SARDAR TARIQ MASOOD, J.---Khurram Shehzad, Raheel and Manzoor Ahmed appellants, along with Ghulam Nabi, Ehsan Ullah, Qaiser, Nadeem, Ejaz Ahmed, were tried by the learned Additional Sessions Judge, Phalia, District Mandi Baha-ud-Din, in case FIR No, 173 dated 14-5-2004 under sections 302/109/34, P.P.C., registered at Police Station Pahrianwali, District Mandi Baha-ud-Din. The learned trial Judge vide judgment dated 17-7-2009 convicted all the appellants under section 302(b) read with section 34, P.P.C. For the murder of Mst. Zubaida (deceased) and sentenced Khuram Shehzad and Raheel appellants to death and Manzoor Ahmed appellant to imprisonment for life, respectively. The appellants Khurram Shehzad and Raheel were further directed to pay compensation of Rs,100,000 each under section 544-A, Cr.P.C. To the legal heirs of the deceased, or in default whereof to undergo six months' S.I. Each. The appellant Manzoor Ahmed was directed to pay Rs,50,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of deceased, or in default thereof to further undergo six months' S.I. Benefit of section 382-B, Cr.P.C. Was extended to Manzoor Ahmed appellant.
The appellants have filed two separate appeals i,e, Criminal Appeal No, 1190 of 2009 and No, 2634 of 2009, against their conviction and sentence whereas the learned trial Court has sent a reference (M. R. No, 309 of 2009) under section 374, Cr.P.C. For the confirmation of death sentence of Khurram Shehzad and Raheel appellants or otherwise. The complainant has filed Criminal Revision No,850 of 2009 for enhancement of sentence of Manzoor Ahmed appellant. We propose to dispose of all these matters by this single judgment.
2. Brief facts of the case as narrated in the FIR (Exh.P-D/1) recorded on the statement (Exh.P-D) of Nisar Ahmed, complainant (P.W.11) are that on 14-5-2004, he along with his guests Sarfaraz (his Khala Zaad) and Imtiaz Ahmed (his Mamoon) were coming towards village from Dera of cattle.
Ahead of them, at a distance of one acre, his mother Mst. Zubaida Bibi etc. Were also coming towards village from the said Dera after fetching milk. At about 7-00 a.m., when his mother was passing through graveyard, Khurram, Manzoor Ahmed, Ghulam Nabi and Raheel, all armed with fire-arms weapons, suddenly came out of bushes when his mother was at a distance of 50/60 yards in southern side from the graveyard. On seeing them, his mother started running, upon which Khurram raised a lalkara of giving taste to Mst. Zubaida for not effecting compromise and instantly, Khurram fired a shot with his rifle, which landed near left flank of his mother. She fell down and Raheel fired a shot with his gun, which hit near her right flank. Manzoor Ahmed fired a shot with his gun, which banded on her left wrist. She succumbed to the injuries at the spot. Ghulam Nabi kept on firing in the air with his gun. Complainant along with Sarfaraz and Imtiaz Ahmed witnessed the occurrence and did not step forward due to fear.
Motive for the occurrence was some previous litigation, due to which, accused persons, in consultation with each other, committed murder of his mother.
3. After completion of the investigation, report under section 173, Cr.P.C. Was submitted against the appellants. Charge was framed, to which, they pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as 18-P.Ws. In all.
Nisar Ahmed complainant (P.W.11) and Sarfraz Ahmed (P.W.12) are the witnesses of ocular account.
P.W.9 Muhammad Afzal ASI, P.W.17 Nazeer Ahmed SI and P.W.18 Munawwar Hussain Shah Inspector are the Investigating Officers of this case. Rest of the witnesses are formal in nature.
P.W.4 Lady Dr. Mrs. Nazli Saleem Wyne, conducted the postmortem examination on the dead- body of Mst. Zubaida Bibi (deceased) on 14-5-2004, and found following injuries on her person:- 1-A Fire arm entry wound with inverted margins, 2 x .5 cm into going deep on the back of trunk near the right side of the trunk most laterally, at the level of 7th rib of thoracic age.
1-B Fire arm exit wound with inverted (in postmortem report everted is mentioned) margins, lacerated, 2.5 x .8 c. m, on front of lower part of left side of chest most laterally at the level of 9th rib.
2-A Fire arm entry wound with inverted margins, 2.5 x .8 cm into going deep on anterior aspect abdomen nearly at the center of hypogastrium of abdomen.
2-B A foreign body (bullet) was removed from the posterior aspect of left side of trunk most medially to the vertebral column nearly at the level of 10 thoracic (exit of fire arm bullet was made).
3-A. Fire arm entry wound with inverted margins 0.6 x 0.6 into skin deep just below the left elbow joint on the anterior surface of left Upper limb most medial.
3-D. Fire arm exit lacerated wound, 0.6 x 0.8 below the left elbow joint on the lateral border of left upper limb, Approximately in line with the entry wound.
In her opinion, all injuries described were ante mortem and caused by firearm weapon. Cause of death was injury Nos.1-A and 1-8 (entry and exit under injury No,1), rupturing both lungs and spleen and corresponding leading to excessive haemorrhage, shock and cardio respiratory failure and precipitating death in ordinary course of nature. Probable time between injury and death was immediately (within minutes). Probable time between death and postmortem was 10 to 12 hours.
4. The statements of the appellants under section 342, Cr.P.C. Were recorded. They denied the allegations levelled against them and claimed their innocence. In answer to the question, "why this case against you and why the P.Ws. Had deposed against you, all the appellants stated as under:- -- "P.Ws. Are related to each other. Long standing enmity exists between the parties. They are interested witnesses. They involved me due to enmity."
Neither the appellants opted to appear under section 340(2), Cr.P.C. In disproof of the allegations levelled against them by the prosecution, nor produced any evidence in their defence.
5. Learned counsel for the appellants contends that according to prosecution story, Saif the brother of complainant Nisar Ahmed and son of Zubaida Bibi deceased, was murdered on 3-10-2002 and Ghulam Nabi acquitted accused along with Khurram Shehzad appellant were accused of that occurrence and were on bail in the said case and they were pressurizing complainant party for effecting compromise and on refusal, they took the life of deceased; that Nisar Ahmed was the witness and complainant of murder case of Saif who allegedly was present at the place of present occurrence and if the motive asserted by the prosecution was correct, then he should have been the first target, but none caused even a scratch to him; that witnesses claimed that they had seen fire shots hitting on both flanks of Zubaida Bibi, but surprisingly Doctor did not observe any entry wound on the flanks of Zubaida Bibi so the medical evidence fully contradicted the ocular account which indicates that the witnesses had not seen the occurrence; that Sarfaraz P.W., during cross- examination, categorically stated that his residence was at a distance of 15 kilometers from the place of occurrence and he had no land, business or cattle to look after near the place of occurrence, nor any other business to do, so he could not justify his presence at the place of occurrence; that the milk pot which was allegedly in the hand of deceased Zubaida Bibi was never taken into possession from the spot; that although allegedly Khurram Shehzad got recovered a .222-bore rifle, but the said recovery is inconsequential because there is no matching report of FSL on the file; that witnesses are related to the deceased and are inimical towards the appellants and there is no corroboratory or supporting evidence to such inimical witnesses; and that, FIR was chalked out at 9-10 a.m., but surprisingly the postmortem was conducted at 4-30 p.m.
6. On the other hand, learned DPG assisted by learned counsel for the complainant has vehemently opposed these appeals while arguing that it was a broadday-light occurrence; that the witnesses were natural and from the prosecution evidence, the date, time, place and role of appellants is fully established, which was fully supported by the medical evidence; that although the role attributed to Khurram Shehzad and Raheel is not supported by the medical evidence, but medical evidence supported the ocular account, so far Manzoor Ahmed appellant is concerned.
7. We have heard the arguments of learned counsel for the parties as well as the learned DPG for the State and have perused the record minutely, with their able assistance.
8. In the FIR, the motive mentioned was previous litigation, but the witnesses of ocular account for the first time during the trial gave the motive that Saif was murdered on 3-10-2002 and in his murder case, Ghulam Nabi and Khurram Shehzad appellants were on bail and they were pressurizing the complainant party for compromise and on their refusal, they took the life of Zubaida Bibi. It had come on the record that Zubaida Bibi was neither the complainant, nor the witness of murder case of Saif, On the other hand, it had been brought on the record that Nisar Ahmed P.W.11 was the complainant and eye-witness of the murder case of Saif. If the motive asserted by the prosecution was correct, then the first target of the appellants should be Nisar Ahmed who was going to appear as a witness in the murder case of Saif, but during the occurrence, neither anybody tried to fire upon Nisar Ahmed nor he received any scratch during the occurrence. There was no reason for the appellant to commit the murder of Zubaida Bibi who was neither witness nor complainant of the murder case of Saif, so, the motive asserted by the prosecution is not plausible, rather the said motive indicates that the witnesses had the reason to falsely implicate the appellant due to the previous enmity of murder.
The case of prosecution was that both the witnesses and Zubaida Bibi were returning from the Dera towards their house whereas Zubaida Bibi was carrying milk pot and the witnesses were following her, but no such milk pot was taken into possession from the place of occurrence, nor the same was shown in the site plan. The place where the milk pot or spoiled milk was lying was also not shown in any document i,e, inspection note or site plans. Sarfaraz Ahmed P.W.12 is resident of a place which was 15 kilometers away from the place of occurrence. He categorically stated that he had no land, business or cattle to look after near the place of occurrence, nor any other business to do. He is the internal nephew of the deceased. According to him, it takes half an hour on a motorcycle to reach the place of occurrence from his village. So, his presence at the place of occurrence was doubtful because there was no reason for him to be available at the place of occurrence. Although during cross-examination, he claimed that he had visited the house of complainant a day earlier, but he did not give any plausible explanation as to why he was accompanying the complainant at that relevant time. He categorically stated that:-- "I was just accompanying the complainant without any assignment of my own at the Dera."
So, he has no business at the said Dera and his presence at the place of occurrence was doubtful.
The presence of Nisar Ahmed is also doubtful. Had he been present at the place of occurrence, he should have been the first target of the appellants in the background of the motive asserted by the prosecution.
9. Both the witnesses, while lodging FIR and recording statements under .Section 161, Cr.P.C., categorically stated that the fire shot of Khurram Shehzad landed on the left flank of Zubaida Bibi, who fell down whereas fire shot of Raheel landed on the right flank of Zubaida Bibi deceased. Nisar Ahmed P.W.11 categorically stated that:-- "I had myself seen the fire hitting left flank, right flank and wrist of my deceased mother. None of the accused had fired at me or the P.Ws."
According to Doctor, injury No.1-A was an entry wound which was on the back of trunk near the right side. The said injury was not on left or right flank of Zubaida Bibi. The said injury made exit from the left flank under Injury No,1-B and learned counsel for the complainant contends that this injury was caused by Khurram Shehzad appellant, but this argument of learned counsel has no force because according to Doctor, injury No,1-B was an exit wound or injury No,1-A so, the role of Khurram Shehzad appellant is totally contradicted by the medical evidence. Doctor during trial categorically stated that Injury No,1-B was an exit wound but inadvertently in the court she mentioned the margins of wound as inverted but according to postmortem report the margins of wound were everted.
According to prosecution, the fire shot of Raheel appellant landed on the right flank. No such injury was available on the right flank whereas Doctor observed an injury under Injury No,2-A, just below the umbilicus at the center or hypogastrjum of abdomen. This injury is not attributed to anyone in the FIR, or during the trial. This injury made exit on the back of trunk near the midline under Injury No,2-B, so, the injury attributed to Raheel was not observed by the doctor on the person of Zuhaida Bibi, whereas injury No,2-A and 2-B on the person of deceased remained unexplained by the prosecution during the investigation and even during the trial. Lady doctor P.W.4 during cross- examination categorically stated that:- "keeping in view medical examination, there is no injury on both flanks of the victim."
So, the medical evidence totally contradicted the ocular account so far role of Khurram Shehzad and Raheel appellant is concerned.
According to prosecution, the fire shot of Manzoor Ahmed landed on the left wrist of Zubaida Bibi.
Doctor observed under Injury No.3-A a fire arm entry wound just below the left elbow joint, but the said injury was on the left upper limb, most medial to the elbow. Diagram Exh.P-B/2 of injuries indicates that the said injury was not on wrist rather near the elbow. So, the role of Manzoor Ahmed appellant is also not supported by the medical evidence. On the other hand, the witnesses had claimed that they had seen the fire shots hitting on the left and right flanks of Zubaida Bibi which is totally contradicted by the medical evidence and it can easily be inferred that the witnesses were not present at the place of occurrence and had not seen the occurrence. If the witnesses were present at the place of occurrence, then they should have given the exact locale of injury on deceased person. Medical evidence totally contradicted the ocular account which negates the presence of the eye-witnesses at the place of occurrence.
10. It is also a circumstance that the FIR was chalked out at 9-10 a.m. But surprisingly, the postmortem was conducted at 4-30 p.m., i,e, after 9-1/2 hours of the occurrence. This also casts doubt regarding the prosecution story.
11. The recovery of .222-bore rifle from Khurram Shehzad is inconsequential because no crime empty was recovered from the spot nor there is any positive matching of FSL on the file. The report of FSL Exh.P-Q available on the record only ascertains that the .222-bore rifle recovered at the instance of Khurram Shehzad appellant was in working condition. No recovery was effected from Raheel and Manzoor Ahmed appellants. Milk pot was also not taken into possession from the place of occurrence nor the same was shown in the site plan. So, the prosecution story is doubtful.
12. It is an admitted fact that previously there was litigation of murder between the parties. In that eventuality, both the witnesses are related to the deceased and inimical towards the appellant. It is settled principle of law that the statements of related and inimical witnesses cannot be taken into consideration unless the same is corroborated by the independent piece of evidence which is completely lacking in this case because motive as asserted is not proved. Medical evidence totally contradicted the ocular account. The FIR was chalked out with unexplained delay and postmortem was also conducted with unexplained delay. There are many doubts in the prosecution story as discussed above. It is settled principle of law that if any doubt arises from the prosecution evidence, the benefit of the same is to be extended to the accused. Consequently, while extending the benefit of doubt to the appellants, Criminal Appeal No,1190 of 2009 filed by Raheel and Manzoor Ahmed and Criminal Appeal No,263-J of 2009 filed by Khurram Shehzad, are allowed and all the appellants are acquitted of the charge. The conviction and sentence passed by the trial Court to Khurram Shehzad, Raheel and Manzoor Ahmed appellants is hereby set aside. The appellant Manzoor Ahmed is on bail and his surety bonds are discharged. The appellants Khurram Shehzad and Raheel are in jail and they be released forthwith if not required to be detained in any other case.
13. Death sentence of appellants Khurram Shehzad and Raheel is not confirmed. Murder Reference No,309 of 2009 of Khurram Shehzad and Raheel appellants is answered in negative.
14. Due to above mentioned reasons Criminal Rev. No, 850 of 2009 filed by complainant Nisar Ahmed, is also dismissed.