RIS-5050 P.6 was secured from the garden of the house through memo (Exh. PG) attested by him.
6. P.W.8 Muhammad Sabir, retired S.I. Has proved the formal F.I.R. (Exh.PH). Khurram Shahzad (P.W.9) has stated that the site plan (Ex.PI/1) was prepared by Qamar-ud-Din, Draftsman, whose signatures and handwriting are identified by him. Khalid Mehmood, A.S.-I. (P.W.1) stated that he received the parcels containing bloodstained earth and empties on 24-5-2003 and gave the same to Mehmood Ahmad C-196 for onward transmission in the offices of the Chemical Examiner and FSL, Lahore. Mehmood Ahmad (P.W.6) stated that he delivered the same in the said offices on 28- 5-2003. Khalid Mehmood has also stated that he received two parcels of Rifles, which he kept intact in the Malkhana and gave the same to Abdul Hameed 1806-C on 3-3-2005 for delivery in the office of the FSL, Lahore. Abdul Hameed (P.W.2) has stated that he delivered the parcels in the said office on 4-3-2005.
7. The investigation of the case was conducted by Muhammad Iqbal, S.-I. (P.W.14). He has stated that on receiving the information regarding occurrence, he proceeded to the place of occurrence i.e, Kalri Adda and recorded the statement of Nazakat Hussain complainant (Exh-PL). He proved injury statement (Exh.PO), inquest report (Exh.PP). He has further stated that he sent the complaint (Exh.PL) to the Police Station on which formal F.I.R. (Exh.PH) was recorded. He proved memo of recovery (Exh.PK) regarding securing of empties of 222 Rifle, memo of recovery (Exh.PJ) regarding securing of bloodstained earth, rough site plan (Exh.PQ), memo of recovery (Exh.PF) regarding securing of last worn clothes P.1 to P.4 of the deceased and Chappal P.5/1-2, postmortem report and one led bullet of 222 Rifle, scaled site plan (Exh.PI and Exh.PI/1). He also stated that he obtained warrants of arrest of all the accused (Exh.PA and. Exh.PB) on which the reports of Process Server are (Exh.PA/1 and Exh.PB/1). On 25-7-2003 on the basis of the reports of the Process Server, he obtained proclamations against all the accused persons. He proved memo of recovery (Exh.PG) regarding securing of Motorcycle No,RIS-5050.
8. The medical evidence is adduced through Dr. Manzoor Ahmad Sahi (P.W.4), who conducted the postmortem examination of the deceased on 24-5-2003 at about 10-30 p.m. He found 19 injuries on the body of the deceased, out of which 11 were entry wound. According to him, the deceased died due to multiple injuries causing damage to the vital organs i.e, heart, lungs, brain, kidney and liver leading to hypovoliemic shock. All the injuries were anti-mortem and sufficient to cause death in the ordinary course of nature. He proved the copy of postmortem report (Exh.PE).
9. The prosecution has also produced the report of Chemical Examiner (Exh.PR), report of the Serologist (Exh.PS) and reports of FSL (Exhs.PT to PU).
10. In his statement under section 342, Cr.P.C., the appellant denied the correctness of the allegations levelled by the prosecution and truthfulness of the witnesses produced by it. He contended that he did not make any disclosure and that no recovery was made at his instance. He contended that there is old enmity of blood feud between the two families and for this reason he has been involved in the case falsely although he has not committed any offence. He further contended that the prosecution evidence is discrepant and no independent witness has been produced. He, however, opted neither to produce the defence evidence nor to appear as his own witness under section 340(2), Cr . P. C .
11. After conclusion of the trial, the learned trial court proceeded on to convict and sentence the appellant as stated above. His co-accused Muhammad Riaz was extended the benefit of doubt and was acquitted.
12. Learned counsel for the appellant has contended that the F.I.R. Was lodged with deliberations and the maximum members of the appellant's family have been roped falsely; that the witnesses are inimical and their presence at the place of occurrence is not natural; that there is a vast contradiction between the ocular account and the medical evidence as to the injury attributed to the appellant, which proves his false implication; that the ocular account is contradictory and the P. Ws. Have also made dishonest improvements and that the alleged recovery of the weapon of offence is highly doubtful. In support of the contentions raised, reliance is placed on Hilam Mutema v. The State (2002 PCr.LJ 1670) (Karachi), Rahab v. Muhammad Ismail and 2 others (2002 SCM R 233) and Tayyab Hussain and Ansari Ali and others (2008 SCM R 90). It is further contended that the proceedings regarding absconsion of the appellant are fake and even otherwise the absconsion alone is not sufficient to convict and sentence a person for an offence warranting capital punishment.
13. On the other hand learned counsel for the complainant and learned Law Officer have contended that it was promptly lodged F.I.R. As the complaint was reduced into writing at 7-00 p.m.
At the place of occurrence, whereas the occurrence had taken place at 5-00 p.m. And the distance between the Police Station and the said place is eight Kilometers; that the P.Ws. Were not cross- examined on material points so their evidence goes unchallenged; that the motive, time and place of occurrence are not denied; that the ocular account is fully supported by the medical evidence and the recovery of the weapon of offence so the learned trial court rightly held the appellant guilty for causing Qatl-eAmd of Tahir Mehmood deceased and that the absconsion also lends necessary corroboration to the ocular account. .
14. According to the contents of the F.I.R., the fire made by the appellant had landed below the left ear of the deceased. According to the medical evidence, the deceased had sustained two injuries i.e, injuries Nos.1 and 2 below the left ear. One of these injuries was exit wound, whereas the second was glazed wound on the lobe of the left ear: P.W.4 in the cross-examination could not deny that these injuries are result of Injury No,3 and caused with the same fire. P.W.11 stated in the witness box that the fire made by the appellant had landed on the left shoulder of the deceased, whereas in the complaint (Exh.PL) he has stated that the fire made by the appellant had hit below the left ear.
There is only exit wound below the left ear of the deceased. No bullet has entered below the ear.
Against the contents of the F.I.R., P.W.11 stated that the injury with the fire made by the appellant was caused on the left shoulder but there is no injury on the left shoulder of the deceased.
15. The recovery of the alleged weapon of offence is highly doubtful. P. W.13 had stated that the appellant had kept the weapon of offence in the residential room of his house, whereas his co- accused has kept the 222 Rifle underneath the floor. He stated that the floor was even. Both the attesting witnesses of memo of recovery (Exh.PM) have not come forward to support the prosecution case. P. W.13 has admitted that they conducted raids at the residence of the appellant many times till his arrest and also used to enter the premises and take the search. In these circumstances, the recovery of the weapon of offence from the room, which was raided and searched many times becomes highly doubtful. According to the witness, he had kept the weapon in the corner of the room as is shown in the site plan (Exh.P0), whereas his co-accused had concealed it underneath the floor. In these circumstances, this recovery is doubtful and appears to have been planted on the last date of the physical remand. If none of the attesting witnesses comes forward to prove the alleged recovery, then the same becomes cladded with doubts. The Motorcycle was allegedly recovered from the garden of the house. It was not in working condition.
The house was raided many times earlier also. This house is owned by father of the appellant and is not in his exclusive possession. The ownership of Motorcycle was not ascertained. It is, therefore, not proved that this Motorcycle belongs to the appellant and was used in the occurrence.
16. There is another important aspect of the matter. According to P.Ws.11 and 12, four empties of 222 Rifle P.6/1-4 were secured by the I.O. Through memo (Exh.PK). The memo (Exh.PK) also shows that only four empties were recovered. The I.O. (P.W.14) has also stated that he had secured the empties through memo (Exh. PK), which shows that only four empties were recovered. Surprisingly, the report of FSL (Exh.PT) shows that eight empties C1 to C8 were deposited in the office of the FSL and all the eight empties matched with the test empties prepared through 222 Rifle allegedly recovered at the instance of the appellant. According to P.W.1, he had handed over the parcels containing empties to Mehmood Ahmad, C-196 on 28-5-2003 and Mehmood Ahmad (P.W.6) stated that he delivered the same in the office of the FSL on the same day, whereas the report of FSL shows that the empties were received on 28-5-2003 and 18-8-2004, whereas the Rifle was received on 3-3- 2005. This also shows that the empties were prepared subsequently. This fact also creates reasonable doubt in respect of the prosecution version regarding recovery of the weapon of offence. It is an admitted fact that both P.Ws.11 and 12 have long standing enmity with the appellant and other members of his family. The motive is a double edge weapon. It may be a motive for commission of offence and at the same time it may be a reason for false implication. According to P. W.14, he arrived at the place of occurrence at 5-30 p.m., whereas according to the complainant he had arrived after 30/45 minutes of the occurrence but the complaint was recorded at 7-00 p.m.
So it appears to have been recorded after deliberations. It is an established law that the evidence of the inimical witnesses should be scrutinized with great caution and care. If the evidence of P.Ws.11 and 12 is appraised keeping in view this principle of administration of justice on criminal side, the same does not inspire confidence for the reasons elaborated above in Paras Nos.14 and 15. The contradictions in the medical evidence and ocular account, doubtful recovery and unreliable report of FSL are sufficient to draw an inference that the appellant was roped in the case falsely by throwing a wider net through the F.I.R., which appears to have been recorded after consultation and deliberations along with his co-accused persons, who are proclaimed offenders and had allegedly caused injuries on the vital parts of the body of the deceased.
17.. For all what has been observed above, we are of the considered view that the learned trial court did not appreciate the evidence in its true perspective and has thus erred in recording the conviction and awarding sentence to the appellant against whom the prosecution case is not established beyond reasonable doubt.
18. For the reasons supra, Criminal Appeal No,144 of 2009 filed by the appellant ,is accepted. The conviction recorded and sentence awarded to him are set aside. The appellant is in the Jail and be released forthwith if not required to be detained in any other case. Consequently Murder Reference No,27/RWP of 2009 is answered in the negative. Criminal Revision No,67 of 2009 filed by the complainant Nazakat Hussain for enhancement of compensation is without merits and the same is hereby dismissed.