' SH. MUHAMMAD ZUBAIR, J.--- Nasrullah and Ghulam Muhammad were arraigned for trial under section 302/34, P.P.C. Whereas Zulficiar, Khuda Bakhsh and Shaukat under section 109/302/34, P.P.C., before the learned Additional Sessions Judge, Jhang. The learned trial Judge convicted Nasrullah under section 302, P.P.C. And sentenced him to suffer death and fine of Rs,1,00,000 or in default to undergo R.I. For five years. The co-accused of Nasrullah were, however, acquitted. This is vide judgment, dated 25-5-1992.
' The convict has filed the present appeal, whereas the learned Additional Sessions Judge has referred the case to this Court for confirmation of death sentence. The complainant has filed Criminal Revision No,113 of 1993, against the acquittal of the four accused persons. We propose to dispose of all the three matters by this judgment.
2. The occurrence took place on 12-11-1989 at Peshiwela and F.I.R. Exh.P.H. Was lodged by Khuda Bakhsh P.W.10, the same day at 6-15 p.m., which was recorded by Rashid Ahmad Tahir, 5.-I. (P.W.12).
' The motive for the occurrence is stated to be blood-feud between the parties. In addition, in the course of investigation of a case under section 307/327, P.P.C. Ahmad Hayat deceased abused and insulted Nasrullah and other accused persons.
' As for the main occurrence, Khuda Bakhsh complainant stated that he is the Chairman of Town Committee, Sillanwali and used to come daily to his village in connection with the cultivation of crop. On the fateful day, as usual, the complainant alongwith his brother Ahmad Hayat deceased, Riaz Khan and Salehoon P. W.11 was returning to his village after having a round to his land. When they were passing near Primary School, Thatha Umara at about Peshiwela, then Nasrullah appellant armed with rifle and Ghulam Ahmad armed with .12 bore gun emerged from behind the building of the school. They raise Lalkara that Ahmad Hayat should not go alive and that they would take the avenge of their insult. Ghulam Ahmad fired which missed as Ahmad Hayat lay on the ground. The second fire of Nasrullah hit Ahmad Hayat on the right side of neck. The witnesses raised outcries, whereupon several persons from the village were attracted to the spot. Seeing them the accused decamped from the spot while firing. Ahmad Hayat died at the spot. It is alleged that the aforesaid two accused on the instigation of Khuda Bakhsh, Zulfiqar and Shaukat had committed the said murder. After the incident the complainant was informed by Khalid Amir that he and Umar Daraz were present on the Dera of Khuda Bakhsh and Zulfiqar, where the said two persons and Shaukat were instigating Nasrullah and Ghulam Ahmad to murder Ahmad Hayat, so that the dispute could be brought to an end forever. The occurrence was witnessed by Riaz Khan and Salehoon.
' Leaving the dead body of Ahmad Hayat, Khuda Bakhsh went to Police Station Banana, where he lodged the F.I.R. The same day at 6-15 p.m. Rashid Ahmad Tahir, S.-I. (P.W.12) after recording the F.I.R., proceeded to the spot. He prepared the injury statement Exh.P.F. And inquest report Exh.P.G.
And entrusted the dead body to Javid Akhtar, F.C. For post-mortem examination. He collected blood-stained earth from the place where Ahmad Hayat was injured vide memo. Exh.P.B. The recovery memo. Was attested by Umar Hayat P.W.5 apart from Sanaullah (not produced). He recorded the statements of the witnesses under section 161, Cr.P.C. On the following day, he took into possession the last-worn clothes of the deceased vide memo. Exh.P.A. He got prepared site plans Exh.P.C. And Exh.P.C./1 by Tufail Muhammad, Patwari P.W.6 He arrested the appellant on 22-11- 1989, when he appeared before him alongwith rifle P.5, which was taken into possession vide memo. Exh.P.D. This recovery was witnessed by Fateh Muhammad P.W.7 and Liaqat Ali (not produced). Thereafter, the investigation was transferred to Inspector Zulfiqar Ali (not produced).
The investigation of this case was conducted by various Police Officers but they have not been produced by the prosecution. However, after the completion of investigation the challan was submitted in the Court.
3. Dr. Abdul Aziz Bokhari (P.W.9) conducted the post-mortem examination on the dead body of Ahmad Hayat on 13-11-1989 and found a lacerated wound of entry of fire, 0.5 c.m. x 0.6 c.m., with irregular and inverted margins, oval in shape on the right side of neck, slightly below its middle part thereon. There was bleeding from the injury. Probable time that elapsed between the injury and death was immediate, whereas between death and post-mortem examination was from 15 to 25 hours. The injury was sufficient to cause death in the ordinary course of nature, due to internal haemorrhage and shock. The injury was ante-mortem caused by fire-arm.
4. The appellant when examined under section 342, Cr.P.C. Denied the prosecution allegations. He professed innocence and stated that he led evidence in defense before the police which came to the conclusion that the complainant party was aggressor and that the motive set up by the prosecution was false and fabricated. He explained the case against him in the following words:- "There was a dispute between servants of Khalid Amir P.W. And my servants a few days prior to the present occurrence. On the eventful day, my servants beat and insulted servant of Khalid Amir in order to take revenge Nasir Abbas, a brother of Khalid Amir, Ahmad Hayat a very close relative of Khalid Amir alongwith twelve others armed with deadly weapons came near my village and started firing on my servants after taking shelter behind a stock of chaff. My servants took shelter in my house and also fired a few shots in self-defence. Many persons including Muhammad Bakhsh son of Qadir Bakhsh Cheema were attracted to the spot. Some persons from the village of the deceased also came to their (Ahmad Hayat) help. They also fired at my house. After the incident it came to light that Ahmad Hayat (deceased) received shot. Later on Khuda Bakhsh complainant, who is permanent resident of Sillanwali was summoned to the spot. Police also came at the spot and a false and fabricated version was prepared and the case was registered against me and my family on the basis of a cooked up motive. I did not participate in the occurrence. The complainant party was aggressor and Muhammad Bakhsh narrated the entire incident to the Investigating Officer. He has also lodged a complaint which is pending before Judicial Magistrate, in which Nasir Abbas and others have been summoned as an accused and their revision petition has also been turned down by the learned Additional Sessions Judge, Chiniot. I am innocent and have been falsely implicated due to long-standing enmity. The P.Ws. Are inter-related and inimical towards me and my family."
' Nasrullah appellant produced in defence certified copies of certain F.I.Rs, to show that there was long-standing enmity between the parties.
5. The learned trial Judge believing the prosecution evidence, of course after discarding the defence plea, convicted and sentenced the appellant as indicated above.
6. The learned defence counsel vigorously urged that the F.I.R. In this case was recorded after preliminary investigation and deliberation, hence no reliance can be placed upon this document.
He further contended that the F.I.R. Was delayed by one day after the occurrence, which makes the prosecution case further doubtful. Both the eye-witnesses, namely, Khuda Bakhsh P.W.10 and Salehoon P.W.11 are the chance witnesses of the occurrence and they have failed to furnish any reasonable or probable explanation for their presence at the spot. They are the close relations of the deceased as well as inimical witnesses, hence their uncorroborated testimony, which is also being negated by the medical evidence cannot be accepted on its face value. The motive though alleged, yet remained unproved. It is a case of two versions, one version has been put forth by the prosecution, whereas the defence has advanced its own version which is being supported by the medical evidence as well as circumstantial evidence, hence the prosecution case is not free from doubt. The learned trial Judge did not properly appreciate the defence plea which has caused miscarriage of justice. The complainant threw his net very wide, out of the five persons named in the F.I.R. Three were found innocent during the investigation, hence the evidence of the complainant cannot be believed qua the rest of the accused persons. Placed reliance on PLD 1976 SC 629. The prosecution evidence is not worth believing, hence no conviction can be recorded on the basis of such evidence.
7. The learned counsel for the State has supported the impugned judgment.
8. The learned counsel for the complainant submitted that both the eyewitnesses have furnished reasonable and plausible explanation for their presence at the scene of crime. The occurrence took place in the day time, which eliminates the chances of mistaken identification of the accused persons, hence the acquittal of the respondents has caused miscarriage of justice and the revision petition may be accepted. The occurrence took place in village Thatta Umra, where the land of the complainant is situated and this fact is mentioned in the F.I.R., though no detail was given, as the F.I.R. Is not required to contain details of each and every event, which is recorded for the purpose of moving the police to start investigation in a criminal case. The medical evidence clearly supports the prosecution case and the opinion of the doctor is contrary to the record. The deceased received the injury on his person while he was lying on the ground as the track of the wound suggests that the bullet travelled from upward to downward, because entry is from the neck and later on it struck the 4th and 5th ribs of the body which clearly shows that it was fired from a higher pedestal.
9. We have carefully gone through the record with the able assistance of the learned counsel for the parties and have examined the contentions of the learned counsel, mentioned above.
' There is no scope of evidence available on the record to justify the contention of the learned defence counsel that the F.I.R. Was recorded after considerable delay or preliminary investigation, because neither any evidence has been brought on the record to justify this inference nor there is any circumstantial evidence which could prove this fact. The argument of the learned defence counsel that the F.I.R. Was recorded after delay of one day is also devoid of force, as in the F.I.R.
Exh.P.H. The time of occurrence as mentioned and this document cannot be rejected merely on the basis of column No,3 of the inquest report Exh.P.G., as the inquest report contains the time of death of the deceased and has got nothing to do with the time of the F.I.R. The doctor who conducted the post-mortem examination gave very cogent and valid reason for conducting the same on the next day i,e, 13-11-1989, as it is never conducted during the night. Even it is the slautary principle of administration of criminal justice that direct evidence cannot be discarded on the basis of guess work or presumptions. The contention of the learned defence counsel that the eyewitnesses are the chance witnesses of the occurrence is devoid of force, as both the eye-witnesses have furnished reasonable and plausible explanation for their presence at the spot in the F.I.R. Which was lodged with great promptitude that the complainant alongwith the deceased and Salehoon P.W.11, was having a round of his land and at the relevant time he was in Killa No,3 of Square No,50 which he had taken on lease from Khalid Amir P.W.8, where the occurrence took place. The occurrence was immediately reported to the police in which the A name of the appellant and the role played by him is clearly mentioned which clearly eliminate the chances of speculation and fabrication of evidence. The defence has laid much stress on this point that this explanation is not available in the F.I.R. Exh.P.H. It may be observed that the F.I.R. Is never a detailed document. Only relevant facts are noted by the police therein in order to start the s investigation of the case. When the complainant was pointedly asked for his presence, then he replied in cross-examination that he had taken, the land on lease situated in Killa No,3 of Square No,50 in village Thatta Umra, this fact has not been negated by any other evidence.
' The occurrence took place in the day time. The ocular version is being supported by the medical evidence as the path of the wound is from upward to C downward which "shows that the deceased was on the lower pedestal when he received the injury on his neck, thus the contention of the learned defence counsel that doctor's evidence contradicts the ocular version that the deceased received the injury while he was standing, is devoid of force, because a critical perusal of the medical evidence shows that this opinion of the doctor is contrary to the record.
' It is a case of thoroughly dishonest investigation. The job of the Investigating Officer is to collect evidence, but here he tried his level best to destroy the evidence which is available on the record.
He has made certain undue concession in cross-examination in favour of the defence that there was cross-firing between Nasrullah appellant and the complainant party which resulted into the death of the deceased and with respect to which a case under section 307, P.P.C. Was registered at the instance of Muhammad Bakhsh of village Thatta Umra. Neither Muhammad Bakhsh nor any other witness appeared for the defence to substantiate this plea. No foundation was laid down by the defence in support of this plea as required under section 121 of Qanun-eShahadat. The established principle of law is that whatever is stated by the Investigating Officer on the basis of the statement of persons appeared before D him is inadmissible in evidence unless those persons are examined as witnesses as laid down in 1985 PCr.LJ 325.
' The learned trial Judge rightly came to the conclusion that it is not a case of two versions, as there is not an iota of evidence available on the record to substantiate the plea of self-defence, neither it was taken by the appellant in E his statement under section 342, Cr.P.C. Nor Muhammad Bakhsh was examined as D.W.1 to prove that the complainant party was the aggressor party. The Investigating Officer failed to perform his duty deligently and honestly and he did not take the photograph of the alleged fire-arm marks which be found on the Chaubara of the appellant. It is the primary duty of the Investigating Officer and the police to lay all the evidence before the Court for its proper appreciation, then it is the prerogative of the Court to pronounce judgment on the basis of legal evidence adduced before it and the Police Officer under the law cannot assume the role of a Judge and to decide the fate of the accused persons, whether they are innocent or guilty.
10. In view of the above discussion, we find there is no merit in this appeal, which is accordingly dismissed.
11. We have given our anxious consideration to this aspect of the case whether the sentence of death imposed upon the appellant by the trial Court needs consideration or not, in view of the fact that the motive though positively G alleged yet remained unproved. It is settled principle of law that where the prosecution alleges a motive but fails to prove it, then it is always treated as a mitigating circumstance in favour of the accused in the imposition of sentence, because possibility cannot be ruled out that something must have happened immediately before the occurrence, which has been suppressed by the prosecution from the Court, so treating this fact as a mitigating circumstance, of course maintaining the conviction of the appellant under section 302, P.P.C. We I refrain from confirming his death sentence imposed upon him by the trial Court and reduce the same to imprisonment for life. The sentence of fine or in default sentence of imprisonment is maintained. The death sentence is not confirmed and the reference is rejected.
12. We find that the learned trial Judge gave very valid and cogent reasons which are being supported by the evidence on the record while acquitting the respondents in the revision petition, which is at a preliminary stage; hence the same is dismissed in limine.
Sentence reduced.