' Ch. Mushtaq Ahmad, J.--Appellant Riaz Ali was tried by learned Additional Sessions Judge, Burewala in case FIR No, 173 dated 11.07.1997 under Sections 302, 34, PPC; registered at Police Station Saddar Burewala District Vehari.
2. On conclusion of trial, he was convicted and sentenced as under: ' Convicted u/S. 302(b) read with Section 34, PPC and sentenced to death on three counts with payment of Rs, 1,00,000/- on three accounts under Section 544-A, Cr.P.C. To be payable to the legal heirs of each deceased and in case of default in payment thereof, to further undergo simple imprisonment for six months on each count.
3. As per FIR, case of prosecution is that Rasheed Ahmad complainant used to drive a Rickshaw on rent. On 11.07.1997, at about 07.00 P.M., he returned home from Burewala city and parked his rickshaw at the corner of house. Manzoor Ali s/o Khushi Muhammad Ansari (co-accused since acquitted) came there alongwith herd of goats and gave abuses to complainant for closing the passage by parking his rickshaw on the road. Complainant responded in the same tone. Manzoor holding the complainant from collar, slapped him. On complainant's hue and cry, his brothers Riaz Ahmad, Rehmat Ali, father Mehar Din and cousin Muhammad Sharif reached there and they gave fist as well as kick blows to Manzoor Ahmad, who rushed to his house. Maqsood Ali armed with rifle .12-bore double barrel, Manzoor Ali armed with a sota, Riaz Ali (appellant) armed with a pistol and Khushi Muhammad armed with rile .7 MM came there. Maznoor Ali raised lalkara to teach lesson to them for insulting him. On that, Khushi. Muhammad shot a fire with his rifle .7 MM and that hit on the neck of Riaz Ahmad. Riaz Ali (appellant) fired with his pistol and shot hit on neck and below the right ear of Riaz Ahmad who fell down and died at the spot. Maqsood Ali shot a fire with his rifle .12- bore and that landed on the chest of Muliammad Sharif son of Noor Din. He made second fire and pellets hit the chest above left ribs and left shoulder of Muhammad Sharif who also died at the spot. Riaz Ali fired shot with his pistol which hit on back side of left shoulder of complainant's father Mehar Din. Khushi Muhammad fired a shot with his rifle .7MM and that hit above left ribs of Mehar Din. Maqsood Ali made fire with his rifle .12-bore which hit above left ribs on chest of Mehar Din who got injured. On hearing the report of firing, Muhammad Akram son of Muhammad Yaqub reached at the spot. Accused persons returned home alongwith their respective weapons. Complainant, Muhammad Akram and Amjad Javed Lumberdar attended Mehar Din injured and brought him to Civil Hospital, Burewala but he succumbed to injuries. Rehmat Ali was left to guard the dead bodies of Riaz Ahmad and Muhammad Sharif whereas Muhammad Akram son of Muhammad Yaqub was left with the dead body of Mehar Din whereas the complainant alongwith Amjad Javed proceeded to report the occurrence to the police. Motive for the occurrence was above narrated quarrel between Manzoor Ali co-accused and complainant, due to which accused committed intentional murder of the complainant's brother, father and cousin.
4. After completing investigation, challan was submitted before learned trial Court. Charge was framed against the appellant, to which he pleaded not guilty and claimed trial. Thereafter, prosecution evidence was recorded, statement of appellant was recorded under Section 342, Cr.P.C., in which he pleaded innocence and on conclusion of trial he was convicted and sentenced as mentioned above, hence, this appeal as well as murder reference.
5. We have given consideration to the arguments advanced by learned counsel for the parties and learned DPG and have perused the record with their assistance.
6. Perusal of record shows that prosecution case hinges upon evidence consisting of ocular account furnished by PW-5 Rasheed complainant, Rehmat All PW-6 and Muhammad Akram PW-7, medical evidence furnished by PW-2 Dr. Amjad Shakeel, recoveries and motive. Main role is that of ocular account coupled with motive, so we would like to discuss it by making careful appraisal to draw conclusion as to whether presence of eye-witnesses at the spot at the relevant time was established by the prosecution and whether their testimony was credible and believable. As per prosecution story, complainant PW-5 and his brother Rehmat Ali witnessed the appellant and his co-accused making repeated fire shots at their father Mehar Din, brother Riaz Ahmad and cousin Muhammad Sharif who all succumbed to the injuries. Motive for the occurrence, according to prosecution case, was a quarrel between complainant and Manzoor (co-accused since acquitted), who feeling insulted, came alongwith his family members (co-accused) for taking revenge. Prime target of the assailants for that motive would have been complainant, who according to prosecution story, was present but quite surprisingly he was not attacked by any of the assailants and remained spectating the whole occurrence. PW-6 Rehmat Ali, real brother of the complainant, was also not attacked upon which is too astonishing. Had the complainant, against whom was the motive, been present at the spot at relevant time, there would be no reason for assailants to let him go untouched while murdering his three relatives. According to prosecution story occurrence took place in the street; however, Muhammad Din 150/C who escorted the dead bodies for autopsy to the mortuary, in cross-examination stated that two dead bodies were lying in Courtyard of house of Khushi Muhammad co-accused and one dead body was lying in bazar, which deposition falsifies the prosgcution story. Time of occurrence as per prosecution was 07:00 p.m., whereas PW-1 stated that they received information of the occurrence at 05:00 p.m. And reached the spot at 05:30 p.m. Detail of the fires made by each assailant was given in the FIR, but said detail of injuries was not in consonance with medical evidence qua locale of injuries and distance of making fires, rather there is conflict between ocular account and medical evidence.
Above noted facts and circumstances lead us to infer that complainant PW-5 and Rehmat Ali PW- 6 were not present at the place of occurrence at relevant time, rendering their testimony unworthy of reliance. PW-7 Muhammad Akram .As per FIR reached the place of occurrence on hearing report of firing, as such he could not be considered as an eyewitness. All the private witnesses produced by prosecution in this case are closely related to complainant. It is true that evidence of a close relative cannot be discarded merely on the ground of relationship with the deceased or complainant provided it rings true and finds support from an independent source but in the instant case ocular account is in contradiction with medical evidence. In this backdrop, evidence produced by prosecution could not be made basis for recording conviction.
7. On re-appraisal of evidence, conclusion we have come to is that prosecution stood failed to prove charge against appellant beyond reasonable doubt. Consequently, this Criminal Appeal 927 of 2011 is allowed and conviction as well as sentence awarded to appellant Riaz Ali through impugned judgment is set aside. Appellant be released forthwith if not required in any other case.
Murder Reference No, 146 of 2010 is answered in negative.
(R.A.)