ZAFAR PASHA CHAUDHRY, J.- This judgment will dispose of Crl. Appeal No. 210/93 as well as Crl.
Revision No. 227/93 both directed against judgment dated 1.3.1993 passed by Abdur Rashid Khan Additional Sessions Judge Gujranwala whereby both the appellants i.e. Amjad Faruq & Muhammad Afzal were convicted u/S. 302/34 PPC and sentenced to imprisonment for life with a fine of Rs.
10,000/- each and in default of payment thereof to undergo R1 for to years each. Each of them has to pay compensation of Rs. 10,000/- to the legal heirs of the deceased in default of payment of the' same to undergo imprisonment for six months: Conviction was also recorded u/S. 307/34 PPC and each of the appellant was sentenced to undergo R1 for five years with a fine of Rs. 5000/- each and in default of payment of same to undergo RI for six months. Both the sentences were ordered to run concurrently and. Benefit u/S. 382-B Cr.P.C, was extended. In fact five accused persons namely Rehmat alias Ijaz aged 30 years. Muhammad Akbar aged 36 years, Amjad- Faruq aged 24 years, Muhammad Afzal aged 26 years and Muhammad Riaz aged 36 years were sent up to face trial u/S. 302/307/109/34 PPC but on conclusion of the trial only Amjad Faruq and Muhammad Afzal were convicted and sentenced as referred above. The remaining three accused i.e. Rehmat alias Ijaz, Muhammad Akbar and, Muhammad Riaz were acquitted. Criminal Appeal in had has been filed on behalf of Amjad Faruq and Muhammad Afzal convicts whereas connected criming revision has been moved against all the five accused persons seeking enhancement of sentence qua the present appellants and re-trial of the remaining three acquitted co-accused. Since both the appeal and revision are directed against the same judgment, therefore, they have been taken up together.
2. The prosecution case in brief as revealed front F.I.R. Ex.PF recorded on the statement of Khan Muhammad PW. 9 father of Mukhtar deceased registered with Police Station Alipur Chatha District Gujranwala u/S. 302/307/149/34 PPC is that complainant purchased 70 acres of agricultural land in village Sardarpur Sehgal and he was residing on the same land. On 25.7.1989 at about 3.Q0 p.m.
When complainant Khan Muhammad alongwith Taj Muhammad, his brother PW. 10, and Nadir Khan were proceedings towards Kot Wehar complainant's son Mukhtar Ahmad deceased aged about 20 years, who had also come from Sardarpur Sehgal, after getting motor bike from Saifullah at Chah Khajoorwali bearing registration No. GAA-9431 was leading towards Alipur City to make some purchases. He came across the complainant near dera of Sher Muhammad situated in Mauza Khajoorwali at about 3.30 p.m. When he was at a distance of about 1-1/2 acre from the complainant on the right side of water course he saw that Muhammad Akbar armed with khanjar, Afzal with carbine, Amjad with 12 bore-gun all residents of Sadhuwali and Rehmat alias Ijaz armed with 12 bore gun resident of Khajoorwala who were sitting on the bank of the water course suddenly got up. Rehmat alias Ijaz and Amjad obstructed Mukhtar on the gun point. Mukhtar stopped his motor cycle on which Muhammad Afzal fired a shot from his carbine hitting Mukhtar on his right arm. He fell down from the motor cycle. Thereafter Muhammad Akbar inflicted a khanjar blow on front of his abdomen. The occurrence was witnessed by the complainant Khan Muhammad PW. 9, his brother Taj Muhammad PW. 10 and Nadir Khan (Not produced as PW). They raised alarm and rushed forward to rescue the deceased but Amjad and Rehmat alias Ijaz opened fire on them from their respective guns but fortunately the complainant and his companions remained unhurt. The accused persons made their escape from the place of occurrence while kept on firing from their respective weapons. Mukhtar succumbed to the injuries there at the spot. It was further stated that murder was committed at the behest of Muhammad Azam, Ijaz Ahmad and Muhammad Iqbal sons of Rehmat.
3. As regards motive it was stated that complainant purchased agricultural land in village Sardarpur Sehgal and he intended to purchase the adjoining land as well, but Ijaz as well as other accused wanted to purchase that land and on account of said reason a few days earlier Muhammad Azam and Ijaz Ahmad etc had threatened the complainant as well as Mukhtar deceased of dire consequences.
4. The F.I.R, was recorded by Inspector Yousaf Ali Shah PW. 11 who was S.H.O. Police Station Alipur Chatha, on the same day i.e. 25.7.1989 at 5.00 p.m. The Investigating Officer after recording the F.I.R, proceeded towards the place of occurrence; collected blood stand earth from the place of occurrence; recorded supplementary statement of the complainant on the same day i.e. 25.-7.1989; took into possession pair of chappal and a motor cycle Ex-.P. 8 vide Memo Ex.PH on which the deceased had come to the place of occurrence; prepared injury statement Ex.PE and inquest report Ex.PJ and thereafter despatched the dead body for post-mortem examination to Wazirabad Hospital rough site, plan Ex.PK was prepared; he recorded statements of witnesses u/S. 161 Cr.P.C.; last worn clothes of the deceased alongwith post-mortem examination report were delivered to him by Latif constable; he got scaled site plan Ex.PB and PB/1 prepared from Patwari; he arrested Akbar, Amjad and Afzal accused from outside the Court on 20.9.1989; Amjad accused had unlicenced 12 bore gun P. 2 in his possession which was taken into possession and secured vide memo Ex.PD;, carbine Ex.P. 3 was recovered from the possession of Muhammad Afzal which was also secured vide memo Ex.PE; separate cases were registered u/S. 13/20/65 A.O. Against both the accused; on 29.9.1989, Riaz accused was produced by Riasat Ali CW alongwith gun P.I: he was arrested and gun P.I was taken into possession vide memo Ex.PC; a separate case u/S. 13/20/65 A.O. Was also registered against him; he produced Riaz accused on 30.9.1989 in Court of Resident Magistrate Wazirabad for getting his statement recorded u/S. 164 Cr.P.C, and thereafter he was sent back to the judicial lockup; his statement u/S. 164 Cr.P.C, was recorded, on 15.10.1989. The investigation was transferred from him to D.S.P. Rana Rashid Ahmad. Under the orders of superior officers.
On completion of investigation challan was submitted in Court. Rehmat alias Ijaz. Muhammad Iqbal, Muhammad Azam and Muhammad Ijaz were placed in column No. 2 whereas Muhammad Akbar, Amjad Faruq appellant Muhammad Afzal appellant and Muhammad Riaz were placed in column No. 3 of the challan.
5. The prosecution in order to prove its case examined 11 P.Ws and 3 witnesses were examined as Court .Witnesses. PW. 2 Doctor Shaukat Iqbal conducted the post-mortem examination and found the following injuries on the person of Mukhtar Ahmad deceased:-
(1) Bruised 11 x 6 cm on the right hemithora x 8 c.m. Below the right nipple.
(2) A fire arm entrance would 7x6 c.m. x going deep with bruised burnt lacerated and inverted margins on front and middle 10 c.m. Below the xyphoid process.
(3) Crushed injury through and through on right fore arm. Just below the elbow joint measuring 15 x 12 c.m. On back and front of Fore arm, with multiple pellets present, in the wound vide X-rays report confirming the fire arm wounds.
PW. 1 Muhammad Akram constable, PW. 3 Muhammad Latif Constable, PW. 5 Muhammad Ashiq Constable, PW. 6 Saif Moharrar ASI and PW. 8 Ijaz Hussain ASI are witnesses of formal nature. PW. 4 Patwari prepared the scaled site plan Ex.PB and PB/1. PW. 7 Amjad Hussain ASI Accompanied the I.O.
On receipt of secret information a raid was conducted and as a result thereof the accused persons were arrested. Various recoveries effected from them have already, been detailed above in the statement of PW.
11. PW. 9 Khan Muhammad complainant and PW. 10 Taj Muhammad (brother of complainant) are witnesses who furnished eyewitness account of the occurrence. Their evidence will be referred to during discussion on the pleas raised by the parties.
6. Riasat Ali. CW-1 has deposed about extra-judicial confession made before him by Riaz Ahmad accused on 29.9.1989. CW -2 Matrisib-e-Hassan EAC Sialkot deposed that on 15.1.0.1989 Riaz Ahmad was produced before him who had been brought from District Jail Gujranwala. His statement was recorded u/S. 164 Cr.P.C. He stated of having observed all the legal formalities. According to him Riaz confessed before him that he had murdered son of Khan Muhammad and no one else was associated with him. He also confessed of having produced crime weapon before the police. CW-3 stated that he alongwith Sadiq, Aslam and Rehmat Ullah were grazing cattle when Riaz accused while armed with a gun fired to shots at Mukhtar Ahmad deceased who succumbed to the-injuries.
The learned Prosecutor after giving up the remaining prosecution witnesses' closed the ease of the prosecution
7. The accused including the appellants were examined U/S. 342Cr.P.C. They denied the allegations- levelled against them and pleaded that they were innocent. And had been, falsely .Implicated on account of Enmity. Neither any one of them appeared as his on witness nor adduced any evidence in defence.
8. The learned Trial Judge on conclusion of the trial acquitted Rehmat alias Ijaz, Muhammad Akbar and Muhammad Riaz whereas Amjad Faruq and Muhammad Afzal were convicted and sentenced as noted above.
9. It has been argued by the learned counsel for the appellants that the prosecution witnesses have materially deviated from the version as given by them in the FIR and put forward a new version before the Court which indicates that neither the complainant nor his brother Taj Muhammad PW. 10 have witnessed the occurrence; that the first version taken before the police was subsequently changed with a view to bring the same in line with the medical evidence; that on behalf of prosecution itself three versions have been put forwarded; first version was given in the FIR by the complainant himself, second version was given in the statements during the trial which is materially different on all important points and a number of improvements were made with a view to in criminate the appellants and their co- accused, and third version has been attempted to be set up by the State alongwith the version of the complainant to the effect that in fact Riaz Ahmad had committed murder and he confessed commission of murder by making confessional statement before the Magistrate and also an extra-judicial confession before C.W.
1. The eye witness was examined as CW. 3 who according to him had .Seen the occurrence alongwith others whereby Riaz Ahmad had committed murder by causing fire arm injuries on the person of Mukhtar Ahmad deceased. On account of three versions coining from the prosecution itself the case against the accused persons including the appellants becomes extremely doubtful. Neither of the versions can be accepted nor any one of them in sufficient to warrant conviction of the appellants. h was argued that original .Version is materially contradicted by the medical evidence, therefore, it lacks necessary support and cannot be relied upon. The second version being a dishonest improvement merits to be rejected and no reliance can be placed on that either. The third version whereby Riaz accused pleaded guilty and confessed his crime cannot be accepted for the reason that the complainant and his accompanying witnesses do not on the same. It is further argued that during the cross-examination to PW. 9 and PW. 10 it has come on the record that their exists enmity in between the parties. Both witnesses being closely related to each other, being brother, son and uncle of the deceased squarely fall within the definition of interested witnesses. Testimony of interested witness can be accepted only if corroborated on all material points by some reliable material or trustworthy evidence. Neither of the to is available, therefore, uncorroborated testimony of the witnesses cannot be made basis for conviction. Further adds that the motive has been disbelieved and the evidence of recovery of fire arms by the police has been accepted to be inconsequential by the learned trial Court.
10. On the other had the learned counsel for the State who is assisted by the learned counsel for the complainant has supported the judgment. The learned counsel for the complainant who is also counsel for the petitioner in the criminal revision has argued that after holding the appellant as guilty u/S. 302/34 PPC there are no mitigating and extenuating circumstances available for award of lesser penalty the convicts should have been sentenced to death. As regards the acquitted co- accused it is submitted that they have been erroneously acquitted which has caused injustice, therefore, re-trial may be ordered to be held.
11. Detailed arguments have been advanced by the learned counsel for the parties and also necessary reference has been made to record. Before attending to various contentions raised by the learned counsel I am constrained to observe that complainant who has filed the criminal revision did not accept that Riaz was one of the accused persons. According to him he was introduced to damage his case at the instance of remaining accused but in the revision he to has been implicated, as' respondent and prayer has been made qua him as well.
12. As evident from the narration of facts as made above the prosecution has led evidence comprising of ocular account, medical evidence, evidence of recovery and the motive against the accused persons except Riaz. As against Riaz evidence of judicial confession, extra-judicial confession and eye witness account with evidence of recovery has been furnished.
13. Taking up eye witness account in the first instance Khan Muhammad PW. 9 is the maker of FIR.
He claims to have witnessed the occurrence alongwith his brother Taj Muhammad PW.
10. The occurrence took place on 20.9.1989 at 3.30 p.m. Whereas the same was reported at the Police Station at 5.00 p.m. Which is located at a distance of four miles. 'It therefore appears to be a prompt FIR which was got recorded without any loss of time. According to the version contained in the FIR as noted above Amjad Faruq appellant was armed with gun and Muhammad Afzal appellant was armed with carbine. Muhammad Akbar accused was armed with Khanjar. The fatal injury on the abdomen of the deceased noted at Sr. No. 2 by the Doctor is a fire arm entrance wound 7x6 c. Nr. x going deep with bruised burnt lacerated and inverted margins. According to FIR this .Injury had been caused by Muhammad Akbar with a khanjar but according to medical evidence this had been caused by fife arm. The description of the injury does not leave any doubt that it had in fact been caused by a fire arm. It appears that the complainant and his brother, an eye witness, did not witness the occurrence and on seeing the injury on dead body and especially by noting the dimensions of the injury thought the same had been caused by some weapon like khanjar, therefore, it was stated that the injury had been caused by ,Muhammad Akbar who was armed with khanjar. Subsequently after receipt of the post-mortem report it was disclosed that injury No. 2 had in fact been caused by fire arm, therefore, the stance was accordingly changed and it was stated in the Court that Amjad Faruq and Muhammad Afzal who were armed with gun and carbine respectively had caused the injuries to the deceased. The discrepancy cannot be treated as immaterial or insignificant by any stretch of imagination. It goes to the very root of the case. It has occurred not On account of some forgetfulness or misconception but indicates that witness had not seen the occurrence, otherwise such an erroneous statement could not be made.
Injuries according to them caused from a distance whereas injury with a dagger would be caused from a close quarter. Had the witness been present at the place of occurrence this mis-statement could not have taken place. There is no similarity in between dagger and a carbine. This improvement is further strengthened by the fact that normally the PWs were not supposed to be present at the scene of occurrence. They just happened to be present at the place of occurrence per chance.. The deceased had left on motor cycle whereas the complainant and his brother were proceeding on foot. It is strange coincident that they have happened to intercept each other at the place of occurrence where the accused persons wee sitting and waiting arrival of the deceased. A serious doubt is cast on their presence at the place of occurrence and having witnessed the incident. No corroboration by way of motive or recovery is also available. It was rightly contended by the learned counsel that recovery of fire arm in absence of any matching empty is inconsequential and does not advance the case of the prosecution. The motive has rightly been disbelieved by the learned trial Court because no independent evidence was brought on record to prove the same.
14. The learned counsel has stressed the argument on the point that Riaz co-accused had confessed his guilt by way of confession as well as extra-judicial confession, therefore, the implication, of the appellants as accused persons is rendered extremely doubtful. I do not think any detail comments are required to be made. Suffice it to say that the learned Trial Judge has rightly discarded the evidence of confessional statement. The learned Magistrate failed to abide by the rules and instructions laid down to record the confession u/S. 164 Cr.P.C. Also the formalities required to be observed by section 364 Cr.P.C, have not been fulfilled. The confessional statements both judicial or extra-judicial do not conform a standard prescribed for acceptance of the same.
The investigation does not appear to have, been conducted fairly and impartially. The manner in which the evidence was collected and the statements of the PWs were Recorded and other material brought on the file has not proved to be of any help to dispense justice rather the same has created confusion and mis-understanding: The benefit of which invariably has to go to the accused: It is difficult to determine whether the same has been done with some ulterior motive or on account of inefficiency or incompetence. Since eye witness account as indicated above does not inspire confidence no detailed comments or discussion on the manner of conducting investigation or collection of material is called for.
15. In view of the above observations the prosecution has not been able to prove the guilt of the appellants beyond shadow of doubt, therefore, they are entitled to be given benefit of doubt. Their appeal, is allowed and they are acquitted of the charges against them. The conviction and sentence recorded against them vide judgment dated 1.3.1993 passed by Mr. Abdur Rashid Khan, Additional Sessions Judge Gujranwala is set aside.
16. The appellants are on bail. They are discharged of the bail bonds.