' WAZIR SHAKEEL AHMED, J.---This appeal has been preferred against the judgment dated 27-9-2011 of learned Additional Sessions Judge Chilas whereby the above appellants were convicted and sentenced to life imprisonment under section 302(b), P.P.C. For the murder of Juma Muhammad son of Khalil and Fiaz Muhammad son of Juma Muhammad and to pay Rs,2,00,000 each as compensation to the legal heir of the deceased in case of failing to pay the same, to undergo further rigorous imprisonment for one year extending them the benefit of section 382, Cr.P.C.
2. The brief facts gathered from the record of the case are that on a spy information a case bearing F.I.R. No,21/93, Exh(P.W.8/4) was registered at Police Station Jal Diamer on 15-10-1993 at 8:00 hours stating therein that one Juma Muhammad son of Khalil proclaimed offender in a Case No, 4/93 under offences 307/34/109 of the same Police Station Jal was murdered on the same day i,e, 15-10-1993 along with one Faiz Muhammad son of Juma Khan on the way of Mamigal Hills of Moza Thak.
3. During the course of investigation the above appellant's along with one Raj Mir son of Zarmast Khan arrested on 29-10-1993 by then I.O. Abdul Manaf P.W.9 who was entrusted the investigation of the case on 25-10-1993. The former I.O. Namely Muhammad Yunus P.W.8 chalked the F.I.R.
Exh.P.W.8/A prepared Exh.P.W.8/Bec (inquest reports) of deceased Juma Muhammad and Faiz Muhammad Exh.P.W.8/D site plan of place of occurrence. Exh.P.W.1/A, recovery memos of 18 empties Exh.P.W.1/B dead body of deceased Faiz Muhammad with blood-stained cloth. Exh.P.W.3/A blood-stained shirt of deceased Faiz Muhammad Exh.P.W.3/B blood stained earth of deceased Juma Muhammad, recovery memo Exh.P.W.3/C and D of dead bodies of the above deceased.
Exh.P.W.3/E and F are the recovery memos of dead-bodes of the deceased. The above I.O. P.W.8, also prepared and submitted Exh.P.W.8, the challan under section 302 and another challan under 13, A.O. Before the Court. The site plan was actually found prepared by ASI Raza. Apart from the above documents the latter I.O. Abdul Manaf got prepared Exh.P.W.2/B site plan of recovery memo of weapon of offence from the house of accused Gulzeb and Exh.P.W.2/A is recovery memo of the weapon of offence (five shot) from the said Gulzeb likewise Exh.P.W.9/A is the site plan of recovery of weapon of offence from accused Mujeeb-ur-Rehman and Exh.P.W.2/C is the recovery memo of kalashnikov from accused Mujeeb-ur-Rehman and Exh.P.W.2/B is the recovery memo of weapon of offence (five shot) from accused Riaz P.W.9/Z and Exh.P.W.9/X are the applications submitted to SP Diamer by Qalar Muhammad P.W.I while P.W.4/A P.W.5/A are the statements of P.W.4 Abdul Wahab and P.W.5 Khan Muhammad respectively.
4. The final challan of the case was submitted on 21 November against the appellants and one Raj Mir son of Zarmast Khan who was acquitted from charges vide impugned judgment. The accused were formaly charge (jointly) on 10th May, 1994 which they denied whereafter the prosecution managed to adduce 9 P.Ws. Including two I.Os. Namely Muhammad Younus and Abbul Manaf P.Ws.8 and 9 and the District Prosecutor vide his closing statement dated 31-10-1998 abandoned the remaining three P.Ws. Accused Karim Dad was murdered during trial and trial to his extent was abated. The accused were examined under section 342, Cr.P.C. For the purpose of enabling them to explain the circumstances appeared in the evidence against them. The material questions put to them and the relevant answer are reproduced as under:-- ' Q-2 Then why have the P.Ws. Deposed against you in Court?
' A- The P.Ws. Have close relationship with the deceased and we have been implicated on suspicion because previously my brother Karim Baksh was murdered by the said Juma Muhammad deceased. We are innocent and have been simply involved due to the suspicion of the complainant.
' P.W. Qalar Muhammad is the brother of deceased Juma Muhammad. P.W. Tajwar's father is the cousin sister's' son of the deceased. P.W. Muhammad Jamil is the sister's son of the deceased. P.W.
Abdul Ahab's sister was the wife of deceased Juma who is also maternal uncle of the deceased Faiz Muhammad. P.W. Khan Muhammad is the son of deceased Juma. P.W. Rajoo is the aunt's sons's son of deceased Juma. P.W. Abdul Qidoos is uncle's daughter's son of the deceased. All the P.Ws. Are related to each other.
' Q-3 It is in the evidence that a five shot rifle was recovered from your possession as a weapon of offence.
' What do you say in this regard?
' A- No it is incorrect. No weapon of offence was recovered from me.
' The appellants however neither entered into the witness box under 340(2), Cr.P.C. Nor opted to produce any evidence in their defence.
5. At the end of the trial the trial Court convicted and sentence the above appellant as mentioned above.
6. The learned counsel for the appellants while supporting their appeal contends, that the case is admittedly chalked on the basis of spy information wherein there is no mention of any direct charge or ocular witnesses of the occurrence, he vehemently opposed the impugned judgment/order stating that the appellants along with other five persons were roped in this case by one P.W. Qalar Muhammad through an application before the police. They further contended that the present conviction/sentence cannot be sustained on account of material contradictions and improvements in the statements of P.Ws. Who are admittedly relatives of the deceased. They further argued that no postmortem of the deceased has been conducted in the case in hand. The learned counsel for the appellant further submits that fire-arms recovered were not sent to Arm Expert making the case of prosecution highly doubtful. The learned counsel vehemently stressed that the case of the prosecution revolves upon interested witnesses who are otherwise not trustworthy who have just made illegal improvements in their statements recorded before the trial Court but have also given evidence with a motive other than telling the truth and suppressed the facts which they were supposed to know in ordinary course of events.
7. On the other hand the counsel of the complainant while supporting the conviction argued that the P.Ws. Have fully supported the prosecution story and the eye-witnesses have identified the accused persons and named them before the police as well as in the trial Court, further stating that recoveries have been made by the police on the pointation of the accused in line with ocular evidence.
8. We have heard the learned counsel of the parties at length and also gone through the record of the case minutely with their able assistance and found that:--
(a) The learned trial Court while adjudicating the matter has altogether neglected the fact that the eye-witnesses have been examined twice during the course of investigation. Both the eyewitnesses namely Khan Muhammad and Abdul Wahab have illegally improved their statements, for instance in their first statements recorded under section 161, Cr.P.C. Recorded on.
The next day of occurrence they nominated two accused namely Riaz and G.Ulzaib and on their second statements recorded under section 161, Cr.P.C. On 27-10-1993 they have implicated 4 accused namely 1. Mujeeb-ur-Rehaman,
2. Riaz sons of Hayat,
3. Raj Mir son of Zarmast,
4. Gulzaib son of Gulab resident of Thak District Diamer and finally they have charged all five accused while recording their statements before the trial Court. The all above improvements have been duly confronted by the counsel of the defence during their cross- examination.
(b) The learned trial Court has also failed to notice the hard fact that both the I.Os. Of the case namely Muhammad Younus and Abdul Manaf have never bothered to inspect the site of occurrence during the course of investigation. The record reveals that soon after registering the case in hand the I.O/P.W.8 Muhammad Yunus just managed to go to the police station at Jal and sent one of his subordinate Muhammad Raza ASI to the site of occurrence.
(c) It is interesting to note that the site inspection report as well as the site plan has been prepared by the ASI Muhammad Raza along with recovery memos Exh.P.W.3/A to F regarding collection of blood-stained earth empty shells of weapon, cloths of two deceased and handing taking of the dead body of the deceased but name of this important witness does not even appear in the calendar of witnesses. The above important recovery memos and report/site plan were illegally got exhibited in the trial Court through P.W.8 who had wrongly and illegally appended his sign on the above documents as evident from the record of the case.
9. The recoveries of fire-arm from the accused cannot be relied upon safely because of fact that they have been effected after 6 days of arrest of the accused. It is also worth-mentioning here that the recovered empty shells of arms were not sent to forensic laboratory making the case of the prosecution doubtful .
Furthermore, although the provision of section 103, Cr.P.C. Are not strictly adhered to in case of recovery, on the pointation of accused persons, at the same time the fact in hand could not be overlooked that all the recoveries of fire-arm have been effected with the help of recovery witness who is the real nephew of the deceased Juma Muhammad. The admission of this recovery witness also cannot be brushed aside wherein he categorically states that all the recoveries have been effected at one time and from one house against the fact and the record of the case.
10. According to the eye-witnesses deceased persons were ambushed from three sides, but there is no Collaboration of this fact in the case file rather the fictitious and so-called site plan of occurrence is also silent about this. The another disappointing aspect of the investigation is that the bodies of deceased persons were never sent to autopsy leaving the cause or mode of the death in mystery. At least the bodies should have been got inspected by the Medical Officer in the nearest Hospital. The proceedings further revealed that the prosecution had managed, to procure two witnesses P.Ws. 6 and 7 as circumstantial evidence but the same cannot be relied in support of the statements of the so called eye-witnesses whose statements are full of contradiction and improvements.
Almost all the P.Ws. Are interested ones i,e, P.W.1 is real brother of Juma Muhammad who has denied the admitted fact that deceased Juma Muhammad was proclained offender. Tajwar P.W.3 is relative to deceased family. P.W.2 is the real nephew of deceased Juma Muhammad as stated above. P.W.4 Abdul Wahab is the brother-in-law of Juma Muhammad and P.W.5 is son of the deceased Juma Muhammad likewise P.Ws.6 and 7 are also related to deceased family.
11. In the light of what has been stated above, the benefit of doubt arising out of the above enumerated circumstances should not go any where except to the accused in the like cases. The accused is entitled to the above benefit not as a grace but as a right, hence this appeal is accepted, accused is acquitted from the charges by setting aside the judgment/order of the trial Court dated 27-9-2011.
' These were the reasons of our short order dated 21-8-2013. File be consigned to the record.
Appeal accepted.
2014 P Cr. L. J 726 [Lahore] Before Sh. Najam ul Hasan and Mehmood Maqbool Bajwa, JJ MUHAMMAD ASIF---Petitioner versus The STATE and another---Respondents Criminal Miscellaneous No,16506-B of 2013, decided on 29th January, 014.
Criminal Procedure. Code (V of 1898)------S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 353, 109, 34, 427, 201 & 186---Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 21(0---Qatl-e-amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, abetment, common intention, mischief causing damage to the amount of fifty rupees, causing disappearance of evidence of offence, or giving false information to screen offender, obstructing public servant in discharge of public functions, acts of, terrorism---Bail, grant of-Further inquiry-Co-accused persons allegedly killed police officials and other deceased persons---Allegation against accused was that he drove the co-accused persons to the place of occurrence---Accused was only ascribed role of conspiracy in the F.I.R.---Occurrence was committed by four unknown persons, but subsequently, complainant made supplementary statement indicating that accused was driving the car in which the co- accused persons came at the spot and resorted to firing---Accused was found innocent during investigation and in report under S. 173, Cr.P.C. His name was put in Column No,2---One of the co- accused who was assigned a role similar to that of accused had already been released on bail--- Accused was also the complainant of an earlier case, wherein a deceased of the present occurrence and his brother were nominated for the crime, therefore, probability of false implication of accused in the present case could not be ruled out---Accused was no more required for further investigation---Case was one of further inquiry---Accused was released on bail in circumstances.
Hr. 7291 A Abdul Khaliq Safarani for Petitioner.
Munir Ahmed Sial, Deputy Prosecutor-General for the State.
Naveed Akhtar Bhatti for Gulfan Ullah.
Muhammad Akram, S.I./I.O. With record. ORDER ' Through this petition, Muhammad Asif, petitioner seeks post-arrest bail in case F.I.R. No,121 dated 5-4-2013 registered under sections 302, 324, 353, 427, 186, 109, 201, 337-F(iii),-337-F(v), 337-A(i), 34, P.P.C. Read with sections 6, 7 and 21(i) of Anti-Terrorism Act, 1997 at Police Station Aimanabad, District Gujranwala.
2. The matter relates to an occurrence which took place on 15-4-2013 at 11-20 a.m. And the matter was reported to the police on the same day at 1-45 p.m. The F.I.R. Was registered on the statement of one Iftikhar Ahmed, Constable/complainant who is injured P.W. Of this case. In this occurrence three persons, namely, Gulfan Ullah, Hafeez Ullah, both police constables and Shahab Din alias Shahbu lost their lives whereas complainant Iftikhar Ahmed, Constable 1224 and Shabbir Hussain received injuries. The prosecution case is that complainant along with deceased persons and injured were going to Gujranwala Katchery to obtain remand of accused Shahab Din alias Shahbu (since died) and injured Shabbir Hussain from the court when on the way they were halted by a car in which four unknown persons were present and they resorted to firing in result of which the, occurrence took place. At that time Tehseen Constable co-accused of the petitioner left the car.
The role assigned to the petitioner and one Mian Liaquat was that of conspiracy. Later on,' complainant made supplementary statement on the same day and assigned the role of driving car to the petitioner. The petitioner was arrested on 23-7-2013 and during investigation nothing was recovered from him and ultimately he was found innocent and his name was placed in Column No,2 of the challan. This is the second bail petition. Earlier bail petition vide Criminal Miscellaneous No,11019/B of 2013 was dismissed on merits vide order dated 2-9-2013. The instant petition has been filed on the rule of consistency as co-accused of the petitioner, namely, Mian Liaquat having absolute same role has been granted bail by this Court vide order dated 12-11-2013 passed in Criminal Miscellaneous No,14050-B of 2013.
3. Learned counsel for the petitioner states that petitioner is innocent. In fact petitioner was complainant in earlier case in which Shahab Din alias Shahbu and his brother Shabbir Hussain were accused and for that he has falsely been involved. It is stated that petitioner was assigned the role of conspiracy alone in the F.I.R. And it was stated that the occurrence was committed by four unknown persons but later on he was assigned the role of driving the car in which he along with three other accused came at the spot and fired at the deceased but, no role of causing any firearm injury either to the deceased or the injured persons was assigned to the petitioner even in the supplementary statement got recorded by the complainant on the same day no role of firing was assigned to the petitioner. It is stated that during investigation he was found innocent by the I.O. And later on while submitting report under section 173, Cr.P.C. His name was placed in Column No,2. Further states that co-accused Mian Liaquat who was assigned the same role has now been released on bail by this Court and similarly Tehseen co-accused who was present at the place of occurrence has been allowed bail by the learned trial Court. So, the petitioner also deserves the same relief.
' On the other hand learned counsel for one of the deceased Guam' Ullah, Constable states that petitioner is duly nominated in the F.I.R.; that he was the person who brought all the three assailants to the place of occurrence so his involvement is evident; that trial has now commenced and the same is likely to be concluded in near future. Prays that this bail petition be dismissed.
5. Learned Law Officer, however, admits that the petitioner was found innocent during investigation and for that reason his name was placed in Column No,2 of the challan.
6. We have heard-the learned counsel for the parties and perused the record. In F.I.R. Role of the petitioner was that of only conspiracy. It is clear that the occurrence was committed by four unknown persons, later on, complainant made supplementary statement indicating that the petitioner was driving the car in which three other accused came at the spot and resorted to firing.
Petitioner was found innocent during investigation and in report under section 173, Cr.P.C. A his name was placed in Column No,2. Co-accused of the petitioner, namely, Mian Liaquat who was also assigned the same role has now .Been released on bail by this. Court vide order dated 12-11- 2013 passed in Criminal Miscellaneous No 14050-B of 2013. The petitioner is no more required for further investigation and as petitioner was complainant, of the earlier case in which deceased Shahab Din alias Shahbu and his injured brother Shabbir 'Hussain were accused so possibility of his false involvement in the instant case cannot be ruled out.
7. So, keeping in view the above circumstances, we think at this stage case of the petitioner remains that of further inquiry. Accordingly, this petition is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs,3,00,000 with two sureties each in the like amount to the satisfaction of the learned trial Court.
8. As trial is in progress so the trial Court, is directed to expedite the trial.