AALIA NEELUM, J. The appellants-Maqsood Ahmad, Mumtaz Ahmad and Riaz Ahmad, all sons of Nazeer Ahmad, caste Joiya, residents of Khola Uttam Singh, District Pakpattan Sharif have assailed their conviction and sentence recorded by the learned Addl. Sessions Judge, District Pakpattan vide judgment dated 03.05.2012 in private complaint filed under sections 302/148/149 PPC P.S. Saddar, District Pakpattan titled {{"Mst. Noor Bhari Vs. Maqsood Ahmad, etc"}}, whereby the learned trial court convicted the appellants-Maqsood Ahmad and Riaz Ahmad under section 302(b) PPC and appellant-Mumtaz Ahmad under section 302(b) PPC read with section 34 PPC and sentenced them to undergo imprisonment for life each with the direction to pay Rs.50,000/- each as compensation to the legal heirs of the deceased under section 544-A of Cr.P.C and in case of default in payment thereof, they would further undergo 03-months S.I each. The benefit of section 382-B Cr.P.C was also extended in favour of the appellants.
2. Feeling aggrieved by the judgment of the learned trial court, the appellants have assailed their conviction through filing instant appeal bearing Criminal Appeal No.991 of 2012. It is pertinent to mention here that the complainant also filed Crl. Rev. No.949/2012 qua enhancement of sentence awarded to the appellants and P.S.L.A. No.244/2012 against acquittal of co-accused Murtaza, Muhammad Yar, Naveed and Jahangir. As all the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed of through consolidated judgment.
3. Briefly, the prosecution story as alleged in the private complaint (Ex.PB) of Mst. Noor Bhari (PW-1)- the complainant is that on 20.05.2010, she (PW-1) alongwith her sons namely Tahir Wazir (the deceased), Tariq Hussain (given up PW) and Mubarak Ali (PW-2) visited the shrine of Baba Farid Masood Ganj Shakar (R.A) Pakpattan Sharif. At 09:00 p.m, her son Tahir Wazir received a mobile call of Jahangir (co-accused since acquitted) and after listening the phone call, Tahir Wazir (the deceased) stated that he received call of Jahangir (co-accused since acquitted) and he called him for necessary work at Chak No.16/S.P and he left for Chak No.16/S.P on his motorcycle but he did not return after sufficient time, whereupon, they become worried about him and Mst. Noor Bhari (PW-1)-the complainant, Tariq Hussain (given up PW) and Mubarak Ali (PW-2) left for Chak No.16/S.P on a motorcycle. At about 12:00 a.m. (midnight), when they reached Qilla No.1 of square No.49 in the area of Chak No.16/S.P, they saw Maqsood Ahmad-the appellant No.1 armed with pistol 30-bore, Mumtaz Ahmad-the appellant No.2 armed with 12-bore carbine, Riaz Ahmad-the appellant No.3 armed with pistol 30-bore, Muhammad Yar (co-accused since acquitted) armed with pistol 30-bore, Muhammad Bashir armed with pistol 30-bore, Murtaza (co-accused since acquitted) armed with gun 12-bore, Naveed (co-accused since acquitted), Jahangir (co-accused since acquitted) alongwith one unknown persons were also present there, who were identified by the complainant and PWs in the light of motorcycle. The accused persons were encircling the son of complainant and also raising lalkaras that they would murder him for taking revenge of the murder of Yaseen. In their view, Maqsood Ahmad-the appellant No.1 caused two firearm injuries with his pistol 30-bore on the person of Tahir Wazir-the deceased hitting him on his left head and left cheek. Mumtaz Ahmad-the appellant No.2 fired with his 12-bore carbine hitting on the right arm of the deceased. Murtaza (co-accused since acquitted) caused two fire shots with his 12-bore gun towards the deceased hitting on right side of abdomen and right thigh of the deceased. Riaz (the appellant No.3) also made two fire shots with his pistol 30-bore, hitting the deceased on chest and ear at right side. Muhammad Yar (co-accused since acquitted) made fire with his pistol 30-bore, hitting on the back of the deceased. Bashir-accused fired twice with his pistol 30-bore, hitting on the right elbow and left chest of the deceased. Whereas, Naveed (co-accused since acquitted) and Jahangir (co-accused since acquitted) continued raising lalkara and accused persons on seeing the prosecution witnesses, left the place of occurrence alongwith their weapons. They attended Tahir Wazir, who succumbed to the injuries at the spot.
4. The motive behind the occurrence was that in the year 2003, brother of Maqsood, Riaz and Mumtaz (the appellants) namely Yaseen was murdered and case was registered against Tahir Wazir, Tariq Hussain and others, wherein Tariq Hussain was acquitted by the learned Addl. Sessions Judge and Tahir Wazeer was acquitted by the Hon'ble High Court, while after the acquittal of Tahir Wazeer, the complainant alongwith her sons had used to go to the shrine for fulfilling her "Mannat" and getting knowledge of the same, the accused persons, in collusion with Jahangir (co-accused since acquitted), called Tahir Wazeer and committed his murder.
5. The complainant Mst. Noor Bhari (PW-1) got recorded her statement (Ex.PA) before Muhammad Arshad S.I. (CW-8), who sent the same through Nadeem Sadiq 127/C to police station for registration of formal FIR. After registration of case, the investigation of this case was conducted by Muhammad Arshad S.I. (CW-8), who having found the accused/appellants guilty, prepared report under section 173 of Cr.P.C. Being dis-satisfied with the result of investigation, as the investigating officer being in league with the accused did not investigate the matter properly, the complainant was constrained to file private complaint (Ex.PB) and after recording the cursory evidence of the complainant and having perused the record, all the accused persons were found connected with the commission of offence, so they all were summoned to face the charge. Thereafter, the learned trial court formally charge sheeted the appellants on 01.02.2012 to which they pleaded not guilty and claimed trial. The complainant in support of its version produced as many as two (02) witnesses, whereas rest of the witnesses were produced by the prosecution as C.W-1 to C.W-9. The appellants were also examined in terms of Section 342 Cr.P.C., wherein they neither opted to appear as their own witness in terms of section 340(2) Cr.P.C., nor produced any defence evidence.
6. The learned trial court after recording evidence and evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond any shadow of reasonable doubt, which resulted into conviction of the appellants in the afore stated terms.
7. I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record available on the file.
8. In the instant case, the incident took place on 21.05.2010 at 12:00 a.m (midnight) in the area of Chak No.16/S.P, square No.49/1, Qilla No.1, which falls within the jurisdiction of Police Station Saddar, District Pakpattan, which is at a distance of 06-kilometers from the place of occurrence, whereas FIR was got registered on 21.05.2010 at 01:00 a.m. (night) on the basis of " ( "Ex.PA) of Mst. Noor Bhari (PW-1)-the complainant and mother of Tahir Wazir deceased, made on 21.05.2010 at 12:30 a.m. It is note-able that the occurrence took place at 12:00 a.m. (night) on 21.05.2010 and distance between the place of occurrence and police station was 06-kilometer, whereas Mst. Noor Bhari (PW-1)-the complainant reported the matter to police at 12:30 a.m. at Peer Ghani Road, in the area of Chak Bodla. Mst. Noor Bhari (PW-1)-the complainant submitted private complaint (Ex.PB) on 04.07.2011, after fourteen (14) months of the occurrence. Mst. Noor Bhari (PW-1)-the complainant alleged that police got her signature on the blank paper and her statement was not read over to her; the police in collusion with the accused persons spoiled the case of the prosecution.
Muhammad Arshad S.I. (CW-8)-investigating officer admitted during cross-examination conducted by the complainant that he got thumb impression of the complainant on a blank paper and did not record her statement correctly. The contents of the complaint (Ex-PA) could not be considered as true. However, the version of Mst. Noor Bhari (PW-1)-the complainant came on the record after fourteen months from the date of occurrence. The statement made by Mst. Noor Bhari (PW-1)-the complainant before the Court on oath is an oral evidence and documents produced for the inspection before the Court are documentary evidence. The documents produced cannot be considered unless supported by oral evidence. The procedure for verification of the complaint through witnesses is only for the purpose of increasing its weightage. Soon after the occurrence, the version of Mst. Noor Bhari (PW-1)-the complainant did not come on the record. The one in the shape of " ( "Ex.PA) is disowned by Mst. Noor Bhari (PW-1)-the complainant. However, Mubarik Ali (PW-2)-the eye witness-brother of the deceased, admitted that his statement was recorded by Muhammad Arshad S.I. (CW-8)-investigating officer and he did not state that the same was also changed by the investigating officer. Mubarik Ali (PW-2)-the eye witness-brother of the deceased, deposed that, "My statement u/s 161 Cr.P.C. was recorded at 11:00 a.m. by the police at the police station. I had never visited the place of occurrence prior to the occurrence. The place of occurrence is situated between Chak No.16/S.P and Chak No.17/S.P.---------It was 01:30 p.m. when Lambardar told us the detail like Killa number etc. I went to call Lambardar." Mst. Noor Bhari (PW-1)-the complainant has not specifically deposed that when and where she reported the incident to the police. However, Muhammad Arshad S.I. (CW-8)-the investigating officer deposed during examination-in-chief that on 21.05.2010, he (CW-8) was posted at P.S. Saddar, Pakpattan. On that day, he (CW-8) was present at Peer Ghani Road in the area of Chak Bodla where Mst. Noor Bhari (PW-1)-complainant met him. Thereafter, he (CW-8) visited the place of occurrence, where the dead body of Tahir Pervaiz deceased was lying. This part of the deposition of Muhammad Arshad S.I. (CW-8)-the investigating officer has not been denied by the complainant during cross- examination conducted by complainant side on him (CW-8). However, he (CW-8)-the investigating officer deposed during cross examination conducted by the defence side that, "Chak Bodla is at a distance of 21/2 KMs from place of occurrence and same is the distance from place of occurrence." The entire prosecution evidence is silent on the point that with whom Mst. Noor Bhari (PW-1)-the complainant proceeded to police station for reporting the incident, when at Peer Ghani Road Chak Bodla, she (PW-1) met with Muhammad Arshad (CW-8)-the investigating officer.
Even, Muhammad Arshad S.I. (CW-8)-the investigating officer has not deposed that after recording of "Fard Biyan" (Ex.PA) of Mst. Noor Bhari (PW-1)-the complainant, the complainant (PW-1) also accompanied him to the place of occurrence. Rather, during cross-examination, he (CW-8)-the investigating officer deposed that when he reached about 01:00 a.m. (night) at the place of occurrence, the complainant and PWs were present there. During cross examination conducted by the complainant side, Muhammad Arshad S.I. (CW-8)-the investigating officer deposed that, "I reached on the spot at about 01:00 a.m. (night). When I reached at the place of occurrence, the complainant and PWs were already present there." Mst. Noor Bhari (PW-1)-the complainant during cross-examination deposed that, "The case was registered in the next morning and we mentioned the details like Killa Number etc. We were at the place of occurrence when the Thanedar came there and recorded my statement at 02:00/02:30 night." From the deposition of Mst. Noor Bhari (PW-1)-the complainant and Mubarik Ali (PW-2)-the eye witness, mother and brother of the deceased-Tahir Wazeer respectively, it reveals that witnesses of ocular account were chance witnesses. Even, Muhammad Arshad S.I. (CW-8)-the investigating officer deposed during cross examination that, "I have recorded the statement of Abdul Ghaffar son Kareem Bakhsh of village Kholla Uttam Singh and he stated that Noor Bhari and her son Babar Ali were present in their village and she said that her deceased son was not available. I do not know the reality of the narration, but as it was stated before me, I recorded it." All this raises grave doubts about the authenticity of the prosecution version and presence of the witnesses as the place of occurrence.
9. As per prosecution story narrated in the private complaint (Ex.PB), Mst. Noor Bhari (PW-1)-the complainant alongwith her sons namely Tahir Wazir, Tariq Hussain and Mubarak Ali visited the shrine of Baba Farid Masood Ganj Shakar (R.A) Pakpattan Sharif at 09:00 p.m. on 20.05.2010. At about 09:00 p.m, her son Tahir Wazir received a mobile call of Jahangir (co-accused since acquitted) and after listening, he informed her that Jahangir (co-accused since acquitted) made call for necessary work at Chak No.16/S.P and he left for Chak No.16/S.P on his motorcycle but he did not return after sufficient time, whereupon, they became worried about him and Mst. Noor Bhari (PW-1)-the complainant, Tariq Hussain (given up PW) and Mubarak Ali (PW-2) left for Chak No.16/S.P on a motorcycle. At about 12:00 a.m. (midnight), when they reached Qilla No.1 of square No.49 in the area of Chak No.16/S.P, they saw Maqsood Ahmad-the appellant No.1 armed with pistol 30-bore, Mumtaz Ahmad-the appellant No.2 armed with 12-bore carbine, Riaz Ahmad-the appellant No.3 armed with pistol 30-bore, Muhammad Yar (co-accused since acquitted) armed with pistol 30-bore, Muhammad Bashir armed with pistol 30-bore, Murtaza (co-accused since acquitted) armed with gun 12-bore, Naveed (co-accused since acquitted), Jahangir (co-accused since acquitted) alongwith one unknown persons were also present there, who were found present by the complainant and PWs in the light of motorcycle. Mst. Noor Bhari (PW-1)-the complainant and Mubarik Ali (PW-2)-the eye witness attributed specific roles to the accused persons named in the private complaint (Ex.PB). As per prosecution case, Maqsood Ahmad-the appellant No.1 caused two firearm injuries with his pistol 30-bore on the person of Tahir Wazir-the deceased hitting him on his left side of head and at left cheek. Mumtaz Ahmad-the appellant No.2 fired with his 12-bore carbine hitting on the right arm of the deceased. Murtaza (co-accused since acquitted) caused two fire shots with his 12-bore gun towards the deceased hitting on right side of abdomen and right thigh of the deceased. Riaz (the appellant No.3) also made two fire shots with his pistol 30-bore, hitting the deceased on chest and ear at right side. Muhammad Yar (co-accused since acquitted) made fire with his pistol 30-bore, hitting on the back of the deceased. Bashir-accused fired twice with his pistol 30-bore, hitting on the right elbow and left chest of the deceased. Whereas, Naveed (co-accused since acquitted) and Jahangir (co-accused since acquitted) continued raising lalkara and accused persons on seeing the prosecution witnesses i.e. PW-1 & PW-2, left the place of occurrence alongwith their weapons. Mst. Noor Bhari (PW-1)-the complainant deposed during examination in chief that the police got her thumb impression on a blank paper and her statement (Ex.PA) was not read over to her by the investigating officer. Although, Mst. Noor Bhari (PW-1)-the complainant denied the contents of " J" (Ex.PA) as her correct version. But on her pointing Ghulam Mustafa (CW-7)-Draftsman prepared the scaled site plans (Ex.CW-7/A and Ex.CW-7/B).
Ghulam Mustafa (CW-7)-Draftsman, visited the place of occurrence on 23-05-2010 and on the pointing of the prosecution witnesses he (CW-7) prepared the scaled site plans (Ex.CW-7/A and Ex.CW-7/B). It was written at the bottom of scaled site plans (Ex.CW-7/A and Ex.CW-7/B) as under:- " 2010/523: "
The scaled site plans (Ex.CW-7/A and Ex.CW-7/B) were prepared on the instructions of Mst. Noor Bhari (PW-1)-the complainant and witnesses. Ghulam Mustafa (CW-7)-Draftsman deposed during cross-examination conducted by the complainant side as under:- "It is incorrect that I did not prepare the site plans properly as pointed out by the complainant and PWs. It is incorrect that I deliberately missed some details narrated by the PWs and complainant to me at the time of my inspection."
During cross-examination the complainant has not brought on the record the specific details narrated by the PWs to Ghulam Mustafa (CW-7)-Draftsman, which were not mentioned in the scaled site plans (Ex.CW-7/A and Ex.CW-7/B) by Ghulam Mustafa (CW-7)- Draftsman. However, Ghulam Mustafa (CW-7)-Draftsma n, deposed during cross-examination conducted by the defence as under:- "It is correct that the PWs had not disclosed to me any source of identification at the time of occurrence and as such I have not mentioned the same in the scaled site plans.---------- It is also correct that the PWs had not disclosed the specific attribution of injury to any individual accused and as such I have not mentioned the same in the site plans. It is correct that the PWs had not disclosed about the presence of any motorcycle at the place of occurrence and as such I have not mentioned its presence in the site plans."
On the other hand, Mubarik Ali (PW-2)-the eye witness has not deposed a single word that he had not got recorded his statement to the investigating officer (CW-8) whereas in Court statement Mubarak Ali (PW-2)-the eye witness, has improved his versions of what he has stated at first instance. The defence brought contradictions of material prosecution witness on record. Mubarak Ali (PW-2)-the eye witness deposed during his cross-examination as under:- "I had mentioned in my police statement that when we were present at the said Darbar, a telephonic message of Jahangir accused was received by Tahir Wazeer deceased and he told us that he was going to Chak No.16/S.P on summoning of Jahangir accused in connection with an urgent piece of work. Confronted with Ex.D-A, wherein it is not recorded, however, it is mentioned that the deceased had told that a friend of his had summoned him in Chak No.16/SP. It is incorrect that I have improved my statement regarding the summoning of deceased on telephone by Jahangir accused. It is incorrect that I have false statement in this respect at the trial to involve Jahangir accused in this case. I had mentioned the time of occurrence as 12:00 midnight in my police station. Confronted with Ex.D-A, where the time of occurrence is not recorded at all. I had mentioned in my police statement that I, Mst. Noor Bhari and Tariq Hussain PW left for Chak No.16/SP on a motorcycle. Confronted with Ex.D-A, wherein no motorcycle is mentioned in this context. I had mentioned in my police statement that we had identified the accused persons in the light of our motorcycle. Confronted with Ex.D-A, wherein it is not so recorded. I had mentioned in my police statement that Riaz accused also fired twice hitting the deceased on his right chest and right ear, Muhammad Yar accused fired which hit on the back of deceased, Basheer accused fired twice which hit on the right elbow and left chest of the deceased, while Naveed, Jahangir and one unknown accused continued raising Lalkaras.
Confronted with Ex.D-A, wherein it is not so recorded. It is incorrect that I had got recorded in my statement Ex.D-A that Riaz Ahmed, Muhammad Yar and Muhammad Basheer fired with their pistols, which hit on the different parts of the body of Tahir Wazeer deceased. Confronted with Ex.D-A, wherein it is so recorded. It is incorrect that I have made the above referred dishonest improvements to involve innocent persons in this false case."
From statement (Ex.DA) of Mubarak Ali (PW-2)-the eye witness, it reveals that same is in line with the contents of " ( "Ex.PA) of Mst. Noor Bhari (PW-1)-the complainant. The defence brought contradictions of material prosecution witness on record. Mst. Noor Bhari (PW-1)-the complainant deposed during her cross-examination as under:- "I had mentioned in my statement Ex.P-A that I, Tariq Hussain and Mubarik Ali PWs left for Chak No.16/SP on a motorcycle. Confronted with Ex.P-A, wherein it is not recorded that they had gone on the motorcycle. I had also mentioned in my statement Ex.P-A that we reached Killa No.1 of Square No.49 at about 12:00 midnight. Confronted with Ex.P-A where no such time is recorded. I had not mentioned in my statement Ex.P-A that two unknown persons were with Maqsood Ahmed accused etc at the time of occurrence. Confronted with Ex.P-A, wherein it is so recorded.
I had mentioned in my statement Ex.P-A that we had identified the accused persons in the light of the motorcycle. Confronted with Ex.P-A, wherein it is not so recorded. I had mentioned in my statement Ex.P-A that Maqsood Ahmed, Mumtaz and Riaz Ahmed had hired Basheer Ahmad etc, the remaining accused persons, for the murder of my son Tahir Wazeer deceased.
Confronted with Ex.P-A, wherein it is not so recorded. I had mentioned in my statement Ex.P-A that a telephonic message of Jahangir accused was received by my son Tahir Wazeer deceased and thereafter the deceased told me that he was going to Chak No.16/SP, because Jahangir accused had called him there for some urgent work. Confronted with Ex.P-A, wherein it is not so recorded, however, it is mentioned that at about 09:00 p.m my son Tahir Wazeer told me that a friend of his had called him in Chak No.16/SP and he was going to see him.--------I had mentioned in my statement Ex.P-A that Riaz accused also fired twice, hitting the deceased on his chest, right ear and right chest. Confronted with Ex.P-A, wherein it is not so recorded. I had also mentioned in Ex.P-A that Muhammad Yar accused fired, which hit on the back of deceased.
Confronted with Ex.P-A, wherein it is not so recorded. I had also mentioned in my statement Ex.P-A that Basheer Ahmed accused fired twice which hit on the right elbow and left chest of the deceased. Confronted with Ex.P-A, wherein it is not so recorded, however, it is mentioned that Riaz Ahmed, Muhammad Yar and Basheer accused made fires with their pistols, which hit on the different parts of the body of Tahir Wazeer. It incorrect that I have dishonestly made improvements regarding the attribution of specific injuries to the deceased at the hands of Riaz, Muhammad Yar and Basheer Ahmed accused persons. ----------I had mentioned in Ex.P-A that we had been come to the shrine of Hazrat Baba Fareed-ud-Din Ganj Shakar (R.A) to perform the "Mannat" on each Thursday. Confronted with Ex.P-A, wherein it is not so recorded."
On the basis of discussion made above the prosecution witnesses cannot pass test of trustworthiness and truthfulness. These facts, raise grave doubt about the authenticity of the prosecution version qua the involvement of the appellants in the crime.
10. Learned Counsel for the appellants laid great stress on the circumstance that it was a dark night and occurrence took place at about 12:00 a.m. (night) and in absence of source of light the assailants could not be identified at the relevant time. Mst. Noor Bhari (PW-1)- the complainant deposed that in the light of motorcycle they witnessed the occurrence. Whereas, Ghulam Mustafa (CW-7)-draftsman deposed during cross-examination that:- "It is correct that the PWs had not disclosed to me any source of identification at the time of occurrence and as such I have not mentioned the same in the scaled site plans.-----It is correct that the PWs had not disclosed about the presence of any motorcycle at the place of occurrence and as such I have not mentioned its presence in the site plans."
Mubarak Ali (PW-2)-the eye witness deposed during his cross-examination as under:- "I had mentioned in my police statement that I, Mst. Noor Bhari and Tariq Hussain PW left for Chak No.16/SP on a motorcycle. Confronted with Ex.D-A, wherein no motorcycle is mentioned in this context. I had mentioned in my police statement that we had identified the accused persons in the light of our motorcycle. Confronted with Ex.D-A, wherein it is not so recorded."
Mst. Noor Bhari (PW-1)-the complainant deposed during her cross-examination as under:- "I had mentioned in my statement Ex.P-A that I, Tariq Hussain and Mubarik Ali PWs left for Chak No.16/SP on a motorcycle. Confronted with Ex.P-A, wherein it is not recorded that they had gone on the motorcycle.-------- I had mentioned in my statement Ex.P-A that we had identified the accused persons in the light of the motorcycle. Confronted with Ex.P-A, wherein it is not so recorded."
Muhammad Arshad S.I. (CW-8)-investigating officer deposed during cross-examination conducted by defence as under:- "It is correct that motorcycle of the deceased or any other motorcycle was not recovered from the place of occurrence at the time of my first visit to place of occurrence."
The incident took place in summer night. The witnesses had no ample opportunity to see the murderers. The complainant (PW-1) stated that when deceased did not return from Chak No.16/S.P. for sufficient time, she became worried and went with Mubarak Ali (PW 2) and Tariq Hussain (given up PW) to Chak No. 16 S.P. on a motorcycle. At about 12:00 a.m. (night) when they reached Killa No.1 of Square No.49 in the area of Chak No. 16 S.P. they witnessed the occurrence. Muhammad Arshad S.I. (CW-8)-investigating officer deposed during cross- examination that, "The place of occurrence was close to Chak No. 16 S.P. and the village 17 S.P. is situated after crossing the canal." From the scaled site plans (Ex.CW-7/A and Ex. CW-7/B), it reveals that the village abadi of Chak No.16/S.P. was after crossing Killa No.1 of Square No.49.
Ghulam Mustafa (CW-7), draftsman deposed during his cross-examination as under:- "The village 16/SP is at a distance of one acre from the place of occurrence."
Mst. Noor Bhari (PW-1)-the complainant deposed during her cross-examination as under:- "The place of occurrence is at a distance of two acres towards east from the Abadi of Chak No.16/SP. The place of occurrence is at a distance of five acres from the Abadi of Chak No.16/SP towards east."
The prosecution evidence is silent on the point that why Mst. Noor Bhari (PW-1)-the complainant had not made call on the cell phone of her son Tahir Wazeer-the deceased and what forced them to change their direction from mettle road to Killa No.1 of Square No.49. Ghulam Mustafa (CW-7), draftsman deposed during his cross-examination as under:- "The place of occurrence as indicated at point No.1 is at a distance of about 150 feet from the mettled road towards its south."
Mst. Noor Bhari (PW-1)-the complainant deposed during her cross-examination as under:- "The distance between Chak No.16/SP and Chak No.11/KB is about 24 kilometers."
Contrary to the deposition of Mst. Noor Bhari (PW-1)- complainant. Mubarak Ali (PW-2)-the eye witness deposed during his cross-examination as under:- "The dead body was lying on the southern side of mettled road leading to Head Kumhari Wala and it was lying at a distance of 3 Kanals away from the said mettled road. There were large number of bushes in the acre of the land in which the occurrence took place."
Mst. Noor Bhari (PW-1)-complainant deposed during examination-in-chief that, "Thereafter, my deceased son told me that he was going to Chak No.16/S.P because Jahangeer accused had called him there for some urgent work." Whereas during cross-examination she admitted that Jahangir accused was not resident of Chak No.16/S.P. She (PW-1) deposed during cross- examination as under:- "Jahangir accused does not reside in Chak No.16/SP. It is correct that Jahangir accused is permanent resident of Mauza Bahadur Khera situated in the bed of River Sutlej and is towards south at a distance of 35 kilometers from Pakpattan. PW volunteered that Jahangir accused was usually with the accused persons and he is their close friend. I had not mentioned in my complaint Ex.P-B and in my statement recorded u/s 202 Cr.P.C in the complaint case that Jahangir accused was also with the accused persons and he was their friend."
The place of incident was given as a deserted place. Mst. Noor Bhari (PW-1)-complainant stated that when they reached Killa No.1 of Square No.49, they identified the accused in the light of motorcycle and they saw the incident which took place in the field. It appears that the assailants had chosen odd hours of night and a lonely place for committing murder of the deceased and in case Mst. Noor Bhari (PW-1)-complainant was present in the field, the appellants must have noticed their presence and they would have not let them go from place of occurrence. These improbabilities in the evidence of Mst. Noor Bhari (PW-1)-complainant leads to infer that the complainant (PW-1) had no reason to be present on the spot and, therefore, was not in a position to see the occurrence. It is the case of the complainant that her son Tahir Wazeer received mobile call of Jahangir (co-accused since acquitted) at the shrine of Baba Farid Masood Ganj Shakar (R.A) Pakpattan Sharif at 09:00 p.m, and after listening a mobile call of Tahir Wazeer (the deceased) informed her and left for Chak No.16/S.P on his motorcycle. According to the complainant (PW-1) Tahir Wazeer (the deceased) had mobile phone but Mst. Noor Bhari (PW-1)- complainant had not made phone call to the deceased. I, therefore, conclude that there was no visibility in the odd hours of night and in the site plans (Ex.CW-7/A and Ex. CW-7/B), the source of light was not mentioned. Thus, the time of occurrence is indicative of fact that darkness had set-in and it was not possible to identify a person without using any source of light. In view of deposition of Mst. Noor Bhari (PW-1)-complainant and Mubarak Ali (PW-2)-the eye witness, it reveals that witnesses of ocular account were chance witnesses. Thus, the version of the incident, on the whole, described by Mst. Noor Bhari (PW-1)-complainant and Mubarak Ali (PW-2)-the eye witness does not inspire confidence and their presence on the spot at the time of occurrence becomes doubtful and their testimony on point of occurrence becomes wholly unreliable.
11. As per prosecution case incident was reported to police through " ( "Ex.PA) at 12:30 a.m., in a given case, and occurrence took place at 12:00 night. Muhammad Arshad S.I. (CW-8)-investigating officer deposed during cross-examination that, "I reached at the place of occurrence at about 01:00 a.m. (midnight) on the fateful night. It consumed about one hour in preparing the injury statement and inquest report of the deceased and soon thereafter, I dispatched the dead body to the mortuary for postmortem examination." Whereas, Mubarak Ali (PW-2)-the eye witness deposed during cross examination that, "The dead body was firstly removed from the place of occurrence to P.S. Saddar, Pakpattan at about 06:00 a.m. in the following morning. The postmortem examination of dead body was performed at about 02:00 or 02:30 p.m." It also gets support from the testimony of Dr. Shahid Mehmood (CW-5), who conducted the postmortem examination of the dead body of the deceased-Tahir Wazeer, as he (CW-5) received documents sent by the police before conducting post mortem examination with delay. Dr. Shahid Mehmood (CW-5) deposed during his cross-examination that, "As soon as the police papers relating to the dead body i.e. the injury statement Ex.CW-5/D and the inquest report Ex.CW-5/E were produced before me, I immediately started conducting postmortem examination on the dead body. Computing by the yardstick of 24 hours, the death of deceased might have occurrence on 20.05.2010." These circumstances to my mind go to suggest that the FIR was ante timed. This creates serious flaw in the prosecution evidence. In this case, Dr. Shahid Mehmood (CW-5), who conducted post mortem examination of the dead body of Tahir Wazeer, deposed during his court statement that he conducted post mortem examination on 21.05.2010 at 1:50 p.m. vide post mortem examination report (Ex.CW-5/A). However, the time of receiving dead body in the dead house was not brought on the record by the prosecution. Dr. Shahid Mehmood (CW-5) deposed during examination-in- chief that:- " ---------death and postmortem was 8 to 24 hours."
There is no plausible explanation as to why postmortem of the dead body was delayed for about eleven hours. Delay in conducting postmortem examination also leads to the conclusion that the F.I.R. was recorded with a delay and the F.I.R had not been recorded at the time at which it is claimed to have been recorded. This aspect of the matter is sufficient to cast doubt about the authenticity of the F.I.R. This creates serious doubt about the genuineness of the prosecution story including presence of the complainant and eye witness at the scene of occurrence. It has been noticed that in the inquest report (Ex.CW-5/E) even the names of Mst. Noor Bhari (PW-1)- complainant and Mubarak Ali (PW-2)-the eye witness and Tariq Hussain (given up PW) have not been mentioned. The inquest report (Ex.CW-5/E) is not signed by any of these witnesses. Even the nature of weapon used in the case, does not find mention in the column No.12 of the inquest report (Ex.CW-5/E). Was it because no FIR had actually been registered at the time as alleged by the prosecution and after some consultations and deliberations it came into existence? Considering all these facts, I have no hesitation in reaching to the conclusion that the prosecution has not been able to prove on record that the incident was reported at the time at which, it was claimed to have been recorded.
12. There is another aspect of the case, which cannot be go un noticed is that the complainant side through the cross-examination upon Muhammad Arshad S.I. (CW-8)-the investigating officer brought on the record that during investigation, SIM of mobile from which the accused persons made call to the deceased and asked him to come at the place of occurrence, by changing their voice, was recovered from the accused persons and tried to connect the accused persons with the crime. It is important to reproduce the relevant portion of the deposition come on the record during cross-examination conducted by the complainant's counsel, which reads as under:- "It was also found correct during my investigation that the accused persons telephonically called Tahir Wazeer deceased at the place of occurrence by deceitful manner. I recovered the sim of telephone from which the accused persons called deceased at the place of occurrence while changing their voice, by use of voice changer."
The SIM number was not physically verified by the investigating officer nor any record in this regard was placed on the record. During cross-examination conducted by the defence, he (CW-8)-the investigating officer deposed as under:- "Zulfiqar who produced the sim C-10 is neither a PW in this case nor an accused. However, he is a relative of accused persons. I have taken into possession the telephone alongwith voice changer. I have not got verified the voice recorded in the voice changer and mobile phone from any laboratory. I got verified about the ownership of sim from the relevant Company, but I did not place verification certificate on the file. It is incorrect that I am deposing falsely in this regard. It is correct that sim C-10 was not issued in the name of any accused."
The testimony of the prosecution witness is silent that in whose name the SIM (C-10) was registered. Even the location of this number was not brought on the record. The recovery of the SIM (C-10) is of no consequence.
13. As far as the motive is concerned, it is a double edged sword, which cut both sides/ways. In the instant case Mst. Noor Bhari (PW-1)-complainant deposed during examination-in-chief that, "The motive for the occurrence was that one Yaseen brother of Maqsood accused was murdered in the Year 2003, and a case of his murder was registered against my husband Wazeer, my son Tahir Wazeer deceased and Tariq PW etc. In that case my son Tahir Wazeer was acquitted by the Honourable Lahore High Court, Lahore, whereas Tariq Hussain PW of this case was acquitted by trial court." Whereas, Mst. Noor Bhari (PW-1)-complainant deposed during cross-examination that, "It is correct that in the year 2003 one Yaseen, brother of Maqsood Ahmed, Mumtaz and Riaz Ahmed accused persons facing trial in this case, was murdered and Maqsood Ahmed accused present in court got registered case FIR No.482/2003, u/s 302/324/148/149 PPC against my husband Wazeer, my sons Tahir Wazeer deceased, Tariq, Shareef son of Azeez a paternal nephew of my husband Wazeer Ali and Rafeeq brother of Shareef at P.S. Saddar, Pakpattan, which was decided in the year 2005 by the learned Addl. Sessions Judge, Pakpattan. In the said case, my husband Wazeer and Shareef were sentenced to death, whereas Tahir Wazeer deceased of this case and my son Rafeeq were convicted and sentenced to imprisonment for life in that case and Tariq was acquitted by the learned trial court. The convicted accused of the above referred case filed appeal before Hon'ble High Court, which was decided about 1 1/2 years prior to present occurrence, in which Tahir Wazeer deceased and Rafeeq were acquitted, whereas the sentence of my husband Wazeer and Shareef was converted to imprisonment of life from death sentence. It is correct that my husband Wazeer and Shareef are confined in the Central Jail, Sahiwal and are serving their sentence. It is correct that Muhammad Yar accused present in court was a PW of recovery of weapon of offence in case FIR No.482/03, referred above and he had appeared as a PW in the learned trial court." She (PW-1) further deposed during cross-examination that, "Maqsood accused was cultivating the Auqaf land. PW volunteered that he snatched that land from complainant party, Maqsood accused had been cultivating the said land for the period of 18 years. PW volunteered that we had been jointly cultivating that land. It is incorrect that my volunteering statement is false and incorrect. It is correct that my son had obtained six acres of agricultural land out of the said land in the year 1999. It is incorrect that Maqsood Ahmed accused, by giving higher bid of the land, on lease with my son Tahir Wazeer deceased, got the said land from Auqaf Department on lease. The PW volunteered that Maqsood Ahmed accused had forcibly occupied the said land under lease of my son, which the deceased had gone to jail in the above-referred previous murder case. The PW further volunteered that Maqsood Ahmed accused had also forcibly occupied the crop of deceased in the said land. It is correct that due to the above said forcible occupation of land under cultivation of the deceased by Maqsood Ahmed accused, we had grievance (Dukh) against him." Mubarak Ali (PW-2)-the eye witness deposed during cross-examination that, "It is correct that my father Wazeer, Shareef paternal nephew of my father, and my brother including the deceased, were convicted in the murder case, relating to the murder of Yaseen, brother of Maqsood accused of this case and my father Wazeer and Shareef his co-accused, are serving imprisonment for life in the Central Jail, Sahiwal. Maqsood accused had snatched and forcibly occupied our land which was on lease with us from the Auqaf Department and there was also litigation between us and Maqsood etc about the said land. There was also civil litigation between us and Maqsood before the present occurrence. It is correct due to criminal and civil litigation, there was enmity between us and Maqsood etc. prior to present occurrence." Mst. Noor Bhari (PW-1)-complainant deposed during cross-examination that, "It is correct that there was civil litigation between us and Maqsood Ahmed accused and the litigation went up to the august Supreme Court." The motive is a double edged weapon, which can be used for the commission of crime or for falsely implicating the accused. It is not necessary for me to advert to the evidence on the question of motive as it is fairly admitted by both sides that they were enmeshed in civil and criminal litigation since long. When there are open hostilities between two groups, the motive factor may propel one side to indulge in crime and the same factor may possibly also induce the other group to implicate their rivals. On the other hand Muhammad Arshad S.I. (CW-8)-the investigating officer deposed during cross- examination that, "It was found in my investigation that Maqsood and Muhammad were found involved in this case because they had given evidence against deceased and his relatives for murder of Yaseen, brother of Maqsood, hence, both these persons, Maqsood and Muhammad Yar, have been falsely involved due to that evidence given by them against deceased and his relatives. I have verified the alibi of Maqsood and Muhammad Yar from their village and I have recorded the statements of witnesses in defence of Maqsood accused that he was present in his village at the time of occurrence, namely Ahmed Yar s/o Muhammad Haneef, Abdul Ghaffar son of Kareem Bakhsh, Muhammad Afzal s/o Ahmed Din, Muhammad Yar son of Ahmed Din Lambardar and eight other respectables namely Khaleel Sheikh, Saeed Sheikh, Akram and Muhammad Ashraf Joiya and they given defence of their alibi in favour of Maqsood and Muhammad Yar accused persons. It is correct that on 23.11.2020, 47 respectables appeared in defence of Maqsood Ahmed and Muhammad Yar and again on 27.11.2020, 38 persons appeared and they given defence that both the accused were innocent and were present in the village on that day. I found the accused Maqsood and Muhammad Yar not involved in this case after collecting evidence in their defence and being verifying their statements factually. The SHO and DSP/SDPO also verified my investigation." All these circumstances, in my view, cast a serious doubt on the testimony of Mst. Noor Bhari (PW-1)-complainant and Mubarak Ali (PW-2)-the eye witness. The appellants are clearly entitled to benefit of doubt on that score.
14. The learned counsel for the complainant had put much emphasize that after the occurrence, the appellants absconded themselves. However, in the light of the statement of Muhammad Arshad S.I. (CW-8)-the investigating officer, it could not be said that the requirements of declaring a person proclaimed offender were met with. Muhammad Arshad S.I. (CW-8)-the investigating officer did not contact the Lumberdar and Chowkidar. Muhammad Arshad S.I. (CW-8)-the investigating officer deposed during cross-examination that, "I raided the houses of accused persons till 05.07.2020 for so many times, but accused persons were not available. Similarly, they did not appear before me after having their bail before arrest. It is correct that on 05.07.2010, I got warrants of arrest of accused persons from the court of learned Area Magistrate and proceeded against them u/s 87 of Cr.P.C. It is correct that I fixed the copy of proclamation on the houses of accused, in the gate of court premises and general bus-stop. It is correct that I submitted the challan under section 512 Cr.P.C. against the accused persons on 15.07.2010, which was returned by the Prosecution Department with objection that statement of constable was not recorded and inspite of the constable, I myself fixed the proclamation of accused at different places. It is correct that subsequently, I redressed the objection of Prosecution Department and submitted challan u/s 512 of Cr.P.C. against the accused persons on 01.10.2010. it is correct that all the accused persons remained proclaimed offender for about 6 months after the occurrence.
Thereafter, I arrested the accused persons, namely Maqsood, Riaz, Muhammad Yar and Mumtaz, on 15.11.2010." However, the factum of abscondence, even if established, could only be used as corroborative evidence and was not substantive piece of evidence. It is established principle of law that mere absconsion is not a proof of guilt of an accused. Reliance is placed on "Rasool Muhammad v. Asal Muhammad and another" (PLJ 1995 SC 477). From the above it can be ascertained that prosecution has badly failed to bring home guilt of the appellants through straight forward, confidence inspiring and corroborative evidence.
15. As far as recovery of gun 12 bore (C-1) along with four live cartridges (C-2/1-4) from Ghulam Murtaza (co-accused since acquitted), gun 12 bore (C-3) along with one live cartridges (C-4) from Mumtaz Ahmad-the appellant No.2 and pistol 30-bore (P-5) along with four alive bullets (C-6/1-4) from Raiz Ahmed-the appellant No.3 and positive report of FSL (Ex.PE) are concerned, it does not support the prosecution case as parcel of crime empties were deposited with the office of forensic science agency, Punjab, Lahore on 27.09.2010. The prosecution has not established link between the recovered weapons and crime empties with the report of Punjab Forensic Science Agency (Ex.PE), making the case of the prosecution highly doubtful. Akhlaq Ahmad 734/Constable deposed during examination-in-chief that, "On 08.06.2010, Mansab Ali Moharrar HC delivered to me a sealed parcel containing blood stained earth and another sealed parcel containing the crime empty for onward transmission to the office of Chemical Examiner Lahore and Forensic Science Laboratory, Lahore, where I delivered both the sealed parcels intact on 09.06.2010." Similarly Mansab Ali 483/Constable (CW-6)-moharrar malkhana deposed during examination-in-chief that, "------and another sealed parcel crime empties relating to this case for custody in the Mall Khana of police station. On 08.06.2010, I delivered both the said sealed parcels intact to Akhlaq Ahmed 734/C, for delivering the same in the respective offices." Whereas on perusal of report of Punjab Forensic Science Agency (Ex.PE), it reveals that Akhlaq Ahmad 734/Constable submitted parcel of crime empties on 27.09.2010. As it is the case of the prosecution that Mansab Ali 483/Constable (CW-6)-moharrar malkhana handed over the parcel of samples to Akhlaq Ahmad 734/Constable on 08.06.2010 for onward transmission to the office of Punjab Forensic Science Agency, Lahore, whereas, report of Punjab Forensic Science Agency (Ex.PE) available on the record reveals that Akhlaq Ahmad 734/Constable deposited parcel of the empties with the office of Punjab Forensic Science Agency, Lahore on 27.09.2010. There is, thus, no evidence to connect the report of Punjab Forensic Science Agency (Ex.PE) with the above said weapons recovered on the pointing of the accused. The said contradiction in the deposition of the aforementioned police officials as well as report of Punjab Forensic Science Agency (Ex.PE) cannot be stated to be minor and irrelevant in the absence of the positive and material evidence. This creates doubt about the genuineness of the recovery of crime empties.
16. From the facts and circumstances narrated above, I am persuaded to hold that the prosecution had not been able to prove its case against the accused beyond shadow of doubt as there were many dents in the prosecution story. In the present case, the possibility of the occurrence being not witnessed by both prosecution witnesses cannot be ruled out, as such the conviction and sentence recorded by the learned trial court cannot be sustained. Reliance has been placed on the case reported as {{"Muhammad Akram v. The State" (2009 SCMR 230)}} wherein the Hon'ble Supreme Court of Pakistan held that:- "Even single circumstance creating reasonable doubts in a prudent mind about the guilt of the accused makes him entitled to the benefit, not as a matter of grace and concession but as a matter of right."
17. Therefore, from the evidence on record, I find that a reasonable doubt exists in the prosecution version. The genesis of the occurrence has been concealed. The occurrence has not taken place as deposed by the PWs. The ocular evidence is also not proved beyond any reasonable doubt to the extent of the appellants. The PWs also cannot be held as reliable witnesses. Therefore, giving the benefit of doubt to the appellants, the Crl. Appeal No.991 of 2012 filed by Maqsood Ahmad, Mumtaz Ahmad and Riaz Ahmad, appellants is accepted in toto. Resultantly, the conviction and sentence recorded by the learned trial court vide judgment dated 03.05.2012 is set aside, as a consequence whereof, the appellants-Maqsood Ahmad, Mumtaz Ahmad and Riaz Ahmad are ordered to be acquitted of the charge in a private complaint filed under Sections 302/148/149 PPC P.S. Saddar, District Pakpattan titled {{"Mst. Noor Bhari Vs. Maqsood Ahmad, etc"}}. The appellants are present on bail. Their sureties stand discharged from the liability.
18. So far as Criminal Revision No.949 of 2012 filed by the complainant, namely Mst. Noor Bhari for enhancement of sentence awarded to the respondents No.2 to 4 by the learned trial court is concerned, for the reasons afore-stated, the same is devoid of any legal force, which is accordingly dismissed.
19. As far as P.S.L.A No.244 of 2012 seeking conviction of respondents Nos.1 to 4 is concerned, for what has been discussed above in the light of prosecution evidence, medical evidence and documentary evidence, the acquittal of respondents Nos.1 to 4 does not suffer from any illegality so as to call for interference of this Court with the impugned judgment. This court has also taken note of the settled principle of criminal jurisprudence that unless it can be shown that the judgment of the lower court is perverse or that it is completely illegal and no other conclusion can be drawn except the guilt of the accused or there has been misreading or non-reading of evidence resulting in miscarriage of justice. Even otherwise, when accused is acquitted by a court of competent jurisdiction, double presumption of innocence is attached to his case. The acquittal order cannot be interfered with, whereby an accused earns double presumption of innocence as held in {{Muhammad Mansha Kausar v. Muhammad Ashgar and others (2003 SCMR 477)}}. In this case the prosecution has not been able to bring on record adequate incriminating evidence against respondents Nos.1 to 4, which connects them with the alleged crime. The learned trial Judge has advanced valid and plausible reasons for recording acquittal in favour of respondents Nos.1 to 4.
The judgment of acquittal does not call for any interference. Consequently, I find no merit in this P.S.L.A No.244 of 2012 which is hereby dismissed being without merits.