' ASIF SAEED KHAN KHOSA, J.---Abdul Ghafoor and Ahmad Yar appellants were convicted by the learned Additional Sessions Judge, Chichawatni, camp at Sahiwal vide judgment, dated 12-9-1997 for an offence under section 302(b)/34, P.P.C.. And were sentenced to death each and to pay a sum of Rs,50,000 each by way of compensation to the heirs of Naik Muhammad deceased under section 544-A, Cr.P.C., or in default of payment thereof to undergo R.I. For six months each. However, through the same judgment their co-accused Qutab Din alias Qvtab Fareed were extended the benefit of doubt and acquitted of the Charge. Abdul Ghafoor and Ahmad yar appellants have challenged their convictions and sentences .Before this Court through Criminal Appeal No,306 of 1997. We have heard their 'appeal along with Murder Reference No,199 of 1997 seeking confirmation of the sentences of death passed against them. We propose to decide both these matters together through the present consolidated judgment.
2. The prosecution story narrated in the F.I.R. Was that Allah Ditta complainant was a resident of Chak No,133/9-L situated within the area of police station, Ghalla Manch, District Sahiwal. The complainant's family had purchased the crop of mangoes of one Ghazanfar Ali. In the morning of 7-7-1995 the complainant, his brother Allah Yar and their paternal cousin Faqir Muhammad loaded crates of mangoes on a tractor-trolley and brought the same to the Fruit Mandi, Sahiwal for sale.
They remained busy till 10/11-00 a.m. In the sale of mangoes and in the meanwhile the complainant's father Naik Muhammad also arrived at the Fruit Mandi on a bicycle for settling 'accounts with a commission agent (Arrhati). The complainant, his brother Allah Yar and their cousin Faqir Muhammad then went for purchase of empty crates and before their return to the Mandi the complainant's father Naik Muhammad left on his bicycle after settling accounts with the commission agent. Thereafter, the complainant and his companions loaded the empty crates on the trolley and started towards their village. At about 12-00 noon they reached the bridge of 9-L Canal (Rajbah) and saw .The complainant's father Naik Muhammad going on his bicycle on the service road of that canal near the agricultural land of one Shahamand. Suddenly, within the view of the complainant and his companions, Abdul Ghafoor appellant, armed with a .12 bore gun, Ahmad Yar appellant, armed with a pistol, and Qutab Din accused, empty-handed, emerged from the trees and bushes near the canal and raised a lalkara that the complainant's father Naik Muhammad would not be spared alive and that they would take their revenge. Naik Muhammad fell down from his bicycle and then started running away but Abdul Ghafoor and Ahmad Yar appellants opened fire at him with their respective weapons. Upon receipt of injuries Naik, Muhammad fell down in the land of Shahamand and breathed his last. During that while Qutab Din accused kept on raising lalkaras. The entire occurrence was witnessed by the complainant, his brother Allah Yar and their paternal cousin Faqir Muhammad who did not go near the deceased due to fear. The appellants and their co-accused stayed with the dead body of Naik Muhammad for some time dancing in celebration of their achievement and thereafter, they left towards their village with their respective weapons. The complainant and his companions then went near the dead body of Naik Muhammad and saw that his brain had come out and he had also received fire-shots at his left chest and left back apart from sustaining abrasions at other parts of his body.
The motive set up in the F.I.R. Was that 14/15 years earlier one Daulat All (a brother of Abdul Ghafoor appellant and Qutab Din accused and a paternal cousin of Ahmad Yar appellant) had been murdered by his wife Mst. Shamim (a sister of the complainant and Allah Yar and a daughter of ,Naik Muhammad deceased) and her paramour Roshan Ali who were later on tried for the same but were acquitted. According t. The complainant his fathei Muhammad had been done to death by the appellants and their co-accused in order to avenge the murder of Daulat Ali.
3. Leaving the dead body of his father Naik Muhammad at the place of occurrence in the care of Allah Yar and Faqir Muhammad P.Ws. The complainant proceeded to report the matter to the police. On his way to the police station the complainant met Muhammad Ramzan, S.I. (P.W.11) at Fattoowala Morr and made a statement (Exh.PC) before him in respect of the incident at 1-45 p.m.
On the same day. Formal F.I.R. No,239 was subsequently registered in that regard by Muhammad Ali, A.S.1. (P.W.3) at police station Ghalla Mandl, District Sahiwal at 2-00 p.m. On the same day for an offence under section 302/34, P.P.C.
4. After registration of the F.I.R. Muhammad Ramzan. S.I. (P.W.11) took up the investigation of this case, went to the place of occurrence, prepared injury statement and inquest report qua the dead body of Naik Muhammad sent the same to the mortuary for autopsy. He also collected blood- stained earth from the place of occurrence and also took into possession three crime-empties, the deceased's bicycle and a pair of shoes therefrom. He then prepared a rough site-plan of the place of occurrence and recorded the statements of witnesses.
5. Post-mortem examination of the dead body of Naik Muhammad was conducted by Dr. Muhammad Asghar (P.W. I) at 9-45 a.m. On 8-7-1995. He had found eleven injuries on the dead body which were all ante-mortem. Injuries Nos.l, 2, 3 and 6 had been caused by firearm whereas the other injuries had been caused by blunt weapon. Injuries Nos.l. 2, 3 and 6 had caused damage to the brain, liver, lung, heart, kidney and spleen collectively which caused hemorrhage, shock and death spontaneously. Those injuries were sufficient to cause death, in the ordinary course of nature. The probable time elapsing between the injuries and death was stated by the doctor to be immediate while the duration between death and post-mortem examination was opined by the doctor to be within about 24 hours.
6. After post-mortem examination of the dead body Muhammad Ramzan, S.I. (P.W.11), Investigating Officer, took into possession the blood-stained last-worn clothes of the deceased. Subsequently he arrested Abdul Ghafoor appellant on 15-7-1995 and Ahmad Yar appellant on 19-7-1995 and recovered a .12 bore gun and a .30 bore pistol from their custodies respectively. He then got a site- plan of the place of occurrence prepared by a Patwari. Thereafter, he completed the other formalities, finalized his investigation and handed over the case file to the Station House Officer for submission of Challan in respect of the case.
7. At the commencement of the trial the learned trial Court framed a Charge with one head under section 302/34. P.P.C.. Against the appellant and their co-accused to which they pleaded not guilty and claimed a trial.,,
8. During the trial the prosecution produced as many as eleven witnesses in support of its case against the appellants and their co-accused. Allah Ditta complainant (P.W.5) and Allah Yar (P.W.6) furnished the ocular accounts of the incident and also stated about the motive. Dr. Muhammad Asghar (P.W.1) provided the medical evidence. Allah Ditta (P.W.7) deposed about the recoveries of weapons of offence from the appellants as well as the recoveries affected from the place of occurrence. Muhammad Ramzan, S.I. (P.W.11) stated about various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
9. In their statements recorded under section 342, Cr.P.C., the appellants and their co-accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They maintained that the prosecution witnesses were closely related inter se and they had falsely deposed against them due to enmity and suspicion. While answering a question Abdul Ghafoor appellant had stated that-- "I am innocent. This occurrence took place in the dark hours of the night and it was a blind murder.
The eyewitnesses were imported later on after the discovery of the dead body from some other place. The police in collusion with the complainant party, after consultation and deliberation registered this false case against us much later."
' Ahmad Yar appellant and Qutab Din accused also made statements to the same effect. However.
Both the appellants and their co-accused opted not to make any statement on oath under section 340(2), Cr.P.C., and they also did not produce any evidence in their defence:
10. At the conclusion of the trial the learned Additional Sessions Judge, Chichawatni, camp at Sahiwal convicted and sentenced the appellants and acquitted their co-accused as noticed "and detailed above. Hence, the present appeal and the connected Murder Reference before this Court.
11. We have heard the learned counsel for the appellants as well as the learned counsel for the State and have also gone through the record of this case with their assistance.
12. It has been argued by the learned counsel for the appellants that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. According to him the witnesses produced by the prosecution did not inspire confidence and that they had also failed to find material corroboration from any independent source. As against that the learned counsel for the State has argued that the prosecution had successfully proved the guilt of the appellants to the hilt through convincing, cogent and reliable evidence.
13. After hearing the learned counsel for the parties and going through the record we have no hesitation in concluding that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. The ocular account of the incident in question had been furnished by Allah Ditta complainant (P.W.5) and Allah Yar (P.W.6). Both, of them were real brothers inter se and sons of Naik Muhammad deceased. Both these witnesses were also chance witnesses. The occurrence had taken place about 3 to 4-1/2 squares away from their village and the stated reason for their chance presence close to their father at the relevant time at a place far away from their homes had never been proved or established by the prosecution. The claimed visit of these witnesses to the Fruit Mandi in the morning on tractor-trolley, their sale of mangoes at that Mandi, the deceased's solo visit to that Mandi on his own and his settlement of accounts with a commission agent were neither inquired into during the investigation by the local police nor proved during the trial through any independent evidence whatsoever. Apart from that the chance proximity of these witnesses with the deceased on the bank of a canal at the time of the occurrence was on account of the fact that the deceased had left for home on a bicycle earlier than these witnesses and these witnesses had caught up with him subsequently on a tractor- trolley. It was, however, admitted by the complainant himself that a tractor-trolley could not be plied on the service road of the canal bank with express permission of the canal authorities. The complainant had claimed that such permission had been accorded to the complainant party but he had failed to prove the same. Thus, the reason for the stated presence of these witnesses near the deceased at the time of incident remained totally unproved. Statements of closely related chance witnesses are seldom relied upon in a case involving a capital charge unless such witnesses inspire confidence by furnishing plausible and convincing explanation for their presence at a place where they were not ordinarily expected to be present at a given time. Over and above all that the complainant had himself admitted that the complainant party had a long standing enmity with the appellants. Such enmity was also confirmed by the appellants in their statements made under section 342, Cr.P.C. Thus, the eye, witnesses produced by the prosecution were not only closely related to the deceased and chance witnesses but they were also inimical towards and interested against the appellants. Their statements, therefore, called for very careful scrutiny before being relied upon against the appellants.
14. There are certain cogent reasons available in this case for arriving at a conclusion that the eye- witnesses produced by the prosecution were not reliable. The said witnesses had made improvements at the trial regarding the seats of the injuries allegedly caused to the -deceased by the appellants. They had made improvements even in respect of the motive set up in the F.I.R.
These witnesses had falsely implicated Qutab Din accused in this case who was not only found to be innocent by .The police but was also acquitted by the learned Trial Court. His acquittal was not even challenged by the complainant party before this Court. The memo. Regarding taking possession of the blood-stained earth from the place of occurrence had not been produced in evidence during the trial and, therefore, the place-of occurrence remained unproved. In the rough site-plan (Exh.PL) and the formal site-plan (Exh.PB) of the place of occurrence the names of the culprits were not mentioned. The names of the eye-witnesses were not to be ,found in the rough site-plan (Exh.PL) prepared soon after the occurrence. The place of firing by the culprits was also not mentioned in both the said site-plans. Admittedly the names of the eye-witnesses or the culprits were not even mentioned in the inspection note prepared by the Investigating Officer upon his first visit to the place of occurrence! Thus, the case in hand had all the characteristics of an un witnessed occurrence where after closely related and inimical persons had been procured and planted as eye-witnesses so as to implicate the appellants. We have, therefore, felt extremely reluctant to rely on the statements of such witnesses on a capital charge.
15. The related, inimical and chance eyewitnesses produced by the prosecution in the present case had also failed to receive-sufficient corroboration from any independent source . The motive set up in the F.I.R. Was directed against Mst. Shamim and Roshan Ali qua commission of murder of Daulat Ali by them. It was not disputed between the parties that both of them had been convicted and punished for the said murder. It has also not been disputed before us that both of them are still alive and living in that very area and also that they have not so far been harmed by the appellants in any manner. The motive mentioned in the F.I.R. Did not disclose any active interest shown by Naik Muhammad deceased in that murder case. However, during the trial the eye-witnesses had made improvement upon that motive by stating that it was Naik Muhammad deceased who used to pursue that case against the appellants' party. But. Undeniably, no material was brought on the record to substantiate that alleged pursuit of the case by Naik Muhammad deceased so as to make him a target of the appellants' vengeance. Thus, the motive set up by the prosecution could not advance its case against the appellants.
16. The corroborative value of the alleged recoveries of a gun and a pistol from the appellants during the investigation was also minimal. Recovery of crime-empties from the place .Of occurrence soon after the incident was neither mentioned in the rough and formal site-plans thereof nor in columns Nos.23 and 24 of the inquest report. Even otherwise admittedly the said crime-empties had been sent to the Forensic Science Laboratory after the alleged recoveries of a gun and a pistol from the appellants. Dispatch of the crime-empties to the laboratory at such a stage was quite suspicious and a possibility could not be ruled out that the crime-empties had been managed and fabricated after recoveries of the said weapons by the police in order to strengthen the prosecution's case. Apart from all these considerations we have also noticed that the requirements of section 103, Cr.P.C., had not been met as far as the alleged recoveries of the weapons of offence were concerned. For all these reasons the recoveries of weapons allegedly affected in this case during the investigation had failed to provide satisfactory corroboration to the ocular account.
17. The medical evidence produced by the prosecution in the present case could not provide much support to the ocular account. As a matter of fact the medical evidence contradicted the ocular account to a substantial degree. To start with, there is no explanation available on the record as to why post-mortem examination of the dead body was conducted on the day following the day of occurrence. That strengthens the doubt that the occurrence was in fact an un witnessed one and time was consumed to cook up a story for the prosecution and to procure and plant eyewitnesses.
It is also significant that during the post-mortem examination only pellets and wad were recovered from the dead body and the doctor (P.W.1) had not ruled out the possibility that all the injuries found on the dead body had been caused by pellets. That possibility negated the role attributed to Ahmad Yar appellant who had allegedly fired at the deceased using a .30 bore pistol wherefrom only bullets can be fired. We have also noticed that according to the doctor (P.W.1) the direction of injuries Nos.2 and 4 on the dead body was below upwards and also that injuries Nos.2, 4 and 6 on the dead body had been caused by a fire made from a distance of about 40 to 50 feet. It was the prosecution's own case that the bushes and trees near the canal bank were situated at a level below the level of the canal bank on which the deceased was present. Thus, the medical evidence indicated that the deceased might have been initially fired at from behind those bushes and trees so as to conceal the identity of the assailant. This aspect of the medical evidence clearly casts a shadow of doubt on the prosecution's case. The duration between death and the post-mortem examination of the deceased stated by the doctor (P.W.1) also does not rule out the possibility that the deceased might have been done to death during the night between 7/8-7-1995. This could also possibly explain as to why post-mortem examination of the dead body had been conducted on 8- 7-1995 and not on 7-7-1995. In the context of the medical evidence we are also mindful of the fact that by its very nature medical evidence cannot identify the perpetrator of the offence and that it can only provide support to the ocular evidence regarding various details. However, medical evidence has no support lie value where the eye-witnesses themselves do not inspire confidence and, thus, there is nothing left to be supported.
18. For the foregoing reasons we have arrived at a confident conclusion that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. The benefit of doubt, thus, must go to the appellants. Therefore, Criminal Appeal No,306 of 1997 is hereby allowed, the impugned judgment passed by the learned Additional Sessions Judge, Chichawatni, camp at Sahiwal on 12-9-1997 is set aside and Abdul Ghafoor and Ahmad Yar appellants are acquitted of the charge against them. They shall be released from jail forthwith if not required in any other case.
19. Murder Reference No,199 of 1997 is hereby answered in the negative.
Death sentences are not confirmed.