MISS TALLAT YAQUB, J. - Abdul Wahad, Khan Javed Iqbal, Khanzada Lashkari Shahid and Shahzada Shaukat Khan were tried u/s. 302/34 PPG for the murder of Ghlam Qadir by learned Addl. Sessions Judge Gujrat who vide his judgment dated 27-4-1991 convicted them thereunder and sentenced the former two to death plus fine of Rs. 10,000/- or, in default to undergo further S.I. For six months and the latter two were sentenced to imprisonment for life with fine of Rs. 5,000/- each as compensation to the legal heirs of the deceased or in default to undergo six month's S.I. The convicts were ordered to pay Rs. 5,000/- each as compensation to the legal heirs of the deceased failing which to further undergo six months S.I. The convicts of imprisonment for life were also given the benefit of section 382-B, Cr.P.C.
2. The convicts have appealed to this Court whereas the learned trial Judge has referred the case to this Court u/s. 374 Cr.P.C, for confirmation of death sentence of the aforesaid two convicts. We propose to dispose of both these matters by this judgment.
3. The prosecution case as unfolded in statement Ex.PK of Mehr Zaman PW-10 which formed the basis of FIR Ex. PB is that on the fateful day i.e. 26-6-89 at about 9.00 p.m. The complainant, his brother Ghulam Qadir, deceased. Muhammad Matloob (given up PW) and Muhammad Aslant (PW-11) were sitting in their baithak in Chak No. 17 in the light of electric bulb, In the meantime, Ghulam Qadir, deceased left out the place stating that he was going to ask Muhammad Aslant, Shopkeeper to bring khad for use in Moonji crop. He had walked a few paces when Javed Iqbal appellant 'armed with l2 bore double barrel gun and the remaining three armed with l2 bore guns ameraged out of a hedge of "Sada Sohagan". Javed Iqbal raised a lalkara that Ghulam Qadir should not be spared today and fired at hint which hit hint on his chest, second shot of Abdul Wahad hit the victim on his belly and flank followed by the third fire of Shahzada, hitting Ghulam Qadir on his left leg, who fell down. In the fallen condition Khan's shot hit Ghulam Qadir on his left foot. The occurrence was witnessed by Muhammad Matloob (given up) and Muhammad Aslam PW-11, in the light of an electric bulb. After the occurrence the accused succeeded in running away to their dera while firing in the air.
4. The motive for the occurrence was longstanding enmity between the parties and pendency of cases in criminal Courts, In order to wreak vengeance, the accused in furtherance of their common intention tried to kill Ghulam Qadir who succumbed to the injuries on 5.7.1989 in C.M.H. Kharian. %
5. The investigation of the case was conducted by Mirza Zahid Iqbal, AS1 PW. 13 who visited the spot, prepared the injury statement of Ghulam Qadir Ex. PL and sent the injured under the escort of Muhammad Sharif PW 2 to Civil Hospital, Mandi Bahauddin. Later on the injured was brought to C.M.H. Kharian on account of his serious condition where he expired. The Investigating Officer took into possession Shalwar P.1. Shirt P.2 and vest P.3 of the injured vide recovery memo Ex.PA. He secured blood-stained earth from the spot vide recovery memo Ex.PLG. He then got prepared rough site plan Ex. PM. He also recorded the statements of the eye-witnesses Muhammad Aslam PW. 11 and Matloob(not produced) under section 161 Cr.P.C. He arrested the appellants on 29.7.1989.
He recovered gun P.6 at the instance of Khanzada Lashkari Shahid which was secured through recovery memo: Ex. PH. Ghulam Qadir died in C.M.H. Kharian on 5-7- 1989. The Investigating Officer prepared the injury statement Ex. PQ and sent the dead body for post-mortem examination. He took into possession the last worn cloths of the deceased vide memo. Ex.PH.
6. After usual investigation, the police challenged the appellants and sent up for trial.
7. Dr. Shafique Ahmad Medical Officer, Civil Hospital, Mandi Bahauddin PW.4 on 27-6-1989 at 1 a.m.
Medically examined Ghulam Qadir while in injured condition and found eight fire-arms entry wounds and one exit wound on his person. All the injuries were kept under observation. The duration of injuries as opined by the doctor, was 3 to 6 hours caused by fire arms. Considering precarious condition of the injured, the patient was referred to C.M.H. Kharian "where he succumbed to the injuries.
8. Dr. Asif Khan, Medical Officer PW. 5 on 6.7.1989 at 6.30 a.m. Conducted post-mortem examination on the dead body of Ghulam Qadir and found he following injuries thereon:-
(1) Entry/exit, a circular lacerated wound on right anterior chest in anterior axillary line measuring Vi cm x Vi cm x skin deep, no foreign body (metallic) palpable.
(2) Entry/exit, a circular lacerated wound right anterior chest on right sternal border in second intercostal space, 2/3 cm x Vi cm x skin deep, no foreign body (metallic) palpable.
(3) (a) Entry wound (a circular lacerated wound in epigas-trium, 2/3 cm x Vi cm skin deep, (subcutaneous tissues).
(b) Exit, a circular lacerated wound in right hypochondrium measuring 2/3 cm x Vi cm x skin deep (subcutaneous tissues).
(4) Entry a circular lacerated wound in left lumber region anteriorly Vi cm x Vi cm going deep.
(5) Entry. A circular lacerated wound in left illiac-fossa anteriorly close to anterior illiac spine Vi cm x Vi cm going deep.
(6-A) Entry;,, A circular lacerated wound on right leg medial side at junction of upper 2/3 with lower 1/3 measuring Vi cm x Vi cm x going deep.
(6-B) Exit. A circular lacerated wound on right leg lateral side at junction upper 2/3 with lower 1/3 (same level as entry_.
(7) Entry wound. A circular lacerated wound on right foot sole meial side (mid) Vi cm x 1 cm x going deep.
(8) Entry/'Exit. A linear stitched wound 3 Vi cm long 4 cm above ankle on medial side.
(9) Surgical incision. A linear stitched wound left para-median incisition of laparatomy 25 cm long.
In the opinion of the doctor, the death occurred due to haemoirhage and shock (septic shock) leading to cardio respiratory failure. Time between injuries and death was 1 to 2 weeks and that of between death and post mortem was 6 to 16 hours.
9. The appellants when examined under section 342 Cr.P.C, denied the prosecution allegations and stated that they had been involved in this case due to enmity with the prosecution witnesses, who are related to the complainant party. They did not make statements under section 340(2) Cr.P.C.
Muhammad Akbar Khan D.W, 1 testified the plea of alibi of Khan Javed Iqbal appellant by deposing that he was with him in Chak No. 129/15-L, Tehsil Mian Channu front 23-6-1989 to 27-6-1989 till 8.00 a.m., whereas Muhammad Ashraf D.W. 3 deposed that Adul Wahid appellant remained at the Shrine of Baba Shah Murad the whole night on 26- 6-1989. Ch- Muhammad Ashraf, DSP, (DW.4)- Who re-investigated the case also testified about the innocence of the appellants, except Khanzada Lashkari.
10. The learned trial Judge believing the prosecution evidence convicted the appellants and awarded them the sentence as indicated above.
11. The learned counsel for the appellants vehemently contended that the occurrence took place in the darkness of night and none of the eye-witnesses has seen the real culprit(s) and that they are deposing falsely in this case on account of their relationship with the deceased. The police recorded the statement of Mehr Zaman P.W. 10 at King Chowk after preliminary investigation and that the matter was reported to the police after speculation and due deliberation, as it was a blind murder and nobody knew about the actual culprit(s); hence no reliance can be placed on this dubious document, which has been fabricated later on. The ocular version stands negated by the medical evidence. The occurrence took place in a chowk, where numerous independent persons were available, but none has appeared to support the prosecution version, except Mehr Zaman PW.
10, real brother of the deceased and Muhammad Aslam P.W. 11, who is partisan of the deceased.
Both the eye-witnesses are the chance witnesses of the occurrence as they have failed to furnish any reasonable or plausible explanation for their presence at the spot.
The learned counsel further contended that out of four accused persons named in the FIR, except Khanzada Lashkari Shahid, the remaining three including the appellants were found innocent during the investigation, hence no implicit reliance can be placed on the ocular version in which so many innocent persons were involved without any rhyme or reason. The motive, though allege, remained unproved and in the presence of admitted enmity, the learned trial Judge has erred in law, by placing reliance on the ocular version which is in Conflict with the medical as well as circumstantial evidence. Unexplained delay in lodging the FIR was also pressed into service.
12. The learned counsel for the State has supported the impugned judgment.
13. We have critically examined the respective submissions of the learned counsel for the parties and have minutely perused the record with their able assistance.
14. There is substantial force in the submission of the learned counsel for the appellants that the FIR was recorded after preliminary investigation and that too after inordinate delay. The matter was reported to Zahid Iqbal, AS1 (PW.13) at King Chowk on 26-6-1989 at 11:25 p.m. Whereas the FIR Ex. PB was recorded on 27-6-1989 at 11.30 p.m, at the police station. Even this contention of the learned counsel gets further support from the medico-legal report of Ghulam Qadir, when he was alive.
According to Dr. Shafique Ahmad P.W.4, he examined Ghulam Qadir on 27-6-1989 at 1.00 a.m. And the injured was conscious at the time of his admission in the hospital. The injured was neither examined by the doctor with regard to the occurrence, nor on the report of the doctor his statement was recorded. The ocular version of Mehr Zaman P.W. 10 and Muhammad Aslam P.W. 11 that the injured become unconscious after receiving the injuries is belied by Dr. Shafique Ahmad P.W. 4 The failure on the part of the Medical Officer or the police to record the statement of the injured leads to this inference that by that time the injured or the eye-witnesses were not in a position to pin point the assailant(s). The occurrence took place in the darkness of night. It appears that later on the story of electric bulb was introduced in order to have sufficient light in which the witnesses could easily recognise the assailant(s). Additionally, we find that Zahid Iqbal, ASI (PW. 13) did not examine the injured at the time of recording the statement of Mehr Zaman at King Chowk, though he was present there with him. The non-recording of statement of the injured at the spot creastes further doubt in the prosecution version. Both the eye-witnesses apart from being the close relations of the deceased are the chance witnesses of the occurrence. The explanation offered by Mehr Zaman P.W.
10. Who is the real brother of the deceased that he had gone to the deceased's house in order to ask him to purchase fertilize is negated by him while making his statement Ex. P.K. To the AS1. Even Muhammad Aslam P.W.11. Who is resident of Chak No,. 14, which is located at a distance of one mile from the place of occurrence, has not furnished any reasonable and plausible explanation for his presence at the spot.
Mehr Zaman P.W. 10 in his deposition at page 42 of the paper book conceded:- "It is correct that all the four roads "id front of haveli lead to four different villages. It is, however, correct that the roads are being used by the passers by. During the days of occurrence my brother Ghulam Qadir used to reside with has were, alongwith Matloob, two other sons namely, Tariq, Tanwir an two daughters in that house"
He also conceded that were of the deceased alongwith other family members had also reached the place of occurrence, but they came after the occurrence.
It is strange to observe here that in spite of the fact that it was a thickly populated area, but nobody front the locality or from the adjacent house was examined by the police, which could have given some credence to the version of Mehr Zaman P.W.
10. There is background of enmity which is motive in this case. Even the ocular version is being negated by the medical evidence, as Mehr Zaman P.W. 10 has conceded in his deposition at page 43 of the paper book:- "When accused persons raised lalkara Ghulam Qadir was going so his back was facing towards accused persons. Deceased Ghulam Qadir was going from west towards east."
Whereas the doctor observed the injuries on the front side According to the site plan, the accused caused injuries to the deceased with their respective weapons from a distance of 18 feet, but the description of injuries as given by Dr. Shafique Ahmad P.W. 4 belies the ocular version, as he found all the injuries with blacening, which could-only be caused, as per the deposition of the doctor, upto seven feet.
The number of injuries received by the deceased and non-availability of any crime empty at the spot creates further doubt in the prosecution case. According to the prosecution at-least eight shots were fired, but no crime empty was found at the sprit. Both the eye-witnesses deposed that the deceased and the witnesses were sitting on a Thhara on cots, but in the site plan, neither the Thhara nor the cots were shown. Even the object for which the deceased was leaving the place of occurrence does not stand to reason. He was not expected to see Muhammad Aslam shopkeeper at 9.00 p.m. To enquire about the availability of fertilizer, which job could be done easily in the day time. There was no such emergency that the witness could not wait for a few hours more, as there was no eminent danger to the crop sown by the deceased due to the non-availability of the fertilizer. It appears that this pretext was coined by the witnesses just to show their presence at the scene of occurrence.
According to Mehr Zaman P.W. He took the injured in a car which he hired from Chak No. I6, whereas Zahid Iqbal AS1 deposed that when he recorded the statement of the first informant at King Chowk he was in hilux alongwith the injured and this material contradiction remained unsolved, which shows that this document was later on fabricated by the police officer, as this document took more than 26 hours to reach the police station.
There is great force in the submission of the learned counsel that it was an unwitnessed crime, which was committed in the darkness of night and the injured remained unattended. A police constable after learning about the incident took him to the hospital, as is apparent from the medicolegal report. Had the injured was accompanied by Mehr Zaman P.W. Then in the relevant column his amen would have been found mention. As the deceased was unable to identify the assailant, hence the police waited for some time and ultimately procured the services of Mehr Zaman PW. 10 to become the complainant, who was resident of different house though residing at a distance of ten acres from the place of occurrence, in view of his enmity with the accused persons he mentioned their names as culprits in his statement Ex. PK.
In numerous cases this Court has observed that a statement of the complainant if recorded at the spot should be thoroughly scrutinized, by way of abundant caution' and due pre-caution be taken while appreciating the evidence of the witnesses mentioned therein so as to eliminate the chances of false implication. Even Zahid Iqbal AS1 in spite of opportunity given to him failed to explain for what purpose he was present at King Chowk. This witness admitted that he left the police station at about 6/7 p.m. On 26-6-1989, for patrol purposes, but did not remember whether he had made- an entry regarding his departure in the daily dairy of the police station or not. This witness admitted that he did not remember the details of the case regarding which he was present at King Chowk.
He firstly denied the suggestion that he had prepared Ex.P.K, at the spot after carrying out preliminary investigation, but in the same breath he admitted that he had wrongly shown the recording of said statement i.e. Ex. PK at King Chowk (P.
57. Of the P.B)
From the extracts quoted from the statement of the police officer, it is evident that Ex.Pk is a fabricated document and no reliance can be place on the evidence so collected by him during the investigation.
15. To sum up, we may observe that the FIR was recorded after unexplained delay of 26 hours and that too after preliminary investigation, the complainant and Aslam PW-11 were not present1 when occurrence took place, the police kept the names of the accused open for roping in whom ultimately the complainant might wish to implicate. The eye-witnesses being related,, to the deceased were inimically disposed towards the accused and were interested witnesses. They could not satisfy the judicial test as their evidence was incompatible with the medical evidence and suffered from inherent infirmities, which could not be cured by any corroborative piece of evidence howsoever strong the same might be. The recovery of gun P-6 from Khanzada Lashkari Shahid appellant is of no help to the prosecution, because no crime empty was recovered from the spot and the prosecution has miserably failed to unearth the blind murder. Keeping all these factors in view, it is concluded that the prosecution has failed to prove its case against the appellants beyond reasonable doubt, thus giving benefit of doubt to the appellants, we accept this appeal, set aside the eonviction and sentences of the appellants and acquit them. They shall be set at liberty forthwith, if not required to be detained in any other case. The reference is answered in the negative.