Syed Muhammad Kazim Raza Shamsi, J.--Muhammad Pervaiz, Muhammad Aslam, Mansab Khan, Habib-ur-Rehman, Muhammad Latif, Mazhar Iqbal and Abdul Aziz had faced charge of the murder of Muhammad Aslam and injuring Ansar Iqbal and Muhammad. Latif framed in a private complaint filed under Sections 302, 324, 337- A(ii), 337-L(2), 148 & 149, PPC and at the conclusion of trial, vide judgment dated 26.1.2007 passed by the learned Sessions Judge, Khushab, Muhammad Pervaiz, Mansab Khan and Muhammad Latif were convicted and sentenced in the following terms:-- Muhammad Pervaiz appellant: convicted under Section 302(b), PPC and sentenced to death, further burdening him with compensation of Rs, 1,00,000/- to be paid to the legal heirs of the deceased Muhammad Aslam or in default of the payment thereof to suffer six months simple imprisonment.
Mansab Khan appellant: convicted under Section 337-A(ii), PPC for causing injury to Ansar Iqbal complainant and sentenced Arsh equal to 5 % of the Diyat and to suffer five years rigorous imprisonment.
Muhammad Latif appellant: convicted under Section 337-L(ii), PPC for causing hurt to Mansoor PW and sentenced to two years rigorous imprisonment with payment of Daman of Rs, 15000/-to be paid to the injured.
Mansab Khan and Muhammad Latif were also extended benefit of Section 382-B, Cr.P.C.
Remaining co-accused Muhammad Aslam, Mazhar Iqbal, Habibur Rehman and Abdul Aziz were given benefit of doubt and acquitted accordingly. The acquittal so recorded by the learned trial Court remained unchallenged in any appeal.
2. A Murder Reference Bearing No, 146/2007 has been forwarded by the learned trial Court with the request for the confirmation of death sentence awarded to Muhammad Pervaiz appellant whereas Muhammad Pervaiz, Mansab IChan and Muhammad Latif appellants have assailed their convictions and sentences by filing Criminal Appeal No, 73/2007.
3. On the other hand Ansar Iqbal complainant by filing separate Criminal Revision No, 144 of 2007 has prayed for enhancement of the sentences awarded to Mansab Khan and Muhammad Latif appellants-convicts. Since all the afore-noted matters relate to one occurrence and common convicting judgment has been assailed by the parties, as such all the afore-noted matters have been taken up for decision through this single judgment.
4. During the pendency of the appeal, Muhammad Latif and Mansab Khan were admitted to bail through suspension of their sentences by this Court vide order dated 9.4.2007 and 2.10.2007 respectively.
5. Criminal machinery was set into motion by Ansar Iqbal complainant (PW-3) by making an application to Mehr Ahmad Khan SI (PW-11), on 27.9.2004 at 10.00 a.m. and it was alleged therein that at about 8.30 a.m. he along with his father Muhammad Aslam, brother Amjad Naseem (not examined) and Mamoon Mansoor Ahmad (PW-4) were coming to Quaidabad and when they reached near the Saim Nala, they saw Mansab Khan armed with gun .12 bore, Muhammad Pervaiz with rifle, Muhammad Aslam, Habib-ur-Rehman with pistol, Muhammad Latif armed with gun .12 bore along with two unknown persons standing across the Saim Nala. On seeing the afore-noted persons, Mansoor Ahmad went to the accused persons for making request but when he reached near them, Habib along with two unknown persons started beating him. On seeing the beating given to Mansoor Ahmad, Muhammad Aslam and Amjad Naseem ran towards the accused persons whereupon Muhammad Pervaiz fired with his rifle on Muhammad Aslam which hit on the left front side of his chest while Mansab Khan fired at the complainant Ansar Iqbal with his, gun hitting on the front side of his chin. The assailants thereafter fled away from the spot while brandishing their weapons.
6. The motive behind the occurrence reportedly was that on 26.9.2004, the assailants were shooting the Quails (Batair) in the paddy crop, which was cultivated near the house of the complainant and when they were forbidden by them (complainant party), a scuffle had taken place between the two parties. However, the complainant party admonished the accused persons upon which they felt insult and in consultation with each other, they murdered Muhammad Aslam and injured the complainant and his Mamoon. On this report, formal FIR Ex.PB was recorded at the police station.
Subsequently, Ansar Iqbal the complainant (PW-3) by adding Mazhar Iqbal and Abdul Aziz who were initially shown to be unknown assailants, lodged private criminal complaint against seven persons. Mazhar Iqbal and Abdul Aziz were shown to be armed with gun and rifle respectively and role of beating to Mansoor Ahmad was ascribed to them. Rest of the allegation against the remaining assailants were remained same. Further in order to justify institution of complaint, the allegation against the police regarding dishonest investigation was also made.
7. Mehr Ahmad Khan SI (PW-11) after recording the FIR (Ex.PB) started the investigations and completed the same. On 24.10.2004 he arrested Muhammad Pervaiz, Muhammad Aslant, Mansab Khan, Habib-ur Rehman and Muhammad Latif on direction of PW-12 ljaz Hussain Khan DSP who subsequently conducted the investigation of the case on the orders of District Police Officer.
8. On 28.10.2004, Mehr Ahmad Khan SI on the pointation of Muhammad Latif recovered a gun .12 bore from a residential room along with its license and on the same day, he arrested Mazhar Iqbal and Abdul Aziz co-accused. On 6.11.2004, again Muhammad Latif led to the recovery of pistol .30 bore as per recovery memo. Ex.PD .
9. After completion of the formalities, CW-2 Mehr Ahmad Khan SI did not recommend for the prosecution of Muhammad Pervaiz, Mansab Khan, Mazhar Iqbal, Habib-ur-Rhman, Muhammad Aslam and Abdul Aziz and placed their names in Column No, 2 of the challan In the meanwhile, private criminal complaint had been instituted by Ansar Iqbal in which all the nominated persons were summoned to face trial.
10.The learned trial Court after framing the charge against seven persons proceeded to record the statement of 12 PWs and two CWs as the respondents/accused nominated in the private complaint did not plead guilty and claimed for a trial. After the closure of prosecution evidence, the same was confronted to the accused by recording their statements under Section 342, Cr.P.C., who controverted all the allegations and professed their innocence. However, Muhammad Pervaiz, Mansab Khan and Muhammad Latif appellants in reply to a question "Why this case against you and why the PWs have deposed against you?; took up almost the similar stand which is reproduced hereunder:-- "In fact on the day of occurrence at about 4.00 p.m. Muhammad Aslam deceased while armed with gun and some other persons who were not the witnesses of this case and one of them was carrying the licensed pistol of Mansoor Ahmad attacked some minors of the Kallu tribe namely Ahmad Sher son of Noor Muhammad, Muhammad Nawaz son of Alamsher, Ghulam Muhammad son of Fateh Muhammad, Hussain Ahmad son of Muhammad Khan, Habib son of Hayat, Abdul Rehman son of Sher Muhammad, Muhammad Aslam son of Muhammad Ramzan, Sher Muhammad son of Atta Muhammad and there was exchange of firing and Muhammad Aslam received injuries during this cross firing. But since the complainant party did not know the names of the afore-said minors, therefore, they picked up the adult persons of Kallu clan and made a false case against them. During Investigation, I along with my co-accused was found innocent. Police also collected evidence in this respect and our names were placed in Column No,. 2 of the challan being innocent."
11.All the three convicts-appellants along with their acquitted co-accused did not produce any defence evidence nor appeared in the witness box as their own witness for disproving the prosecution evidence as required u/S. 340(2), Cr.P.C.
12.Dr. Ehsan Ullah Danish (PW-8) on 27.9.2004 firstly examined Ansar Iqbal injured and found single injury i.e.: "0.5 x 0.5 cm lacerated wound bone deep on the front of chin justlateral to the mid line. (on the right side. Patient claimed of a gun shoot injury."
According to the Medical Officer, no burnt margin was seen. The injury was caused by fire-arm within the duration of about 12 hours. The injury was declared as Jurh Mudihah.
13.At about 4.30 p.m. the said Medical Officer examined Mansoor Ahmad and found the following injury on his person:-- 7Slant marks (multiple) were seen on the mid posterior back and left mid region. Few presents on the upper posterior chest as well."
According to the doctor the said injury was caused with blunt weapon within the duration of 12 hours. The injury was declared falling under Section 337-L(2), PPC.
14.Dr. Ehsan Ullah Danish on the same day at about 5.30 p.m. also conducted post-mortem examination on the dead body of Muhammad Aslam deceased and found the following injury on his person:- "1 x 0.9 cm entrance wound almost in mid clavicular line with inverted, partially burnt margin in the third intercoseteral space. It was roughly circular shaped. On opening the chest the left lung was collapsed and the right lung was hipher inflated. The bullet appears the left lung near its route and got through its postural aspect. It then damaged the area of the great vessels in the area of right atrium. (Superior venaciva, azyges vane etc.) About 3 liters of free blood was recovered from the left thorax cavity. Heart escaped gun shot but its pericardium was injured on the right side. Bullet was discovered from postural intercostals space between 9th and 10th ribs postural. Heart was found empty as were the great vessels. Suggesting sever hemorrhage. Corresponding hole of gun shot was noticed on the pocket of kameez. Rigger mortis was well developed."
It was explained by the doctor in his statement that he had described the injury partially burnt margins but they were not classically burnt margins usually seen in the gun shot injuries. They may be because of a bullet fired nearer to the accused causing the doubtful burning of the margin or it may be because of a bullet fired from some distance and taking some stain along with it before passaging the body of the victim or this discoloration may have been acquired by the dead body during its wake towards post-mortem. He further left this determination subject to the police investigation.
15.According to the opinion of the doctor, the deceased had received injury to the nearer area of the apex of the left lung and the injury was sufficient to cause death in the ordinary course of nature. He described the probable time elapsed between injury and death was about 5 to 10 minutes and between death and post-mortem was 12 to 20 hours.
16.Learned counsel for the appellants while opening the arguments submitted that there are glaring contradictions in the statements made by Ansar Iqbal complainant (PW-3) and Mansoor Ahmad (PW-4) vis-a-viz with the statement of PW-8, the Medical Officer who had shown partially burnt margin around the injury received by Muhammad Aslam which injury according to the PW-3 and PW-4 was not caused from the close-range, thus, the benefit of this contradiction is to be extended in favour of the appellant Muhammad Pervaiz. He has also discussed the time of occurrence while pointing out towards the statements of PW-3 and 4 and submitted that the occurrence as alleged by PW-3 had not taken place at the time prescribed by him. He further added that the prosecution has miserably failed to establish the motive part of the case and as observed by Mehr Ahmad Khan SI (PW-11) the same could not be established by PW-3 and PW-4 in their statements and during investigations the same was found fake. Learned counsel for the appellants further maintained that Mazhar Iqbal and Abdul Aziz as admitted by PW-3 and PW-4 were previously known by the complainant party but they did not name them initially when they mentioned two unknown persons in the FIR but subsequently when the . private criminal complaint was Med, they were roped in the case that too, without providing any evidence regarding their involvement. They both along with Habib-ur-Rehman had allegedly beaten Mansoor Ahmad but that beating is not supported with visible injuries. It is further elaborated by learned counsel for the appellants that according to the investigations, the appellant and other acquitted accused were not recommended for the prosecution by Investigating Officer as the case against them was not proved by the complainant side, so, their conviction even in the absence of the evidence against them is very surprising. It is also stated by the learned counsel that the version made by PW-3 and PW-4 is not corroborated by any other independent piece of evidence like the recovery of weapon at the instance of the appellants, thus, the case is highly doubtful and the benefit of which is to be extended in favour of the appellants. Learned counsel in this connection has placed reliance upon the case of Muhammad Ishaque Vs. The State (2007 SCM R 108) as well as upon the case reported as 2013 SCM R 383.
17. Conversely, while controverting the arguments of learned counsel for the appellants, it is the argument from the complainant side that the appellants have been nominated in the private complaint with specific role of firing and beating given to the injured PW-4 and the deceased which fact was duly established by the complainant by producing confidence inspiring evidence, thus, the learned trial Court has rightly convicted Muhammad Pervaiz for the murder of Muhammad Aslam deceased. In respect of revision petition seeking enhancing sentences of Muhammad Latif and Mansab Khan, it is the argument of the learned counsel for the complainant that they in furtherance of their common object had participated in the occurrence, therefore, they should also be convicted under Section 302, PPC for actively participating in the occurrence but the learned trial Court has erroneously convicted both of the appellants only under Sections 337- A(ii) and 337-L(2), PPC. In this scenario, learned counsel for the complainant has prayed for the dismissal of the appeal filed by the appellants and prayed for enhancement of sentences in respect of Muhammad Latif and Mansab Khan, convicts.
18.We have given due consideration to the submissions made by the learned counsel for the parties and have also examined the record with their able assistance.
19.The case of the prosecution as set up initially in Ex.PB was that with the fire of Muhammad Pervaiz appellant, Muhammad Aslam lost his life while Habib-ur Rehman and two unknown persons gave beating to Mansoor Ahmad PW-4 and that fire of Mansab Khan also hit on his chin. In order to prove these allegations, the statements of PW-3 and PW-4 are on record, which indicate that both the PWs along with Muhammad Aslam were present on the one side of the Seam Nala while the accused party allegedly was present on the other side of drain. The distance of the presence of the parties shown in the site-plan (Ex:PL), is not so close to the deceased Muhammad Aslam that if later is fired at that could contain burning around the edges of the injuries. The presence of the appellant Muhammad Pervaiz has been shown at distance about 20 feet from the deceased, thus, if the evidence of PW-3 and PW-4 is admitted as correct that he had fired from other end of the drain even then the possibility of appearing of burning around the injury is not possible. Usually the burning on the wound occurred when the muzzle is at a distance of 5 to 6 feet from the victim but from such a long distance,. as mentioned in the site-plan, appearance of the burning on the injury of the deceased was not possible. This fact goes to establish that in fact both the PWs i.e. Ansar Iqbal and Mansoor Ahmad were not present at the time of occurrence. Similarly, Amjad Naseem another brother of the complainant was also present at the spot as stated by PW-3 in his statement who did not receive any injury at his person nor he was produced as a witness in the witness box. He was also a material prosecution witness who could narrate incident but he was withheld by prosecution for the reasons best known to it. Another factor denying the presence of PW-3 at the place of occurrence is that the wound received by him at his chin, according to the Doctor, injury on the person of PW-3 was not with fire-arm. The witness further was not able to describe the nature of weapon, so, it can easily be gathered that there is material contradiction in the medical evidence vis-a-viz the ocular account as according to the statement of eye-witnesses the fire was made from a long distance while the medical evidence discloses that it was a close range fire. At this stage, the case of Muhammad Ishaque (supra) comes to rescue of the appellants, in which it was observed by the apex Court that in such like case, ocular account cannot be believed.
20. Another factor, which is noteable from the evidence i.e. lack of proof of the motive as alleged by PW-3 in his report as well as in the complaint. Bare statement of the witness to the effect that a day earlier, the assailants were shooting the quail (Batair) in the field situated nearby the house of the complainant side and when they were restrained a scuffle had taken place between the parties is not believeable, for the reason that this fact could not sufficiently be proved in the statements of both eye-witnesses nor in investigation, this incident was ever established. Further all the accused including the appellants were found not involved in the incident and in this connection, no crime weapon could be recovered at their instance. CW-2 hi his statement deposed that he was not able to collect any crime empty from the spot thus, the case of the prosecution against the appellants remained uncorroborated regarding firing made by appellants with their weapons. The learned trial Court thus convicting three appellants has misread the material available on the record, so the finding of conviction against the three appellants is not sustainable.
21. Parting with this judgment, we feel no hesitation in observing that the case in hand has not been proved by the prosecution against the appellants to its hilt. The evidence so relied upon by the prosecution is neither sufficient nor is cogent and convincing to believe that the occurrence mentioned in the FIR or in the complaint had taken place in such a manner and same was seen by the eye-witnesses.
22.In view of above, we allow Cr1. Appeal No, 73 of 2007 and set aside the impugned convictions and sentences recorded against the three appellants, namely, Muhammad Pervaiz, Muhammad Latif and Mansab Khan, who are acquitted from the charges by extending them the benefit of doubt Crl. Revision No, 144 of 2007 filed by Ansar Iqbal complainant having no merit is also dismissed. Mansab Khan and Muhammad Latif appellants are already on bail whose bail bonds are discharged and the sureties are relieved from the liability. Muhammad Pervaiz appellant is in jail, who shall be released forthwith if not required in any other case.
23.Murder Reference No, 146/2007 is answered in Negative and death sentence of Muhammad Pervaiz appellant is riot confirmed.