' CH. MUSHTAQ AHMAD, J.--- Appellants Talib Hussain and Khalid Mahmood alias Kala have filed Criminal Appeal No,425 of 2012/BWP challenging their conviction and sentence. They were tried by learned Additional Sessions Judge, Bahawalnagar in a private complaint titled "Khalid Hussain v Talib Hussain and 2 others" arising out of case FIR No,106/2010 dated 28.04.2010 under sections 302, 34, 109, P.P.C. Registered with Police Station Khhichi-wala, District Bahawalnagar and on conclusion of trial they were convicted vide judgment dated 15.12.2012 (impugned herein) and sentenced as under:-
(i) Each of appellants convicted under section 302, P.P.C. For committing qatl-i-amd of Muhammad Asif, Muhammad Amir Naseer and Mst. Rashida Bibi and sentenced to death on three counts. They were directed to pay an amount of Rs,6,00,000/- each as compensation under section 544-A, Cr.P.C. To the legal heirs of deceased (Rs,2,00,000/- each deceased) and in default in payment whereof, delinquent convict to further undergo S.I. For eighteen months on each count.
' Co-accused Muhammad Arif was acquitted. Complainant challenged his acquittal through PSLA No,03 of 2013. All the above matters will be disposed of by this consolidated judgment.
2. Khalid Hussain (PW-2) got registered above mentioned FIR, which was investigated by CW-3 Muhammad Aslam SI. However, dissatisfied with investigation conducted by police, complainant preferred to file private complaint titled "Khalid Hussain v. Talib Hussain and 2 .Others" . As per private complaint, complainant was resident of Chak No,165/7-R. On 27.04.2010 at about 09:00 P.M., his son Muhammad Asif and relative Amir Naseer told the complainant that they were going to see their friend at Chak No,168/7-R and will return soon. Complainant got worried when they did not return. He along with his brother Muhammad Ramzan (given up PW) and Bashir Ahmad (PW-3) went in search. Of Muhammad Asif, etc, on a motorcycle. At about 02:30 A.M., they reached in Izafi Basti Chak No,168/7-R and saw Muhammad Asif, Amir Naseer and one unknown girl on a motorcycle coming from Chak No,168/7-R. All of sudden, two persons emerged from watercourse and made. Indiscriminate firing with their rifles on Muhammad Asif, etc. Said two persons were identified in the light of motorcycle as Talib Hussain and Khalid Mahmood (appellants).
Muhammad Asif, Amir Naseer and unknown girl fell from motorcycle and succumbed to the injuries at the spot, whereas accused fled away.
' It was alleged that accused (appellant0' were abetted by Muhammad Arif (since acquitted), which fact was told to complainant by Munawar Hussain and Rehmat Ali PWs.
3. Post mortem examination on the dead body of Muhammad Amir Naseer was conducted on 28.04.2010 at 10:30 A.M. By Dr. Muhammad Anwar (PW-1), who observed following injuries:--
1. Two lacerated and penetrating wounds on the right side of face at the lateral corner of right eye, each 1.1 CM x .5 CM, margins inverted, no burning or blackening present.
2. A lacerated wound of about 3 CM and 1 CM wide on the right lateral corner of forehead, bone below is broken into pieces.
3. A lacerated wound of about 4 CM x 1.5 CM about 6 CM above the right ear anteroposterior in direction.
4. A lacerated wound of about 3 CM x 1 CM on the front of forehead above the medial part of the right eye, bone below is broken.
5. A lacerated wound of about 3 CM x 1 CM just above the right eye, transverse in direction.
6. A lacerated wound of 2 CM x .5 CM behind the right ear up down in direction.
7. A lacerated wound of about .8 CM x .5 CM on the lateral aspect of right shoulder. Metallic particle was removed from this hole.
8. A lacerated wound of 5 CM long and 1 CM wide anteroposterior in direction on the lateral aspect of skull about 3 CM above the right ear.
9. A lacerated and penetrating wound of about 2.5 CM x 2 CM behind the left shoulder, margins averted. No burning or blackening present.
As per opinion of PW-1, cause of death was injuries Nos.1 to 6 and 8 which were caused by firearm weapon. Injury No,7 was also caused by firearm which was entry wound corresponding to injury No,9 (exit). Probable time between injuries and death was about one to three minutes and between death and post mortem was 8 to 10 hours.
' Autopsy on the dead body of Muhammad Asif was also conducted by PW-1 , who observed following injuries:--
1. A lacerated wound of about 6 CM long and 1 CM wide on the posterior of skull, oblique in direction 8 CM from left ear.
2. A lacerated wound of about 3 CM long and 1.5 CM wide on the left side of forehead about 3 CM from left eye.
3. A penetrating and lacerated wound of about 1.1 CM long and .5 CM wide about 2 CM anterior to left ear on the left cheek. Margins inverted. No burning or blackening present.
4. A lacerated wound of about 1.5 CM x 3 MML in size about 7 CM above the left ear anteroposterior in direction.
5. A lacerated wound of about 4 CM long into .5 CM wide posterior to the left ear.
6. A lacerated and penetrating wound of about 3.5 CM long and 2 CM wide on the back of right shoulder 9 CM from mid line and 17 CM from the right shoulder. Margins inverted. A metallic particle bullet was removed from front of right shoulder about 9 CM from right nipple.
' PW-1 was of the opinion that firearm injuries Nos.1 to 4 were cause of death. Probable time between injuries and death was one to three minutes, whereas between death and post mortem examination was within 10 to 12 hours.
' Post mortem examination on the dead body of Mst. Rashida Bibi was conducted by lady Dr. Asima Zafar PW-6, who noted following injuries:-
1. A lacerated penetrating wound on right side of head, wound was 2 CM x 1 CM, it is 4.5 CM above and lateral to right eye.
2. A lacerated penetrating wound 1.5 x 1 CM on right side of head, above 5 CM and later to right eye.
3. A stellate shaped wound about 3 x 3 CM on forehead above left eye.
4 A stellate shaped wound about 6 x 3.5 CM on forehead above left eye.
5. A stellate shaped wound 3.5 x 1 CM in the middle of forehead.
6.. A lacerated penetrating wound 9 x 1.2 CM anterior to chin. Right margin of wound was 1.5 CM left margin is 1.5 CM and centre is 1 CM.
7. A lacerated penetrating. Wound of 3.5 CM x 1 CM on left cheek. ' lacerated penetrating wound about 1 CM. x .5 CM on left cheek below left eye.
9. A lacerated penetrating wound about 3.5 x 2.5 CM on chest just left to the sternum. Le. A penetrating wound 2.1 CM on posterior aspect of left shoulder.
4. Appellants along with co-accused Muhammad Arif were charge sheeted by learned trial court, who pleaded not guilty and claimed trial. Six witnesses were examined by complainant, whereas statements of five witnesses were recorded as CW-1 to CW-5. Thereafter accused were examined under section 342, Cr.P.C. Appellant Talib Hussain took the stance as under:-- "In fact both the deceased Amir. Naseer and Muhammad Asif were studying in Commerce College at Haroonabad and were staying there and they had not come to their house during the night of occurrence nor they went to see their friend to Chak No,168/7-R.
' During the night of occurrence they took a motorcycle P-11 on rent from Haroonabad which was taken by the 1.0. From the place of occurrence from near the dead ' bodies and took into possession vide recovery memo Ex.P-N and straight came to our Chak No,168/7-R without knowledge of the complainant or the PWs. Incidentally during the night of occurrence I was irrigating our land situated near the place of occurrence and I had brought the licensed rifle 8 MM of my father for safety. When in between 01.30 AM or 02.00 AM on 28.040W10 I noticed one motorcycle coming from our village side and when it came at some distance from me I found that both the deceased persons of this case were carrying my sister Mst. Rashida Bibi deceased and she was shouting leave me leave me. In self defence in order to save the life and chastity of my sister Mst. Rashida Bibi, 1 made firing, as a result of which some fires hit on the fuel tank of motorcycle and some fires hit the deceased persons. Thereafter, they fell down on the ground and I being frustrated, also inflicted butt blows with my rifle on their persons and caused several injuries with the butt of rifle, as a result of which butt of my rifle was broken into three pieces which had fallen at the place of occurrence and secured by the 1.0 from the place of occurrence vide recovery memo Ex.P-0.
' Hearing noise of firing, immediately neighbours Abid lqbal as well as the Chowkidar of village who was on round, attracted to the place of occurrence and I sent the above said chowkidar to inform in our village to Muhammad Anwar Lumberdar and my father Muhammad Arif about this occurrence. Sometimes thereafter, Lumberdar Muhammad Anwar son of Subey Khan, Muhammad Nawaz son of Muhammad Ashraf, Muhammad Asghar, Tariq Hussain, etc, residents of Chak No,168/7-R reached at the place of occurrence.
' Muhammad Anwar Lumberdar on telephone informed the investigating officer about this occurrence and the investigating officer reached there within an hour or so. The investigating officer after reaching the place of occurrence informed the relatives of both the deceased male persons including the complainant who reached at the place of occurrence at about 08.00 AM. In the meantime the I.O. Had already secured all the articles mentioned above lying at the place of occurrence or secured from the personal search of the three dead bodies and had been taken into possession by him. Soon after arrival of the complainant and the relatives of the male deceased persons, investigating officer left the place of occurrence within half an hour sometimes before 09.00 AM.
' I narrated the 1.0 at the place of occurrence of the above said facts he did not enter my arrest in police papers and kept me sitting at police station till 12.05.2010. I also at that time, produced the rifle with broken butt to the I.O. At the place of occurrence but the 1.0 did not prepare its recovery memo also and kept it with him till 23.05.2010 when he prepared a fake recovery memo of the above said rifle while sitting in the police station in connivance with the complainant party in order to strengthen the prosecution case against me.
' Khalid Hussain, my brother, was neither present at the place of occurrence nor he fired or took any part whatsoever regarding this occurrence with me. He has been involved in this case by the complainant party by widening the net falsely.
' My father. Muhammad Arff had nothing to do with this case nor he ever abetted this offence with me and my brother Khalid Mehmood alias Kala co-accused and the complainant party also did not cite any witness in written application Ex.P-G and formal FIR Ex.P-G/1 and later on by widening the net they in connivance with the 1.0 of this case prepared ante-dated statements of Munawar Hussain and Muhammad Latif by concocting a false story of abetment in this case".
' Co-accused relied on the statement of Talib Hussain (appellant) and denied the allegation against them. Defence examined Muhammad Anwar as DW-1. However, accused did not opt to appear as provided under section 340(2) Cr.P.C. On conclusion of trial, appellants were convicted and sentenced as mentioned in opening paragraph of this judgment, hence this criminal appeal as well as murder reference.
5. Contention of learned counsel for appellants is that eye-witnesses were not present at the scene nor the incident took place as stated by them; that there was delay in lodging FIR, for which no plausible explanation is given; that ocular account is not in consonance with the site plan as well as medical evidence. Further argued that prosecution had failed to establish guilt of the accused beyond reasonable doubt; that ocular account being untrustworthy and unreliable, conviction and sentence were not sustainable; that only on the statement of accused under section 342, Cr.P.C., conviction cannot be recorded when prosecution fails to prove its case.
6. Learned counsel for complainant assisted by learned DPG vehemently opposed above contentions. It was argued that PW-2 and PW-3 remained consistent on material points and their testimony/ presence could not be shattered by defence during cross-examination. Further argued that oral account finds corroboration from medical evidence as well as recoveries and that even appellant Talib Hussain himself admitted his guilt, as such findings recorded by learned trial court being in line with evidence available and facts established on record, do not call for interference in appeal, which merits dismissal.
7. We have heard submissions of learned counsel for the parties as well as learned DPG and perused the record with due care.
8. Prosecution case hinges on ocular account, medical evidence and recoveries. Main role is that of ocular account, therefore, we would analyse the same in order to evaluate testimony of eyewitnesses. PW-2 Khalid Hussain is complainant of the case who along with PW-3 Bashir Ahmad furnished ocular account. According to PW-2 and PW-3, they along with Muhammad Ramzan (given up PW), were going to Chak No,168/7-R in order to search Muhammad Asif and Amir Naseer who had gone there to see their friend at 09:00 P.M. But did not return till 02:00 A.M. PWs further stated that they were at some distance from said village when they saw Muhammad Asif and Arnir Naseer accompanied by an unknown girl coming on a motorcycle from Chak but suddenly two persons emerged from watercourse and made indiscriminate firing on them resulting in their death and then the assailants (appellants) fled away. Name of the person to whom Muhammad Asif and Amir Naseer (deceased) went to see, was not mentioned in the FIR or complaint. However, PW-2 stated that deceased went to see their friend Mohsin who was resident of Chak No,168/7-R.
PW-2 during cross-examination stated that he did not inquire said Mohsin. He further deposed that neither said Mohsin was produced before I.O. During investigation nor he was summoned by I.O. For verification. The deceased girl accompanying both the male deceased was real sister of appellants. According tb defence she was being taken away by appellants forcibly, which fact prompted appellant Talib Hussain to fire on them. However, prosecution witnesses did not utter even a single word in order to justify her company with the male deceased. Both the eye-witnesses during cross-examination admitted that Muhammad Asif deceased owned a motorcycle Honda 125 CC as well as a car. At the time of occurrence deceased were riding on a motorcycle which belonged to none of them. PW-2 stated that said motorcycle belonged to a friend of Asif (deceased), however, he remained failed to tell the name of said friend. Admittedly, both the deceased were studying in a college at Haroonabad city at a distance of about 35 kilometres from their village. It was version of defence that they used to live in the college hostel. PWs however stated that they used to return home daily, but quite oftenly they used to stay at college hostel. It transpired during investigation that the motorcycle was obtained by them on rent from Haroonabad. Had the deceased left for village/place of occurrence from their home, then why they took motorcycle on rent from Haroonabad instead of using his own motorcycle or car, is a question mark. It was stated by PW-1 that deceased had mobile phones with them at the time of occurrence. He deposed that they tried to contact the deceased on their mobile phones from 09:00 P.M. Till 02:00 A.M. But due to network problem they could not be contacted. This statement on the face of it does not sound logical. PW-2 during cross-examination stated that at the time of occurrence they (PWs) were facing towards north, from which side deceased were coming on motorcycle and the accused persons were on their left side, meaning thereby assailants made firing on deceased from their right side. Motorcycle of the deceased was taken into possession by the I.O. During his first visit to the place of occurrence. It was noted that fire shots had hit fuel tank of motorcycle on left side, meaning thereby fires were made from left side, which fact negates deposition of PWs qua direction/position of parties at the time of occurrence. Occurrence took place at 02:30 A.M. And the matter was reported to police at 07:30 A.M. Distance between place of occurrence and police station was 15 kilometres. Reason for delay according to PWs was that they remained awaiting light at the place of occurrence till 05:00 A.M. On one hand they went for searching the deceased at odd hours i,e, at 02:00 A.M. But on the other hand they did not inform the police about occurrence immediately and remained waiting for light, is not believable by any stretch of imagination. Another fact making presence of PWs doubtful is that according to FIR as well as complaint there was no vehicle with the accused at the time of occurrence, however, during investigation, recovery of a motorcycle on pointation of appellant Khalid Mahmood alias Kala, was shown, on which appellants allegedly proceeded to the place of occurrence. It was version of prosecution that Muhammad Latif and Munawar Hussain told the complainant about abetment, who both were introduced in the complaint. There was no mention in the FIR as to the names of persons who witnessed alleged abetment. Prosecution at no stage alleged any motive prompting the appellants to commit the crime. Above discussion makes presence of PW-2 and PW-3 at the place of occurrence at relevant time highly doubtful affair, as such their testimony could not be relied upon.
9. As regards recovery of rifle from Talib Hussain appellant, he admitted said rifle as the weapon with which he made firing on deceased. He however, objected mode of its recovery. Defence objected medical evidence as well, however, nothing helpful to defence could be brought on record. Pertinent to note here in the above backdrop is that when ocular testimony is dis-believed, then recovery as well as medical evidence are of no help to prosecution, which even otherwise are only supportive pieces of evidence.
10. Prosecution was bound to prove charge against appellants by standing on its own legs, in which affair it remained failed. What remains in field, is statements of appellants recorded under section 342 Cr.P.C. Coupled with statement of DW-1. Three accused i,e, Talib Hussain, Khalid Mahmood (appellants) and their father Muhammad Arif (since acquitted) were tried. Appellant Talib Hussain explained in his statement how was made firing on the deceased resulting in their death, whereas remaining two accused pleaded innocence. Stance taken by Talib Hussain appellant has been reproduced in paragraph No,4 of this judgment, wherein he excluded presence of co-accused Khalid Mahmood. Question arises what is evidentiary value of such statement and after prosecution evidence having been discarded, whether conviction could be recorded on statement of accused under section 342, Cr.P.C. Or not. In this regard, law is well settled that if the prosecution evidence is disbelieved by the court in its entirety, then the statement of accused is to be accepted or rejected as a whole. It is legally not possible to accept the inculpatory part of statement of accused and reject the exculpatory part of same statement. In case titled Waqar Ahmad v Shaukat Ali and others reported in 2006 SCM R 1139 it was laid down that in criminal cases prosecution always has to establish its own case independently instead of depending upon the weaknesses of defence, same being its primary duty. It was further observed that statement of accused under section 342 Cr.P.C. Can be accepted in toto, if there is no other prosecution evidence and the case is to be decided only on the statement of accused. Status of statement made by accused under section 342 Cr.P.C. Again came under consideration before Apex Court in case titled Muhammad Asghar v. The State reported in PLD 2008 SC 513, wherein it was held that statement of accused recorded under section 342, Cr.P.C. Is to be read in its entirety, is to be accepted or rejected as a whole and reliance should not be placed on that part of the statement which goes against accused. Legality of conviction awarded on the basis of admission made by accused in his statement recorded under section 342, Cr.P.C. Once again came under analysis before Apex Court in case titled Azhar lqbal v. The State reported in 2013 SCM R 383, wherein it was observed that prosecution had failed to prove its case against accused beyond reasonable doubt, therefore, he should have been acquitted, even if he had taken a plea and admitted to killing the deceased. It was held that statement of accused recorded under section 342, Cr.P.C. Was to be accepted or rejected in its entirety.
11. In the light of case law referred above, statement of appellant Talib Hussain recorded under section 342, Cr.P.C. Has to be accepted or rejected intoto. If the same is accepted, then it was appellant Talib Hussain who made firing in order to save his sister. His statement is exculpatory in nature, which could not be used for recording conviction against appellant Talib Hussain. If said statement is rejected, then prosecution as already discussed above, failed to prove its case. In both situations, benefit will go to the accused. Therefore, on re-appraisal of evidence, we are persuaded to set aside impugned conviction recorded against appellants and they are acquitted of the charge in this case.
12. As a result of above discussion, Criminal Appeal No,425 of 2012/BWP is allowed. Conviction and sentence awarded to appellants Talib Hussain and Khalid Mahmood is set aside. They be released forthwith if not required in any other case. Murder Reference No,04 of 2013/BWP is answered in negative.
13. For the reasons recorded above,' PSLA No,03 of 2013/BWP is dismissed.