TASSADIQ HUSSAIN JILLANI, J: --By this judgment, we intend to dispose of Murder Reference No.439 of 1992 and Criminal Appeal No-960 of 1992.
2. Through the abovementioned appeal, the appellants Qasim A.I and Hakim A.I have challenged the judgment dated 7-11-1992 passed by the learned Additional Sessions Judge, Okara whereby he convicted the appellants under section 302/34, P.P.C. For the murder of Bashir Ahmad, and sentenced them to death and a fine of Rs.10,000 each in default whereof one years' R.I. Each. They were also directed to pay compensation of Rs.20,000 each which if realized is to be paid to the legal heirs of the deceased. Other co-accused namely Muhammad Hanif, Machia, Rustam, Muhammad Iqbal, Faiz Ahmad and Salahuddin were, however, given the benefit of doubt and acquitted.
3. Prosecution story as narrated by Shameer complainant (P.W.3) who is real brother of Bashir deceased is that in the afternoon of 21-4-1990, his mother Mst. Wallan P.W.10, her sisters Mst. Sattan and Mst. Sallan and his younger brother Muhammad Iqbal P.W.11 went to Square No.40 to harvest the wheat which they had sown. As the complainant, Bashir deceased and Sarwar came back from Okara City they were told by Aslam that their mother, her sisters and brother lqbal had been attacked and injured by the accused party while they were harvesting their wheat. On coming to know about this, complainant Shameer, Bashir deceased, Sarwar and Ramzan (since dead) proceeded towards Square No.40. At about 5-30 p.m. They saw Hanif and Rustam accused armed with Sotas while the remaining accused. (except Salahuddin) armed with .12 bore guns hiding in the wheat crop. As they alighted from the trolly, 'the accused emerged from the crop. Qasim accused while raising Lalkara said that they would teach them a lesson for cutting the wheat crop, fired from his gun which hit on the abdomen of complainant's brother Bashir deceased. Hakim A.I accused thereafter fired a shot which too hit his abdomen and while he was falling down, Iqbal accused fired which hit Bashir on his left arm. Bashir died at the spot. It was further alleged that Faiz and Machia also fired at them but they saved themselves by lying in the nearby watercourse. All the accused except Salahuddin decamped. The occurrence it was stated took place at the instigation of Salahuddin (since acquitted).
4. The motive of the occurrence as alleged by the complainant was that the complainant party was in possession of the disputed land which Qasim appellant had purchased sometime prior to the occurrence. The appellants allegedly wanted to forcibly take possession of this land.
5. F.I.R. Exh.PC was recorded by Mehmood Sarwar P.W.15 on the statement of Shameer P.W.3 in the police station. Immediately thereafter he proceeded to the spot and prepared inquest report Exh.PP. During spot inspection he took into possession blood-stained earth vide Memo. Exh.PE. He also took into possession crime empties Pl and P2 and converted into sealed parcel vide Exh.PD. T hese were sent to Forensic Science Expert but were not found to match with guns (P7) recovered as per report Exh.PD.
6. Besides, the complainant, the prosecution examined the following as ocular witnesses:---
(i) P.W.4 Muhammad Sarwar (maternal cousin of the complainant), P.W.7 Muhammad Aslam (maternal cousin of father of the complainant), P.W.10 Mst. Wallan (she is injured and mother of the deceased) and P.W. 11 Muhammad Iqbal aged about 9 years. It was however, found not to be competent witness by the trial Court as he was too young to reply to questions put to him. Mst.
Sallan and Mst. Sattan were given up as won over whereas Muhammad Ramzan cited as an eye- witness in the F.I.R. Died on 11-3-1993 and could not be produced.
7. Recovery: --(i) Shameer P.W.3, Sarwar P.W.4 and Mehmood Sardar P.W. 15 were examined to prove recovery of two crime empties (Pl and P2 vide Exh.PD) and blood-stained earth.
(ii) Shameer P.W.3, Mehmood Sardar P.W.15 and Ramzan (since dead) witnessed the recovery of gun P10 vide Exh.PJ from Qasim A.I and gun from Machia (since acquitted) vide Exh.PG.
8. Medical.---Dr. Saeed P.W.12 conducted the post-mortem examination on the dead body of Bashir Ahmad deceased, and found the following injuries on his person:---
(1) Multiple lacerated wounds on an area 8 c.m. x 6 c.m. Each measuring 1/4 c.m. x 1/2 c.m. Deep going blackened and inverted margins on left side of abdomen; 2 c.m. From umlicus and 6-1/2 c.m.
From the left costal margin (alongwith the corresponding holes on the clothes).
(2) Four lacerated wounds in an area 9 c.m. x 1-1/2 c.m. On back upper left forearm each measuring 1/2 c.m. x 1/2 c.m. x bone deep with blackened and inverted margins (wound of entry).
(3) Three lacerated wounds on an area 6 c.m. x 1-1/2 c.m. Each measuring 1/2 c.m. x 1/2 c.m. Everted margins on the inner upper left forearm (wound of exit).
9. According to him, injury No.1 was sufficient in ordinary course of nature to cause death and had been caused with a fire-arm. He also examined Mst. Sallan, Mst. Sattan and found 3 and 2 injuries respectively on their persons which were simple and caused by blunt weapons.
10. Dr. Ishtiaq, Medical Officer D.H.Q. Hospital, Okara appeared as P.W.6 to state that he examined P.W.11 Muhammad Iqbal and found a swelling on the left side of his chest and middle region.
11. All the accused when examined under section 342, Cr.P.C. Denied the prosecution story and attributed false implication to enmity and party faction. Qasim accused, however, gave his own version of the incident. He said, "My wife was present at my tube well situated in Square No.40 at her residence. Bashir Ahmad deceased, while armed with Sota started beating my wife and started causing injuries on her head and other parts of body. When Bashir Ahmad deceased was beating her, at that time my nephew Sarfraz son of Hakim A.I aged 14/15 years having a licensed gun of his father reached at the spot. When Bashir deceased was causing injuries with Sota to my wife, Sarfraz son of Hakim A.I in order to save the life of my wife in exercise of right of private defence fired a single shot at the deceased".
12. The appellants produced Mst. Zenab D.W.1 who is wife of Qasim accused who corroborated the defence plea taken by Qasim accused in his statement under section 342, Cr.P.C.
13. In support of his appeal, the learned counsel for the appellants has urged the following points:-- -
(i) That the prosecution story is false. The incident according to him, took place in the manner described by Qasim accused in his statement under section 342, Cr.P.C. This defence version is corroborated by D.W.1 Mst. Zenab Bibi who was victim of the attack by Bashir deceased.
(ii) That the defence version according to learned counsel was taken up by Qasim accused at the earliest i.e. At investigation stage and the police dishonestly did not probe into it. The Investigating Officer P.W.15 Mehmood Sardar Inspector admits that Mst. Zenab Bibi D.W.1 was produced before him by the accused. He, however, did not record her statement as the complainant did not seek to associate Sarfraz alias Gogi with the investigation.
(iii) That the medical evidence also supports the defence version as P.W.12 Dr. Saeed Ahmad stated in his cross-examination that in case the victim is holding his right forearm against the abdomen injuries Nos.1 and 2 could be the result of one fire shot.
(iv) That the report of the Forensic Science Laboratory was not produced by the prosecution as it was negative and the same was produced by the accused as Exh.DG. The report is to the effect that the crime empties of .12 bore had not been fired from any of the two SBBL shot guns which were sent for necessary comparison. This further belies the prosecution story.
(v) That D.W.1 Mst. Zenab Bibi received five injuries which were suppressed by the prosecution and the duration of said injuries connects them with the incident in question.
(vi) That if the first incident alleged in the F.I.R. With regard to the injuries received by the womenfolk of the complainant is found to be correct even then, the complainant had a grievance to attack.
(vii) That Mst. Sattan and Mst. Sallan were given up by the prosecution as won over although they are closely related to the complainant and were allegedly injured during the occurrence. This further creates a doubt about the prosecution case.
14. Learned counsel for the State on the other hand, has defended the impugned judgment and has submitted that the prosecution had proved its case beyond any shadow of doubt and both the appellants deserve the conviction and sentences awarded to them. According to him, the prosecution case is supported by eye-witnesses one of which is injured and is also supported by motive, medical and the evidence of recoveries.
15. We have heard learned counsel for the appellants as also learned counsel for the State.
16. The ocular account in this case, consists of P.W.3 Shameer who is real brother of Bashir deceased, P.W.4 Muhammad Sarwar who is maternal cousin of P.W.3, P.W.7 Muhammad Aslam who is maternal uncle of Bashir deceased and Mst. Wallan who is mother of Bashir deceased. All these witnesses are not only closely related to the complainant but are inimical and interested as there was litigation pending between the parties qua the possession of the land on which occurrence took place. P.W.3 admits in his cross-examination that:--- "It is correct that we bear grudge against the accused party as why they had purchased the disputed land as we had already purchased it."
The learned trial Court has disbelieved these witnesses qua six accused who stand acquitted. In that situation, the ocular evidence to sustain a conviction on the charge of murder must come from an unimpeachable source and if such a source is lacking then it should be corroborated by some credible circumstantial evidence to avoid an element of doubt which an interested ocular account necessarily creates. The corroborative circumstantial evidence in this case could be the recovery of weapons of offence or motive. The evidence of recovery in this case is hopelessly lacking and the report of the Forensic Science Laboratory Exh.DG is against the prosecution. So far as the motive part of the prosecution story is concerned, the same does not advance the prosecution case as P.W.3 Shameer himself admits that they had grudge against the accused party for having purchased the land and secondly, the immediate motive alleged by the complainant would give him a cause to attack the accused as according to him, he went to the spot on hearing that their womenfolk had been beaten up by the accused.
17. It is in evidence that Hakim appellant was declared innocent during investigation by P.W.15 Mehmood Sardar. It is also in evidence that Hakim A.I, Muhammad Iqbal, Faiz Ahmad and Salahuddin alias Allah Ditta were got discharged on 25-11-1990. P.W.15 after checking the record admits that Dr. Shafiq, A.S.P. And Habib Shah, D.S.P. Also found these accused to be innocent.
18. In a case reported in PLD 1963 SC 40 (Thoba and others v. The State) Hon'ble Supreme Court set aside the conviction as the ocular account consisted of interested witnesses and there was no independent corroboration of the ocular evidence. This view was further affirmed in 1982 SCMR 178 and 1983 SCMR 1292.
19. The prosecution story becomes all the more doubtful as two eye--witnesses namely Mst. Sattan and Mst. Sallan who were cited in F.I.R. And allegedly received injuries were given up by the prosecution as won over. Both these ladies are closely related to the complainant.
20. We find that Mst. Zenab D.W.1 was examined by the same Doctor who examined the injured of the complainant party. She was examined on 24-4-1990. According to the Doctor, all the injuries were caused within a duration of 72 hours. The suppression of these injuries by the prosecution would show that they are suppressing material facts which would tell rather heavy on the credibility of the prosecution version. We also find that the accused had taken up their defence plea at the earliest. It is admitted by the investigating Officer P.W.15 that on 24-4-1990 when he arrested the accused Qasim, Machia, Hanif and Rustam accused had taken up the plea that Bashir deceased had caused injuries to Mst. Zenab Bibi D.W.1 and while he was causing those injuries Sarfraz alias Gogi nephew of Qasim on an exercise of his right of self-defence fired at Bashir deceased as a result of which he died. He further admits that the medical certificate of Mst. Zenab Bibi was produced before him by the accused. He, however, did not associate the aforementioned Sarfraz in the investigation as the complainant did not want so.
21. A duty is cast upon the Investigating Officer to record the version of the accused in every case.
He is not to become a tool in the hands of the complainant. As a Public Servant he has to investigate the case strictly on merit and with utmost neutrality. He should have examined D.W.1 Mst. Zainab and I also Sarfraz. In a case where there is a counter-version of the incident and ii the same is put up before the Investigating Agency at the earliest stage, it assumes greater significance and the Courts have given it due weight in the light of the attending circumstances.
22. Where an accused gives a counter-version before the I.O. And the prosecution suppresses it during trial, learned trial Court should summon the Investigating officer as Court witness if the sane is imperative for a just decision of the case. In a case reported in AIR 1942 Lah. 37 (Hasil son of Qabul v. Emperor) it was held:--- "Since it is the duty of the prosecution to bring out any evidence which may assist in arriving at a true decision, a statement of the accused made almost immediately after the occurrence should be brought out at once in the trial Court as a relevant fact, even though it may contain something in favour of defence."
23. Where the trial Court omits to examine the witnesses who recorded the counter-version of the accused, the learned appellate Court can summon the said witnesses.
24. In PLD 1969 Lah. 548 (Muhammad Yaqoob v. The State) this Court summoned the Investigating Officer at the appellate stage to verify about the counter-version which the appellants had taken during investigation and ultimately the appeal was accepted and their conviction was set aside.
25. The best evidence qua possession would have been Khasra Girdawary which was not produced. In support of their claim of possession over the land on which the occurrence took place the prosecution examined P.W.2 Muhammad Bakhsh who is a Patwari of the concerned Halqa. He admits in cross-examination that occurrence took place in Killa No.16 of Sq. No.40 and that Killa No.25 of Sq. No.40 is owned by the accused. He further admits that the accused had constructed a residential Dhari and had installed a Tubewell in Killa No.25 after having purchased the same and they were in possession at the time of occurrence. As the accused party was already in part possession of the land which they had purchased prior to the occurrence in question and they were admittedly cultivating the same there was no reason as to why they should attack the complainant party, moreso, when the matter was pending decision before a competent forum.
26. For what has been discussed above, we are of the view that in accord with the well-established principles for a safe administration of criminal justice the evidence of partisan witnesses in the instant case remains uncorroborated and is not found sound to warrant conviction and sentence of the appellants. The appeal, therefore, is accepted and their conviction and sentences are set aside. They shall be released forthwith unless they are detained in any other case.