CH. MUSHTAQ AHMAD, J.---Appellants Javed Iqbal and Sabir along with another were tried by learned Additional Sessions Judge, Rajanpur, in case FIR No,341 dated 28.7.2009 registered under sections 302, 324, 34, P.P.C. at Police Station Fazilpur, District Rajanpur. Murder Reference No,89 of 2011 for confirmation of death sentence awarded to appellant Javed Iqbal is also before the Court.
We propose to dispose of both these matters through this single judgment.
2. On conclusion of trial appellant Javed Iqbal was convicted under section 302(b), P.P.C. and sentenced to death. He was also held liable to pay Rs,1,00,000/- as compensation to the legal heirs of deceased Saif Ullah in terms of section 544-A, Cr.P.C. He was further convicted under section 324, P.P.C. and sentenced to 8-Years' R.I. Likewise appellant Sabir was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life. He was also directed to pay Rs,1,00,000/- as compensation to the legal heirs of deceased in terms of section 544, Cr.P.C. with benefit of section 382-B, Cr.P.C. vide judgment dated 21.7.2011 passed by learned Additional Sessions Judge, Rajanpur.
3.FIR (Exh.PA/1) was lodged by Abdul Ghafoor (PW-1), mentioning therein that on 28.7.2009 he along with Saeed Ahmed (step brother), Saif Ullah (son), Muhammad Ramzan (paternal cousin) and Muhammad Hanif (given up PW) were sleeping in house at Mauza Sikhaniwala when at 3.00 a.m. (night) Saeed Ahmed received missed call 03366175510 on his mobile phone on which they woke up; after a short while Javed Iqbal loudly called Saeed Ahmed to come at Canal as he had some urgent work with him; complainant asked Saeed Ahmed that at odd hours of night he should not go alone rather they would accompany him; .Saeed Ahmed and Saif Ullah after a few minutes proceeded towards canal whereas complainant, Muhammad Ramzan and Muhammad Hanif followed them; as soon as they reached at Canal Qadira, Saif Ullah and Saeed Ahmed were at some distance, they saw in the light of torch Javed Iqbal and Sabir accused both armed with Pistols alongwith their companion Sabzal; when Saif Ullah and Saeed Ahmed reached near the accused persons, Javed Iqbal accused on seeing Saeed Ahmed raised lalkara to teach him a lesson for developing illicit relations with their sister Mst.Khadeja and then made fire shot with his pistol which hit Saeed Ahmed on his left foot, fire shot of Sabir hit Saif Ullah on his right elbow; Javed Iqbal again fired at Saif Ullah which hit on front side of his right flank, then accused Sabir repeated the fire shot with his pistol which hit Saeed Ahmed on his right hand then Javed Iqbal made third fire shot which hit Saeed Ahmed on upper part of left arm; Sabzal accused inflicted sota blows on the person of Saif Ullah which landed on his left shoulder and back; on seeing the PWs accused perons alongwith their weapons decamped from the place of occurrence towards western side; complainant attended his son Saif Ullah but he succumbed to the injuries. Saeed Ahmed, injured PW was shifted to Fazilpur Hospital for treatment.
Motive behind the occurrence was that accused Javed Iqbal and Sabir had suspicion that their sister Mst.Khadeja had illicit relations with Saeed Ahmed so in order to take revenge they killed Saif Ullah and caused firearm injuries to Saeed Ahmed.
4.In order to prove charge against accused 14 witnesses in all were produced, out of them PW-1 Abdul Ghafoor, complainant, PW-2 Muhammad Ramzan and injured PW-3 Saeed Ahmed provided ocular account. PW-6 Dr. Mehmood-ul-Hassan and PW-9 Dr.Jalil-ur-Rehman produced medical evidence. PW-7 Wazir Ahmed, S.I., PW-8 Ghulam Farid, Inspector/S.H.0 and PW-13 Ghulam Nabi, S.I. were the Investigating Officers of this case PW-14 Hazoor Bakhsh, Patwari prepared the scaled site plan Exh.PL. PW-11 Doda Khan, cousin of complainant also appeared as PW-11 in this case. The remaining witnesses are formal in nature need not mentioned.
5. After giving up Muhammad Hanif, Noor Muhammad, Ghulam Nabi, S.I., Zafar Iqbal and Maqsood Ahmd being unnecessary whereas Muhammad Iqbal,S.I. as won over and tendering in evidence report of Chemical Examiner and Serologist (Exh.PM and Exh.PN) closed the prosecution case on 8.7.2011. Thereafter statements of appellants under section 342, Cr.P.C. were recorded on 11.7.2011 wherein they denied the charge. In answer to a question why this case against him and why the PWs have deposed against him, both the appellants replied as under:-- "I am innocent. I have no concern whatsoever with the alleged occurrence. Actually on the night of occurrence, Mst.Khadeja after administering intoxicant to us went to meet Falak Sher and Touseef as per their programmer as Falak Sher accused was having illicit relation with Mst.Khadeja. The accused in the connected case titled The State v. Touseef, etc. committed the murder of Saif Ullah and injured Saeed Ahmed PW. We were brought into senses by Doda PW and others next morning and my father told us that our sister Mst.Khadeja was missing from 2.00 a.m. night. We went out in her search and came to know about the murder of Saif Ullah and abduction of Mst. Khadeja my sister. However, instant case was falsely got registered against us being real brothers of Mst.
Khadeja. Since we were involved in this case falsely so police did not register our case regarding abduction of Mst. Khadeja which later on was registered on 19.8.2009 vide FIR No,383/2009 and Mst.Khadeja is still living with Falak Sher accused. It has also came into investigation that the Murder of Saif Ullah was committed by Touseef etc. and we were declared innocent by the police after thorough investigation and challan against Touseef etc. is pending adjudication before this Court. Touseef, etc. committed the murder of Saif Ullah and injured Saeed PW due to rivalry regarding Mst.Khadeja PWs being closely related inter se and with the deceased and being inimical towards us for the above said reasons have falsely deposed against us."
However, they did not opt to record statements under section 340(2), Cr.P.C. in disproof of the allegations levelled against them.
7.Learned counsel for the appellants argued that the eye-witnesses could not prove their presence at the place of occurrence at the relevant time beyond reasonable doubt; that the witnesses are inter see related so their testimony is not worth reliance especially in the presence of statement of PW-11 Doda Khan; that there is material contradictions among the statements of eye- witnesses qua ocular account of the occurrence; that the witnesses made dishonest improvements while appearing before the trial court which create reasonable doubt in the veracity of prosecution version and that the learned trial court has not correctly appreciated the evidence produced.
8.Conversely, learned Deputy Prosecutor General assisted by learned counsel for the complainant has opposed the contentions and argued that ocular account of the prosecution is consistent upon time, place and mode of occurrence; that there is no conflict between the medical evidence and ocular account and that learned trial court has rightly appreciated the evidence brought on record by the prosecution.
9. Arguments heard. Record perused.
10. Ocular account in this case was furnished by PW-1 Abdul A Ghafoor, complainant who stated that on 28.7.2009 he along with Saeed Ahmed (step brother), Saif Ullah (his deceased son), Muhammad Ramzan (paternal cousin) and Muhammad Hanif (given up PW) were sleeping in their house when at about 3.00 a.m. (night) a miss call was received on mobile phone set of Saeed Ahmed and at the same moment Javed Iqbal accused called Saeed Ahmed with loud voice to come at canal bank as he had some urgent work with him. Since it was an odd hour of night complainant asked Saeed Ahmed to accompany them and then Saeed Ahmed and complainant's son Saif Ullah, deceased proceeded to the canal bank whereas complainant Abdul Ghafoor alongwith his paternal cousins, namely, Muhammad Ramzan and Muhammad Hanif followed them at few paces. As soon as Saeed Ahmed and Saif Ullah reached near the accused persons, Javed Iqbal by raising lalkara fired at Saeed Ahmed with his pistol hitting on his left foot; then co-accused Sabir made fire shot hitting Saif Ullah on his right elbow, second fire of Javed Iqbal hit on right flank of Saif Ullah. Sabir, accused also fired at Saif Ullah with his pistol which hit on his right hand. Again Javed Iqbal, accused fired at Saeed Ahmed hitting on upper part of his right arm. Co-accused Sabzal also inflicted sota blows on the person of Saif Ullah, deceased which landed on his left shoulder and on back side. To support this version PW-2 Muhammad Ramzan and PW-3 Saeed Ahmed (injured PW) came forward to strengthen the prosecution case. But if the statement of PW-11 Doda Khan is taken into consideration the presence of eye-witnesses at the place of occurrence at the relevant time is not established. PW-11 Doda Khan while appearing before the trial court stated that on 28.7.2009 he was going to offer Fajr Prayer when Shamsud-Din alias Shamla told him that family members of Mosa were found unconscious in the house. He went to the house of Javed and Sabir both sons of Mosa and Sabzal were lying unconscious. PW-11 served them with Lemon and Pickle and they came in senses after about 2/3 hours. Then he came back to his house. The statement of this witness negates presence of eye-witnesses. He was the prosecution's own witness who made a statement to the contrary.
Neither the prosecution declared this witness as hostile nor he was given up. PWE-8 Ghulam Fareed, Inspector/I.O. during cross examination also stated that according to his finding on the day of occurrence family members of Khadija Bibi (sister of appellants) were senseless due to intoxication. In this regard Doda and Maqsood had joined the investigation. He further stated that after investigation on 8.10.2009 accused Javed Iqbal and Sabir were found innocent. This fact of the case casts serious doubt on the veracity of eye-witnesses qua their presence at the relevant time.
According to the complainant, appellants were inimical towards Saeed Ahmed as they had suspicion that he had developed illicit relation with their sister Mst.Khadeja, so in such state of affair there was no occasion for the accused to come at odd hours of night at the house of complainant and then called Saeed Ahmed loudly to accompany them did not appeal to reason. During investigation it has come on record that mobile number mentioned in the FIR was of Flak Sher against whom it was alleged that Mst.Khadeja developed illicit relations and accused party had also got registered FIR No,383/2009 regarding abduction of their sister by Falak Sher, etc. So the story as narrated in the FIR and reiterated before the court appears to be far away from reality.
11. PW-3 Saeed Ahmed stated that a missed call was received by him. He further stated that he got recorded in his statement before the police that when Javed Iqbal, (appellant) called him he along with Abdul Ghafoor, Saif Ullah, Muhammad Ramzan and Muhammad Hanif woke up. According to him neither he nor Saif Ullah, deceased took any torch or weapon with them. The witness further explained that PW-2 Muhammad Ramzan was having Torch light and Soti whereas Abdul Ghafoor was armed with Soti. PW-2 Muhammad Ramzan in cross examination stated that he could not tell whether it was dark night or not. As per version of PW-2 he was not sleeping in the house of the complainant when PW-3 Saeed Ahmed received phone call. As per his version I.O. reached at the spot at about 7.15 a.m. FIR was registered at 8.15 a.m. The version of eye-witnesses that Javed and Sabir, (appellants) had suspicion that Saeed Ahmed had illicit affair with their sister Khadija is sufficient to infer that PW-3 Saeed Ahmed and Saif Ulah, deceased would not go at the place of occurrence on the asking of appellants at odd hours of night. From the statement of prosecution witnesses it is evident that they concealed real facts and disclosed half truth only. The incident did not take place in the manner as stated by them nor presence of complainant Abdul Ghafoor (PW-1) and PW-2 Muhammad Ramzan at the place of occurrence at the relevant time was established. Admittedly occurrence took place at night but it was reported to the police in the morning. As noted above PW-11 Doda Khan also negated version of the eye-witnesses. PW-8 Ghulam Fareed, Inspector/I.O. in cross examination stated that during his investigation he recorded in Daily Diary dated 4.10.2009 that Saeed Ahmed and Falak Sher had illicit relations with Khadija (sister of appellants) and due to that reason they had enmity with each other. It also came to his knowledge that family members of Khadija were found un-conscious due to intoxication which fact was brought to his knowledge by PW-11 Doda Khan and one Maqsood who joined investigation. He further explained that he had recorded his opinion on 8.10.2009 after conducting investigation that accused Javed Iqbal and Sabir were innocent.
12.As per statement of PW-8 who conducted investigation it came to light that PW-3 Saeed Ahmed and one Falak Sher were inimical to each other as each of them had illicit liason with Khadija, sister of the present appellants. In the given facts and circumstances, as discussed above, testimony of the eye-witnesses in this case was not trust worthy and confidence inspiring. In criminal dispensation of justice, particularly involving capital charge a cautious and more careful scrutiny of prosecution evidence is required. In a case like the one in hand where testimony of eye- witnesses is itself doubtful, medical evidence would not in any way advance the case of prosecution.
13. The above discussion leads us to the conclusion that there are a number of circumstances that create doubt as to the veracity of testimony of prosecution witnesses whereas a single instance of this nature creating reasonable doubt is sufficient to record acquittal, giving benefit thereof to the accused. Reliance may be placed upon "Ghulam Qadir v. The State" (2008 SCM R 1221). On re-appraisal of evidence, we are of considered view that prosecution has failed to prove its case beyond reasonable doubt against the appellants. So, the impugned judgment passed by learned trial court is not the outcome of proper appreciation of evidence brought on record.
14.For the reasons recorded above, this criminal appeal is allowed. The conviction and sentences of appellants are set aside. They are acquitted of the charges. Appellant Javed Iqbal shall be released from jail forthwith if not required in any other. Appellant Sabir is presently on bail, his bail bonds are discharged from liability.
15. As a sequel to the above, Murder Reference No,89 of 2011 is answered in the Negative. Death sentence of Javed Iqbal, convict is not confirmed.