' CH. MUSHTAQ AHMAD, J.---This judgment will dispose of above captioned criminal appeal filed by Muhammad Ali and Muhammad Faisal appellants who were convicted-by learned Additional Sessions Judge, Lahore, in case FIR No,1056 dated 20.08.2008 registered under Sections 302/392/109, P.P.C., at Police. Station Shandara, vide impugned judgment dated 08.12.2012 and sentenced as under:- ' Death as Ta'zir to both appellants under Section 302(b), P.P.C. For causing death of Hameeda Bibi and to pay Rs,2,00,000/- each as compensation to the legal heirs of deceased as required under section 544-A, Cr.P.C. And in default of payment, further undergo S.I for six months each.
' Ten years rigorous imprisonment to both appellants under Section 392, P.P.C., and to pay Rs,20,000/- each as fine and in default of payment, further undergo S.I for six months each.
Aggrieved by the aforesaid judgment, appellants preferred appeal, complainant Criminal Revision No,1244/2012 for enhancement of compensation amount whereas trial court sent Murder Reference No,498/2012, under section 374, Cr.P.C. For confirmation of death sentence awarded to Muhammad Ali and Muhammad Faisal appellants. Complainant also filed Criminal Miscellaneous No,3910- M/2013 for condonation of delay in filing appeal against acquittal of co-accused. We propose to decide all the matters through this consolidated judgment.
2. Ijaz Hameed complainant got registered this case on 20.08.2008 through complaint Ex. PG/1 stating therein that on 20.08.2008 at about 05.00 p.m, he, his mother Hameeda Begum, his wife Mst.
Adila, his sister in law Mst. Farhat and younger children were present in the house when four unknown persons on seeing the door open, stepped into the house whose appearances were (1) thin body wearing pant shirt height 5' 6" colour Gandami armed with pistol (2) black colour wearing Shalwar Qameez body strong height average armed with pistol (3) thin and strong body wearing pant shirt colour Gandmi, height average, armed with pistol (4) body fat and strong wearing Shalwar Qameez, height average, carrying bag in hand aged about 24 years. They closed the main gate of the house from inside and aimed their weapons at complainant party and asked inmates not to raise voice. Accused tied him with ropes and also tied his mother on the cot. When his mother tried to speak, accused mentioned at serial No,1 wearing pant shirt inflicted butt blows and tied a rope around her neck. They also tied his wife and sister in law and started searching the house. They committed robbery and then fled away from the southern door of the house. After that children raised noise upon which neighbours Sheikh Maqsood Ahmad and Yasir etc. Came who cut the ropes and untied them. His neighbours readily shifted his wife, sister in law and mother to Bajwa Hospital where doctor told that his mother had already died and discharged his wife and sister in law after providing first aid to them. On checking of house, they found Rs,15,000/ and golden ornaments weighing 25 tolas valuing Rs,5,00,000/- missing. Lateron complainant through his supplementary statement dated 02.09.2008 nominated present appellants and his wife and sister in law as culprits of the occurrence and also disclosed the motive that his wife and sister in law were having strained relations with his mother and present appellants on abetment of his wife and sister in law, committed the occurrence.
3. PW-14 Shams ul Hassan SI on receiving information of the occurrence, reached Bajwa Hospital, prepared inquest report Ex.PR, sent the deadbody to mortuary for postmortem examination, prepared injury statement Ex.PT, visited the place of occurrence, prepared recovery memos, recorded statements of witnesses under Section 161, Cr.P.C. Subsequent investigation was conducted by Mukhtar Ahmad Inspector CIA (PW-19) who recorded supplementary statement of complainant and statements of PWs under Section 161, Cr.P.C., arrested appellants on 18.09.2008 and got recovered pistol P-4 on pointation of Muhammad Ali and .30 bore pistol P-8 and partial looted gold ornaments along with mobile phone and submitted report under Section 173, Cr.P.C.
4. Dr. Add Naheed (PW-9) conducted postmortem examination on the deadbody of Mst.
Hameedan Bibi and noted three injuries on her deadbody. According to her, all the injuries were ante-mortem in nature, caused by blunt means. Cause of death was interference with respiration at the level of neck due to ligature strangulation leading to asphyxia. Time between injuries and death was within a few minutes and between death and postmortem was 16 to 24 hours.
5. Ocular account was furnished by PW-12 Ijaz Hameed complainant and PW-10 Muhammad Mushtaq. At the trial, prosecution produced 19-PWs whereas remaining were given up. Statements of appellants were recorded under -Section 342, Cr.P.C. Wherein they denied the charges and professed their innocence.
6. At the conclusion of trial, appellants Muhammad Ali and Muhammad Faisal were convicted and sentenced as mentioned above whereas their co-accused were acquitted. Hence, instant reference as well as appeal.
7. Learned counsel for appellants contended that present appellants were falsely implicated with mala fide intention and ulterior motive by the complainant; that incident was reported by complainant Ijaz Hameed, son of Mst. Hameeda Begum deceased who got the case registered against unknown culprits giving their features in the body of FIR but lateron changed his version; that after about two weeks he in his supplementary statement changed his version implicating present appellants along with their co-accused (since acquitted); that the ocular account in this case was not worth reliance rather it was a concocted story diametrically opposed to the version contained in FIR, hence, was liable to be rejected straightaway; that learned trial court has not correctly appreciated evidence in this case and conviction recorded against appellants is not sustainable.
8. Conversely, learned Deputy District Public Prosecutor assisted by learned counsel for the complainant has supported the impugned judgment in respect of conviction recorded against the appellants and further contended that the ocular account furnished by the complainant Ijaz Hameed as well as Muhammad Mushtaq (PW-10) was confidence inspiring and supported by recoveries of stolen ornaments and other circumstances which came to light during investigation, hence, the appellants were rightly convicted by the trial court.
9. Arguments heard. Record perused.
10. Law was put in motion by Ijaz Hameed (PW-12) son of deceased Mst. Hameeda Begum. As per his version, at 05.00 p.m on 20.08.2008, he along with his mother Mst. Hameeda Begum (deceased), wife Adila Ijaz and sister in law (Bhabhi) Mst. Farhat Shahzad were present along with children in the house No,7 situated in street No,2 Lajpat Road, Shandra, Lahore when four unknown persons entered the house whose features duly mentioned in FIR, took the inmates on gunpoint. He was tied with ropes. His mother was also tied with ropes on a cot. His wife and sister in law were also dealt with in the same manner. The culprits kept on searching valuables and after looting went away. Thereafter, Sh. Maqsood and Yasir residents of the locality were attracted on alarm raised by children. They untied them and found Mst. Hameeda Begum dead. The neighbours shifted his mother, wife and sister in law to Bajwa Hospital but the Doctor confirmed death of his mother. On checking the household articles golden ornaments weighing 25 tolas and cash amount of Rs,15,000/- were found missing. Investigation started on the above information after registration of the case. Record reveals that during investigation, complainant Ijaz Hameed (PW-12) made supplementary statement Ex.PQ on 02.09.2008 before PW-19 Mukhtar Ahmad Inspector, whereby he nominated present appellants along with his wife Mst. Adila Ijaz and wife of his brother namely Mst.
Farhat Shahzad stating that in fact they had committed robbery and murdered his mother on the day of occurrence who had extended threats to kill him and his brother and that he got the case registered against unknown accused under coercion and fear and that his wife along with Mst.
Farhat Shahzad, wife of his brother and present appellants had committed the above said occurrence. In cross-examination, PW-12 Ijaz Hameed complainant admitted that Ex. PG/i (complaint) bears his signature and telephone number. He also admitted that during investigation, he had endorsed his version contained in complaint (Ex.PG/1). He also admitted that he gave description of unknown accused, however, he volunteered that he was threatened by Muhammad Ali and Muhammad Faisal (appellants) to get registered case against unknown persons, otherwise, they will kill his brothers. He further stated that. Sh. Maqsood and Yasir had not untied them by removing ropes, rather it was done by Muhammad Mushtaq (PW-10). In cross-examination, on this point he changed his version and again stated that he did not know whether Maqsood and Yasir had cut the ropes and untied them. It is pertinent to A mention her that complainant Ijaz Hameed (PW-12) was cross-examined on different dates by the defence counsel. Complainant also produced PW-10 Muhammad Mushtaq in support of his version. As per his statement, he went to the house of Mst. Hameeda Begum (deceased) who was mother in law of his daughter. When he entered into the house, he saw that Muhammad Ali and Muhammad Faisal (appellants) were present in TV Lounge of the house and were strangulating Mst. Hameeda Begum by pulling rope from both ends and she was trying to make noise. He asked the present appellants as to why they were strangulating her, but they escaped seeing him and Hameeda Begum fell down on the floor and died. In cross-examination he stated that his statement was recorded after 12/13 days of the occurrence. He further stated that after the occurrence, he went back to his house and that he raised alarm after coming out of the house when a few residents came there, as he was not feeling well, he stayed in his house. After 12/13 days, he was inquired about the incident and then he disclosed that it was witnessed by him. The statements of both the witnesses on the face of it, are implausible and unbelievable. PW4 Kaleem Haider was produced to prove conspiracy between the present appellants and their co-accused since acquitted. According to his version, on 19.08.2008 at 06.30 p.m., he was sitting along with Ghulam Hussain in Mcdonald Main , Boulevard Gulberg Lahore where Mst. Farhat Shahzad, Adila Ijaz, Muhammad All and Faisal came and started talking with each other. Adila Ijaz (wife of complainant) told her brother Muhammad Ali that she got fed up with her mother in law Mst. Hameeda Begum and that she should be killed within no time on which Muhammad Ali (appellant) replied that they would not kill her with pistol bullet but with a rope and would also take away gold ornaments and amount. The above statement of PW was implausible as well as ridiculous tai the face of it as such liable to be straightaway rejected. Where ocular account produced by prosecution is found intrinsically weak, contradictory, implausible and un- trust worthy, it cannot be considered against accused for recording conviction. Supplementary statement of complainant giving different version was recorded on 02.09.2008 whereas the FIR was got registered on 20.08.2008. Above supplementary statement would carry no weight; rather it has to be taken with a pinch of salt as an important factor casting serious doubt on the veracity of version 'contained therein. Crime was reported by complainant himself against unknown culprits and explanation furnished by him for not naming prescnt appellant in FIR was far from being plausible. Silence of the complainant for about two weeks speaks volumes against his . Credibility.
Such supplementary statement has no evidentiary value in the eye of law. Reference may be made to the cases titled "Khalid Javed v. The State" reported in 2003 SCM R 1419 "Akhtar Ali and others v. The State" (2008 SCM R 6) as well as case titled "Falaksher v. The State", reported in 1995 SCM R 1350. In the light of facts established on record and seeking guidance from the judgments referred above, we are of the considered opinion that ocular account in this case was not reliable nor sufficient to sustain conviction. Prosecution in this case had failed to prove charge against appellants.
11. Consequently, Criminal Appeal No,2071/2012 is allowed, conviction recorded by learned trial court against present appellants, is set-aside, appellants Muhammad Ali and Muhammad Faisal are acquitted of the charge from this case, they be released forthwith if not required in any case.
Criminal Revision No,1244/2012 filed by complainant is for enhancement of compensation amount.
We see no valid ground to reverse the findings recorded by the trial court in that regard. B Consequently, criminal revision No,1244/2012 filed by complainant is dismissed. Crl. Misc. No,3910- M/2013 filed by complainant for condonation of delay in filing appeal is also dismissed. Murder Reference No,498/2012 is answered in negative and death sentence awarded to appellants Muhammad Ali and Muhammad Faisal is not confirmed.