' MUHAMMAD NAWAZ ABBASI, J.---This judgment will dispose of Murder Reference No,97 of 1994 sent by the Sessions Court, Rawalpindi under section 374, Cr.P.C. In a session case and Criminal Appeal No,55 of 1994 filed by Arshad Mahmood and Pervaiz Akhtar, appellants against their conviction and sentence of death under section 302(b), P.P.C., awarded to them vide Judgment dated 17-4-1994 passed by the learned Additional Sessions Judge, Rawalpinidi. Criminal Revision bearing No,73 of 1994 filed by Akbar Hussain complainant against the acquittal of Tariq Mehmood and for awarding the fine and compensation, has been earlier dismissed in limine through separate order.
2. The appellants alongwith Tariq Mehmood acquitted accused were charged for committing murder of Aftab Ahmad in an occurrence which took place at about 6-30 p.m. On 16-1-1993. The report of which was lodged on the same day at 7-25 p.m. On the statement (Exh.P.A.) of Akbar Hussain recorded by Ahmad Ali, A.S.I. At Police Station Jatli, District Rawalpindi.
3. The brief facts in the background as narrated in the F.I.R. Are that the complainant alongwith Aftab Ahmad, and Mst. Zulekhan Bibi P.W.6 was going towards the village Thakra Mehra and passing through the house of the appellants, at 6.30 p.m. On the day of occurrence, when the appellants armed with 7mm rifle and Tariq Mehmood acquitted accused armed with 12 bore gun attacked on the deceased. Tariq Mehmood fired at the deceased, who taking shelter under the wall escaped when the appellant namely Arshad Mehmood and Pervaiz Akhtar caused one injury each to the deceased on his head. Mst. Zulekhan.Bibi when made an attempt to rescue the deceased, she was hit on back of her left hand by Tariq Mehmood with the Butt of this gun. The occurrence was witnessed by Munir Ahmad (given up P.W.) and Muhammad Ashraf P.W.4.
4. It is stated that 5/6 days earlier there was an exchange of hot words between the parties ever the demarcation of land and for the said reason the appellants and the acquitted accused caused death of Aftab Ahmad, deceased.
5. The prosecution case mainly rests on the ocular account furnished by Muhammad Ashraf P.W.4, Akbar Hussain P.W.6 and Mst. Zulkehan P.W.6. Dr. Asif Mehmood P.W.10, Medical Officer, Rural Health Center, Tehsil Gojjar Khan, conducted the autopsy on the dead body of deceased and also medically examined Mst. Zulekhan Bibi, whereas Ali Ahmad A.S.I. And Muhammad Afzal, Inspector S.H.O. Conducted the investigation.
6. The appellants and the acquitted accused having denied the accusation levelled against them, made the following statements at the trial:- ' "The P.Ws. Are related to the deceased and interse. The P.Ws. Are inimical towards us and for that motive they implicated us in this case falsely. It was unseen occurrence because according to F.I.R.
The time of occurrence is at dark night and it was not possible for any P.W. To witness the occurrence. It is also false that the occurrence took place at the alleged place of occurrence because nothing incriminating was taken into possession or observed by the Investigating Officer during investigation. The alleged weapons of offence had been planted against us. There is serious conflict between ocular evidence and injuries shown by the doctor on the person of the deceased and Mst. Zulekhan Bibi. I and my co-accused are innocent who have been made victim because there is a long standing party friction and enmity between us and the P.Ws."
7. The appellants however did not produce any evidence in their defence and prepare not to make a statement under section 340(2), Cr.P.C. The learned trial Court placing reliance on the evidence of the eye-witnesses, the motive and medical evidence convicted and sentenced the appellants under section 302/34, P.P. C .
8. The learned counsel for the appellants taking us to the statement made by Muhammad Ashraf, Akbar Hussain and Mst. Zulekha Bibi, the eye-witnesses of the occurrence, contended that the material contradictions in their statements have made their presence at the spot doubtful and that due to litigation, the relations inter se parties were strained. It is contended that the witnesses having grudge against the appellants were not independent and they being related with the deceased were interested in the conviction of the appellants, therefore, their evidence having not believed qua Tariq Mehmood, was not believable against the appellants without independent corroboration which having not available, the conviction of the appellants was bad. He argued that the P.Ws. Having made improvements in their statements at the trial lost their credibility as truthful witnesses of the occurrence. According to him injuries of Mst. Zulekhan Bibi is not a proof of her presence at the spot and telling truth.
9. The learned counsel appearing on behalf of the complainant argued that presence of Mst.
Zulekhan an injured witnesses at the spot is beyond doubt and that Muhammad Ahraf is entirely an independent witness who had no reason to depose falsely against the appellants. He further argued that the ocular account of Muhammad Ashraf and Mst. Zulekhan Bibi being fully corroborated with the medical evidence sufficiently proved the charge against the appellants.
10. The learned State counsel adopting the arguments of the learned counsel for the complainant added that the report of the occurrence having lodged without loss of time, any possibility of withholding truth stood excluded.
11. We have heard the learned counsel for the parties and examined the evidence in detailed through their assistance.
12. The motive given in the F.I.R. By the prosecution for the commission of offence by the appellant having not specifically proved through any reliable evidence and the recoveries of the weapon of offence with other articles taken into possession by the police during the investigation having no evidentiary value are not considered as evidence to be used against the appellants. Therefore, only the medical evidence and the evidence of the eye-witnesses needs appraisal for Judging the guilt of the appellants. The occurrence had taken place at 6.30 p.m. In the month of January 1993, when it was complete dark. The P.Ws. Being resident of the locality, their presence in their houses nearby the place of occurrence at the relevant time was natural but the pivotal question for determination would be whether they were with the deceased when he was attacked by the appellants and witnessed the occurrence as they claimed. According to the F.I.R., the deceased was caused one injury each by the two appellants within the sight of witnesses.
13. Doctor who examined the deceased in an injured condition found a lacerated wound on scalp 4" in length extending from middle of the scalp to the upper part of the occipital bone and Dr. Muhammad Ashraf P.W.13, who conducted autopsy on the dead body found 10 injuries on the person of the deceased. Injury No,5 was a stitched wound 9 c.m. In length on the left side of head 13 c.m. Above the left ear, which according to the doctor was sufficient to cause death in the ordinary course of nature. It is in the evidence of Muhammad Ashraf that Mst. Zulekhan Bibi having caught by the appellants from picktail and legs was thrown away and that she was inflicted blows on chest with butt of the guns. According to this witness the deceased was caused three blows with butt by each appellant. The witness has categorically stated that the deceased and Mst. Zulekhan Bibi sustained more injuries to the actual number disclosed by the complainant in the F.I.R. And the witnesses at the trial. Akbar Hussain, complainant admitted the criminal and civil litigation of Muhammad Ashraf P.W. With the appellants and their relatives. He making addition in the story of F.I.R. Stated that Mst. Zulekhan Bibi having caught by the appellants from picktail and legs was thrown on the ground and that all the three appellants gave kick and fist blows to Mst. Zulekhan Bibi in addition to the butt blows on her chest. He admittedly was not aware of the injuries of the deceased except one injury of his head at the time of lodging the report. The complainant was a defence witness in a case against Muhammad Ashraf and his brother in which the accused party was complainant. As per statement of Mst. Zulekhan Bibi, real sister of the deceased, she received injuries on left hand and left leg on the back of thighs. As per her version, she was caused injuries on different part of her body but she did not disclose the same to the Doctor. The injury on the back of hand received by this witness could not possibly be caused with butt of the gun and further suppression of the remaining injuries on her person is not understandable. Consequently the inference shall be drawn that Mst. Zulekhan Bibi was either not present at the spot and if attracted to the spot could not witness the occurrence in the dark. Except one injury on the back of hand of deceased the complainant did not disclose the other injuries in the F.I.R. And the witnesses in their statements under section 161, Cr.P.C. Similarly the injuries of the deceased except those mentioned in the F.I.R. Were not disclosed and willingly narrated by the P.Ws. At the trial. The serutiny of the evidence reveals that the deceased and Mst. Zulekhan Bibi P.W. Were caused injuries in the dark and the complainant and Muhammad Ashraf reaching later at the spot lodged report of the occurrence.
14. Taking into consideration the improvements made by the eye-witnesses to remove the conflict with medical evidence, the presence of Muhammad Ashraf and Akbar Hussain at the place of occurrence and witnessing the incident is doubtful. The complainant did not make mention of raising Lalkara by any of the appellants in the F.I.R., whereas the P.Ws. In their statements at the trial having uttered Lalkara to the appellants before opening the fire, made material change in the story to establish the doubtful indentity of the appellants; undoubtedly the occurrence having taken place in complete dark, the identification of accused in the normal course was not possible.
Therefore, the prosecution to fill this lacuna through making improvement in the evidence at the trial introduced electric bulb in the garage.
15. Without disputing the claim of presence of Mst. Zulekhan Bibi injured witness, it was difficult for her to recognize the appellants as assailant and notice that who caused which injury to the deceased and to her in dark. The P.Ws. Attributed one injury each to each appellant on the head of the deceased but doctor has found only one large scale injury No,5 located on the head. The suspicion whether it was a single injury or compound caused by more than one person and the manner in which the deceased and Mst. Zulekhan Bibi sustained injuries made the story cloudy.
The witnesses making improvements and changing the story suitable to the prosecution being not worthy of credence, no implicit reliance can be placed on their statements. The eye-witnesses in the present case deliberately improved the verison regarding the injuries of the deceased and Mst.
Zulekhan Bibi and the identification of the appellants and modifying the story set up in the F.I.R.
Tender discovery of truth difficult and consequently created a serious doubt in their veracity. Tariq Mehmood accused has been attributed injury to Mst. Zulekhan Bibi but he having been acquitted, the evidence of Mst. Zulekhan Bibi was not believed quo him. The case against the acquitted accused except the role of causing injury to P.W. Is not distinguishable so far as the evidence is concerned, therefore, the conviction of the appellants without independent corroboration to the evidence of Mst. Zulekhan Bibi was not safe. Excluding the evidence of Muhammad Ashraf and Akbar Hussain for the reasons given hereinafter, the sole evidence of Mst. Zulekhan of shaky character containing major contradictions and discrepancies with doubtful identification of the appellants cannot be made basis for conviction.
16. The motive set up being not supported through any evidence oral or documentary except the statement of Muhammad Ashraf, who is not an independent witness and admittedly was an opponent of the accused is not proved. The medical evidence does not furnish corroboration as the eyewitnesses improved their evidence at trial in the light of medical evidence, which, by itself, cannot be a source of identity of assailants. There being no other direct or circumstantial evidence available on record to corroborate the evidence of Mst. Zulekhan as independent source to prove the identity of the appellants and the role played by each of of them, the conviction and sentence of the appellants is not sustainable.
17. Having made a detailed scrutiny of the evidence and taking into consideration the attending circumstances, the testimony of the eye-witnesses receiving no credibility, the conviction and sentence of the appellants is not c well-founded, consequently, giving the benefit of doubt to the appellants, we accept this appeal, set aside the conviction and sentence awarded to them by the learned trial Court.
' Murder reference is answered in the negative.