' SYED MUHAMMAD KAZIM RAZA SHAMSI, J.---After having faced trial in case F.I.R. No,2 dated 3-1- 2007 registered under sections 302, 396, 397, 324, 337F(v), 337F(iii), 34, P.P.C. At Police Station Chowk Azam District Layyah, the appellants Ghulam Mustafa son of Muhammad Sadiq, Muhammad Iqbal son of Sultan Ahmad, Muhammad Asif Riaz alias Tanveer son of Muhammad Riaz, Muhammad Tafseer alias Ashiq Hussain son of Muhammad Iqbal and Muhammad Anwar alias Mushtaq son of Noor Muhammad, were convicted and sentenced to death by the learned Sessions Judge, Layyah for committing "Qatl-e-amd" of Saeed Ahmad alias Muhammad Nawaz and injuring Muhammad Sharif, in the following manner:-- {{DATA MISS ARANGE}} Under section 302 read Sentence to death with fine of Rs,50,000 each, in with section 396, P.P.C.
Default of payment of fine to further suffer simple imprisonment for six months. Under section 397, Rigorous Imprisonment for seven years with fine P.P.C. ' of Rs,10,000 each and in default of payment of fine, to further undergo simple imprisonment for six months. Under section 324, Rigorous imprisonment for ten years with fine of P. P. C. Rs,10,000 each, in default of which to further undergo six months' S.I.
Under section 337F(v), Five years rigorous imprisonment with fine of P.P.C. Rs,5,000 each, in default whereof to further suffer six months' S.I.
Under section 337F(iii), Three years' R.I. As Ta'zir with Daman of P.P.C. Rs,3,000 each and in default of payment of Daman to further suffer simple imprisonment for six months. {{DATA MISS ARANGE}} ' All the sentences were directed to run concurrently with the observation that benefit of section 382-B, Cr.P.C. Is withheld as the appellants committed the murder of a person and injured another during the dacoity.
2. The learned trial Court has sent Murder Reference No,4 of 2009 under section 374, Cr.P.C. Seeking confirmation of death sentences awarded to all the aforementioned appellants who have also challenged their convictions and sentences by filing separate appeals. As all the matters are interconnected as such, the same are being decided by this single judgment.
3. Succinctly, the story as narrated in the F.I.R. Exh.PM/1 is that the complainant Tahir Naveed Ahmad (P.W.11) made a statement/complaint (Exh.PM) alleging that on the night of 2nd/3rd January, 2007, he along with Saeed Ahmad alias Muhammad Nawaz, his brother, Muhammad Sharif and Haji Bashir Ahmad were salting the leathers purchased by them on Eid in their godown and then Bashir Ahmad slept in the room while Muhammad Sharif and the complainant Tahir Naveed Ahmad slept in the Verandah and Saeed Ahmad alias Muhammad Nawaz slept under the Kikar tree on a cot lying there, when at about 3-00 a.m., Saeed Ahmad alias Muhammad Nawaz called them to wake up upon which call the complainant and Muhammad Sharif awoke while Bashir Ahmad also came out of the room after hearing the noise when they saw that four persons out of whom two were wearing white Qameez Shalwar and were of wheat (Gandami) colour, two were of longer height and two were of middle height, out of them two were armed with rifles and other two were armed with pistols who were seen in the light of bulb; that all the four persons claimed the amount from them and flared up on their refusal while one of them made two successive fires which hit Saeed Ahmad alias Muhammad Nawaz on his right shoulder and left ankle while the other person also fired hitting on the upper part of left leg of Muhammad Sharif which passed through the same; that the other two persons while making fires threatened them not to come forward; that many persons gathered there and the accused persons fled away by making continuous firing and went towards west towards the metalled road and that both the injured were taken to hospital.
4. On 3-1-2007, Syed Rameez Bokhari, Inspector/I.O. (P.W.13) reached at RHC, Hospital, Chowk Azam where he recorded the statement of the complainant Tahir Naveed Ahmad (Exh.PM) and sent the same to police station for registration of formal F.I.R. He prepared injuries statements of Saeed Ahmad and Muhammad Sharif, injured Exh.PB and Exh.PE. He prepared the injury statement of Saeed Ahmad, deceased (Exh.PG), inquest reports Exh.PJ. He also collected two empties of the pistol .30-bore (P-10/1-2) and three crime empties of the rifle (P-11/1-3) vide I recovery memo Exh.PS. On 31-1-2007, he arrested the accused Ghulam Mustafa and on 4-2-2007, he (1.0.) got recovered .30-bore pistol (P-13) along with two live bullets (P-14/1-2) vide recovery memo Exh.PT.
He also prepared the site plan of the recovery place Exh.PT/1. He arrested Muhammad Iqbal, accused on 6-2-2007 and got recovered from him the motorcar (P-4) and took into possession same on 7-2-2007. He got prepared the scale-wise site plan in duplicate from Patwari. He arrested accused persons, namely, Muhammad Asif Riaz, Muhammad Tafseer and Muhammad Anwar after seeking the permission of the court. Muhammad Asif Riaz, accused led to the recovery of rifle .44- bore (P-15) along with three, bullets (P-16/1-3) which were taken into possession vide recovery memo Exh.PU While in the police custody, on 8-3-2007, the accused Muhammad Tafseer led to the recovery of rifle (P-17) along with two live bullets (P18/1-2) which were taken into possession vide recovery memo (Exh.PV). The I.O. Stated that on the same day Muhammad Anwar, accused led to the recovery of pistol (P-19) with three live bullets (P-20/1-3) which were taken into possession vide recovery memo Exh.P.W. He recorded statements of P. Ws. Under section 161, Cr.P.C. And after concluding investigations, forwarded challan to the court for further proceedings.
5. After receipt of challan, the accused were charge-sheeted under sections 302/396/397/324/337F(iii)/337F(v)/34, P.P.C. For Qatl-e-amd of Saeed Ahmad alias Muhammad Nawaz deceased and injuring Muhammad Sharif, to which they denied and claimed trial, as such, the case was fixed for prosecution evidence. The prosecution in order to prove the charge, examined 13-witnesses and gave up evidence of Sarfraz Ali, Haji Bashir Ahmad, Ashiq Hussain, Constable and Riaz Ahmad, whereafter it closed evidence by tendering report of Chemical Examiner (Exh.PY), report of Serologist (Exh.PZ) and reports of Forensic Science Laboratory Exh.PAA and Exh.PBB.
6. Dr. Muhammad Yousaf, (P.W.2) on 3-1-2007 examined Saeed Ahmad alias Muhammad Nawaz, injured, and observed following injuries on his body:-- "(I) A firearm wound of' entrance measuring .75 cm x 1/2 cm at lateral aspect of right buttock, 12 cm lateral to the right anterior, superior iliac spine. No blackening or burning was present. The edges were inverted. There was another lacerated wound measuring 2 cm x 1.5 cm with averted margin at lateral aspect of left buttock, 17 cm away from the left anterior superior iliac spine. It was wound of exit. Holes corresponding to wounds were present in clothes which were bloodstained.
(2) A fire-arm wound of entrance measuring 1/2 Cm x 1/2 cm at the medial aspect of left ankle (at medial maleolus) no blackening or burning was present. There was another lacerated wound measuring 3 cm x 1 cm at the outer border of left foot, 3 cm prornimal to the metaraso-phalange joint of the little toe. The injury was kept under observation."
7. On the same day i,e, 3-1-2007, he also examined Muhammad Sharif, injured and observed the following injuries on his body:- "A firearm wound of entrance measuring 1 cm x 1/2 cm at the anterolateral aspect of left buttock, 6 cm below the left anterior superior iliac spine. The edges of the wound were inverted. No blackening or burning was present. There was another lacerated wound measuring 0.75 cm x 1/2 cm with averted margin at back of left buttock, 5 cm lateral to the natal cleft. Corresponding hoes to the wounds were present in the clothes which were blood-stained. The injury was kept under observation. It was caused by fire-arm and probable duration of the injury was one hour."
8. The doctor stated that on 3-1-2007, Saeed Ahmad alias Muhammad Nawaz, succumbed to the injuries and he conducted the postmortem on his dead body and observed the following injuries:- "(1) A fire-arm wound of entrance measuring 0.75 cm x 0.5 cm at the lateral aspect of right buttock 12 cm away and lateral to right anterior, superior iliac spine. No blackening was present.
The edges were inverted and lacerated. There was another lacerated wound measuring 2 cm x 1.5 cm with averted margins at lateral aspect of left buttock. Both the lacerated wounds communicated with each other.
(2) A firearm wound of entrance measuring 1/2 cm x 1/2 at the inner aspect of left ankle. No blackening or burning was present. The edges were lacerated. It communicated with another lacerated wound measuring 3 cm x 1 cm at the distal 1/3 of outer border of left foot. It was wound of exit".
' In the opinion of Medical Officer, the injuries were ante-mortem and caused by firearm. Injury No,1 was dangerous to life and injury No,2 was Jurrah Ghair Jaifa Hashimah and that the cause of death was due to excessive haemorrhage due to injuries to left iliac blood vessels as a result of injury Na.1 which led to hypovolemic,shock followed by death. The probable time that elapsed between injuries and death was two hours and between death and postmortem five hours.
9. The evidence so recorded during the trial of the case was confronted to the appellants by recording -their statements under section 342, Cr.P.C. And in an answer to question "why this case against you and why the P. Ws. Deposed against them?" the convicts/appellants set up their defence in the following words:- "Saeed Ahmad son of Fazal Lodhi is owner of ten acres of land in Chak No,I53/TDA, Tehsil Layyah.
His daughter is married to Ibrar Hussain, the maternal uncle of Asif accused. In the year 2005 Saeed Ahmad, deceased, Muhammad Sharif injured P.W. And one Muhammad Hussain Jat along with others got illegal possession of land of said Saeed Ahmad Lodhi who informed the incident to his son-in-law namely Ibrar Hussain upon which Asif accused along with his maternal uncle Ibrar Hussain came in Chak No,153/TDA and obtained possession of land of said Saeed Ahmad Lodhi from Saeed Ahmad, deceased etc. After getting back the possession of land Asif accused remained there with Saeed Lodhi and Tafseer accused being the friend of Asif accused had been visiting Asif accused in Chak No, 153/TDA due to which the complainant party also became inimical towards Tafseer accused. Saeed Ahmad deceased and Muhammad Sharif, injured P.W., Muhammad Hussain, Jat obtained illegal possession of land of other persons in the locality more over Saeed Ahmad deceased had illicit relations with many women of the locality. Complainant party also had their so many enemies out of Layyah. About 5/6 years ago Muhammad Sharif, PHUPHA of the deceased Saeed Ahmad was murdered in Chak No,427 Tehsil Gojra District Toba Tek Singh by unknown persons. In fact some unknown enemies of the complainant party murdered Saeed Ahmad and injured Muhammad Sharif, therefore, the complainant Tahir Naveed got recorded the F.I.R. Without nomination of any culprit. But later on due to enmity, the complainant party with the connivance of police involved me and other accused and the police to get rid of this blind murder case, challaned the accused persons malafidely. Private P.Ws. Are close relatives inter se and inimical towards me. Recoveries from the accused persons are false and fabricated only to strengthen the case."
' The appellants did not opt to make statement under section 340(2), Cr.P.C. To disprove the allegations levelled against them in the prosecution evidence and produced documentary evidence.
11. The learned counsel for the appellants, while assailing the verdict of learned trial Court, convicting and sentencing the appellants, has submitted that the learned court through the impugned judgment by convicting the appellants has misread the material pieces of evidence which lead to the conclusion that the appellants were not the real culprits who had murdered Saeed Ahmad alias Muhammad Nawaz. In this respect, the learned counsel has pointed out that the occurrence had taken place in the cold winter night in the month of January at about 3-00 a.m.
And this incident was reported by Tahir Naveed Ahmad (P.W.11) to the police station against four unknown persons stating that they had trespassed into their premises asking for the money and on refusal one of them fired at Saeed Ahmad alias Muhammad Nawaz hitting at his right hip and left ankle while fire of another person injured Muhammad Sharif, P.W.12. Saeed Ahmad alias Muhammad Nawaz, succumbed to the injuries at the spot. The complainant had also described the unknown persons but subsequently made another statement in the late hours of the day to enrobe the present appellants on the statement of injured P.W.12 and witness of Waj Takkar, P.W.9 Munir Ahmad. According to the learned counsel, the assailants were already known to the complainant himself but he had concealed this fact in his crime report and made subsequent statement on the information provided by P.W.12. He maintained that the legal value of the subsequent statement made by a complainant has been determined by the apex Court in the case of "Falak Sher alias Sheru v. The State" (1995 SCM R 1350) by holding that same statement cannot be equated with the first information report nor can be read as part of the same. It is further argued that when the identification of the culprits has not been established on the record then the corroborative pieces of evidence cannot be relied upon to pass a conviction judgment. It is argued that P.W.9 had not provided any explanation about his presence at the place of occurrence nor has given candid time of making the statement before the Investigating Officer. He treated the statements of P.W.9 and P.W.12 as belated one having element of consultation and deliberation, whereafter the complainant made his supplementary statement. In the backdrop of these arguments, the learned counsel for the appellants has claimed their clean acquittal by acceptance of their appeals.
12. The submissions so made by the learned counsel for the appellants have been controverted by the learned Deputy Prosecutor-General assisted by learned counsel for the complainant by submitting that the prosecution through the trustworthy and reliable evidence has established beyond any reasonable shadow of doubt that in fact the appellants were the persons who had trespassed into the premises and asked for the money but on the resistance they had fired at the deceased Saeed Ahmad alias Muhammad Nawaz and Muhammad Sharif killing one and injured the other and this fact was further corroborated by the medical evidence as well as recovery of the crime weapons at the instance of the appellants. He argued that the learned trial Court by appreciating the oral as well as documentary evidence available on the record had reached at just conclusion through the impugned judgment accordingly he prayed for dismissal of the appeals.
13. We have given our conscious thoughts to the submissions made by learned counsel for the parties and examined the evidence available on .The file.
14, The stance of P.W.11, the complainant of the case is that on the fateful day at about 3-00 a.m., four unknown persons' had trespassed into the godown and asked for money and on the refusal they fired, killing one and injuring the other. He had lodged the F.I.R. At 4-40 a.m. Within two hours which can be treated as promptly lodged F.I.R. The complainant by making the statement had not mentioned the names of the assailants. According to the record, he on the same day made another statement nominating the appellants with specific role of asking money and making fire at the complainant party. According to his own statement, he named the .Appellants on the information provided by P.W.12 Muhammad Sharif regarding the identity of the assailants. This fact itself shows that the appellants had no acquaintance with the assailants but this fact is stood negated through the statements of P.W.12 as well as P.W.9 who in their cross-examination admitted that the assailants were known to the complainant also and that the parties were having business dealings inter se. It is also in the evidence that prior to the occurrence, the appellants allegedly had visited the godown of the complainant side and asked the rate of leather meaning thereby that the complainant at that time had seen the appellants. The learned counsel for the complainant had attempted to justify that at that time, the complainant was busy in some other work but this explanation is not oozed out of the statement of P.W.12. Similarly, P.W.12, Muhammad Sharif, according to his own version had made statement before the police in the hospital at 6-00/7-00 a.m. But at that time he did not inform the names of appellants to the complainant and according to the complainant's own version, the P.W. Had told him about the names of the accused persons at 5-00 p.m. This delay in providing the information of making subsequent statement thereafter is fatal to the prosecution case, The apex Court while dealing with such like situation in case of "Khalid Javed and another v. The State" (2003 A SCMR 1419) has made following observations:- "Delay in recording supplementary statement of the informant giving different version after lodging the F.I.R. Would be an important factor which is likely to give rise to an inference that second version contained in the supplementary statement was introduced by the prosecution after deliberation and if it is so, the same will adversely affect the prosecution case."
In the instant case by not informing timely about the names of the assailants to the complainant by Muhammad Sharif (P.W.12) the complainant made his supplementary statement with much delay for which no explanation has been provided on the recorded so in the circumstances, it can validly be observed that the complainant and the P.W. After due deliberation had introduced the names of the appellants for the reasons best known to them. This delay is quite fatal to the prosecution case.
15. Regarding the .Status of supplementary statement, the apex Court in the case of Falak Sher supra which view has also been followed in Khalid Javed's case and Mushtaq Hussain's case (2011 SCM R 45) with the finding that report made under section 154, Cr.P.C. Cannot be equated with the subsequent statement made by the complainant which could be treated as an improvement for falsely implicating the person that too with due deliberation and consultation. As per statement of P.W.9 and P.W.12, the appellants were already known to the complainant as well as to them as the parties were having business dealings inter se, therefore, the submission of learned counsel for complainant that only Muhammad Sharif (P.W.12) was having business dealings with the appellants, stands negated. In this manner, the identity of the appellant participating in the occurrence is not established from the evidence led by the prosecution.
16. The prosecution has also relied upon the testimony of P.W.9, a witness of Waj Takker who had seen the appellants fleeing in the car of Muhammad Iqbal, appellant. This statement of the witness has no independent corroboration. The witness as per his own statement residing at the distance of one acre from the place of occurrence and in the dark night his identification qua the appellants is not beyond any shadow of doubt. Further, he made his statement with considerable delay that he had identified the appellants while fleeing away. This situation has also been dealt with by the apex Court in Khalid Javed case by treating such like witnesses a chance witness and observed that strong and cogent evidence is required to corroborate their testimony. P.W.9 has failed to provide any independent source and explanation, as such, his testimony cannot be accepted as trustworthy, statement. Another fatal blow which the prosecution has received at the hands of his own witness (P. W.12) is that he had thumb marked his statement which he made to the police as admitted by him in his cross-examination. In case of "State v. Abdul Khaliq" (PLD 2011 Supreme Court 554) such like statements, which were signed and thumb marked by P.Ws., have been discarded on the ground that it is not the requirement of law to sign or thumb marked a statement recorded under section 161, Cr.P.C. This important factor has rendered the statement of P.W.
Nugatory and incurable illegality which had vitiated the statement.
17. A close scrutiny of the prosecution evidence as well as precedent law referred to above, there existed reasonable doubts regarding involvement of the appellants in the instant occurrence which is to be extended in favour of appellants.
18.. When it has been observed that the identity of the appellants has not been established by the prosecution then other pieces of evidence which are of corroboratory in nature cannot be relied upon solely to say that it was the appellants who were armed with weapons and had fired at the deceased and injured the P.Ws.
19. Needless, to say that prosecution has failed to bring home guilt of appellants, thus there is left no need to ponder upon defence plea.
20. Since, the case of the prosecution is not free from doubts, the benefit of ,which is to be extended to the appellants, therefore, we are inclined to allow the appeals in hand.
' For the foregoing reasons, all the appeals are accepted by setting aside the impugned judgment.
The conviction and sentence recorded against the appellants is also set aside. All the appellants are presently lodged in the jail who are set at liberty forthwith, if not required in any other case.
Accordingly, Murder Reference No, 4 of 2009 sent by the learned trial Court is answered in negative and the death sentences awarded to the appellants are not confirmed.. #EndJudgment revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.