' ALTAF IBRAHIM QURESHI, J.---This appeal has been against the judgment dated 24-6-2006 passed by the learned Additional Sessions Judge, Bahawalpur, whereby the appellant-Muhammad Saleem was found guilty of qatl-e-amd of Rab Nawaz, convicted accordingly and sentenced under section 302(b), P.P.C. To imprisonment for life along with Rs,50,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased, which was ordered to be recovered as arrears of and revenue and in default thereof to further undergo simple imprisonment for six months. He was allowed benefit under section 382-B, Cr.P.C. Whereas the other co-accused of the present appellant namely Atta Muhammad, Ghulam Mustafa, Muhammad Shah Nawaz, Muhammad Ashiq, Muhammad Bakhsh, Muhammad Fayyaz, Muhammad Nazak and Ghulam Mohey-ud-Din, were 'acquitted of the charges i,e, sections 148/149/109, P.P.C. This judgment was rendered in case F.I.R.
No,133 of 2001, registered under sections 302/148/ 149/109, P.P.C. With Police Station Chani Goth, District Bahawalpur.
2. The appellant-Muhammad Saleem has challenged his conviction and sentence through Criminal Appeal No,331 of 2006. The complainant-Khuda Bakhsh has filed Criminal Revision No:133 of 2006 for the enhancement of sentence of Muhammad Saleem from life imprisonment to the death penalty whereas no appeal against acquittal of appellant's co-accused has been filed. This single judgment shall dispose of the appeal and the revision petition. It is noteworthy that pursuant to admitting note dated 21-9-2006 passed in the aforesaid Criminal Revision No,133 of 2006/BWP, these matters have been placed before this Division Bench.
3. The case was registered on report of Khuda Bakhsh, who stated in the F.I.R. (Exh.PA) that Muhammad Asghar, Abdul Haq, Abdul Ghani, Allah Mangaya are his brothers-in-law. His sister's husband Allah. Managaya and his nephew Muhammad Abbas, were detained in New Central Jail, Bahawalpur in connection with F.I.R. No,51 of 1999, registered for the murder of Muhammad Akram (appellant's real brother) and Fidda Hussain (grandfather of appellant). One week prior to the occurrence, accused Ghulam Mohey-ud-Din and Ghulam Shabbir came at Mauza Bait Bhurrah and asked them to effect compromise with the complainant party of that criminal case i,e, F.I.R.
No,51 of 1999. Said Ghulam Mohey-ud-Din and Ghulam Shabbir (acquitted accused) asked the complainant-Khuda Bakhsh to come at Mouza Jheelan Wali on 29-10-2001 for the purpose of compromise, therefore, he along with his brothers Abdul Ghafoor and Rab Nawaz (deceased) reached at Mouza Jheelan Wali in the house of his sister Aziz Mai at 3-00 p.m. After a short while his brother Rab Nawaz deceased went towards the house of Mohey-ud-Din and from the other side, Mohey-ud-Din was also coming. Accused Mohey-ud-Din asked his brother Rab Nawaz deceased to summon his brothers and meanwhile Mohey-ud-Din accused shall also summon his relatives and they shall -settle the compromise in an open place, therefore, all the three brothers and Manzoor Ahmad, Muhammad Bakhsh son of Darbari proceeded from the house of his sister Aziz Mai and when after crossing the street, they entered into a plot, the accused persons armed with firearms, were already present there. On seeing them, the accused-Muhammad Saleem and Saqlain raised Lalkara that today they should not be spared and they shall take the revenge of murder of Fidda Hussain and Muhammad Akram Muhammad Saleem made a straight fire which landed upon the abdomen of complainant's brother Rab Nawaz who fell down on the ground.
Meanwhile Saqlain accused also fired upon his brother Rab Nawaz, which too hit his abdomen. Rab Nawaz succumbed to the firearms injuries at the spot.
4. At the inception of trial, learned trial court formally charged the accused on 19-5-2003 which was denied by them and they claimed trial.
5. Prosecution examined 11 witnesses in all to prove the charge. Ocular account of the occurrence was given by Khuda Bakhsh (complainant) P.W.1 and Abdul Ghafoor, P.W.2, who supported the occurrence as given in the F.I.R. P.W.3 Muhammad Hashim 1240/HC escorted the dead body of Rab Nawaz deceased to the Hospital for post-mortem examination. P.W.4 Muhammad Jamil, Muhammad Asmat Cheema 1159/HC P.W.5 and Shamshad Ahmad 430/C-2 P.W.6 are the witnesses of sealed parcels. P.W.7 Muhammad Muneer S.-I. Proceeded to the place of occurrence; prepared the injury statement. Exh. PG, inquest report Exh.PG/1 of Rab Nawaz deceased and thereafter dispatched the dead body to RHC Chani Goth for post-mortem examination. He also recorded the statements of the P. Ws. Under section 161, Cr.P.C. The Investigating Officer Matloob Ahmad ,Bajwah, S.-I./S.H.O./I.O. While appearing as P.W.8 gave detail of the investigation conducted by him and the recovery effected by him by the accused. Tariq Amin Shah, Halqa Patwari Mauza Jheelan appeared as P.W.10, who prepared the scaled site plan of the place of occurrence as Exh.PH and Exh.PH/I. Muhammad Akram S.-I. Appeared as P.W.11, who arrested the accused Nazim outside the Court premises of District Courts, Bahawalpur.
6. Dr. Shahid Akram, Medical Officer, appeared in the witness box as P.W.9, who conducted the post-mortem examination on the dead body of Rab Nawaz deceased on 30-10-2001 at 10-00 a.m.
Following is detail of injuries on the person of the deceased-Rab Nawaz:-- "Injury No,l. Outer lateral of abdomen 9 cm from umbilicus. Half cm.
' Injury No,2. Half cm x half cm with burn edges 3-1/2 cm from Injury No,l.
' Injury No,3. 1/2 cm x 1/2 cm inverted injury just the antilife crest. There was mesenteric part of duodenal ruptured. Proximal part of duodenum ruptured. Duodenal part of intestine ruptured from three points. Dysentery was ruptured from three points. Abdominal aorta was also ruptured."
7. In his opinion, the cause of death was rupture of main vessels of abdomen and the Injuries Nos.1 and 2 were found sufficient to cause death in the ordinary course of nature. Probable time between the injuries and death was within 2 or 3 hours and between death and post mortem within 24 hours.
8. Statement of the accused-appellant Muhammad Saleem was recorded under section 342, Cr.P.C. And in reply to question as to why this case against him and why the P.Ws. Made statements to involve him, he replied as under:-- "I and my co-accused have falsely been involved in this case, actually Abdul Ghani, Abdul. Haq, Muhammad Aslam son of Mian Budhan, Allah Ditta, Allah Mangaya, Muhammad Asghar, Abdul Latif and Muhammad Abbas committed the Qatl-e-amd of my real brother Muhammad Akram and my grandfather Fida Hussain and case F.I.R. No,51 of 1999, under sections 302/324/342/109/ 148/149, P.P.C. Was registered on my report and all the above named accused were found guilty except Allah Ditta, Allah Mangaya, Muhammad Asghar, Abdul Latif son , of Manzoor Ahmad Muhammad Latif son of Hakim Ahmad Bakhsh, they were declared innocent by the police collusively.
Whereupon I filed a private complaint against all the above named accused persons. They were summoned by the learned Court, they faced the trial and ultimately except Muhammad Latif son of Hakim Ahmad Bakhsh were convicted and sentenced to life imprisonment and they are still in the jail. While Muhammad Aslam accused is still absconder. Khuda Bakhsh complainant of this case and the P.Ws. Compelled me and my relatives to enter into compromise with Abdul Ghani etc. Convicts but I and my relatives refused to do so.
' Rab Nawaz deceased was the real brother of Khuda Bakhsh complainant of this case. As the said Rab Nawaz was a thief and a notorious person, therefore, he had enmity with so many persons. The deceased was murdered by some unknown persons in the darkness of night and the complainant of this case and his other relatives suggested that the deceased had been murdered by my brother Shamim alias Shama, therefore, the complainant of this case got me and my co-accused falsely involved in this case along with my brother Shamim alias Shama in order to pressurize me and my co-accused to make compromise' with the convicts of case F.I.R. No,51 of 1999 at the instance of the complainant of this case and Abdul Ghafoor P.W. And his sons Sajjad committed Qatl-e-amd of my brother Shamim alias Shama in Tehsil Alipur and case under section 302, P.P.C.
Was registered at Police Station Seetpur. The complainant of this case, Abdul Ghafoor P.W. And the deceased Rab Nawaz never come to Jheelan Wali on the asking of Ghulam Shabbir for the sake of compromise. The complainant with the connivance of the police and the P.Ws. Concocted a false story and involved me and my co-. Accused falsely in this case. No independent person of the locality deposed against me and my co-accused and the P. Ws. Who deposed against me and my co-accused, are not only closely related to the complainant and the deceased but also inimical towards me and my co-accused. I and my co-accused did not commit the murder of Rab Nawaz deceased. We are innocent.
9. Learned counsel for the appellant in support of this appeal contends that the prosecution witnesses of ocular account namely Khuda Bakhsh P.W.1 and Abdul Ghafoor P.W.2 are Chance witnesses; they both are admittedly residents of Bait Bhurrah, which as per P.W.1 is at a distance of 40 miles from the place of occurrence and both of them have not given any probable convincing explanation for their presence at the place of occurrence. Further contends that both these P. Ws.
Are admittedly inimical, interested and partial witnesses, as Muhammad Akram and Fidda Hussain, real brother and grandfather of the pr.Esent appellant, respectively, were murdered and a criminal case vide F.I.R. No,51 of 1999 was registered with Police Station Seetpur under sections 302/324/ 342/109/148/149, P.P.C. Against Abdul Ghani etc. Including the son of P.W.2 and the appellant was complainant of that case. In these circumstances, this evidence cannot be accepted unless and until it is supported by any other independent piece of evidence and there is no such corroboration available in this case, as the recovery of pistol, allegedly effected at the instance of the appellant P-1 with five bullets P-2/1-5, taken into possession .Vide recovery memo Exh.PD, is inconsequential in the absence of report from the Forensic Science Laboratory. Further submits that the report of Forensic Science Laboratory is in negative; neither it Is available nor was tendered, rather withheld dishonestly. Further contends that the motive stated in the F.I.R. Is highly improbable, as it has been admitted by P.W.1 that all the accused persons of F.I.R. No,51 of 1999 were convicted and they were serving their sentence, and in this situation, there was no occasion to effect compromise and even otherwise the story of the complainant that he has gone to Mauza Jheelan Wali is not understandable and whit prompted the complainant to effect the compromise has not been disclosed. Further submits that there is a conflict between the ocular account and the medical evidence. It is the case of both the eye-witnesses that one shot was fired by the appellant and the other by his co-accused Saqlain (since P.O.) whereas there are three injuries on the dead body as noted by the Doctor Shahid Akram P.W.9 and the said Doctor has noted blackening area around the wound which suggest that it was a fire-shot from close range but as per site plan the distance between the assailant and the distance of .Deceased is 30-feet. It is lastly contended that in this case apart from the appellant, eight other persons were also implicated and one of them Saqlain is absconder whereas remaining were acquitted by the learned trial Court and there is no appeal against acquittal, therefore, the same evidence on the basis of which co-accused of the appellant were acquitted cannot be believed against the present appellant unless corroborated by independent evidence. Reliance has been placed on 2001 SCMR 208 and 2011 SCMR 910.
10. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant opposed the appeal on the grounds that the eyewitnesses cannot be treated as chance witnesses, as this occurrence took place at about 3-00 p.m. And the matter was reported to the police at 4-50 p.m., which clearly suggests that the witnesses were present at the place of occurrence and it was the appellant side who prompted the complainant side for compromise and they along with the deceased were present in Mouza Jheelan Wali; that ocular account is duly supported by the medical evidence, especially to the extent of the appellant as it is the case of the prosecution that one fire was shot by the appellant which landed on the abdomen of the deceased and that injury is very much available in the post-mortem report; that the enmity between the parties is an admitted fact and in the circumstances, no other corroboration is required. As far as the criminal revision is concerned, learned counsel for the petitioner-complainant submits that the prosecution has fully proved its case to the extent of the appellant and there was no absolute material in favour of the appellant, as such he deserves normal penalty provided under section 302, P.P.C. Which is death. Reliance is placed on 2004 SCMR 1676, 2005 SCMR Page 427 and 2005 SCMR 49.
11. We have heard the arguments addressed by learned counsel for the parties and have carefully gone through the record.
12. Admittedly, P.W.1 Khuda Bakhsh and P.W.2 Abdul Ghafoor are the real brothers and both of them are living in Mouza Bait Bhurah of District Muzaffargarh. P.W.1 in his cross-examination has admitted that he resides in Mouza Bait Bhurah, which is 40/50 miles away from the place of occurrence and they have no business over there on the said date. Even otherwise, the story of the prnsecution is highly improbable. There is nothing on record to show as to why the appellant party went there for the compromise when the two persons namely Abdul Latif and Ahmad Bakhsh from the complainant side, had already been convicted in a murder case of Muhammad Akram, 'real brother of the appellant and Fidda Hussain, his grandfather. Hence, the story of effecting compromise at the house of sister of P.W.1 and P.W.2 namely Mst. Aziz Mai, from whose side the aforesaid two persons had been convicted and sentenced to life imprisonment, is not convincing.
Except P.W.1 and P.W.2, the real brothers, no independent witness from the vicinity i,e, place Of occurrence, , was cited to strengthen the prosecution case. The said P.W.1 and P.W.2, who have their own motive to falsely implicate the appellant and whose credibility is not free of doubt, are held to be interested and inimical witnesses, as the factum of enmity is admitted between the parties. It, prima facie, appears to be a blind murder and the appellant was involved only to exert pressure upon him and others to effect compromise in the murder case, which culminated into conviction of two persons of the complainant party, who are confined and suffering life imprisonment. In these circumstances, the presence of the said two witnesses at the place of occurrence is not established.
13. According to the ocular account furnished by P.W.1 and P.W.2, who are held to be interested and inimical, two shots were fired first is attributed to the present appellant and the second to his co- accused Saqlain (P.O.) when the deceased was lying on the ground. Both the fire-shots are on belly of the deceased. During the postmortem examination, Dr. Shahid Akram, P.W.9 found three bullet injuries on the person of the deceased with burn margins.
This being so, the medical evidence does! Not fully support the ocular account.
14. The other aspect of the medical evidence is that according to P.W.9, Dr. Shahid Akram, the deceased received injuries from close range because blackening with burning around the wounds was found by him. The said Doctor deposed that the injuries might be caused from the distance about 15 to 20 feet. Whereas according to the prosecution story, reflected from the site plan (Exh.PH and Exh.PH/1) as well as the ocular evidence, the injuries were caused from a distance of 20 to 30 feet, thus, the same also does not tally with the medical evidence.
15. With regard to the motive part, as stated earlier, the complainant party was accused in a murder case of Muhammad Akram Fidda Hussain (the real brother and grandfather, respectively, of the present appellant), who is the complainant of that case i,e, F.I.R. No,51 of 1999. The real son of P.W.2 is also an accused in the said F.I.R. In the said double murder case, the present complainant party is undergoing the sentence and their appeal against conviction is still pending adjudication.
What were the compelling circumstances, which prompted the appellant and his accomplices to effect a compromise at a place foreign to them, is a question, which casts serious dent in the prosecution case qua motive part. In these circumstances, especially when the enmity between the parties is admitted, motive cannot be attributed to the appellant.
16. So far as the recovery is report of the Forensic Science Laboratory was in the negative and the same was intentionally withheld by the prosecution.
17. For the foregoing reasons, we find that the prosecution has failed to bring home the guilt of the appellant beyond reasonable doubt. Therefore, we allow this appeal and acquit the appellant Muhammad Saleem from the charge. As a result, the appellant is directed to be released forthwith, if not required. In any other case. Observations qua the case of absconding accused namely Muhammad Saqlain are not relevant. Resultantly, the revision petition filed by the complainant is dismissed.