' MALIK SHAHZAD AHMAD KHAN, J.---We propose to dispose of Murder Reference No.638 of 2006, sent by the learned trial Court, Criminal Appeal No.1321 of 2006, preferred by appellant Razzaq Ahmad, Criminal Appeal No.1318 of 2006, submitted by Zafar Iqbal appellant, Criminal Appeal No. 1319 of 2006 filed by Sher Muhammad, Muhammad Akbar, Fayyaz Ahmad, Khizar Hayat and Umar Hayat and Criminal Revision No.869 of 2006, filed by Muhammad Arshadcomplainant, by this single judgment, as all these matters stem out of judgment dated 19-7-2006, passed by learned Additional Sessions Judge, Mandi Bahauddin.
' It is pertinent to mention here that the sentence of the appellant Mazhar Iqbal was suspended on 23-12-2008 and he was released on bail. The appellant Mazhar Iqbal, thereafter, absented himself from this Court and proceedings under section 514 of Cr.P.C. Were initiated against him. Notice to the surety namely Muhammad Afzal was issued and bail granting order was re-called on 8-6-2010.
In compliance of this Court's order dated 7-7-2010 the surety Muhammad Afzal had already deposited an amount of Rs.1,00,000 to the Deputy Registrar (Judicial) of this Court. The learned counsel for the complainant has contended that the appeal filed by Mazhar. Iqbal (Criminal Appeal No. 1320 of 2006) cannot be decided until and unless he surrenders before this Court. The learned counsel for the appellant Mazhar Iqbal does not contest the said objection of the learned counsel for the complainant. In this view of the matter, the appeal filed by Mazhar Iqbal appellant cannot proceed any further. The file of his appeal be consigned to the record room and the same will be decided on his arrest.
2. Zafar Iqbal, Fayyaz Ahmad, Umer Hayat,Razzaq Ahmed, Khyzar Hayat, Sher Muhammad and Muhammad Akbar appellants alongwith their co-accused Asif Mehmood, Tassawar Iqbal, Kamran Saif, Irfan, Mazhar Iqbal, Ehsan Ullah, Muhammad Mehndi, Nazir Ahmed, Amjid Iqbal, Iftikhar Ahmed alias Pomi, Niaz Ali, Muhammad Yousaf and Muhammad Younas were tried in case F.I.R. No.312 of 2004, dated 13-8-2004, registered at Police Station, Pahrianwali, District Mandi Bahauddin, in respect of offences under sections, 302, 324, 148, 149 of P.P.C. After conclusion of the trial, vide its judgment dated 19-7-2006, while acquitting co-accused namely, Muhammad Asif, Tassawar, Irfan, Ehsanullah, Amjid, Kamran, Mehdi, Rana Niaz, Iftikhar Ahmed, Nazir Ahmed, Muhammad Yousaf and Muhammad Younas, the learned trial court has convicted and sentenced the appellants as under:- - ' Zafar Iqbal ' Under sections 302(b)/149 of P. P. C. To death for committing Qatl-e-Amd of Liaqat Ali deceased.
He was also ordered to pay Rs.50,000 (Rupees fifty thousand only) as compensation, if recovered, to the legal heirs of the deceased or in default of payment to suffer rigorous imprisonment for six months.
' Razzaq Ahmad ' Under sections 302 OW 49 of P. P.C. To death for committing Qatl-e-Amd of Liaqat Ali deceased.
He was also ordered . To pay Rs.50,000 (Rupees fifty thousand only) as compensation, if recovered, to the legal heirs of the deceased or in default of payment to suffer rigorous imprisonment for six months.
' Sher Muhammad alias Shera, Akbar, Fayyaz, Khyzar Hayat and Umar Hayat ' Under sections 302(b)/149 of P. P. C. To imprisonment for life for 'committing Qatl-e-Amd of Liaqat Ali deceased. They were also ordered to pay Rs.50,000 (Rupees Fifty Thousand only) each as compensation to the legal heirs of the deceased or in default to suffer simple imprisonment for six months each. Benefit of section 382-B of Cr. P. C. Was also extended to them.
3. Brief facts of the case as disclosed by Muhammad Arshad complainant (P.W.12) in F.I.R. (Exh.PC/1) are that on the intervening night, i.e. 12/13-8-2004 at 11-00 p.m. (night) the complainant Muhammad Arshad (P.W.12) along with Mushtaq Ahmad, Muhammad Tufail (P. W.13), Muhammad Sharif (P: W,14) and Liaqat Ali deceased was coming back home after offering funeral prayer of one.
Mst. Sardaran Bibi wife of Muhammad Hussain. Liaqat Ali deceased was 5/6 karams ahead. Of them and when he (Liaqat Ali) reached near the gate of one Safdar son of Karam Elahi, the appellant Zafar Iqbal, Mazhar Iqbal (since proclaimed offender) Sher Muhammad appellant, Razzaq Ahmad appellant, Muhammad Fayyaz appellant, Muhammad Akbar appellant, Khizar Hayat appellant and Umar Hayat appellant, all armed with hatchets, Muhammad Asif, Tasawar, Irfan, Ehsan Ullah, Amjad, Kamran, Rana Niaz, all armed with `sota' (clubs), Muhammad Mehndi empty-handed (co-accused since acquitted) who were already present Inside the Dara' of above mentioned Safdar came out in the street. Mehndi raised lalkara that Liaqat Ali should not be let off and he should be taught a lesson for getting the turn of water changed, on which Zafar Iqbal appellant inflicted a hatchet blow which landed on the left side of the head of Liaqat Ali, second hatchet blow was inflicted by Razzaq Ahmad appellant which hit Liaqat Ali on the back side of his head who fell down on the ground. Shera accused, thereafter, gave a hatchet blow which landed behind the left ear of Liaqat Ali. Mazhar Iqbal (since P.O.), Fayyaz Ahmad, Muhammad Akbar and Khizar Hayat appellants also inflicted hatchet blows on Liaqat Ali which landed on his left shoulder.
Umar Hayat appellant gave successive hatchet blows on the back of Liaqat Ali. Tassawar, Asif, Irfan, Rana Niaz Ahmad, Ehsan Ullah, Amjad and Kamran (co-accused since acquitted) also inflicted sota blows on the person of Liaqat All which landed on his left upper arm, on his back, on the left and backside of his shoulder, left cheek, on the back of his left hand and on his right shoulder. The occurrence was witnessed by the complainant Muhammad Arshad (P.W.12), his brother Mushtaq, Muhammad Tufail (P.W.13) and Muhammad Sharif (P.W.14), in the light of electricity. They did not intervene due to fear to their own lives. On the hue and cry raised by Liaqat Ali the people of the locality attracted to the spot on which the accused fled away from the place of occurrence.
4. The motive behind the occurrence was the change of the turn of water of agricultural land.
' The matter was reported to the police at Bus Stand Pahrianwali on the same night, i.e. 13-8-2004 at 12-1/4 p.m. (night) through Fard Bian' Exh. PC on the basis of which formal F.I.R. Exh. PC/1 was registered at Police Station, Pahrianwali, Iftikhar Ahmad, Nazir Ahmad, Muhammad Yousaf and Muhammad Younas were implicated through supplementary statement of the complainant. It was alleged by the complainant that the above mentioned accused Iftikhar Ahmad, etc. Gave beating to Muhammad Sharif (P.W.14) when he tried to rescue Liaqat at the time of occurrence, whereas., Nazir Ahmad .Co-accused allegedly gave a fist blow under the left eye of. Muhammad Sharif (P.W.14).
5. After completion of investigation, the challan was submitted before the Court, the appellants and their co-accused, were charge sheeted, to which they pleaded not guilty and claimed trial.
The prosecution in order to prove its case examined as many as 16 P.Ws.
' The complainant Muhammad Arshad. (P. W.12), Muhammad .Tufail (P.W.13) and Muhammad Sharif (P.W.14) furnished ocular account of the occurrence.
' P.W.1 Dr. Shahid Naseein Iqbal, SMO, RHC, Pahrianwali, on 13-8-2004, medically examined Liaqat Ali (deceased), and found the following injuries on his body:--
(1) Tentative incised wound (3 small skin deep wounds at margin of this wound) about 13 cm x 3 cm on left side of neck starting just behind the labule or ear. It was muscle deep and tendons beneath was also cut and it was going backward. Advised X-Ray.
(2) Incised wound about 9 cm x 2 cm x bone was exposed and also cut on left side of head in temporal region about 3 cm above ear. X-Ray was advised.
(3) Incised wound about 7 cm x 2 cm x bone exposed on back of head in between ears in occipital region. Profuse bleeding was there from wound. X-ray was advised.
(4) 4 incised wouncli measuring each 7 cm x 2-1/2 cm x muscle deep on left side ' at junction of arm and shoulder joint. All the four wounds are about 1 cm apart.
(5), Incised wound 8 cm x 1-1/4 cm x skin deep on left upper arm in middle.
(6) .Incised wound 7 cm x 2 cm x muscle deep on back in lumber region on Rt. Side of back bone.
(7) Incised wound about 7 cm x 1-1/2 cm x muscle deep on Lt. Lumbar region near spinal column X-Ray was advised.
(8) Bruise 4 cm round red blackish in colour on left back of lower chest. X-Ray-was advised.
(9) Blackish bruise 4 cm round on back of Lft. Shoulder joint.
(10) An abrasion 2 cm x 1-1/4 cm on left side of face lateral to nose.
(11) 2 incised wound measuring each.
2 cm x 1-1/4 cm on back of Lt. Hand and these were skin deep.
(12) Incised wound 6 cm x 1/2 cm x muscle deep on Rt. Shoulder joint.
' On the same day (13-8-2004) Dr. Shahid Naseem Iqbal, SMO, RHC, Pahrianwali (P.W.1) also examined Muhammad Sharif son of Muhammad Hayat aged 60 years and found the following injuries:-
(1) Bluish black bruise 4 cm x 3 cm on lower side of left eye. There was sub-conjuntival haemorrhage in left eye and whole eye was red.
(2) He was complaining of pain of whole body.
' Liaqat Ali, later on, succumbed to the above-mentioned injuries in the hospital on 28-8-2004, at 9-45 p.m.
' Dr. Ghulam Abbas Nasir (P.W.6) on 29-8-2004 at 8-00 a.m. Conducted the post-mortem examination on the dead body of Liaqat Ali (deceased) vide Post mortem Report Exh.PF, Diagrams Exh.PF/-1 and Exh. PF/2 and found the following injuries on his person:- (/).An injury mark about 13 cm on left side of neck starting just behind the lobule of ear going backwards with 3 small injuries marks at margins of this wound.
(2) An injury mark 9 cm on temporal region about 3 cm above left ear. '
(3) Injury mark 7 cm on back of head in between ears on occipieal region.
(4) 4 injuries marks 7 cm long and in an are of 2-1/2 cm on left side of junction of arm and shoulder joint about 1 cm apart from each other.
(5) An injury mark 8 cm on left upper arm in middle.
(6) An injury mark 7 cm on back of lumber region on right side.
(7) An injury mark 7 cm on left lumber region near spinal column.
(8) 2 injury marks measuring 2 cm each on back of left hand.
(9) An injury mark 6 cm on right shoulder joint.
' In his opinion, the death occurred due to haemorrhage, shock and injury to vital organ brain caused by injuries Nos.1 and 2, which were caused by sharp-edged weapon. Injuries Nos.3 to 9 were contributory to injuries Nos.1 and 2 to cause death which were also caused by sharp-edged weapon. All the injuries were ante mortem in nature. Injuries Nos.1 and 2 were sufficient in ordinary course of nature to cause death. Time between injury and death was within 15 to 17 days and between death and post-mortem within 7 to 15 hours.
' Munawar Hussain, S.-I./S.H.O. (P.W.16) and Nazeer, S.-I. (P.W.15) were the Investigating Officers of this case, who completed the investigation and submitted the challan.
' Sikandar Hayat, A.S.-I. (P.W.2), Muhammad Azam, MHC (P.W.3), Gulzar Ahmad, draftsman (P.W.4), Muhammad Mehndi (P.W.5), Liaqat Ali, Constable/565 (P. W.7), Muhammad Ashraf, 177/C (P.W.8), and Sikandar, A.S.-I. (P.W.10), are the formal witnesses.
' The evidence of recoveries was furnished by Taj Muhammad (P.W.9), Nazir Ahmad, S.-I. (P.W.15) and Munawar Hussain Shah, S.-I. (P.W.16). Muhammad Javed Baryar, DSP (CW-1) appeared as court witness. The prosecution produced documentary evidence in the shape of F.I.R. Exh.PC/1, statement of Muhammad Arshad Exh. PC, copy of site plan Exh. PD, memo of possession of clothes Exh.PE, post-mortem report, etc. Exh.PF, copy of death report Exh.PF/3, memo of possession of blood-stained hatchet Exh.PG, 85 PH, memo of possession of sota Exh.PJ, memo of possession of bloodstained Shalwar Exh.PK, memo of possession of blood-stained hatchets Exhs.PL, and P.M., copy of Rapat No.22 dated 28.08.2004 Ex.PN, copies of warrant of arrest and reports Exh. PO to PR/1, copies of Proclamation and reports Exh. PS to P.W.1, memo of possession of bloodstained earth Exh.PW, copy of application to doctor and report Exh.PY, reports of Chemical Examiner Exh.PBB, Exh.
PCC and Serologist Exh.PDD, Exh. PEE.
6. The statements of the appellants and their co-accused under section, 342 of Cr.P.C. Were recorded. They refuted the allegations levelled against them and professed their innocence. In answer to the question, ,why this case against you and why the P. Ws. Have deposed against you, the appellants replied as under:-- Zafar Iqbal "The occurrence is unseen one. In fact, deceased was having bad character and womanizer.
During the night of occurrence, he went to the' house of one Bhadar and was caught red-handed in the house of Bhadar while committing zina with Mst. Alogaddas. At the same time, Bhadar, Mubasher, Tassawar, Yasir and Sajid (who are not facing trial) had given him thrashing in the house of said Bhadar Khan and threw him in the lane. After the announcement made in the Loudspeaker of the mosque, the complainant and P. Ws. Reached there and after premeditation and pre-consultation due to previous enmity with Tufail P. W.1. Have been involved in this case falsely. P. Ws. Are closely related with complainaitt party".
' The appellants namely Razzaq Ahmad, Fayyaz Ahmad, Muhammad Akbar, Sher Muhammad, Khizar Hayat and Umar Hayat adopted the same plea as taken by Zafar Iqbal appellant.
' Neither the appellants made statement under section 340(2), Cr.P.C. Nor they produced any evidence in their defence. The learned trial Court vide its judgment dated 19-7-2006, while acquitting co-accused, namely, Muhammad Asif, Tassawar, Irfan, Ehsan Ullah, Amjid, Kamran, Mehdi, Rana Niaz, Iftikhar Ahmed, Nazir Ahmed, Muhammad Yousaf and Muhammad Younas, found Zafar Iqbal, Fayyaz Ahmad, Umer Hayat, Razzaq Ahmed, Khyzar Hayat, Sher Muhammad and Muhammad Akbar appellants, guilty and convicted and sentenced them as mentioned and detailed above.
7. The learned counsel for Zafar Iqbal appellant, in support of this appeal, contends that Zafar lqbal appellant has no motive to take part in the occurrence and no motive was alleged against him by the prosecution; that even the motive brought on the record through the statements of prosecution witnesses is vague as the same is only to the extent that there was a dispute of the change of water but no detail of such dispute was disclosed in the F.I.R. Or brought before the learned trial court and no document in this respect was placed on the record; that the eye- witnesses of the prosecution were not present at the spot at the relevant time which is clear from the fact that they all have admitted that there was an announcement on the loudspeaker regarding the death of Liaqat Ali, therefore, had the eye-witnesses been present at the spot then there was no such occasion for the said announcement; that Muhammad Arshad complainant claims that he took the injured Liaqat Ali (subsequently dead) to the hospital but the MLR Exh. PA shows that the deceased was brought to the hospital by one Mushtaq (given up P.W.); that as far as Muhammad Tufail (P.W.13) and Muhammad Sharif (P.W.14) are concerned their evidence cannot be accepted because Muhammad Tufail (P.W.13) has admitted in cross-examination that he had enmity with the accused party; that so far as the other eye-witness, i.e. Muhammad Sharif (P.W.14) is concerned, he is not a reliable witness because he stated in the court that he was caught hold of by Iftikhar, Nazir, Yousaf and Younis accused and Nazir accused gave him a fist blow under his left eye but he was not believed by the learned trial court regarding his own alleged injuries and all the persons named by him qua the injuries allegedly sustained by him were acquitted by the learned trial court and their acquittal was maintained by this Court in appeal filed against them; that moreover in the F.I.R. It was not the case of the complainant that Muhammad Sharif was injured in this incident and even in the relevant column of Mukhtas'ar Halat of Inquest Report, there is no mention of this fact; that in this case 20 persons were implicated as accused out of whom eight accused were alleged to have caused injuries on the person of deceased Liaqat Ali with hatchets, whereas, the seven others were alleged to have caused injuries with sotas and role of raising a lalkara was attributed to Muhammad Mehndi co-accused, whereas, Iftikhar Ahmad, Nazir Ahmad, Muhammad Yousaf and Muhammad Younas were implicated through supplementary statement with the allegation that they caught hold of Muhammad Sharif (P.W.14) and gave him fist and kick blows. The appellant Nazir Ahmad was assigned a specific role of giving fist blow, which landed on the left cheek below left eye of Mohammad Sharif (P. W.14), but the learned trial court acquitted 12 accused persons, including those who were accused of causing injuries on the person of the deceased with Dandas and their acquittal was challenged by the complainant through Criminal Appeal No.1475 of 2006 which was dismissed by this Court and the matter was not agitated any further, thus, the same attained finality, therefore, evidence which has been disbelieved qua acquitted co-accused, especially those who allegedly caused injuries on the person of the deceased, cannot be believed to the extent of the appellant, unless and until it is corroborated/supported by any other independent piece of evidence which corroboration is very much lacking in this case; that recovery of hatchet at the instance of the appellant is of no avail to the prosecution case because the same has not been proved as per law; that the version of the appellant that the deceased was a womanizer and he was found in an objectionable condition with one Mst. Muqadas and was killed by his relative is probable in the circumstances of this case; that after the post-mortem examination, the doctor did not hand over Shalwar to the police and the same was handed over to the police on 7-9-2004, i.e. 25 days after the occurrence which supports the version of the appellants.
' The learned counsel for Razzaq, Fayyaz and Sher Muhammad appellants, while adopting the arguments of the learned counsel for Zafar Iqbal appellant, further contends that recovery at the instance of Razaq has not been proved in accordance with the law and even it was affected after one and a half months of the occurrence, therefore, no importance can be attached on this piece of evidence; that it is the case of prosecution that hatchet was recovered at the instance of. Razzaq appellant on 30-9-2004 and it was dispatched to the Office of Chemical Examiner on 5-10-2004 and was received in the said office on 7-10-2004, therefore, the recovery and positive report of the.
Chemical Examiner is of no avail to the prosecution case.
' The learned counsel for Muhammad Akbar, Khizar Hayat and Umar Hayat appellants, in support of this appeal, contends that no recovery was effected, as far as, Akbar is concerned, whereas, the recoveries of hatchets allegedly affected at the instance of Khizar Hayat and Umar Hayat appellants were not proved because the 1.0. Has stated that the same were recovered from the same house; that it is the case of the prosecution that Khizar Hayat was armed with hatchet, and caused injury on the left shoulder of Liaqat Ali deceased but according to the relevant record, same ihjury was attributed to Akbar, Fayyaz and Mazhar accused as well, which shows that the prosecution case is doubtful in nature; that as far as Umar Hayat appellant is concerned it was the case of the complainant in the F.I.R. That he caused injury one after the other on the back of Liaqat Ali deceased whereas the complainant while appearing before the learned trial court has attributed only one injury to him and same was the case of other eye-witnesses of the prosecution, whereas, as a matter of fact there are two injuries on the person of the deceased, therefore, the above mentioned appeals be accepted and the appellants be acquitted from the charges.
8. On the other hand, the learned Deputy Prosecutor-General, for the State, assisted by the learned counsel for the complainant, opposes this appeal on the grounds that the incident took place in the village and it has not been denied or disputed that the eye-witnesses are not resident of the same village rather it is on the record that their residences are situated hardly at a distance of few acres from the place of, occurrence; that all the eyewitnesses have reasonably explained their presence at the spot; that all the appellants are specifically named in the F.I.R. With specific allegations of causing injuries on the person of the deceased which resulted into his death; that there is nothing on the record which could even suggest that there was any enmity of the appellants with the complainant party due to which, the appellants have been implicated in this case falsely; that matter was reported to the police promptly at 12-15 a.m. (night), whereas, the occurrence took place at 11-00 p.m. (night); that version of the appellant was vague and even otherwise no evidence in support of that was produced by any of.' the appellants; that hatchets were recovered from Zafar Iqbal; Razzaq Ahmad, Khizar Hayat and Umar Hayat appellants and the reports of Chemical Examiner and that of Serologist are positive; that non-recovery of hatchets from the appellants Fayyaz, Muhammad Akbar and Sher Muhammad is not damaging to the prosecution case because they have been assigned specific roles by the eye-witnesses and their evidence is natural, confidence-inspiring and straightforward; that the prosecution has also proved the motive through the statements of eye-witnesses; that the motive, as alleged by the prosecution, is further established through documentary evidence (Exh. PDF/1-4) (wrongly, mentioned as Exh.DF), which shows that the turn of water was changed in favour of Liaqat Ali (deceased) and he also moved an application for the implementation of the, order regarding the turn of water; that the eye-witness, i.e. Muhammad Arshad, (P.W.12), Muhammad Tufail (P. W.13) and Muhammad Sharif (P.W.14) are consistent on all material aspects of the incident like time, place, mode and the role played by the appellants; that the medical evidence furnished by Dr. Shahid Naseem Iqbal (P.W.1) and Dr. Ghulam Abbas Nasir (P.W.6) fully supported the ocular account; that there was no change in the version of the prosecution before the court and it remained the same as it was on the first day of occurrence when the matter was reported to the police, therefore, the appeals filed by the appellants against their convictions and sentences be dismissed and Murder Reference be answered in the affirmative.
9. We have heard the arguments of learned counsel for the parties at length and perused the record minutely with their able assistance.
10. The occurrence in this case took place on the intervening night of 12/13-8-2004 at 11-00 p.m. In front of the gate of the house of one Safdar son a Karam Elahi at village Haigarwala, Police Station Pahrianwali, District Mandi Bahauddin. The matter was reported to the police by Muhammad Arshad (P.W.12) at 12-1/4 a.m. (night) on 13-8-2004 through Exh.PC on the basis of which formal F.I.R.
Exh.PC/1 was recorded on 13-8-2004 at 12-30 a.m. (night) at Police Station Pahrianwali, District Mandi Bahauddin. The prosecution in order to prove the ocular account of the occurrence has examined three eye-witnesses namely Muhammad Arshad (P.W.12), Muhammad Tufail (P.W.13) and Muhammad Sharif (P.W.14). Although it was alleged by the prosecution that Muhammad Sharif (P.W.14) was also injured at the time of occurrence at the hands of Iftikhar Ahmad, Nazir Ahmad, Muhammad Yousaf and Muhammad Younis co-accused of the appellants (since acquitted) but the fact of receiving any injury by Muhammad Sharif (P.W.14) was neither mention in 'Fard Bian' Exh.
PC or in F.I.R. Exh.PC/1. Moreover, the learned trial court vide the impugned judgment dated 19-7- 2006 has acquitted all the above 'mentioned accused while extending them the benefit of doubt.
The appeal filed by the complainant against the acquittal of above mentioned accused Iftikhar Ahmad, etc. i.e. Criminal Appeal No. 1475 of 2006 has already been dismissed by this Court vide judgment dated 4-4-2007. The complainant or the State has admittedly not challenged the above mentioned order of this Court before the Hon'ble Supreme Court of Pakistan, thus, the judgment of acquittal of the above mentioned accused Iftikhar Ahmad, etc. Has attained finality, therefore, we are of the view that the presence of Muhammad Sharif (P.W.14) and receiving injury at the time of occurrence in this case has not been established beyond the shadow of doubt, thus, the evidence of this eye-witness of the prosecution is not reliable.
11. We have excluded the evidence of Muhammad Sharif (P.W.14) from consideration, therefore, the ocular evidence of the prosecution only hinges upon the statement of Muhammad Arshad (P.W.12) and Muhammad Tufail (P.W.13). We have noted that as many as 20 accused namely Zafar Iqbal, Asif Mehmood, Tassawar Iqbal, Kamran Saif, Irfan, Mazhar Iqbal, Fayyaz Ahmad, Ehsan Ullah, Umar Hayat, Razzaq Ahmed, Khyzar Hayat, Sher Muhammad, Muhammad Akbar, Muhammad Mehndi, Nazir Ahmed, Amjid Iqbal, Iftikhar Ahmad alias Pomi, Niaz Ali, Muhammad Yousaf and Muhammad Younas were implicated in this case by the prosecution. 12 out of the above mentioned 20 accused have already been acquitted by the learned trial court. The appeal against their acquittal bearing Criminal Appeal No. 1475 of 2006 already stands dismissed by this Court vide judgment dated 4-4- 2007. The learned counsel for the complainant, as well as, the learned Deputy Prosecutor-General has conceded that no petition against the above mentioned judgment of this Court was filed before the Hon'ble Supreme Court of Pakistan by the complainant or by the State and as such the judgment of acquittal of the above mentioned accused has attained finality. We have also noted that seven acquitted co-accused namely Tassawar, Asif, Irfan, Ehsan Ullah, Amjid, Kamran and Rana Niaz were allegedly armed with sotas (clubs) at the time of occurrence and they were attributed the role of inflicting sota (clubs) blows on the left arm, back, the back of left shoulder, left cheek, back of left hand and right shoulder of Liaqat Ali deceased. According to the Medico-legal Report of Liaqat Ali deceased there were injuries on the left arm, back, on the back of left shoulder, left side of the face, on the back of left hand and right shoulder of Liaqat Ali deceased. As the above mentioned co-accused, Tassawar, etc. Have already been acquitted by the learned trial court by extending them the benefit of doubt, therefore, a very strong and independent corroboration is required to the extent of the present appellants to maintain their convictions and sentences. As per story of the prosecution the appellants Fayyaz, Muhammad Akbar and Khizar Hayat along with Mazhar Iqbal (since P.O.) have been attributed a joint role of inflicting hatchet blows on the left shoulder of Liaqat Ali deceased. No specific injury has been attributed to the said appellants and a joint role has been assigned to them. No hatchet was recovered from Fayyaz and Muhammad Akbar appellants to corroborate the allegation against them of inflicting hatchet blows to the deceased. Similarly no recovery was effected from Sher Muhammad appellant to corroborate the prosecution version that he inflicted a hatchet blow on the person of Liaqat Ali deceased. Although it has been alleged that hatchet P4 was recovered from the possession of Khizar Hayat appellant but Nazir, S.-I. (P.W.15) has admitted in his cross-examination that place of recovery of Khizar Hayat appellant and Umar Hayat appellant was the same house. He has further admitted that the room of recovery was open wherefrom the alleged recovery of hatchet P4 was affected. Taj Muhammad (P.W.9) is the other recovery witness of hatchet P4 allegedly recovered on the pointation of Khizar Hayat appellant and hatchet P5 alleged to have been recovered from the possession of Umar Hayat appellant. He has also admitted during cross-examination that at the time of effecting alleged recovery from the house of Khizar Hayat and Umar Hayat, their house was open. He has further admitted that the places were common and were visible for all persons. It is evident from the perusal of above mentioned evidence that the prosecution has failed to establish that the places of alleged recoveries of hatchets P4 and. P5 were in exclusive possession of either Khizar Hayat appellant or Umar Hayat appellant. The places of alleged recoveries were accessible and it was not in exclusive possession of either of the appellants, therefore, the alleged recovery of hatchet P4 from the possession of Khizar Hayat appellant and hatchet P5 from the possession of Umar Hayat appellant has not been proved by the prosecution. The story of prosecution in respect of role attributed to Umar Hayat appellant is also contradictory. It was alleged in Fard Bian' Exh. PC that Umar Hayat inflicted repeated hatchet blows on the back of Liaqat Ali deceased, whereas, while appearing before the court Muhammad Arshad (P. W.12) has stated that Umar Hayat gave 'a blow' with his hatchet which hit Liaqat Ali deceased on the back side of his chest. This witness has not stated that Umar Hayat appellant gave repeated hatchet blows on the back of Liaqat. Ali deceased. Similarly Muhammad Tufail (P.W.13) has stated that Umar Hayat appellant inflicted hatchet blow which hit on the back of the chest of Liaqat Ali deceased. This eye-witness has also not stated that Umar Hayat appellant inflicted repeated blows on the back of Liaqat Ali deceased and as such there is a contradiction in the prosecution story mentioned in the F.I.R. And put before the learned trial court regarding the role played by Umar Hayat appellant. We have already disbelieved the alleged recovery of hatchet from Umar Hayat appellant and Khizar Hayat appellant.
12. Now coming to the motive part of the prosecution it was alleged in Fard Blatt' Exh. PC that the motive behind the occurrence was the change of the turn of water of agricultural land between the appellants and the deceased Liaqat Ali, Muhammad Arshad (P. W,12) has admitted during his cross-examination that there is no land of Zafar, Mazhar and Nazir accused near the Mogga' which is alleged Lone of contention between the parties. He has also admitted during his cross- examination that he never produced any document relating to the motive of occurrence `Warbandi' before the police during the course of investigation. Similarly Muhammad Tufail (P. W.13) has also admitted in his cross-examination that in his presence the complainant Arshad had never produced any document relating to `Warbandi' (change of water) during investigation. He has further admitted that he himself had not seen any document relating to the dispute of Warbandi'
Although prosecution has produced a copy of application moved by Liaqat Ali deceased about implementation of the order of Warbandi Exh.PDF/1-4 (wrongly exhibited as Exh.DF) but even the said document does not establish the motive as alleged by the prosecution as no person was named in the above mentioned application Exh.PDF/1-4 moved by Liaqat All deceased and it was simply stated that 3/4 miscreants have refused to implement the order of`Warbandi' (change of water). It was not established by the prosecution that the present appellants had any grudge against Liaqat Ali deceased due to change of water, therefore, we are of the view that motive in this case as alleged by the prosecution has not been proved in this case.
13. Having considered all the pros and cons of the case the irresistible conclusion drawn by this Court is that the prosecution has failed to prove its case against Sher Muhammad, Fayyaz Ahmad, Muhammad Akbar, Khizar Hayat and Umar Hayat appellants beyond shadow of doubt. It is cardinal principle of law that if prosecution cannot prove its case beyond a reasonable doubt, the accused in such like cases is entitled to the behefit of the same not as a matter of grace but as a matter of right. Hon'ble Supreme Court of Pakistan in the case of Muhammad Akram v. The State (2009 SCM R 230 relevant page 236 para. 13) has observed as under: "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as a matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is a single circumstance which create reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right"
14. Therefore, Criminal Appeal No'. 1319, of 2006 is allowed, convictions and sentences recorded by the learned trial court against Sher Muhammad, Fayyaz Ahmad, Muhammad Akbar, Khizar Hayat and Umar Hayat appellants are set aside. Appellants are acquitted from the charge. Sher Muhammad appellant be released from the jail forthwith if not required to be detained in any other case. Fayyaz Ahmad, Muhammad Akbar, Khizar Hayat and Umar Hayat appellants are on bail. Their bail bonds and sureties shall stand discharged.
15. Now coining to the role attributed to Zafar Iqbal and Razzaq Ahmad appellants. According to the prosecution case, Zafar Iqbal appellant has been attributed the role of inflicting hatchet blow which landed on the left side of the head of Liaqat Ali deceased. Similarly, Razzaq Ahmad appellant has been assigned the role of inflicting hatchet blow which landed on the back side of the head of Liaqat Ali deceased. According to the statement of Dr. Shahid Naseem Iqbal -(P.W.1), on 13-8-2004, he medically examined Liaqat Ali deceased and found as many as 12 injuries on his person. Injury No. 2 was an incised wound on the left side of the head of Liaqat Ali deceased. Similarly injury No. 3 was an incised wound on the back of the head of Liaqat Ali deceased. The Post- mortem examination on the deadbody of Liaqat Ali deceased was conducted by Dr. Ghulam Abbas Nasir (P.W. 6) on 29-8-2004 at 8-00 a.m. According to his statement injury No. 2 was on temporal region 3 cm of left ear of Liaqat Ali deceased whereas injury No. 3 was on back of the head of Liaqat Ali deceased. The role attributed to Zafar Iqb.Al appellant and Razzaq Ahmad appellant has been supported by medical evidence of Dr. Shahid Naseem Iqbal (P.W.1) and his Medico-legal Report (Exh.PB), as well as, by medical evidence of Dr. Ghulam Abbas Nasir (P.W.6), post-mortem report Exh. PF, pictorial diagrams Exhs.PF/1 and PF/2. The prosecution case qua Zafar Iqbal appellant and Razzaq Ahmad appellant is further corroborated by recoveries of hatchet P9 on the pointation of Zafar Iqbal appellant and recovery of hatchet P8 from the possession of Razzaq Ahmad appellant.
Taj Muhammad (P.W.9) is the recovery witness of above mentioned hatchets. This witness was cross-examined at length but his evidence could not be shattered and nothing favourable to the appellants Zafar Iqbal and Razzaq Ahmad could be brought on the record. The above mentioned evidence of recoveries of hatchets from Zafar Iqbal appellant and Razzaq Ahmad appellant is further corroborated by positive reports of Chemical Examiner Exh.PBB, Exh.PCC, Serologist reports Exh.PDD and Exh. PEE.
16. We have disbelieved the motive part of the prosecution case. However, if the evidence of motive is excluded from consideration even then there is sufficient incriminating evidence available on the record against Zafar Iqbal and Razzaq Ahmad appellants. As discussed earlier, the prosecution case against the said appellants was fully established through the evidence of Muhammad Arshad (P.W.12) and Muhammad Tufail (P.W.13). The said witnesses stood the test of lengthy cross- examination but their evidence could not be shattered as far as the role of those appellants are concerned. The evidence of the said witnesses qua the role played. By Zafar Iqbal and Razzaq Ahmad appellants is supported by the medical evidence furnished by Dr. Shahid Naseem Iqbal (P.W.1) and Dr. Ghulam Abbas Nasir (P.W.6), as well as, by Medico-legal Report of Liaqat Ali Exh. PC, post-mortem report Exh. PF, pictorial diagrams Exh.PF/1 and Exh.PF/2..The prosecution case against Zafar Iqbal and Razzaq Ahmad appellants is further corroborated by the recoveries of hatchets P9 and P8 from the possession of the said appellants and reports of Chemical Examiner Exh.PBB, Exh.PCC and positive reports of Serologist Exh.PDD and Exh. PEE respectively, therefore, we hold that the prosecution has proved its case against Zafar Iqbal and Razzaq Ahmad appellants beyond the shadow of any doubt.
17. So far as the question of quantum of sentence of the appellants Zafar lqbal and Razzaq Ahmad is concerned, we have noted some mitigating circumstances in their favour, firstly, the cause of death of Liaqat Ali deceased was cumulative effect of the injuries attributed to the appellants, as well as, to their co-accused, who have been acquitted either by trial court or this Court and secondly, the prosecution has alleged a specific motive but has miserably failed to prove the same which has created doubt to the extent of the reasons due to which the occurrence took place. It is well-recognized principle by now that accused is entitled for the benefit of doubt as an extenuating circumstance while deciding his question of sentence as well. In this regard we respectfully refer the case of Mir Muhammad alias Miro v. The Sate (2009 SCM R 1188) wherein Hon'ble Supreme Court has held as under:-- "It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence"
' In another case Ansar Ahmad Khan Barki v. The State and another (1993 SCM R 1660), Hon'ble Supreme Court of Pakistan has held that the prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to the accused for the award of normal penalty of death. We are convinced that Zafar lqbal and Razzaq Ahmad appellants in the peculiar circumstances of this case deserve benefit of doubt to the extent of their sentences one out of two provided under section 302(b) of P.P.C.
19. Due to the above mentioned reasons the conviction of Zafar Iqbal and Razzaq Ahmad appellants under section 302(b), P.P.C. Awarded by the learned trial court is maintained but their sentences is altered from the death to imprisonment for life. The compensation awarded by the learned trial court and sentences in default thereof are maintained and upheld. The benefit of section 382-B, Cr.P.C. Is also given to the appellants.
20. For the foregoing reasons Criminal Revision No.869 of 2006 filed by the complainant seeking enhancement of sentences stands dismissed.
21. Consequently. With the above said modification in the sentence of Zafar Iqbal and Razzaq Ahmad appellants, Criminal Appeal No. 1321 of 2006 filed by Razzaq Ahmad appellant and Criminal Appeal No. 1318 of 2006 filed by Zafar Iqbal appellant are. Hereby, dismissed. Murder Reference (Murder Reference No. 638 of 2006) is answered in the negative and death sentences of Zafar Iqbal and Razzaq Ahmad appellants are not confirmed.
22. However, before parting with the judgment, we may observe here that the observations made in this judgment shall not influence the case of the absconding accused namely, Mazhar Iqbal (since P.O.) and his case shall be decided on its own merits.