1. Miss Aalia Neelum, J.--(1) Tariq Hussain son of Resham Khan, (2) Muhammad Iqbal son of Ahmad Khan, (3) Tasaddaq Hussain son of Aalam Sher, (4) Adeel Iqbal son of Muhammad Iqbal, all by Caste are A,.resident of Tehsil Kallar Kahar, District, Chakwal and (5) Manzoor Hussain son Mian Khan, Caste Awan, resident of Jhamra, Tehsil Kallar Kahar, District, Chakwal (appellants in Crl.
2. Appeal No. 230-2011) along with co-accused Sadam Hussain (since acquitted), Muhammad Shafique (since acquitted), Maqbool Hussain (since acquitted), Matloob Hussain (since acquitted), Muhammad Gulistan (since acquitted), Muhammad Islam (since acquitted) and Tajammal Hussain (since acquitted) were involved in case F.I.R. No. 138-2009, dated 28.05.2009, offence under Sections 302, 324, 148, 149, P.P.C., registered at Police Station, Kallar Kahar, District, Chakwal and tried by Mr.Sulaiman Baig, learned Additional Session Judge, Chakwal. The learned trial Court seized with the matter in terms of judgment dated 18.05.2011 while convicting the accused, Tasaddaq Hussain under Section 324, P.P.C. and sentenced to 10 years R.I. with the direction to pay fine of Rs. 20,000/- and in case of default, further undergo Simple 'Imprisonment for two months. The accused, Tasaddaq Hussain was further convicted under Section 337- F(iv), P.P.C., and sentenced to five years as Tazir with the direction to pay Daman to the tune of Rs. 10,000/- to the injured. The accused, Adeel Iqbal was convicted under Section 324, P.P.C., and sentenced to 10 years R.I., with fine of Rs. 20,000/- and in default whereof, further undergo two months S.I. The accused-Adeel Iqbal was further convicted under Section 337-F(iv), P.P.C. and sentenced to undergo five years R.I. with the direction to pay Daman to the tune of Rs. 10,000/-to the injured. The accused, Manzoor Hussain and Muhammad Iqbal were convicted under Section 302(b), P.P.C., and sentenced to imprisonment for life as tazir with the direction to pay Rs. 1,00,000/- each as compensation to the legal heirs of deceased, Altaf Hussain and in case of default, each will further undergo six months S.I. The accused, Tariq Hussain was convicted under Section 302(b), P.P.C. and sentenced to death.
3. The accused, Tariq Hussain was further directed to pay Rs. 1,00,000/- as compensation to the legal heirs of deceased, Atif Ishfaq and in default whereof, the accused will further undergo six months S.I. All the sentences shall run concurrently. The benefit of Section 382-B of Cr.P.C. was also extendpd in favour of all the convicts. The co-accused namely Khalid Aziz, Muhammad Rafique and Muhammad Latif were declared proclaimed offenders.
4. 2.Being aggrieved by the judgment of the learned trial Court, Tariq Hussain, Muhammad Iqbal, Tasaddaq Hussain, Adeel Iqbal and Manzoor Hussain the appellants filed Crl. Appeal No. 230-2011 whereas the learned trial -Court has forwarded Murder Reference No. 29 of 2011 for confirmation of death sentence inflicted upon the appellant-Tariq Hussain. The complainant being dis-satisfied with the judgment dated 18.05.2011, filed a Criminal Appeal No. 282-2011 against all the accused persons for awarding the maximum sentence on each count. The complainant has also preferred a Crl. Revision No. 143 of 2011 against the convict, Manzoor Hussain and Muhammad Iqbal for awarding capital punishment to them instead of life imprisonment. During the pendency of the instant appeal, this Bench issued notice to Muhammad Iqbal, Manzoor Hussain, Tasaddaq Hussain and Adeel Iqbal that why their sentence may not be enhanced to normal penalty provided in the Statute for offence under Section 302(b), P.P.C. on account of forming an unlawful assembly and attacking upon the complainant party. As all the matters, are arising out of one and the same case F.I.R, therefore, they are being disposed of through a single judgment.
5. 3.The prosecution story as alleged in the F.I.R (Exh.P.E/1) lodged on the complaint (Exh.PE) of Izzat Baig (PW-8/ PW-16)/complainant is that complainant (PW-8) was resident of village Kahut and a cultivator by profession and on the fateful day, the complainant (PW-8) along with his brothers, Altaf Hussain, Azad Hussain sons of Aurangzaib along with Amanat Hussain son of Gul Baig, Atif Ashfaq son of Ashfaq Hussain, resident of same village, were going to Jhamra in connection with their domestic affair and when they reached near the Kahut graveyard at 08:30 a.m. the accused Dost Muhammad, Muhammad Latif, Muhammad Iqbal sons of Ahmad Khan, Muhammad Rafique, Khalid Aziz, Muhammad Shafique sons of Muhammad Sharif, Tajammal Hussain, Tasaddaq Hussain sons of Aalam Sher, Amjad Hussain, Tariq Hussain sons of Resham Khan, Sadam Hussain son of Dost Muhammad, Adeel Iqbal son of Muhammad Iqbal while equipped with rifles whereas the accused, Muhammad Islam, Muhammad Gulistan son of Muhammad Sultan equipped with gun .12-bore, all by Caste Awan, resident of village Kahut whereas Manzoor Hussain, Maqbool Hussain, Matloob Hussain sons of Mian Khan, all by Caste Awan, resident of Jhamra equipped with their rifles were sitting beside the wall of the graveyard and appeared suddenly while the accused, Muhammad Rafique raised a lalkara that a lesson be taught to them for not allowing to pass the tractor from the land, whereupon all the accused persons started firing. The accused, Muhammad Rafique fired which hit on the chest of Amanat Hussain whereas the accused, Khalid Aziz fired which landed on the left flank of Altaf Hussain. The accused, Dost Muhammad fired which hit on the head of Altaf Hussain whereas the accused, Muhammad Latif fired which hit on the inner side of left thigh of Altaf Hussain. The accused, Iqbal fired which landed on the right thigh of Altaf Hussain. The accused, Manzoor Hussainfired which hit Altaf Hussain on his right deltoid region whereas the accused, Islam fired with his .12-bore gun which hit Altaf Hussain on left knee and pallets hit on the right ear. The accused, Muhammad Latif fired which hit Azad Hussain on the right side of head while the fire of accused, Amjad Hussain was hit to Atif Ashfaq on his genital region on front where the accused, Tariq Hussain fired which hit Atif Ashfaq on the right thigh, who fell down on receiving the injuries. On report of fire shots, Muhammad Rameez Hussain son of Altaf Hussain, Abid Hussain son of Gul Baig were attracted to the place of occurrence and witnessed that the accused, Tajammal Hussain fired which hit Muhammad Rameez Hussain on the right side of his head whereas the accused, Sadam Hussain fired which hit on the back side of left ear of Muhammad Rameez Hussain. Thereafter the accused, Matloob Hussain fired which landed on the calf of right leg of Muhammad Rameez Hussain whereas the fire of accused, Tasaddaq Hussain was landed on the left thigh of Muhammad Rameez Hussain. The accused, Adeel Iqbal made a fire shot which hit Muhammad Rameez Hussain on his left thigh while the accused, Muhammad Islam fired which hit Abid Hussain on the back side of his head. The accused, Muhammad Gulistan made a fire shot and pallets were landed on the head of Abid Hussain whereas the accused, Khalid Aziz fired which hit Abid Hussaih on the left side of his head, who after sustaining the injuries, fell down. In the meantime, Sajjad Hussain son of Karam Daad, Nau Bahar Hussain son of Aurangzaib reached at the spot and witnessed the occurrence whereas the accused persons rushed towards their houses and when the accused were on their way, Faheem Matloob son of Matloob Hussain was present there whereas the accused, Muhammad Latif and Dost Muhammad made single fire each on Faheem Matloob and injured him. The accused persons made aerial firing and as a result whereof, their companion, Muhammad Rafique son of Muhammad Sharif was also injured. Thereafter the complainant (PW-8) took the injured to R.H.C., Bochal Kalan but Altaf Hussain, Amanat. Hussain and Azad Hussain succumbed to the injuries whereas on the way, from R.H.C., Bochal Kalan to District Headquarter Hospital, Chakwal, the injured Aatif Ishfaq also succumbed to the injuries. 4.The motive behind the alleged occurrence was that two days prior to the occurrence, accused, Muhammad Latif was forbidden by the complainant's brother Naubahar from passing the tractor through the crop of "bajra/jawar" over which hot words were exchanged and due to that grudge, alleged occurrence took place.
6. 5.On receipt of information regarding the occurrence, Kausar Abbas, S.I. (PW-15) along with Hafeez-ullah 419/L.H.C, Nusrat Ali 287/C (PW-1) and Faheem Ahmad 21/C while riding on the official vehicle reached at R.H.C., Bochal Kalan and reduced into writing the statement (Ex.PE) of the complainant (PW-8) and the complainant (PW-8) signed thereon as a token of its correctness and after completion of police karawai, Kausar Abbas, S.I. (PW-15) sent the same to the Police Station through Faheem Ahmad 21/C whereupon formal F.I.R. (Ex.PE/1) was chalked out by Shaukat Javed, 7/H.0 (PW11). Thereafter, the Investigating Officer (PW-15) prepared the injury statements of injured, Aatif Ishfaq, Rameez Hussain, Altaf Hussain, Abid Hussain and Faheem Matloob as Ex.PAA, Ex.PBB, Ex.PCC, Ex.PDD and handed over the injury statements as well as injured persons to Hafeez Ullah 419/C for the purposes of medical examination. Thereafter the Investigating Officer (PW-15) prepared the inquest reports qua dead bodies of deceased, Amanat Hussain, Azad Hussain and Altaf Hussain as Ex.PEE, Ex.PFF and Ex.PGG and also drafted applications for the post-mortem examination of deceased persons as Ex.HH, Ex.PJJ and Ex.PKK and handed over the same to Nusrat Ali 287/C (PW-1), who escorted the same to the District Headquarter Hospital, Chakwal. The Investigating Officer prepared an application autopsy of dead body of deceased, Aatif Ishfaq as Ex.LL and inquest report as Ex.PMM. Thereafter the Investigating Officer (PW-15) visited the place of occurrence and collected blood-stained earth from the place of murder of deceased, Aatif Ishfaq and took into possession vide recovery memo. ExPL, blood-stained earth from the place of murder of deceased, Amanat Hussain and took into possession vide recovery memo. Ex.PM, blood-stained earth from the place of murder of deceased, Altaf Hussain and took into possession through recovery memo. Ex.PN, blood-stained earth from the place of murder of deceased, Azad Hussain and took into possession vide recovery memo. Ex.PP. During spot inspection, the Investigating Officer collected 15 crime empties of 7-mm, 10 crime empties of .44-bore, 15 crime empties of Kalashnikov and 13 cartridges of .12-bore gun from different places, which were taken into possession vide recovery memo. Ex.PQ and thereafter the Investigating Officer prepared the rough site-plan of the place of occurrence without scale as Ex.PNN. Thereafter, Nusrat Ali 287/C (PW-1) handed over the last worn bloodstained clothes of deceased, Altaf Hussain i.e. Shalwar (P-1), Qameez (P-2), post-mortem report of deceased, Amanat Hussain along with his last worn blood- stained clothes i.e. Shalwar (P-3), Kurta (P-4), Bunyan (P-5), post-mortem report of deceased, Azad Hussain along with his last worn blood-stained clothes i.e. Kurta (P-6), Shalwar (P-7), Bunyan (P-8), posmortem report of deceased, Aatif Ishfaq along with his last worn blood-stained clothes i.e. Shalwar (P-9), Qameez (P-10), Bunyan (P-11) which were taken into possession by the Investigating Officer (PW-15) vide recovery memo. Ex.PF and thereafter statements of prosecution witnesses were also recorded by the Investigating Officer (PW-15) under Section 161 of Cr.P.C. On reaching the Police Station, the Investigating Officer (PW-15) handed over the case property to the Moharrir of Police Station for keeping the same in safe custody. On 29.05.2009, the Investigating Officer (PW-15) recorded the statement of injured-Faheem Matloob at Kahout Adda under Section 161 of Cr.P.C. and on 01.06.2009, the Investigating Officer (PW-15) recorded the statements of injured- PWs namely Rameez Hussain and Abid at Kahout Adda under Section 161 of Cr.P.C. On 08.06.2009, Sajid Mehmood, Patwari Halqa (PW-13) visited the place of occurrence and prepared the scaled site-plan and submitted the same before him (PW15), who on 22.06.2009 incorporated the notes with red ink on all the scale site-plan which are Ex.PY/1-3. On 11.06.2009, the Investigating Officer (PW-15) arrested the accused persons namely Saddam, Adeel, Tasaddaq and Muhammad Iqbal from Dhoke Riasat whereas rest of the accused persons namely Tariq, Muhammad Shafiq, Manzoor, Matloob and Maqbool appeared at police post Bochal Kalan and were arrested there.
7. During the course of investigation, on 22.06.2009, the accused Manzoor Hussain led the police party in the hilly area situated behind Dhoke Riasat and got recovered one rifle .44-bore (P-18) which was taken into possession by the Investigating Officer (PW-15) vide recovery memo. Ex.PT whereas rough site-plan qua place of recovery was prepared by him (PW-15) as Ex.PT/1, the accused, Muhammad Iqbal led the police party in the hilly area situated behind the Dhoke Riasat and got recovered a rifle .7-mm (P-19) from the bushes, which was taken into possession by the Investigating Officer vide recovery memo. Ex.PU and prepared the rough site-plan of the place of recovery as Ex.PU/1, the accused, Muhammad Shafiq led the police party to the same area and got recovered a rifle .8-mm (P-20) which was taken into possession by the Investigating Officer as Ex.PV and prepared the rough site-plan of the place of recovery as Ex.PV/1 and on the same day, the concerned Station House Officer/Inspector (PW-14) handed over the custody of the accused, Muhammad Islam and Muhammad Gulistan to the Investigating Officer (PW-15) whereas on 24.06.2009, the accused Tariq Hussain led the police party to the area of Paharr Khan and got recovered a rifle ..44-bore (P-21) which was taken into possession by the Investigating Officer vide recovery memo. Ex.PW and prepared the rough site-plan of the place of recovery as Ex.PW/1.
8. Similarly, the accused, Tasaddaq Hussain led the police party to the jungle and got recovered a rifle .7-mm (P-22) which was taken into possession by him (PW-15) as Ex.PX and prepared the rough site-plan of the place of recovery as Ex.PX/1 and thereafter the Investigating Officer got issued the docket on 26.06.2009 as Ex.PQQ and sent the case properties to the Forensic Science Laboratory, Lahore. The Station House Officer/Inspector, Police Station, Kallar Kahar (PW-14) arrested the accused, Muhammad. Gulistan and Muhammad Islam on 22.06.2009 whereas the accused,, Muhammad Gulistan was having a .12-bore single barrel gun in his right hand (P-5) which was taken into possession by him (PW-14) vide recovery memo. Ex.PR whereas the accused, Muhammad Islam got recovered a .12-bore gun (P-6) from a room located at the roof of poultry farm, which was taken into possession by (PW-14) as Ex.PS and prepared rough site-plans of the places of recovery as Ex.PR/1 & Ex.PS/1. Thereafter he (PW-14) arrested the accused, Tajammal Hussain on 31.08.2009, who during the course of investigation, got recovered a rifle .44-bore (P-23) from the house of his father-in-law and same was taken into possession by (PW-14) through recovery memo. Ex.PZ and prepared the rough site-plan of the place of recovery as Ex.PZ/1, Thereafter the investigation of this case was entrusted to Muhammad Ajaib, S.I. (PW-17), who on 06.07.2009, drafted an application EXPRR for issuance of warrants of arrest of six accused persons i.e. Ex.PW-17/A, Ex.PW-17/B, Ex.PW17/C, Ex.PW-17/D, Ex.PW-17/E & Ex.PW-17/F and reports whereupon were Ex.PW-17/A-1, Ex.PW-17/B-1, Ex.PW-17/C-1, Ex.PW-17/D-1, Ex.PW-17/E-1 & Ex.PW-17/F-1 and thereafter he (PW-17) got issued a docket Ex.PSS from the office of the District Police Officer, Chakwal for the purpose of sending the recovered weapon to Forensic Science Laboratory, Lahore for comparison on 08.07.2009. Thereafter, he (PW-17) moved an application Ex.PTT in order to get issue the letter from the office of the District Police Officer, Chakwal in the name of Director Immigration.
9. 6.Having found the accused persons guilty, the Station House Officer/Inspector prepared report under Section 173, Cr.P.C. and sent the same to the Court of competent jurisdiction. On 19.02.2010, the learned trial Court formally charge sheeted the appellants to which, they pleaded not guilty and claimed trial. The prosecution in support of its version produced as many as seventeen (17) prosecution witnesses.
10. 7.Ocular account of first part of occurrence in this case has come out from the statements of Izzat Baig (PW-8)/complainant, the injured PWs-Rameez Hussain (PW-11), Faheem Matloob (PW-10), Abid Hussain (PW-9), whereas Dr. Mian Mumtaz Hussain, (PW-2), had observed the body of the deceased-Aatif Ishfaq in an injured condition on 28.05.2009 and found the following injuries on his person:-- 1.A round to oval fire-arm mark of wound on lateral side of right hip, measuring 0.8 x 0.8 cm margins inverted. No blackening, no tattooing seen on margins. Wound located 13 cm below iliac crest of right hip bone."
11. 2.A lacerated wound on left side of scrotum, which was 2 x .5 cm. Margins everted, flesh is coming out whole testis. Bruising on scrotum and right inginal area. Corresponding hole on shalwar was present, while it was stained with Blood. General condition was still severe. IN line maintained by latterly."
12. After conducting the medical examination, the doctor rendered the following opinion.
13. Opinion.
14. "Injury No. 1 was entry wound, while Injury No. 2 was exit wound. Referred to D.H.Q. Hospital Chakwal for management. Weapon of offence was fire-arm. Duration between injuries and examination was within one hour." Exh.PA is carbon copy of report of MLC.
15. On the same day, the doctor had examined the injured-Rameez Hussain and found the following injuries on his person:-- 1.Incised wound on head leff side just above the left ear measuring 2 x 0.2 cm.
16. 2.Incised wound on face in front of left ear having 1 x 0.2 CM.
17. 3.Incised wound on head "H" shape on left side 15 cm posterior to head. It was measuring 1 x 0.2 cm of each limb of "H".
18. 4.A lacerated wound on leg lying interiorly measuring 4 x 3 cm cutting the flash at bone tibia on right leg, closed to ankle joint.
19. 5.Fire arm wound on left thigh on lateral sight measuring 2 x 2 cm, margins were inverted.
20. Blackening and tattooing seen around the wound. It was about in the middle of thigh.
6. Fire arm wound on medial aspect of left thigh 2 x 2 cm' located 15 cm above knee joint. 2 cm below the level of wound No. 5. Corresponding mark hole on Shalwar was present. Shalwar handed over to police after signatures.
21. After conducting the medical examination, the doctor rendered the following opinion:-- Opinion.
22. Injuries No. 1, 2, 3 were sharp edge weapon, while Injury No. 4 was with blunt weapon and Injuries No. 5 & 6 were with fire-arm.
23. Duration between injuries and examination was half to, one hour. Ex.PB is carbon copy of MLC.
24. On the same day, the doctor had examined the injured-Faheem Matloob and found the following injuries on his person:-- 1.A round wound lacerated 1 x 1 cm, located on right upper part of thigh, latterly located 8 cm before greater trochanter margins inverted; tatooing was present, but no blackening.
25. 2.A second lacerated wound 2 x 1.5 cm on medial and lower part of right buttock. Margins were everted. Probably it was exit wound. On shalwar the hole was present. Corresponding side was stained with blood.
26. After conducting the medical examination, the doctor rendered the following opinion.
27. Opinion.
28. Fire arm weapon was used. Duration between injuries and examination was fresh. Ex.PC is carbon copy of MLC.
29. Likewise, the doctor had medically examined the injured Abid Hussain on the same day and found the following injuries on his person: 1.A lacerated wound on head located on left side, measuring 2 x 0.3 cm, bone was not exposed.
30. Located 4 cm from left ear.
31. 2."T" shape lacerated wound on head, measuring 5 x 0.4 cm, bone was exposed. The length of second limb of "T" was 6 x 0.4 cm, bone was exposed. Wound was located on head on left side 8 cm above the left ear.
32. 3.A lacerated wound on head 9 x 0.2 cm, lying more on right side and posteriorly. No bone was exposed in this wound. It was 9.5 cm from right ear. 4.A scratch on left hand on little finger with difficulty in movement.
33. The doctor rendered the opinion after conducting the medical examination.
34. Opinion.
35. Blunt weapon was used. Duration between injuries and examination was half to one hour. Ex.PD is carbon copy of MLC.
36. On the same day, Dr. Abdur Rehman (PW-4) conducted post-mortem of the body of deceased, Altaf Hussain and found the following injuries: 1.An entry wound fire-arm 0.8 x 0.7 cm in front of right for arm in middle with stretching and color of abrasion. Margins inverted and directed off-ward and slightly backward. Leading into Injury No. 2.
37. 2.It was an exit wound, located 3 cm above elbow joint on interior aspect of upper arm with irregular margins. Margins are everted.
38. 3.An incised wound vertical 4 x 2 cm incised in middle of back of the skull, 4 cm below the occipital protuberance.
39. 4.An incised wound 0.2 x 1.5 cm, just right to the occipital protuberance.
40. 5.0.5 x 2 cm on right ear directed off-ward and slightly backward. Two bullets were recovered.
41. 6.A fire-arm wound 1.5 x 2 cm with collar of abrasion directed towards left slightly off-ward and backward, located 10 cm above the right knee joint.
42. 7.An exit wound at medial aspect of right thigh 15 cm above knee joint. It was 4 x 4 cm in size, irregular and its markers were everted.
43. 8.A fire-arm wound at left lower chest with scorching. It was 2 x 2 cm directed towards right backward and upward.
44. After conducting the post-mortem, the doctor rendered the following opinion.
45. Opinion.
46. In his opinion, cause of death is Injury No. 3, which has caused brain damage and it was incised wound due to sharp weapon and not fire-arm. This injury was enough to cause death and remaining injuries are contributory.
47. Probable time, that elapsed between injuries and death 10 to 30 minutes and between death to post-mortem 6 to 12 hours. The post-mortem report is 'Ex.PG along with pictorial diagram as Ex.PG/1.
48. On the same day, Dr. Abdur Rehman (PW-4) conducted post-mortem of the body of deceased, Amanat Hussain and found the following injuries: 1.A fire-arm wound in front of left chest 4 cm from mid line in 20 cm below left clavicle. Margins were inverted with collar of abrasion. Directed backward towards right making its exit of Injury No. 2.
49. 2.At back of right chest 11 cm from mid line and 3 cm below right shoulder.
50. 3.An abrasion 1 x 1.5 cm at right side of the neck at the level of thyroid cartilage.
51. After conducting the post-mortem, the doctor rendered the following opinion.
52. Opinion.
53. In his opinion, the cause of death was Injurie o. 1 & 2 which were fire-arm. Injuries caused damage to heart and right lung. There injuries were enough to cause death.
54. Probable time between injury and death 15 to 30 minutes whereas duration between death and post-mortem 6 to 12 hours. The post-mortem report is Ex.PH, pictorial diagram is Ex.PH/1 & 2 and inquest report is Ex.PH/3.
55. Likewise on the same day, Dr. Abdur Rehman (PW-4) conducted post-mortem of the body of deceased, Azad Hussain and found the following injuries: 1.A fire-arm wound 0.7 x 0.8 cm, scorching with collar of abrasion about 6 cm above the left eye brow, directed towards left backward and slightly down-wards with under lying bond fracture. It was an entry wound.
56. 2.6 cm behind the left ear 2 x 2 cm in size irregular margins were everted. It was an exit wound.
57. After conducting the post-mortem, the doctor rendered the following opinion. Opinion.
58. In his opinion, the cause of death was with Injuries No. 1 & 2 which were fire-arm injuries. Injury No. 1 was entry, while Injury No. 2 was exit wound. These injuries were enough to cause death.
59. Probable time between injury and death 10 to 20 minutes whereas duration between death and post-mortem 6 to 12 hours. The post-mortem ,report is Ex.PJ, pictorial diagram is, Ex.PJ/1 and inquest report is Ex.PJ/2.
60. Similarly, on the same day, Dr. Abdur Rehman (PW-4) conducted post-mortem of the body of deceased, Aatif Ishfaq and found the following injury: 1.A fire-arm wound 0.8 x 0.7 cm with colour of abrasion, located on right side of hip. 13 cm below right iliac crest. Margins were inverted. It was entry wound. It was directed towards left and slightly forward making its exit as Injury No. 2 from right side of top of scorotum.
61. After conducting the pok-mortem, the doctor rendered the following opinion.
62. Opinion.
63. In his opinion, the cause of death was with Injuries No. 1 & 2 which were fire-arm injuries. Injury No. 1 was entry wound whereas Injury No. 2 was exit one. These injuries were enough to cause death. The cause of death seemed to be vasovagal shock.
64. Probable time between injury and death 10 to 30 minutes whereas duration between death and post-mortem 6 to 12 hours. The post-mortem report is Ex.PK, pictorial diagram is Ex.PK/1 & 2 and inquest report is Ex.PK/3.
65. The statements of remaining prosecution witnesses are formal in nature.
66. 8.On 05.05.2011, learned Deputy District Public Prosecutor gave up Noubahar, Sajjad Hussain and Maqbool Hussain being unnecessary and by tendering the reports of Chemical Examiner as Ex.PUU, Ex.PVV, Ex.PWW & Ex.PXX as well as reports of Forensic Science Laboratory Punjab, Lahore as Ex.PYY & Ex.PZZ and closed the prosecution evidence.
67. 9.The appellants were also examined in terms of Section 342, Cr.P.C. wherein they opted not to lead defence evidence but also refused to appear as their own witnesses in disproof of the allegations levelled against them in the prosecution version. In response to a particular question why this case against him and why the PWs deposed against him, Muhammad Iqbal-appellant, made the following deposition: "Occurrence did not take place 'in the manner being alleged by complainant and PWs.
68. Complainant Izzat Baig, Noubahar (both PWs), Altaf and Azad (both deceased of this case) are real brothers inter-se, Khalazad of Muhammad Rafique (co-accused), were having illegal possession over the land, which belongs to Rafique accused on account of his inheritance from his maternal grand- father and harvesting above mentioned land of Rafique without giving him any portion from the produce and were consistently refusing due to their predominant position to restore the share of Muhammad Rafique accused, who started demanding his share more rigorously after death of his mother Mst. Malkani and it was in this back-drop that on the day of occurrence in an earlier incident a dispute occurred between Altaf (deceased), Abid & Rameez (both injured PWs) with Muhammad Rafique (co-accused) who was accompanied by his two pathan friends and in that incident at the hands of companions of Muhammad Rafique, above mentioned Altaf, Abid and Rameez sustained blunt and sharp edge injuries from the right and wrong sides of the hatchets.
69. And it was after this incident that four deceased along with injured PWs attacked with fire-arm on Muhammad Rafique and his two friends and in process whereof Muhammad Rafique sustained fire-arm injuries and it was in exercise of right of self defenee by the companions of deceased that they restored to firing picking the deceased and the injured by surprise and this occurrence occurred. As prosecution against two companions of Muhammad Rafique would not have been of any use, complainant party roped every able body member from accused side in this case. The PWs are closely inter-se and inimical towards me and my co-accused."
70. The appellants-Tariq Hussain, Tasaddaq Hussain, Adeel Iqbal and Manzoor Hussain while replying the particular question, relied upon the deposition of their co-accused/appellant-Muhammad Iqbal.
10. The learned trial Court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt resulting into conviction of the above stated appellants in the afore said terms. 11.. Arguments advanced from both sides have been heard. We have also gone through the record available on file with the able assistance of learned counsel for the appellants and learned counsel for the complainant as well as Deputy Prosecutor General.
71. 12, In the instant case the occurrence had taken place on 28.05.2009 at 8.30 a.m. and the matter was reported to the police on the same day at 11:00 a.m. whereas inter-se distance between the Police Station Kallar Kahar, District Chakwal and the place of occurrence is 7-Miles. There was inordinate delay of 2:30 hours in lodging the F.I.R. and in this way possibility of deliberations and consultations cannot be ruled out.
72. 13.As per prosecution version put forth in the crime report by the complainant-Izzat Baig (PW-8), his real brother's deceased-Altaf Hussain, deceased-Azad Hussain, his maternal nephew deceasedAmanat Hussain, his paternal nephew deceased-Aatif Ishfaq were going to the village Jhamra at about 8.30 a.m. in connection with the piece of work. When they reached near the graveyard situated adjacent to their village the appellants (1) Tariq Hussain, (2) Muhammad Iqbal,
(3) Tassaddaq Hussain, (4) Adeel Iqbal and (5) Manzoor Hussain along with their twelve co- accused persons, namely, Sadam Hussain (since acquitted), Muhammad Shafiq (since acquitted), Maqbool Hussain (since acquitted), Matloob Hussin (since acquitted), Muhammad Gulistan (since acquitted), Muhammad Islam (since acquitted), Tajammal Hussain (since acquitted), Dost Muhammad (proclaimed offender), Muhammad Latif (Proclaimed offender) Khalid Aziz (Proclaimed offender), and Amjad Hussain (Proclaimed offender) who were ambushed behind the wall of graveyard came forward while making firing at them simultaneously.
73. 14.The appellant-Tariq Hussain had made a fire shot which landed on the right thigh of deceased-Aatif Ishfaq, the appellant-Muhammad Iqbal had made a fire shot which landed on the right thigh of deceased-Aatif Ishfaq, the appellant-Tassaddaq Hussain had made a fire shot which landed on the left thigh of injured-Rameez Hussain (PW-11), the appellant-Adeel Iqbal had made a fire shot which landed on the left thigh of injured-Rameez Hussain (PW-11) and the appellant- Manzoor Hussain had made a fire shot which landed on the left thigh of injured-Rameez Hussain (PW-11). Whereas Khalid Aziz (Proclaimed offender) had made a fire shot which landed on the left flank of deceased-Altaf Hussain, Muhammad Raffiq (Proclaimed offender) had made a fire shot which landed on the chest of deceasedAmanat Hussain, and Amjad Hussain (Proclaimed offender) had made a fire shot which landed on the genital region of deceased-Aatif Hussain.
15. The complainant-Izzat Baig (PW-8) deposed at the trial that he brought the injured to RHC Buchal Kalan, where Altaf, Amanat Hussain and Azad Hussain Succumbed to the injuries. He, (PW- 8) also deposed during cross-examination that, "after the incident was over on 28-05-2009 at about 08:30 a.m., I myself took the deceased and other injured PWs in injured conditions from the spot in 5/6 Suzuki Pick-ups to RHC Buchal Kalan. Within half an hour of the occurrence we left the spot. Before my departure for RHC, I did not try to lay information to the police either by myself or through someone else. I did not ask any of my relative present there before my departure to lay information with the police. It had taken us 20/25 minutes to reach RHC Buchal Kalan without stopping anywhere on the way When we reached RHC Buchal Kalan police was not present there; Neither myself nor anyone else present there in the RHC, tried to contact the police; After 15/20 minutes of our reaching RHC police arrived there; I had not prior acquaintance with Kausar Abbas SI and vice versa about 50/100 persons were present when Investigating Officer came there. I came forward and offered myself to be the complainant of this case and I told the Investigating Officer that I would be the complainant of this case and that my statement be recorded. He verified my identity and satisfied himself that I belonged to the complainant side and the deceased that he accepted me as a complainant. Again said Investigating Officer was informed by some body that the man there (myself) was the brother of the deceased and this is how he approached me. I was fully conscious, oriented to time and space, not under the effects of any trauma while making my statement to the Investigating Officer." But from the Medico legal report (Exh.PA) it reveals that injured-Aatif Ishfaq (since died) was brought to the hospital at 11:11 noon, however, who brought him was not mentioned therein, from the Medico legal report (Exh.PB) it reveals that the injured-Rameez Hussain was brought to the hospital by Hafeez Ullah, 419/Constable at 11:45 noon, from the Medico legal report (Exh.PC) it reveals that injured-Faheem Matloob was brought to the hospital by Hafeez Ullah, 419/Constable at 12:15 noon, from the Medico legal report (Exh.PD) it reveals.that injured-Abid Hussain was brought to the hospital by Hafeez Ullah, 419/Constable at 12:00 noon and none else. In the column of medico legal reports (Exh.PB, Exh.PC and Exh.PD), "name of relative and friend" was written by the police/ Hafeez Ullah, 419/Constable. It is clear from the medico legal certificates that the injured were not previously examined and in the column of date of admission, name of Hafeez Ullah, 419/Constable was written who brought the injured on 28.5.2009 from at 11.45 a.m. to 12:00 noon. From the contents of the medico-legal reports (Exh.PB, Exh.PC and Exh.PD), it reveals that the injured- prosecution witnesses were brought by the police for medical examination and not by the complainant or any eye-witness of the occurrence, makes the case of the prosecution doubtful. However from the evidence it reveals that the police had reached at the hospital in presence of the complainant as deposed by the complainant-Izzat Baig (PW-8). Kausar Abbas (PW15) the Investigating Officer, deposed in his Court statement that on 28-05-2009 he received information through phone call that some quarrel took place in Mauza Kahout, during which some persons were injured and he should reach the spot; He (PW-15) reached village Kahout where residents of locality informed him that injured persons have been taken to RHC Buchal Kalan. 'causal. Abbas (PW-15) deposed during cross-examination that it was about 09:00 AM when he reached at the spot; when he reached RHC there were three dead bodies from the complainant side and four injured. Whereas from the Medico legal report (Exh.PA) of deceased-Aatif Ishfaq (then injured) it reveals that injured-Aatif Ishfaq (since died) was brought to the hospital at 11:11 noon by Hafeez Ullah, 419/Constable and probable duration of injuries was within one hour. This leads us to the conclusion that the evidence of the prosecution witness is untrue. Abid Hussain deposed during cross-examination that Izzat Baig who was already present at the spot attended them, however, he (Izzat Baig) did not attend the four deceased who were attended by the women folk of their respective house-holds; the women mentioned above also arranged cots and put the dead bodies thereon; dead bodies were removed at the same time we were shifted to RHC; no male person was attracted to the incident and only women folk remained present there. In these circumstances the testimony of the eye- witnesses does not inspire confidence. This leads to the conclusion that the F.I.R. was recorded with a delay and same cannot be used against the appellants as a corroborative piece of evidence.
74. Hence this circumstance was taken, as the one, to raise considerable doubt, regarding the veracity of the case, and it was held that it was not safe to base conviction.
16. Now, coming to the presence of the complainant-Izzat Baig (PW-8) at the place of occurrence, it is urged that presence. of the complainant (PW. 8) was not proved at the place of occurrence and as-such his evidence is not worthy of acceptance. Izzat Baig (PW-8) in the cross-examination admitted that Ataf Hussain and Azad Hussain were his brothers' whereas Amanat Hussain and Aatif Ishfaq were his maternal nephew and paternal nephew respectively. In addition to this there is another glaring infirmity in the evidence of Izzat Baig (PW-8) is that he is very emphatic that on 28- 05-2009 at about 08:30 A.M., he and his brothers Altaf Hussain, Azad Hussain, his maternal nephew Amanat Hussain, paternal nephew Aatif Ishfaq were going to the village Jhamra for meeting with Ghazanfar Abbas as he had brought visas from abroad as they wanted to get visas for Azad Hussain (maternal nephew), Sajid Hussain (maternal nephew) and Aatif Ishfaq (paternal nephew).
75. Whereas in the F.I.R. (Exh.PE/1) the complainant (PW-8) had mentioned that they were proceeding to Jhamra on account of some personal piece of work. The Investigating Officer (PW15) deposed during cross-examination that, "In the complaint the complainant and witnesses in their statements u/S. 161, Cr.P.C. merely pointed out that they were going to Jhamra in connection with the piece of work without specifying the nature of their work and purpose of their visit. Throughout the investigation nothing surfaced, nor came into my notice the specific purpose of their visit to Jhamra. Volunteered that I was told the purpose of their visit to get the visas. I do not remember the date. Nowhere in case diary there is mentioned of their having so told to me. Nor any one was produced before me to verify their intended visit to him. Throughout the investigation the only reason cited by the complainant and the PWs was that they were proceeding to Jhamra on account of some personal piece of work." On the other hand, the presence of Izzat Baig (PW-8) was also denied by Rameez Hassan (PW-11). Rameez Hassan (PW-11) deposed during examination-in- chief that, "I and Abid due to sustaining injuries fell down. Over which, my MAMU Sajjad Hussain, CIIACHA Noubahar Hussain and Izzat Baig reached at the spot. Prior to that accused persons had gone towards their houses." Scrutiny of the testimony of Izzat Baig (PW-8) produced by the prosecution clearly indicated that he was chance witness. We have also noticed that the prosecution did not produce the most material witness Ghazanfar Abbas, who had brought visas from abroad as the complainant ( PW-8) wanted to get visas for Azad (Bhanja), Sajid Hussain (Bhanja). and Aatif Ishfaq and adverse inference for withholding a material witness has to be drawn on this count also, which would materially and adversely affect the prosecution story. We have made an elaborate discussion as to the presence of the complainant (PW-8) at the place of occurrence and come to the conclusion that the complainant (PW-8) was not present at the place of occurrence.
17. We, now therefore turn to the question whether the injured prosecution witnesses i.e. Abid Hussain (PW-9), Faheem Matloob (PW-10) and Rameez Hassan (PW-11) are truthful witnesses, and whether it would be safe to accept their testimony. We have to examine their evidence and also that of Dr. Mien Mumtaz Hussain (PW-2) in the background of the fact that they are not only very close. Relatives of the deceased Azad Hussain, Altaf Hussain, Aatif and Amanat, but, are also inimical to the appellants. Coming to the evidence of Abid Hussain (PW-9), injured witness, we find that in his statement recorded in the trial Court, he has categorically alleged that Islam (since acquitted) accused fired which landed on the left side of his (PW-9) head in the shape of pellets.
76. Faheem Matloob (PW-10) and Rameez Hassan (PW-11) also deposed that in the same line. All prosecution witnesses deposed that Abid Hussain (PW-9) received firearm injuries. However, to our dismay, we find that the medical evidence indicates that Abid Hussain (PW-9) received no fire- arm injury on his head or on any part of body. He was examined by Dr. Mian Mumtaz Hussain (PW- 2) who found that all injuries were result of blunt weapon.
77. 18.Similarly, Faheem Matloob (PW-10) deposed in his Court statement that Latif accused fired a shot hitting on his right thigh. However his (PW-10) statement was confronted during cross- examination with Exh DC where a joint role of firing by Latif, accused and Dost Muhammad, accused was mentioned. Faheem Matloob (PW10) also deposed during cross-examination that he had stated before the Investigating Officer that he was injured by both Muhammad Latif, accused and Dost Muhammad, accused by their one fire shot each; he had stated that not only Latif made a fire shot on him but also Dost Muhammad made a fire shot on him, which hit him on right thigh; he had not stated before the Investigating Officer that fire made by latif hit him on left side of his body blow hip, which was confronted with Exh-DC where a joint firing by Latif and Dost Muhammad was mentioned. He (PW-10) was examined by Dr. Mian Mumtaz Hussain (PW-2) who found one entry wound having tattooing on the upper part of thigh. Meaning thereby the shot was fired from a very close range. All though in the un-scaled site-plan (Exh-PNN) and scaled site-plan (Exh-PY) distance between Point No. 7 and point's No. 11 and 12 had not been given but a bare look of site-plan shows great distance between Point No. 7 and point's No. 11 and 12. In the site-plan (Ex.PY), the shortest distance had been shown by the witnesses between different points is 05- karams. So, tattooing and blackening is not possible. Presence of tattooing belies the ocular version and renders the prosecution case doubtful.
78. 19.Besides this, Rameez Hussain (PW-11) deposed that Saddam Hussain (since acquitted) and Matloob Hussain (since acquitted) made fire shots which hit him (PW-11) at the back of left ear and Shin respectively. We find that the medical evidence indicates that injuries attributed to Saddam Hussain (since acquitted) and Matloob Hussain (since acquitted) were not result of fire-arm. He was examined by Dr. Mian Mumtaz IIussain (PW-2) who found that Injuries No. 1, 2, 3 were result of sharp edge weapon whereas Injury No. 4 was result of blunt weapon and Injuries No. 5 and 6 were result of fire-arms, which were attributed to Adeel Iqbal and Tassadaq Hussain. He (PW-11) was examined by Dr. Mian Mumtaz Hussain (PW-2) who found blackening and tattooing on the Injury No. 5. Meaning thereby the shot was fired from a very close range. But it is not the prosecution case that the shot was fired from the close range. On the other hand, Rameez Hussain (PW-11) had not deposed that the accused Adeel Iqbal and Tasaddaq Hussain had made fire shot from the close range. The medical evidence belies the ocular version brought forward by Rameez Hussain (PW-11) and made his statement doubtful.
79. 20.In similar way all prosecution witnesses has deposed that Accused Muhammad Islam (since acquitted) caused fire-arm injury on the person of Altaf Hussain (the deceased) at his left knee.
80. Whereas Dr. Abdur Rehman (PW-4) had not found any injury on the left knee of Altaf Hussain (the deceased).
81. 21.We have also noticed that Izzat Baig (PW-8) deposed that Manzoor Hussain accused fired which hit on right deltoid region of Altaf Hussain-deceased and Tariq Hussain fired which hit on the right thigh of Aatif Ashfaq-deceased. Abid Hussain (PW-9) and Rameez Hassan (PW-11) also corroborate the statement of Izzat Baig (PW-8). Dr. Abdur Rehman (PW-4) conducted post- mortem on the dead body of Altaf Hussain-deceased and found Injury No. 1 in front of right forearm, however no injury was found of right deltoid region. The deltoid region is located on the outer aspect of the shoulder and is recognized by its triahgular shape. Similarly one entry wound was found on the body of Aatif Ashfaq- deceased at right side, of hip and same was not available on the right thigh of Aatif Ashfaq-deceased. Besides this, the prosecution witnesses deposed that accused Muhammad Amjad fired which hit on genital region on front of Altaf Hussain-deceased.
82. Dr. Abdur Rehman (PW-4) conducted post-mortem on the dead body of Aatif Ishfaq-deceased and found Injury No. 1 on right side of hip, it was entry wound and it was directed towards left and slightly forward making its exit as Injury No. 2 from right side of top of scorotum. The injury attributed to Muhammad Amjad (since proclaim offender) was exit wound. These circumstances make us have serious doubts aboutt the mode and manner of the incident. We are inclined to accede to the submission of learned counsel for the appellants that this shows that the incident did not take place in the mode and manner as alleged by the prosecution. As a matter of fact, the injuries sustained by the injured witnesses and deceased do not inspire any confidence for another reason. The conflict between medical evidence and ocular testimony was so serious that it travelled to the root of the incident and knocked the bottom of the case of the prosecution. We are left with no other option but to believe that injured witnesses Let Abid Hussain (PW-9), Faheem Matloob (PW-10) and Rameez Hassan (PW-11) have deliberately concealed the mode and manner of occurrence. This shows that the prosecution witnesses have not only exaggerated the incident but have also suppressed the incident by not explaining injuries on their persons. The question arises for consideration is whether in view of the facts indicated above, it can be said that the incident had not been exactly taken place in the manner the prosecution witnesses of the occurrence have deposed. We have gone through the entire persecution evidence and found that the prosecution has suppressed the genesis and the original of the occurrence and has thus not presented the true version. In these circumstances it is difficult to accept their testimony.
22. These are not the only reasons as to why we are not able to place reliance on the evidence of injured witnesses i.e. Abid Hussain (PW-9), Faheem Matloob (PW-10) and Rameez Hassan (PW-11).
83. There are some other reasons also the statements of injured witnesses were not recorded soon after registration of FIR. Kausar Abbas, S.I (PW15), the Investigating Officer, deposed that, "all the four in jured were unconscious and therefore I prepared injury statements of those injured on the basis of my personal observation." Contrary to this, Dr. Mian Mumtaz Hussain (PW-2) deposed that Abid Hussain (PW-9) and Faheem Matloob (PW-10) were well oriented in time and space. Abid Hussain (PW-9) deposed during his cross-examination that he was conscious after the incident; he was in a very precarious condition; however he was oriented to time and space; his statement was not recorded by the Investigating Officer in RHC; his statement was recorded at the Kahout Stop; again said his statement was recorded in the RHC Buchal Kalan; again said his statement was recorded on 01.06.2009 at Adda Kahout. Faheem Matloob (PW-10) deposed during cross- examination that he was exhausted due to injury and therefore he was in a position to recollect anything; his statement was recorded on 29-5-2009 at Adda Kahout. Whereas Kausar Abbas, S.I (PW-15), the Investigating Officer, deposed that, he recorded statement of Faheem Matloob (PW- 10) on 01-06-2009. The prosecution fails to satisfactorily explain the delay in recording statements under Section 161, Cr.P.C. and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case. In the instant case Abid Hussain (PW-9) and Faheem Matloob (PW-10) admitted during cross-examination that they were able to make statement but same was not recorded. As no specific role was attributed to any accused and the part played by them, as well as the names of the eye-witnesses, present at the scene of occurrence was mentioned in the inquest reports (Exh.PEE, Exh.PFF, Exh.PGG and Exh.PMM) prepared at the earliest point of time. As such, the delay in recording statements of important witnesses, without reasonable explanation, has created a reasonable doubt in our mind as to the genuineness of the prosecution case.
23. That the testimony of the witnesses becomes further unreliable. As from the testimony of the witnesses the real genesis of the incident was suppressed. The complainant. (PW-8) deposed during cross-examination that, "I tried to save myself by taking shelter of the wall of the graveyard.
84. The wall of. graveyard runs north-south is made of stones which is 2121/2 feet in height. My height is 6 feet 2 inches. I took shelter in a sitting posture." The complainant (PW-8) also deposed during cross-examination that, "I realized the termination of occurrence when accused stopped firing.
85. Volunteered that each accused in this case made fire shot respectively by naming each targeted person. When the accused made fire shot on me which could not hit me due to the wall mentioned above they used to take my name as well. It is after this point of time that I rose up and attended the iniured. Firing was still in progress when people from the vicinity were attracted there.
86. Those included independent as well as related persons from our brotherhood."Abid Hussain (PW-9) deposed in his examination-in-chief that he was in his house when he heard reports of fires and noise from the side of village graveyard. Whereas during his (PW-9) cross-examination deposed that first of all he heard the sound of noise for a short while; Thereafter he did not hear any fire shot and he remained inside the Haveli; His house is on the northern side from the graveyard at a distance of 100 yards and not at greater distance as suggested; graveyard is located at a higher level than his house; again said his house is at even level with that of the graveyard; however, while standing in the Courtyard he was not able to see either the accused or the deceased and injured PWs; when he reached close by the graveyard he started hearing the reports of fire shots. During examination-in-chief, Rameez Hussain (PW-11) deposed that he was present in his house when he heard voices and reports of fires from the graveyard nearby his house, from which he (PW-11) came to know that Dost Muhammad etc were quarreling with his father and chachazad; he and Abid Hussain, injured-PW went towards that place whereas Abid Hussain-PW while appearing in the Court as PW-9 has not deposed that he went to the place of occurrence along with Rameez Hussain (PW-11). Abid Hussain (PW-9) deposed in his Court statement, he ran towards the graveyard where the accused, Dost Muhammad etc. we're making firing. Rameez Hassan (PW-11) deposed during his Court statement that, "on 28-05-2009, he was present in his house, where he heard noises and reports of fires from the graveyard nearby his house." During cross-examination, he (PW-11) deposed that he did not remember if at the time of his examination-in-chief he (PW11) stated that he (PW-11) had stated to the Investigating Officer that house wherefrom he (PW-11) heard the noise and report of fire was nearby the graveyard. Same was confronted with Ex.DD where the presence of house nearby the graveyard was not mentioned. Kausar Abbas, S.I. (PW-15) deposed that Faheem Matloob (PW-10), took plea that they were present inside their houses wherefrom they witnessed the occurrence after having been attracted to the same on noise and gunshot report. They never showed to him (PW-15) their houses wherefrom they claimed to have witnessed the occurrence. Nor the Investigating Officer (PW-15) asked them to take him (PW-15) to their homes. He (PW-15) mentioned everything relating to the surrounding of the place of occurrence in terms of habitation, fields and houses of above mentioned three PWs were not mentioned in the site-plan. From the circumstance, it does appear that the witnesses have shown themselves to be present in their houses which were present near the graveyard. In such circumstances it could not be ruled out that the witnesses had suppressed the original occurrence and has thus not presented the true version.
24. It is also an admitted fact on record that there existed enmity between the parties. This creates doubt about the genuineness of the version given by the complainant-Izzat Baig (PW-8). The complainant-Izzat Baig (PW-8) deposed during cross- examination that It is within my knowledge that the case vide FIR No. 49 dated 25.03.2006 was registered at Police Station Saddar Chakwal under Sections 148, 149, PPC on an application moved by one Adnan, Altaf Hussain, Amanat and Azad deceased of this case and Tabarak Hussain. I do not remember if 17 persons were accused in that case that included Muhammad Iqbal accused of this case. I know one Rashid Iqbal son of Haq, Caste Awan of my village. I do not remember if the said Rashid Iqbal lodged a counter case at Police Station Saddar Chakwal agaist my brother Noubahar and nine others. However, I remember that Altaf Hussain, Mohammad Azad and Amanat Hussain deceased were amongst those who were named as accused by said Rashid Iqbal. I know one Mukhtar Hussain son of Aksar Khan r/o my village. It is correct that said Mukhtar Hussain had got a criminal case registered on 27.10.2005 at Police Station Kallar Khaar under Sections 324, 34, PPC against my brothers Altaf Hussain deceased of this case, Zaffar Iqbal and one Shafiq son of Muhammad Sharif. Village Pahar Khan is at distance of about 2 Kilometers from our village. We have our brother-hood members in that village, some of the witnesses of this case belong to that village. I know one Liaqat Ali son of Walayat Caste Awan, r/o Pahar Khan. It is correct that said Liaqat got a criminal case registered on 09.02.2006 against Altaf Hussain, Azad Hussain and Amanat Hussain deceased besides Matloob Hussain, Muhammad Irfan and Tabarak Hussain under Section 337-H(ii), 148, 149 of, PPC. It is correct that one Sunawar Khan son of Abbas Khan, r/o village Kahout got a criminal case registered vide FIR No. 233, dated 29.09.1998, under Sections 302, 324, 336, 337-A(ii), 147, 427 of, PPC, against myself, my brothers Altaf Hussain, Azad Hussain deceased of this case and nine others. It is correct that Muhammad Iqbal accused of this case got a criminal case registered vide FIR. No. 76 dated 31.05.2002, under Sections 337-F(v), 337-L(ii), 34, PPC against Amanat Hussain deceased of this case. Abid injured PW of this case and one Gul Baig. I do not remember, if one Haji Sultan Mehmood got a criminal case registered on 21.08.1997 against Amanat Hussain deceased of this case under Section 294 of, PPC. Nazran Begum w/o Gul Baig of village Kahout is my sister. It is correct that my above named sister got a criminal case registered FIR. No. 269, under Sections 337-F(vi), 337-A(i), 337-L(ii), 147, 149, PPC against Nusrat Parveen, Attia Latif, Sunawaran Bibi w/o Sultan, Irram Shehzadi, Zahid, Shagufta Iqbal, Zareena Begum. Lalan Bibi, Rehana Begum & Asia all variously related with the accused present in the Court at 'Police Station Kallar Kahan I do not know if a private complaint in respect of the same incident by Dana Bibi widow of Resham Khan, related with the accused present in the Court, is pending in the Court against 15 persons from our side.
87. However, I know that an incident was reported by said Dana Bibi at Police Post Buchal Kalan registered vide Rapt No. 9 on 02.09.2009. We have gone through the testimony of the complainant- Izzat Baig (PW-8). It is evident from the cross-examination of this witness that the deceased were involved in different criminal cases and which fact would show that they were men of questionable character.
25. Since, the prosecution came up with a motive on the part of accused persons to commit the incident right from beginning, it required to be examined on the anvil of reliability. The motive set up by the prosecution in the F.I.R. (Exh.PE/1) is that two days ago Muhammad Latif accused (P.0) was stopped by the complainant's brother Naubahar from passing the tractor from the Bajra crop.
88. Whereupon hot words were exchanged between Naubahar and Muhammad Latif accused (P.0).
89. Whereas, the complainant-Izzat Baig (PW-8) also introduced other motives and deposed that Amanat Hussain and Abid Hussain (maternal nephews) had assaulted accused Muhammad Iqbal due to which ribs of Muhammad Iqbal were fractured and criminal case was registered against them (Amanat Hussain and Abid Hussain). Khalid Aziz accused had quarreled with Altaf Hussain (the deceased). As Altaf Hussain (the deceased) had got vehicle on lease from the bank in the name of Khalid Aziz accused as Altaf Hussain (the deceased) being in police service could not get car on lesse. However Altaf Hussain (the deceased) deposited the installments in the bank account of Khalid Aziz accused but Khalid Aziz accused had not deposited the installments in the bank due to which Altaf Hussain (the deceased) became defaulter and bank officials along with Khalid Aziz accused snatched the vehicle. Whereupon matter was informed to the Motorway police and Motorway police took the vehicle in possession and delivered the possession to Police Station Kallar Kahar. Thereafter compromise between parties was arrived. However, during cross-examination he (PW-8) admitted that he had not mentioned above said both motives in Exh.PE.
90. 26.The complainant-Izzat Baig (PW-8) has deposed during cross-examination that he had shown the field where in Bajra crop was destroyed, to the Investigating Officer. He (PW-8) admitted that he was not present there. Contrary to the deposition of the complainant (PW-8), Kausar Abbas, S.I (PW-15) deposed during cross-examination that, "Throughout the period investigation remained with me. I was never shown the field in which motive incident was allegedly occurred. Even no documentary evidence showing ownership, possession or crop was produced before me to verify the motive incident. Except for one cited in the complaint, throughout during the investigation no other motive/enmity of the deceased and the injured PWs was pointed out with me".So, the motive imputed by the prosecution was built on straw. The motives introduced by the complainant- Izzat Baig (PW-8) have been found by us to have remained un-proved. The motive is a double edged weapon, which can be used for the commission of crime or for falsely implicating the accused. The motive for the commission of crime, by the accused was, therefore, not proved, through cogent and convincing evidence. In the circumstances, we cannot avoid the conclusion that the motive, as alleged, was an afterthought and has not been proved by any credible evidence.
91. 27.As regards the recoveries of the rifle .12-bore P-17 from the appellant-Manzoor Hussain, rifle .7MM P46 from the appellant-Muhammad Iqbal, rifle .44 bore P-20 from the appellant-Tariq Hussain and rifle .7MM P-22 from the appellant-Tassaddaq Hussain was the only incriminating evidence, on the disclosure and pointing of the appellants-Manzoor Hussain, Muhammad Iqbal, Tariq Hussain and Tassaddaq Hussain was recovered and taken into possession vide recovery memos. Exh.PT, Exh.PU, Exh.PW and Exh.PX respectively. The appellants-Manzoor Hussain, Muhammad Iqbal, Tariq Hussain and Tassaddaq Hussain were arrested on 11-06-2009. Recoveries from the appellants were effected on 22-06-2009 and 24-06-2009 respectively, whereas, the empties were deposited in the office of Forensic Science Laboratory on 19-06-2009. From the report of Forensic Science Laboratory (Ex.PZZ) it reveals that same is in negative. So, the recovery of the weapon from the accused persons is of no consequence.
92. 28.As far as defence plea is concerned, it is neither supported by any evidence nor is drawn out of the circumstances of the case. However, it is settled principle of law that the prosecution has to stand on its own legs. It was for the prosecution to prove the charge beyond any shadow of doubt.
93. Moreover, the prosecution cannot take any benefit of weakness of defence plea. Reliance is placed on the judgment of the Hon'ble Supreme Court of Pakistan in the case of "Shera Masih and another v. The State" (PLD 2002 SC 643).
94. 29.All the above narrated facts and circumstances lead this Court to only one conclusion that the whole prosecution case seems to be hinging upon conjectures and surmises and it had badly failed to lead incriminating, corroborative/ independent evidence to bring home guilt of the accused persons in the case of capital charge. The learned trial Court was not justified in convicting the appellants while basing upon, such un-trustworthy, un-corroborated evidence and conviction passed by the learned trial Court in the circumstances is against all cannons of law recognized for the dispensation of criminal justice. As per dictates of law, benefit of every doubt is to be extended in favour of the accused. In the case of "Muhammad Akram v. The State" (2009 SCM R 230), it has been held as under: "----Benefit of doubt--Principles--For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts--Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right."
95. 30.It is golden principle of law that the Court should let off 100 guilty but should not convict one innocent person. In the case of "Ayub Masih v. The State" (PLD 2002 SC 1048), it has been held by the Hon'ble Supreme Court of Pakistan that: "----It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in "The State v. Mushtaq Ahmed" (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in 'punishing an innocent".
96. 31.The upshot of the above discussion is that the prosecution had badly failed to bring home charge against the appellants beyond any reasonable doubt, therefore, in the interest of safe administration of Criminal Justice, Crl. Appeal No. 230 of 2011 filed by Tariq Hussain, Muhammad Iqbal, Tasaddaq Hussain, Adeel Iqbal and Manzoor Hussain, the appellants is accepted in toto. The conviction and sentence awarded by the learned Additional Sessions Judge, Chakwal vide judgment dated 18.05.2011 is set aside and the appellants are acquitted of the charge. The appellants-Tariq Hussain, Muhammad Iqbal, Tasaddaq Hussain, Adeel Iqbal and Manzoor Hussain are ordered to be released forthwith, if not required in any other case. <u>Murder Reference No. 29 of 2011 is answered in the negative and the sentence of death awarded to Tariq Hussain son of Resham Khan, Caste Awan, resident of Tehsil Kallar Kahar, District, Chakwal (convict) is Not Confirmed.
97. 32.So far as Criminal Appeal No. 282 of 2011 as well as Crl. Revision No. 143 of 2011 seeking conviction under Section 302(b), P.P.C., of Respondents No. 1 to 12 and Respondents No. 1 & 2 are concerned, for the above-stated reasons, the same have no weight, which are accordingly dismissed.
98. 33.As far as notice qua enhancement of sentence issued by this Court in Cr1. Revision No. 274 of 2012 passed in main Cr1. Appeal No. 230 of 2011 on 13.11.2012 is concerned, the same has been withdrawn which is accordingly disposed of for the reasons recorded in the main Crl. Appeal No. 230 of 2011 of even date.