Appellants Maqsood Ahmad and Ghulam Mustafa have challenged their conviction and sentence through Criminal Appeals No. 88 of 2017 and 183 of 2017, respectively . They were tried by learned Additional Sessions Judge, Sahiwal in a private complaint titled "Muhammad Aslam vs. Kaseer-ul-Hassan and 9 others" alongwith co- accused Kaseer-ul-Hassan, Imran, Ikram, Aman-ullah, Mumtaz, Mehboob, Habib Ahmad and Shahid. On conclusion of trial, vide judgment dated 27.02.2017, both the appellants were convicted for the offence under Section 302(b)/34 PPC and were sentenced to imprisonment for life each. They were also directed to pay Rs.
5,00,000/- each as compensation under Section 544-A, Cr.P.C. or in default, the delinquent convict to further undergo six months' simple imprisonment. Benefit as envisaged in Section 382-B, Cr.P.C. was extended to both the convict appellants. Co-accused Shahid did not join the proceedings of trial and he was declared Proclaimed Offender , as such his perpetual non-baila ble warrants of arrest were issued by learned trial Court, whereas all the remaining co-accused were acquitted of the charge vide same judgment. Complainant Muhammad Aslam has filed Criminal Revision No. 136 of 2017 seeking enhancement of sentence of both the appellants. Acquittal of co- accused has also been challenged by complainant Muhammad Aslam by filing PSLA No. 85 of 2017. All the matters arising out of same judgment dated 27.02.2013, will be decided through this consolidated judgment.
2. Appellants were tried for the offences under Sections 324, 302, 460, 109, 148, 149, PPC in above referred private complaint filed by Muhammad Aslam. Four witnesses were got examined by complainant at trial, whereas twelve witnesses were examined as CWs. Thereafter statements of accused were recorded under Section 342, Cr.P.C. They again pleaded innocence. On conclusion of trial, appellants were convicted and sentenced as mentioned in opening paragraph of this judgment, whereas co-accused were acquitted, hence these cases.
3. I have heard learned counsel for the parties, learned 'Deputy District Public Prosecutor and have gone through the record.
4. Gist of prosecution story as narrated in the private complaint is that the parties are closely related inter se and reside in the same village. On the night falling in-between 6th and 7th of July 2012, at about 09:00 P.M., complainant Muhammad Aslam was present in his house alongwith his broth er Khalid Hussain (deceased) whereas his brother-in-law (behnoi) Naseer Ahmad (PW-2) and Mst. Suriya Bibi wife of Naseer Ahmad were also present there. They all were watching "dhamaal" on Television and electric bulbs were on. Kaseer-ul-Hassan (co- accused since acquitted) armed with .44 bore rifle, Maqsood Ahmad (appellant) armed with .30 bore pistol, Mustafa alias Lamboo (appellant) armed with .44 bore rifle, Imran, Ikram, Aman-ullah (co-accused since acquitted) each of them armed with .30 bore pistols, Mumtaz (co-accused since acquitted) armed with 12 bore gun trespassed into complainant's house while scaling other wall. Mumtaz accused raised lalkara that Khalid Hussain be taught lesson for his marrying Mst. Surat Mumtaz, whereupon all the accused made straight firing on Khalid Hussain, who receiving injuries on .different parts of body , fell down. Assailants fled away on their motorcycles which they had packed outside the house. Occurrence was witnessed by complainant (PW-1), Naseer Ahmad (PW-2) and Mst.
Suriya Bibi in bulbs' light. Khalid Hussain injured was shifted immediately to District Headquarters Hospital Sahiwal where he was admitted. Complainant remained busy in treatment of his injured brother for whole night and on next day FIR No. 214/2012 dated 07.07.2012 was registered on his complaint for the offences under Sections 324/109, 148,
142. Injured was referred on next day to Jinnah Hospital, Lahore where he succumbed to the injuries, whereupon Section 302, PPC was added.
Motive for the crime was that Khalid Huss ain deceased had contracted marriage with Mst. Surat Mumtaz after she had been divorced by Maqsood Ahmad (appellant). Accused had grudge of deceased's marriage with ex-wife of Maqsood Ahmad appellant.
It was alleged in the private complaint that the crime was committed on abetment of Mehboob, Habib Ahmad and Shahid co-accused. Muhammad Ameer and Saif-ul-Mulook were introduced as witnesses of abetment.
Reason for lodging private complaint was complainant's distrust on police. In order to prove charge, following types of evidence was produced:-
1. Ocular Account and motive
2. Medical evidence.
3. Evidence of conspiracy
4. Recoveries
5. Main stay of complainant is on ocular account. According to private complaint, Muhammad Aslam complainant/PW -1, his brother-in-law (behnoi) Naseer Ahmad (PW-2) and his sister Mst. Suriya Bibi were present in his house at about 09:00 P.M. alongwith deceased when appellants and co-accused eight in. number , came there while duly armed with firearm weapons' and made firing on the deceased. Specifications of crime weapons allegedly carried by each of the assailants have been mentioned in the complaint, however , no specific attribution was assigned rather a general role of firing was attributed to all the assailants. FIR, Private complaint as well as later proceedings including investigation and trial in this case are silent as to where were complainant's other family members including Mst. Surat Mumtaz, wife of the deceased, at the time of occurrence. None of them has been introduced in the whole proceedings. Occurrence took place in complainant's house at 09:00 P.M. and injured was shifted to hospital immediately . As per MLC of the injured (deceased), time of his arrival at hospital is 10:05 P.M.
Quite strange to notice here is that state ment of the complainant on the basis of which FIR was registered, was recorded on next morning at 06:00 A.M. i.e. after dealy of nine hours. Neither complainant nor any of his other family members, relatives or residents of locality bothered to inform police about the an occurrence for nine hours, which fact coupled with delayed reporting of the matter to police casts serious doubt on veracity of prosecution story and creates doubt qua presence of element of premeditation and consultation.
Quite surprising to note here is that eight persons allegedly made firing on deceased but they did not make any attempt to cause injury to any of his family members. For the sake of arguments, if assailants were prompted by motive as alleged in the complaint, they had equal grudge against Mst. Surat Mumtaz with whom the deceased had contracted marriage. In such eventuality , assailants should have attacked Mst. Surat Mumtaz too but it is not case of prosecution that any of the assailants even inquired about said lady. As discus sed in the preceding paragraph, Mst. Surat Mumtaz did not come to surface in whole proceedings of this case.
Another interesting aspect of the case is that none of the witnesses or other family -members of deceased made any attempt to c intervene when assailants made firing on deceased. On one hand the PWs were so keen that they specified the weapons carried out by each of the assailants but on the other hand they did not assign specific attribution to any of the assailant. Case of prosecution is that complainant, his brother (deceased) and witnesses were watching "dhamaal" on T.V. at the time of occurrence. However , site-plan which was made on pointation of PWs, is silent as to presence of T.V. on the place of occurrence. Complainant/PW -1 during cross-examination stated that he had narrated in his statement under Section 154, Cr.P.C. that they were watching T.V. and were making ritual dance/ dhamaal. In this way, a new fact of making dhamaal by complainant and witnesses was introduced by PW-1. However , no such stance of making dhamaal was there of PW-2. In the site-plan, Point No. 6 was written as the place where people were making dhamaal. Said Point No. 6 is outside the complainant's house, implying thereby some other people of locality were also present at the relevant time but none of them was even introduced as witness. During cross examination it was stated by PW-2 that Khalid Hussain deceased received first fire shot while he was sitting on a cot. However , no cot was taken into possession by police from place of occurrence neither it was mentioned in the site-plan. There were seven entry wounds and two graze wounds,' all of firearm, on body of deceased but noteworthy is that on first spot inspection Investigating Officer found only four empties of .30 bore.
In view of above discussion, presence of eye-witnesses at the place of occurrence at relevant time is a doubtful affair, as such ocular account in this case is not confidence inspiring.
6. Medical evidence in this case was furnished by PW-4 Dr. Shakeel Javaid and CW-9 Dr. Rameez Hassan. As discussed above, main stay of prosecution i.e. ocular account is not confidence inspiring, as such medical evidence as well as recoveries, which is corroboratory in nature, is of no help to prosecution's case. Evidence of conspiracy in the given situation also does not substantiate the case set up by complainant.
7. On re-appraisal of evidence, the conclusion I have come to is that prosecution had failed to prove charge against appellants, as such findings recorded by learned trial Court are not sustainable. Resultantly . Criminal Appeals No. 88 of 2017 and 183 of 2017 are allowed. Consequently , conviction and sentence of the appellants awarded by learned trial Court through impugned judgment are set aside. Appellants Maqsood Ahmad and Ghulam Mustafa are acquitted of the charge extending benefit of doubt to them. They are in jail. They be released forthwith if not required in any other criminal case.
8. For the reasons recorded above, Criminal Revision No. 136 of 2017 and PSLA No. 85 of 2017 are dismissed.