ASIF SAEED KHAN KHOSA, Hazoor Bakhsh alias Sanaullah appellant was convicted by the learned Additional Sessions Judge-I, Muzaffargarh vide judgment dated 5-12-1990 for an offence under section 302, P.P.C. And was sentenced to death and a fine of Rs,4,000 or in default of payment thereof to R.I. For one year. He was also ordered to pay a sum of Rs,2,000 by way of compensation to the heirs of Hazoor Bakhsh deceased under section 544-A, Cr.P.C. Failing which he was to suffer R.I. For six months. Through the same judgment the learned trial Court had acquitted Hafiz Khuda Bakhsh, Muhammad Ayoub alias Ayouba and Mukhtiar Ahmad accused by extending to them the benefit of doubt. Hazoor Bakhsh alias Sanaullah appellant had challenged his conviction and sentence before this Court through Criminal Appeal No, 204 of 1990 sent by him from the jail but, unfortunately, the same was misplaced by the office of this Court by attaching it with the file of Murder Reference No,51 of 1991. Subsequently Hazoor Bakhsh alias Sanaullah appellant sent another appeal in this case through the jail which was registered as Criminal Appeal No,112 of 1997. We have heard his appeal alongwith Murder Reference No,47 of 1991 seeking confirmation of the sentence of death passed against him. 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 Rahim Bakhsh complainant was a resident of Mauza Yains situated within the area of Police Station Jatoi, District Muzaffargarh and was an agriculturist by profession. The complainant's brother, Hazoor Bakhsh (deceased) lived at a distance of about two squares away from the complainant's residence. Hafiz Khuda Bakhsh accused had purchased 6-1/2 Bighas of agricultural land in the name of his wife Zainab from one Khair Muhammad and Hazoor Bakhsh deceased had filed a suit for pre-emption against that sale Due to change of the relevant law that suit filed by Hazoor Bakhsh deceased was dismissed. After dismissal of that suit Hafiz Khuda Bakhsh accused started encroaching upon some of the land of Hazoor Bakhsh deceased situated near the latter's house. Hazoor Baldish deceased forbade Hafiz Khuda Baldish accused from doing that and ploughed his relevant land. After two days of that ploughing Hafiz Khuda Bakhsh accused irrigated that land but Hazoor Baldish deceased sowed Jantar on that land in retaliation. In those days Hafiz Khuda Bakhsh accused employed the appellant, statedly a dangerous bad character, as a servant mainly to regain possession of that land. Through the appellant Hafiz Khuda Bakhsh repeatedly irrigated the land in dispute whereupon the complainant forbade them not to do so and not to quarrel over the same. About 10/12 days prior to the present occurrence the complainant was present near Syedwah Canal along with Ata Ullah and Allah Bakhsh when Hafiz Khuda Bakhsh accused and the appellant came there and Hafiz Khuda Bakhsh accused told the complainant that Hazoor Bakhsh deceased was not allowing him to take possession of the disputed land and that Hazoor Bakhsh deceased would not be spared alive by Hafiz Khuda Bakhsh. Upon that, the complainant placated them and advised them not to quarrel over that. During the night between 25/26-5-1987 the complainant, Wali Muhammad, Ghulam Nabi and Muhammad Iqbal P. Ws. Went to sleep at the house of Hazoor Bakhsh deceased towards the western side of the latter's residential Kotha when Hazoor Baldish deceased his wife Mst. Sakina Mai and their children were sleeping in front of their Kotha. A lamp was hanging from the wall of that Kotha and was alight. At about 11-00 p.m. The complainant woke up upon barking of a dog and saw in the light of the lamp that Hafiz Khuda Bakhsh accused, armed with a gun, the appellant, armed with a gun, Mukhtiar Ahmad accused, armed with a pistol, and Muhammad Ayoub alias Ayouba accused, armed with a gun, were standing towards the northern side of the deceased's cot. Upon the cries of the complainant Wali Muhammad, Ghulam Nabi and Muhammad lqbal P.Ws. Also woke up. Then, within the view of the complainant and the other P.Ws., Hafiz Khuda Bakhsh accused fired a shot at the sleeping Hazoor Bakhsh deceased which hit him at his back. Upon receipt of that shot Hazoor Bakhsh deceased got up in pain but fell down. When the complainant, etc. Tried to apprehend the culprits the appellant and Muhammad Ayoub alias Ayouba accused fired a shot each in the air and warned them from coming near. The complainant, etc. Then desisted from going near the culprits. Thereafter, the accused party went away with their weapons towards the forest in the south. Hazoor Bakhsh deceased then succumbed to his injuries at the spot. The motive stated in the F.I.R was that Hafiz Khuda Bakhsh accused was aggrieved against Hazoor Bakhsh deceased on account of the latter's refusal to give possession of the disputed land to him.
' Leaving the dead body of his brother Hazoor Bakhsh at the place of occurrence in the care of Wali Muhammad, Ghulam Nabi and Muhammad Iqbal the complainant went to Police. Station Jatoi, District Muzaffargarh and lodged F.I.R. No. 90 in that regard at 1-00 a.m. During the same night. The F.I.R. Was recorded by Mian Muhammad Saeed, Inspector/SHO (P.W.16) for an offence under section 302/34, P.P.C.
4. After recording the F.I.R. Mian Muhammad Saeed, Inspector/SHO -(P.W.16) 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, collected blood-stained earth, took into possession a cot, a Taddi and a hurricane lamp therefrom, recorded the statements of witnesses and then sent the dead body to the mortuary for autopsy.
5. The post-mortem examination of the dead body of Hazoor Balchsh was conducted by Dr.Khalid Parvaiz (P,W.5) at 9-30 am. On 26-5-1987. He had found 4 injuries on the dead body which were all ante-mortem and homicidal. The cause of death was haemorrhage and shock due to severe internal haemorrhage from descending part of iota, descending part of superior venacava and injury to vital organ due to gunshot wound. The probable time elapsing between the injuries and death was stated by the doctor to be immediate while the duration between the death and post- mortem examination was opined by the doctor to be about 10 to 12 hours.
6 After the post-mortem examination of the dead body Mian Muhammad Saeed, Inspector/SHO (P.W.16), the Investigating Officer, took into possession the bloodstained last-worn clothes of the deceased. On 17-6-1987 he arrested the appellant in another murder case while carrying a .12 bore gun and four live cartridges which were taken into possession. He then got a site plan of the place of occurrence prepared by a Patwari, arrested the remaining accused persons. 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 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 sixteen witnesses in support of its case against the appellant and his co-accused. Rahim Bakhsh complainant (P.W.8), Mat. Ghulam Sakina (P.W.9), Wali Muhammad (P.W.11) and Muhammad Iqbal (PM.12) furnished the ocular account of the incident. Allah Bakhsh (P.W.6), Rahim Bakhsh complainant (P.W.8), Mst. Ghulam Sakina (P.W.9), Ata Ullah (P.W.10), Wali Muhammad (P.W.11) and Muhammad Iqbal (P.W.12) were produced in support of the motive. However, Allah Bakhsh (P.W.6) and Ata Ullah (P.W.10) did not support the motive set up by the prosecution and were declared hostile. Dr. Khalid Parvaiz (P.W.5) provided the medical evidence. Ghulam Abu Talib (P.W.15) deposed about the recovery of weapon from the appellant. Mian Muhammad Saeed, who had by then been appointed as SDPO, Alipur (P.W.16) 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 appellant and his co accused denied and controverted 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, the appellant had stated that: "Amir Musarrat Hussain, Inspector was posted as S.H.O., P.S. Kot Adu in those days and Amir Musarrat Hussain is the brother of Amir Shujaat who is a P.W. In the connected murder case F.I.R. No. 81 of 1987 of Police Station, Jatoi. Amir Shujat aforesaid has got me falsely implicated in this case as The appellant and his co-accused opted not to make any statement on oath under section 340(2).
Cr.P.C. And the appellant also did not produce any evidence in his defence. However, the appellant's co-accused produced Ahmad Bakhsh (D.W.1) and Mr.Yar Muhammad Khan Buzdar, M.I.C. (D.W.2) apart from some documents in their defence.
10. At the conclusion, of the trial the learned Additional Sessions Judge-I, Muzaffargarh convicted and sentenced the appellant as noticed and detailed above while acquitting the appellant's co- accused. Hence, the present appeal and the connected Murder Reference before this Court.
11. We have heard the learned counsel for the appellant 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 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 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 appellant 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 appellant beyond reasonable doubt. The ocular account of the incident in question had been furnished by Rahim Bakhsh complainant (P.W.8), Mst. Ghulam Sakina (P.W.9), Wali Muhammad (P.W.11) and Muhammad Iqbal (P.W.12). All of them have individually as well as collectively failed to inspire our confidence. As a matter of fact, the version of the incident advanced by the first two eye-witnesses is diametrically opposed to the version narrated in the F.I.R. And the version of.The incident narrated by the other two eye-witnesses is contradictory to their statements made under section 164, Cr.P.C.
Apart from that, the statements made by these two sets of eye-witnesses are mutually contradictory and completely destructive of the narration of events stated by the other set. For the reasons stated below we have felt it absolutely unsafe to maintain the appellant's conviction on a capital charge on the basis of such ocular evidence produced by the prosecution.
14. Rahim Bakhsh complainant (P.W.8) was a brother of Hazoor Bakhsh deceased and According to the F.I.R. Lodged by him, his own house was situated two squares away from the house of the deceased. In the F.I.R. As well as in his statement made before the learned trial Court, he had advanced no explanation for his sleeping at the house of the deceased during the fateful night. In fact, at the trial he had changed his stand and had proclaimed that the Dera of the deceased was also his Dera! Such a brazen attempt on his part to convert his status from that of a chance to a natural witness could not go unnoticed. In the F.I.R. Lodged by him this witness had categorically stated that it was Hafiz Khuda Bakhsh accused who had fired the solitary shot at the deceased and that out of the remaining three culprits two, including the appellant, had only fired one shot each in the air to ward off the complainant and the other eye-witnesses. He had undertaken a complete volte face at the trial in this respect. In his statement before the learned trial Court he had unambiguously stated that there was only one assailant, i,e, the appellant and it was he alone who had fired the solitary shot at the deceased and had subsequently run away from the spot! What has made us reject his testimony altogether is that during the next two and a half years after lodging the F.I.R. He made no attempt whatsoever to proclaim that the F.I.R. Lodged by him, in fact, did not contain true narration of the incident or that the facts stated by him had not been correctly recorded by the local police in the F.I.R. He did not file any application before any authority in this regard a td also failed to file a private complaint in support of this changed version. His conduct in this regard had been such that we are not ready to lend any credence to his belatedly introduced story wherein the appellant had been transposed from being an accomplice of the main assailant to bring the sole perpetrator of the offence himself.
15. Mst. Ghulam Sakina (P.W.9) was the wife of the deceased and indeed a natural witness of the occurrence and in normal circumstances we would have been ready to accept her statement regarding the main incident taking place in her own house. However, upon her own showing, she had also lost the necessary credibility required for recording a conviction on a capital charge on the basis of her statement. She had stated in her cross-examination that she knew from the very beginning that the story narrated in the F.I.R. Mentioned four culprits and attributed the solitary shot at the deceased to Hafiz Khuda Bakhsh accused and also that a false story had been narrated in the F.I.R. At the behest of her relatives and the local police. But, alas, admittedly she did nothing to state the true story before the police or any other authority for the next two and a half years! Thus, admittedly, she was ready to go along with an untrue story propounded by her relatives and the local police despite a knowledge that the same might send some innocent persons to the gallows.
We have failed to receive any assurance from the record of the case so as to convince us that the altogether changed story deposed by her before the learned trial Court for the first time was. In fact the true narration of the incident allegedly witnessed by her and that at least this time she was not being guided or swa yed by her relatives and the local police to tell a- story which was actually untrue! A witness who admits of sacrificing the truth at the altar of expediency once is usually not worthy of credit or implicit reliance on her second attempt at story-telling.
16. Wali Muhammad (P.W.11) and Muhammad Iqbal (P.W.12) belonged to the other set of eye- witnesses produced by the prosecution who had maintained before the learned trial Court that it was Hafiz Khuda Bakhsh accused and not the appellant who had fired the solitary shot at the deceased. If their version of the incident was to be believed then the appellant could be convicted only in his capacity as an accomplice of his co-accused sharing common intention to commit the murder. It is. However, interesting to note that all the three co-accused of he appellant, including Hafiz Khuda Bakhsh accused, had been acquitted by the learned trial Court and their acquittal had never been challenged by the State or the complainant party before any higher Court or forum.
Thus, the appellant could not be convicted on account of vicarious liability when those whose liability he was to share had been acquitted! Apart from that, both these witnesses had made statements under section 164, Cr.P.C. Which ran completely counter to their statements made before the police and the learned trial Court. Both these witnesses were also chance witnesses who lived squares away from the Dera of the deceased and had made contradictory statements regarding their reasons for sleeping at the Dera of the deceased during the fateful night. Thus, we have found both these witnesses also to be unworthy of credit or implicit reliance on a capital charge.
17. The prosecution had also miserably failed to prove the different motives set up by it against the appellant. As -regards the motive stated in the F.I.R. The appellant was not directly connected with the same and the prosecution' had failed to brine anything on the record to establish that the appellant had ever been employed by Hafiz Khuda Bakhsh accused as his servant for the purposes of getting possession of a disputed parcel of land from the deceased. Mst. Ghulam Sakina (P.W.9), widow of the deceased, had stated in so many words before the learned trial Court that the deceased had no dispute with Hafiz Khuda Bakhsh accused over possession of any land. Thus, that motive set up in the F.I.R. Had evaporated in thin air. The alleged threat by Hafiz Khuda Balchsh accused in the company of the appellant issued 10/12 days before the occurrence in the presence of the complainant, Allah Bakhsh (P.W.6) and Ata Ullah (P.W.10) had also remained far from being proved. Both Allah Bakhsh (P.W.6) and Ata Ullah (P.W.10) had failed to support that allegation and they had been declared to be hostile. The other motive connected with the murder of one Malik Manzoor Ahmad Hamza, Advocate was nothing but a belated improvement by the prosecution coming to surface for the first time at the trial of the appellant after about two and a half years of the occurrence. Thus, there was neither any on-going motive nor any immediate motive/ available with the prosecution to provide corroboration to the already beleaguered ocular evidence against the appellant.
18. As regards the alleged recovery of gun from the appellant during the investigation, if this case, suffice it to observe, that the same had remained legally inconsequential. No crime-empty was recovered from the place of occurrence and, therefore, said gun remained unconnected with the offence alleged. Corroborative value of such a recovery was next to nothing.
19. The medical evidence produced by the prosecution had also failed to provide sufficient support to the ocular evidence in this case. The ocular evidence had failed to explain injuries Nos. 3 and 4 found on the dead body of the deceased during his postmortem examination.
20. For what has been observed above, we have arrived at a confident conclusion that the prosecution had failed to prove its case against the appellant beyond reasonable doubt.
21. The upshot of the above discussion is that Criminal Appeal No,112 of 1997 is hereby allowed, the impugned judgment passed by the learned Additional Sessions Judge-1, Muzaffargarh on 542- 1990 is set aside and Hazoor Bash alias Sanaullah appellant is acquitted of the charge against him.
He shall be released from jail forthwith, it not required in any other case.
22. As the appeal filed by Hazoor Baldish alias Sanaullah 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. 47 of 1991, is hereby answered in the negative.