' This appeal is directed against the judgment, dated 30-4-1995 passed by Mr. Ghulam Rasool Ranjha, Additional' Sessions Judge, Gujrat whereby Malik Abbas alias Aslam appellant was convicted under section 302, P.P.C. And sentenced to undergo imprisonment for life as Ta'zir. He was also ordered to pay Rs,50,000 as compensation to the heirs of Sarfraz deceased. He was, however, given benefit of section 382-B, Cr. P.0 .
2. Five persons namely Ch. Ahmad Khan, Khurshid Ahmad, Farrukh Mahmood, Abbas son of Abdullah and Malik Abbas alias Muhammad Aslam son of Rehmat were sent up to face trial in the Court of learned Additional Sessions Judge, Gujrat, under section 302/324/148/149, P.P.C. On conclusion of the trial, Ch. Ahmad Khan, Khurshid Ahmad and Abbas son of Abdullah were acquitted of the charges against them. Farrukh Mahmood being a proclaimed offender, it was ordered that his case be put up when he would be arrested. The appellant was, however, convicted and sentenced as noted above. All the accused were acquitted of the charge against all of them under section 324, P.P.C.
3. The prosecution case as revealed from the statement of Walayat Khan (P.W.5) is that on 30-7- 1992 as about noon time, his maternal nephew Ishtiaq alias Shaki along with Abbas and Sarfraz were proceeding towards Jandiala from their village Gandra Khurd as one Muhammad Tufail had expired in Saudi Arabia and his dead body had been brought to his village. Sarfraz was driving the motorcycle whereas Ishtiaq alias Shaki and Abbas were riding the pillion. When all the three reached within the vicinity of Qadir Colony, Farrukh Mahmood, Ch. Ahmad Khan, Khurshid, Abbas son of Abdullah and Malik Abbas (who subsequently was described as Malik Abbas alias Muhammad Aslam during the trial) who is bodyguard of Farrukh Mahmood were sitting on the roofs of the shop. They were all armed with various fire-arms. Ahmad Khan raised a Lalkara that all the three should not be spared on which Khurshid, Abbas and Malik Abbas opened fire which hit Sarfraz on his chest, back and left thigh. Thereafter, Farrukh Mahmood fired a shot from his weapon hitting Ishtiaq alias Shaki on the right loin, left thigh and leg. Khurshid fired shot hitting Abbas on the right leg. Sarfraz succumbed to the injuries received by him at the spot while Abbas and Ishtiaq, injured persons were removed to the hospital.
4. The motive was alleged to be that Ishtiaq alias Shaki had forcibly occupied the land of Farrukh Mahmood by ploughing the same. A day prior to the occurrence, the parties exchanged abuses and the accused persons extended threat that if in future the rent was demanded, he will not spare them. Consequently, after hatching a conspiracy, all the accused persons in prosecution of the common object have committed the murder of Sarfraz and inflicted injuries on the person of Abbas and Ishtiaq alias Shaki.
5. On the statement Exh. P.F. Of Walayat Khan recorded by Muhammad Ayyub S.I. (P.W.12), a formal F.I.R. Was registered with Police Station Sadar Gujrat. During the course of investigation, two of the accused persons namely Ch. Ahmad Khan and Khurshid Ahmad were got discharged from the case after declaring them as innocent. The complainant thereafter, filed a private complaint on 2- 10-1992. Since the complaint was under section 302, P.P.C., therefore, the same was sent up to the learned Additional Sessions Judge. After recording preliminary evidence all the accused persons were summoned to face trial who .Were tried by Mr. Ghulam Rasool Ranjah, Additional Sessions Judge.
6. The prosecution in order to prove its case examined 12 witnesses. P.W.1 Dr. Allah Bakhsh conducted the post-mortem examination of Sarfraz deceased on 30-7-1992 and observed the following injuries on his person:---
(1) A fire-arm wound of entry 1 c.m. x 3/4 c.m. With lacerated margins on left front of chest 5 c.m.
Below the left mid clavical area.
(2) A fire-arm wound of exist 1-1/4 c.m. x 1 c.m. On the left back of chest 24 c.m. Below the upper border of left scapular and 3 c.m. Left of the thorax spine.
(3) A fire-arm wound of entry 1/2 c.m.x 1/2 c.m. On the front left thigh 13 c.m. Above left knee joint.
(4) A fire-arm wound of exit 1 c.m. x 1/2 c.m. On the postero lateral aspect of the left thigh 14 c.m.
Above left knee joint.
' The injuries were ante-mortem and had been caused with fire-arm weapon. They were sufficient to cause death in ordinary course of nature.
' On the same day he medically examined Muhammad Abbas son of Akbar Ali and noted the following injuries:---
(1) A fire-arm wound of entry 1/2 c.m. x 1/2 c.m. On the right leg 8 c.m. Below right knee joint on the medial aspect.
(2) A fire-arm wound of entry 1/2 c.m. x 1/2 c.m. On the. Right leg 5 c.m. Apart lateraly from injury No,1 .
(3) A fire-arm wound of entry 1/2 c.m. x 3/4 c.m. On the lateral aspect of right leg.
' The injuries were kept under observation and had been caused with a fire-arm.
' Again on the same day he medically examined Ishtiaq and found the following injuries on his person:---
(1) A fire-arm wound of entry 1 c.m. x 1 c.m. On the right hip joint 4 c.m. Below right iliac crest.
(2) A fire-arm wound of entry 1/2 c.m. x 1/2 c.m. On the lateral aspect of middle part of left thigh.
(3) A fire-arm wound of exit 1 c.m. x 1 c.m. On the left thigh on antereo medial aspect.
' They were kept under observation and had been caused by fire-arm.
7. The eye-witness account was furnished by Ghulam Abbas (P.W.2) and Walayat Khan (P.W.5).
Walayat Khan (P.W.5) reiterated the same statement what he had already made in his statement Exh. P.F. P.W. 2 Ghulam Abbas also made a statement in line with the statement given by the complainant. Both the witnesses also stated about the motive as a result of which the murder was committed and injuries were caused to the two P.Ws. Namely Muhammad Abbas and Ishtiaq.
Muhammad Abbas injured was examined as P.W.2 but Ishtiaq Mahmood was not examined by the prosecution.
8. Muhammad Ayyub, S.I. (P.W.12) conducted the investigation. After close of the prosecution case, the same was put to the accused persons and their statements were recorded under section 342, Cr.P.C. Malik Abbas alias Muhammad Aslam appellant stated that he had been implicated in the case falsely being friend of Farrukh Mahmood. He was also interrogated that after the occurrence, he along with his co-accused had fled away, which he answered in the negative. The case of the appellant in his statement was of mere denial. However, his acquitted co-accused Ch. Ahmad Khan made a detailed statement in the following words:--- "I am Lambardar of village. I am owner of shops in Qadir Colony. The deceased was a desperate person and he along with his companions used to demand 'Jagga Tax' and collected from the shop keepers. On the day of occurrence, the deceased and his companions went to Qadir Colony and demanded the 'Jagga Tax' and the shop-keepers resisted. The deceased and his companions were armed with deadly fire-arm weapons. They started firing at the shop-keepers, who in self- defence fired. It could not be ascertained as to whose fire had hit the deceased and the P.Ws.
Sarfraz died and the complainant party in connivance with the police got this case registered against me, my son, my son-in-law Khurshid and Abbas and other friends of my son."
' The accused persons examined Ijaz Ahmad Warraich, A.S.I. As D.W.1 who testified the plea of alibi of Muhammad Aslam son of Rehmatullah. Ahmad Khan co-accused produced various documents comprising of an affidavit sworn by Ishtiaq Ahmad P.W. (Exh. D.B.), statement of Ishtiaq Ahmad, P.W.
Recorded by Ch. Shabbir Hussain, A.S.J. Different F.I.Rs, (Exhs. D.C. To D.G.) allegedly registered against Ashfaq alias Shaki. With that the defence evidence was closed by him.
9. Learned counsel for the appellant has argued that all the witnesses are chance witnesses being residents of far off places; that the defence version put forward by Ahmad Khan is true and trustworthy; that the ocular account is contradicted by the medical evidence; that all the co- accused of the appellant against whom identical evidence was produced were disbelieved by the learned trial Judge, therefore, the same evidence cannot be relied upon for recording conviction of the appellant; that no recovery was effected from him; and lastly that the name of the appellant was not even mentioned in the F.I.R. As name of one Malik Abbas was mentioned but in fact the name of the appellant is Muhammad Aslam son of Rehmatullah who subsequently was roped in with mala fide intention. He took up the plea of alibi that at the alleged time of occurrence he was present in village Bagrianwala and he produced a large number of witnesses (about 65) in his defence. They all testified the version of the accused. His plea of alibi was, therefore, accepted by the Investigating Officer and he was placed in Col. No,2. The plea was also verified, according to D.W.1 Ijaz Ahmad Warraich, A.S.I. By Muhammad Islam, S.I./S.H.O. And thereafter, by Ch. Muhammad Nazir D.S.P.
10. The learned trial Judge, however, disbelieved his plea of alibi observing that according to the appellant he was present in village Bagrianwala in connection with some partnership but no partnership deed was produced, therefore, the same was treated to be an afterthought. It was supplemented that the appellant absconded from the place of occurrence. Had he been innocent, he should have appeared before the police soon after the occurrence. Therefore, he was convicted and sentenced as noted above.
11. The case against the appellant is based on the strength of ocular evidence alone. As far as the medical evidence is concerned, that may be a supporting evidence but cannot be treated as corroborative with regard to implication of the appellant. As already observed that no recovery was effected from him. Although the grain has to be sifted from the chaff and the principle that "falsus in uno falsus in omnibus" is not of universal application yet the fact remains that if a witness is disbelieved against the co-accused, his testimony is to be accepted with care and caution. P.W.2 Abbas has admitted during the cross-examination that the accused persons were not known to him earlier. He did not visit Qadir Colony prior to the incident. He also stated that he did not see various arms held by the accused persons. According to him, the names of the accused persons were given to him by Walayat Khan (P.W.5). His evidence, therefore, is dependent on the evidence of Walayat Khan (P.W.2) so far as specific nomination of the accused persons is concerned.
Although the names are given by Walayat Khan who supposedly was known to the accused persons yet the name of the appellant was given as Malik Abbas whereas his actual name is Muhammad Aslam. There is wide difference in "Muhammad Aslam" and "Malik Abbas". Learned counsel for the complainant has tried to explain that in fact the appellant was known as "Malik", therefore, the significant part of the name is "Malik" and any error if committed in giving the name as "Abbas" instead of "Asian" cannot be treated as fatal to the prosecution. The argument is not very convincing. If somebody is called "Malik" then the prosecution witnesses should not have given the name c f the appellant as "Malik Abbas". They could have given the name as accused person called as "Malik". If subsequently the name transpired to be Malik Muhammad Aslam, then the same perhaps would not have been considered so damaging to the prosecution. But if specific name is given and subsequently he is found to be a different person, then it is necessary that he should have been subjected to some identification. No identification whatsoever' was carried out prior to the initiation of the trial. The benefit anyhow in the present case especially when the evidence has been disbelieved against the co-accused against whom identical allegations have been made has to be extended to the appellant.
12. The statement of Walayat Khan (P.W.5) also does not inspire full confidence. He admitted that during the investigation which was conducted by a D.S.P., Khurshid Ahmad and Abbas were found to be innocent. Simited and identical allegations have been made against them. He admitted that a number of persons had appeared before the police during the investigation and they controverted the version of the prosecution, therefore, they were declared innocent. The complainant did not take any step by moving any application to the higher authorities that fair investigation was not conducted and erroneous conclusions were arrived at. In spite of finding of innocence in favour of the accused persons, he avoided to get the case investigated by any other officer lest the same conclusion may not be arrived at. Although opinion of the Investigating Officer is not binding in the Court and the judgment has to be delivered on the basis of the evidence produced by the prosecution during the trial, yet the fact remains that if during the investigation, the conduct of the witnesses was such that they avoided to confront the accused persons or did not take any step to get the conclusions arrived at by the police nullified, a suspicion does arise that the version put forward by the complainant could not be established before the Investigating Officer who was authorised by law to perform his functions and thereafter, to submit the report.
Even the learned trial Judge during the course of trial observed that it was not the solitary Investigating Officer but various police officers in the hierarchy such as S.I., Inspector and two D.S.Ps. Successively held the prosecution version as not true. Therefore, the conclusion may not be accepted because the Court has to arrive at its own independent conclusion but the same does put the Court on caution that the evidence of the witnesses sought to be relied upon by the prosecution should be examined and analysed critically. The statement of Walayat Khan complainant (P.W.5) and Ghulam Abbas (P.W.2) who was an injured witness when read together contain contradictions which have been noted by the learned trial Judge as well. On account of that score as well the statements of these two witnesses were not relied upon. It is true that the presence of the injured P.W. At the spot cannot be denied but it remains to be determined whether he made a correct statement in Court or he was not in a position to identify the accused persons.
In the present case the accused persons were stated to be present on the roof and they suddenly resorted to firing. It was not explained satisfactorily as to how they could identify the accused persons and also the weapons held by them. When the witness has not been relied upon by the hearted trial Court, the observation deserves a due weight because the learned trial Judge had the advantage of observing the demeanour of the witness.
13. Learned counsel for the appellant has also tried to point out some contradictions in the ocular account and that of the medical evidence as according to him the locale of injuries indicates that the same had not been fired from an altitude rather they are suggestive of the fact that they were fired from the same level. Although the argument is not very sound but the doctor has conceded that the injuries could have been caused by the assailant who was also on the same level.
The opinion of the doctor in this behalf may not be readily acceptable, yet the fact remains that an opinion given in favour of the accused should not be ignored so conveniently. It appears that the possibility cannot be ruled out that the assailant and the accused if not on the same level were not placed in two different levels such as a roof and ground. The benefit anyhow should go to the accused person.
14. The appellant has no motive to commit the murder or commit the assault as alleged against him. However, the fact that he was arrested on 30-11-1994 is a stance which does militate against him. The abscondence of an accused person ordinarily affects adversely the version of innocence by an accused. But in the present case the name of the accused was not given in the F.I.R. Even according to the prosecution evidence his actual name is Muhammad Aslam whereas Malik Abbas was recorded in the F.I.R. If an accused person is innocent and his name is also not mentioned in the F.I.R. Correctly, then his abscondence as such would not be treated as a corroborative piece of evidence. Learned counsel has also quoted some case-law on this point wherein abscondence per se was not held sufficient for conviction. Reliance is placed on Basharat v. The State (1995 SCM R 1735); Haroon alias Harooni v. State (1995 SCM R 1627) and Munawar Ali v. State (PLD 1993 SC 251). In the aforementioned authorities the abscondence per se was not treated as sufficient to record conviction.
15. As a consequence of the above discussion, I am of the view that the prosecution evidence was disbelieved against the co-accused of the appellant against whom identical allegations have been made and the appellant had no direct motive to commit the crime; that no recovery was effected from and H the statement made by P.W.2 was not found to be confidence inspiring; the appellants name was not specifically/correctly mentioned in the F.I.R. In the first instance; there was contradiction in between the ocular account and the medical evidence and lastly that the P.Ws. Being the chance witnesses and being inimical to the accused persons, I accept this appeal, set aside the conviction and sentence of the appellant recorded by learned Additional Sessions Judge, Gujrat vide judgment, dated 30-4-1995, and acquit him of the charges against him. He is in jail. He shall be released forthwith if not required to be detained in any other case.