Syed Hussain Mazhar Kaleem, J.--Above titled appeals have been directed against the judgment of District Court of Criminal Jurisdiction, Kotli dated 30.11.2007, whereby the appellants were convicted and awarded five years rigorous imprisonment each under Section 302, APC.
Muhammad Latif was also sentenced to five years imprisonment with five thousand rupees (Rs,5000/-) fine under the Arms Act.
2. Brief facts forming background of the appeals are that a case under Sections 302, 147, 148, 149, APC was registered at Police Station Sehnsa on the complaint of Abdul Majeed. It was reported that the complainant and the accused were close relatives. On 27.11.1995, Muhammad Saghir Son of Niaz Ali came to the house of Ghulam Abbas and told that his brother Muhammad Latif was asking him to come at his house. He refused as he was busy but Muhammad Saghir insisted upon which, at 10:00pm they left for Bilawal Bani. On 28.11.1995 at 9.00 am Javed Son of Muhammad Zaman informed the complainant that Fatima wife of Niaz Ali was asking to find out whereabouts of Ghalam Abbas and told that his son Muhammad Latif, Muhammad Saghir and Muhammad Habib were absent from home while the house of Shabir Hussain was also locked. They might have committed some crime. Upon this they started searching Ghulam Abbas. At 10.00am, when they reached in the forest of Bilawal Gala, found the dead body of Ghulam Abbas lying in the bushes.
Firearm injuries were present at the body. It was alleged that Shabir Hussain Muhammad Latif and Muhammad Habib committed his murder. The motive was an unpleasant incident which took place on 24.11. 1995 in Dagaar bazar because of which Shabir Hussain threatened to kill the victim.
3. After completion of investigation the Challan under Sections 302/34, 109, APC and 13/20/65, of the Arms Act was submitted before District Court of Criminal Jurisdiction Kotli. During trial Shabir Hussain absconded and was proceeded under Section 512, Cr.P.C. On conclusion of the trial, the Court acquitted Muhammad Habib accused-respondent while Muhammad Latif and Muhammad Sagheer were convicted in the aforesaid manner through the impugned judgment hence the above titled appeals.
4. Learned counsel for the convict-appellants argued that allegedly the occurrence took place during dark hours of the night. It was not witnessed by anybody and circumstantial evidence brought on-record was not confidence inspiring. There was no proof to establish that Muhammad Saghir went to the house of the deceased and brought him at the place of occurrence where he was done to death by Shabir Hussain and others. The motive was not proved. There was nothing on record indicating any unpleasantness between the convict-appellants and the deceased.
Confessional statements recorded under Section 164, Cr.P.C. Brought on record by the prosecution were fake and fabricated in order to strengthen the case against convicts. It was evident that the same were recorded after a considerable delay and were forcibly obtained from them. The prosecution story was not supported by any independent incriminating material. The recovery of weapons of offence was highly doubtful. As per postmortem report the deceased died of the injuries caused by .222-bore rifle thus, the allegation of using .12-bore gun during the crime against Muhammad Latif was not proved. During trial the prosecution failed to establish presence of the convict-appellants at the spot at relevant time. The circumstantial evidence brought on record was not worth consideration. The witnesses examined by the prosecution were closely related to the deceased and were also inimical towards the appellant. They miserably failed to prove the case and it was not established that the crime was committed in furtherance of common intention.
The trial Court while convicting the appellants ignored that the chain of circumstantial evidence was not intact. The prosecution story was highly doubtful and it was not safe to be believed for recording conviction, therefore, by accepting the appeal and setting-aside, the impugned judgment they may be acquitted of the charge.
5. On the other side it was argued that Shabir Hussain accused-absconder contracted second marriage with Mst. Rukhsana. Due to doubt of illicit relations between the deceased and his wife he nourished a grudge against him and hatched a conspiracy. He connived with the convicts and on the fateful day asked Muhammad Saghir to bring the deceased at the place of occurrence. It was done by him and thereafter all of them committed his murder. Though the occurrence was not witnessed by anybody but during trial the case against the convict-appellants was proved beyond doubt through circumstantial evidence. P.Ws. Abdul Majeed Inayat Khan, Mazhar Hussain and Mst.
Zarda Begum successfully proved the it on 27.11.1995 Muhammad Sagheer appellant came to Neli Syedan and at about 9:00 pm he took Ghulam Abbas deceased with him. Later on his dead body was recovered from Bilawal Gala Forest. P.Ws. Banaras and Abdul Qayyum established that Shabir Hussain accused-absconder and the convict-appellants were seen at the spot immediately before the occurrence and after committing the offence. They were armed with .222-bore rifle and .12-bore gun. During investigation, the weapons were recovered from them while the crime empties were also seized from the scene. Forensic Science Expert's report Exh.PFF reveals that the said empties were fired from .222-bore rifle and the .12-bore gun which were seized at instance of Shabir Hussain accused-absconder and Muhammad Latif. The prosecution story was also supported by confessional statement of the convicts recorded under Section 164, Cr.P.C. Wherein they voluntarily confessed about the crime. The prosecution successfully proved that an enmity was prevailing between the parties, the crime was committed in furtherance of common intention and all of them were equally responsible for committing the offence of murder. The trial Court while acquitting Muhammad Habib and awarding lesser (sic) appreciate the aforesaid facts therefore, by accepting the appeal filed by the complainant, the sentence may be enhanced in accordance with law.
6. We have heard the learned counsel for the parties and considered the record with care.
7. The prosecution claimed that due to doubt of illicit relations be weep wife of Shabir Hussain and the deceased, the accused-absconded nourished a grudge against him. On 24.11.1995 an unpleasantness took place between them in Daggar Bazar on the same issue and the accused threatened to kill him. He hutched a conspiracy with the help and connivance of Muhammad Latif, Muhammad Saghir and Muhammad Habib. On the fateful day, he asked Muhammad Saghir to bring the deceased at the s pot. He did so and thereafter all of then killed him.
8. In support of the above mentioned, the prosecution examined twenty two out of (sic) cited in the Challan. Incriminating material such as blood stained clay and .12-bore gun recovered at instance of Muhammad Latif along with crime empties seized from the spot and confirmatory Forensic Science Expert's report was produced in the evidence. The confessional statement of the convict- appellant and that of the accused-absconder were also placed on record.
9. It may be stated here that admittedly the occurrence was not witnessed by anybody. The whole prosecution case was based on circumstantial evidence. A perusal of record reveals that on 27.11.1995 Muhammad Saghir came to Neli-Syedan. P.Ws. Abdul Majid, Inayat Khan and Mazhar Hussain deposed that he was searching the deceased. As per deposition of Mst. Zarda Begum at about 10:00pm he took the deceased with him. On the following day of the occurrence, the dead body was found in the (sic) was alleged that Shabir Hussain accused absconder due to doubt of illicit relations between his wife and the victim, committed his murder with the help of the convicts.
10. The prosecution claimed that prior to the occurrence at about 10:00 p.m. Shabir Hussain accused-absconder and Muhammad Latif were seen by P.W. Banaras sitting in Bilawal Gala Forest.
As per deposition of P.W. Banaras he was coming back, home from Lehri. At about 5;OOpm Raja Muhammad Sabir met in the way. He went to his home and had dinner with him. Later on after obtaining Torch from him he left for home and when arrived in Bilawal Gala Forest saw the above mentioned offenders sitting there. They were armed with .222-bore rifle and .12-bore gun. After having a word with them he proceeded towards home and when reached at the place known as Neli Phundi heard the sound of fire. Next day he came to know about the occurrence. It is interesting to note that during trial, Raja Muhammad Sabir appeared as defence witness and negated his claim. He clearly stated that in November 1995 neither he met P.W. Banaras nor had dinner with him at his house The prosecution further claimed that on 27.11.1995 the convict- appellants and the accused-absconder met P.W. Abdul Karim at about 11:45pm, the statement of said P.W shows that on the aforesaid date at 5:00pm he left to see Baqa Muhammad, who was sick. He remained with him till 11:00 am. Thereafter left his house and while on way back Shabir Hussain, Muhammad, Latif and Muhammad Saghir met him near the house of Raja Muhammad Nazir Shabir was armed with .222-bore rifle while Muhammad Latif with .12-bore gun. During trial, Muhammad Nazir son of Baqa Muhammad appeared as defense witness. His statement was recorded on 27.07.2007 wherein he disclosed that neither he knows P.W. Abdul Karim nor Ghaffar and further deposed that they never came to his home to see his father. In view of the fact that both the above mentioned prosecution witnesses were chance witnesses and their respective claims were negated by D.Ws. Raja Muhammad Sabir and Muhammad Nazir, this part of prosecution story was doubtful and was not safe to be believed.
11. The prosecution also placed on record the statement of the convict-appellants and the accused-absconder recorded under Section 164, Cr.P.C. A careful consideration of the aforesaid reveals that contents of the statements lend support to the aforesaid facts but it does not indicate that the convict-appellants were aware of the fact that the principal offender was intending to commit the offence of murder, as it was not mentioned in the statement of Shabir Hussain accused-absconder that he told the convicts regarding his intention to kill Ghulam Abbas.
Similarly, the deposition of the other prosecution witnesses also do not show any circumstance establishing that they were aware of the fact that the principal accused was intending to commit the offence of murder. Their knowledge was only to the extent that due to doubt of illicit relations between his wife and the deceased, Shabir Huassain accused was intending to teach a lesson and threatened to the victim thus, in the circumstances it was hard to observe that they shared intention with the principal offender and the offence was committed in furtherance of common intention.
12. The trial Court while convicting the appellants relied upon recovery of .12-bore gun which was shown to have been seized at the instance of Muhammad Latif It is pertinent to note that allegedly .12-bore gun was seized from the house of the convict in presence of P.Ws. Muhammad Zaman and Anwar Hussain. Both the witnesses were not the residents of the locality. Muhammad Zaman was father-in law of the deceased. They admitted that at the time of recovery of weapons the respectable of the locality were also present there but they were not asked to join the process.
Though it was not required to ask for the independent witnesses during the process of recovery, but since it was admitted that more than sixteen respectable of the locality were present at the spot at relevant time, but they were not asked to join the process, casts a serious doubt in truthfulness of the recovery of weapon of offence. More over the weapons allegedly recovered from the convict- appellants were not used for committing the offence of murder, as the postmortem report does not indicate that any pellet injury was found at the dead body. Thus, the recovery of .12-bore gun from Muhammad Latif appellant was not sufficient to connect him with the offence of murder.
13. After considering the aforesaid facts, we are of the opinion that participation of the convict- appellants and Muhammad Habib in the offence of murder was not proved beyond doubt. Besides they had no direct enmity with deceased. Muhammad Habib was not ascribed any role in the occurrence. It was also established that the offence was not committed in furtherance of common intention while the recovery of weapon of offence at instance of Muhammad Latif was highly doubtful thus, in the given circumstances the conviction was not warranted.
' In light of the above listed facts, the appeal filed by the convicts is accepted and they are acquitted of the charge while that of filed by the legal heirs of the deceased against Muhammad Latif, Muhammad Saghir and Muhammad Habib being without any substance is hereby dismissed.