' WAQAR AHMAD SETH, J.---Convict-appellants Muhammad Riaz son of Sharif Gul, Qaiser Shahzad and Faisal Shahzad sons of Muhammad Riaz were tried under sections 302/324/34, P.P.C. And on conclusion of trial, vide impugned judgment dated 20-7-2009, they were convicted under section 302(b)/34, P.P.C. And sentenced each of them to suffer imprisonment for life and appellants were directed to pay jointly compensation amounting to Rs,21,60,000 in equal shares to the legal heirs of all the three deceased failing which the convicts appellants were directed to be kept in custody till the realization of compensation amount and under section 324/34, P.P.C. To suffer 2/2(sic.) years'
R.I. Benefit of section 382-B, Cr.P.C. Was, however, extended to him. Convict-appellants have filed Criminal A. No,82-A of 2009 against their conviction and sentences whereas complainant has filed Cr.R.No,29-A of 2009 for enhancement of sentences. Since both the matters have arisen out of one F.I.R. And the impugned judgment, therefore, these are proposed to be disposed of by this single judgment.
2. Briefly stated facts of the prosecution case are that on 1-11-2005, Abdul Sattar Khan Inspector/SHO Police Station Saddar got information during mobile patrol about the occurrence and rushed to the Emergency Ward of the hospital, where on the same date at 2120 hours complainant Haji Chanzaib reported that he along with his step-father Ali Gohar and his sons, namely, Qaisar and Faisal were present in his baithak after offering Namaz-e-Tarveeh. In the meanwhile, accused Qaisar and Faisal sons of Muhammad Riaz and Muhammad Riaz son of Saleem Gul, duly armed with fire arms, came and started firing with intention to kill them, as a result of which, step-father of complainant Ali Gohar was hit and died on the spot whereas sons of complainant Qaisar and Faisal sustained injuries while complainant luckily escaped. Accused were seen by complainant And Shaukat in the light of bulb. The son of complainant namely Faisal succumbed to his injuries in the hospital Motive for the occurrence was stated to be dispute regarding proposal for matrimony. Complainant charged all the three accused for the murder of his step-father and son and injuring his son.
3. After completion of investigation, challan was put in court and trial commenced. Accused pleaded not guilty and claimed trial. The prosecution examined twelve witnesses in order to prove its case. After close of prosecution evidence statements of accused were recorded under section 342, Cr.P.C., who did not wish to be examined on Oath under section 340(2), Cr.P.C. Nor produced any evidence in defence.
4. At the conclusion of trial: after hearing the arguments of learned counsel for the parties, with reference to the material on file, the learned trial Judge convicted and sentenced the accused appellants, as noted above.
5. Learned counsel for appellants contended that prosecution has failed to prove its case against appellants beyond any shadow of doubt. It was argued that it is a blind occurrence and there is unexplained inordinate delay of two hours in lodging the report. It was argued that according to contents of F.I.R. The occurrence allegedly took place in the taithak' of complainant Haji Chanzeb whereas in the charge-sheet the place of occurrence has specifically been mentioned as taithak' of Malik Aman and the complainant and Shaukat P.W. Were sitting along with the deceased at the time of occurrence and had seen the occurrence in the light of bulb but it is strange that how the complainant and Shaukat P.W. Escaped unhurt in case of indiscriminate firing whereas the three deceased hit and died as a result of such firing. It was also argued that complainant and P.W.
Shaukat are closely related to the deceased party and are inimical towards the accused party.
There is also a reference of civil case between the accused and the complainant party, which was allegedly decided in favour of accused party and there is nothing on record regarding matrimonial dispute, which has been alleged as motive in the F.I.R. By the complainant. He also argued that all the P.Ws. Are highly interested witnesses and have contradicted each other on thaterial points.
Learned counsel, while concluding his arguments, submitted that appellants are entitled to be acquitted by extending benefit of doubt, as a single doubt in the case would be sufficient for the purpose of acquittal.
6. On the contrary, learned State counsel assisted by learned counsel for the complainant opposed the arguments advanced by learned counsel for appellants and argued that occurrence has taken place in the baithak of Malik Aman and complainant reported the matter regarding brutal murder of three innocent persons by indiscriminate firing of accused with promptitude. It was argued that ocular account has been furnished by the natural witnesses, which is trustworthy and confidence inspiring and convict appellants are the persons responsible for the death of three deceased. It was also argued that medical as well as recoveries of crime empties from the spot and crime weapons at the pointation of convict appellants fully supported the prosecution version and there is no ground for false implication of convict appellant. It was concluded that sentence awarded by the trial Court would meet the ends of justice as prosecution has been able to prove its case against convict appellant beyond any shadow of doubt.
7. We have heard the learned counsel for the parties at great length and gone through the record with their valuable assistance.
8. The ocular account has been furnished by P.W.9 Haji Chanzaib complainant and P. W.10 Shaukat Ali. The complainant (P.W.9) in his examination-in-chief stated that the convict appellants duly armed with fire arms came and started firing, as a result of which, his step-father, namely, Ali Gohar was hit and died on the spot whereas his sons namely Qaisar and Faisal were injured with the firing of accused. The complainant and Shaukat were also fired at but luckily they were saved.
The complainant and Shaukat P.W. Have seen the accused in the light of bulb, which was lit in the `baithak' at the time of occurrence. The complainant in his cross-examination admitted that P.W.
Shaukat is his nephew (son of his sister) and P.W. Shaukat was already in the hospital when he reached the hospital. He further stated that he did not accompany the injured person, the deceased, neither he lifted the dead body nor he knew about the vehicle and driver. He also introduced existence of electric tithe in the baithak, the place of occurrence, besides the bulb. In support of existence of tube he stated "if it is proved that no tube has taken into possession then my statement will be false". The complainant further stated that "three persons were firing with kalashnikovs". According to the complainant T.V., mentioned by P.W. Shaukat, was in the room adjoining' the baithak. The further stated that "Shoukat P.W., who is my sister's son, had a civil litigation with Riaz accused. There took about 17/18 years and it is pending now in the Supreme Court". The complainant also admitted registration of criminal case against him, his sons, nephews and brothers.
9. P.W.9 stated that he had come to the house of his maternal uncle for hearing T.V. News. He reached the T.V. Room and on hearing talking in the `baithak' when he entered in the baithak, the bulb was lit there. He found Ali Gohar his maternal grandfather, Haji Chanzeb and his two sons Qaiser and Faisal were sitting, accused Riaz was armed with pistol whereas rest of Iwo accused Qaiser and Faisal were armed with kalashnikovs, who opened firing and as a result thereof Ali Gohar was hit and died on the spot whereas Qaiser and Faisal were injured. The people gathered and the injured were taken to the hospital, where Faisal died in the hospital and Qaiser was shifted to Ayub Medical Complex Abbottabad who expired after 5/6 days. The P.W. Charged the accused for the murder and firing upon him and Haji Chanzeb. In cross-examination he admitted that he was present on the spot per chance because he had gone there to watch T.V. And at that time there were three ladies in the tents of the house. He also stated that "it is incorrectly recorded in my police statement that all the accused were having kalashnikovs" and "on my left Qaisar was standing and on my right Faisal was standing". His statement was recorded about 5/6 days after, the occurrence. He further stated that "it is wrong that all the three accused were duly armed with kalashnikovs, in fact one of the accused was armed with pistol while rest were armed with kalashnikovs".
10. P.W.12 Hassan Din Khan SI during the course of cross-examination stated that he has not taken any T.V. Into possession. Shaukat P.W. Did not tell about the presence of T.V. Nor he pointed to any T.V. In the room. He further stated that the P.Ws. Were saved by the grace of God otherwise they were in the line of fire. He took only bulb from the spot. He has not taken any tube into possession, as according to him, there was no tube on the spot. He recovered two unlicensed kalashnikovs and one .30 bore pistol.
11. The occurrence took place at 21-00 p.m. On 1-11-2005 when there was complete dark in the area.
The occurrence is allegedly witnessed by the complainant and P.W. Shaukat, who is nephew of the complainant (sister's son), therefore, these are close relatives of the deceased and their testimony is to be looked and adjudged minutely with care and caution. P.W.10 Shaukat had allegedly come to the house of complainant for watching T.V. News. According to complainant all the accused duly armed with kalashnikovs came and immediately started firing, as a result of which, Ali Gohar was hit and died 'on the spot whereas Qaiser and Faisal were injured, who later on succumbed to their injuries while P.W. Shaukat found Ali Gohar his maternal grandfather, Haji Chanzeb and his two sons Qaiser and Faisal sitting, 'accused Riaz was armed with pistol whereas rest of two accused Qaiser and Faisal were armed with kalashnikovs, who opened firing and as a result thereof which Ali Gohar was hit and died on the spot whereas Qaiser and Faisal were injured. P.W.10 Shaukat has categorically stated that on his left side Qaisar was standing whereas on his right side Faisal was standing and it is strange and does not appeal to a prudent mind that as to how the said P.W.
Shaukat and the complainant managed to escape unhurt in case of indiscriminate firing made by three accused with their respective kalashnikovs. P.W.10 had reached the hospital whereas the local police arrived there after 5/6 minutes of his arrival whereas report was lodged by the complainant on his reaching there after a considerable delay. Had the P.W.10 Shaukat seen the occurrence he would have there and then lodge the report about the occurrence and could not remain mum till arrival of complainant. The very report seems to be made after preliminary inquiry, consultation and deliberation. Three ladies were allegedly present inside the house but none of them had seen the occurrence. None from the neighbours had allegedly seen the occurrence or decamping the accused after commission of crime. The complainant later on introduced existence of electric tube at the time of occurrence, which was strongly negated by the I.O. The marginal witnesses of recoveries of unlicensed arms and ammunitions were allegedly called from the baithak of Haji Chanzeb complainant and, as such, they cannot be believed and there is nothing on record that arms and ammunitions recovered at the pointation of accused appellants were actually owned and possessed by them and used as crime weapon in the commission of crime, therefore, evidence regarding recoveries of crime weapons is disbelieved. Both the P. Ws. Are found contradicting each other on material aspects of the case i.e, crime weapons, source of light, manner and mode of attack, therefore, they are found not confidence inspiring and trust worthy and cannot be believed.
12. In case "Muhammad Arif Baloch and another v. The State and another" reported as 2009 SCM R 536, it was held as under:-- "Appraisal of evidence---Prosecution witnesses were interested witnesses and their statements suffered from material improvements, which could not be relied upon".
13. In case "Muhammad Hussain v. The State" reported as 2008 SCM R 345, it was held:- "In order to sustain conviction on capital charge, evidence must come from independent and unimpeachable ,source rather than from tainted and inimical witnesses without any independent corroboration---Supreme Court converted petition for leave to appeal into appeal and set aside conviction and sentence awarded to accused---Appeal was allowed."
14. In the instant case motive for the crime is stated to be dispute regarding proposal for matrimony but no witness or evidence for the corroboration of the same has been produced in support thereof. Once motive is alleged, the prosecution is duty bound to prove the same. In the present case, the prosecution has badly failed to prove the motive, as alleged against the accused, which seems to be shaky and does not appeal to the prudent mind.
15. Prosecution has to prove its case beyond any shadow of doubt. The evidence produced by the prosecution should prove uninterrupted chains to involve the accused for commission of offence. If the present important chains to connect the accused in the present case are missing, therefore, this has shrouded the entire prosecution story under the clouds of doubt.
16. A cumulative effect of what has been discussed above would lead us to a irresistible conclusion that there is inordinate unexplained delay in lodging the F.I.R., which seems to have been recorded after preliminary investigations and due deliberation.
17. In view of the above, it appears that prosecution has suppressed material facts and the occurrence is shrouded in mystery, as, under what circumstances, in what manner, at what time and by whom the deceased was done to death Thus, it can be safely concluded that either it is a case of no evidence or the occurrence did not take place in the manner as suggested by the prosecution. The prosecution has failed to prove its case against the appellants beyond any shadow of doubt and by extending benefit of doubt, the appellants are acquitted of the charge.
18. As in the present case, the defence has established number of serious doubts, which have damaged the entire prosecution case, as mentioned above, whereas in case of Ghulam Qadir v.
State reported as 2008 SCM R 1221 wherein it has been held that:-- "For the purpose of benefit of doubt to an accused, more than one infirmity is not required---Single infirmity creating reasonable doubt in the mind of a reasonable and prudent person regarding the truth of charge, makes the whole case doubtful". (The said dictum is based upon the case of Muhammad Luqman v. State PLD 1970 SC 10).
19. Consequently, Criminal Appeal No,82-A of 2009 is allowed. Impugned conviction and sentences of convict-appellants are hereby set aside and they are acquitted of the charge. Appellants be set free forthwith if not required in any other case. Cr. R. No,29-A of 2009 filed by complainant for enhancement of sentences stands dismissed.