1. ASJAD JAVAID GHURAL, J.--- Through this Criminal Appeal No. 217 of 2014 appellants "-shad and Muhammad lshfaq have challenged the vires of judgment dated 31.01.2014 passed by a learned Additional Sessions Judge, Chunian in a private complaint titled "Muhammad Rafiq v. Arshad, etc." in respect of offences under Sections 302, 148, 149, 337-F(i), and 337-L(ii), P.P.C. arising out of case F.I.R. No. 339, dated 26.08.2011 registered at Police Station Chhanga Manga, whereby they were convicted and sentenced as under:-- "Under Section 302(b) of the, Pakistan Penal Code, 1860.
2. Death and to pay the compensation of Rs. 100,000/- each under Section 544-A, Cr.P.C. to the legal heirs of deceased Muhammad Siddique and in default thereof to further undergo simple, imprisonment for six (06) months each.
2. Murder Reference No. 54 of 2014 for confirmation or otherwise of death sentence of appellants Arshad and Muhammad lshfaq shall also be decided through this single judgment.
3. The prosecution story unfolded in the crime report Ex.PE registered on the complaint of Muhammad Rafique (PW-10) is that on 26.08.2011 at about 9:00 a.m. Muhammad Siddique (deceased), brother of the complainant had gone to fill petrol in his motorcycle. When he reached on the main road near Masjid Nisar-e-Madina Chunian Wali, Waan Khara, accused Arshad armed with iron rod, Ishfaq armed with hatchet, Ghaffar armed with Sota, Manzoor armed with Sota, Wakil armed with iron rod along with three unknown accused persons having Sotas and hatchets had ambushed there and started beating him. Arshad had given blow of iron rod at the back of head, lshfaq had given hatchet blows at the upper side of head and right arm, accused Ghaffar, Manzoor, Wakeel and three unknown accused persons had given iron rod, hatchet and Sota blows to Muhammad Siddique on different parts of his body, who fell down. In the meanwhile the complainant alongwith Din Muhammad alias Bagga and Ashiq reached there and interfered to save. Muhammad Siddique but the accused persons gave beating to Din Muhammad alias Bagga.
3. Accused Wakil gave iron rod blow to him. Muhammad Siddique had succumbed to the injuries at the spot. The accused persons were trying to shift their place of abode to some unknown place by loading their articles on truck No. LHG/8654 but the complainant and the witnesses dared to stop them whereupon the accused persons fled away from the crime scene.
4. Motive behind the occurrence was that the accused persons had quarreled with the complainant's brother.
4. Liaquat Ali, S.I. (Retd.) (CW-1) on 26.08.2011 had visited the place of occurrence, prepared injury statement Exh.CW-2, prepared inquest report Exh.CW-4 and escorted the dead-body to mortuary.
5. He had collected bloodstained earth through recovery memo. Exh.CW-5, taken into possession a truck No. LHF-8654, which was loaded with dowry articles, etc. vide memo. Exh.CW-6, prepared rough site plan Exh.CW-7 and recorded the statements of witnesses under Section 161, Cr.P.C. On 21.09.2011, he had arrested the appellants/accused Arshad and Ishfaq. On 29.9.2011, appellant Arshad led to the recovery of pistol 30-bore and a hatchet (blood-stained), Which were taken into possession vide memos. Exh.CW-9 and Exh.CW-10. On the same day appellant Ishfaq led to the recovery of a ?hat Danda' with four corners vide memo. Ex.CW-11. He had recorded the statements of witnesses under Section 161, Cr.P.C. During his investigation co-accused Abdul Ghaffar, Manzoor Ahmed and Wakeel were found present at the place of occurrence but at a distance of 100-feet while loading, articles of dowry on the truck. He got prepared challan against the appellant, which was submitted before the Court for trial.
5. Dr. Nawab Din (PW-7) had conducted post-mortem examination On the dead-body of deceased Muhammad Siddique at 4:00 p.m., on 26.08.2011 and observed ten ante-mortem lacerated wounds on different parts of his body. Injuries No. 1, 2 & 9 had been caused by sharp- edged weapon whereas rest of the injuries had been caused by blunt means.
6. ON DISSECTION:- All' skull bones were fractured, meninges and brain matter were damaged. All other organs were normal and healthy.
7. The cause of death was due to neurogenic and haemorrhagic shock due to the injuries. The probable duration between injuries and death was 10-20 minutes and between death and post- mortem 6-8 hours.
6. At the commencement of the trial, the learned Trial Court had framed the charge against the appellants and their co-accused Ghaffar, Manzoor and Waheed to which they had pleaded not guilty and claimed to be tried.
7. The prosecution had produced 12-witnesses besides the reports of Chemical Examiners Exh.PG, Exh.PH, Exh.PJ and Exh.PK and the reports of Serologist Exh.PL and Exh.P.M.
8. Upon completion of prosecution evidence, the statements of the appellants and their co-accused were recorded under Section 342, Cr.P.C., wherein the entire prosecution evidence was put to them upon which they had denied the charges levelled against them and professed their innocence.
9. They neither opted to appear under Section 340(2), Cr.P.C. nor had they produced any evidence in their defence.
8. Learned Trial Court, after hearing learned counsel for the parties, had acquitted co-accused Ghaffar, Manzoor and Waheed whereas convicted and sentenced the appellants supra vide judgment impugned herein. Hence, the present appeal as well as the connected Murder Reference.
9. Learned counsel for the appellant submits that it was an un-witnessed occurrence and the eye- witnesses shown to be present at the venue of occurrence had been planted and were chance witnesses; that eight accused persons had been arrayed including the appellants with the specific role of causing injuries on the person of the deceased out of which three co-accused had been acquitted of the charge by the learned Trial Court and three unknown accused persons could not be traced; that the learned Trial Court had disbelieved the ocular account qua the involvement of co-accused and the same evidence had been believed to the extent' of appellants without any independent corroboration from other piece of evidence; that the appellants deserve the same treatment to that of their acquitted co-accused; that during the course of investigation a blood stained pistol and a hatchet had been recovered at-the instance of Muhammad Arshad appellant, whereas he was alleged in the crime report to be armed with an iron rod at the time of occurrence; that the motive part of the occurrence as alleged by the prosecution could not be established through confidence inspiring evidence; that the complainant had filed a private complaint where the role of the appellants had been changed and three unknown accused persons had been skipped from the private complaint, which questioned the veracity of the prosecution witnesses.
10. Finally, a prayer for acquittal of the appellants has been made.
11. 10.Conversely, learned Deputy Prosecutor General appearing for the State assisted by the learned counsel for the complainant has vehemently opposed the contentions raised by the learned counsel for the appellants while submitting that it was a day light occurrence, which had taken place on the mettled road surrounded by shops, oil agency, mosque and mobile centre, which could not be termed as an un-witnessed occurrence; that the accused persons were busy in loading the dowry articles in a truck, when the occurrence had taken place; that the learned Trial Court had acquitted co-accused while extending the benefit of doubt and applying the principle of sifting the grains from chaff; that the ocular account is corroborated with the medical evidence as well as the scaled site plan (Ex.PB) prepared by the draftsman PW-2; that the motive part of the occurrence has been established by the prosecution; that the recoveries of weapon of offence had been effected from both the appellants; that the prosecution has proved its case beyond any shadow of reasonable doubt; that the conviction and sentence of both the appellants awarded by the learned Trial Court do not warrant interference by this Court.
12. 11.We have heard learned counsel for the appellants, learned Deputy Prosecutor General appearing for the State and have perused the record with their assistance.
13. 12.We have observed that the occurrence had taken place at 9:00 p.m. on 26.08.2011- and the matter was reported to the police at 10:40 p.m., on the same day with sufficient promptitude containing the names of the appellants alongwith their co-accused Ghaffar, Manzoor, Wakeel and three unknown accused persons carrying their respective weapons and the specific role assigned to them for inflicting blows on the person of deceased Muhammad Siddique and Din Muhammad, the injured witness.
14. Muhammad Rafique (PW10)/complainant, real brother of the deceased and Muhammad Ashiq PW-11 had furnished the ocular account. Din Muhammad, who had received injuries during the occurrence, had died his natural death before making statement before the learned Trial Court.
15. Muhammad Rafique, the complainant had made different deposition before the learned Trial Court to that of his averments made by him before the police at the time of lodging the crime report. In his earlier statement recorded under Section 154, Cr.P.C. he had stated that on the fateful day at about 09:00 a.m., Muhammad Siddique deceased had gone to fill petrol in his motorbike and when he reached near Masjid Nisar Madina Chuhianwali, Waan Khara, appellant Arshad armed with iron rod, appellant Muhammad Ashfaq armed with hatchet, Ghaffar and Manzoor armed with sota and Wakeel armed with iron rod alongwith three unknown accused persons, who were armed with Sota hatchets had already ambushed there and when Muhammad Siddique deceased reached near to them they got him alighted from - the motorcycle and assaulted upon him, Arshad inflicted an iron rod at the back side of head, Ashfaq inflicted hatchet blows at top of the head and right arm of Muhammad Siddique, co-accused Ghaffar, Manzoor, Wakeel and three unknown persons had given blows with their respective weapons on different parts of the body of Muhammad Siddique deceased, who fell down on the ground. The complainant, Din Muhammad alias Bagga and Ashiq had interfered to rescue Muhammad Siddique whereupon Din Muhammad alias Bagga had received injury at the hands of Wakeel co-accused. Muhammad Siddique succumbed to the injuries at the spot. All the accused persons committed the murder of Muhammad Siddique deceased with pre-plan and pre-meditation while they were already loading the truck to leave the place of their abode. During investigation, the Investigating Officer had exonerated all the co- accused. Feeling aggrieved, the complainant had filed a private complaint on 13.10.2011 wherein it was alleged that Arshad appellant, who was armed with iron rod had made successive blows on the head of Muhammad Siddique deceased. Ashfaq appellant inflicted successive hatchet blows hitting at the back side of head of Muhammad Siddique deceased. The complainant had changed the role of both the appellants in the private complaint. Earlier Arshad was attributed the role of giving single blow of the iron rod at the back side of head of Muhammad Siddique deceased whereas Ashfaq was attributed the role of giving a hatchet blow at top of head of Muhammad Siddique deceased but in the private complaint Arshad had been attributed the role of giving successive iron rod blows at the head of the deceased whereas Ashfaq had been attributed the role of giving successive hatchet blows at the back of head of Muhammad Siddique deceased.
16. During investigation, it was found that the co-accused had not participated in the alleged occurrence in any capacity whatsoever and were exonerated. The Investigating Officer's investigation was different to that of the mode and manners as described by complainant. Arshad appellant was alleged to be armed with an iron rod whereas during the course of investigation, he got recovered a blood-stained pistol 30-bore and a blood-stained hatchet vide recovery memo.
17. Ex.CW-9 and Ex.CW-10. Muhammad Ashfaq appellant was alleged to be armed with hatchet at the time of occurrence but during the course of investigation he got Recovered a blood-stained Sota.
18. All the three weapons recovered at the instance of both the appellants were sent to the office of Chemical Examiner, Lahore and were found stained with human blood, which by itself negates the entire prosecution story as alleged by the complainant. The changed stance of the complainant in the private complaint and deposed about by the eye-witnesses to that of the first information report qua the role of causing injuries on the person of deceased and findings of the Investigating Officer negates the presence of the eye-witnesses at the place of occurrence. Both the eye- witnesses could not give any plausible explanation to be present at the scene of occurrence. The complainant was real brother of the deceased but he remained mum at the time of occurrence like silent spectator does not appeal to ordinary prudence as the blood is always thicker than water. It is prosecution's own case that one Din Muhammad alias Bagga had come there and interfered to rescue Muhammad Siddique deceased and during scuffle he had sustained injuries at the hands of Wakeel co-accused. He had no blood relation with the deceased but he interfered on humanitarian ground, The complainant was real brother of the deceased but he alongwith Muhammad Ashiq had neither made any attempt to rescue the deceased nor had he made any hue and cry to attract the people from nearby shops, houses and even did not receive even a single scratch during the occurrence, which shows that both the eye-witnesses were not present at the scene of occurrence. The eye-witnesses had alleged that Arshad appellant was armed with an iron rod whereas both the weapons recovered at the instance of Arshad appellant i.e. blood- stained pistol and hatchet, were sent to the office of Punjab Forensic Science Agency and the reports thereof Ex.PG and Ex.PH are positive. Likewise, Muhammad Ashfaq was alleged to be' armed with hatchet but during the course of investigation a blood-stained Danda had been recovered at his instance, which was sent to the office of Punjab Chemical Examiner and the report of said office was positive. Even otherwise, the injuries attributed to both the appellants were not compatible with medical evidence qua the number of injuries sustained by Muhammad Siddique deceased.
19. The postmortem report reveals ten injuries on the person of the deceased out of which three incised wounds on the head and an incised Avcmnd on the right middle forearm had been observed by the medical expert. The remaining six injuries had been caused by blunt object, which were attributed to the co-accused jointly, who had been exonerated by the Investigating Officer and were acquitted of the charge by the learned Trial Court. The complainant had not filed appeal against the acquittal of the co-accused, which shows his satisfaction upon their acquittal as they were not involved in the murder in issue. Even otherwise, he had alleged in the crime report that three unknown accused persons were accompanying the nominated accused persons but at the time of lodging the private complaint he had not mentioned any of the unknown accused persons, who were accompanying the appellants and their co-accused. The variations as to the role, weapon of offence, attribution at the specific part of the deceased and acquittal of the co- accused constrained us to believe that the eyewitnesses were in fact not present at the scene of occurrence and they had not witnessed the occurrence and that they were capable of falsehood.
20. The eye-witnesses have miserably failed to establish their presence at the place of occurrence at the relevant time.
21. 13.Dr. Nawab Din (PW-7) had conducted post- mortem examination on the dead-body of the deceased Muhammad. Siddique at 4:00 p.m., on 26.08.2011 and observed ten injuries on the different parts of his body, out of which four injuries were incised wounds in the area of head, neck, face and nose.
22. ON DISSECTION:- All skull bone were fractured. Meninges and brain matter were damaged. All other organs were normal and healthy. The cause of death was due to neurogenic and haemorrhagic shock due to injuries, which were ante mortem. Injuries N'o. 1, 2, 5 and 9 had been caused by sharp-edged weapons and rest of the had been caused by blunt weapon, which were sufficient to cause death in ordinary course of nature. The probable duration between injuries and death was 10-20 minutes and between death and post-mortem 6-8 hours.
23. The purpose of post-mortem examination was to ascertain the nature of injuries, locale of injuries, number of injuries, kind of weapon used and cause of death but the same by itself could not raise finger towards any actual culprit but in the case in hand the medical evidence does not coincide with the ocular account furnished by the prosecution.
24. 14.The motive as set up by the prosecution in the crime report was a 2/3 days earlier a quarrel had taken place between the deceased and the accused persons but no time, date, place and nature of the quarrel had been mentioned and no name of any witness of that quarrel had been mentioned. In the private complaint, the complainant had mentioned that one Sajjad, a son of the deceased had contracted Court-marriage with a girl of the accused party and a case F.I.R. No. 339/2011 had been registered at Police Station Changa Manga in that regard but no documentary proof with regard to the motive could be brought on record. It was just a vaguely formulated and nothing more than a bald assertion. It was the duty of the prosecution to prove the motive of the occurrence not only through the evidence of eye-witnesses but also through independent source.
25. We are of the considered view that the prosecution has badly failed to establish the motive part of the occurrence.
26. 15.Both the appellants were arrested on 21.09.2011, Arshad appellant led to the recovery of a blood-stained pistol 30-bore and a blood-stained hatchet on 29.09.2011. Ashfaq appellant led to the recovery of a blood-stained Phati/Danda. All the afore-mentioned recovered weapons were sent to the office of Chemical Examiner for expert opinion and the reports of said office i.e. Ex.PG, Ex.PH and Ex.PK are positive showing that all the three weapons were stained with human blood.
27. Both the appellants had been alleged to be armed with different weapons to that of the recovered weapons. The said weapons of offence had been found to be stained with human blood by itself negates the prosecution version as it was not a case of prosecution. In the peculiar circumstances of the case the recovery of weapons of offence other than the weapons as alleged in the crime report remained inconsequential even on the availability of positive reports of the Chemical Examiner.
28. 16.Having scanned the entire prosecution evidence, we are of the considered view that the prosecution has miserably failed to substantiate the charge levelled against the appellants, through reliable and confidence inspiring evidence. The witnesses were chance witnesses and their claimed presence at the venue of occurrence could not been established beyond reasonable shadow of doubt.
29. The conduct of the eye-witnesses and the changed stance in the private complaint qua the seat of injuries and the role attributed to the appellants and the acquittal of co-accused having effective role in committing the murder of the deceased constrained us not to believe the ocular account, which was otherwise belied by the medical evidence. The motive as set up by the prosecution was vaguely formulated and could not be established through any independent source. The recoveries of weapons of offence were quite different to that of the weapons as alleged by the prosecution.
30. We could not find out any iota of evidence against the Appellants to connect them with the murder in issue. What to speak of single doubt, the case in hand is replete with doubts, the benefit of which shall tilt the scale of justice in favour of the appellants.
31. 17.For what has been discussed above, Crl. Appeal No. 217 of 2014 filed by both the appellants namely Arshad and Muhammad Ishfaq is allowed,, the conviction and sentence awarded to them by the learned Trial Court are set aside and they are acquitted of the charge. They are directed to be released forthwith, if not required to be detained in connection with any other case.
32. 18.MURDER REFERENCE No. 54 of 2014 is answered in the NEGATIVE and death sentence is NOT CONFIRMED.