' RAUF AHMAD SHEIKH, J.---Muhammad Nawaz alias Billa appellant has assailed the vires of judgment dated 31-3-2006 passed by learned Additional Sessions Judge, Kasur, in case F.I.R. No,138 of 2004 dated 6-8-2004 and Sessions Complaint Case No,17 of 2004 under sections 302/34, P.P.C.
Police Station Raja Jang, District Kasur (Sessions Case No,21 of 2004), whereby he was convicted under section 302(b), P.P.C. And sentenced to death on two counts. He was also directed to pay a sum of Rs,1,00,000 under section 544-A, Cr.P.C. To legal heirs of the deceased and in case of default to undergo S.I. For six months. The learned trial Court has also submitted Murde'r Reference No,253 of 2006 under section 374, Cr.P.C. Seeking confirmation or otherwise of the death penalty awarded to the appellant. Both the matters are inter-connected and inter-linked so are being decided through this single judgment.
2. Briefly stated the prosecution version as set-forth in the F.I.R. (Exh.PE) recorded on the statement of Muhammad Ashraf son of Umar, Caste Rajpute Bhatti, aged about 47/48 years, resident of Meer Muhammad, Police Station Raja Jang, District Kasur is that on 6-8-2004 at about 7-00 a.m. His son Muhammad Irfan aged about 16/17 years, Asad Khan son of Javed Akhtar, Caste Pathan, resident of Khurso Khail, Thesil and District Attock, went to his land situated in Haveli Khamianwali on Tractor No,GAF-3285 driven by Muhammad Ashraf son of Muhammad Akbar, Caste Rajpute, resident of the same village. They ploughed land measuring 10 Acres and arrived in the last field Jammuwala at about 11-30 a.m. In the meanwhile complainant's brother's wife Mst. Irshad Bibi wife of Muhammad Asghar brought meals from the house. They had hardly sat under the Jammu tree when Muhammad Yaqoob armed with Rifle .223 bore, Muhammad Yahya armed with Rifle .222 bore, Muhammad lshaq armed with Rifle .44 bore sons of Muhammad Riaz and Javed son of Ghulam Muhammad armed with Pistol .30 bore arrived there. Muhammad Yaqoob raised a Lalkara that they would take revenge of the murder of his brother Maqsood. Muhammad Yaqoob made straight fire with his Rifle, which hit Asad on the left side of testicles. Muhammad Yahya made a fire with Rifle on Muhammad Irfan, which hit him on the left side of the head. Muhammad Ishaq made a fire with his Rifle on Asad Khan, which hit him on the left buttock. Javed made fire with his Pistol .30 bore, which hit Muhammad Irfan on the left side of head. Both of them fell on the ground in injured condition. The complainant and Muhammad Ashraf saved their lives while entering in the sugarcane crop standing nearby. Asad Khan and Muhammad Irfan died due to these injuries at the spot. The accused persons fled away towards their Haveli. The motive was stated to be murder of Maqsood son of Riaz about which the case was registered against Muhammad Azam son of the complainant under section 302, P.P.C. And the accused persons after consultation with each other had caused Qatl-e-amd of Asad Khan and Muhammad Ifran. The occurrence was witnessed by Mst. Irshad Bibi, Muhammad Ashraf and Muhammad Ahmad, all Rajput by Caste and residents of the same village.
3.' Thereafter the complainant filed a private complaint wherein, after reiterating the contents of the F.I.R., he has stated that the accused persons nominated in the F.I.R. Are politically influential so the Police in order to take financial benefits from them, is bent upon to discharge the nominated accused persons, who are the actual culprits and has wrongly implicated Nawaz alias Billa Dogar appellant, who is not involved in the commission of the offence and that he has moved an application before the high-ups in the Police hierarchy but the Police is spoiling the case.
4. After investigation, the appellant and 4 others were sent up to face the trial. They were charged under sections 302/149, P.P.C. Muhammad Yagoob died on 17-1-2006. Muhammad Yahya, Muhammad Ishaq and Javed absconded on 6-3-2006 and are proclaimed offendeRs, The appellant faced the trial and was convicted under section 302(b), P.P.C. And sentenced to death.
5. The medical evidence was adduced through Dr. Saleemur-Rehman (P.W.1), who had conducted the postmortem examination of the dead body of Asad Khan son of Javed Akhtar deceased, on 6- 8-2004 at about 4-00 p.m. And found following injuries on his person:--
(1) A wound of entrance of fire arm 1 x 1 cm with inverted edges on the last iliac fossa going deep into abdomen.
(2) A wound of exit of fire arm 1-1/2 x 1-1/2 cm with everted edges on the left gluteal region.
(3) Superficial abrasion 2 x 2 cm on the left knee.
' He opined that the cause of death was excessive haemorrhage due to injury No,1, which was ante- mortem and sufficient to cause death in the ordinary course of nature. Time between death and injury was 1 to 2 hours and between death and postmortem was about 24 houRs, He proved the postmortem report (Exh.PA) along with pictorial diagrams (Exhs.PA/1 and PA/2). He further stated that, he conducted the postmortem examination of the dead body of Muhammad Irfan deceased on the same day and found following injuries on his person:--
(1) Lacerated wound 3 x 4 cm on the left occipital region, exit wound.
(2) Lacerated wound 1 x 1 cm edges inverted on the left frontal region of head.
' He opined that the death was result of firearm injury No,1, which was ante-mortem and sufficient to cause death in the ordinary course of nature. The time between death and injury was approximately immediate and between death and postmortem was about 12 houRs, He proved the postmortem repot (Exh.PB) and pictorial diagrams (Exhs.PB/1 and PB/2).
6. Muhammad Ashraf complainant appeared as P.W.3 and almost reiterated the contents of his complaint and the F.I.R. (Exh.PE). Mst. Irshad Bibi (P.W.4) has stated that Muhammad Yaqoob (since dead), Muhammad Yahya, Muhammad Ishaq (POs) armed with Rifles and Muhammad Javed (PO) armed with Pistol arrived in the fields of the deceased from the direction of their Haveli. Yaqoob raised Lalkara to the effect that he would take revenge of the murder of his brother. Thereafter Yahya made fire, which hit Muhammad Irfan on his head. Then Muhammad Ishaq made fire, which hit Asad Khan on his body. Raved made fire, which hit Muhammad Irfan. Muhammad Irfan and Mad Khan fell down. Accused made firing on them also but they concealed, themselves behind the 'Jammu' tree.
7. Another set of witnesses comprising of Muhammad Akram (C.W.5), Muhammad Tufail (C.W.6), Razzaq (C .W.7) and Muhammad Ashraf (C.W.8) was also.Examined. Muhammad Akram (C.W.5) stated that Ishaq accused empty-handed and appellant Billa Dogar armed with Rifle/Pump Action came at the place of occurrence and Billa Dogar made fire shot on the son of complainant, Muhammad Ashraf and also on the 'Pathan'. Muhammad Tufail (C.W.6) stated that he had threats from both the parties so would not make the statement but then added that he had submitted an affidavit, before the Police. Razzaq (C .W .7) had stated that he was present at the place of occurrence. Deceased Irfan, etc., came to plough their land. Muhammad Nawaz alias Billa and Muhammad Ishaq quarrelled with Muhammad Irfan. Muhammad Ishaq was grazing his cattle. The accused/appellant Nawaz alias Billa armed with Rifle made fire on Muhammad Irfan and then he made fire on one Pathan. Pathan sustained injury on his thigh. Muhammad Ashraf (C.W.8) stated that accused Yagoob, Yahya and Javed were not present. Accused Ishaq was grazing his cattle when accused Nawaz alias Billa present in the Court made fire shot with his Rifle on Pathan and then left the place of, occurrence.
8. The I.O. Of the case appeared as C.W.9. He stated that on 6-8-2004 he was posted in. Police Station Raja Jang as SHO. On the same day at about 12.30 noon, Muhammad Ashraf complainant came to the Police Station and got his statement (Exh.PE) recorded, which was read over to him and in token of its correctness he put his signatures on the same. Thereafter he went to the place of occurrence and prepared inquest report (Exh.C.W.9/1), injury statement (C .W.9/2) of Asad Khan and application (Exh.0 .W.9/3). He also proved inquest report (Exh.0 .W.9/4), injury statement (Exh.0 .W.9/5) of Irfan, application (Ex.CW-9/6), site plan of place of occurrence (Exh.C.W.9/7), memo of recovery (Exh.C.W.9/8) regarding securing of blood-stained earth in respect of Asad Khan deceased, memo of recovery (Exh.C.W.9/9) regarding securing of blood-stained earth in respect of Muhammad Irfan deceased, memo of recovery (Exh.C.W.9/10) regarding securing of 4 empties of Rifle .44 bore P.7/1-4, 2 empties of Rifle .223 bore P.8/1-2, 8 empties of Rifle .222 P.9/1-8 and three empties of Pistol .30 bore P.10/1-3, memo of recovery (Exh.PC) regarding securing of last worn clothes of Asad Khan deceased, memo of recovery (Exh.PD) regarding securing of clothes of Muhammad Irfan deceased and notes in red ink on scaled site plans (Exh.0 .W.1/1 and Exh.0 .W.1/2).
It is stated that on 9-2-2010 Nawaz and lshaq made a disclosure and led them to the Dera of Muhammad Ishaq from where accused Ishaq (P.O.) got recovered Pistol 9 MM P.6, which was secured through memo of recovery C.W.9/11 and the accused Nawaz got recovered Rifle 222 P.11 from the same room, which was secured through memo of recovery (C.W.9/12). The prosecution also produced the report of the Chemical Examiner (Exh.PE), report of Serologist (Exh.PF) and report of FSL (Exh.PG).
9. In his statement under section 342, Cr.P.C., the appellant has denied the allegations levelled against him by the prosecution and contended that he has no concern with the occurrence and nothing was recovered from him. It is specifically stated that the C.Ws. Are interested witnesses, closely related to the accused persons nominated in the F.I.R., whereas P.Ws. Cited in the F.I.R. Have not deposed against him. It is urged that he was implicated falsely due to filing of Criminal Miscellaneous No,948 of 2004 in this Court against Police officials. He did not opt to appear as witness under section 340(2), Cr.P.C. However produced Sultan (D.W.1) and Muhammad Tufail (D.W.2), who stated that at the time of occurrence, the appellant was in his village and irrigating his land.
10. After recording evidence and hearing the arguments, the learned trial Court proceeded on to convict and sentence the appellant as above.
11. We have heard the arguments advanced by Sardar Mohabbat All Dogar, Advocate, learned counsel for the appellant and Mr. Shahid Bashir Chaudhry, D.P.-G., for the State and have also minutely perused the record with their able assistance.
12. Learned counsel for the appellant has contended that the appellant is neither nominated in the F.I.R. Nor private complaint filed by the complainant; that he had no motive to commit Qatl-e-amd of Muhammad Irfan and Asad rather the motive is attributed to Muhammad Yagoob, etc., the nominated accused of the F.I.R., out of whom three are still at large and have been declared as P.Os.; that the false recovery of Rifle was planted against him and both the witnesses of the memo of recovery i,e, Muhammad Ihsan and Muhammad Asghar have not supported the prosecution version although Muhammad Asghar appeared as C.W.4 so the recovery is highly doubtful and does not connect the appellant with commission of the offence in any manner.
13. Learned D.P.-G. Has vehemently contended that the C.Ws.5, 7 and 8 have fully implicated the appellant in commission of the offence and they had no motive to depose falsely against him. It is stated that the complainant and Mst. Irshad Bibi for the reasons best known to them have, not deposed against the appellant although he was involved in the commission of the offence. It is urged that C.W.9 who is I.O. Of the case had proved the recovery of the Rifle and he had no grudge against the appellant.
14. The appellant was not nominated in the F.I.R., which was promptly lodged. It was a broad- daylight occurrence. Had the appellant been involved in the commission of the offence, the real father and paternal aunt of the deceased Irfan would have not spared him. They remained consistent about their instance adopted from the first day to the effect that Muhammad Yagoob (since dead), Muhammad Yahya (P.O.), Muhammad Ishaq (P.O.) and Muhammad Javed (P.O.) had caused Qatle-amd of Irfan and Asad due to grudge nourished over murder of Maqsood son of Riaz, the case about which was registered against Muhammad Azam. The complainant reiterated these contents in the private complaint and in the witness box. In the complaint he had alleged that the Police wanted to spoil the case by implicating the appellant due to monetary consideration. The presence of Muhammad Ashraf complainant and Mst. Irshad Bibi (P.W.4) at the place of occurrence is established and even admitted by C.Ws. C.W.5 is real maternal uncle of accused Muhammad Javed (P.O.). Similarly other C.Ws. Are also related to the nominated accused persons, who are proclaimed offenders now. C.W.5 stated that he did not appear before the Police in the investigation of this case. C.W.5 could not identify the appellant in the court, which shows that he had totally concocted a false tale. C.W.6 did not give statement in the Court and only proved his affidavit, which was submitted to the Police and the same can at the most be treated as his statement under section 161, Cr.P.C. And cannot be used against the accused/appellant under the law. Although this witness stated that Yaqoob, Yahya, Javed and Ishaq were not present at the place of occurrence but his statement loses the weight in presence of statements of P.Ws. 3 and 4.
C.W.8 has not stated anything about sustaining of injuries by Irfan deceased, which shows that he was not present. All these C.Ws. Are closely related to the nominated accused persons and it appears that they have come forward to save them and in order to achieve this object they have made false statements against the appellant. According to the complainant and P.Ws. Cited in the F.I.R., the appellant is not connected with the commission of the offence. The recovery of the Rifle is highly doubtful as Muhammad Asghar (C.W.4), who had allegedly attested the memo had not stated that the appellant had led to the recovery of the same although he proved the recovery of Pistol .9 MM at the instance of Muhammad Ishaq accused (since P.O.). The report of FSL, shows that this Rifle was not used during the occurrence. In these circumstances, this recovery does not connect the appellant with the commission of the offence in any manner.
15. The above resume vividly reveals that the appellant, who was neither nominated in the F.I.R. Nor in the complaint, has been implicated by the I.O. And C.Ws. With the sole object to cause advantage to the nominated accused persons. His involvement in the commission of the offence is highly doubtful. The evidence of C.Ws. Was not at all trustworthy and reliable. The appellant could have not been sentenced under section 302, P.P.C. On the basis of this deficient evidence. The learned ASJ miserably failed to appreciate the evidence properly. He wrongly convicted and sentenced the appellant. The impugned judgment is not sustainable under the law.
16. For the reasons supra, the appeal is accepted, the impugned judgment is set aside and the appellant is hereby acquitted. He is behind the bars and be released forthwith if not required to be detained in any other case. Consequently Murder Reference No,253 of 2006 is answered in the negative.