' M. NAEEMULLAH KHAN SHERWANI, J.---Muhammad Anees, Muhammad Arif and Muhammad Akbar sons of Muhammad Hanif were tried by a learned Judge, Special Court, constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, Multan Division, Multan, for the lactation of one Amjad Ali. The trial Judge found and a judged them guilty of the said charge, and by virtue of his judgment, dated 2-9-1998 convicted them under section 302(b)/34, P.P.C. And punished Muhammad Anees with death, whereas Muhammad Arif and Muhammad Akbar were awarded imprisonment for life. All the convicts were ordered to pay a sum of Rs,20,000 each to the legal heirs of the deceased and in case of non-payment thereof to further suffer rigorous imprisonment for six months each. Benefit of section 382-B, Cr.P.C. Was however, extended to Muhammad Arif and Muhammad Akbar convicts.
2. All the convicts have approached this Court with Criminal Appeal No,308 of 1998 to impugn the above-noticed conviction and sentence recorded against them. Sardar Ali complainant has filed Criminal Revision No,153 of 1998 for enhancement of the sentence of Muhammad Arif and Muhammad Akbar to the maximum provided under the law. Both the matters are being disposed of together through this single judgment.
3. Occurrence in question had taken place on 9-8-1994 at about 10-30 p.m. At the Dera of complainant situated inside Haram Gate, about half furlong from the Police Station Haram Gate, Multan, and the said occurrence had been reported by Sardar Ali complainant a brother of Amjad Ali deceased, to Ghulam Jafar Raza, S.-I./S.H.O. (P.W.12) on the same night at 11-00 p.m. At the police station.
4. Sardar Ali complainant (P.W.10) put the matter succinctly by stating that he and his brother inside are living together in Gali Saban Wali inside Haram Gate, Multan. He works as a Commission Agent in the Grain Market. Amjad Ali and Karamat Ali, his brother, have a joint residence. On the fateful night, they were available at their Dera located at the ground floor of their house. They were busy in talking with each other under the electric light. One Muhammad Arif, Sheikh by caste, resident of Mohallah Hussain Agahi, was also enjoying their company. It was about 10-30 p.m., when all of a sudden, Muhammad Arif armed with 222-rifle. Muhammad Akbar and Muhammad Anees, armed with mausers effected their entry into Dera and resorted to firing at Amjad Ali with their respective weapons. Amjad Ali sustained injuries in consequence thereof on his abdomen, left side of chest, and left axilla. The prosecution witnesses made an advance towards the accused, but they pronounced openly that whosoever approaches them, would be killed. All the three accused decamped from the spot by means of a motorcycle. As Amjad Ali was seriously wounded, so he was shifted to Nishtar Hospital, where he was admitted as such by the Doctor.
' Criminal litigation in-between the two sides was in progress and the occurrence took place because of the same. Sardar Ali left for the police station, where he established contact with Ghulam Jafar Raza S.-I./S.H.O. Of the police station and dictated his statement (Exh.P.N) on the basis of which he drew up Crime Report No,165 of 1994, under section 324/34, P.P.C. Against the accused. On the eve of death of Amjad Ali deceased in the hospital, section 324, P.P.C. Was converted into section 302, P.P.C. It was in this manner that the State functionaries were set into motion by the complainant and laid a foundation for their murder trial.
5. Ghulam Jafar Raza, S.-I./S.H.O. Assumed the most important role of an Investigator and proceeded to Nishtar Hospital, Multan, where Amjad Ali was being afforded necessary treatment for his injuries. He made a query from the doctor, if the injured was capable of making a statement.
Medical Officer told him that he was unconscious Thereafter, at about 3-45 a.m. The same night, the doctor laid an information before the S.H.O. About the sad demise of victim of assault. He hurriedly arrived at the place of occurrence and conducted spot inspection. Blood-stained soil was secured by him and after being converted into a sealed parcel, it was taken into possession through memo. Exh. P.O. During this exercise of spot inspection, he collected three empties of 222 rifle (P-11/1-3), two empties of pistol (P12/1-2) and one iron Patri (P-13). In lieu of the above said recoveries, memo. Exh. P.P. Was prepared. Karamat Ali (P.W.11) and Muhammad Arif (given up P.W.), attested the same. Rough site-plan (Exh.P.Q.) of the place of occurrence was drawn by him.
Relevant witnesses were examined by him under section 161, Cr.P.C. The case property was delivered by him to a duty officer of the police station for keeping the same in the Police Station Go-down, so as to be dealt with according to rules and regulations regarding incriminating articles. Through a written application (Exh. P.G.), the Medical Authorities were called upon to perform autopsy upon the deceased. Inquest report (Exh. P.H.) was prepared by him. The dead body along with necessary documents were handed over to Talib Hussain, Constable (P.W.5). He escorted the dead body to the mortuary and got the post-mortem examination conducted by the doctor. According to him, he also made an application (Exh.P.E.) for obtaining medico-legal report of Amjad Ali deceased from the hospital authorities, which was allowed by the Medical Officer under his written order (Exh. P.E./1). On 10-8-1994, Talib Hussain, Constable (P.W.5) produced before him a blood-stained Shalwar (P.1.) of the deceased, who took the same into possession through memo. Exh.P.D. The Investigating Officer then procured the services of a draftsman, who was imparted necessary instructions for preparing the site plans according to potation of the witnesses.
Accordingly, Shaukat Hayat, Draftsman (P.W.2) paid a visit to the spot, carried out spot inspection with the help of the P.Ws. And prepared site plans in triplicate (Exhs. P.A., P.A./1 and P.A/2A), which were passed on to the Investigating Officer by him.
' The necessary major problem with which the Investigating Officer was confronted with was apprehension of the accused. After a good deal of efforts, on 11-8-1994, all the three accused could be arrested by him. On 15-8-1994, Muhammad Arif appellant led to the recovery of one 222 rifle (P.3) along with magazine (P.4) containing 47 bullets (P.5/1-47). All these articles were made into a sealed parcel and taken into possession through recovery memo. Exh.P.K. Duly attested by Muhammad Yamin (P.W.9) and Amir Ahmad (given up P.W.). On that very day, Muhammad Akbar got recovered pistol (P.6) along with magazine (P.7) containing 15 live bullets (P8/1-15) from his house. It was made into a sealed parcel and taken into possession through memo. Exh. P.L, attested by the afore-mentioned witnesses. On the same day, Muhammad Anees was the next, who led to the recovery of pistol (P.9) along with 12 bullets (P.10/1-12) from his house. It was also made into a sealed parcel and taken into possession through recovery memo. Exh.P.M. Rough site plans of the respective places of recoveries were also prepared by him. The same witnesses had attested this recovery memo. As well. All these incriminating articles were passed on to the duty officer of the police station to be dealt with as per rules and regulations. The investigation was finalized by him, challan was prepared, and submitted to the Court for trial of the accused in accordance with law.
6. The trial Court on receipt of challan sheet subjected it to judicial scrutiny and found it a fit case for trial. Learned trial Judge completed necessary legal formalities and framed charge accordingly, to which they all pleaded not guilty and claimed to be tried. Learned trial Judge called upon prosecution to adduce the best relevant evidence with a view to establish charge against the accused. In compliance whereof prosecution ventured to produce as many as 12 witnesses in all to accomplish this object of theirs.
7. To begin with, Ghulam Murtaza, Constable was produced as P.W.1. He obtained parcels pertaining to blood-stained soil, two parcels of empties and three parcels of weapons from Muharrir Head Constable on 11-9-1994. He delivered these parcels to the concerned quarters on the following day.
' Shaukat Hayat, Draftsman (P.W.2) merely prepared site plans of the place of occurrence as already mentioned.
' Ghulam Abbas, H.C. (P.W.3) was acting as Muharrir of the police station on 9-8-1994. The Investigating Officer on the said date delivered to him three parcels pertaining to blood-stained soil and empties. Again on 15-8-1994, the investigating officer gave him three more parcels pertaining to 222-rifle and two mouser pistols. All the parcels were kept by him in the Police Station Malkhana and nobody tampered with them as long as they remained in his custody. On 11-9-1994, he deputed Ghulam Murtaza (P.W.1) to deposit the parcels with the concerned offices, which he accordingly did.
' Muhammad Hanif (P.W.4) merely identified the dead body at the time of autopsy. In this presence, Talib Hussain, Constable produced blood-stained Shalwar (PA) before the Investigating Officer, who took the same into possession through memo. Exh . P. B.
' Talib Hussain, Constable appeared as P.W.S. The duties performed by him have already been mentioned in the earlier part of the judgment.
' Dr. Sultan Ahmad Chaudhry, C.M.O., was brought forward by the prosecution as P.W.6. He on 9-8- 1994 at 10-50 p.m. Examined Amjad Ali, aged 24 years, for his injuries. During the course of external examination of Amjad Ali, he observed following injuries on his person:--
(1) A lacerated wound 3.5 cm x 2 cm on mid axillary lying with burnt edges and muscles of the wound. Edges of the wounds were averted. Wound was about 14 c.m. Below and lateral to the left nipple. Wound was bleeding profusely.
(2) Lacerated wound 2.5 c.m. x 1.5 c.m. With inverted margin and destroyed tissues inside the wound. Wound was 6 c.m. Below and medial to injury No, 1.
(3) An oval shaped lacerated wound 1.2 c.m. x 8 c.m. With inverted and blackened margins. It was profusely bleeding on left lumber region and anteriorly.
(4) A lacerated wound 4.5 c.m. x 4.5 c.m. With burnt edges and destroyed tissues inside the wound.
Edges of the wound were inverted. Wound was about 8 c.m. Below and lateral to injury No,3.
Corresponding holes were present on the clothes.
' These injuries were kept under observation by him. According to him, these injuries have been caused within the duration of two hours by means of fire-arms. He drafted medico-legal report (Exh.PC). Exh.PC/l is pictorial diagram of the injuries. Application Exh.PD was made to him by the Investigating Officer to know if the deceased was by all means fit to make a statement. He made his report (Exh. PD/1) that he was not completely fit (mentally) to make his statement. On 10-8-1994, on written request (Exh.PE/10 of Ali Murtaza, S.-I., which was duly endorsed by him as Exh. PE/1, he provided medico-legal report.
' Dr. Iftikhar Hussain Qureshi, S.M.O., appeared as P.W.7. On 10-8-1994 at 11-15 a.m., he conducted post-mortem examination on the dead body of Amjad Ali, aged 24 years, which was produced before him by Talib Hussain (P.W.5). He carried out examination of the dead body and observed following injuries on his person:
(1) Fire-arm wound of entry 3 c.m. x 2 c.m. On the outer side of left chest upper part at mid axillary line. Margins of the wound were lacerated, inverted and blackened.
(2) Fire-arm wound of entry 2.5 c.m. x 2 c.m. On the outer side of left chest 6 cm below at medial to injury No,1, 13 c.m. From left nipple at 5-00 position. Margins of the wounds were blackened, lacerated and inverted.
(3) Fire-arm wound of entry 1.2 c.m. x 0.8 c.m. On the outer side of abdomen left side in middle part.
Margins of the wounds were lacerated, inverted and blackened.
(4) Fire-arm wound of entry 4.5 c.m. In diameter situated on outer side of left side of abdomen just above the iliac crest. Margins were blackened, lacerated and inverted.
' This witness after doing the needful, formulated his opinion that hemorrhage and shock had resulted from the injuries, which was sufficient in the ordinary course of nature to cause death.
These wounds have been produced by the use of fire-arms and were anti-mortem. Probable time that elapsed between injury and death was within six hours and that elapsed between death and post-mortem was 6 to 12 hours. He prepared post-mortem report (Exh. PF) and pictorial diagram of injuries (Exh.PF/1).
' P.W.8 Dilawar Hussain had joined investigation of this case. Muhammad Arif while in police custody led to the recovery of a Yamaha motorcycle from the Clinic of Muhammad Anees co- accused. It was taken into possession through recovery memo. Exh.P.L. He along with Muhammad Rashid P.W. Had signed the recovery memo as witnesses.'
' P.W. 9 Muhammad Yamin deposed all facts and circumstances within his knowledge relating to the recoveries of weapons at the instance of the appellants. He had attested recovery memos. Qua these articles along with Amir Ahmad (not produced).
' Sardar Ali and Karamat Ali, real brothers inter se, eye-witnesses of the incident, appeared as P.Ws.
10 and 11 respectively and furnished ocular account of the occurrence in its minutest possible details.
' Ghulam Jafar Raza, S.-I./S.H.O. Was produced as P.W.12. His evidence in its entirety has been discussed in the preceding paragraphs of this judgment, so the same need not to be reproduced.
' The remaining witnesses were dropped by the prosecutor being unnecessary. He after tendering into evidence reports of the Forensic Science Laboratory, Chemical Examiner and Serologist as Exhs. PR, PS and PT, respectively, and declared prosecution case closed.
8. Now the trial had shifted to its next important stage relating to examination of the accused. All the incriminating evidence was brought to their notice, so as to know their stand-point and further to seek their explanation with regard to the imputed crime. They dismissed the charge being naive and illogical one. They specifically alleged that they stood implicated in the case because of malice afore-thought and political animosity in-between them. They opted not to make statements on oath in disproof of the 'accusations brought against them. Anyhow, they had expressed their willingness to produce evidence in defence.
' Manzoor Ahmad, S.-I. And Dr. Wali Ullah, A.S.P. Were examined as C.Ws. 1 and 2 respectively.
9. After considering totality of facts and circumstances of the case, learned trial Judge came to the conclusion that they all were guilty for the offences charged and proceeded to convict and sentence them as already mentioned.
10. Learned counsel for the appellants while arguing this appeal too strongly, raised following points for our consideration:---
(i) That most prominent of all witnesses produced by the prosecution are the eye-witnesses and they happen to be real brothers of the deceased. They are to be termed as interested witnesses.
Their presence at the spot is extremely doubtful.
(ii) That ocular account furnished by the eye-witnesses is awfully contradicted by the medical evidence and that renders the prosecution story unnatural and incredible one.
(iii) That there was a considerable delay in des-patch of the incriminating articles i,e, weapons and empties to the concerned quarters and they were des-patched simultaneously and, as such, this piece of evidence has lost all its evidentiary value. Even otherwise, the evidence pertaining to the recoveries of weapons is fabricated one.
(iv) That there was hardly any motive with the appellants to kill the deceased and the prosecution had badly failed to prove motive set up in the F.I.R.
(v) That not a single disinterested independent witness of the locality was either examined by the police or produced by the prosecution in support of prosecution version and that there was absolutely no corroboration from an independent source of unimpeachable character.
11. Conversely, learned counsel for the complainant assisted by learned State Counsel argued that since occurrence took place at the Dera of the deceased in the presence of electric light, so there could be no question of mistaken identity on the part of the complainant or other witnesses; that the presence of witnesses was natural and they had given evidence against the appellants implicating them fully in the commission of offence; that their statements were corroborated by recoveries of weapons and the empties had also tallied with those weapons as per contents of report of Forensic Science Laboratory (Exh. PR); that first information report was made immediately after the occurrence furnishing particulars of the accused, weapons, and acts committed by them at the relevant time of occurrence, so maximum importance is to be attached to this document; that the motive alleged by the prosecution witnesses also in a way afforded corroboration to the prosecution version, and that the investigation carried out by the Investigating Officer was suffering from serious defects attributable to the inefficiency of the investigating officer and the same can be ignored. They have also taken us through the evidence in the light of their respective arguments.
12. In order to do weightiest of the evidence produced by the prosecution, we have dived into length, breadth and depth of the case. After all a heavy burden lays on our shoulder to ascertain truth of the matter to ensure justice to the parties.
13. First of all it may be appreciated that at the relevant time of occurrence, Sardar Ali, Karamat Ali real brothers of Amjad Ali deceased along with one Muhammad Arif son of Sh. Muhammad Yaqoob were available at the spot at 10-30 p.m. No compelling reason was ever stated by them for being present together at that time. The witnesses also did not state as to since when they were present there and over what topic or proposition they had indulged into a dialogue with each other. If at all there was any ideally specific nature of work that could simply be stated by them in their statements to justify their presence. Muhammad Arif Sheikh appears to be an independent and disinterested eye-witness of the occurrence. Prosecution did not produce this witness, so adverse presumption has to be drawn against the prosecution. There was absolutely no cause cousins i,e, immediate cause of occurrence, with the accused to commit mutation of Amjad Ali deceased, more especially in the presence of Sardar Ali and Karamat Ali. Had they been present at the spot, then they would have been the necessary target of the criminal assault and they would not have escaped unhurt. It is contained in the F.I.R. That the prosecution witnesses made an advance towards the armed assailants, who threatened them. This conduct of the witnesses runs counter to the natural probabilities.
14. Next thing to be seen with utmost care and caution is that it were they who shifted the injured to Nishtar Hospital, Multan, where he was admitted by the Medical Officer. In order to verify this claim of the witnesses, we proceed to examine medico-legal report of Amjad Ali, dated 9-8-1994, which is Exh.PC. It is imperative upon the examining doctor to fill in columns of the prescribed form. The name of the relative or friend of the patient or injured persons has to be recorded in the relevant column. The relevant column of Exh. P.C. To this effect is blank. Had Sardar Ali or Karamat Ali taken Amjad Ali to the hospital, then they should have furnished particulars of Amjad Ali, victim of murderous assault. The name of any one of them and his relation with Amjad Ali should have been mentioned by the Medical Officer in this prescribed column of the medico-legal report (Exh.P.C.).
None of them obtained copy of the medico-legal report for its onward transmission to the police at the time of lodging the F.I.R. None of them ever signed this medico-legal report in token of its receipt from the Medical Officer. Astonishing is to note that Ali Murtaza, S.-I. Received copy of Exh.
P.C. On his written request (P.E.) from the doctor concerned on 10-8-1994.
15. During the trial, it was alleged by Sardar Ali that his uncle Muhammad Azam had put Amjad Ali into a rickshaw and taken him to the hospital, whereas the witnesses followed them on motorcycles. There was profuse external bleeding from the wounds. Amjad Ali had fallen after receipt of injuries and could not perform volitional acts, so necessarily he had to be handled and lifted to be boarded on the rikshaw. During this process, clothes of Sardar Ali, Karamat Ali, Muhammad Arif and Muhammad Azam were bound to be besmeared with blood. Muhammad Azam was taking care of Amjad Ali in the rickshaw and half of his body must be resting over body of Muhammad Azam. Could it be ever possible that his clothes would not be stained with blood?
We simply cannot believe it. The Investigating Officer had hurriedly reached the hospital. He must have contacted the eye-witnesses and prior to that Sardar Ali by himself is alleged to have gone to the police station to make a report of the occurrence. The Investigating Officer should have noticed blood stains on his clothes and he did not mention all this anywhere. His clothes and that of other witnesses should have been taken into possession during the course of investigation in order to prove the stand taken up by these witnesses. They themselves also did not ask the Investigating Officer to do this. Even during the course of investigation by a gazette police officer, neither the complainant nor other witnesses ever pointed out this fact. This circumstance by all means is sufficient to exclude presence of the eye-witnesses, who are to be branded as perjurers. Reference is being respectfully made to Sabz Ali v. Yusuf Shah and others (1980 SCM R 126).
16. Muhammad Azam never associated himself in the investigation of this case nor the Investigating officer joined him. The complainant side also did not produce him before the Investigating Officer to prove all these facts. This in a way reflects upon false claim of the eye- witnesses of their presence at the spot and shifting the victim of assault to the hospital.
17. The source of light at the spot of occurrence was not indicated by the Investigating Officer in the rough sketch prepared by him on the eye of his first visit to the spot. Much later the scaled site plans were got prepared through the draftsman, in which source of light was shown. If the electric bulb could not be seen or noticed by the Investigating Officer at the spot, then how is this that in the later proceedings of preparation of site plans by the draftsman, this fact was introduced for the first time. All the witnesses were available at one and the same place with the deceased. The moment armed assailants arrived at the spot, they had chosen only Amjad Ali as their target and none else. They all had simultaneously resorted to firing in quick succession through a.222 rifle and two mouser pistols. There is blackening around the margins of the wounds and even edges were burnt, which indicates that it was an extremely close range firing. The intervening distance between the assailants and the victim could not exceed beyond one to three feet. As a matter of fact, blackening is the result of the deposit from the dirty powder gasses and is really akin to scorching.
The blackening range begins from where the scorching range ends. Blackening with a high power rifle like 222, Kalashnikov or 7-MM, can occur up to about 9 inches and with a revolver or pistol, up to about 6 inches. The extreme limit of the blackening range can be well within any normal person's arm length and not beyond that. Reference may be made to the Identification of Firearms and Forensk Ballistics by Major Sir Gerald Burrard. This phenomenon falsifies statements of all the eye- witnesses, who stated that firing was done from a distance of 12 feet.
18. Next important aspect of the matter is location of injuries on the person of the deceased. All the four injuries are in one vertical direction in a straight line. The position of assailants at the time of firing furnished to us by the prosecution witnesses shows that they were standing side by side at the time of firing, whereas the deceased was sitting on a cot. If this be so, then the scattered injuries should have been found on the dead body. The injuries could not be produced in a single vertical line, if this be the manner and mode of occurrence as described by the witnesses. Even the best marks men of the Army could not have produced this patron of injuries by firing through these weapons. Reckless firing to all the three appellants has been assigned. One can simply imagine the number of wounds, which may have been caused if at all .This allegation, was true, bona fide and genuine one. A large number of scattered injuries were bound to occur on front of thorax region of the deceased. No projectile or missile was discovered by the doctor while dissecting the dead body. So we also fail to make a correct diagnosis about the weapons used. In this case, no exit wounds were present. The bullet heads must have been embedded in the body. Had they been traced out or discovered by the doctor, then that should have furnished us a clue to the nature of arms and ammunitions utilized by the accused for commission of the crime in question. Possibility of four vertical injuries only on left Side of the chest well indicates that the same had been caused by a single burst made by a rifle and nothing beyond that. All these facts bring us to believe that story of ocular account furnished by the so-called eye-witnesses is torn into pieces by the medical evidence. The occult evidence is belied by the medical evidence. When there is a patent inconsistency or contradiction between the ocular account and the medical evidence, then all golden principles regarding appreciation of evidence tell us not to believe these witnesses because they are liars. Medical evidence in no way corroborates the statements of the eye- witnesses.
19. Crime empties and rifle although recovered separately on different dates, yet, sent together to Fire-Arms Expert after a considerable delay, makes the evidence of recoveries extremely doubtful and, as such, it could not be relied upon. No witness from the locality was either called or associated in the investigation to remove this impression that the recovery proceedings were not sham proceedings. They were joined from the police station and from there they accompanied the police party to the place of recovery. They are by all means members of the complainant party and made themselves available to the police to be cited as witnesses. Investigation of the case definitely smacks of padding. Statement of the Investigating Officer is at great variance with statement of recovery witness.
20. It appears that first information report was not recorded at the stipulated time. It was recorded much later after preparation of the alleged story and procuring false eyewitnesses. Prompt F.I.R.
Does not always guarantee that innocent persons have not been implicated. F.I.R. Even though lodged with due haste cannot by this circumstance alone acquire higher value in law as to its weight as a substantive piece of evidence or correctness of the facts mentioned in it. We know that prior to recording of the first information report at the police station; a report in the daily diary of the police station is recorded. Its number, date and time is specifically mentioned in column No,1 of the F.I.R. After the F.I.R. Is recorded, another report is entered by the officer concerned to the effect that the F.I.R. Stood registered. This report is also allocated a number as aforementioned. It has not been done in this case. Not only from this circumstance but so many other circumstances, we can well infer that on receipt of the information that murder incident had taken place; the daily diary of the police station was closed to gain time. It was thereafter that by entering into deliberations and consultations, story in the present form was fabricated and F.I.R. Registered. We have every reason to believe that first information report has been recorded in absolutely false premises and it contains a cobweb of lies. The prosecution story is based on guess, gossip, rumor and imagination.
21. The complainant Sardar Ali (P.W.10) did not state in his statement before the trial Court that the occurrence was seen in the electric light and for the first time an improvement was exacted by him that Amjad Ali separated from them and went to a distance of about 20 feet to sleep on a cot as he had to offer morning prayer. This dishonest and deliberate improvement was effected to avoid all possible complications with regard to their presence and manner and mode of occurrence. The cot, on which the deceased was sitting and had fallen on receipt of injuries, was also bound to be stained with blood. It was shown to the investigating officer as stated by Sardar Ali complainant (P.W.10), but surprisingly it was also not taken into possession and this fact adversely effects the stand-point of the complainant.
22. It may additionally be seen that, in the F.I.R., it was stated in clear-cut terms that criminal litigation pending in-between the parties had led to the occurrence, but during the trial the witnesses dropped this motive and started alleging for the first time that due to political rivalry, Amjad Ali had been done to death. It seems that the prosecution was not sure of its case or standpoint. Non-adherence to the motive alleged in the F.I.R. During the trial proceedings also reflects upon their shaky stand. The witnesses appear to have drowned into depth of mass of lies.
23. The place of occurrence is flanked by inhabited houses and functional shops all around. The accused allegedly made good their escape through Bazar. Not a single witness of that locality or Bazar was either examined by the police or produced before the trial Court to evidence this fact.
The accused's arrival and departure should, not have escaped unnoticed.
24. A deep scrutiny of evidence of the complainant also shows that in the year 1986 Muhammad Sadiq father of the complainant had contested Local Body's Election against Muhammad Hanif, father of the appellants. Said Muhammad Hanif won the election and thereafter met his natural death. Muhammad Anees appellant then contested against Muhammad Sadiq and he too was successful. Thereafter in the year 1991, Sardar Ali complainant contested election against Muhammad Anees appellant and won it. Thereafter, neither any election was held nor contested by members of both the sides. The accused had got registered a case against Karamat Ali (P.W.11), Sardar Ali, Karamat Ali and Amjad Ali, deceased had also never got registered any criminal case against the accused. The accused had no earthly reason to commit Qatl-e-Amd of Amjad Ali deceased.
25. There is overwhelming evidence linking Sardar Ali (P.W.10) and Karamat Ali (P.W.11) with the commission of various felonious and heinous offences like murder, Offences against Property and Narcotics. Even in the year 1983, Muhammad Aslam faced a murder trial Thereafter in the year 1985, serious hurt case was got registered against the complainant by one Sultan and then in the year 1986, a case under section 382, P.P.C. Against Sardar Ali and others. Sardar Ali and Amjad deceased were also challenged in a case under section 302/353, P.P.C. For launching a murderous assault upon police party during the discharge of its official duties. Then in the year 1990, four cases under the Fire-Arms Act were registered against the complainant. Amjad Ali deceased and Karamat Ali P.W. Were also involved in such-like cases. All the witnesses stood involved in heroin cases. It appears that it was rightly suggested to the complainant that the Dera where allegedly the occurrence took place, was being utilized as Narcotic Substances Den. Sardar Ali, (P.W.10) and Karamat Ali (P.W.11) were also involved in the murder of Akram Saeed Qureshi. They had earned animosity all around, and because of their unlimited criminal activities, anybody could be interested in killing any one of them. Two sisters of Muhammad Arif P.W. Happen to be wives of the complainant and Karamat Ali P.Ws. None from the locality ever supported this fabricated version of the prosecution.
26. Muhammad Anees appellant was a Homoeopathic doctor; Muhammad Akbar is stated to be a student of M.B.B.S. And Muhammad Arif is stated to be a student of the prosecution story.
27. An accused is to be declared guilty only, when his guilt has been clearly established beyond doubt. The golden principle of extending benefit of doubt to the accused has been rigorously enforced by Islam. In this context, two Ahadees-e-Muqqadisa have to be kept in view:-- ' Whenever possible, save the Muslims from punishment; Do it whenever you find any loophole, because it is always better for the Judge to err in acquittal than in conviction. Tirmizi Sharif).
' Ward off punishment with doubts. It clearly means that if any doubt arises avoid conviction (Masood Abi Hanifia).
28. After knowing whole facts and weighing with care every attendant doubt, we hold that the witnesses are highly interested and of partisan character. Real doubts with regard to participation of the accused have arisen in abundance. The occult statements are not being corroborated by medical evidence or recoveries. It is a night time occurrence and does not appear to have been Witnessed by any one, so it would not be safe {{BLUR PAGE}}