KHALIL-UR-REHMAN RAMDAY, J.- Four persons, namely, Kala Khan, Fateh Khan, Bashir Khan and Sooba Khan were tried by a learned A.S.J. At Mianwali for the murder of one Muhammad Yousaf who extended the benefit of doubt to Fateh Khan and Sooba Khan and accordingly acquitted them but found Kala Khan and Bashir Khan guilty of the charge U/S 302/34 P.P.C, and after convicting them accordingly sentenced each one of them to death and to pay a fine of Rs.5,000/- or to suffer two years R.I. In default of payment of the said fine. Half of the fine was directed to be paid to the heirs of the deceased. This was vide judgment dated 5.12.1988 of the said learned A.S J.
2. Murder Reference No.26 of 1989 seeks confirmation of the death sentences imposed on bashir Khan and Kala Khan convicts who in turn challenge their said conviction and sentences through Crl. Appeal No.1232 of 1988.
3. Both these matters are being disposed of together through this single judgment.
4. One Gul Jahan had alleged through F.I.R. No.47 dated 10.2.1988 recorded at P.S. City of District Mianwali at 12.30 P.M. That on the said day he was on his way to the District Courts to consult some lawyer in connection with his case and when he had reached the bus stand of Mianwali, Muhammad Iqbal and Ghulam Muhammad. P. Ws.6 and 7 respectively, were also standing there and the three after exchanging greetings stated talking to each other.
5. He had further alleged that at that time, Muhammad Yousaf deceased who was riding a bicycle was coming towards the bus stand from the canal side and just when he was about 25 yards away from the complainant and the aforesaid two eye-witnesses the four accused persons above- mentioned who were all armed with fire arms and who were sitting in ambush, suddenly got up and after raising a LALKARA to avenge the abduction of Mst. Walayat Khatoon, launched attack on Muhammad Yousif deceased. Bashir appellant allegedly opened the proceedings and fired a shot with his 12 bore gun which hit the deceased on his right shoulder and exited from the left side as a result of which, Yousaf deceased fell down from his bicycle whereupon,. Kala Khan appellant fired a shot from his 12 bore gun which hit the deceased on his right flank and during these proceeding, Fateh Khan and Sooba Khan kept standing at the place of occurrence with their Pistols and continued to warn that no one should come near or intervene.
6. After this occurrence, all the four alleged assailants left the place of occurrence and went away.
7. Gul Jahan complainant had claimed that Yousaf deceased had abducted one Mst. Walayat Khatoon who was a sister of Sooba Khan (acquitted accused) and Bashir appellant and in which connection, the said deceased stood challaned and was facing trial and further that Yousaf deceased had, after this abduction, injured Sooba Khan (acquitted accused) with a gun shot and was facing trial even on that charge and that it was to avenge these acts of Yousaf deceased that all the four alleged assailants to murdered him.
8. The case of all the four accused persons was that they were innocent and it was one Wazir Khan, a brother of Sooba Khan (acquitted accused) and Bashir appellant who had done the deceased to death.
9. This Wazir Khan in fact surrendered before the police and volunteered to make a confessional statement and after being produced before Mr. Muhammad Aslam Arshad, M.I.C. (CW-3), made a statement U/S 164 Cr.P.C, which is Exh.CW3/C and confessed that it was he who had killed Yousaf deceased near the bus stand and that the accused persons who were being tried for this charge were innocent.
10. Before embarking upon an examination of the evidence available on record, it would be appropriate to notice some of the relationships which have come on record and which would be material for the adjudication of the matters in hand.
11. Bashir appellant and Sooba Khan (acquitted accused) are real brothers inter se. Their father Nawaz is a real brother of Kala Khan appellant and Fateh Khan (acquitted accused).
12. The father of said Kala Khan, Fateh Khan and Nawaz and the father of Yousaf deceased are also real brothers inter se and the mother of the said Kala Khan, Fateh Khan and Nawaz is a sister of the mother of Yousaf deceased.
13. The mother of Yousaf deceased, namely, Mst Amiran Khatoon' was originally married to one Ghulam Hassan who was murdered sometimes before the year 1947 whereafter, she married Isab Khan.
14. Gul Jahan (PW-4) is the son of this Mst. Amiran Khatoon from his first husband, namely, Ghulam Hassan whereas Yousaf deceased is the son of the said Mst. Amiran Khatoon from her second husband, namely Isab Khan.
15. Thus Gul Jahan (PW-4) is also a KHALAZAD of Kala Khan appellant, Fateh Khan (acquitted accused) and their brother Nawaz who is the father of Bashir appellant and Sooba Khan (acquitted accused).
16. Muhammad Iqbal (PW-6) is a son of a cousin of Gul Jahan (PW-4) whereas Ghulam Muhammad (PW-7) admits to have known Gul Jahan complainant (PW-4) since his child-hood.
Although he denied the suggestion that Mst. Walayat Khatoon and Yousaf deceased had stayed in his house for 10/12 days after the abduction above-mentioned but admitted that both of them incidently came to his house and he had offered them tea.
17. In the above-mentioned abduction case of Mst. Walayat Khatoon who is a sister of Bashir appellant and Sooba (acquitted accused) which abduction had taken place on 17.6.1986, Yousaf deceased was the nominated accused person. After recovery of the said Mst. Walayat Khatoon, she had involved Gul Jahan complainant (PW-4) and the other two eye-witnesses of the present murder case, namely, Muhammad Iqbal (PW-6) and Ghulam Muhammad (PW-7) also as the persons responsible for her abduction etc., and all three of them stood challaned and were facing the said trial during the days of the present murder case.
18. Besides this enmity, Gul Jahan complainant further admitted that one Muhammad Khan, a brother of Kala Khan appellant and Fateh Khan (acquitted accused) had got murdered about 25/26 years ago and for the said murder, this Gul Jahan complainant, his brother Ramzan and his KHALAZAD namely, Ahmad Khan were convicted and sentenced to imprisonment for life and had got released only a shortwhile before the present occurrence. He had further admitted that he had got a case registered against Kala Khan appellant, Sooba Khan (acquitted accused) and one Sher Muhammad U/S 436 P.P.C, on 3.9.1986 and stated that all three of them had been acquitted in the said case. He also admitted that kala Khan appellant and Fateh Khan (acquitted accused) had injured him with a Pistol shot prior to the occurrence and that they had been acquitted of the said charge but claimed that it was on account of a compromise that these two had secured their acquittal.
19. In this view of the matter, all the three alleged eye-witnesses, namely, Gul Jahan complainant (PW-4), Muhammad Iqbal (PW-6) and Ghulam Muhammad (PW-7) are inimical witnesses.
20. The F.I.R, of the present case conveyed the impression that it was through a sheer coincidence that Gul Jahan complainant who was allegedly on his way to the District Courts to consult some lawyer, had come across Muhammad Iqbal, Ghulam Muhammad P.Ws, and Yousaf deceased near the bus stand and having so met there by chance, the three eye-witnesses exchanged greetings and started talking to each other while the deceased was approaching them when he was shot dead.
21. But at the trial the three claimed that it was through a prior arrangement that they had to meet at the bus stand and were then to go to the District Courts together to meet Mr. Hamid Khan Niazi, Advocate, in connection with the above-mentioned abduction case.
22. If the purpose of the three alleged eye-witnesses and the deceased to collect at the bus stand, was to go to the District Courts which was allegedly their final destination, then it is not understandable as to why they should have selected the bus stand as the rendezvous to proceed further to the District Courts when they could have very conveniently met each other at the district Courts.
23. It is also on record that Iqbal P.W. Who is a son of a cousin of Gul Jahan complainant lived only a furlong or 1-1/2 furlong away from the house of Gul Jahan P.W.. If the two of them were to go to the district Courts, then it is also not understandable as to why at least these two could not have left their houses together to go to the District Courts.
24. All the three eye-witnesses admitted that on the day of occurrence, the abduction case involving them was not fixed for hearing. They however, claimed that they had to consult their layer, namely, Mr. Hamid Khan Niazi, Advocate, in the district Courts on the said day.
25. They further admitted that the abduction case in question had been going on for about two years since before the present murder and that it was one Mr. Khizar Hayat Khan, Advocate who had been representing them in the said case for all these years. They further admitted that till the day of occurrence, they had not engaged Mr. Hamid Khan Niazi, as their lawyer nor had the said advocate ever appeared on their behalf in the case in question till the said date and further that he had not even made any application on their behalf till the said day.
26. They however,tried to explain that Yousaf deceased had made a suggestion that they should engage some senior counsel to represent them in the abduction case and it was for this reason that all for of them i.e. The deceased and the three eye-witnesses had decided to go and talk to Mr. Hamid Khan Niazi Advocate, for the purpose.
27. This analysis of this part of the prosecution evidence demonstrates that all the three eye- witnesses were mere chance witnesses of the occurrence in question and the explanation of their presence at the place of occurrence does not sound convincing and does not inspire confidence.
28. The three eye-witnesses are thus not only inimical witnesses but are even chance witnesses of the occurrence in question.
29. No crime empty was found or recovered from the place of occurrence nor was any weapon of offence recovered from or at the instance of any of the four accused persons including the two appellants.
30. Thus the prosecution stands deprived of any possible corroboration which could have been available to the prosecution through such an evidence.
31. One Dost Muhammad S.I. Of P.S. City Mianwali who appeared as C.W.-2 claimed that while he was present in the premises of the District Courts at about 12.00 noon, he had heard reports of fires shot and having rushed to the bus stand, he found the dead body lying there and it was he who placed the dead body of Yousaf deceased on a cot and immediately reported the matter to the S.H.O, of P.S. City of Mianwali on wireless which was available in his official vehicle and further that after he had communicated this message to the police station, the S.H.O, had reached the spot within 10 to 15 minutes alongwith the police party.
32. This S.I. Had further claimed that after reaching the spot he was informed by the shopkeepers around the place of occurrence, on his inquiries, that it was only one person who fired at the deceased and had killed him.
33. The claim of the eye-witnesses is thus being contradicted by this Court witness who obviously had no interest in the accused persons.
34. The prosecution claim is further belied by the testimony of Malik Muhammad Akram D.S.P. (CW- 1)and Mohammad Ashiq (CW-6) who had found that all the four accused persons named in the F.I.R, including the two appellants were innocent.
35. These two I.Os. Had further stated that 44 persons including members of the Union Council and of the Municipal Committee of Mianwali had appeared before them in defence of these accused persons and had even offered to take customary Oath on the Holy Quran to state that all the four accused persons named by the complainant were innocent and that the complainant party had not accepted this offer. These I.Os. Had also stated that the accused persons including the appellants had challenged each one of the 44 persons who had appeared before them from the complainant side to state, after taking Oath on the Holy Quran that these accused persons including the appellants were guilty and that even this offer had not been accepted by the complainant party or any of the persons appearing in support of their case.
36. The said I.Os. Had also stated that it was generally being stated that all the four accused persons nominated by the complainant and the eye-witnesses were innocent and that similar statements were made even by the eye-witnesses during the course of investigation though these eye-witnesses denied having made any such statements before these I.Os. And were confronted with their statements recorded U/S 161 Cr.P.C, which statements corroborate the stance taken by the two I.Os..
37. The defence had also successfully highlighted certain material improvements made by the eye-witnesses at the trial as against the case stated by these eye-witnesses before the Magistrate inquiring into the matter under section 202 Cr.P.C..
38. It may be mentioned here that as a result of the investigation, all the four accused persons had been declared innocent and it was Wazir Khan above-mentioned who was a brother of Bashir Khan appellant and Sooba Khan (acquitted accused) who had been challaned to face trial whereafter, Gul Jahan complainant (PW-4) had filed a private complaint) against the four persons nominated by him in the F.I.R..
39. Besides the above noticed facts available on record which strongly militate against the guilt of the appellants, there is yet another piece of evidence which makes the prosecution case further doubtful. This is a confessional statement of Wazir Khan which has been noticed above.
40. This examination and analysis of the material available on record leads us to believe that the guilt of Bashir Khan and Kala Khan appellants is open to serious doubts and exceptions and we hold accordingly.
41. Consequently Crl Appeal No.1232 of 1988 is allowed. The conviction and the sentences recorded against the two appellants are set-aside and they are acquitted of the charge levelled against them.
42. They shall consequently be released forthwith, if not required to be detained in any other case.
43. Murder Reference No.26 of 1989 is also answered in the above terms.