' MALIK SHAHZAD AHMAD KHAN, J.---This judgment shall dispose of Criminal Appeal No.1195 of 2007 titled as "Muhammad Amin and others v. The State" filed by Muhammad Amin, Yaqoob Ali alias Kaddu, Zulfiqar Ali and Akbar Ali alias Bhola (appellants) against their convictions and sentences, Criminal Appeal No.1196 of 2007 titled as "Liaqat Ali v. The State" filed by Liaqat Ali (appellant) against his conviction and sentence and Murder Reference No.512 of 2007 titled as "The State v.
Akbar Ali alias Bhola and others," submitted by the learned trial court for confirmation or otherwise of the sentence of death awarded to Akbar Ali alias Bhola, Zulfiqar Ali, Muhammad Amin, Liaqat Ali and Yaqoob Ali alias Kaddu (appellants), as all these matters have arisen out of the same judgment dated 30-6-2007 passed by the learned Addl. Sessions Judge, Lahore in case F.I.R. No.633 dated 19-1.1-2003 registered under sections 302, 109, 148 and 149, P.P.C. (section 324, P.P.C. Was added in the charge-sheet) at Police Station City Raiwind District Lahore whereby, Akbar Ali alias Bhola, Zulfiqar Ali, Muhammad Amin, Liaqat Ali and Yaqoob Ali alias Kaddu (appellants) were convicted under section 302(b), P.P.C. For committing the murder of Mushtaq and Mumtaz (deceased persons) and sentence to death on two counts each with the direction to pay Rs.50,000 (Rupees fifty thousand) each as compensation to the legal heirs of each deceased namely, Mushtaq and Mumtaz failing which they were directed to suffer simple imprisonment for six months and in default thereof, the same was directed to be the liability against the persons and properties of the convicts. They were further convicted under section 324, P.P.C. And sentenced to rigorous imprisonment for three years each with the direction to pay fine amounting to Rs.5000 each and in default thereof further undergo simple imprisonment for three months each and the amount of fine, if realized, was ordered to be paid to the injured P.W.
' The learned trial Court, however, through the same judgment, acquitted Ashraf, Khan Muhammad, Ghulam Ullah, Ghulam Qadir, Muhammad Ameer and Muhammad Anwar, co-accused of the appellants while giving them the benefit of doubt.
' It is pertinent to mention here that Muhammad Amin (appellant) died during the pendency of this appeal, therefore, to his extent, this appeal stood abated vide order dated 7-2-2012.
2. Brief facts of the case, as disclosed by Muhammad Iqbal, complainant (P.W.11) in his 'Fard Biyan'
(Exh-PE/1) on the basis of which the formal F.I.R. (Exh.PE) was registered, are that on 19-11-2003, the (complainant) along with Muhammad Safdar (given up P.W.) on Vehicle No.LXX-7153, which was being driven by Sawar Khan (given up P.W.) whereas, Mushtaq (deceased), who was driving Suzuki Mehran Car bearing Registration No.LOS-7685, in which Mumtaz alias Bhola (deceased) was sitting on front seat with Mushtaq (deceased) whereas, Shahzad (P.W.10) was sitting on the rear seat, was going to Raiwind in connection with an important piece of work. The vehicle of Mushtaq (deceased) was 30/35 yards ahead of them. At about 8-00 a.m. When the Vehicle of Mushtaq (deceased) reached in front of the gate of Green River Nursery, Vehicle No.LRF6213, which was being driven by Bhola (Akbar Ali alias Bhola appellant) came from behind, in which, Azam, accused (since P.O.) armed with .244 bore, was sitting on the front seat whereas, Zulfiqar (appellant) and Amin accused (since dead) armed with .244 bore were sitting on the rear seat, started firing at the vehicle of Mushtaq (deceased) while coming parallel to them. One Hyundai Car black colour which was being driven by an unknown person, to whom he (complainant) and his companions can identify if confronted with them, on the front seat of said car, Liaqat (appellant) armed with .244 bore whereas, Yaqoob alias Kaddo appellant, Muhammad Irfan (since P.0), armed with .244 bore were sitting on the rear seat, also started firing from behind at the vehicle of Mushtaq (deceased).
They (complainant party) did not to go close due to the fear. All the accused persons after satisfying themselves that Mushtaq and Mumtaz (deceased persons) have died, drove away their vehicles towards Araian. They (complainant party), thereafter, reached near the vehicle of Mushtaq (deceased), Mushtaq and Mumtaz were lying there dead. It is further alleged in the F.I.R.
(Exh-PE/1) that when the deceased were fired upon, their vehicle collided with acacia tree (Keeker) and was destroyed and Shahzad (P.W.10) was also injured due to the accident. The occurrence was committed on the abetment of Ashraf, Khan Muhammad; Ghulam Ullah, Ghulam Qadir, Muhammad, Ameer and Muhammad Anwar, accused persons (since acquitted) who, on 5-11-2003 at the Sessions Court, Lahore in the presence of Safdar (given up P.W.) and Arif (P.W.12) asked Azam accused (since P.0) and Zulfiqar (appellant) etc. That they will take care of, themselves and all the expenses will be borne by them but Mushtaq etc. Be murdered. The motive behind the occurrence, as disclosed by the complainant in the F.I.R. (Exh-PE) was that Mushtaq (deceased) was released from jail about three months ago after serving his sentence in the murder case of Riasat whereas, Mumtaz (deceased) was released on bail in the murder case of Abbas.
3. Akbar Ali alias Bhola, Muhammad Ameen (since dead), Liaqat Ali and Yaqoob Ali (appellants) were arrested in this case on 15-1-2004 by Muhammad Aslam, S.I. (P.W.14) whereas, Zulfiqar Ali (appellant) was arrested by him on 20-2-2004. On 24-2-2004, Zulfiqar Ali (appellant), while in police custody, after making disclosure, got recovered .44 bore rifle (P-28) along with one magazine containing ten bullets (P-29/1-10) and one magazine containing fifteen bullets (P-30/1- 15), which was taken into possession vide recovery memo. Exh-PW.14/Q. After completion of investigation, the challan was prepared and submitted before the learned trial court. The learned trial court, after observing legal formalities as provided under the Codes of Criminal Procedure, 1898 framed charge against the appellants and their co-accused: (since acquitted) on 10-2-2006, to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced eighteen witnesses, during the trial. Shahzad (P.W.10) and Muhammad Iqbal, complainant (P.W.11) furnished the, ocular account of the case.
Muhammad Arif (P.W.12) Is the witness of abetment.
' The medical evidence was furnished by Dr Khizer Hayat Khan (P.W.3), who medically examined Shahzad (P.W.10), Dr. Muhammad Ubaid Ullah (P.W.4), who conducted the postmortem examination on the dead body of Mumtaz Ahmad (deceased) and Dr. Aman Ullah Khan (P.W.5), who conducted the postmortem examination on the dead body of Muhammad Mushtaq (deceased). Muhammad Zakriya (P.W.18) is the witness of recovery of .44 bore rifle (P-28) along with one magazine containing ten bullets (P-29/1-10) and one magazine containing fifteen bullets (P-30/1-15) allegedly recovered at the instance of Zulfiqar Ali (appellant).
' Muhammad Aslam, S.I (P.W.14) was the Investigating Officer of this case. Syed Younas Bokhari, Draftsman (P.W.1), Khalid Maqsood 12180/C (P.W.2), Muhammad Javaid 2671/C (P.W.6), Nazir Ahmad, S . I . (P .W .7), Muhammad Fayyaz 13093/C (P.W.8), Farzand Ali, S.I. (P.W.9), Muhammad Ilyas (P.W.13), Shaukat Ali, A.S.-I. (P.W.15), Badar Munir, S.I. (P.W.16), Abdul Aziz, S.I (P.W.17) are the formal witnesses.
The prosecution also produced documentary evidence in the shape of scaled site plan, in duplicate, of the place of occurrence (ExhPA & Exh-PA/1), Medico-legal Report of Shahzad injured (Exh-PB), postmortem report of Mumtaz Ahmad (deceased) along with pictorial diagrams (Exh-PC, Exh-PC/1 & Exh-PC/2), postmortem report of Mushtaq Ahmad (deceased) along with pictorial diagrams (Exh-PD, Exh-PD/1 & Exh-PD/2), recovery memo of last worn clothes of the Mushtaq deceased (Exh-PE), F.I.R. (Exh-PE), Fard Biyan of the complainant (Exh-PE/1), recovery memo of last worn clothes of Mumtaz alias Bhola deceased (Exh-PF), recovery memo. Of Suzuki Car bearing Registration No. LOS-7685 (Exh-P. W. 14/A), injury statement of Muhammad Mushtaq deceased (Exh-P.W.14/B), injury statement of Mumtaz alias Bhola deceased (Exh-P.W.14/C), application for postmortem examination of Muhammad Mushtaq deceased (Exh-P.W.14/D), application for postmortem examination of Mumtaz alias Bhola deceased (Exh-P.W.14/E), inquest report of Muhammad Mushtaq deceased (Exh-P.W.14/F), inquest report of Mumtaz alias Bhola deceased (Exh-P.W.14/G), injury statement of Shahzad PW (Exh-P.W.14/H), recovery memo of bloodstained earth from the place of murder of Mumtaz alias Bhola deceased (ExhP.W.14/J), recovery memo of blood-stained earth from the place of murder of Mushtaq deceased (Exh-P.W.14/K), recovery memo of twelve crime empties of .244 bore (ExhP.W.14/L), rough site plan of the place of occurrence (Exh-P.W.14/M), rough site plan of.The place of recovery of car bearing Registration No.LRF-6213 (Exh-P.W.14/N), recovery memo of .44 bore rifle along with twenty-five bullets allegedly recovered at the instance of Zulfiqar Ali appellant (Exh-P.W.14/Q), rough site plan of the place of recovery of .44 bore rifle along with twenty-five bullets allegedly recovered at the instance of Zulfiqar Ali, appellant (Exh-P.W.14/R), recovery memo of Car bearing Registration No. LRF-6213 (Exh- P.W.17/A), warrants of arrest of Muhammad Azam and Muhammad Irfan, accused (since P.0) along with report (Exh-CW- 1 & Exh-CW-1/A), proclamation of Muhammad Azam and Muhammad Irfan, accused (since P.0) along with report (Exh-CW-2/A, Exh-CW-2-A/1, Exh-CW-2-B/1), report of the Chemical Examiner (Exh-DDPP/A), report of the Forensic Science Laboratory (Exh-DDPP/B), report of the Serologist (Exh-DI)PP/C) and closed its evidence.
5. The statements of the appellants and their co-accused, under section 342 of the Code of Criminal Procedure, were recorded on 18-6-2007. They refuted the allegations levelled against them and professed their innocence. While answering to a question that "Why this case against you and why the P. Ws. Have deposed against you?", Akbar Ali alias Bhola, appellant replied as under:-- "The witnesses are interested in the complainant and the deceased and inimical towards me and my co-accused and thus deposed against me and my co-accused due to previous enmity and relationship with Muhammad Abbas and Riasat Ali deceased. On the day of occurrence, I was not present at the spot. I was employed as driver in SN International Company Thokar Niaz Baig Lahore.
I used to leave for my duty from my house at 6 a.m. In the morning and become free by 3 p.m. On 19-11-2003 I proceeded for my duty at 6 a.m. At about 7 a.m. Reached the residence of Doctor Nasir Sharif Randhawa where the said doctor and three other persons were present. I took them in the car to Sharaqpur Sharif District Sheikhupura. I remained on duty with them for the whole of day and reached Thokar Niaz Baig at about 4 p.m. On the same date. I remained on duty with the above said persons from 7 a.m. Till four p.m. On 19/11/03. The allegations of my participation in the alleged occurrence are totally false, incorrect and concocted."
' To the same question, Zulfiqar Ali (appellant) replied as under:-- "The witnesses are interested in the complainant and the deceased are inimical towards me and my co-accused and thus deposed against me and my co-accused.
' I deal in the sale and purchase of cattle. On 17-11-2003 I along with my co-accused Ghulam Ullah and Muhammad Amin proceeded for Chichawatni cattle market to purchase cattle. I Ghulamullah and Muhammad Amin co-accused reached. Chak No.54/12-I, Chichawatni District Sahiwal at the residence of Saddi Muhammad son of Ahmad Din Lambardar on the evening of 17-11-2003 and stayed there till the morning of 19-11-2003. On 19-11-2003 I, Muhammad Amin and Ghulamullah co- accused went to Bus Stop Chak No.54/12-I, Police Station Ghaziabad, Chichawatni District Sahiwal to have a public transport to proceed for the cattle market of the area. At about 7/8 a.m. I, Ghulamullah and Muhammad Amin co-accused were standing at the Bus Stop at about 7/8 a.m.
When a police van stopped near us and suspecting us started searching us. During this process I slipped away whereas my co-accused Ghulamullah and Amin were apprehended by the police at the Bus Stop of above mentioned chak. A .30 bore pistol was recovered from the fold of shalwar and Rs.65000 from the personal search of my co-accused Ghulamullah. Similarly from the personal search of Muhammad Amin a carbine with one alive cartridge and Rs.50,000 were recovered. Cases under section 13/20/65 Arms Ordinance were registered against them at Police Station Ghaziabad District Sahiwal. On 19-11-2003 Amin and Ghulamullah co-accused were kept in the police lock-up of Police Station Ghaziabad District Sahiwal and produced before the Ld. Illaqa Judicial Magistrate on 20-11-2003 who sent them to judicial lock-up. Muhammad Aslam S.I. Visited Police Station Ghaziabad District Sahiwal, Jail at Sahiwal and the court of Ld. Judicial Magistrate and verified the above facts. The record pertaining to this fact has already been exhibited on the record. At the time of the alleged occurrence of this case, I and my above said ca-accused were present in Chichawatni District Sahiwal with the police of Police Station Ghaziabad. Zulfiqar co- accusedescaped the arrest and remained with Saddi Muhammad Lamberdar. I was also not present at the spot at the time of alleged occurrence."
' Yaqoob alias Kaddo (appellant), to the said question, replied as under:- "The complainant party murdered Riasat Ali and Ghulam Abbas, my cousins. Due to my relationship with the said two deceased I have been involved in the, present case due to previous enmity. On 19-11-2003 my cousin Muhammad Arif called me in the drawing room of his residence located in Monza Lakhowal District Lahore. In the said drawing rooms Haji Asghar and Noor Muhammad were also sitting along with Shafique and Siddique. Muhammad Arif aforementioned asked me to bring tea for them. I brought tea for them from the residence of Muhammad Arif, aforementioned. It was about 8 a.m. In the morning, I remained present in the residence of said Muhammad Arif along with above-mentioned Haji Asghar etc for about two hours and thereafter left for my residence in Lakhowal. I was not present at the spot at the time of alleged occurrence, The P.Ws. Are interested in the deceased and inimical towards me. Therefore, they falsely involved me in this case."
' To the same question Liaqat Ali replied as under:- "On 10-3-1995 Mushtaq alias Makho, Baqir, Mcbar Ali sons of Ghulam Muhammad caste Bhatti resident of Lakhowal murdered my brother Riasat Ali. My father got a case registered against Mushtaq etc. In which they were challaned and and Mushtaq was sentenced to death who was subsequently released by the honourable Lahore High Court, Lahore. Afterwards my cousin Abbas son of Hassan Muhammad, Vice-Chairman District Council Lahore was murdered by Muhammad Akbar, Baqir sons of Ghulam Muhammad, Ansir Ali son of Muhammad Akbar, Riasat Ali son of Muhammad Hussain, Yaqoob son of Noor. Muhammad Case F.I.R. No.294/1999 dated 12-8-1999 under sections 302/148/149 P.P.C. Was registered against them. Muhammad Hussain and Mumtaz alias Bhola were released on bail in the said case. Noor Muhammad had died his natural death. I have been involved in this case due to the above'mentioned enmity.
' On the day of present occurrence, I was present at our residence. I, and my brother Shafaqat Ali proceeded for Mouza Baddoki Police Station Kahna District Lahore at 7.45 a.m. For the residence of my friend Fayyaz son of Sameer Khan to offer condolence and Fateha over the death of is father Sameer Khan. Thereafter we went to Muslim Commercial Bank Kahna and I withdrew Rs.3000 from my bank account. We also went to Nishter Colony Bazar to purchase our shoes as the marriage of my brother Shafaqat and sister Parveen was going to be held shortly. We came back to their residence at about 1 p.m. On the said date. At the time of alleged occurrence I was at the residence of my above mentioned friend Fayyaz in Mouza Baddoki.
' On 5-11-2003 I was present at my residence. At about 9-30 a.m. Istikhar son of Hidayat and Zulfiqar son of Sarwar came to see him and stayed with him till 10-30 a.m. After about 10 minutes Hayat Muhammad son of Inayat came to our residence in Mouza Khund and remained with my father till 12 noon. Afterwards he went to Ittafaq Hospital for his usual treatment. The doctor gave him the prescription for medicines. He purchased the medicines from the bazaar and came to his residence with my brother Shafaqat at about 4 p.m. My father is an old man of about 70 years having multiple diseases offered specialist treatment and multiple surgeries during his detention in jail.
' He did not visit the Court of Session on 5-11-2003. The allegations of conspiracy at an odd place of canteen of Sessions Court, Lahore are not only baseless, bogus but incorrect."
' The appellants neither opted to give evidence on oath as provided under section 340(2) of the Code of Criminal Procedure, in disproof of the allegations levelled against them nor produced any evidence in .Their defence.
6. The learned trial court vide its judgment dated 30-6-2007, found the appellants guilty, convicted and sentenced them as mentioned and detailed above.
7. Learned counsel for the appellants, in support of these appeals, contends that all the appellants have falsely been implicated in this case; that, as per F.I.R. (Exh-PE), this incident took place on 19- 11-2003 at 8-00 a.m. And the matter was reported to the police on the same day i.e. 19-11-2003 at 9-15 a.m. But the other circumstances of the prosecution case suggest that the matter was not reported to the police at the time mentioned in the F.I.R. i.e. 9-15 a.m. On 19-11-2003 because the postmortem examination on the dead body of Mushtaq (deceased) was conducted by Dr Aman Ullah Khan (P. W.5) at 11.45 a.m. On the next day i.e. On 20-11-2003 whereas, the postmortem examination on the dead body of Mumtaz alias Bhola (deceased) was conducted by Dr. Muhammad Ubaid Ullah (P.W.4) at 11-50 a.m on 20-11-2003; that both the doctors in their cross- examination have admitted that there was no delay on their part in conducting the postmortem examination; that they further, stated that the postmortem examination on the dead bodies was conducted on the receipt of police papers and not on the receipt of the dead bodies; that in the circumstances, it can safely be presumed that the police papers were not delivered to the said doctors before 11-30 a.m. On 20-11-2003 and as such this delay of more than twenty-seven hours in conducting the postmortem examination on the dead bodies of the deceased persons clearly suggests that the complainant was not present at the spot at the time of occurrence; that even otherwise, the complainant, from his statement before the learned trial court, can easily be presumed as chance witness as be was resident of Lakhowal whereas, the occurrence in this case took place on the main Raiwind Road and though in the F.I.R. (Exh-PE), the complainant has stated that he along with Muhammad Safdar and Sawar Khan (given up PWs) was present in one car whereas, Mushtaq, Mumtaz (deceased persons) and Shahzad (P.W.10) were present in the other car and they were going to Raiwind in connection with some important work but while appearing before the learned trial court, he has not stated anything as to why he was present at the spot and as such, his statement cannot be believed; that so far as Shahzad (P.W.10) is concerned, he is also not reliable as he stated that he was sitting in the car on the rear seat and received injuries as the car collided with an acacia tree and he was injured but as per his Medico-legal Report (Exh-PB), he was medically examined at 2-30 p.m. i.e. After about six hours of the occurrence and in his cross- examination, he stated twice that he was medically examined at about Maghrib prayer time, which makes his presence at the spot highly doubtful; that the complainant made dishonest improvements in his statement before the learned trial court and he was duly confronted with his previous statement and the improvements made by him were brought on the record as he, in the F.I.R. (Exh-PE), did not mention the locale of injuries on the person of deceased whereas, while appearing before the learned trial Court, he mentioned the details thereof. So far as the recovery of .244 bore rifle allegedly recovered at the instance of Zulfiqar Ali (appellant) is concerned, learned counsel for the appellants contends that the report of the Forensic Science Laboratory is not positive, therefore, no reliance can be placed on this piece of evidence. So far as remaining appellants are concerned, learned counsel contends that nothing was recovered from them rather it was concluded by the police during the investigation that Liaqat Ali and Yaqoob Ali alias Kaddu (appellants) were not present at the spot. So far as the motive behind the occurrence is concerned, learned counsel for the appellants contends that in the F.I.R. (Exh-PE), the motive behind the occurrence as disclosed by the complainant was that Mushtaq (deceased) was released from Jail three months ago after serving out his sentence in the murder case of Riasat whereas, Mumtaz (deceased) was released on bail in the murder case of Abbas; that so far as the murder of Riasat is concerned, Musthaq (deceased) was convicted in the said murder case and was sentenced to death, which was converted into imprisonment for life by this Court whereas, the motive against Mumtaz (deceased) was attributed to Muhammad Amin, appellant (since dead) because he was brother of Abbas deceased, therefore, there was no reason for the present appellants to commit the murder of Mushtaq and Mumtaz (deceased persons). Learned counsel further contends that the motive is always a double edged weapon and if it could be a reason for commission of crime then at the same time, it could also be a reason for false implication of the accused. Further contends that there is history of criminal record of the complainant and both the deceased persons as they were involved in number of criminal cases and have enmity with many persons; that from all angles. The prosecution case is of doubtful nature; that the prosecution has failed to prove its case against the appellants beyond the shadow of doubt; that these appeals may be accepted, the appellants may be acquitted and the murder reference may be answered in the negative.
8. Learned Deputy Prosecutor-General assisted by learned counsel for the complainant opposes these appeals on the grounds that the complainant has stated a specific reason for his presence at the spot in his Fard Biyan (Exh-PE/1), which was made basis for registration of this case, by stating that he along with Muhammad Safdar and Sawar Khan, on one car, whereas, Mushtaq, Mumtaz (deceased persons) and Shahzad (P.W.10), on the other car, were going to Raiwind in connection with an important piece of work; that moreover, in his cross-examination, the complainant has stated that he was present in the other car which has not seriously been contested by the defence; that the road on which this occurrence took place is the main road which is used by the complainant to go to his house and the same is situated in village Lakhowal; that if the presence of the deceased at the place of occurrence is not disputed, then the presence of the complainant and other witness who was injured in this case, cannot be considered as unnatural or improbable; that the complainant and the police, cannot be held responsible for the delay in conducting the postmortem examination on the dead bodies of the deceased persons as it is on the record that the dead bodies of both the deceased persons reached the hospital before 12-00 noon on 19-11-2003 and no direct question was asked from the doctors as to why the postmortem examination in this particular case was not conducted on 19-11-2003. So far as the delay in conducting the medical examination of injured Shahzad (P.W.10) is concerned, learned counsel for the complainant contends that he was got examined by the police which fact is mentioned in the Medico-legal Report (Exh-PB) and the police firstly recorded his statement and then got his medical examination conducted but the duration of injuries given by the doctor in his Medico-legal Certificate coincide with the time of incident mentioned by this injured witness and there is no suggestion to him that his injuries were self-suffered and his presence at the place of occurrence is proved beyond the shadow of any doubt; that moreover, he is totally an independent witness having no enmity with either of the appellant; that it was a daylight occurrence and no question of mistaken identity can arise as the parties were known to each other prior to the occurrence; that the prosecution case, to the extent of Zulfiqar Ali (appellant), is further corroborated by the recovery of .244 bore rifle recovered on his pointation; that the opinion of the police is not binding on the Court; that the motive is also established as no question regarding the motive was asked on behalf of either of the appellant as it was not denied that Riasat was real brother of Liaqat (appellant) and Mushtaq (deceased) an accused for his murder and similarly, Abbas was real brother of Amin appellant (since dead) and Mumtaz (deceased) was an accused for his murder and as such, the prosecution has proved its case against all the appellants who are responsible for the murder of two innocent persons by firing at them; that the appellants are not even entitled to any leniency so far as the quantum of sentence is concerned; that the prosecution has fully proved its case against the appellants beyond the shadow of any doubt; that these appeals may be dismissed and the sentence of death awarded to the appellants may be confirmed.
9. We have heard the arguments of learned counsel, for the appellants, learned Deputy Prosecutor-General assisted by learned counsel for the complainant and have gone through the record with their able assistance.
10. The detail of the prosecution story, as set forth in the F.I.R. (Exh-PE.), has already been mentioned in paragraph No.2 of this judgment, therefore, there is no need to repeat the same.
' First of all, we will address the argument of learned counsel for the appellants that Liaqat Ali and Yaqoob Ali alias Kaddu (appellants) were declared innocent during the course of investigation and Muhammad Aslam S.I. (P.W.14) has conceded during his cross-examination that he opined that the presence of above-mentioned appellants was not found at the spot at the time of occurrence which has created serious dent in the prosecution story, thus, the above mentioned appellants may be acquitted on this ground. The said argument of learned counsel for the appellants is misconceived because it is not the duty of the Investigating Officer to decide the innocence or guilt of accused persons. The opinion of the police officer is inadmissible in evidence, therefore, the appellants cannot be acquitted merely on the basis of police investigation. A reference in this respect may be made to the case of "Muhammad Ahmad (Mahmood Ahmed) and another v. The State" (2010 SCM R 660) wherein, at page 676, the Hon'ble Supreme Court of Pakistan was pleased to observe as under:-- "37....It may be mentioned here, for the benefit and guidance of all concerned, that determination of guilt or innocence of the accused persons was the exclusive domain of only the Courts of law established for the purpose and the said sovereign power of the Courts could never be permitted to be exercised by the employees of the police department or by anyone else for that matter. If the tendency of allowing such-like impressions of the Investigating Officers to creep into the evidence was not curbed then the same could lead to disastrous consequences..."
11. The occurrence in this case took place on 19-11-2003 at 8.00 am. Statedly, the matter was reported to the police by Muhammad Iqbal, complainant (P.W.11) at 09.15 a.m through his Fard Biyan (ExhPE/1) and the formal F.I.R. (Exh-PE) was recorded on the same day at 9.45 a.m but the other circumstances suggest that the matter was reported to the police at the time mentioned in the F.I.R. Because the postmortem examination on the dead body of Mumtaz. Ahmad (deceased) was conducted on 20-11-2003 at 11.50 a.m i.e. With the delay of about twenty-eight hours from the occurrence whereas, the postmortem examination on the dead body of Muhammad Mushtaq (deceased) was also conducted on 20-11-2003 at 11-45 a.m i.e. With the delay of almost twenty- eight hours from the occurrence. Dr Muhammad Ubaid Ullah (P.W.4) has stated during his cross- examination that in routine the postmortem examination on a dead body is conducted after the receipt of police, papers. He further stated that he might have received police papers about thirty minutes prior to the postmortem examination. Similarly, Dr. Aman Ullah Khan (P.W.5) has stated during his cross-examination that as soon as, he received the police papers, he started to conduct the postmortem examination. He further stated that there was absolutely no delay on his part in conducting the postmortem examination. The aforementioned gross delay of about twenty-eight hours in conducting the postmortem examination on the dead bodies of Muhammad Mushtaq and Mumtaz Ahmad (deceased persons) has created serious doubt about the truthfulness of the prosecution story as the said delay is suggestive of the fact that the delay was consumed in concocting the prosecution, story and procuring the attendance of eyewitnesses. We may refer here the case of "Irshad Ahmed v. The State" (2011 SCM R 1190) wherein, it has been held that the postmortem examination on the dead body had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a postmortem examination of the dead body conducted.
Similar view was taken by the Hon'ble Supreme Court of Pakistan in the case of "Muhammad Ashraf v. The State" (2012 SCM R 419). Similarly, in the case of "Khalid alias Khalidi and 2 others v. The State"
(2012, SCMR 327), the Hon'ble Supreme Court of Pakistan considered the delay of thirteen hours in conducting the post mortem examination on the dead body of deceased, to be an adverse fact against the prosecution case and it was held that it shows that the F.I.R. Was not lodged at the given time.
12. The ocular account of the prosecution was furnished by Shahzad Ahmad (P.W.10) and Muhammad Iqbal, complainant (P.W.11). Both the above mentioned witnesses are not the residents of the place where this occurrence took place. They are residents of Lakhowal whereas, this occurrence took place on Raiwind Road. They have not given any plausible explanation for their presence at the spot at the relevant time and as such, they are chance witnesses. We have noted that the aforementioned witnesses also made dishonest improvements in their statements recorded by the learned trial court. In the F.I.R. (Exh-PF), Akbar Ali alias Bhola (appellant) was assigned the role of driving the car of his co-accused namely, Muhammad Azam (since P.O.), Muhammad Amin (since dead) and Zulfiqar Ali (appellant). It was not the case of the complainant party before the police that Akbar Ali alias Bhola (appellant) was carrying any weapon at the time of occurrence but while appearing before the learned trial Court, the aforementioned eyewitnesses have also alleged that all the accused persons (including Akbar Ali alias Bhola appellant) were holding rifles .244 bore and they resorted to firing at Muhammad Mushtaq and Mumtaz Ahmad (deceased persons) at the time of occurrence. The complainant did not mention the locale of injuries in the F.I.R. (Exh.PE) and he assigned a joint role of firing to the accused persons at the persons of the deceased but the complainant Muhammad Iqbal (P.W.11) while appearing before the learned trial court has mentioned specific locale of injuries on the bodies of deceased persons.
He was confronted with his previous statement and the improvements made by him were duly brought on the record. Relevant part of the statement of Muhammad Iqbal, complainant (P.W.11) at page Nos.172 & 173 of the paper book reads as under:-- "....I stated before the police in Fard Bian that the accused Bhola was driving the car and he along with accused Azam, Zulfiqar and Ameen were armed with .244 bore (Confronted with Exh. PE/1 wherein the word "all" is not mentioned.). I stated before the police that the aforesaid persons brought their car near us and made the firing (confronted with Exh.PE/1 where the word "in front" is recorded). I stated in Fard Bian that all the accused Liaqat, Yagoob alias Kudu and Irfan and unknown person were armed with rifle .244 bore (confronted with Exh.PE/1 wherein Yaqoob alias Kudu has not been shown armed and there is no mention of an unknown person therein). I stated in Fard Bian that the aforesaid four persons made the firing on the deceased Mushtaq and Mumtaz on their parts of the bodies head, neck, behind ear, near nose and on left side of chest/behind right Daula (confronted) with Exh.PE/1 where not so recorded). I stated before the police that the deceased persons received the fire arm injuries on right side of the head, behind the head, behind the right ear, on the body of deceased Mushtaq and Mumtaz (confronted with Exh.PE/I) where not so recorded."
' It is by now well-settled law that a witness who makes dishonest improvements in his statement is not worthy of reliance.
' Learned counsel for the complainant has argued that Shahzad Ahmad (P.W.10) is an injured eye- witness of the occurrence but admittedly, he was not injured due to the firing of any of the accused persons. According to the prosecution's own case, he received injuries on his person as the car of the deceased persons collided with an acacia (Keeker) tree at the time of occurrence. According to the statement of Dr. Khizer Hayat Khan (P.W.3), all the injuries on the person of Shahzad Ahmad (P.W.10) were caused by blunt means. It is also noteworthy that the occurrence look place at 08.00 a.m. On 19-11-2003 but Shahzad Ahmad (P.W.10) was medically examined by Dr Khizer Hayat Khan (P.W.3) at 2-30 p.m. i.e. With the delay of six and half hours from the time of occurrence.
Muhammad Iqbal, complainant (P.W.11) has stated during his cross-examination that he reached the hospital at 10-30 a.m. It is also noteworthy that Shahzad Ahmad (P.W.10) has stated at two stages of his cross-examination (at pages 156 and 159 of the paper book) that he was medically examined after the "Azan" of "Maghrib". There is no plausible explanation for the delay of six and half hours in getting Shahzad (P.W.10) medically examined by the doctor and if the statement of said injured witness is taken to be correct there was delay of about 9/10 hours in his medical examination. The said delay has casted serious doubt about sustaining injuries in the occurrence of this witness, as well as, his evidence.
13. It is the case of the prosecution that the appellants were armed with .244 bore rifles at the time of occurrence but nothing was recovered from the possession of all the appellants during the investigating of this case expect Zulfiqar Ali (appellant). Insofar as' the recovery of .44 bore rifle (Exh-P-28) along with two magazine, one containing ten bullets (P-29/1-10) and the other containing fifteen bullets (P-30/1-15) from the possession of Zulfiqar Ali (appellant) concerned, the same is of no avail to the prosecution because as per the report of the Forensic Science Laboratory (Exh-DDPP/B), the crime empties recovered from the spot were not found to have been fired from the said rifle, therefore, the alleged recovery of rifle (P-28) along with two magazines, one containing ten bullets (P-29/1-10) and E second containing fifteen bullets (P-30/1-15) is of no avail to the prosecution.
14. According to the prosecution case, the motive behind the occurrence was that Mushtaq (deceased) was released from jail about three months ago after serving out his sentence in the murder case of one Riasat (brother of Liaqat Ali, appellant) whereas, Mumtaz (deceased) was released on bail in the murder case of one Abbas (brother of Muhammad Ameen, appellant since dead). We have noted that the complainant party had enmity with number of persons.
Muhammad Iqbal, complainant (P.W.11) has conceded during his cross-examination that twelve criminal cases with the allegation of murder, murderous assault, dacoity etc. Were registered with different police stations against his brother Akbar Ali. It is also brought on the record during the cross-examination of above mentioned eye-witnesses that both the deceased namely, Mumtaz Ahmad and Muhammad Mushtaq also involved in criminal cases. Insofar as the murder of Riasat Ali, brother of Liaqat Ali (appellant) and murder of Abbas, brother of Muhammad Amin, appellant (since dead) are concerned, we have noted that it was also brought on the record that Muhammad Mushtaq (deceased) was convicted in the above mentioned murder case and sentenced to death which was converted into imprisonment for life by this Court and as such, there was no reason for Liaqat Ali (appellant) to commit the murder of Muhammad Mushtaq and Mumtaz Ahmad (deceased persons). The motive for the murder of Abbas was not alleged against the present appellants and the same was alleged against Muhammad Amin, appellant (since dead). Even otherwise, the motive is a double-edged weapon and if it could be a reason for commission of crime then at the same time, it could be a reason for false implication of an accused in the case. It is by now well-settled law that an accused cannot be convicted merely on the basis of evidence of motive in absence of convincing and reliable direct or circumstantial evidence. As we have already discarded other prosecution evidence, therefore, the evidence of prosecution qua the motive has become irrelevant.
15. So far as the medical evidence is concerned, it is by now well-settled law that medical evidence may confirm the ocular evidence with regard to the seat of injury, the nature of the 'injury, the kind of weapon used in the occurrence but it would not identify the accused. Reference in this respect may be made to the case of "Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others" (PLD 2009 SC 53). Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of "Mursal Kazmi alias Qamar Shah and another v. The State" (2009 SCM R 1410) and "Altaf Hussain v. Fakhar Hussain and another" (2008 SCM R 1103).
16. It is by now well-settled law that if there is a single circumstances which creates doubt regarding the prosecution case, then the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubts about the prosecution story. In the case of "Tariq Pervez v. The State" (1995 SCM R 1345), the Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:-- "5 ...The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.
If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.
' The Hon'ble Supreme Court of Pakistan while reiterating the same principle the case of "Muhammad Akram v. The State" (2009 SCM R 230), at page 236, observed as under:- "13. ...It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Triq Pervez v. The State 1995 J SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created 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."
17. In the light of above discussion, we have come to this irresistible conclusion that the prosecution has failed to prove its case against the Appellants beyond the shadow of doubt, therefore, we accept Criminal Appeal No.1195 of 2007 filed by Akbar Ali alias Bhola, Zulfiqar Ali and Yaqoob Ali alias Kaddu (appellants) and Criminal Appeal No.1196 of 2007 filed by Liaqat Ali (appellant), set aside their convictions and sentences and acquit them of the charges by extending them the benefit of doubt. They are in custody, they be released forthwith if not required in any other case.
18. Murder Reference No.512 of 2007 is answered in the NEGATIVE and the sentences of death of Akbar Ali alias Bhola, Zufliqar Ali, Yaqoob Ali alias Kaddu and Liaqat Ali (convicts) are NOT CONFIRMED.