' ASIF SAEED KHAN KHOSA, J.--- Ghulam Sarwar, Nazar Muhammad, Rahim Bakhsh and Muhammad Sadiq appellants were convicted by the learned Additional Sessions Judge, Lodhran vide judgment, dated 4-2-1996 for an offence under section 302/34, P.P.C. Ghulam Sarwar, Nazar Muhammad and Rahim Bakhsh were sentenced to death each Muhammad Sadiq was sentenced to imprisonment for life and the benefit under section 382-B, Cr.P.C. Was also extended to him. All the four convicts have challenged their convictions and sentences before this Court through Criminal Appeal No,37 of 1996. Muhammad Iqbal complainant has also filed Criminal Revision No,25 of 1996 before this Court seeking enhancement of the sentence passed against Muhammad Sadiq appellant and also for awarding of compensation by all the convicts to the heirs of Muhammad Bilal deceased.
We have heard the convicts' appeal and the complainant's revision petition along with Murder Reference No,201 of 1996 seeking confirmation of the sentences of death passed against three convicts. 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 Muhammad Iqbal complainant was an agriculturist by profession and was a resident of Chah Ridwala Dakhli, Mauza Alipur Asar situated within the area of Police Station Saddar, Lodhran. At about 12-00 noon on 1-11-1991 the complainant's father Muhammad Bilal was returning to his village on foot after obtaining medicine from village Suiwala. He was walking on the service road of the canal. At that time the complainant, Khuda Bakhsh P.W. And Muhammad Afzal P.W. Were going together to attend the wedding of a son of Ghulam Sarwar. When the complainant's father Muhammad Bilal reached the land of Muhammad Hassan, Advocate within the area of Mauza Alipur Asar suddenly Rahim Bakhsh, armed with a hatchet, Ghulam Sarwar, armed with a Sota, Nazar Muhammad, armed with a hatchet, and Muhammad Sadiq, armed with Sota, emerged from the cotton crop and challenged the complainant's father. Rahim Bakhsh then gave a hatchet blow to the complainant's father hitting him at his head upon receipt of which he fell down. Ghulam Sarwar then gave Sota blows to the complainant's father which landed at his right leg and right arm. Nazar Muhammad gave two hatchet blows to the complainant's father at his left shin. Muhammad Sadiq also gave a Sota blow to the complainant's father hitting him at his left arm. The hue and cry raised by the complainant's father attracted the complainant and his companions to the spot upon which the assailants ran away with their weapons by crossing the canal. The complainant and his companions then took the complainant's father to Civil Hospital, Lodhran in an unconscious condition from where the doctor sent the complainant's father to Victoria Hospital, Bahawalpur. At about 5-00 p.m. On the same day the complainant's father succumbed to his injuries where after his dead body was brought to Civil Hospital, Lodhran. The motive set up in the F.I.R. Was that 14/15 years before this occurrence the complainant's father Muhammad Bilal had abducted Rahim Bakhsh and Ghulam Sarwar appellant' sister Mst. Rahiman Mai. It was on account of that grudge that the appellants had statedly committed the murder of the complainant's father Muhammad Bilal.
3. Leaving the dead body of his father Muhammad Bilal at Civil Hospital, Lodhran in the care of Khuda Bakhsh and Muhammad Afzal P. Ws. Muhammad lqbal complainant went to Police Station Saddar, Lodham and lodged F.I.R. No,282 in that regard at 5-45 p.m. On the same day. The F.I.R. Was recorded by Ghulam Raza, S.-I. (P.W.9) for an offence under section 302/34, P.P.C.
4. After recording the F.I.R. Ghulam Raza, S.-I. IP.W.9) took up the investigation of this case, went to Civil Hospital, Lodhran, inspected the dead body, prepared injury statement and inquest report, and sent the dead body for autopsy. Then he went to the place of occurrence and on the next morning, i,e, on 2-11-1991 he inspected spot, prepared a rough site-plan of the place of occurrence and took into possession blood-stained earth.
5. The medico-legal examination of injured Muhammad Bilal and the post-mortem examination of his dead body were conducted by Dr. Muhammad Ismail Mengal (P.W.7) at 1-00 p.m. On 1-11-1991 and 8-30 a.m. On 2-11-1991 respectively. He had found six injuries on his person/dead body which were all ante mortem. Injuries Nos.1, 5 and 6 were caused by sharp-edged weapons whereas injuries Nos.2, 3 and 4 were caused by blunt weapons. Muhammad Bilal deceased had received his injuries within six hours of his medical examination. The death, in his opinion, was caused due to haemorrhage and shock due to injuries Nos.1, 4, 5 and 6 which were collectively 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 six to twelve hours while the duration between the death and post- mortem examination was opined by the doctor to be between twelve to twenty-four hours.
6. After the post-mortem examination of Muhammad Bilal deceased Ghulam Raza,. S.-I. (P.W 9), the Investigation Officer, took into possession the blood-stained last-worn clothes of the deceased.
Subsequently he arrested all the four appellants on 4-12-1991. On 17-12-1991, he recovered a Sota from Ghulam Sarwar appellant and an hatchet from Nazar Muhammad appellant. 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 submitted a Challan in respect of this case.
7. At the commencement of the trial the learned Viral Court framed a Charge with one head under section 302/34, P.P.C. Against all the four appellants to which they pleaded not guilty and claimed a trial.
8. During the trial the prosecution produced as many as nine witnesses in support of its case against the appellants. Muhammad Iqbal complainant (P. W.1) and Khuda Bakhsh (P.W.2) furnished the ocular account of the incident. Both of them also deposed about the motive. Dr. Muhammad Ismail Mangla (P.W.7) provided the medical evidence. Ghulam Hassan (P.W.3) deposed about recoveries of weapons affected from two of the appellants. Ghulam Raza, S.-I (P.W.9) 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. All the appellants denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They 'maintained that they had been falsely roped into this case on account of ' enmity and suspicion entertained by the complainant party. While answering , a question Ghulam Sarwar appellant had stated that:-- "The P.Ws. Have become false eye-witnesses. The deceased was unconscious lying at the place of occurrence. His brother Allah Baskhsh found him in that state and took him to the Hospital Lodhran.
He remained there till his death. The so call eye-witnesses were later summoned from their houses and falsely made as eye-witnesses. They had not seen the occurrence and have been belatedly made as eye-witnesses by police. I am innocent."
' The other appellants also made similar statements. All the appellants opted not to make statements on oath under section 340(2), Cr.P.C. And they also did not produce any witness in their defence.
10. At the conclusion of the trial, as mentioned above, the learned Additional Sessions Judge, Lodhran convicted and sentenced all the appellants as noticed above. Hence, the present appeal, revision petition 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 complainant and the State and have also gone through the record of this case with their assistance.
12. The learned counsel for the appellants has argued 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 they had also to find material corroboration from any independent source. As against that the learned counsel for the, complainant and the State have argued that the prosecution had successfully proved the guilt of the appellants both 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 Muhammad Iqbal complainant (P.W.1) and Khuda Bakhsh (P.W.2). Both of them have failed to inspire our confidence. They were not only closely related to the deceased but were also interested as well as chance witnesses. The complainant (P.W.1) was the son of the deceased whereas P.W.2 was the deceased's real brother. The deceased had admittedly abducted a sister of two appellants and an aunt of the other two appellants sometime in the past and the bitterness, thus, generated between the parties can well be imagined and inferred. Therefore, the interest of these witnesses against the appellants was not open to serious doubt or exception. It had also come on the record that the complainant as well as P.W.2 lived miles away from each other as well as from the place of occurrence. Thus, both of them were chance witnesses. The explanation advanced by these witnesses for their presence near the place of occurrence at the time of occurrence was that they had got together and were going to attend a wedding in another village. No independent evidence had been brought on the record by the prosecution for proving the getting together of these witnesses had also for proving the holding of the stated marriage ceremony or their invitation thereto. Therefore, that explanation was never substantiated or established during the trial. Even otherwise, the chance presence of these witnesses near the deceased at the time of occurrence was stated to be at a time when the deceased was returning from another village after obtaining medicine for his ailment. The prosecution had also completely failed to prove the deceased's ailment, his going to another village for consulting a doctor or a Hakim or his obtaining of any medicine for himself. No such medicine was recovered from the spot or from him or from his last- worn clothes by the doctor or the Investigation Officer. To us the prosecution case was based upon an unproved reason for the deceased's presence miles away from his house, an unproved reason for going of the witnesses to another village at the relevant time and, to top it all, a chance meeting between the deceased and the witnesses miles away from their homes. Chances do occur in life but we have not felt ourselves persuaded in this case to accept the taking place of so many chances at one given time in the complete absence of any independent proof establishing even a reasonable possibility of happening of such chances. Thus, we have IB entertained serious doubts about the claimed presence of the eye-witnesses near the deceased at the time of occurrence.
14. In this context we have also noticed with all seriousness that soon after the incident it was not P.W.1 or P.W.2 who had taken the deceased in an injured condition to the hospital but he was taken to the hospital by the deceased's brother Allah Bakhsh. According to P.W.1 and P.W.2 Allah Bakhsh had not met them till midnight after the occurrence. If that was so then P.W.1 and P.W.2 were not with the deceased till the midnight after the occurrence and it was Allah Bakhsh alone who had taken the deceased to the hospital in an injured condition. The doctor (P.W.7) had categorically stated that it was Allah Bakhsh who had brought the deceased to the hospital and it was, Allah Bakhsh again to whom the medico-legal certificate in respect of the deceased was delivered by the doctor. This admitted position compounds the doubts in our minds that P.W.1 and P.W.2 were not with or near the deceased at the time of occurrence and that in all probability they were procured and planted subsequently as eye-witnesses of the occurrence. For some odd reason Allah Bakhsh, who was the most important witness in this case, was given up, by the prosecution as unnecessary.
15. Another factor relevant to this issue is that the F.I.R. In this case was lodged with an unusual and noticeable delay. Once the deceased had been transported to Civil Hospital, Lodhran at about 1-00 p.m. On the day of occurrence there was no occasion for the complainant party not to report the matter to the police soon thereafter, especially when the police station was only one kilometer away from the hospital. The complainant party had tried to explain that delay by maintaining that from Civil Hospital, Lodhran the deceased was taken to B. V. Hospital, Bahawalpur under Medical advice . And upon the deceased's death at B. V. Hospital, Bahawalpur the dead body was shifted by them again to Civil Hospital, Lodhran before reporting the matter to the police. This, according to the prosecution's case, was the reason for delayed lodging of the F.I.R. We have noticed that this explanation for the _delay was also not satisfactorily established on the record. Although the medico-legal certificate (Exh.P.F.) in respect of the deceased showed that the patient was referred to B.V. Hospital, Bahawalpur and the doctor had also stated so in his statement as P.W.7 yet there was no other evidence available on the record to show that the deceased was in fact shifted to B.V.
Hospital, Bahawalpur. No record in 'respect of his admission to, treatment at or death in the said hospital had been brought on the record of this case. We have found it to be odd that even the Investigating Officer (P.W.9) had admittedly failed to verify that fact. Thus, it was not proved on the record that the deceased was actually shifted to B.V. Hospital, ,Bahawalpur so as to lend any credence or acceptability to the explanation advanced for the delay in lodging the F.I.R. This factor has further deepened our doubts about the stated presence of the eye-witnesses near the deceased at the time of occurrence.
16. The eye-witnesses produced by the prosecution had also failed to received material corroboration from any source. The motive set up by the prosecution, even if accepted, was quite old and, therefore, weak. No recent ignition of that old motive propelling the appellants into aggression against the deceased was brought on the record by the prosecution. Admittedly no weapon of offence was recovered from Rahim Baldish and Muhammad Sadiq appellants of this case. The alleged recovery of Sota from Ghulam Sarwar appellant and hatchet from Nazar Muhammad appellant was legally inconsequential. The said recoveries had been affected on the last day of their physical remand. Although the recovery memos. In that respect suspiciously showed the said recovered articles to be stained with blood yet that blood was never proved to be of human origin as no report of the Serologist was brought on the record by the prosecution in that regard. Apart from that Ghulam Hassan (P.W.3), a witnesses of the said recoveries, had stated in so many words that after their recovery the said articles had not been secured in sealed parcels in his presence. Thus, the evidentiary value of the said recoveries was virtually next to nothing. The supportive value of the medical evidence in this case was also diminished by the doctor (P.W.7)'s statement to the effect that all the injuries sustained by the deceased could be caused by one hatchet from its sharp 1s well as blunt sides. Even otherwise, medical evidence cannot identify the assailant and, therefore in a case where the presence of the eye-witnesses is open to serious doubts the supportive role of the medical evidence is substantially minimized.
17. For what has been observed above we have arrived at a confident conclusion that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. Thus, extending the benefit of doubt to the appellants, their appeal is hereby allowed, the impugned judgment passed by the learned Additional Sessions- Judge, Lodhran on 4-2-1996 is set aside and the appellants are acquitted of the charge against them. They shall be released from jail forthwith, if not required in any other case. Consequently Muhammad Iqbal complainant's revision petition is hereby dismissed.
18. As the appeal filed by the appellants has been accepted, with a resultant setting aside of their convictions and sentences recorded by the learned trial Court, and they have been acquitted by us, therefore, Murder Reference No,201 of 1996 is hereby answered in the negative.