' ASIF SAEED KHAN KHOSA, J.--Barkat Ali appellant was convicted by the learned Additional Sessions Judge, Khanewal vide judgment dated 6-3-19'7 for an offence under section 302(b), and was sentenced to death. Through the same judgment the learned trial Curt had acquitted the appellant's brother-in-law Maqsood Ali and the appellant's father Muhammad Ali accused by extending the benefit of doubt to them. Barkat Ali appellant has challenged his conviction and sentence before this Court through Criminal Appeal 'No,62 of 1997. Syed Lal Shah complainants has also challenged the acquittal of Maqsood Ali and Muhammad Ali accused before this Court through Criminal Appeal No,66 of 1997 which had been ordered to be heard along with the convict's appeal. We have heard both these appeals along with Murder Reference No,65 of 1997 seeking confirmation of the sentence of death passed against Barkat Ali appellant. We propose to decide all these matters together through the present consolidated judgment.
2. The prosecution story narrated in the F.I.R. Was that Lal Shah complainant was a resident of Chak No,19/8R situated within the area of Police Station Tulamba, District Khanewal. At about 8-15 p.m.
On 2-5-1995 the complainant was present at his house with his son Hasnain Shah when Barkat Ali appellant came to his house and took Hasnain Shah with him towards the nearby playground of a school. About 15/20 minutes later the complainant also left for a walk as usual towards that playground. When the complainant reached a street near that playground he met Dilbar Hussain and Muhammad Amin P.Ws. And they started talking to each other. Suddenly they hear hue and cry of the complainant's son Hasnain Shah from the side of the school's playground upon which they rushed towards that playground. In the light of electric bulb affixed at the hotel of Amanat Ali and the neighbouring houses they saw that Muhammad All accused, armed with a knife Barkat Ali appellant, armed with a dagger and Maqsood Ali accused, also armed with dagger, had encircled Hasnain Shah and were shouting that they would avenge their insult The complainant and the other two witnesses then ran towards Hasnain Shah but before they could intervene they saw that Barkat Al appellant gave three dagger blows to Hasnain Shah which landed at left side of his chest left shoulder and abdomen. Then Maqsood Ali accused gave Hasnain Shah two dagger blows which injured right side of his chest and neck. Thereafter Muhammad Ali gave knife blows to Hasnain Shah at his buttocks upon which he fell down. After that the assailants left the spot and went to their houses with their respective weapons. The complainant, and others went and handled Hasnain Shah who was still alive but after a while when he was picked up and was being taken to the complainant's house for the purpose of being transported to an hospital he breathed his last.
The motive set up in the F.I.R. Was that about 2-1/2 to 3 months prior to the said occurrence Hasnain Shah deceased and Barkat Ali appellant had quarrelled over playing Cricket and in that incident the deceased had beaten up the appellant. However, that dispute was settled amicably through a Panchayati decision. According to the complainant Barkat Ali appellant had, despite a settlement of that dispute, still nursed a grudge in his heart in that regard and, therefore, he and his co-accused had committed the murder of Hasnain Shah on that score.
3. Leaving the dead body of his son Hasnain Shah at the place of occurrence in the care of Dilbar Hussain and Muhammad Amin P.Ws. The complainant went to Police Station Tulamba, District Khanewal and lodged F.I.R. No,80 in that regard at 12-30 a.m. During the same night. The F.I.R. Was recorded by Muhammad Raza, S.I. (P.W.10) for an offence under section 302/34, P.P.C.
4. After recording the F.I.R. Muhammad Raza, S.I. (P.W.10) took up the investigation of this case, went to the place of occurrence, prepared injury statement and inquest report qua the dead body, inspected the place of occurrence, prepared a rough site-plan thereof and collected blood- stained turn there from, recorded the statements of witnesses and sent the dead body to the mortuary for autopsy.
5. The post-mortem examination of the dead body of Hasnain Shah was conducted by Dr. Nazir Ahmed (P.W.5) at 8-00 a.m. On 3-5-1995: He had found 8 injuries on the dead body which were all ante-mortem and caused by, sharp-edged weapon. The cause of death was haemorrhage, both internal and external, and shock due to rupturing of vital organs like heart, both lungs and big vessels caused by Injuries Nos.1 to 3 which were sufficient to cause death in the ordinary course of nature. The probable time elapsing 'between injuries and death was half an hour while the duration between death and postmortem examination was opined by the doctor to be 11 to 12 hours.
6. After the post-motem examination of the dead body Muhammad Raza, (P.W.10), the investigating officer, took into possession the blood-stained last-worn clothes of the deceased. He then got a site-plan of the place of occurrence prepared by a draftsman. On 21-5-1995 he arrested Barkat Ali appellant and on 30-6-1995 he recovered a blood-stained spear from him. Thereafter he completed the other formalities and finalized his investigation. Subsequently a ChalIan was prepared and submitted by Liaqat Ali, Inspector in respect of this 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 his co-accused to which they pleaded not guilty and claimed a trial.
8. During the trial the prosecution produced as many as ten witnesses in support of its case against the appellant and his co-accused. Lal Shah complainant (P.W.7) and Dilbar Hussain (P.W.8) furnished the ocular account the incident. Bo of them also stated about the motive it up by the prosecution. Dr. Nazir Ahmad (P.W.5) provided the medical evidence. Dilbar Hussain (P.W.8) also deposed about the recovery of weapon from the appellant. Muhammad Raza, S.I. (P.W.10) 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 ap llant and his co-accused .Denied and contr versed all the allegations of fact levelled against them by the prosecution and professed their innocence. While answering a question as to why he had been implicated in this case and as to why the prosecution witnesses had deposed against him Barkat Ali appellant had stated that:-- "I am innocent. Case is false. Complainant of this case namely, Lal Shah was a driver in Highway Department. During the days of alleged occurrence I he was away to Lahore along with his XEN. He was summoned through a telephone call and was made complainant and eyewitness of this case after the preliminary investigation and so was close relative of Dilbar P.W. Who the complainant. It was a blind murder committed Iin the dark hours of night. The occurrence was not witnessed by anybody. I did not go to the house of complainant and did not take the deceased with me to the school ground, the alleged place of occurrences. I am not a player of cricket. And had never played cricket so there was no quarrel between the deceased and myself prior to the alleged occurrence.
Motive 'in this case was false one as has been set up to strengthen the case of prosecution. There was no compromise between the parties, it has also been fabricated to strengthen the prosecution dishonestly. I had appeared before the I.O. 6/7 days after the occurrence and had made a statement that I was not there and I have been involved falsely due to suspicions created by some enemies. The Investigating Officer along with me involved my father and brother-in-law, Zafar Iqbal. Maqsood is not the name of.Any accused, out of the three. I was kept in illegal confinement by the police and continued to torture me demanding Chhuri. Since; I had no Chhuri, I had not produced the same. It was planted by the 1.0. After getting the same from the complainant party to strengthen the, case. P.Ws. Are inimical, interested and inter see related."
' The co-accused of the appellant also made statements on similar lines. The appellant and his 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, Khanewal convicted and sentenced Barkat Ali appellant as noticed and detailed above while acquitting the appellant's co- accused. Hence, the present appeals and the connected Murder Reference before this Court.
11. We have heard the learned counsel for Barkat Ali appellant as well as the learned counsel for the State and the complainant and have also gone through the record of this case with their assistance.
12. It has been argued by the learned counsel for Barkat Ali appellant that the prosecution had failed to prove. Its case against the appellant beyond reasonable doubt. According to him the witnesses produced by the prosecution did not inspire confidence and that they had also failed to and material corroboration from any independent source. As against that the earned counsel for the State and the complainant have argued that the prosecution and successfully proved the guilt of the appellant to the hilt through convincing, cogent and reliable evidence. The learned counsel for the complainant has further argued that the learned trial Court was not stifled in acquitting Maqsood Ali and Muhammad Ali accused.
13. After hearing the learned counsel for e parties and going through the record we have no hesitation in concluding that the prosecution had failed to prove its case against Barkat Ali appellant beyond reasonable doubt. The ocular account of the incident in question had been furnished by Shah complainant (P.W.7) and Dilbar Hussain (P.W.8). Both these witnesses have filed to inspire our confidence inter alia for the following reasons:--
(a) Both these witnesses were very closely related to the deceased. Lal Shah complainant (P.W.7) was the father of Hasnain Shah deceased and Dilbar Hussain (P.W.8) is a brother-in-law of the complainant.
' Both of them were chance witnesses. Their claim of residing 1-1/2 and 1-1/4 acres respectively away from the place of occurrence was never substantiated on the record. Their respective residences were, even otherwise, sufficiently away from the place of occurrence as the same were not shown in the site plan (Exh.PB).
(c) At the relevant time Lal Shah complainant (P.W.7) was admittedly serving as a driver of the XEN/SDO, Highways Department at Mian Chaim, a place (we are told at the Bar) about 20/25 miles away from the place of occurrence. Nothing was brought on the record as to why he was available at his house in the village in question at the time of the incident and not at the place of his duty.
(d) The occurrence had admittedly taken place at night and at least Khalid Mehmood (P.W.4) had admitted that there was darkness at the place of occurrence at the time of the incident. In fact the lunar date that night was 1st of Zil-Haj.
(e) The complainant (P.W.7) and Dilbar Hussain (P.W.8) had maintained that they had witnessed the occurrence in the electric light available nearby. No electric bulb was secured during the investigation of this case so as to substantiate that assertion. Even otherwise, the electric bulbs shown in the site plan (Exh.PB) were at places which were about 159 and 146 feet away from the place of occurrence. It was, thus, not clear as to what was the power of those bulbs and as to whether the light of those bulbs was sufficient to light up even a place about 159 and 146 feet away.
(f) Dilbar Hussain (P.W.8) had admitted that four other persons ' (namely Munshi, Javed, Shafiq and .1Stikhar) had been arrested by the police in connection with this case dinging the investigation.
The investigating officer ( .W.10) had also confirmed the fact of associating those persons with the investigation of this case. That fact negated the F.I.R. Which had specifically nominated Barkat Ali appellant and his two co-accused as the culprits. A reasonable inference could be drawn from that fact that it was a un witnessed occurrence and different persons were being suited in that connection. Documents submitted in evidence as Exh.DA d Exh.DB further supported that I ference.
(g) The Inquest Report Exh.PF) was not signed by the complainant (P.W.7) or Dilbar Husain (P.W.8).
Thus, their claim to be present with the dead body at the firm of arrival of the police at the place of occurrence for the first time was further rendered suspect and the claim of the defence that they were procured and planted subsequently got strengthened.
(h) Dr. Nazir Ahmad (P.W.5) had unequivocally stated that Hasnain Shah deceased had been be to the hospital at 8r45 petition 2-5-1995 when he was, still alive and that he had breathed last in front of that Doctor in the hospital. That statement of the Doctor ran completely counter to the statements of the alleged eye-witnesses according to whom the deceased had died near the place of occurrence when he was being shifted to the complainant's house immediately after the occurrence and also that till the arrival of the police the dead body had not been taken to the- hospital and further that the dead body had been sent to the hospital/mortuary at about 5/6 a.m.
On 3-5-1995. The said Doctor was never declared to be hostile by the prosecution! This major contradiction within the prosecution's own evidence rendered the claimed promptitude in lodging the F.I.R. As well as the happenings during the night of occurrence after the incident not free from serious doubts. The veracity of the eye-witnessess' statements had suffered a serious setback on this score.
(i) Two co-accused of Barkat Ali appellant had been acquitted by the learned trial Court despite the fact that these very eye-witnesses had not only specifically named those co-accused as co- culprits of the appellant but also specific injuries to the deceased had been attributed to the said: co-accused by these witnesses. Thus, the statements of these witnesses could not be safely relied upon for recording conviction of the appellant without finding material corroboration thereof from independent sources. As shall be discussed shortly, no such independent corroboration was forthcoming or available in the record of the case.
14. The prosecution had also miserably failed to prove the motive set up by it against Barkat Ali appellant. As mentioned above the alleged motive set up in the F.I.R. Was that about 2-1/2 to 3 months prior to the said occurrence Hasnain Shah deceased and Barkat Ali appellant had quarrelled over playing cricket and in that incident the deceased had beaten up the appellant.
However, that dispute was settled amicably through a Panchayati decision. According to the complainant Barkat Ali appellant had, despite a settlement of that dispute, still nursed a grudge in his heart in that regard and, therefore, he and his co-accused had committed the murder of Hasnain Shah on that score. At the trial Lal Shah complainant (P.W.7) and Dilbar Hussain (P.W.8) had deposed about that motive but quite significantly both of them had admitted that they were not personally present during the altercation in question. Their statements about the alleged subsequent settlement of the dispute were also discrepant as well as unspecific. One stated that the settlement had been brought about by a Panchayat whereas the other maintained that the said settlement had been worked out by a sole mediator. The investigating officer (P.W.10) had also admitted that he had not collected any independent evidence regarding the alleged motive. Thus, the alleged move set up by the prosecution remained far from being proved and the so-called eye-witnesses had failed to receive any corroboration on that account. Apart from that it was the prosecution's own case that the said dispute between the deceased and the appellant had already been settled amicably and also that there had been no other dispute or quarrel between the deceased and the appellant during the next 2-1/2 to 3 months prior to the occurrence. Thus, we are not ready to believe that the alleged petty and already patched-up "dispute had propelled the appellant into aggression against the deceased so as to take the latter's life.
15. As regards the alleged recovery of a blood-stained dagger from Barkat Ali appellant during the investigation of this case suffice it to observe that the same has failed to impress us. The alleged recovery had been effected from the appellant after more than a month of the occurrence and we are not ready to believe that the appellant could not find an opportunity during all that period to wipe off 'blood from the same! The said recovery had allegedly been effected on the last day of the appellant's physical remand with the police 'and apart from the, investigating officer (P.W.10) only'
Dilbar Hussain (P.W.8) had been produced to. Prove the said recovery. An eye-witness surely could not provide corroboration unto himself. The provisions of section 103, C.r.P,C. Had indeed been flagrantly violated in respect of that alleged recovery.
16. The medical evidence produced by the prosecution was not of much avail in this case as the same could not identify or locate the perpetrator of the offence. In a case where the eye-witnesses themselves fail to inspire confidence the medical evidence loses all its supportive worth or relevance.
17. For what has been observed above we have arrived at a confident conclusion that the prosecution had failed to prove its case against Barkat Ali appellant beyond reasonable doubt.
18. As the prosecution evidence has been found to be doubtful in this case qua Barkat An appellant the same evidence also cannot be relied upon to record conviction of his co-accused Maqsood Ali and Muhammad Ali. Apart from that Maqsood Ali and Muhammad Ali accused had a better case than Barkat Ali as admittedly no weapon was recovered from them during .The investigation and they were also not directly connected with the motive set up by the prosecution. They were also found to be innocent by the local police during the investigation and their names had-been placed in column No,2 of the Challan. The State had also failed to challenge their acquittal recorded by the learned trial Court. It may also be relevant-to point out that the complainant appeal against the acquittal of these two accused has riot even been admitted to regular hearing as yet,
19. The upshot of the above discussion is that Criminal Appeal No,62 of 1997 is hereby allowed, the impugned judgment passed by the learned Additional Sessions Judge, Khanewal on 6-3-1997 is set aside and Barkat Ali appellant is acquitted of the charge against him. He shall be released from jail forthwith, if not required in any other case. Criminal Appeal No,66 of 1997 filed by .Syed Lai Shah complainant against the acquittal of Maqsood Ali and-Muhammad Ali accused is hereby dismissed.
20. As the appeal filed by Barkat Ali appellant has been accepted, with a resultant setting aside of his conviction and sentence recorded by the learned trial Court, and he has been acquitted by us, therefore, Murder Reference No,65 of 1997 is hereby answered in the negative.
Death sentence is not confirmed.