Qazi Muhammad Amin Ahmed, J.--Mehmood Ahmad, 30, hereinafter referred to as the deceased, was gunned down within the area of Chak No, 102/9-L, situating at a distance of five miles from Police Station Dera Raheem District Sahiwal at 2:30 p.m. On 23.9.2009; Sakhawat Ali (PW-1) sustained injuries during the occurrence; the incident was reported by Muhammad Ameer (PW-2) through application Ex.DB, recorded by Muhammad Iqbal SI (CW-6) at 8:10 p.m; his rendition before the Court is as follows: "On 23.9.2008 at about Peshi Wela, I went to mosque for offering prayer, when I reached near the shop of Ahmad Yar Bloach, I saw that Sakhawat PW and Mehmood deceased were standing there and talking each other. Farid accused raised lalkara that Mehmood and Sakhawat be done to death. All the accused persons armed with Sotas came at the spot. Munir accused gave bala blow which landed on the left side of head of Mehmood. Farid also gave Sota blow which landed on the left side of head of Mehmood. Munir accused gave again sota blow which landed on the head of Mehmood. He felled on the ground. Thereafter Shahid, Ramzan, Shera accused inflicted Sota blows on the person of Mehmood. Then the accused persons attacked Sakhawat PW; Shera, Farid and Accused persons gave Sota blows on the person of Sakhawat PW, which landed on his head and on other body parts. He fell down; at that time, the other persons attracted to the spot. Shaukat and Ashraf PWs also reached the spot. We intervened and rescued the injured and we shifted the injured at RHC Budh Dhakku. The accused persons left the place of occurrence along with their respective weapons. The Doctor of RHC Budh Dhakku was not available therefore, we shifted the injured Mehmood to DHQ Hospital due to his serious condition. On 26.09.2008 Mehmood died due to above said injuries at Lahore. Motive for the occurrence was that about 2 months prior to the occurrence Sakhawat PW and Shahid, etc. Accused persons quarreled each other and due to this grudge the accused person committed this occurrence."
' The deceased in injured condition, was rushed to DHQ Hospital Sahiwal, where he was attended to by Dr. Saeed Ahmad Kamiana (PW4) on 23.9.2008 at 3:45 p.m. And was noted to have five lacerated wounds accompanied by a swelling on left parietal area of head, on back of mid of head as well as left forehead, measurement of the wounds ranges from 2 cm x 1/2 cm, 1/2 cm x 1/2 cm, 1.5 cm x 1/2 cm, 2 cm x 1/2 cm and 6 x 5 cm. Sakhawat, PW was also examined by PW-4 same day at 3:45 p.m and noted to have two lacerated wounds of 4 cm x 0.5 cm and 1 cm x 1/4 cm on right parital area of head accompanied by bruises and abrasions on right shoulder, right arm and left shoulder. After struggling for his life, the deceased succumbed to his injuries on 26-9-2008; autopsy was conducted on 27-9-2008 at 2:00 p.m. By Dr. Syed Hafeez-ur-Rehman (PW-3) who noted one diffused contused swelling on left side of head and surgical stitched wound of 8 x 8 x 10 cm towards left ear, caused by blunt weapon leading to stomachache; ante-mortem in nature; brain injury was blamed as cause of death; probable time between the injuries and death was 3 days and 8 hours whereas between death and postmortem 15 to 40 minutes. During spot inspection, besides taking other investigative steps, Investigating Officer secured blood-stained earth, found of human origin as per Chemical Examiner Report (Ex:PF) and that of Serologist (Ex.PG).
Accused Munir, Muhammad Ramzan, Ghulam Farid and Sher alias Shera were arrested on 19.11,2008; Muhammad Munir, Sher Muhammad and Ghulam Farid accused, pursuant to their disclosures, led to the recovery of Sota (P-4), (P-5) and (P-6) respectively on 30.11.2008. Jahan Khan alias Malo and Shahid were, however, exonerated during the course of investigation. Feeling dissatisfied with the course of investigation, the complainant preferred to institute a private complaint wherein process was issued against all the accused. On completion of investigation, the accused were sent to face trial before a learned Addl. Sessions Judge at Sahiwal; they contested their indictment and claimed trial on 28-10-2009, pursuant whereto, prosecution produced as many as four witnesses to drive home charge against them besides relying upon forensic reports; of them Sakhawat Ali (PW-1) and Muhammad Ameer (PW-2) furnished ocular account, they constitute the mainstay of the prosecution case; six witnesses were examined as Court witnesses; the appellants and co-accused rallied behind a denial and took the following plea: "It is a false case. All the PWs are related interse and thus are inimical towards Jatt brothery of village. None of the PWs, namely, Ameer son of Hassan, Shaukat Ali, Shaamand were present. In fact it was deceased who picked up quarrel with Sher Muhamad and took him into his JAPHA and Sakhawat in order to cause injury on Sher Muhammad gave Sota blow who in return forthwith lowered his head and Sota blow landed on head of Mehmood deceased who fell injured there and then and seeing situation adverse Sakhawat launched assault on Rashid when Ramzan was passing through the street and also chased him and caused injuries to Ramzan in order to ward of his attack and to save lives of Sher Muhammad and Ramzan. I caused injury with Soti to Sakhawat.
None has caused any injury to the deceased from accused side. None of the accused Farid, Jahan Khan, Shahid were present there nor Ramzan caused any injury to the deceased. The police connived with the complainant party. Sher Muhammad and Ramzan were medically examined on the same day but as the complainant party is a rich family, they succeeded in registration of case against us. Ghulam Farid co-accused is minor and at the time of occurrence on 23-9-2008 he was of 17 years 10 months and 24 days as per Birth Certificate 29.10.1990, whereas Muhammad Ramzan accused is also minor. He was also of about 16 years of age at the time of occurrence. The complainant was subsequently summoned and was tutored to launch present prosecution. It was the complainant party, namely deceased and Sakhawat who initiated, the attack and committed aggression".
' The learned trial Judge vide judgment dated 24-5-2010 acquitted Shahid and Jahan Khan, however, proceeded to convict the appellants under Section 302(b) of the Pakistan Penal Code, 1860; Munir, appellant was sentenced to death along with compensation of Rs, 100,000/- or six months S.I. In the event of default; he was also convicted under Section 337-L(ii) on two counts with payment of Daman of Rs, 2000/- for each injury; in addition to his conviction under Section 337-F(i) of the Code ibid with payment Rs,2000/- as Daman whereas Sher alias Shera, appellant was sentenced to imprisonment for life along with compensation of Rs,50,000/- or six months S.I. In the event of default with benefit of Section 382-B of the Code of Criminal Procedure, 1898, vires whereof, are being challenged by the appellants through Crl. Appeal No, 681 of 2010; the complainant seeks reversal of acquittal through Criminal Petitions for Special Leave to Appeal No, - 63, 64 & 65 of 2010; State seeks confirmation of death penalty vide Murder Reference No, 147 of 2010; these are being decided through this single judgment.
2. Learned counsel for the appellants contend that evidence disbelieved qua acquitted co- accused cannot be pressed into service to sustain charge against the present appellants; that prosecution story, on face of it, is extremely improbable and unnatural; the bottom-line of the submissions made by the learned counsel for the appellants is that prosecution miserably- failed to prove the charge against the appellants. Learned Law Officer supported by the learned counsel for the complainant, contrarily, defended the impugned judgment and prayed for confirmation of death penalty on the ground that in the backdrop of an established motive, the ocular account furnished by two witnesses successfully drove home the charge vis-a-vis the appellants and as such, to their extent, acquittal of co-accused does not adversely effect prosecution case. The learned counsel for the complainant while arguing Criminal Petitions for Special Leave to Appeal seeks reversal of acquittal into conviction on the ground that view taken by the learned trial Court while acquitting the respondents is an impossible view and warrants interference by this Court in order to avoid miscarriage of justice.
3. Heard. Record perused.
4. Prosecution case is structured upon the statement of Sakhawat Ali (PW:4) and Muhammad Ameer (PW-2); the former is injured witness when medically examined on 23-9-2008 by Dr. Saeed Ahmad Kamyana (PW-4) he was noted to have six injuries comprising of lacerated wounds on the parietal area as well as bruises and abrasions. One of the injuries on the right parietal area had exposed the bone and as such presence of Sakhawat Ali (PW-1) at the spot cannot be doubted.
Nonetheless presence of a witness cannot be equated with truth and evidence of an injured witness is to be evaluated with same degree of caution and care so as to ensure safe administration of criminal justice. First Information Report Ex.PB/1 is the cornerstone of the prosecution case; it is lodged with a delay of three days; no doubt, the paramount concern of the complainant was to save the life of the deceased and the injured, however, given the inter se distance of five miles between the place of occurrence and Police Station Dera Raheem, it was not really very difficult for him to have recourse to law through some other member of the family. The reason cited by the complainant for belated approach to law is liable to be discarded for yet another reason and that is medical examination of Sakhawat Ali (PW-1) through Muhammad Aslam, ASI under a police docket, the said official has not been examined and what precluded the complainant to lodge the First Information Report in time is left to our imagination. Admission by Muhammad Ameer (PW-2) in the following terms goes a long way to militate against the veracity of prosecution case: "I do not remember the name of Advocate from whom I got computerized application Ex.DB. The day I got filed private complaint Ex.PA through my learned counsel. I did not disclose the filing of Ex.DB, its computerization or the name of Advocate who computerized it. I reached to obtain computerized Ex.DB at about 10 a.m. Besides me PWs Sakhawat and Ashraf were also present and had come to Court for drafting Ex.DB and after due consultations within Sakhawat and Ashraf PWs Ex.DB was prepared and drafted and remained in District Courts on that day for preparation of Ex.DB till 12 O'clock and then went to the Court."
The witness has further admitted that he was accompanied by Sakhawat Ali and Ashraf PWs at the time of consultation with his the lawyer. Given the delay referred to above and participation of a lawyer in preparation of the script alongside the acquittal of four out of six accused would certainly warrant a cautious and careful scrutiny of prosecution evidence. It is also on the record that Muhammad Ramzan, acquitted co-accused as well as Shera appellant sustained injuries and were medically examined by no other than Dr. Saeed Ahmad Kamyana (PW-4); there is no reference to these injuries in the First Information Report, however, some minor injuries are mentioned in the private complaint filed as late as on 16-1-2009. The motive is pointed on Shahid acquitted co-accused and as such does not advance prosecution case qua the appellants. On the overall analysis of all these aspects of the prosecution case, it is found fraught with doubts, doubts patent in the stated positions, benefit whereof cannot be withheld. Consequently, by extending benefit of the doubt to the appellants Crl. Appeal No, 681 of 2010 is allowed; impugned judgment dated 24.5.2010 is set aside; the appellants are acquitted from the charge and shall be set at liberty forthwith, if not required in any other case. Murder Reference No, 147 of 2010 is answered in NEGATIVE and death sentence is NOT CONFIRMED.
As a natural corollary, Petitions for Special Leave to Appeal Nos. 63, 64 and 65 of 2010 stand dismissed.