' Appellants Kaleem Ullah and Riaz Ahmad have challenged their conviction and sentence through this Criminal Appeal No, 283 of 2003. They were tried by learned Additional Sessions Judge, Vehari in a private complaint filed under Sections 302, 365, 148, 149, 109, PPC arising out of FIR No, 297/2001 dated 22.07.2001 under Sections 302, 458, 34, PPC registered at Police Station Saddar Vehari along with Tauzeem, Muhammad Ashraf, Muhammad Aslam, Muhammad Bashir, Ibrahim alias Jagga, Aslam, Talib and Taj. Complainant Shaukat Ali has filed Criminal Revision No, 146 of 2003 seeking enhancement of sentence of appellants. I propose to decide both these matters through this consolidated judgment.
2. On conclusion of trial, learned trial Court vide judgment dated 29.03.2003 convicted both the appellants. They were sentenced as under: ' Convicted under Section 302(c), PPC and sentenced to undergo ten year imprisonment (S.I) each with Rs, 20,000/- (each) as compensation payable to the legal heirs of the deceased. In default, to further undergo imprisonment for two months (each).
' The remaining co-accused were acquitted of the charge.
3. Occurrence was reported to police by Kaleem Ullah son of MuhamMad Ibrahim (appellant) and FIR No 297 of 2001 dated 22.07.2001 under Sections 302, 458, 34, PPC was registered with Police Station Saddar, Vehari. Facts of the FIR, briefly, are that on the night intervening between 21/22 of July 2001 complainant along with his wife and children were sleeping in the compound of his house. At 01:30 (night) complainant woke-up to attend the call of nature and saw his wife Mst.
Shehnaz Bibi not present at her cot. As the complainant already had suspicion of his wife having illicit relations with Allah Rakha son of Shaukat Ali, so he after searching the compound went to the room, light of which was off and the room was closed. He suspected his wife of having illicit intercourse with Allah Rakha inside the room. He locked the door from outside and enquired his wife as to who was with her. She told that Allah Rakha was with her. She asked to open the door but the complainant did not respond positively. Complainant called Muhammad Riaz his paternal cousin. They both picked up Sot as and opened the door of room on which Allah Rakha made fire shot with his rifle on them but they luckily survived. After waiting for some time, they both entered the room and Allah Rakha while pointing rifle at them threatened them to kill. They started causing injuries to Allah Rakha with their Sotas. In the meanwhile, many people from the vicinity got attracted. They saw Allah Rakha had fallen on the ground and succumbed to the injuries. Wife of complainant escaped from the scene in the meanwhile. Rifle of Allah Rakha got broken during the occurrence.
4. After registration of FIR, investigation was conducted, however, being dissatisfied with investigation, Shaukat Ali father of deceased lodged private complaint in which Kaleem Ullah (complainant of FIR) and nine others were arrayed as accused. Facts mentioned in private complaint are that on 21.07.2001 at about 07:00 p.m. Complainant was present in his house alongwith his brother Muhammad Aslam and Allah Rakha, his son. Rana Intizar owner of Zulfiqar Petroleum service where complainant's son Allah Rakha was serving as Guard, came to the house of complainant and asked Allah Rakha to perform night duty at Petrol Pump as he had to go to a marriage ceremony. At about 09:00 p.m. Allah Rakha along with Farzand Ali, son in law of complainant and Allah Ditta, son of complainant and Abbas son of Waris Ali Joyia went to the Petrol Pump where licenced rifle. 222 bore of Rana Intizar was available. At about 12:00/01:00 a.m., Allah Rakha was on duty, whereas Farzand, Allah Ditta and Abbas were sleeping nearby. They woke up on hearing noise suddenly. They saw in the light of tube light that Kaleem Ullah, Ashraf armed with rifles, Tauzeem, Aslam, Bashir and Ibrahim armed with sot as were present there. Ibrahim raised Lalkara that they had come to teach a lesson to Allah Rakha for insulting them in the village.
Allah Rakha, in order to save himself tried to load the rifle, on which Ibrahim alias Jagga grappled with Allah Rakha and snatched rifle from him. Remaining accused persons over-powered Allah Rakha and took him towards eastern side. Witnesses Farzand Ali, Allah Ditta and Abbas tried to intervene, on which Kaleem Ullah accused while pointing fire-arms threatened them to kill. The witnesses informed complainant on which they proceeded in search of Allah Rakha but in vain. On hearing report of firing, complainant along with witnesses went towards the house of Kaleem Ullah, Tauzeem and Ibrahim alias Jagga. They saw that six' accused persons mentioned above along with Riaz accused were present in the house of Ibrahim alias Jagga, who killed Allah Rakha by firing at him and the dead body was found in a room of said house. Accused person did not allow the complainant to take dead body and also restrained them from going to police station. However, complainant reached police station at morning time. Motive as stated in the complaint is that about ten days prior to the occurrence a quarrel took place between Allah Rakha, son of the complainant and Kaleem Ullah and Tauzeem accused persons in Chowk of the village. In that quarrel Kaleem and Tauzeem accused persons were beaten by,Allah Rakha, but the matter was patched up through respectables. However, accused persons had grudge in their mind, due to which they murdered Allah Rakha. It has been alleged in the complaint that complainant moved an application before police for registration of FIR but the police in connivance with accused party registered FIR No, 297/2001 showing application of complainant to have been moved at 04:00 p.m.
With mala fide.
5. Appellant and other co-accused were summoned to face trial. They were charge sheeted in private complaint by learned trial Court, to which they pleaded, not guilty and claimed trial.
Prosecution got examined as many as nine witnesses. On conclusion of trial, present appellants were convicted and sentenced as mentioned above whereas co-accused were acquitted, hence, this criminal appeal as well as revision.
6. Learned counsel for appellants argued that prosecution version was disbelieved by the trial Court as it was a concocted story put forth after consultation and deliberation in a private complaint; the learned trial Court has convicted the appellants and on the same evidence acquitted eight co-accused; that if prosecution version is disbelieved the accused have to be acquitted even if killing of deceased is admitted by them. Reliance is placed on case titled "Waqar Ahmad V. Shoukat Ali and others" reported in 2006 SCM R 1139, case titled "Faqir Muhammad and another V. The State" reported in PLD 2011 SC 796, case titled "Azhar Iqbal V. The State" reported in 2013 SCM R 383 and "Aurangzeb V. The State and others" reported in 2015 YLR 912.
7. Conversely, learned Additional Prosecutor General assisted by learned counsel for complainant has supported the impugned judgment.
8. Heard. Record perused.
9. Allah Rakha son of complainant was found dead inside the house of Kaleem Ullah appellant at night in between 21/22.07.2001 in Chak No, 188/EB falling within territorial limits of Police Station Sadder, Vehari. The incident was reported by Kaleem Ullah appellant to Abdul Sattar SI at 05:45 a.m. On 22.07.2001 According to him Allah Rakha (deceased) had developed illicit relations with his wife. He came at night in his house. When Allah Rakhha was spotted inside the room in the company of his wife. Allah Rakha threatened them and fired with rifle. They inflicted Sota blows who succumbed to the injuries. Rifle .222 bore was found broken near dead body of Allah Rakha. Father of the deceased name'y Shauka, however, introduced his own version during investigation:. Feeling dissatisfied with investigation, he ultimately filed private complaint against present appellants and eight others. It was version of .Complainant (PW-7) that on 21.07.2001 at 07:00 p.m. Allah Rakha was present in his house where Rana Intizar came. Allah Rakha was employee as Guard at his Petrol Pump. He asked Allah Rakha to perform duty at night. At about 01:00 a.m. (night) Allah Rakha was performing his duty at Petrol Pump whereas Farzand, Allah Ditta and Abbas were also sleeping.
Hearing alarm, they woke up and saw accused Kaleem Ullah and nine others were grappling with Allah Rakha. The accused threatened the witnesses. He was informed about abduction of his son Allah Rakha. They started searching him but did not find any clue. At 02:00 a.m., they heard report of firing from the house of Kaleem Ullah (appellant). The accused in that house had murdered his son Allah Rakha by firing at him. During trial the above version was reiterated by Shaukat Ali as PW-
7. The other PWs also deposed on the same lines. PW-7 explained before the Court that he along with Aslam went to Police Station at 08:00 a.m. On the day of occurrence as the accused party did not allow them to report the matter immediately after the occurrence and he also submitted an application but the police registered a, false case on the statement of Kaleem Ullah accused.
When his case- was not registered by the police, he filed a writ petition before High Court. In cross- examination he stated that writ petition was filed after seven days of the occurrence, in which he was directed to present his version before police. It was suggested to him during cross- examination that in writ petition he had not named Riaz, Aslam, Talib and Taj accused. He volunteered that names of above mentioned accused were told by him to his counsel but he did not know whether the same were mentioned in the writ petition or not. From perusal of statements of the witnesses it is clear that incident of abduction of Allah Rakha from the Petrol Pump of Intizar (given up PW) was not reported to police at night. During investigation it was stated that deceased was abducted from petrol pump of one Intizar who was not produced during trial. The witnesses could report the incident to police on telephone or at least to other, residents of the locality but it was not done by them. In the morning it was appellant who went to police station and informed about the occurrence. The above facts clearly indicate that PWs and complainant were not aware about the incident at night. The story of abduction of Allah Rakha and then killing him in their presence by the accused was per se a concocted one, hence, could not be believed. The learned trial Court also discarded the version of the witnesses concluding that the incident of killing of Allah Rakha had occurred in the manner as mentioned in report submitted by the police under Section 173, Cr.P.C. Accused Azeem, Muhammad Ashraf, Muhammad Aslam, Muhammad Bashir, Ibrahim, Aslam son of Panah Muhammad, Talib and Taj were acquitted of the charge. Regarding present appellants, the learned trial Court has concluded as under: "Accused Kaleem Ullah and Muhammad Riaz had found themselves under the tyranny of circumstances in a cataclysmic situation from which they could not have an honourable exit; the wife of Kaleem Ullah, Mst. Shahnaz who is sister of the accused Muhammad Riaz, was having sexual pleasure with Allah Rakha an outsider, in the own house of Kaleem Ullah. These accused person cannot be convicted and sentenced in such a situation under Section 302(a) or 302(b), PPC.
' Extenuating circumstances are accorded to each of these two accused persons; they both are convicted and sentenced u/S. 302(c), PPC; each for a period of ten years S.I. With Rs, 20,000/- as compensation payable to the legal heirs of the deceased, in default of which they both shall undergo further imprisonment of two months each The benefit of u/S. 380-B, Cr.P.C. Shall extend to these accused persons."
10. On re-appraisal of evidence, it has been noticed that against Riaz Ahmad appellant there is no evidence except statement of his co-accused Kaleem Ullah appellant on the basis of which he has been convicted. Statement of an accomplice is hardly sufficient to convict co-accused unless it is corroborated from an independent source. Consequently conviction of Riaz Ahmad appellant is not sustainable. He is acquitted from the charge; now the question to be considered is whether Kaleem Ullah appellant on his admission of killing Allah Rakha could be convicted in this case after prosecution version having been rejected by the trial Court as well as by this Court. The above proposition came for consideration before the apex Court in case titled "Azhar Iqbal vs. The State" reported in 2013 SCM R 383, and it was held as under: - "It has straightaway been observed by us that both the learned Courts below had rejected the version of the prosecution in its entirety and had then proceeded to convict and sentence the appellant on the sole basis of his statement recorded under Section 342, Cr.P.C. Wherein he had advanced a plea of grave and sudden provocation. It had not been appreciated by the learned Courts below that the law is quite settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had there by admitted killing the deceased".
' In another case i,e, "Faqir Muhammad and another v. The State" (PB) 2011 SC 796) the Hon'ble Supreme Court scanned the law on the subject as under:- Inculpatory part of accused person's statement could be utilized by the Court only where prosecution had succeeded in establishing its case and defence failed to establish specific plea taken by it--Entire case of prosecution was disbelieved by High Court and even statement of accused recorded under S.342, Cr.P.C. Wherein he advanced the plea of grave and sudden provocation had been discarded for want of any supportive evidence--Inculpatory part of the statement of accused recorded under S.342, Cr.P.C. Could not be utilized for recording or upholding convictions and sentences to accused."
11. In the present case ocular account regarding the incident was disbelieved by the trial Court and on re-appraisal of evidence finding recorded by trial judge is found sustainable, therefore, conviction and sentence recorded against appellant Kaleem Ullah cannot be up-held and the same has to be set aside.
12. Resultantly, Criminal Appeal No, 283/2003 is hereby allowed conviction and sentence recorded by learned trial against appellants is set aside. Appellants Kaleem Ullah and Riaz Ahmad are acquitted of the charge leveled against them in this case. Presently they are on bail. Their sureties are discharged from liabilities of bail bonds.
13. As a result of what has been discussed above, Criminal Revision No, 146/2003 is hereby dismissed.