SARDAR AHMED NAEEM, J.---Rehmat Ali alias Rehma, Sarja, Sooja, Ahmad Din alias Ahma sons of Sardar Ali, Munir Hassan, son of Qamar Din, Muhammad Hussain alias Hassan son of Sooja, Muhammad Hassan son of Sooja and Muhammad Arif son of Jamal Din, appellants along with Munir Ahmad son of Ahmad Din, Sardar Muhammad Ashiq son of Shahab Din, Muhammad Din alias Manda son of Nizam Din, Muhammad Akram son of Muhammad Din, Jehangir Ahmad son of Sardar Ahmad, Shahid Nisar son of Taj Din, Muhammad Ahmad son of Sardar Muhammad Ashiq, Ahmad Din son of Ghulam Muhammad, Muhammad Umar son of Haji Muhammad, Muhammad Hassan son of Sooja and Shahid Nisar son of Taj Din co-accused (since acquitted), were tried by the learned Addl. Sessions Judge, Kasur in a private complaint lodged by Haji Ahmad Din, complainant (PW. 1) being dissatisfied with the investigation of case FIR No,99 dated 12.3.2005, for offences under sections 302, 324, 109, 427, 420, 419, 201, 148, 149, P.P.C. registered at Police Station Khudian, District Kasur, for committing Qatl-e-Amd of Haji Muhammad Sabir, Haider Ali and Sher Muhammad deceased and causing injuries to Ahmad Din complainant, Younas, Asifa Sabir and Zeba Sabir. At the conclusion of the trial vide judgment dated 10.3.2011, learned trial Court acquitted Munir Ahmad son of Ahmad Din, Sardar Muhammad Ashiq son of Shahab Din, Muhammad Din alias Manda son of Nizam Din, Muhammad Ahmad son of Sardar Muhammad Ashiq, Ahmad Din son of Ghulam Muhammad, Muhammad Umar son of Haji Muhammad, Shahid Nisar son of Taj Din co-accused whereas convicted and sentenced the accused/appellants as under:- Sarja, Sooja, Rehmat, Ahmad Din alias Ahma sons of Sardar Ali alias Dara, Muhammad Hussain son of Sooja and Munir Hussain son of Qamar Din appellants:
(i) under Section 302(b) each read with section 149 each P.P.C. and sentenced to death each on three counts each with a direction to pay a sum Rs,1,00,000/-each as compensation to the legal heirs of the deceased, under section 544-A, Cr.P.C. in equal shares, recoverable as arrears of land revenue, in default thereof, to undergo six months S.I. each.
(ii) under sections 419/109, P.P.C. and sentenced to five years R.L each for abetment/conspiracy
(iii) under section 148, P.P.C. and sentence to three years' R.I. each.
(iv) under section 324/149, P.P.C. each and sentenced to ten years' R.I. each with fine of Rs,5,000/- each, in default thereof, to further undergo S.I. for 3 months each with further order to pay jointly 1/3rd of Diyat as Arsh to Ahmad Din complainant and Muhammad Younas PW and to remain in prison till payment.
(v) under section 440/149, P.P.C. each and sentenced to two years' R.I. each with fine of Rs,5000/- each, in default to suffer S.I. for three months each.
Muhammad Hassan and Muhammad Arif:
(i) under section 302(b) read with section 109, P.P.C. and sentenced to life imprisonment each sans any order under section 544-A, Cr.P.C. with benefit of section 544-A, Cr.P.C.
(ii) under section 419, P.P.C. and sentenced to five years each.
All the sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C.
2. Rehmat alias Rehma, Munir Hassan alias Hassan, Sarja, Sooja, Ahmad Din alias Ahma and Muhammad Hussain alias Hassan filed Criminal Appeal No,60-J of 2011, challenging convictions and sentences awarded to them. Muhammad Hassan and Muhammad Arif appellants also filed Criminal Appeal No,59-J of 2011, challenging conviction and sentence awarded to them, Haji Ahmad complainant filed Criminal Appeal No,506 of 2011 against acquittal of Munir Ahmad, Sardar Muhammad Ashiq, Muhammad Din alias Manda, Muhammad Ahmad, Ahmad Din, Muhammad Umer and Shahid Nisar. Haji Ahmad complainant filed Criminal Revision No,335 of 2011 for enhancement of compensation awarded to Sarja, Ahmad Din alias Ahma, Rehmat alias Rehma, Sooja, Muhammaid Hussain, Munir. Hussain and awarding maximum punishment and compensation to respondents Nos,7 to 8 already sentenced for life imprisonment by the learned trial Court. Sardar Ahmad Din complainant has also filed Criminal Appeal No,2200 of 2015 against the acquittal of Muhammad Akram and Jehangir Ahmad accused/respondents. Murder Reference No,186 of 2011 is also before us for confirmation or otherwise of the death sentences awarded to the death convicts. Through this single judgment, we propose to decide all these matters.
3. The complainant reported the incident on 12.3.2005 a about 6.05 p.m. (Exh. PA). During this occurrence, three persons including Haji Sabir Sher Muhammad and Haider Ali lost their lives and Haji Ahmad Din complainant, Younas, Zeba Sabir and Asifa Sabir sustained injuries. The complainant nominated Munir. Ahmad, Jehangir Ahmad, Zulifqar Ali (since dead), Muhammad Akram, Sarja, Muhammad Ahmad, Ahmad Din, Muhammad Umar, Sooja, Rehmat Ali for causing injuries to Haji Muhammad Sabir, Sher Muhammad and Haider Ali deceased whereas Muhammad Hassan, Muhammad Ahmad, Zulifqar, Muhammad Umar, Akram and Hassan fired with their respective firearm weapons hitting the complainant, Younas, Zeba Sabir and Asifa Sabir. Allegedly, Muhammad Din, Muhammad Ashiq and Shahid Nisar (co-accused) hatched conspiracy with their co-accused for the commission of offence. The occurrence took place within the area of village Dholan Haithar.
4. After registration of FIR, Haji Muhammad Qasim S.I. (PW-18) initially investigated the case but he could not arrest any of the accused persons. On 21.3.2005, firstly he obtained warrants of arrest of the accused, thereafter proclamation Exh.PTT/ 1 to Exh.PTT/14 and after completion of proceedings under sections 87/88, Cr.P.C. submitted challan Exh.PW under section 512, Cr.P.C. on 30.3.2005 before the Court. Thereafter, the investigation was entrusted to Ashiq Hussain S.I. (PW-19). He arrested Sarja, Sooja, Ahmad Din alias Ahma, Rehmat Ali and Munir Hussain accused. On 1.7.2005, Rehmat alias Rehma appellant while in police custody disclosed that on the day of occurrence, he was in police custody of Police Station City Raiwind. Sarja appellant disclosed that on the day of occurrence he was in police custody of Police Station Nawan Kot, Lahore. Munir Hussain appellant also took plea that he was in police custody of Police Station City Raiwind. In order to verify about the said disclosures, the S.I. examined the record at Police Station City Raiwind and Police Station Nawan Kot, Lahore. He examined criminal cards of Rehmat Ali and Munir Hussain appellants. It transpired that on the card of Rehmat Ali, there was photo Exh.PYY of Hassan son of Sooja which was secured into possession vide Memo Exh.PZZ. On the card of Munir Hussain appellant, there was photo Exh.PAAA of his brother Naveed which was secured into possession vide Memo Exh.PVVV. The said Hassan and Naveed had themselves got arrested in fake cases under Sections 13 of the Arms Ordinance, 1965 in the names of Rehmat and Munir Hussain. The copies of the said FIRs are Exh.PCCC and Exh.PDDD. He also examined criminal cards of Sarja appellant. It transpired that on the card of Sarja appellant, there was photo of one Arif son of Jamal Din, who got himself arrested in a fake case of 13 of the Arms Ordinance, 1965 and was sent to Camp Jail, Lahore. The S.I. visited Camp Jail, Lahore and inspected the register of entry of the Sarja, who found that instead of Sarja, the photograph of Arif son of Jamal Din was pasted on the register. According to the investigation, Sarja, Rehmat and Munir Hussain fabricated alibi by sending their relatives namely Arif, Hassan and Naveed in jail in cases under Arms Ordinance. He also arrested Arif and Hassan co-accused in the abetment of the occurrence. On 3.7.2005, during investigation, Rehmat appellant while in police custody got recovered 222 bore rifle Exh.P-41 which was taken into possession vide Memo Exh.PEEE.
On the same day, Ahmad Din alias Ahma appellant got recovered Pistol P-45 which was taken into possession vide Memo Exh.PFFF. On the same day, Munir Hussain appellant got recovered Pistol P- 43 which was taken into possession vide Memo Exh.PGGG. On 8.7.2005, Sarja appellant got recovered 444 bore rifle Exh.P-45 which was taken into possession vide Memo Exh.PJJJ. On the same day, Sooja appellant got recovered 12 bore gun P-46 which was taken into possession vide Memo Exh.PKKK. The tractor used during occurrence was also taken into possession vide Memo Exh.PLLL. He also arrested Muhammad Hussain alias Hasan appellant and on 28.4.2007 got recovered Pistol P-48 which was taken into possession vide Memo Exh.PMMM. Besides the investigation made by Ashiq Hussain, S.I. it was conducted by Qamar-uz-Zaman, SSP (Investigation) (CW-1), who found Munir Ahmad, Jehangir Muhammad Akram, Ahmad Din son of Ghulam Muhammad, Zulifqar, Muhammad Umer, Muhammad Ahmad, Muhammad Din son of Nazim Din and Muhammad Ashiq innocent. Being satisfied with the investigation, Haji Ahmad complainant filed a private complaint Exh. PC.
5. In the private complaint, after recording cursory statements of the witnesses, the accused were summoned and charge against them was framed to which, they pleaded not guilty and claimed trial, hence the prosecution evidence was invited.
6. In order to prove its case, the prosecution examined as many as twenty nine witnesses in all and the learned trial Court examined Qamar uz Zaman, SSP (CW-1) who also investigated the case.
7. The eye-witness account was furnished by Haji Ahmad Din complainant (PW-1), Muhammad Younas (PW-7) and Munawar Hussain (PW-17), who supported the prosecution story as mentioned in the private complaint.
8. Medical evidence was furnished by Doctor Muhammad Azam (PW-4), Doctor Hazir Ahmad (PW- 8) and Doctor Mumtaz Ahmad (PW-9). On 12.3.2005, Doctor Muhammad Azam (PW-4) conducted medical examination of Miss Zeiba daughter of Haji Sabir and found the following injuries on his person:-- "INJURIES:
1. A lacerated wound of I x 1/4 cm on frontal part of head, margins of the wound were abraded and muscles were exposed.
2. Lacerated wounds of 1/2 x 1/4 cm total 4 in number on left side of head on frontal part. Wounds were bleeding excessively. Depth was not probed.
Lacerated wound, of 1/4 x 1/4 cm on left side of chest in upper part. Wounds were circular in shape, abraded margins' and depth was not probed.
4. A Lacerated wound of 1/4 x 1/4 cm on left side of chest 7 cm below and on left side of injury No,3. Wound was circular in shape with abraded margins. Depth was not probed."
9. On the same day, he conducted medical examination of Miss Asifa and found the following injuries on his person:- "INJURIES: 1 A lacerated wound of 1/4 x 1/4 cm with surrounding swelling of 1 x 1 cm on forehead, skin was exposed.
2. A lacerated wound of 1/4 x 1/4 cm upper and outer side of right shoulder. Movements were painful. Wound was circular in shape with surrounding abrasion of 1/2 x 1/2 cm. Depth was not probed.
3. A lacerated wound of 3 x 1/2 cm on postlateral side of neck with surround swelling of 4 x 1 c.m. muscles were exposed. X-Ray of left and right shoulder was advised and all the injuries were kept under observation. Wounds were fresh in nature and were caused by firearm weapon."
10. The doctor also conducted medical examination of Muhammad Younas injured and found the following injuries on his person:- "INJURIES: 1) A lacerated wound of 1 x 1/4 c.m. on left shoulder upper side with surrounding swelling of 2 x 1 c.m. Wound was bleedings excessively. Movements were painful and depth was not probed.
2) An abrasion with surrounding swelling of 2 x 2 c.m front of left shoulder.
3) A lacerated wound of 1 x 1/2 cm on left nipple with surrounding swelling of 4 x 4 c.m depth was not probed.
4) An abrasion of 1 x 1 c.m on front of left side of upper part of abdomen. Tenderness was present.
5) An abrasion about 1 x 1/2 c.m on left side of arm outer and lower side.
6) 4 lacerated wounds each 1/2 x 1/2 c.m on dorsum of left hand with contused swelling on hand and fingers, each wound was circular in shape, with abraded margins, depth was not probed.
7) A lacerated wound of 2 1/2 x 1 c.m. on outer side of left knee, muscles were exposed and movements were painful.
8) Contused swelling was present on whole of left thigh.
9) A lacerated wound of 1 x 1/4 c.m. on medial side of left thigh, depth was not probed, 10)A lacerated wound of 1/2 x 1/2 c.m. on dorsal side of left forearm, depth was not probed.
11) Three abrasion of different sizes on left forearm surrounding the injury No, 10.
12) A lacerated wound of 1/2 x 1/4 c.m. on medial side of left eye, muscles were exposed with surrounding swelling of 4 x 4 cm. Eye was clear."
11. Doctor Nazir Ahmad (PW-8) conducted medical examination of Ahmad Din complainant and observed the following injuries:- "INJURIES: 1) A punctured lacerated wound with inverted margins oval in shape, measuring 2 x 1 c.m. was present on superior surface of left shoulder joint over the acromioclavicular joint on probing. It was directed informedially.
2) A lacerated wound measuring 3 x 3/4 x 1/2 cm was present 7 cm above the lateral end of left eyebrow on left frontal area.1
12. Doctor Mumtaz Ahmad (PW-9) conducted post-mortem examination on the dead body of Sher Muhammad deceased on 13.3.2005 and observed as under:-- "INJURIES: 1) A lacerated wound 4 x 1-1/2 c.m. margins inverted 3 c.m. above right eyebrow on the right side outer part of forehead (entry wound).
2) A lacerated wound 1 x 1 cm margins inverted just below right eyebrow (entry wound).
3) A lacerated wound 1 x 1 c.m. on the inner side of left eyebrow (entry).
4) A lacerated wound 1 x 1 c.m. everted margins on the left side of forehead just above left eyebrow and internally communicated with injury No,3.
5) A lacerated wound 1 x 1 c.m. margins everted on the top of head in midline and communicating with injury No,2 (exit).
6) A lacerated wound 1 x 1 can margins everted on the right temporal region 1-1/2 c.m. above right ear (exit).
7) A grazing wound 1-1/2 x 2 c.m. on the right side of face near angle of mouth.
8) An extensive lacerated firearm wound in area 10 x 5 c.m on the left side face, broken bone and tissues was seen through wound. Left eye was damaged. It was result of multiple overlapping wound.
9) Five lacerated wounds in area 8 x 5 c.m. margins inverted and abraded on the front of right shoulder (entry wound).
10) Four lacerated wounds in area 5 x 4 c.m. on the back and outer side of right shoulder communicating with injury No,9 (exit)
11) Three grazing wounds each 2 x 1 c.m. on the outer and middle part of right upper arm.
12) A lacerated wound 1-1/2 x 1 c.m. on the outer and back of right chest 1 1/2 cm below lower border of scapula (exit).
13) A penetrated wound 3/4 x 3/4 cm on the front and left side of abdomen 8 c.m. above and left to umbilicus (entry).
14) A grazing wound 3/4 x 1 c.m. on the back of left hand.
15) A grazing wound 3/4 x 1 c.m. on the inner side of left middle finger.
16) A grazing wound 1 x 1/2 c.m. on the back of left little finger.
17) A lacerated wound 1 x 1 c.m. margins were inverted on the upper part of left lower leg 6 c.m. below knee joint."
In his opinion, death was a result of shock due to haemorrhage and injury to vital organs i,e, brain and liver due to injuries on skull and abdomen which were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and caused by fire arm. The time between the injuries and death was almost immediately and time between death and postmortem was about eighteen hours approximately. Exh.PJ is the correct carbon copy of the postmortem' report and Exh.PJ/1 and Exh.PJ/2 were the diagrams showing the locale of injuries on the dead body which were in his hand and signed by him.
13. On the same day, he conducted autopsy on the dead body of Haji Muhammad Sabir deceased and observed as under: - INJURIES: 1) An extensive lacerated wound 8 x 3 c.m. margins inverted brain matter and plastic cardvad was found through the wound. Wound was on the left side of head in left tempo parietal region 4-1/2 c.m. above left ear (entry) Card vad was removed and sealed in glass phial.
2) A ep of distorted twisted bullet jacket was seen on the left side of neck which was recovered by skin incision and sealed in glass phial. It was only muscle deep.
3) A lacerated wound 1 x 1 c.m margins inverted on the left side chin lower part (entry).
4) A lacerated wound 1-1/2 c.m x 1 cm margins everted near the angle of mouth on left side and on probing communicating with injury No,3 (exit).
5) Three lacerated wound each 1 x 1 c.m. in area 6 x 3 c.m. on the back of left shoulder upper part in area between shoulder and neck (exit).
6) Five penetrating wounds with abraded margins in area S x 5 c.m. on the outer and back of left upper arm (entry).
7) Two lacerated wounds each 1 x 1 c.m. and 1-1/2 x 1 c.m. and on probing communicating with each other on the outer side of left upper arm just below and outer to injury No,6. (entry and exit).
8) A metallic foreign body was felt and the metallic pellet was recovered by skin incision from outside on the back of left shoulder and sealed in glass phial.
9) A penetrating wound 1 x 1 c.m. just above the inner part of left clavicle (entry).
10)A lacerated wound 2 x 2 c.m. margins everted on the outer of left chest 15 c.m. below axilla near the mid axillary line (exit).
11)A lacerated wound 1 1/2 x 1 c.m. on the left side of chest and abdomen 13 c.m. below and medial to left nipple (entry).
12)Two adjacent wounds each 2 x 3 c.m. in area 6 x 4 c.m. on lower most part of left abdomen just above inguinal region. Lops of small intestine and omentiem were coming through the wound on removing loops the margins of wound were abraded and bluish (entry).
13)A lacerated wound 2-1/2 x 1 c.m. on the outer side of left abdomen 1-1/2 can back to injury No,11 (exit).
14)A lacerated wound 2 x 1-1/2 c.m. on the back of left abdomen and loin just above left buttock crease. (exit).
15)An extensive lacerated wound in an area 5 x 4 c.m. formed by multiple injuries with abraded margins on the back and middle of left buttock (entry).
16)A lacerated wound 3/4 x 3/4 cm muscle deep on the back of left thigh upper part with metallic foreign body felt and distorted bullet was removed by forceps and squeezing and sealed in glass phial."
In his opinion, death was a result of shock due to haemorrhage and injuries to vital organs i,e, brain, heart, liver and kidney which were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and caused by fire arm. The time between the injuries and death was immediate and time between death and postmortem was nineteen hours approximately. Exh.PK was the correct carbon copy of the postmortem report and Exh.PK/1 and Exh.PK/2 were the diagrams showing the locale of injuries on the dead body which were in his hand and signed by him.
14. On the same day, the doctor conducted autopsy on the dead body of Haider Ali deceased and observed as under: "INJURIES:
1. Five penetrating wounds in the area of 5 x 3 c.m. each 3/ 4 x 3/4 c.m margins inverted on the outer and back side of left chest 7 c.m. below scapula border (entry).
2. A grazing wound 8 x 3 c.m on the back of right chest upper part.
3. A penetrating wound 3/4 x 3/4 cm on the back of left chest upper part 3 c.m from injury No,2 (entry).
4. A lacerated wound 1 x 1 cm margins everted on the back of right chest. Lower part 5 can from midline (exit).
5. A lacerated wound 3/4 x 3/4 c. m on the outer of right chest in mid axillary line, margins everted (exit).
6. A lacerated wound 6 x 3 c.m bone deep on the back of right forearm near elbow joint. Elbow joint was visibly damaged through the wound (entry and exit).
7. A grazing lacerated wound 3-1/2 x 2-1/2 c.m. on the right upper arm middle part outer side.
8 A grazing wound 4 x 1-1/2 c.m on the back of right hand."
In his opinion, death was a result of shock due to haemorrhage and injury to vital organs i,e, lung and liver which were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and caused by fire arm. The time between the injuries and death was almost immediate and time between death and postmortem was about twenty one hours approximately.
Exh.PL was the correct carbon copy of the postmortem report and Exh.PL/ 1 and Exh.PL/ 2 were the diagrams showing the locale of injuries on the dead body which were in his hand and signed by him.
15.Irfan Ahmad (PW-13) son of the complainant was witness of recoveries of weapons of offence allegedly recovered from Rehmat, Ahmad Din and Munir Hussain appellants. He was also witness of abetment being hatched by Muhammad Din and Muhammad Ashiq accused. Farooq Ahmad (PW-15) besides being witness of recovery of Pistol from Hussain appellant was a witness of abetment of the accused by Muhammad Din and Muhammad Ashiq accused.
16.Sardar Ali (PW-16) was witness of recovery of rifle and gun from Sarja and Sooja appellants.
17.Ch. Muhammad Ashraf, Deputy Superintendent of Kot Lakhpat Jail, Lahore (PW-22) gave evidence regarding alibi of three accused persons.
18.Abdul Jabbar (PW-24) was a Photographer who had taken photographs of the Jeep (Exh.P29) on the direction of Muhammad Qasim, S.I.
19.Qalab-e-Abbas S.I. (PW-25) stated that on 5.3.2005, he while posted at Police. Station City Raiwind, arrested a suspected person who disclosed his name to be Munir Hussain son of Qamar Din. He also recovered unlicensed Pistol from his possession. On the same day, Shaukat Ali (PW-26) also arrested a suspected person who disclosed his name to be Rehmat Ali and unlicensed revolver was recovered from his possession. On 12.3.2005, Muhammad Ashiq S.I. Police Station Nawan Kot, Lahore (PW27) also arrested a suspected person with unlicensed Pistol who disclosed his name to be Sarja. All the above mentioned three accused persons could not produce licenses, therefore, cases under Sections 13 of the Arms Ordinance, 1965 were got registered against them and their photographs were also obtained.
20.Khadim Hussain Bhatti, Assistant Superintendent Jail (PW-28) deposed that three accused persons namely Rehmat, Munir Hussain and Sarja were admitted in jail, their thumb impressions and photographs were obtained.
21.Muhammad Rafique S.I. (PW-29) prepared injury statement of four injured persons.
22.The prosecution while tendering in evidence reports of Chemical Examiner Exh.P000, Exh.PPPP and Exh.PQQQ and reports of Forensic Science Laboratory Exh.RRR and Exh.PSSS close its case.
23.After close of the prosecution evidence, the appellants along-with their co-accused were examined under section 342, Cr.P.C. They refuted the allegations attributed to them and pleaded innocence. Replying to a question No,23 "why this case against him and why the PWs deposed against him", appellant Sarja deposed as under:-- "This false case has been registered against me and all other male members of my family at the behest of Ashraf and Arshad nominated accused in the murder of my brother Muhammad Din alias Mandha who according to the complainant took him to hospital. We were having no animus against the deceased persons and thus we are facing this protracted trial since our arrest. The PWs deposed against me due to enmity and relationship inter-se."
24.Ahmad Din alias Ahma, appellant in reply of Question No,20 deposed as under:-- "I was present at my residence house situated in village Najabat which is about 20-KM away from the alleged place of occurrence. My brother Rehmat, false evidence has been produced in order to involve all male family members in this false case. All the PWs are related inter-se and are inimical towards me, thus they deposed falsely."
25.Rehmat alias Rehma, appellant in reply to Question No,22 deposed as under:-- "This false case has been registered against me and all other male members of my family at the behest of Ashraf and Arshad nominated accused in the murder of my brother Muhammad Din alias Mandha who according to the complainant took him to hospital. We were having no animus against the deceased persons and thus we are facing this protracted trial since our arrest. The PWs are related inter-se and are inimical towards us"
26.Sooja appellant in reply to Question No,20, deposed as under: "I was present at the alleged time of occurrence at my residential house situated in village Saddar which is at a distance of 30-KM from the alleged place of occurrence as such was not present at the spot. I along-with other male family members have been involved at the behest of Ashraf and Arshad. The PWs deposed against me due to relationship inter-se and enmity."
27.Muhammad Hussain appellant in reply to Question No,20 deposed as under: "This false case has been registered against me and all other male members of my family at the behest of Ashraf and Arshad nominated accused in the murder of Muhammad Din alias Mandha who according to the complainant took him to hospital. We were having no animus against the deceased persons and thus we are facing this protracted trial since our arrest. All the PWs are related inter-se and are inimical and deposed false"
28.Munir Hussian appellant in reply to Question No,22 deposed as under: "I have involved in this case due to relationship with Sarja etc. This false case has been registered against me and all other male members of my family at the behest of Ashraf and Arshad nominated accused in the murder case of Muhammad Din alias Mandha who according to the complainant took him to hospital. We were having no animus against the deceased persons and thus we are facing this protracted trial since our arrest. The PWs deposed falsely as they are related inter-se and also inimical"
29.Arif appellant in reply to Question No,7 deposed as under: "I was present at my residence house situated at Bacierkay village and I have been involved in this case just to shatter the plea of alibi of Sarja co-accused."
30.Muhammad Hassan appellant in reply to Question No,7 deposed as under: "I along-with all other male family members have been involved in this false case at the behest of Arshad and Ashraf who are Sala of the complainant and who according to the complainant took him to the hospital after the alleged incident. I am facing the agony of this protracted trial since my arrest"
Appellants Sarja, Rehmat alias Rehma and Munir Hassan opted to appear as their own witnesses under section 340(2), Cr.P.C. and produce evidence in their defence whereas, remaining appellants did not opt to appear as their witnesses under section 340(2), Cr.P.C. nor produce some evidence in their defence. Rehmat alias Rehma, appellant only produced documentary evidence in his defence vide his statement dated 17.2,2011 whereas, Sarja and Munir Hussain endorsed the documentary evidence adduced by his co-accused Rehmat alias Rehma. However, all the three appellants did not appear as their own witnesses under section 340(2), Cr.P.C. and closed their defence evidence vide their statements dated 21.2.2011.
31.Learned counsel for the appellants contends that their co-accused including Munir Ahmad, Jahangir, Muhammad Akram, Ahmad Din son of Ghulam Muhammad, Zulfiqar, Muhammad Umer, Muhammad Ahmad, Muhammad Din son of Nizam Din and Muhammad Ashiq were declared innocent during the first investigation; that the prosecution case rests on the statements of the eye-witnesses including Haji Ahmad Din, Muhammad Munawar and Muhammad Hassan sons of Haji Wali Muhammad and the complainant, all are closely related inter-se as well as with all the three deceased and as the complainant earned acquittal in a case wherein father of Munir Ahmad and Jehangir accused was murdered, thus, have motive to falsely implicate the appellants in the present case; that they were interested witnesses; that the occurrence took place on a thoroughfare and no independent witness was cited by the prosecution; that the story as described by the eye-witnesses was not in consonance with the probabilities; that the tractor trolley was not taken into possession; that no blood was obtained by the Investigating Officer from inside the Jeep, then being driven by the complainant and instead of that, the Investigating Officer had the photographs; that the occurrence took place inside the Jeep wherein, three persons lost their lives and four sustained injuries and it was difficult for a driver being fired at from different sides to memorize the occurrence or to describe the story with mathematical precision; that two injured Zeba and Asifa were not produced during trial; that they are interested witnesses; that all the eyewitnesses were not truthful and they were only chance witnesses as admittedly Muhammad Munawar and Muhammad Hassan PWs were residing at a distance of about 6/7 kilometers from the place of occurrence and they failed to show any just reason for their presence at the crime scene; that section 419, P.P.C. was neither made out nor attracted; that co-accused of the appellants were acquitted on the same set of evidence and it was difficult to decipher the case of the appellants from their acquitted co-accused; that no independent corroboration was forthcoming on the record and thus, the appellants were also to be treated alike; that the ocular account was belied by the medical evidence; that the false recoveries were planted upon the appellants; that the prosecution evidence was full of contradictions/doubts; that the motive was not proved; that the prosecution evidence was not sufficient for conviction of the appellants; that the case of prosecution was full of doubts and a fit case for acquittal of the appellants while accepting their appeals and the impugned judgment being based on surmises and conjectures, is liable to be set aside.
32. Conversely, learned Deputy Prosecutor General assisted by the learned counsel for the complainant opposed the above said appeals on the ground that the FIR was lodged immediately after the incident and specific roles were ascribed to the appellants; that the statements of the eye-witnesses were supported by the medical evidence; that the motive was also proved; that the minor contradictions pointed out by the learned counsel for the appellants were not sufficient for their acquittal; that the prosecution evidence was inspiring confidence, sufficient to connect the appellants with the commission of the crime; that the co-accused of appellants hatched up a conspiracy and, resultantly, the appellants committed Qatl-e-Amd of three innocent persons, through their brutal act in a cold blooded manner and injured Ahmad Din, Muhammad Younas, Zeba and Asifa PWs; that there was admitted enmity between the parties; that all the appellants were armed with their respective weapons and got recovered those weapons during the investigation; that the number and locale of injuries Sustained by all the deceased suggested that this episode was result of preconcert; that the mere relationship of the witnesses inter-se/with the deceased was not a ground to discard their evidence; that the witnesses withstood the test of cross-examination firmly but no favrouable material was extracted by the defence; that as the co- accused of the appellants were declared innocent during the investigation, thus, the complainant filed a private complaint and reiterated the narratives of the FIR; that section 419, P.P.C. was fully attracted as Hassan and Arif accused got themselves arrested by way of impersonation and, thus, rightly held guilty; that there was sufficient convincing material available on the file that the appellants with their co-accused committed murder of Haji Muhammad Sabir, Haider Ali and Sher Muhammad and caused injuries to the above said injured persons; that the normal penalty provided for the offence of Qatl-e-Amd was death; that the prosecution has proved its case against the appellants beyond reasonable doubt, thus, the appeals merit dismissal.
33. In Criminal Appeal No,506 of 2011 and Criminal Appeal No,2200 of 2015 (appeals against acquittal ) learned counsel for the appellant/ complainant also argued that the learned trial Court has acquitted Muhammad Akram son of Muhammad Din, Jahangir son of Sardar Ahmad; Munir Ahmad son of Ahmad Din, Sardar. Muhammad Ashiq son of Shahab Din, Muhammad Din alias Manda son of Nizam Din, Muhammad Ahmad son of Sardar Muhammad Ashiq, Ahmad Din son of Ghulam Muhammad, Muhammad Umar son of Haji Muhammad, Shahid Nisar son of Taj Din (respondents) without considering the material available on record and the impugned judgment was the outcome of misreading and non-reading of evidence. Learned counsel further argued that the ocular testimony had fully supported the case of prosecution and all the eyewitnesses stated in clear terms that the accused (respondents) while armed with their respective weapons, committed brutal murders and caused injuries to Zeba, Asifa, Haji Ahmad Din and Muhammad Younas. He further contended that so far as the belated postmortem and medical evidence was concerned, the complainant and the injured witnesses were first referred to THQ Chunian, then to Lahore General Hospital and thereafter, to Jinnah Hospital, Lahore for treatment, thus, delay in postmortem examination was immaterial; that all the prosecution witnesses were the natural witnesses and mere relationship of the prosecution witnesses with the complainant and the deceased was no ground for treating the witnesses interested; that the prosecution proved that Arif and Hassan conspired and their co-accused committed Qatl-e-Amd of. the three deceased on a thoroughfare in a brutal manner but the learned trial Court acquitted the co-accused- respondents for extraneous reasons; that reasons given by the learned trial Court for the acquittal of the respondents were artificial and sketchy, caused miscarriage of justice and, thus, impugned judgment cannot be sustained.
At this stage, learned counsel for the respondents (since acquitted) raised an objection that as the respondents were acquitted in a case instituted on a private complaint, thus, petition for special leave to appeal should have been filed as directed by subsection (2) of section 417, Cr.P.C. and the instant appeal could have been filed subject to the grant of special leave to appeal. Learned counsel for the respondents maintained the validity of the impugned judgment and submitted that the Court would not interfere with the acquittal merely because on re-appraisement of the evidence it can come to a conclusion different from that of the Court acquitting the accused provided that both the conclusions are reasonably possible; that when the accused earns acquittal from a Court of competent jurisdiction, then double presumption of innocence is attached to its judgment which is not ordinarily interfered with by the superior Courts unless the impugned judgment is arbitrary, capricious and fanciful; that the law relating to appreciation of evidence in appeal against acquittal is stringent and the presumption of innocence is doubled and multiplied after a finding of not guilty recorded by a competent Court of law; that the learned trial Court has acquitted the respondents after full-fledged trial and considering/ discussing the prosecution evidence minutely and as the petitions for special leave to appeal have not been filed, thus, appeals are liable to be dismissed on this score also.
34.Mr. Zahid Hussain Bokhari, learned counsel for the appellant argued that under subsection 2(A) of section 417, Cr.P.C, inserted through Act XX of 1994, any person aggrieved of an order of acquittal could prefer an appeal to this Court against such acquittal within thirty days of the order without applying for special leave to appeal. He contended that the appellant was an aggrieved person and as the appeals were instituted within the statutory period, thus, maintainable 35.We have lent our ears to the arguments of the respective counsel, perused the record and have made detailed exegesis of the case law.
36. After survey of the prosecution evidence, it can safely be concluded that the ocular testimony was not inspiring confidence as it was quite strange to describe such occurrence with minute details. The occurrence in this case took place, on-12.3.2005 at 5.30 p.m. within the area of Dholan Hathar, Chunian, Kasur. The complainant was resident of said Mauza and was coming from "Satwan" of one Mahna along with Haji Muhammad Sabir Hussain, Sher Muhammad, Haider Ali, Muhammad Younas, Zeba and Asifa. The complainant was driving the Jeep having Haji Muhammad Sabir and Haider Ali on front seat whereas, Sher Muhammad, Muhammad Younas, Zeba and Asifa were sitting on the rear seats. When they reached within the area of Dholan Hathar, were intercepted by a tractor trolley and all the accused nominated in the FIR concealed themselves behind the said trolley and then opened fire hitting the said Jeep No,881/ BRB from front, rear side and on right/ left doors. It was in the evidence that front and rear wind screens/ window panes were broken. The occurrence was completed inside the Jeep. The injured including Haji Muhammad Sabir, Haider Ali, Sher Muhammad, Muhammad Younas, Zeba and Asifa were taken out of the Jeep by Muhammad Irfan, Muhammad Farooq sons of the complainant. All the three deceased, succumbed to their injuries then and there. The complainant was dispatched to THQ Chunian, then referred to Lahore General Hospital and afterward to Jinnah Hospital, Lahore.
However, on his way to hospital, he got recorded the FIR nominating the appellants and their co- accused with their respective roles. He himself sustained two injuries on his person during the occurrence. After recording the FIR, he left for hospital and stayed in Jinnah hospital for about 10/ 15 days. At this stage, it may be mentioned that Haji Qasim (PW.15) deposed that he received complaint dispatched by the complainant through Muhammad Irfan at 6.00 p.m and he met the complainant at Larri Adda and then, he proceeded to the place of occurrence, thus, contradicted the complainant.
All the three deceased/ injured were related. Haji Muhammad Sabir was the sala of the complainant. Whereas, Sher Muhammad was sala of Haji Muhammad Sabir and Haider Ali was son of Haji Muhammad Sabir. The complainant-deceased/injured were being followed by Muhammad Hassan and Muhammad Munawwar and they were coming on their motorbikes and had witnessed the occurrence from a distance of about 50/ 100 feet. They were also closely related to the deceased Haji Muhammad Sabir, Sher Muhammad and the complainant, who at trial being PW.1 deposed against the accused-appellants as under: "On 12.03.2005 at about 5.30 p.m., I along with Haji Muhammad Sabir, Sher Muhammad, Muhammad Younas, Haider Ali son of Haji Sabir Ali aged 5-6 years, Zeba Sabir daughter of Haji Sabir aged 12 years, Asifa Sabir aged 8-9 years, we were going on Suzuki Jeep owned by me bearing registration No, BRB-881 from Khudian towards Baqarkay. I was driving the said Jeep.
Muhammad Munawar and Muhammad Hassan sons of Haji Wali Muhammad were coming on a motorcycle at a distance of 100 feet behind us. When we reached while crossing village Dholan village ahead about 8-9 acres on the way tractor troola was standing on the way. The persons were standing while talking shelter of trolla and concealing themselves. That since the trolla was parked on a road and the Jeep was stopped near the trolla. Accused persons namely Munir Ahmad armed with 222 rifle, Jahangir Ahmad was armed with 44 bore rifle, Muhammad Akram was armed with 44 bore rifle, Zulfiqar Ahmad (since dead) was armed with pump action 12 bore, Muhammad Umar armed with 12 bore gun double barrel accused Zulfiqar and Muhammad Umar are sons of Haji Muhammad). Ahmad Din son of Ghulam Muhammad was armed with rifle, Muhammad Ahmad son of Muhammad Ashiq was armed with rifle, Serja son of Dara armed with 44 bore rifle, Ahmad Din son of Dara armed with 12 bore pump action, Rehmat Ali alias Rehma son of Dara was armed with rifle, Suja son of Dara was armed with 12 bore gun, Munir Hussain alias Hassan son of Qamar Din was armed with 30 bore pistol, Muhammad Hussain alias Hassan son of Suja was armed with pistol 30 bore emerged and came in front of us. Munir Ahmad accused present in the Court raised lalkara that Haji Sabir, Haji Ahmad Din (myself) and Sher Muhammad be not spared and Munir Ahmad fired with his rifle 222 bore, which inflicted at the left side of the head of Haji Sabir, Munir Ahmad accused made a second fire which inflicted at the left side of neck of Haji Sabir. Thereafter Jahangir accused present in the Court fired with his rifle which hit at the left flank of Haji Sabir. Akram accused present in the Court made a fire which hit at left side of head of Haji Sabir. Zulfiqar accused since died made a fire with his pump action which hit Haider Ali on his left flank. Thereafter Akram accused made a fire which inflicted at the back of right hand of Haider Ali. Serja accused present in the Court fired which inflicted at Sher Muhammad on right side of head. Suja son of Dara accused present in the Court made a fire which hit at right side of the face of Sher Muhammad. Thereafter, Rehmat Ali alias Rehma son of Dara made a fire shot with his rifle which inflicted at left cheek of Sher Muhammad, Ahmad Din son of Dara accused made a fire which inflicted at the right hand of Sher Muhammad. Ahmad Din son of Ghulam Muhammad made a fire which inflicted at the right shoulder of Sher Muhammad. Muhammad Ahmad accused made a fire which inflicted at the below of left knee of Sher Muhammad. Muhammad Umer accused made a fire which hit Sher Muhammad on left wrist joint back side of Sher Muhammad. Muhammad Hussain alias Hassan son of Suja made a fire with his pistol 30 bore which inflicted at my forehead.Muhammad Ahmad son of Muhammad Ashiq fired with his rifle which inflicted at my left shoulder, on front side. Zulfiqar Ahmad accused since died made a fire which inflicted at Muhammad Younas on his left leg. Muhammad Umar accused made a fire which inflicted at the left hand and arm of Muhammad Younas. Muhammad Akram accused present in the Court made a fire which inflicted at the front side of left shoulder. Munir Hussain alias Hassan son of Qamar Din fired with his pistol 30 bore, which inflicted at the chest of Zeba Sabir. Ahmad Din son of Dara Zulfiqar Ahmad fired with their respective weapons which inflicted on different parts of the body of Zeba Sabir and Asifa Sabir. In the meanwhile, Muhammad Munawar and Muhammad Hassan also reached at the place of occurrence and witnessed the whole occurrence, and due to the above mentioned firing Haji Muhammad Sabir, Sher Muhammad and Haider succumbed to the injuries at the spot.
The record divulges that tractor trolley in this case was not taken into possession from any accused, rather, it was taken into possession on 29.3.2005 from one Abdul Ghaffar, when the tractor was parked in a workshop run by one Abdul Majeed in Chak No,78 Adda Khano Ana. It may also be observed that the episode was enacted/ completed inside the Jeep but no blood was taken into possession from the said Jeep, however, the blood lying underneath cots was taken into possession whereupon Sher Muhammad and Haji Muhammad Sabir were lying and from the place where Haider Ali was lying, thus, place of occurrence was not convincingly established by the prosecution. The scrutiny of prosecution evidence reflects the falsity of eye-witnesses as the occurrence was committed within a few minutes, it was humanly impossible to provide such minute details in such a photographic manner or to assign the specific role and furnish detailed description of the same, would rather infer to falsely rope in the accused persons, as such, lodging of the FIR with such minutest details of the case rules out the possibility of truthfulness, and narratives of the FIR suggest the exaggeration and improvements made by the eye-witnesses admittedly inimical towards the appellants.
37. In criminal jurisprudence, the general rule of appreciation of evidence is that want of interest or absence of enmity does not stamp the statement of a particular witness with presumption of truth and that much depends on the intrinsic value of the statement of a witness. The real tests are that
(i) whether the statement of a witness is in-consonance with the probabilities (ii) whether it fits in with the other evidence and (iii) whether it inspires confidence in a common prudent mind, if these elements are present, the statement of a worst enemy of an accused can be accepted and relied upon without corroboration but without these elements the statement of a pious man can be rejected out-rightly. In "Muhammad Saleem v. The State" (2010 SCM R 374) at page 377, the apex Court was pleased to observe as under: ".........General rule is that statement of a witness must be inconsonance with the probabilities fitting in the circumstances of the case and also inspires confidence in the mind of a reasonable and prudent mind. If these elements are present, then the statement of a worst enemy of the accused, can be accepted and relied upon without corroboration but if these elements are missing then the statement of a pious man can be rejected without second thought. Reference is invited to Haroon alias Harooni v. The State and another 1995 SCMR 1627. The acid test of veracity of a witness is the inherent merit of his own statement. It is not necessary that an impartial and independent witness, who is neither related to the complainant nor inimical towards the accused would stamp his testimony necessarily to be true. The statement itself has to be scrutinized thoroughly and it is to be seen as to whether in the circumstances of the case the statement is reasonable, probable or plausible and could be relied upon. The principle, that a disinterested witness is always to be relied upon even his statement is unreasonable, improbable and not plausible or not fitting in the circumstances of the case then it would lead to a very dangerous consequences. Reference is invited to Muhammad Rafique v. State 1977 SCMR 454 and Haroon v. The State 1995 SCMR 1627"
38. The complainant was dispatched to THQ Chunian by his sons on their car neither produced during the investigation nor taken into possession. The complainant has shown ignorance if his blood stained clothes were taken into possession. He claimed to have sustained a firearm injury on his forehead (injury No,2) and according to the medico legal report, this injury was caused by blunt weapon. Muhammad Younas was the other injured PW. In his statement recorded under section 161, Cr.P.C. mentioned three injuries and did not assign the reason of reporting three injuries. According to the medico legal report, he sustained fifteen injuries. He was seriously injured and was also shifted to the hospital by the sons of the complainant. If Ahmad Din has reported the incident to police prior to his moving to THQ Chunian, why the injured were not shifted to THQ by police and how did the sons of the complainant emerged at the crime scene, there was no plausible explanation. The Jeep was then being driven by the complainant having fire shots/ marks on its different sides but when the case property was produced during trial, no such fire mark was there and the complainant explained that he got repaired the said Jeep, meanwhile. No seat, seat cover or foot mat lying inside the Jeep were taken into possession during the investigation, however, the Investigating Officer took the photographs of the crime scene. The place of occurrence was a thoroughfare, a road, ten feet in width. It was main road of the Mauza, 8/10 acres before Dholan Hathar. No body had witnessed the occurrence as deposed by the complainant during the investigation except PWs. The complainant reported a single fire shot which hit Muhammad Younas injured PW which is also belied by the medical evidence, whereas, Zeba and Asifa were not produced during trial. The parties had strong enmity. They were facing trials in different cases registered against each other.
The complainant was a political figure of the area. He was Nazim of a Union Council (Rajo Nau) in 2001. Muhammad Younas was the councilor. However, the complainant lost his election in the year 2005 against one Asghar Ali. The parties have different political affiliations as well. Undeniably, Sarja, Sooja, Rehmat alias Rehma and Ahmad Din alias Ahma were brothers while their co-convicts were from the same brotherhood. Previous enmity existed between the parties regarding murders of Muhammad Din and Manda. Criminal cases were registered against the complainant party.
Hence, it was established on the record that both the parties were inimical to each other.
39. All the eye-witnesses were inimical towards the appellants. There was no evidence toprovide independent corroboration to their statements in absence, thereof, it is not safe to rely upon the oral statements of the eye-witnesses alone. To maintain the convictions of the appellants in a case of capital charge, no doubt, finding of the police is not binding on the Court but it also cannot be ignored that co-accused of the appellants mentioned in the above paras were declared innocent during the first investigation. On the other hand, against the appellants, there was only evidence furnished by the interested witnesses. The possibility cannot be ruled out that it was un witnessed occurrence and the appellants were involved in the present case due to previous enmity.
The medical evidence alone does not provide independent corroboration to the ocular account.
The medical evidence can never be primary source of evidence for the crime itself but is only corroborative which may confirm the ocular evidence with regard to the seat of injury, nature of injury and kind of weapon used in the occurrence and it cannot connect the accused with the commission of crime. As mentioned above injury No,2 sustained by the complainant is belied by the medical evidence. The injured Muhammad Younas sustained single firearm injury at the hands of assailants whereas, medical officer observed fifteen injuries on his person. He himself deposed that he reported only three injuries. On the element of conflict between the ocular and the medical evidence, it was held by the apex Court in the case "Bagh All v. Muhammad Anwar and another"
(1983 SCM R 1292) that prosecution and not the accused is obliged to clarify the position when there is apparent contradiction in medical report and ocular testimony. It was held in case "Sardar Bate v. The State" (1978 PCr.L,J 690) that if only eye-witness stands clearly belied by the medical evidence, then in those circumstances, the medical evidence is to be preferred and further, it would be highly dangerous to rely upon the evidence of such witness for the purpose of conviction.
In the case of "Gul Nawab Khan v. The State" reported in PLD 1980 Peshawar 193, it was held that generally the evidence of the doctor is considered to be independent and more reliable and in case of conflict can be given preference with the ocular evidence. Even otherwise, it is settled law that injuries of PW are only indicative of his presence at the spot but are not affirmative proof of his credibility and truth. Ref: "Muhammad Pervez and others v. The State and others" (2007 SCM R 670) and "Nazi?. Ahmad v. Muhammad labal and another" (2011 SCM R 527).
40. The reasons for the outbreak of this episode were that father of Munk Hassan and Jehangir accused, namely, Muhammad Din was done to death and the complainant along-with his co- accused was nominated being accused in that case and ultimately they were acquitted by the learned trial Court. Appeal against their acquittal was dismissed, however, special petition for leave to appeal was admitted to regular hearing by the apex Court suggested by the evidence available on record. Another reason mentioned by the complainant was that Manda son of Dara was murdered and Sarja etc had suspicion that the accused of that case were supported by the complainant and H2ji Muhammad Sabir.
It may be mentioned that Manda son of Dara was father of Muhammad Din accused, who abetted the occurrence, however, acquitted by the learned trial Court. The complainant admitted during the cross-examination that he was informed about the abetment after this occurrence by Muhammad Ashiq son of Rehmat Ali (PW.14) and Farooq Ahmad (PW.15) who could not inform regarding said conspiracy/ abetment to the complainant as they could not meet with each other.
No date, time and place of abetment find mentioned in the statement of the prosecution witnesses. Motive is always a double edged weapon. If the convicts-appellants had motive to murder the deceased, the eye-witnesses had also motive to falsely implicate the appellants in this case.
During the investigation, all the six appellants got recovered following weapons from their houses.
Details are given below: Name Weapon Place/date of recovery.Exhibit Rehmat alias Rehma222 bore rifle Residential room of his house.
03.7.2005P.41 Ahmad Din alias Ahma12 bore pump actionResidential room of his houseP.42 Munir Hussain alias Hassan30 bore pistol Room of his house 03.7.2005 Serja Rifle 44 bore Residential room of his house 08.7.2005P.45 Suja 12 bore gun Residential room of his house 08.7.2005P.46 All the above recoveries lent no support to the prosecution as no evidence was produced to establish that the places of recovery were in exclusive possession of the accused-appellants. It was not proved that those houses were locked, who was occupying those houses at the time of recovery and who was in possession of the keys and how it was unlocked. A similar question came up before their lordships in case "Muhammad Asif v. The State" (2017 SCM R 486) and the relevant observations of their lordships appearing in para. 17 at pages 492-493 read as under: "17....It is, normal practice and conduct of culprits that when they select night time for commission of such crime, their first anxiety is to conceal their identity so that they may go scot-free unidentified and in that course they try their level best to conceal or destroy each piece of evidence incriminating in nature which, might be used against them in the future thus, human faculty of prudence would not accept the present story rather, after committing crime with the dagger, the appellant could throw it away anywhere in any field, water canals, well or other place and no circumstances would have chosen to preserve it in his own shop if believed so because that was susceptible to recovery by the police."
The recovery memo Exh. P.S. P.7/1-15, P.8/1-6, P.9/1-2, P.10/1-2, P.11/1 and P.12 reveal that Investigating Officer took crime empties into possession from the crime scene but column No,23 of all the inquest reports was blank.
41. So far as, allegation of section 419, P.P.C. is concerned, the charge was framed against Arif, Hassan and Naveed. They got themselves confined in jail in different cases for the plea of alibi posing themselves as Sarja, Munir Hussain and Rehmat Ali, Arif, appellant personated Sarja, Hassan being Munir Hussain and Naveed for Rehmat Ali. No date, time/place of occurrence was mentioned in the charge which is violative of section 232, Cr.P.C. Even otherwise, in order to attract section 419, P.P.C., it is necessary to show that personation caused or was likely to cause damage or harm to someone in body, mind, reputation of property. It may also be mentioned that damage or harm to the mind does not mean, mental embarrassment but the injury to the mental faculty or mental pain i,e, a situation where a person is mentally harmed in some serious manner by the personation.
There is no evidence brought on the file to establish that who was damaged or harmed with the act of personation attributed to the said appellants. There are certain other admissions made by the Investigating Officer (PW-19). He has admitted during the cross-examination that he visited jail on his own and got no permission from any authority to check the record of jail. He recorded no entry in jail regarding such visit and no formal permission was sought for by the Investigating Officer under the rules from the District Police Officer. Regarding personation of Sarja etc. no formal permission was obtained from Illaqa Magistrate. No evidence was brought on the file that the appellants including Arif and Hassan acted fraudulently or that their act was likely to cause damage or harm to someone's reputation. In this case, one of the general element to make out a case of cheating is also not there. Even the FIR was silent about this charge, however, charge under section 419, P.P.C. was framed by the learned trial Court. In these circumstances, we have no hesitation to hold that the prosecution failed to prove the charge under section 419, P.P.C. against the appellants.
42. The learned trial Court acquitted Munir Ahmad son of Ahmad Din, Sardar Muhammad Ashiq son of Shahab Din, Muhammad Din alias Manda son of Nizam Din, Muhammad Ahmad son of Sardar Muhammad Ashiq, Ahmad Din son of Ghulam Muhammad, Muhammad Umar son of Haji Muhammad, Shahid Nisar son of Taj Din co-accused meaning thereby that the ocular account to the extent of said co-accused who actively participated in the occurrence. The law on the point is settled that if the private witnesses produced by the prosecution are disbelieved to the extent of same accused with specific attribution, then j the said eye-witnesses cannot be relied upon for convicting the other accused attributed a similar role, without availability of independent corroboration to the extent of such accused which is not forthcoming in this case. Reference in this respect can be placed on "Sarfraz alias Sappi and 2 others v. The State" (2000 SCM R 1758), "Shahbaz v. The State" (2016 SCM R 1 763) and "Sardar Bibi and another v. Munir Ahmed and others"
(2017 SCM R 344.)
43.It is settled by now that onus of proof in criminal cases never shifts and it is for the prosecution to prove its case against the accused beyond reasonable doubt. It is also well-settled law that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to extend benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubts about the prosecution story. In "Tariq Pervez v. The State" (1995 SCM R 1345), the Hon'ble Supreme Court of Pakistan, at page No,1347, was pleased to observe that the concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then, the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right. The apex Court reiterated the same principle in the case of "Muhammad Akram v. The State" (2009 SCM R 230).
44.In this case, the prosecution evidence alone was not sufficient to connect the appellants and if we consider the medical evidence in juxtaposition and host of circumstances, presence of the eyewitnesses at the spot seems to be doubtful as the ocular testimony regarding the alleged injuries sustained by Ahmad Din, Younas, were neither corroborated nor in conformity with the medical evidence adduced by the doctor.
45.As observed above, no convincing evidence was led at the trial to show that any "Satwan" of Mahna was held in his village, It is also matter of common knowledge that minors/children are not invited to such offerings and only men/ women take part in such rituals. Thus, departure of Zeba and Asifa with the complainant for the purposes of "Satwan" seems to be' improbable. The eye- witness account is also suspected. According to medical evidence, the deceased were fired at from different sides. In case the prosecution witnesses were chasing the jeep, they would not have allowed the accused to run away after enacting the episode, in particular, when the sons of the complainant had also emerged at the crime scene on their car. There was another aspect of the matter, in case shooting had taken place as alleged, the person close by the victim would have been hurt or injured but the eye-witnesses and sons of the complainant did not receive a scratch during the incident and that the assailants would not have spared them. Prosecution had failed to bring home guilt against appellants beyond any shadow of doubt.
46.The case of the prosecution is not supported by any other independent witness or person from the locality where the occurrence took place. Material brought on record qualitatively was not of a degree to have warranted conviction of appellants on a capital charge. The enmity between the parties was admitted. The overall view of the case shows that incident was an un-witnessed one and appellants were involved in the case due to suspicion which lurked in the mind of the complainant party.
47.In appeals against acquittal, we may observe that while examining defect in the order of acquittal substantial weight is to be given to the finding of the trial Court whereby the accused were exonerated from the commission of crime. Obviously, dealing with appeal against conviction would be different and distinguishable from appeal against acquittal because presumption of double innocence is attached in the latter case. At this stage it may also be mentioned that the complainant filed appeal against acquittal without seeking permission to file petition for leave to appeal. The arguments of the learned counsel for the appellants has no substance that in such eventuality, the case of the complainant would be covered under section 2-A of section 417, Cr.P.C. being the aggrieved person. Suffice it to observe that section 417(2-A), Cr.P.C. talks of the aggrieved person including the legal heirs of the deceased or the injured if any or whosoever, the Court thinks fit in the circumstances of a case. However, section 417(2), Cr.P.C. clearly stipulates that a complainant shall file a petition for special leave to appeal within sixty days. A similar question came up under consideration before a Division Bench of this Court in "Haji Riaz-ud-Din v.
Muhammad lqbal and others" (2001 M LD 830) and in para-9 at page 832, their lordships observes that: "Undoubtedly, the complainant aggrieved by such an order of acquittal is in the first instance required to make an application to the High Court seeking leave to appeal and once leave is granted, he may present such an appeal to the High Court"
48. We may also observe that when the accused person is acquitted of the charge by a Court of competent jurisdiction, then double presumption of innocence is attached to its order which is not disturbed/interfered with by a superior Court unless the impugned order is capricious and fanciful and relating to appraisal of evidence in appeal against acquittal is stringent and presumption of innocence is doubled and multiplied after a finding of not guilty recorded by a competent Court of law which requires that the judgment of the acquittal shall not be disturbed even though second opinion may be reasonably possible. Ref. "Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others"
(PLD 2009 SC 53). For the reasons mentioned above, we are of the view that the conclusions drawn by the learned trial Court were neither arbitrary, fanciful nor artificial in nature. The appellant has failed to show that the judgment of the acquittal was fanciful or based on no evidence. It has not been demonstrated that some material evidence was not taken into consideration by the learned trial Court which had caused miscarriage of justice. The learned trial Court has disbelieved the prosecution evidence for valid reasons and it is not possible for us to take a different view.
49. In view of the above, we are of the considered view that the prosecution. miserably failed to prove its case against the appellants beyond shadow of reasonable doubt. Thus, Criminal Appeal No,59-J of 2011 and Criminal Appeal No,60-J of 2011 are allowed. The impugned judgment dated 10.3.2011 is hereby set aside. The appellants are acquitted of the charges. The appellants, excluding Muhammad Hassan and Muhammad Arif are in jail. They be released forthwith if not required in any other criminal case whereas, the appellants Muhammad Hassan and Muhammad Arif are on bail. Their bail bonds are cancelled and sureties discharged.
Murder Reference No,186 of 2011 is answered in the negative and the death sentences awarded to Sarja, Sooja, Rehmat, Ahmad Din alias Ahma sons of Sardar Ali alias Dara, Muhammad Hussain son of Sooja and Munir Hussain son of Qamar Din appellants by the learned trial Court are not confirmed.
50.For the foregoing reasons, Criminal Appeal No,506 of 2011 and Criminal Appeal No,2200 of 2015 filed by the complainant/ appellant against the acquitted co-accused are hereby dismissed.
51.Criminal Revision No,335 of 2011 filed by the complainant for enhancement of compensation awarded to Sarja, Ahmad Din alias Ahma, Rehmat alias Rehma, Sooja, Muhammad Hussain, Munir Hussain and awarding maximum punishment and compensation to respondents Nos,7 to 8 already sentenced to life imprisonment by the learned trial Court is also hereby dismissed in view of the preceding paras.