' The present revision petition has been filed to call in question the legality and propriety of the judgment, dated 24-6-1989 whereby the learned Additional Sessions Judge, Gujrat had acquitted all the accused under section 302/148/149, P.P.C. By giving them benefit of doubt.
2. The brief facts of this case are that Mori, Lala sons of Yara, Muhammad Mansha, Sikandar sons of Pallo, Sikandar son of Karam All and Ahmad son of Mirza residents of Village Hassan, Tehsil Phalia District Gujrat and Sultan and Bahadar sons of Khawaja residents of village Majhi, Teshil Phalia, District Gujrat were tried by the learned trial Court for having committed murder by causing the death of Ghulam Ali son of Roshan in furtherance of their common object on 26-10-1987 at 8-30 a.m. At Ganj Bakhsh Road in front of Haveli Muhammad Hussain within the area of Police Station, City Mandi Bahadud Din after being armed with deadly weapons.
' The case of the prosecution as contained in the' F.I.R. Lodged by Ghulam Murtaza P.W.5 son of the deceased, is as under:-- "It is stated that I am resident of village Hassan and student of 9th class in Government M.B. High School. My father was also science teacher in the said School. I and my father had been residing in Mohallah Shafqatabad, M.B. Din. Today in the morning, I and my father were going to School from our house on a bicycle when at about 8-30 a.m. We reached the gate of the Haveli belonging to Muhammad Hussain at Ganj Bakhsh Road then from a Gali in the south Mori, Lala sons of Yara armed with .12 bore guns, Sikandar son of Pallo armed with .12 bore gun, Mansha armed with pistol, Ahmad son of Mirza armed with .12 bore gun, Sikandar son of Karam All with .12 bore gun, all Jat Gondal by caste residents of village Hassan, Sultan and Bahadar sons of Khawaja caste Jat Gondal residents of Majhi armed with .12 bore guns having conspired together were found standing and they suddenly raising Lalkaras launched an attack on us. Sikandar son of Karam Ali and Sikandar son of Pallo caught hold of my father by his arms. I climbed down from the bicycle. The bicycle fell down on the ground and Mori accused raised Lalkara to the effect that today you will be given taste for committing the murder of his brother, and at the same time, said Mori fired a shot from his gun which hit my father on the left side of his abdomen. My father fell down on the ground with his face towards the ground and while he was in fallen condition, Mansha fired a shot from his pistol which hit my father on his back. Lala and Ahmad also made fires from their respective guns at me, but I lowered myself in order to save my fife and thus the fire shots went amiss over my head.
Sultan and Bahadar while standing nearby continued firing in the air and raised Lalkara to the effect that Ghulam Ali and his son Ghulam Murtaza be liquidated. On seeing my father critically injured, I raised an alarm and in the meantime, Muhammad Munir resident of Hassan, Saroo son of Saee caste Jat resident of village Khaira who were coming behind us reached the place of occurrence runningly and they also witnessed the whole occurrence with their own eyes and they having entreated with the accused saved my life. The motive for offence is that about 3-1/2 months ago, Soeni real brother of Mori accused was murdered and in the said murder case, my other relatives having been challaned were in jail while my father was on bail granted to him by the Court."
' F.I.R. Exh.PA./1 was recorded by Muhammad Anwar S.H.O. Police Station City, Mandi Bahauddin on the same day upon the statement of Ghulam Murtaza, complainant.
3. Muhammad Anwar S.H.O. P.W.11 prepared the injury statement of Ghulam Ali deceased Exh.P.J., his inquest report Exh.P.K. And the rough site plan of the place of occurrence Exh.P.L. He also seized bicycle of the deceased through memo. Of recovery Exh.P.C. And secured the blood-stained earth through memo. Exh.P.B. He also got prepared site plan in duplicate Exh.P.D. And Exh.P.D./1 from Mian Muhammad Siddique, Draftsman. All the eight accused were arrested by him on 3-11-1987. Lala accused got recovered .12 bore gun. Muhammad Mansha led to the recovery of .32 bore revolver and Mori accused led to the recovery of 12 bore double barrel gun from the houses. After the challan was submitted the formal charge under sections 302, 14.8 and 149, P.P.C. Was framed by the learned trial Court and in support of its case the prosecution examined twelve witnesses in all.
Ghulam Murtaza P.W.6 is son of the deceased and is an eye-witness of the occurrence who is supported by Muhammad Munir P.W.5, who also furnished the ocular account of the occurrence.
Soeni son of Muhammad Din P.W.9 is the recovery witness. He attested the recoveries of .12 bore gun from Lala, .32 bore revolver from Mansha and a gun from Mori accused. Dr. Ch. Rashid Javed P.W.12 did autopsy on the dead body of Ghulam Ali deceased on 26-7-1987 and in his opinion the death had occurred by shock and haemorrhage by injury No,1 which was sufficient to cause death in the ordinary course of nature. The probable time that elapsed between death and injury was immediate and between death and post-mortem was about 4 to 5 hours. Saro, Ghulam Rasool and Nazra P.Ws. Were given up as being unnecessary by the learned State counsel and the report of the Chemical Examiner Exh.P.M. And the positive report of Serologist Exh.P.O. Were also tendered in the prosecution evidence by the counsel representing the State and closed the case for the prosecution on 23-5-1989.
4. All the accused were examined on 3-6-1989 under section 342, Cr.P.C. And all of them had denied the incriminating circumstances against them and professed to be innocent. They all took up the plea that they were involved in the case due to enmity. None of the accused proddced any defence evidence, except Lala accused who tendered in defence evidence photo copy of the report under section 173, Cr.P.C. Exh.D.B. And copy of the statement of Mori accused as complainant Exh.D.C. And closed the evidence on 6-6-1989. All the accused have been acquitted by the learned Additional Sessions. Judge, Gujrat vide judgment, dated 24-6-1989.
5. The learned counsel appearing on behalf of the petitioner who sought the remand of-the case to the learned trial Court for fresh trial after setting aside the judgment dated 24-6-1989 has contended that the prosecution has proved its case through cogent, independent, reliable and unimpeachable evidence but the learned trial Court has illegally held it otherwise while acquitting the accused. It was also argued that the prosecution case has been proved by ocular testimony resting on P.W.5 Muhammad Munir and P.W.6 Ghulam Murtaza son of the deceased who were the natural witnesses of the occurrence but their evidence has illegally been rejected on extraneous grounds which is unwarranted under the law. It was also contended that the recovery of the weapons of offence which was effected from the accused was proved by P.W.9 and the Investigating Officer and their evidence has been discarded by the learned trial Court relying upon no good reasons. A strong motive was also urged having been proved by the prosecution and the corroboration was also sought from medical evidence which according to the learned counsel has not been weighed by the learned trial Judge. It was also argued that the learned trial Court has passed the judgment of acquittal arbitrarily, fancifully and capriciously by ignoring the material evidence produced by the prosecution, holding both the P.Ws. As chance and relative witnesses. It was lastly argued that the learned trial Court has failed to appreciate the evidence produced by the prosecution on the point of ocular testimony, recovery evidence, medical evidence and the motive which fully proved the case of the prosecution beyond reasonable doubt.
6. Mr. M.A. Zafar, Advocate while appearing on behalf of the respondents has contended that the presence of both P.W.5 and P.W.6 at the place of occurrence has not been proved and both being the chance witnesses cannot be relied upon. He also argued that both the witnesses cannot be termed as natural witnesses because their presence at the spot is improbable. It was argued-that Muhammad Munir P.W.5 is resident of village Hassan which is at a far off distance from place of occurrence and the explanation given by him of his being present at the place of occurrence is fanciful and cannot be accepted. Regarding the medical evidence it was submitted that it cannot be held as corroborative piece of evidence because the ocular evidence in this case is not unimpeachable. Regarding motive it was argued that it is a double-edged weapon; if it could be reason to murder the deceased it could as well be reason to charge accused falsely. On the point of recoveries it was argued that no recovery of the crime empties was effected so the weapons were not sent to the Forensic Science Laboratory and no report was placed on record so this evidence has got no evidentiary value in this case. It was also pointed out that Soeni P.W.9 the witness of recovery states that he was at a distance of one acre when the recoveries of the weapons of offence were effected. Lastly it was argued that the exercise of discretion must be in accordance with the dictates of justice and not arbitrary and fanciful and regard should be had to the trial Court's view of the evidence, the nature of the error committed, the magnitude of apprehended miscarriage or failure of justice and the possibility and the extent of prejudice to the accused, the chances of conviction and the expenses of a retrial.
7. I have heard the learned counsel for both the sides and have minutely gone through the evidence with the able assistance of the learned counsel appearing for the petitioner. To furnish the ocular account the prosecution examined Muhammad Munir P.W.5 and Ghulam Murtaza P.W.6.
Muhammad Munir P.W.5 is distinctly related to the deceased whereas Ghulam Murtaza P.W.6 is the son of the deceased. The claim of Muhammad Munir P.W.5 is that he alongwith one Saro (given up P.W.) had come to the house of Ghulam All deceased in the early hours of the morning on the day of occurrence for making purchase of wheat seed. He stated before the police that Ghulam Ali deceased asked them that as it was school time, therefore, they should follow him so that he might accompany them to purchase the seed after calling the role. He further stated before the police that he and Saro went towards the school when the accused were eight or nine Karams ahead of them. On confrontation with Exh.DA. It is found that these facts were not recorded there. Similarly this witness made many improvements in his statement made before the trial Court. From the evidence of this witness it is found that he is a chance witness. This witness is resident of village Hassan and is testifying an incident which occurred in the city of Mandi Bahauddin, which he happened to witness by chance as he has given a very novel explanation of his presence.
According to this witness he had only three or four rupees in his pocket on the day of occurrence but he had gone to purchase the seed. It is clear that he being a relative of the deceased and also being inimical towards some of the accused as stated by him during cross-examination, had manufactured a false story regarding his presence on the spot at the time of occurrence. The fact is that the deceased also belonged to village Hassan and he and this witness were the neighbours.
The conduct of this witness appears to be very odd because he has not been able to explain that how and from where Ghulam Ali deceased was to arrange for the purchase of wheat seed for him and for his companion Saro. Under the circumstances in my view Muhammad Munir P.W.5 was not a genuine witness and he had not witnessed this occurrence at all.
8. Similarly the presence of Ghulam Murtaza P.W.6 at the time of occurrence also cannot be believed. Had he been present there the accused being eight in number would not have allowed this witness to go unhurt. It is in his statement that when he got down from the bicycle he ran for the safety of his life. If it was so then it was not possible for him to witness this occurrence as a whole. This witness even has not been able to establish that he was a student in the school of his father and nor such certificate has been brought on record by the prosecution in support of the said contention. As both the eyewitnesses namely Ghulam Murtaza and Muhammad Munir are related to the deceased and being inimical towards the accused, therefore, their statements cannot be believed unless corroborated by unimpeachable evidence. It may be pointed out that no independent and disinterested witness has been produced in this case despite the fact that they had reached the spot. The explanation that the people in these days refrain to appear as P.Ws.
As nobody wants to risk his life, cannot be accepted in this case because Saro eye-witness named in the F.I.R. Who was accompanying P.W.5 has not been produced being unnecessary. He could be termed as an independent witness but now the inference would be that he was not prepared to support the prosecution case. In view of the improvements made by these witnesses in their statements before the Court and their statements being replete with discrepancies and contradictions are not worthy to be relied upon.
9. On the point of recoveries P.W.9 Soeni was produced who stated that he joined the police investigation and in his presence Lala, Mansha and Mori accused led to the recoveries of .12 bore gun, revolver and a gun from different places of their residential houses. This witness attested the recovery memos. Exhs.P.F. And P.G. Respectively. This witness states that he had gone to the police station to recommend the police for the release of one Mehdi who had been arrested by the police.
This witness has specifically deposed during cross-examination that at the time of the recoveries he remained standing at a distance of one Killa from the houses of the accused and he did not enter the houses of the accused persons at the time of recoveries. He also admitted that the police did not summon any Lumberdar, Chowkidar or Councillor of the village Hassan for the purpose of attesting the recoveries. It thus appears from the evidence that in fact no recovery was 'effected by the police in the presence of this witness as there is a violation of section 103, Cr.P.C. Regarding the recoveries so the simple statement of the Investigating Officer cannot be believed without corroboration. Moreover, it is very strange that no empty was found on the scene of occurrence so the weapons were not sent to the Fire-arm Expert to determine if those were used during the occurrence.
10. The medical evidence in this case has no corroboration because ocular evidence in this case is not unimpeachable. Regarding motive Muhammad Munir and Ghulam Murtaza stated that this incident had taken place because 3-1/2 months before the present occurrence, Soeni real brother of Mori accused was murdered and that Ghulam Ali deceased and his certain other relatives were challaned and as the deceased was on bail so the accused persons committed his murder for taking the revenge of the murder of Soeni.
' As discussed above motive is a double-edged weapon. If it could be the reason to murder the deceased it could also be the reason to falsely involve the accused persons. Motive evidence itself is no proof of the crime charged so the evidence of motive does not run in help to the prosecution in this case in view of the other evidence available on record.
11. The upshot of the above discussion is that I am not persuaded by the arguments advanced by the learned counsel for the petitioner that the prosecution has proved this case by cogent, independent, reliable and unimpeachable evidence. The evidence furnished by the eye-witnesses and the other piece of evidence are not free from all possible doubts and therefore does not satisfy the mind of this Court that the witnesses had spoken the truth. I, therefore, hold that the evidence furnished by the prosecution in the present case is extremely unsatisfactory, inconclusive and not worthy of reliance. I do not find it a fit case to set aside the judgment and to remand back the case to the trial Court for fresh trial. The revision petition, is therefore, dismissed.