AALIA NEELUM, J.- Faiz Ahmed son of Muhammad Ismail, Caste Chohan, resident of Chak No.22/SP Police Station Chak Baidee, Tehsil & District Pakpattan (appellant) through this appeal has assailed his conviction and sentence recorded by the learned trial court vide judgment dated 16.02.2010 in complaint case titled "Maqsood Ahmad v. Ali Sher etc" along with State case bearing F.I.R.
No.502/06, dated 30.10.2006, offence under Sections 302, 148, 149 P.P.C., registered at Police Station Chak Baidi, District Pakpattan Sharif, whereby the appellant was convicted under section 302 (b)
PPC for committing Qatl-i-Amd? of Allah Jawaya deceased and sentenced to death. The appellant was further directed to pay Rs.1,00,000/- as compensation to the legal heirs of the deceased in terms of Section 544-A Cr.P.C and in case of default thereof, to further undergo SI for six months.
2. The learned trial court has forwarded Murder Reference No.307 of 2011 for confirmation of death sentence inflicted upon Faiz Ahmed/convict in terms of Section 374 of Cr.P.C. As both the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed of through consolidated judgment.
3. The prosecution story as contained in the private complaint (Ex.PA/1) filed by Maqsood Ahmad (PW-1) is that Ahmad Hassan co-accused (since acquitted) is the son of Faiz Ahmad- appellant, whereas Haq Nawaz accused (since acquitted) is the son of Din Muhammad and Ali Sher (PO) is the relative of Faiz Ahmad. Bashir Ahmad (since acquitted) and Muhammad Sadiq accused (since acquitted) are the friends of Faiz Ahmad and other accused persons. Ahmad Hassan (since acquitted) is husband of Allah Muafi, the daughter of Din Muhammad accused and Mst. Azizan Bibi is daughter of the appellant-Faiz Ahmad. Mst. Azizan Bibi was married to Haq Nawaz-accused by way of exchange marriage and due to family dispute both were living in the house of their parents. For effecting reconciliation, Din Muhammad-accused (since acquitted) met with the complainant on 29.10.2006 and disclosed that a "Panchyat" had to take place at the Dera of Quresh Sumra and he asked him that he should go in the Panchyat' for reconciliation. Din Muhammad also disclosed the complainant that he had already asked Muzaffar Hussain, Muhammad Latif, Muhammad Siddique, Rehmat Ali and brother of the complainant namely Allah Jawaya to come at the Dera of Quresh Sumra. On 29.10.2006, the complainant (PW-1), his brother Allah Jawaya (deceased), Muhammad Saddique (deceased), Muhammad Latif (PW-2), Muzaffar Hussain Javed and Rehmat Ali (given up PWs) left the Chak No.3/SP by way of Taxi car No.5560/LRD for attending the Panchyat at the place pointed out by Din Muhammad (since acquitted) and when they reached near the land of Ijaz Ahmad Advocate at 6.00 p.m, all of sudden Faiz Ahmad- appellant along with Ali Sher and Muhammad Sadiq while armed with 12-bore guns, Ahmad Hassan accused armed with rifle, Haq Nawaz, Din Muhammad accused and three unknown accused persons emerged from the nearby cotton crop. Later on, Din Muhammad raised Lalkara that they pulled them from the car and killed them. Faiz Ahmad-appellant fired with 12-bore gun on Allah Jawaya deceased, which hit him on left side of head near the ear. The rest of the accused also fired upon them. Ali Sher accused fired with 12-bore gun on Siddique, which hit him on left side of neck near clavicle bone. To save their lives, the complainant (PW-1) Muzaffar Hussain Javed (given up PW), and Muhammad Latif (PW-2) witnesses rushed towards the nearby crop of Jawar, whereas the accused Bashir Ahmad and Muhammad Sadiq forcibly pulled out Rehmat Ali out of the car and with rifle and gun caused injuries to him. On the hue and cry, the accused persons slipped away from the place of occurrence by making aerial firing. The complainant and others gave support to Allah Jawaya and Muhammad Siddique deceased but they succumbed to injuries at the spot and the occurrence was witnessed by Muhammad Maqsood (complainant), Muhammad Latif (PW-2), Muzaffar Hussain Javed and Rehmat Ali PWs.
4. The motive behind the occurrence is that Din Muhammad accused was the tenant of the complainant and he had suspicion that his daughter namely Allah Muafi had illicit relations with Allah Jawaya-deceased and due to this Mst. Allah Muafi after quarreling with her husband-Ahmad Hassan was leading life in his house and Mst. Azizan Bibi, the daughter of Faiz Ahmad was also leading deserted life in the house of her parents. Apart from this, the lands of Allah Jawaya deceased and Muhammad Sadiq are adjacent to each other and due to dispute over water and hegemony, the quarrel took place oftenly and Allah Jawaya had insulted many times the accused- Muhammad Sadiq. For the said reason, all the accused persons in furtherance of their common intention caused murder of Allah Jawaya and Muhammad Siddique deceased and gave injuries to Rehmat Ali.
5. After the occurrence the complainant went to Police Station to report the matter before whom he moved application (Ex.CW3/A) and after endorsing police karvai (Ex.CW3/B) the same was transmitted to Police Station for registration of formal F.I.R (Ex.CW3/B) and case FIR No.502/2006 was registered at Police Station Chak Baidi. The complainant (PW-1) has stated that he produced solid evidence to the police but Bashir Ahmad, SI and SHO, P.S Chak Baidi accepted bribe from the accused and declared the accused, namely Bashir Ahmad and Muhammad Sadiq as innocent dishonestly and the police tried to spoil his case so he filed the instant private complaint (Ex.PA/1) arising out of criminal case FIR No.502/2006, dated 30.10.2006, registered at Police Station Chak Baidi for the offense under sections 302/148/149 PPC.
6. The complainant being dissatisfied with the investigation, filed private complaint on 19.04.2008 against all the seven accused persons which too was sent up and after recording the cursory evidence of the complainant and having perused the record, all the seven accused persons were found connected with the commission of murder so they all were summoned to face the charge. On 13.02.2009 the learned Additional Sessions Judge, Pakpattan Sharif formally charge sheeted the appellant along with others to which he pleaded not guilty and claimed trial.
7. The prosecution in order to substantiate its case produced as many as three (3) prosecution witnesses during the course of trial in private complaint. Ocular account in this case consists of the statements of Maqsood Ahmad (PW-1) and Muhammad Latif (PW-2).
8. Dr. Aman Ullah Khan appeared as (PW-3) and deposed that on 30.10.2006 he was posted at RHC, Bonga Hayat and on the same day at 5.00 p.m, conducted the post mortem examination upon the dead body of Allah Jawaya deceased and found following injuries on his person:- A firearm wound complex of five lacerated wounds on left side of head and face in an area of 15 cm X 11 cm each measuring 1.5 cm X 1.5 cm with inverted margins (wound of entry).
After conducting the postmortem examination, the doctor had rendered the following opinion:- "Above stated injury was anti-mortem in nature and caused by firearms. The cause of death in this case is damage of brain and multiple fractures of skull bones leading to, and death under injury No.1, which was sufficient to cause death in ordinary course of nature.
9. On 30.10.2006 at 5.00 p.m, he (PW-3) conducted the postmortem examination on the dead body of Muhammad Siddique and found the following injury on his person.
1. A firearm lacerated wound 4 cm X 3 cm with inverted margins on the lower and left side of neck 10 cm right of kick of left shoulder 9 cm left of midline (wound of entry)
2. A firearm lacerated wound with inverted margins 1 cm X 1 cm on the right supra clavicular area 3 cm right of neck (wound of exit)
3. A firearm lacerated wound with inverted margins 1.5 cm X 1.5 cm on the right side of supra clavicular region 4 cm right of injury No.2 (wound of exit)
After conducting the postmortem examination, the doctor had rendered the following opinion:- "Above stated injuries were anti-mortem in nature and caused by firearms. The cause of death in this case was damage of major blood vessels of neck leading to hemorrhagic shock and death under injury No.1, which was sufficient to cause death in ordinary course of nature.
10. On the same day i.e 30.10.2006, Dr. Aman Ullah Khan examined the injured Rehmat Ali son of Noor Muhammad and found following injuries on his person:-
1. A lacerated wound 2 cm X 0.5 cm skin deep on the mid of upper of occipital 12 cm from left ear.
2. A lacerated wound 1 cm X 0.5 cm skin deep on the right side of head 4 cm from right ear.
3. A lacerated wound 1.5 cm X 0.5 cm skin deep on the right side of head 5 cm above right eyebrow. The injuries were by blunt means and probable duration was 24 to 36 hours. Ex.PS is correct carbon copy of MLR of Rehmat Ali injured-PW. Diagram is Ex.PS/1. Ex.PT is the injury statement of Rehmat Ali PW, which is also endorsed by him.
11. On 01.07.2009, Maqsood Ahmad, complainant had given up Muzaffar Hussain Javed and Rehmat Ali PWs being unnecessary. Moreover, Rehmat Ali PW is unable to speak and as such he had given up and closed the evidence.
After closing the evidence by the complainant, the learned trial court examined the remaining seven witnesses mentioned in the calendar of witnesses of the connected State case as CWs.
12. After registration of the case, the police conducted usual investigation. Initially, Bahar Ali 555/HC now as ASI appeared as (CW-1) and stated that on 30.10.2006, the I.O handed over to him two sealed parcels of blood stained earth and one sealed parcel of crime empties for keeping them in safe custody, which he kept in the Malkhana and on 02.11.2006, he handed over the above said sealed parcels to Muhammad Yamin 32/C for their onward transmission to the Offices of Chemical Examiner, Lahore and Forensic Science Laboratory, Lahore intact, whereas Muhammad Yamin 32/C (CW-2) has deposed that on 02.11.2006, Moharrar (CW-1) handed over to him two sealed parcels of blood stained earth and one sealed parcel of crime empties for their onward transmission to the Office of Chemical Examiner, Lahore and Forensic Science Laboratory, Lahore, which he delivered to the said Offices on 03.11.2006 intact. Shahbaz Khan, ASI (CW-3) has stated that on 30.10.2006, Bashir Ahmad SI sent the complaint (Ex.CW-3/A) through Muhammad Tariq 193/C and he on the basis of the same lodged formal FIR (Ex.CW-3/B) without any omission or deletion. Ghulam Mustafa Drafts Man (CW-4) deposed that he visited the place of occurrence and on the direction of the I.O and on the pointing out of the PWs, he took rough notes on the basis of which, he prepared scaled site plans Ex.CW-4/A, Ex.CW-4/B and Ex.CW-4/C with the scale of inch = 16 feet. All the notes and drawing are in blank ink on Ex.CW-4/A, Ex.W-4/B and Ex.CW-4/C are in his hand. Peer Akhtar Hussain son of Sher Muhammad (CW-5) has deposed that on 30.10.2006, he identified the dead body of Muhammad Siddique deceased from the Doctor at the time of autopsy, whereas Shahzad Ahmad son of Muhammad Yousaf appeared as (CW6) and has stated that on 30.10.2006 at about 5.00 p.m, he identified the dead body of Allah Jawaya-deceased from the Doctor at the time of autopsy, whereas Bashir Ahmad SI (CW-7) was the Investigating Officer of the case, who inspected the place of occurrence and took into possession blood stained earth from the place of murder of Allah Jawaya deceased through recovery memo (Ex.PE) and the blood stained earth from the place of murder of Muhammad Siddique deceased vide recovery memo Ex.PD), two crime empties of 12-bore P13/1-2 from the spot vide recovery memo (Ex.PF). The Investigating Officer (CW-7) during inspection of place of occurrence took into possession a Bamboo stick (P-14) three feet and three inch from the crop of Jawar vide recovery memo Ex.PG, hatchet (P-15) from the place of murder of Muhammad Siddique and Allah Jawaya through recovery memo (Ex.PH), car bearing Registration No.LRD/5560 (P-6) through recovery memo (Ex.PJ), 12 live cartridges of 12-bore gun (P/16/1-12) from inside the car from underneath the leg of Siddique deceased vide recovery memo (Ex.PK). The I.O (CW-7) prepared injury statement of Allah Jawaya deceased (Ex.PN) and inquest report Ex.(PO), prepared injury statement of Siddique deceased (Ex.PQ) and inquest report (Ex.PR) and also prepared injury statement of Rehmat Ali injured (Ex.PT). After conducting postmortem examination of both the deceased Muhammad Yamin 32/C produced before the I.O the last worn clothes of Muhammad Siddique deceased i.e Shalwar (P-8), Qameez (P-9) and vest (P-10), which he took into possession vide recovery memo (Ex.CW-5/A). Muhammad Yamin 32/C also produced the last worn clothes of Allah Jawaya deceased i.e Patloon blood stained (P-11) and trouser (P-12), which he (CW-7) took into possession through recovery memo (Ex.CW-6/A) and he also prepared the site plan of recovery memo (Ex.PB/1). The I.O (CW-7) raided for arrest of the accused and on 27.11.2006, he arrested the appellant-Faiz Ahmad and Muhammad Din and got their physical remand from the concerned Illaqa Magistrate. He (CW-7) has stated that he made efforts for arrest of the accused and got warrants of arrest of accused Ali Sher, Ahmad Hassan and Haq Nawaz and proceedings under section 87 Cr.P.C were completed against the said accused and challan under section 512 Cr.P.C was submitted against the above named three accused. On 06.03.2007, he (CW-7) arrested the accused Haq Nawaz and on 04.04.2007, he (CW-7) arrested the accused Ahmad Hassan. He (CW- 7) during the course of investigation declared the accused Bashir Ahmad and Muhammad Sadiq as innocent.
13. Learned Special Public Prosecutor vide his statement recorded on 27.01.2010 closed the evidence of prosecution after tendering the report of Chemical Examiner regarding blood stained earth of Allah Jawaya (Ex.PU), report of Chemical Examiner regarding blood stained eath of Muhammad Siddique deceased (Ex.PV) and report of Forensic Science Laboratory, Lahore (Ex.PW).
14. After closure of prosecution evidence, the appellant was examined under Section 342 of Cr.P.C, wherein he opted to appear as his own witness in terms of Section 340 (2) Cr.P.C. in disproof of allegations leveled against him in the prosecution evidence and also opted to adduce evidence in his defence. While replying to the question why this case against him and why the PWs deposed against him, Faiz Ahmad, appellant made the following deposition:- "PWs from public sector are related to the deceased persons and they hail from District Okara, which is 60/700km from the place of occurrence. They have made false deposition and the eye witnesses are fictitious and they have not seen the occurrence. Alla Jawaya deceased was resident of Chak No.3/SP District Okara. He was a big landlord of that village by repute, he was a cruel and immoral man and womanizer . He was endeavouring to have illicit relations with Azizan Bibi my daughter and Allah Mufai the wife of my son. He always kept bad eye on my daughter and used to tease her and attempt to persuade her for illicit intercourse. My daughter Azizan Bibi felt annoyed immensely. She told this fact to his father in law and her husband who were subject of Allah Jawaya deceased but being poor and weak persons they could not do anything against him.
In this scenario my daughter Azizan Bibi left the house of her husband and lived with me prior to this occurrence. Allah Jawaya deceased made a plan to abduct forcibly my daughter and he along with his companions came at nighttime in order to abduct her by coming through the fields and adopting the path of Kacha roads. They attacked on my house and he along with his companions trespassed my house and in the dark hour of the night forcibly abducted Azizan Bibi and took her 4/5 acres away and tried to put her in the car parked there. On the hue and cry of myself and other family members the people from the adjacent Dairies and village were attracted as Allah Jawaya party had been resorted to fire and the resident of the area started running towards them. Allah Jawaya deceased and Siddique and other fired upon us. We in our right of private defence and in order to rescue my daughter at the hands of the accused also fired and besides other people of the village also fired. From the car we got recovered and released Azizan Bibi my daughter and Siddique and Allah Jawaya deceased sustained injuries in the car who were having arms and ammunition. I did not sustained injury because we were in the shelter of a watercourse at the time of firing. The car was parked in the agricultural fields and Allah Jawaya party used deliberately wrong side of Kacha Road and other side of my house it was a metalled road. The purpose of abduction of Azizan Bibi was to commit Zina with her by Allah Jawaya. On the event full day and thereafter, Muhammad Anwar Chishti DSP was Incharge of the area of this police station who was closely related to Allah Jawaya Chishti. He also came at the spot during investigation. He under his influence did not allow the investigating officers to record our version correctly although hundreds people of the vicinity have supported our version. The police did not pay any attention to our story. Allah Jawaya and others have come prepared from other District from a distance of 60/70 km to attack and abduct my daughter. They did so but we got her released from the car and they could not take her with them. We have also filed a private complaint for abduction of Azizan Bibi and others which is pending in this court. The principal accused Allah Jawaya and Siddique have died. The witnesses of the case were not present at the spot. My daughter Azizan Bibi was forcibly abducted from my house in the dark hour of night while we chased the deceased persons along with other culprits for about 5/7 acres and got her released from the clutches of the accused persons now complainant party. The I.O also found this fact true in his investigation that complainant party had gone to my house and abducted my daughter Azizan Bibi. Furthermore, the purpose of deceased persons and the complainant party was intentional assault for abduction and wrongful confinement of my daughter, which they did not do so and could not take her away. However, she was taken for 7/8 acres from my house to the car but we got her released. Thus, the complainant party could not succeed in their mission.
Nevertheless the abduction was done by them from my house to the car for 7/8 acres.
15. In defence evidence recorded under section 340 (2) Cr.P.C, Faiz Ahmad-appellant appeared as (DW-1) and produced Mst. Azizan Bibi as (DW-2) and closed the defence evidence.
16. Learned trial court after evaluating the evidence available on record found version of the prosecution proved beyond shadow of reasonable doubt against the appellant resulting into his conviction in the afore-stated terms.
17. Learned counsel for the appellant contends that there is a conflict in the medical evidence and the ocular account; that it is a dark night occurrence; that the sentence awarded by the learned trial court is so severe; that the prosecution has failed to produce star witnesses of the case namely Rehmat Ali, (who got injured during the occurrence); that the occurrence as narrated in the private complaint had not taken place at all and that during the course of investigation nothing has been recovered from the possession of the appellant and if any that is fake and fictitious and the prosecution has failed to prove the case against the appellant and lastly prayed that he be acquitted from the charge being falsely implicated in this case.
18. On the other hand, learned counsel for the complainant and the learned DPG have opposed the contention raised on behalf of the appellant and stated the prosecution has proved its case by producing three witnesses beyond any shadow of doubt.
19. We have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record available on the file.
20. On perusal of F.I.R. (Ex.PA), it reveals that incident was reported by the complainant- Maqsood Ahmad (PW-1), brother of Allah Jawaya-the deceased at 12:15 am (night) at bridge Guru Chak situated at Adda Chak No.23/SP to Bashir Ahmad, SI (CW-7), after a delay of six hours and thirty minutes from the time of incident, without any explanation. On the basis whereof, the First Information Report (Ex.PA), was recorded at 12:45 a.m. (night) on 30-10-2006, whereas distance between police station and place of occurrence was 6-44 kilometers. Delay in lodging the First Information Report gives rise to the adverse inference, that the same was utilized for false implication of the accused, concoction of story and introduction of false witnesses. The complainant-Maqsood Ahmad (PW-1) admitted during cross-examination that, "The application written by a person whose name I do not remember. Even today, I do not remember the name of the writer. The application was scribed at bridge of canal called Guru Chak."
21. The postmortem examination was conducted by Dr. Aman Ullah Khan (PW-3) on 30-10- 2006 at 5:00 p.m. with delay of twenty-three (23) hours. If F.I.R was lodged at 12:45 a.m. (night), then delay in conducting the postmortem examination was not explained by the prosecution. The fact, however, remains that the post-mortem examination was delayed for twenty-three (23) hours. Dr. Aman Ullah Khan (PW-3) during cross-examination deposed that no delay was caused by him after receiving the police papers. Considering all these facts we have no hesitation in coming to the conclusion that had the complainant-Maqsood Ahmad (PW-1) been present at the spot and the fact that his real brother had been murdered by the accused, he would not have lost even a minute, in lodging the report against the accused persons. Since, the complainant was not present at the spot at the time of occurrence; he did not report the matter soon after the incident against the accused persons. Delay of about six hours and thirty minutes, in lodging the first information report, against the accused persons, by the complainant-Maqsood Ahmad (PW-1), clearly proved that the time was utilized by the complainant-Maqsood Ahmad (PW-1), to concoct a story, introduce false witnesses, and falsely implicate the accused persons. Delay in lodging the first information report, quite often results in consultation and deliberation, which is a creature of after- thought. The prosecution failed to explain the delay in reporting the incident though the Police Station was at a distance of 6-44 kilometers. Hence these circumstances were taken, as the one, to raise considerable doubt, regarding the veracity of the case, and it was held that it was not safe to base conviction. Unexplained delay of reporting the incident in lodging the first information report and delay conducting postmortem of the dead body of Allah Jawaya-the deceased proves fatal to the case of the prosecution.
22. All the eye witnesses are chance and interested witnesses, who had animus against the appellant and their presence on the spot has been found doubtful. There are also material contradictions in the oral testimony of the eye witnesses and medical evidence. Maqsood Ahmad (PW-1) had specifically mentioned in the FIR (Exh.PA) and private complaint (Exh.PA/1) that Ahmad Hassan co-accused (since acquitted) is the son of Faiz Ahmad-appellant, whereas Haq Nawaz accused (since acquitted) is the son of Din Muhammad and Ali Sher (P.O.) is the relative of Faiz Ahmad. Ahmad Hassan (since acquitted) is husband of Allah Muafi, the daughter of Din Muhammad accused and Mst. Azizan Bibi is daughter of the appellant-Faiz Ahmad. Mst. Azizan Bibi was married to Haq Nawaz-accused by way of exchange marriage and due to family dispute both were living in the house of their parents. For effecting reconciliation, Din Muhammad-accused (since acquitted) met with the him (PW-1) on 29.10.2006 and disclosed that a "Panchyat" had to take place at the Dera of Quresh Sumra and he (Din Muhammad) asked him (PW-1) that he should go in the Panchyat' for reconciliation. Din Muhammad also disclosed to him (PW-1) that he had already asked Muzaffar Hussain, Muhammad Latif, Muhammad Siddique, Rehmat Ali and his (PW- 1) brother namely Allah Jawaya to come at the Dera of Quresh Sumra. On 29.10.2006, the complainant (PW-1), his brother Allah Jawaya (deceased), Muhammad Saddique (deceased), Muhammad Latif (PW-2), Muzaffar Hussain Javed and Rehmat Ali (given up PWs) left the Chak No.3/SP by way of Taxi car No.5560/LRD for attending the Panchyat at the place pointed out by Din Muhammad (since acquitted) and when they reached near the land of Ijaz Ahmad Advocate at 6.00 p.m. incident took place. A perusal of the statements of Maqsood Ahmad (PW-1)-the complainant and Muhammad Latif (PW-2)-eye witness, coupled with the facts and circumstances of the case, shows that the presence of Maqsood Ahmad (PW-1) and Muhammad Latif (PW-2) at the place of occurrence is inherently improbable. Maqsood Ahmad (PW-1) deposed during cross- examination that, "It is correct that I, Muhammad Latif, Muzaffar Hussain, Shahzad Ahmad, Akhtar Hussain, Ahmad Yar, Rehmat Ali PWs are residents of village 3/SP District Okara, whereas Sardar Ali PW is the resident of Lahore. The place of occurrence is situated within the area of village 22/SP, District Pakpattan. The distance between 3/SP and 22/SP is about 10/12 kilometers. It is correct that none of the PWs have any house or land and other property in the village of place of occurrence."
Muhammad Latif (PW-2) has admitted in his cross-examination that, "I do not own any land in my village and 22/SP. 22/SP is at a distance of 21-kilometers from 3/SP." Muhammad Latif (PW-2) deposed during examination-in-chief that about 2 1/2 years ago, accused Din Muhammad met him (PW-2) and told him (PW2) that a Panchyat is going to be held for reconciliation of the above said spouses and that he (PW-2) should accompany them in the Panchyat. They boarded in the car No.5560/LRD at 05:30 p.m and left for Dera Quresh Sumra. When they reached near the Dera situated near the land of Ijaz Ahmad, Advocate in Chak No.22/SP at 06.00 p.m, all of a sudden, all the accused encircled our car while coming out from the nearby cotton crops. Maqsood Ahmad (PW-1)-the complainant deposed during examination-in-chief that, "On 29.10.2006, Din Muhammad met me and stated that for effecting compromise for settlement of said ladies "Panchyat" had to be called. He also told me that my brother Allah Jawaya, Muhammad Siddique, Muhammad Latif, Muzaffar Hussain Javed and Rehmat Ali were also informed about the "Panchyat" to be held at the Dera of Quresh Sumra in Chak No.22-SP. At 5:30 evening time on the same day, all the said persons came to him (PW-2). All these persons including myself boarded in the car No.5560/LRD." At the risk of repetition we may recapitulate what has been stated by PW-1 in the FIR (Exh.PA) and complaint (Exh.PA/1) the part played by the accused in assaulting the deceased as under: Faiz Ahmad fired shot with his 12-bore double barrel gun the pellets hit on left side of head near the ear of Allah Jawaya deceased.
Similar is the statement of Muhammad Latif (PW-2).
23. Dr. Aman Ullah Khan, (PW-3), conducted the autopsy on the dead body of Allah Jawaya deceased and found following injuries on his person:- "A firearm wound complex of five lacerated wounds on left side of head and face in an area of 15 cm X 11 cm each measuring 1.5 cm X 1.5 cm with inverted margins (wound of entry)."
Maqsood Ahmad (PW-1) in his testimony before the Court stated that, "We were six persons in the car, two were on the front seat and four were on the rear seat. I and Allah Jawaya were sitting in the rear seat along with Muzaffar and Rehmat Ali PW. Haq Nawaz accused is the son of Din Muhammad accused. Faiz Ahmad is the brother in-law (Saala) of Din Muhammad accused."
Whereas Muhammad Latif (PW-2) deposed during cross-examination that, "The car at the time when fire was made the car was heading towards north on the Kacha Path.
The land from where the accused fired was on the eastern side of the car. It was a cotton crop from where the accused had emerged. PWs were present on the western side of the car. On the front side the driver and Rehmat Ali were riding whereas on the rear seat, 4 persons were seating. On the left side was Allah Jawaya and next to him was Maqsood Ahmad on his right, then I was sitting and Muzaffar Hussain was sitting on the right side behind the driver seat. Faiz Accused also fired from distance of 1 or 2 feet from deceased Allah Jawaya."
24. It is prosecution case that the deceased was sitting at left side of the car on the rear seat. It is in the evidence of both PWs 1 and 2 that the accused emerged from the cotton crop fields and attacked the deceased; the car was going towards north and the deceased was at western side inside the car, whereas, the accused-Faiz Ahmad was at eastern side at point 7 shown in the scaled site plan Ex.CW4/A and its distance from point 1 was of one Karam. It is prosecution case that at point No. 1 Muhammad Siddique received injury of the fire shot fired by Ali Sher accused (P.O) makes doubtful the presence of PWs 1 and 2 at the place of occurrence. The prosecution witnesses reaffirm the position of the accused, deceased and witnesses at the time of occurrence in the court at the time of testimony by admitting the position shown in the site plan (Exh.CW4/A).
Maqsood Ahmad (PW-1) deposed during cross-examination that, "I had correctly pointed out to the I.O and to the draftsman the point and places where the accused were present when they fired at the deceased, where the car was present and where the PWs were present. The deceased had received injuries while they were in the car but when the police came, their half bodies were bulging out from the car." Muhammad Latif (PW-2) also deposed during cross-examination in the similar manner that, "I had correctly pointed out the point and places where the car was parked and where the accused were present when they resorted the firing when the witnesses were present." This itself suggests that the accused was at right side, at eastern side, and if the accused-Faiz Ahmad fired from eastern side and both prosecution witnesses were boarded in the car and were seated on rear seat and in the position that on the left side was Allah Jawaya and next to him was Maqsood Ahmad on his right, then Muhammad Latif and Muzaffar where sitting, then Maqsood Ahmad, Muhammad Latif and Muzaffar would receive injuries first and thereafter Allah Jawaya would receive injuries. The fire shot would hit at right side. Apart from discrepancy between ocular and medical evidence with regard to the injury sustained by the deceased Allah Jawaya on his body. This would make the presence of PW1 and PW2 at the place of occurrence doubtful. In our view, these circumstances would make the alleged presence of PW1 and PW2 at the place of occurrence inherently improbable.
25. A perusal of the testimony of Muhammad Latif (PW-2) clearly shows that major portion of his examination-in-chief was improvements from his statement made to the Police. Since the statement of the witness is improved from his earlier statement, he is required to be looked into with greater caution. The statement made by Muhammad Latif (PW-2) in his examination-in-chief was confronted with his earlier statement made before police, which is as following: Police had recorded his statement and he had got recorded in his said statement that Mst. Azizan Bibi D/O Faiz Ahmad was married to Haq Nawaz accused, whereas Mst. Allah Muafi the daughter of Din Muhammad accused was married to Ahmad Hassan accused and these marriages were exchange marriages and due to strange relations they were not living with their respective husbands and they were living with their parents. In cross-examination PW2 was confronted with his statement recorded by the Police under Section 161 Cr.P.C. Ex.DA where this fact is not recorded.
He had recorded to the police that Din Muhammad accused met him and told him that a Panchyat was to be conveyed for reconciliation of the said spouses and that he had also recorded in his statement Ex.DA that Din Muhammad has also invited his brother Muhammad Siddique, Pir Allah Jawaya, Maqsood Ahmad complainant, Muzaffar Hussain and Rehmat Ali for panchayat to be held at the Dera of Quresh Sumra in village 22/SP in the evening time. In cross-examination PW2 was confronted with his statement recorded by the Police under Section 161 Cr.P.C. Ex.DA where this fact is not recorded. He had also recorded in his statement that he along with his brother Siddique driver, Allah Jawaya, Maqsood Ahmad Muzaffar Hussain and Rehmat Ali gathered at the Dera of Maqsood Ahmad complainant and they boarded a car No.556/LRD at 5:30 p.m and left for Dera Quresh Sumra. In cross-examination PW2 was confronted with his statement recorded by the Police under Section 161 Cr.P.C. Ex.DA where this fact is not recorded. He had also recorded in his statement Ex.DA that when they were going to the said Dera and arrived near the land of Ijaz Advocate in Chak No.22/SP at 06.00 p.m. In cross-examination PW2 was confronted with his statement recorded by the Police under Section 161 Cr.P.C. Ex.DA where this fact is not recorded. He had recorded in his statement Ex.DA that the accused encircled the car while coming out from the nearby cotton crop. In cross-examination PW2 was confronted with his statement recorded by the Police under Section 161 Cr.P.C. DA where this fact is not recorded. He had also recorded in his statement Ex.DA that other accused caused injury to Rehmat Ali PW. In cross-examination PW2 was confronted with his statement recorded by the Police under Section 161 Cr.P.C. Ex.DA where this fact is not recorded. He had recorded in his statement that they hide themselves in nearby Jawaar crop to save themselves. In cross-examination PW2 was confronted with his statement recorded by the Police under Section 161 Cr.P.C. Ex.DA where this fact is not recorded. Thus these are clear improvements. The omission(s) amount to contradiction, creating a serious doubt regarding the truthfulness of a witness, and Maqsood Ahmad (PW-1) had also made material improvements before the court, which were already pointed out above, in order to make the evidence acceptable; it would not be safe to rely upon such evidence.
26. The other circumstance, on which reliance was placed by the prosecution, was that the accused was having a motive to commit the murder of Allah Jawaya. The question, thus, arises for consideration is, as to whether, the motive set up by the prosecution, for the alleged commission of crime was proved or not. Maqsood Ahmad (PW-1)-the complainant deposed during his court statement that, "the motive for the occurrence was that Din Muhammad Accused was his tenant.
He had suspicion that his daughter Mst. Allah Muafi had illicit relations with Allah Jawaya deceased due to which, she was leading deserted life and was not willing to go to the house of her husband.
Din Muhammad was of the view that due to desertion of Mst. Allah Muafi, the lady given in exchange of her marriage Mst. Azizan Bibi was also living deserted life. Furthermore, the other motive is that the land of Muhammad Sadiq accused was adjacent to our land. We had a dispute with him for irrigating water and for "Chaudharat" (Hegemony). For these reasons, my brother Allah Jawaya had insulted Muhammad Sadiq several times prior to this occurrence. The accused persons in furtherance of their common object deceptively made them to move on the pretext of "Panchyat" for compromise and then committed the murder of my brother at the place of occurrence." Whereas during cross-examination he (PW-1) deposed that, "I had got written in my application for FIR Ex.PA that there was a dispute of water of irrigation between Sadiq accused and Allah Jawaya deceased and they were also rival for "Chaudhrahat" and for this reason, Allah Jawaya deceased had insulted Sadiq accused several time prior to this occurrence. Confronted with Ex.PA were not so recorded. It is correct that new motive has been introduced by me in the private complaint." Muhammad Latif (PW-2)-the eye witness deposed during his court statement that, "the motive for the occurrence was that Din Muhammad accused was the tenant of Maqsood Ahmad complainant and he suspected the illicit liaison of his daughter with Allah Jawaya deceased. Furthermore, Sadiq accused had his land adjacent to the land of Allah Jawaya and there was a dispute over irrigation water as well as for "Chaudhrahat" and for this reason Allah Jawaya deceased insulted Sadiq accused several times prior to this occurrence. The accused persons had deceived us on the pretext of convening Panchyat." Muhammad Latif (PW-2) deposed during cross examination that, "I had also recorded in my statement Ex.DA that Sadiq accused had his land adjacent to Allah Jawaya and there was a dispute over irrigation water as well as for Chaudhrahat and for this reason Allah Jawaya deceased insulted Sadiq accused several times prior to the occurrence." Bashir Ahmad, S.I. (CW-7)-the investigating Officer, deposed that, "It is correct that the complainant party did not produce before me any evidence to show the convening of Punchayat before the occurrence. No evidence of motive was produced before me by the prosecution during investigation". The motive for the commission of crime, by the accused was, therefore, not proved, through cogent and convincing evidence. The prosecution, thus, miserably failed to prove the motive for the alleged occurrence; therefore, the story put forward by the prosecution stands falsified.
27. Admittedly out of seven accused persons involved in this case, accused Ali Sher was declared proclaimed offender whereas five accused (1) Ahmad Hassan, (2) Din Muhammad, (3)
Haq Nawaz, (4) Bashir Ahmad and (5) Muhammad Sadiq have been acquitted by the learned trial court on the same prosecution evidence. The acquittal of above five accused was not assailed by the complainant. It is settled principle of law that if evidence of the prosecution is disbelieved qua major portion of the accused persons it cannot be believed qua the other in the absence of very strong corroboration. Reliance is placed on the case law reported as Akhtar Ali and others v. State (PLJ 2008 SC 269). It has also been held by the Hon?ble Supreme Court of Pakistan in case titled "Sarfraz alias Sappi and 2 others v. The State" (2000 SCMR 1758) and Iftikhar Hussain and others v. The State (2004 SCMR 1185) that:- "That eye witnesses who are disbelieved against some accused persons attributed active and effective roles cannot be believed against the other accused persons."
28. The next circumstance relates to the recovery of weapon alleged to have been used in the commission of the offence. Bashir Ahmad SI (CW-7)-the investigating officer, has deposed that on 27.11.2006 he arrested Faiz Ahmad accused and on 05.12.2006, Faiz Ahmad accused while in his custody on physical remand made disclosure and led to the recovery of 12-bore double barrel gun (Ex-P1) along with two live cartages (Ex.P2) from his residential house, which was taken into possession through recovery memo Ex.PB. There is no material on the record to show that the seized article was kept in the malkhana by CW-7 for safe custody. Nor the investigating officer has stated that he had kept the weapon in the malkhana after properly securing and sealing the same.
Thus, from the evidence on the record, it cannot be said that the 12-bore double barrel gun allegedly recovered from the appellant by the investigating officer CW7 and the positive report of forensic science laboratory (Exh.PW) relates to the same 12-bore double barrel gun examined by the forensic science laboratory. Since, the 12-bore double barrel gun, recovered on the disclosure of the accused Faiz Ahmad was not handed over to Moharrar and the same was not kept in safe custody the possibility that the weapon might have been tampered while in the custody of the police cannot be ruled out. That being the position, it would not be safe to rely upon the positive report of forensic science laboratory (Exh.PW).
29. Now we will deal with the defence version. The defence version of Faiz Ahmad has already been mentioned above in para No.14. Learned counsel for the complainant submitted that the appellant had confessed his guilt before investigating officer and same has been brought on the record during trial and put to the appellant as Exh.DB. Then the question comes whether the accused was in custody of the investigating officer when he is said to have made the confession.
Admittedly the accused was physically in custody of the investigating officer. It seems to us that when once an accused is arrested by a Police Officer and is in the custody then the Court must be very careful and should not act upon it unless it is proved by evidence of the most reliable character. The accused while appearing as DW-1 has deposed that the investigating officer under the influence of Muhammad Anwar Chishti DSP did not allow the investigating officers to record their version correctly although hundreds people of the vicinity have supported our version. The confession having been made while the accused was in the custody of the police could not be admissible under Section 39 of the Qanun-e-Shahdat Order, 1984, therefore, this goes out. The confession brought on the record rests entirely on the uncorroborated piece of evidence. The accused-Faiz Ahmad (DW-1) denied having made the confession during investigation. In dealing with any defence plea, particularly when it is not anywhere recorded, it cannot be relied upon. We have also noted that the gist of statement or statement of the accused recorded in case diary under section 172 Cr.P.C by the Investigating Officer was not required to be made available to the accused or prosecution. According to sub-section (4) of Section 173 of The Criminal Procedure Code, only copy of any report forwarded under Section 173 Cr.P.C shall be furnished on the application of the accused before the commencement of the inquiry or trial. Only following documents have to be furnished and statute has not provided that any gist or statement of the accused recorded by the Investigating Officer during the investigation the copies of the same would be brought on record or same can be confronted to the accused:- i. Copy of the report in the prescribed form forwarded to the Magistrate, under sub-section
(1) of Section 173, Criminal Procedure Code. ii. Copy of the first information report recorded under section 154 Criminal Procedure Code. iii. Copies of all other documents or relevant extracts thereof, on which the prosecution proposes to rely. iv. Copies of statements and confessions, if any, recorded under section 164 Criminal Procedure Code. v. Statements of witnesses recorded under sub-section (3) of section 161 Criminal Procedure Code of all the persons whom the prosecution proposes to examine as its witnesses.
30. As discussed above, the statement of accused recorded in police custody cannot be supplied or brought on the record and same cannot be used against him. To some extent the plea of the accused was established, as, Bashir Ahmad, S.I. (CW-7) deposed during cross-examination that, it is correct that in the fields there is a house of Faiz accused but I have not shown it in the site plan; I took into possession from the inside of the car of deceased person the carbine, butt of the gun, live cartridges and blood stained earth; I also collected hatchet and sota from the Jawar crop near the place of occurrence; It is correct that the said car and the ammunition recovered there from belonged to the complainant party; It is correct that the complainant, eyewitnesses and the two deceased belonged to District Okara and the occurrence took place within the limits of District Pakpattan falling under P.S Chakbaidi; It is correct that the complainant party did not produce before me any evidence to show the convening of Panchyat before the occurrence; It is correct that Azizan Bibi who is the daughter of Faiz accused was living deserted life in the house of her father in those days; No evidence of motive was produced before me by the prosecution during investigation; I have correctly found in my investigation that complainant party had come prepared to forcibly abduct Aziza Bibi but they could not succeed; it is correct that the house of Faiz accused is situated on a metalled road. In such circumstances it could not be ruled out that the witnesses had suppressed the original occurrence and has thus not presented the true version.
Muhammad Latif (PW-2) deposed during cross-examination that, the occurrence took place near the house of Faiz Ahmad accused at the distance of 7/8 acres. Din Muhammad accused did not accompany us; the car at that time when fire was made the car was heading towards North on Kacha path. It had been admitted by the complainant-Maqsood Ahmad (PW-1) that he had never visited the place of occurrence and the chak prior to this occurrence; it is correct that adjacent to the house of Faiz accused there is a small canal (Rajbah) and a metal road leading to Chak Noor Muhammad; it is correct that car was on "kacha" road lying within the fields and not on the metal road; it is correct that on the north side of the head of the car there was a malted road. The complainant-Maqsood Ahmad (PW-1) with dishonesty improved his statement and deposed that accused-Din Muhammad led them to the place of occurrence. The complainant-Maqsood Ahmad (PW-1) deposed that Din Muhammad accused gathered them and they went on motorcycle and we followed them on car. This statement of the complainant-Maqsood Ahmad (PW-1) was confronted with Ex.PA wherein it was not so recorded. In such circumstances it could not be ruled out that the witnesses had suppressed the original occurrence and has thus not presented the true version.
31. The unreliable report of forensic science laboratory in this case, the failure of the prosecution to establish that the weapon of offence, alleged against the appellant was kept in safe custody, and more importantly delay in conducting post mortem, and the delay in recording the FIR, as is apparent from a careful reading of the evidence, the conflict between ocular and medical evidence all cumulatively throw doubts about the credibility of the prosecution story. From the above detailed discussion, we are, however, convinced that the prosecution has failed to establish its case. We have gone through the process of keen examination of the entire material and found compelling reasons as stated above to disagree with the conclusion reached/recorded by the learned Additional Sessions Judge and also found that the prosecution has miserably failed to prove the guilt of the accused-appellant beyond reasonable doubt. For these reasons, we are of the opinion that there is insufficient material to conclude that the appellant was guilty of committing the offence he was charged with. The findings recorded by the learned trial court, therefore, are required to be set aside, and the same are set aside.
32. We, therefore, accept in toto Criminal Appeal No. 470 of 2010 filed by Faiz Ahmad son of Muhammad Ismail, as a result whereof conviction and sentence recorded by the learned trial Court vide judgment dated 16.02.2010 is set-aside and the appellant is acquitted of the charge in case F.I.R. No. 502-2006 dated 30.10.2006, offence under Sections 302, 148, 149 P.P.C. registered at Police Station, Chak Baidi District, Pakpattan Sharif and he be released forthwith, if not required in any other case.
33. Murder Reference No.307 of 2011 forwarded by the learned trial court for confirmation of the sentence of death inflicted upon the convict fails, which is answered in Negative.