Aalia Neelum, J.- Zahid Iqbal alias Mujahid and Sabir alias Sahib, both sons of Muhammad Siddique, Caste Arain, residents of village Bohar, Tehsil & District Kasur have preferred an appeal, who were involved in case F.I.R. No.663 dated 05.10.2006, offence under sections 302, 34 P.P.C, registered at Police Station Raiwind Saddar, District Kasur and were tried by Mr. Aqil Hassan Chohan, Addl. Sessions Judge, Kasur. The learned trial court seized with the matter in terms of judgment dated 19.12.2009, convicted the appellants under section 302 (b) read with section 34 P.P.C. and each sentenced to death. Both the convicts shall also pay compensation of Rs.50,000/- each under section 544-A Cr.P.C to the legal heirs of the deceased and in default whereof, shall also suffer imprisonment of six months S.I each. The appellants have assailed their conviction through filing the instant appeal.
2. Feeling aggrieved of the judgment of the learned trial court, Zahid Iqbal alias Mujahid and Sabir alias Sahib appellants have assailed their conviction andsentence through the instant Crl. Appeal No.484 of 2015, whereas the learned trial court has forwarded Murder Reference No.27 of 2010 for confirmation of death sentence.
3. Briefly stated facts of the case are that on 05.10.2006 at 3.00 p.m, the complainant Muhammad Akram (P.W-3) along with his brother Sagheer Ahmad alias Fauji (deceased) and Muhammad Ramzan (PW-1) were returning to their home after leveling their lands with "Karaha" through tractor. The brother of the complainant Sagheer Ahmad was driving the tractor, whereas Muhammad Ramzan (PW-1) was sitting on the "mudguard" of the tractor. When they reached near the Haveli of Munir Ahmad, accused Munir armed with rifle, Zahid Iqbal alias Mujahid and Sabir alias Sahib while armed with guns pump-action, Abdul Raoof, Amjad Ali sons of Bashir Ahmad both armed with guns, Bashir Ahmad armed with 'Sota' and Muhammad Amin armed with rifle suddenly emerged from the sugarcane crop, where the accused had ambushed. In the meanwhile, Bashir Ahmad raised 'Lalkara' that the complainant and his brother should not be spared. Thereafter, Muhammad Amin started aerial firing. Then accused Munir Ahmad made a fire shot, which hit on the neck of Sagheer Ahmad and pierced through and through. Accused Zahid Iqbal alias Mujahid and Sabir alias Sahib fired with their respective guns pump action upon. The accused Abdul Raoof and Amjad also made straight fire shots with their guns, which hit Sagheer Ahmad on his head, neck and below the neck, who succumbed to the injuries. The occurrence was witnessed by the complainant (PW-3), his brother Muhammad Ramzan (PW-1), Muhammad Yousaf (PW-2) and Muhammad Abbas. The motive behind the occurrence was stated to be a quarrel between the deceased-Sagheer Ahmad and accused Zahid Iqbal about four years prior to the incident. F.I.R.
(Ex.PC/1) was lodged on the complaint (Exh.PC) of Muhammad Akram (PW-3).
4. Muhammad Rafique SI/I.O (PW-12) started with the investigation on the day of occurrence, went to the place of occurrence, took into possession blood stained earth vide recovery memo (Ex.PA) and converted the same into sealed parcel, prepared rough site plan (Ex.PJ), inquest report (Ex.PK), injury statement (Ex.PL), application for postmortem (Ex.PM) and also secured Tractor (P-1) along with Karaha (P1/1) vide recovery memo (Ex.PB). The Investigating Officer dispatched the dead body through Haji Ahmad, C/650 for post mortem examination to DHQ Hospital, Kasur. The Investigating Officer also recorded the supplementary statement of Muhammad Akram complainant. On 06.10.2006 Haji Ahmad 650/C produced the last worn clothes of the deceased vide (Ex.P/2) and (P/3), which were taken into possession vide recovery memo (Ex.PD). On 8.10.2006 Nassrullah, draftsman was taken to the place of occurrence and on the pointation of the PWs and on the direction of Investigating Officer, he took the rough notes and on 9.10.2006 he produced the scaled site plan (Ex.PM) and (Ex.PM/1). The accused Sabir alias Sahib and Zahid Iqbal were arrested by the police on 17.10.2006. The Investigating Officer also secured pump action gun (P/4) from Zahid Iqbal-accused vide recovery memo (Ex.PF). The pump action gun was sealed into a sealed parcel along with three alive cartridges (P6/1-3). Thereafter, site plan of the place of recovery from Zahid Iqbal (Ex.PF/1) was prepared. The accused Sabir Ali alias Sahib got recovered gun (P/5) along with alive Cartridges (P7/1 to 5) and was taken into possession vide recovery memo (Ex.PG). After completion of the formal investigation, both the accused-appellants were challaned to face their trial.
5. On 10.07.2007, the formal charge against the appellants was framed to which they pleaded not guilty and claimed their trial. At the trial, the prosecution in order to prove its case produced as many as (12) twelve witnesses. The learned DDPP tendered in evidence report of chemical examiner (Ex.PN), report of Serologist Ex.PO and report of Forensic Science Laboratory (Ex.PP) and closed the case of prosecution. The accused in their statements under section 342 Cr.P.C. pleaded false implication. None of them has, however, opted to make statement under section 340(2) Cr.P.C and to lead defence evidence. After conclusion of the trial, both the accused were convicted and sentenced as stated above.
6. Both the learned counsel for the appellants as well as defence counsel have submitted that the impugned judgment of the learned trial court is against the law and facts of the case; that there is a material contradiction between the statements of the prosecution witnesses and benefit of doubt is always extended in favour of the accused; that as per medical evidence, the deceased received only one fire of 12-bore on his person, whereas all the injuries are pallets-injuries caused by only one fire; that previous enmity and rivalry was existing between the parties, therefore, by throwing a wider-net the false implication of the appellants cannot be ruled out; that the I.O in connivance with the complainant party falsely connected the accused with the murder of the deceased and recovery planted against them is concocted one; that the prosecution has totally discredited the medical evidence. Learned counsel lastly contended that the prosecution having failed to prove its case, therefore, the appellants are entitled to be acquitted.
7. On the other hand, learned Deputy Prosecutor General has submitted that PWs-8 and 9 have no ulterior motive to involve the appellant falsely in the case as both are not related to the deceased rather one of them was a councilor. PW-8 has stated before the learned trial court that the appellant asked him to help her in this connection as she committed the murder. It was finally argued that during course of investigation, the appellant was found guilty as such her name was placed in column-III of the report prepared in terms of Section 173 Cr.P.C.
8. We have heard the learned counsel for the appellant as well as the learned Law Officer and have gone through the evidence on record.
9. The occurrence had taken place at 3.00 p.m. on 05.10.2006 in the area of Bohar situated within the jurisdiction of Police Station Raiwind Saddar, District Kasur which is at a distance of 8 kilometers only from the place of occurrence and it is connected by mettled road. The two eye-witnesses, namely, Muhammad Ramzan (PW-1) and Muhammad Yousaf (PW-2) had allegedly seen the occurrence and after the commission of crime, they had also seen the accused running away from the spot. After the alleged occurrence, Muhammad Ramzan (PW-1) brought the dead body of the deceased namely, Sagheer Ahmad alias Fauji and tractor to his house. Thereafter it is alleged in the FIR that Muhammad Akram (brother of the deceased) (PW-3) moved the application (Exh.PC) for registration of criminal case regarding murder of his brother, namely, Sagheer Ahmad alias Fauji at Police Station Raiwind Saddar at 5.00 p.m. on the same day and formal F.I.R. (Exh.PC/1) was chalked out at 5.00 p.m. by Muhammad Riaz, ASI (PW-8). It is notable that occurrence took place at 3.00 p.m. and distance between the police station and the place of occurrence was 8 kilometers whereas the complainant (PW-3) took three hours for reaching the police station for reporting the incident. Muhammad Rafique, Ex.S.I. (PW12) deposed that on 5.10.2006 the Incharge investigation, Police Station Raiwind Saddar sent the F.I.R. through police constable to him for investigation whereupon he (PW-12) along with other police officials proceeded to the place of occurrence on official vehicle and thereafter he prepared inquest report (Exh.PK), injury statement (Exh.PL) and application for post mortem (Exh.PM). We have gone through the entire prosecution evidence and find that Muhammad Akram, complainant (PW-3) deposed during cross-examination which reads as under:- "the application Exh.PC was got drafted from Khizar Hayat in village Bohar while sitting in a factory, which is adjacent to our house. Khizar Hayat is the owner of the said factory. When this application was being drafted all the villagers of our village were present there. S.I. first of all visited the spot, and inspected the same, and he interrogated the persons who were present there. I did not go with the Investigation Officer to the place of occurrence. He came to our house where the dead body was lying and inspected the dead body. Then the Investigating Officer came to the factory of Khizar Hayat. Then at that time he got drafted the application from Khizar Hayat and then on the basis of said application, the case was registered."
(Underlined for emphasis)
It is also noticed by us that particulars of the F.I.R. (Exh.PC/1) are not mentioned in the inquest report (Exh.PK) if that is so, it is not believable that the eye witnesses had witnessed the occurrence and without consultation and deliberation, application for registration of case (Exh.PC) was prepared.
The matter can be examined from another angle too. It is maintained in the column No.1 of inquest report (Exh.PK) that the dead body was recovered from the area of Bohar. It is not mentioned therein that dead body was found lying in the house of the complainant. On the other hand the eye witnesses of the occurrence, namely, Muhammad Ramzan (PW-1) deposed during cross- examination which reads as under:- "---first of all DSP Tahir Nawaz Warriach reached our house who inspected the dad body and then took me on his vehicle to the place of occurrence. He then inspected the place of occurrence thoroughly. The DSP at the place of occurrence inquired from me about the incident. The DSP left the place of occurrence while leaving me there wherefrom I returned to my house on bicycle. After about 20/25 minutes after the back arrival of the DSP, to our house, the Investigating Officer reached our house. It is correct that on that day I along with the police only, once went to the place of occurrence which I have mentioned."
Whereas, Muhammad Akram (PW-3) deposed during cross-examination that:- "It is incorrect that first of all DSP Tahir Warraich came to our village. Volunteered that he came subsequently. A Sub Inspector first of all visited the spot, and inspected the same......"
10. From the deposition of Muhammad Akram (PW-3), Muhammad Ramzan (PW-1) and Muhammad Rafique, Ex.SI (PW-12), it is established that the FIR had been registered after due consultation and deliberation by the complainant (PW-3) and after conducting preliminary investigation by the police at the spot. The inordinate delay of about three hours from the time of the commission of the offence remained unexplained and renders the whole of the prosecution version doubtful. The Hon'ble Supreme Court of Pakistan held in the case of Iftikahar Hussain and another v. The State (2004 SCM R 1185) that:- "Section 154-First Information Report--FIR being a corner stone of the prosecution case to establish guilt of the accused involved in the crime, has got a very significant role of play--- Any doubt in lodging of FIR and commencement of investigation gives rise to a benefit of accused---FIR lodged after conducting an inquiry loses its evidentiary value."
11. It is specifically mentioned in the F.I.R. that Zahid Iqbal alias Mujahid and Sabir alias Sahib climbed on the "Karaha" of the tractor and made fire with their pump action. It is not mentioned in the F.I.R. (Exh.PC) that both of them fired at Sagheer Ahmad alias Fauji (deceased). It is the case of the prosecution that the fire shot of Munir (since acquitted) hit at neck of the deceased Sagheer Ahmad, whereas fire shots made by Abdul Rauf and Amjad Ali alias Fauji (both acquitted) while standing behind Zahid Iqbal alias Mujahid and Sabir alias Sahib (both appellants) hit at head neck and below the neck on the shoulder of the deceased-Sagheer Ahmad alias Fauji. The complainant (PW-3) had not attributed any specific injury to the appellants on the person of the deceased. It is admitted fact that the fatal injuries were attributed to Munir Ahmad, Abdul Rauf and Amjad Ali alias Fauji and to their extent prosecution case was not found worthy and reliable and they were acquitted from the charge by the learned trial Court. Their acquittal has not been challenged either by the complainant or by the State, therefore, the same has attained finality. The case of the appellants is on better footing from that of the acquitted accused. It is noted that while appearing in the witness box Muhammad Ramzan (PW-1) deposed that Mujahid and Sahib climbed on the "Karaha" and fired with their respective pump action guns on Sagheer, the deceased. In the deposition of Muhammad Ramzan (PW-1) that "made fire on Sagheer (deceased)", this part of evidence is improvement and is after thought. Muhammad Yousaf (PW-2) deposed that Mujahid and Sahib climbed on the "Karaha" of his tractor, Rauf and Amjad accused who were standing on the back side fired with their respective weapons straight on Sagheer, deceased which landed on the neck and backside of the neck. No specific injury on the person of deceased was attributed to the appellants by both the eye witnesses in their deposition. On account of acquittal of co- accused to whom specific effective firing at the deceased was attributed. The appellants could not be convicted if specific injury was not attributed to them and ocular account do not gets independent corroboration.
12. It is admitted fact that the prosecution witnesses are interested and inimical towards the appellants. With regard to the relationship between two eye-witnesses and the deceased, we find that PW-1 and PW-3 are the real brothers of the deceased. Muhammad Ramzan (PW-1) admitted during his cross-examination that enmity between them and accused Zahid Iqbal and Sabir exist due to the criminal case F.I.R.No.408-2003. Muhammad Ramzan (PW-1) during cross-examination also admitted it correct that "it is correct that a case F.I.R. No.408 of 2003 dated 27.09.2003 under Sections 365, 337-F, 337/F(I) P.P.C about the abduction of Zahid Iqabal accused was registered against Sagheer, deceased and Yousaf PW at Police Station Raiwind Saddar. It is correct that the complainant of that case was the co-accused Munir Ahmad (since acquitted). Muhammad Yousaf also admitted that F.I.R. No.408-2003 was registered against him and Sagheer, deceased. This prosecution witness also admitted that his father registered criminal case F.I.R. No.337 dated 22.9.1992 under Sections 302, 324 PPC at Police Station Raiwind Saddar against real "Taya"
Muhammad Sharif and his sons. During evidence, PW-1 and PW-3 admitted that criminal litigation between different parties remained pending against them. The prosecution witnesses were not only inimical towards the accused-persons but were also closely related to deceased and they had reasons to falsely implicate the accused-persons. There is no independent piece of evidence to corroborate the evidence of the interested witnesses in this case.
13. In this view of the matter, it is also strange that (PW-1) Muhammad Ramzan was sitting on the "mudguard" of the Tractor but the assailants did not cause him a single injury even he did not receive any scratch on his person despite being within the range of their firing and this renders his evidence doubtful.
14. Admittedly, Muhammad Yousaf (PW-2) is the chance witness. He admitted during cross- examination that at 3.00 p.m, he along with Akram (PW3) and Abbas (given-up PW) was on a motor-cycle and were proceeding to his house from Dhari to Ismail when he witnessed the occurrence and this piece of evidence was confronted with Ex.DB, wherein it is not so recorded which shows that PW-2 Muhammad Yousaf is the chance witness and he dishonestly improves his statement. Muhammad Akram (PW-3) deposed during cross-examination as under:- "I stated in the said application that I was riding on a motor-cycle along with Yousaf and Abbas PWs and were present at the turn, which was situated near a chowk, near the sugarcane crop of Barkat, (confronted with Exh.PC where it is not so recorded)."
In the instant case, the prosecution witnesses are not only related inter-se and also with deceased but have motive to falsely implicate the accused due to the criminal litigation. Muhammad Akram PW-3 alleged that motive behind the occurrence was that about four years prior to the occurrence, a quarrel took place between Sagheer deceased and Mujahid, the appellant-accused and due to the said motive, all the accused persons committed the murder of the deceased. This piece of evidence was confronted with Exh.PC wherein name of Mujahid (appellant-accused) was not mentioned where as Muhammad Ramzan (PW-1) during cross-examination deposed that it is not in his knowledge that any witness relating to motive qua quarrel was produced before the police or not? Besides, he also deposed that it is not in his knowledge that a quarrel was rather reported to the police at that time or not. Even he can not tell the month, date and time when the motive of quarrel took place. We are, therefore, inclined to take the view that the prosecution has failed to prove the motive part of the occurrence and the same is shrouded in mystery.
15. We have noticed that no doubt 12-bore pump-action was allegedly recovered on the pointation of Zahid Iqbal alias Mujahid, appellant-accused and 12-bore gun was recovered on the pointation of Sabir alias Sahib but there is no report of the Forensic Science Laboratory, Lahore that the weapon had matched with the crime empties. As no crime empty was recovered from the place of occurrence which could be matched with the weapon recovered. Contrary to it, the report of Forensic Science Laboratory Exh.PP reflects that both allegedly recovered weapons were in working condition, therefore, there is no incriminating recovery in this case available on record to connect the appellants with the commission of offence. In the above said facts and circumstances, the case of the appellants was in no way distinguishable from the acquitted accused (appellants) and are also entitled to the same relief.
16. The prosecution has no sufficient proof with it that F.I.R. was lodged at the given time immediately after the occurrence as already discussed above. The Investigating Officer after receiving F.I.R. (Exh.PC/1) proceeded to the place of occurrence where he prepared inquest report (Exh.PK), injury statement (Exh.PL) and application for post mortem examination (Exh.PM) and soon after he dispatched the dead body through constable Haji Ahmad C/1650 (PW-7) for the post mortem to DHQ Hospital, Kasur but even then the post mortem examination was not conducted till 06.10.2006 at 9.30 am. The post mortem examination of Sagheer Ahmad alias Fauji was conducted at 9.30 pm on 06.10.2006 with delay of 18-hours whereas the alleged occurrence took place on 05.10.2006 at 3.00 p.m. The delay in conducting the post mortem examination also leads to an inference that the F.I.R. was not registered at the given time. In view of the matter, the conclusions arrived that there is no credible evidence to establish that the complainant Muhammad Akram (PW-3) and eye witnesses Muhammad Ramzan (PW-1) and Muhammad Yousaf (PW-2) were present at the place of occurrence. The motive part of the prosecution case is not believable as the prosecution failed to lead cogent evidence to prove motive part. We scanned entire prosecution evidence and did not find any credible evidence regarding active role played by the appellants in the occurrence. There being no evidence of specific role of both the appellants, hence it is difficult to hold that the present appellants had caused any particular injury on the person of the deceased. In this eventuality, the witnesses are related to the deceased and inimical towards the appellants. 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 independent piece of evidence which is completely lacking in this case. The F.I.R. was chalked out with explained delay and postmortem was also conducted with explained delay. There are many doubts in the prosecution evidence and the benefit of the same is to be extended to the convicts/appellants. It is an accepted proposition that in the case of blood feud enmities there is a general tendency to rope in as many persons as possible as having participated in the assault. In such a situation, the courts are called upon to be very cautions and sift the evidence with care, where after a close scrutiny of the evidence, a reasonable doubt arises in the mind of the Court with regard to the participation of any of those who have been roped in, the Court would be obliged to give the benefit of doubt to them.
17. From the above detailed discussion, we are, however, convinced that the prosecution has failed to establish its case. It seems that the truth was seen buried under the debris and a different story was structured perhaps to lug the appellants into trial under the serious offence. It is often said "that Fouler the crime higher the decree of proof" we have gone through the process of keen examination of the entire material and found compelling reasons as stated above to disgrace with the conclusion reached recorded by the learned Addl: Sessions Judge and also found that the prosecution has miserably failed to prove the guilt of the accused-appellants beyond reasonable doubt. As per dictates of law benefit of every doubt is to be extended in favour of the accused. In the case of "Muhammad Akram v. The State" (2009 SCM R 230) , it is held as under:- "Benefit of doubt....Principles----For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts----Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right".
18. We, therefore, accept in toto Criminal Appeal No.484 of 2015 filed by Zahid Iqbal alias Mujahid son of Muhammad Siddique and Sabir alias Sahib son of Muhammad Siddique, as a result whereof conviction and sentence recorded by the learned trial Court vide judgment dated 19.12.2009 is set- aside and the appellants are acquitted of the charge in case F.I.R. No.663/2006 dated 05.10.2006, offence under Sections 302, 34 P.P.C. registered at Police Station Raiwind Saddar, District Kasur and they are directed to be released forthwith, if not required in any other case.
19. Murder Reference No.27 of 2010 forwarded by the learned trial court for confirmation of the sentence of death inflicted upon the convicts fails, which is answered in negative.