' ASIF SAEED KHAN KHOSA, J.--Sanaullah was convicted by the learned Additional Sessions Judge, Jampur, District Rajanpur vide judgment, dated 6-12-1995 for an offence under section 302, P.P.C.- and was sentenced to death. Sanaullah's co-accused Ismail, Wazir and Shah Nawaz were also convicted through the same judgment for an offence under section 302/34, P.P.C. And were sentenced to imprisonments for life each. All four of them were also ordered to pay a sum of Rs,20,000 to the heirs of Ghulam Hashim deceased by way of, compensation under section 544-A, Cr.P.C. And in case of default in payment thereof they were ordered to undergo R.I. For six months each. Through the same judgment their co-accused Jind Wadda and Bashir were, however, acquitted by the learned trial Court. All the four convicts have challenged their convictions and sentences before this Court through Criminal Appeal No,355 of 1995. We, have heard the convicts' appeal along with Murder Reference No,15 of 1996 seeking confirmation of the sentence of death passed against Sanaullah. 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 Muhammad Asghar complainant was a resident of Mid Nawal Dakhli Drigri and was an agriculturist by profession. At about 12-00 noon on 17-3-1994 the complainant was proceeding towards his home along with Ghulajn Muhammad and Haq Nawaz on the western side of Dajal canal. At the same time the brother Ghulam Hashim, who was returning after attending the Qul ceremony of one Kaloo Khan Nawal, was also going towards his home and was walking about 40/42 Karams ahead of the complainant and his companions.
Suddenly Sanaullah, Jind Wadda and Bashir, armed with .12 bore guns, came from the side of Mid Nawal riding on a motorcycle. After stopping the motorcycle Sanaullah raised a Lalkara that Ghulam Hashim would not go alive that day. In the meanwhile Muhammad Ismail, Waiir and Shah Nawaz, all armed with Sotas, emerged from the canal bank where they were sitting in ambush and went running towards Ghulam Hashim. Sanaullah then fired a shot at Ghulam Hashim hitting him at his front chest upon which Ghulam Hashim fell down. Thereafter, Bashir and Jind Wadda also fired at Ghulam Hashim and Ismail, Shah Nawaz and Wazir gave repeated Sota blows to the fallen Ghulam Hashim which landed on his head and back. When the complainant, Ghulam Muhammad and Haq Nawaz went near the assailants they were warned not to come near or else they would also meet the same fate. Thus, the complainant and his companions, being empty-handed, did not go near Ghulam Hashim and witnessed the incident from some distance. After that the culprits ran away towards their homes. The motive set up in the F.I.R. Was that about 10/12 years ago Ghulam Qasim, a brother of the complainant and Ghulam Hashim, had abducted Mst. Bhero who was the wife of Muhammad Shafi, a brother of Sanaullah, Jind Wadda and Bashir and a. Paternal- cousin of Ismail, Wazir and Shah Nawaz. Thereafter, the said Ghulam Qasim had murdered Muhammad Shafi for which Ghulam Qasim had been convicted and sentenced. Subsequently, a compromise had been arrived at between the parties which resulted in the acquittal of Ghulam Qasim. It was stated in the F.I.R. That despite that compromise Sanauilah etc. Wanted to avenge the murder of their brother Muhammad Shafi and the instant assault on Ghulam Hashimi was a sequel to that revenge.
3. Statedly Muhammad Asghar complainant and his companions then took the injured Ghulam Hashim to the District Headquarters Hospital, Rajanpur. Upon receiving a wireless message Azeem Khan Niazi, S.-I. (P.W.7) went to that hospital and recorded the statement (Exh.P.A.) of Muhammad Asghar complainant at about 4-50 p.m. On the same day. Subsequently, at 6-30 p.m. On the same day formal F.I.R. No,23 (Exh.P.A./II) was registered in that regard at Police Station Lal Garh, District Rajanpur by Amanullah, M.H.C. (P.W.11) for offences under section 324/148/149, P.P.C.
4. After recording the statement of the complainant Azeem Khan Niazi, S.-I. (P.W.7) took up the investigation of this case, took into possession blood-stained clothes of Ghulam Hashim injured vide memo. Exh.P.B., went to the place of occurrence on 18-3-1994, took into possession blood- stained earth vide memo. Exh.P.F. And two wooden pieces of the butt of a gun vide memo. Exh.P.G.
He prepared a rough sketch of the place of occurrence (Exh.P.K He arrested Jind Wadda, Sanaullah and Shah Nawaz accused on 18-4-1994 and recovered two guns and a Sota from them respectively. On 17-3-1994 he had also prepared an injury statement (Exh.P.N.) in respect of Ghulam Hashim. Upon the death of Ghulam Hashim on 21-3-1994 the Investigating Officer prepared his inquest report (Exh.P.Q.) on 22-3-1994 and sent his dead body to the mortuary for autopsy.
5. Ghulam Hashim, while still alive, was medically examined by Dr. Azhar Hussain (P.W.8) on 17-3- 1994 vide Exh.P.N. The doctor had found five injuries on his person out of which four injuries had been caused by a blunt weapon. Injuries Nos.1, 2, 3 and 4 on his person were kept under observation. In the opinion of the doctor the duration between the injuries and medical examination was about 3-1/2 to 4 hours. The patient was subsequently, referred to the Nisthar Hospital, Multan where he died on 21-3-1994. The post-mortem examination (Exh.P.S.) of the dead body of Ghulam Hashim was conducted by Dr. Muhammad Altaf Hussain (P.W.10) on 22-3-1994. He found 4 injuries on the dead body which were all ante-mortem and were caused by a blunt weapon except injury No,4 which was caused by a fire-arm. According to the doctor the death was caused due to haemorrhage and shock caused by injuries Nos.1 and 4 individually which were sufficient to cause death in the ordinary course of nature. The approximate time elapsing between the injuries and death was stated by the doctor to be about four days while the duration between the death and post-mortem examination was opined by the doctor to be about 24 to 36 hours.
6. After the post-mortem examination of Ghulam Hashim deceased Azeem Khan Niazi, S.-I. (P.W.7), the Investigating Officer, took into possession three pieces of wads recovered from the dead body vide memo. ,Exh.P.H. And also secured a bloodstained Lungi of the deceased vide memo. Exh. P I .
On 25-4-1994 Bashir accused produced a motorcycle at the police station which this Investigating Officer took into possession vide memo. Exh.P.R. He then got a site plan (Exh.P.J.) 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 trial Court framed a charge with two heads under sections 148 and 302/149, P.P.C. Against all the six accused persons to which they pleaded not guilty and claimed a trial.
8. During the trial the prosecution produced as many as 11 witnesses in support of its case against the accused persons. Muhammad Asghar complainant (P.W.2) and Haq Nawaz (P.W.3) furnished the ocular account of the occurrence in question. They also deposed about the motive set up by the prosecution. Muhammad Asghar complainant (P.W.2) also stated about the recoveries affected from Jind Wadda, Sanaullah and Shah Nawaz accused. Dr. Azhar Hussain (P.W.8) and Dr. Muhammad Altaf Hussain (P.W .1.0). Provided the medical evidence. Azeem Khan' Niazi, S.-I. (P.W.7) 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 accused persons denied and controverted all the allegations of fact leveled against them by the prosecution and professed their innocence. They maintained that the prosecution witnesses were inimical and interested against them on account of the background of animosity between the parties and for that reason they had been falsely implicated in that blind murder. All of them opted not to make a statement on oath under section 340(2), Cr.P.C. But, however, Ch. Muhammad Shafi, D.S.P. Was produced in their defence as D.W .1.
10. At the conclusion of the trial, as mentioned above, the learned Additional Sessions Judge, Jampur, District Rajanpur convicted and sentenced Sanaullah, Ismail, Wazir and Shah Nawaz accused as noticed above and acquitted their co-accused Jind Wadda and Bashir. 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 Assistant Advocate- General representing 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. He has maintained that the eye-witnesses produced by the prosecution were chance witnesses who had not only failed to explain their stated presence at the place of occurrence at the time of the incident but had also failed to find material corroboration from any independent source. As against that the learned Assistant Advocate- General representing the State has argued that the prosecution had successfully proved the guilt of the appellants 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 appellants beyond reasonable doubt. We have noticed that both the eyewitnesses produced by the prosecution were admittedly chance witnesses who had failed to furnish satisfactory basis for their claimed presence near the place of occurrence at the time of the incident. The homes of Muhammad Asghar complainant (P.W.2) and Haq Nawaz (P.W.3) were admittedly far away from the place of occurrence. It was claimed by the prosecution that they had seen the occurrence per chance when they were returning home after reaping their oil seed crop from a land which they had taken no tenant' basis from Jalbani etc. As against that it was categorically maintained by the appellants in their statements recorded under section 342, Cr.P.C. As well as in their suggestions put to the said witnesses that the Revenue Record of that area did not show any ownership of tenancy of those witnesses or cultivation of oil seed crop in the entire area. We have also found that the prosecution had indeed failed to bring anything on the record in proof of the said witnesses claimed tenancy or cultivation of any oil seed crop so as to justify their claimed presence near the place of occurrence at the relevant time. It is settled law that a chance witness who fails to satisfy the Court about the stated reason for his claimed presence at a place where he was ordinarily not expected to be present is unsafe to be relied upon in a case involving a capital charge.
14. Even otherwise, the stated reason for those witnesses' chance proximity with the deceased at the relevant time was that the deceased was also per chance passing through the same passage while returning home after attending the Qui ceremony of somebody in another village. Those witnesses, despite being a real brother and a brother-in-law of the deceased had neither bothered to attend that Qui ceremony nor they were definite about the village where that ceremony had taken place. The Investigating Officer (P.W.7) had also not bothered to verify whether any Qui ceremony was actually held or not in the relevant village so as to lend some credibility to the claimed reason for the chance proximity of the eye-witnesses with the deceased at the relevant time. Too many coincidence taking place at the same time and all of them remaining without any proof make a claim based on them doubtful, to say the least.
15 Muhammad Asghar complainant (P.W.2) and Haq Nawaz (P.W.3) had also claimed that immediately after the incident they had taken Ghulam Hashim deceased in an injured condition to the hospital. This claim of the said witnesses also failed to find support from the record and the independent evidence produced by the prosecution itself. The relevant column in the medico-legal report (Exh.P.N.) prepared by Dr. Azhar Hussain (P.W.8) on 17-3-1994 soon after the arrival of Ghulam Hashim deceased at the hospital in an injured condition did not show those witnesses to be the persons who had brought the deceased to the hospital. When asked about this aspect of the matter the said doctor stated before the learned trial Court that the deceased had been brought to the hospital by his "friends". Needless to mention here again that Muhammad Asghar complainant (P.W.2) was the deceased's real brother whereas Haq Nawaz (P.W.3) was the deceased brother-in-law.
16. It is again an admitted position in this case that none of the said eye-witnesses had informed the police about the occurrence in question. The first statement made by Muhammad Asghar complainant (P.W.2) before the police was made at the hospital. Azeem Khan Niazi, S.-I. (P.W.7) had categorically stated that he had gone to the hospital when he had received a wireless message that an unnamed injured person had been brought to the hospital. It goes without saying that if the said eye-witnesses were with the deceased at the relevant time the deceased could not have been described as an unnamed injured person. That also explains as to why the relevant column in the deceased's medico-legal report was left blank and the doctor had subsequently, stated before the learned trial Court that the deceased had been brought to the hospital by his. Friends".
17. Yet another reason for doubting the presence of the said eye-witnesses near the deceased at the time of occurrence is that both the eye-witnesses had categorically maintained that there was no tent available near the place of occurrence. But Azeem Khan Niazi, S.-I. (P.W.7), the Investigating Officer, had positively stated that during his first visit to the place of occurrence after lodging of the F.I.R. He had found a tent close to the place of occurrence. He had also gone on to state that a little girl present in that tent had told him that the deceased was all alone at the time of occurrence and that two persons had come and fired at the deceased.
18. The medical evidence produced by the prosecution did not provide support to the ocular evidence in this case. It was stated by the eye-witnesses that the shot fired at the deceased was fired from his front side but Dr. Muhammad Altaf Hussain (P.W.10) had opined that the shot was fired at the deceased from the left side of the deceased's abdomen. The eye-witnesses had maintained that the deceased was fired at from a distance of 7 to 9 Karams but P. W.10 had found pieces of wad inside the deceased's fire-arm injury signifying shot having been fired at the deceased from a very close range. The expected spread of pellets from a shot fired at the deceased from the distance stated by the eye-witnesses was also not commensurate with the actual fire-arm injury received by the deceased. Thus, we have found that the medical evidence had gone a long way in contradicting the ocular account in the present case.
19. For the reasons stated above we have entertained serious doubts about the claimed presence of the alleged eye-witnesses near the deceased at the time of occurrence.
20. The eye-witnesses produced by It he prosecution had also failed to find any corroboration from the evidence of motive. The motive set up by the prosecution revolved around Ghulam Qasim, a brother of Ghulam Hashim deceased, who had abducted the wife of Sanaullah appellant's brother Muhammad Shafi and had also subsequently, murdered the said Muhammad Shaft, Ghulam Qasim had been convicted and sentenced for the said murder but the said offence had been compounded by the present accused party. Thus, the animus between the complainant party and the accused party of this case had disappeared as they had buried the hatchet. If at all any bad blood had still existed between them then it would have been the deceased's brother Ghulam Qasim that the accused party of this case would have gone after and not Ghulam Hashim who was nowhere in the picture in the past hostilities. It had come in evidence that the said Ghulam Qasim was not only alive but he was never bothered by the accused party of this case after the compromise with him. All this shows that the appellants had absolutely no motive to commit the murder of Ghulam Hashim deceased.
21. The weapons of offence allegedly recovered from Sanaullah and Shah Nawaz appellant were legally inconsequential in this case. In the absence of any crime-empty having been recovered from the place of occurrence and its matching with the gun allegedly recovered from Sanaullah appellant the said recovery provided no corroboration to the prosecution's allegations. Similarly the Sot a allegedly recovered from Shah Nawaz appellant was not blood-stained and, therefore, the same could not be connected with the offence in question. Thus, the evidence of recoveries produced by the prosecution was virtually of no corroborative value.
22. For what has observed above we have arrived at a confident conclusion that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. This appeal is, therefore, allowed, the impugned judgment passed by the learned Additional Sessions Judge, Jampur, District Rajanpur on 6-12-1995 is hereby 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.
23. As the appeal filed by 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,15 of 1996 is hereby answered in the negative.