M. NAEEMULLAH KHAN SHERWANI, J.---Abdul Karim, father of Muhammad Saleem, (deceased of this case) lodged crime report No,111 of 1995 (Exh.P.A.), under section 302/34, P.P.C. With Police Station Makhdoom Rashid, Multan against four persons, namely, Muhammad Tufail alias Mushtaq Ahmed, Muhammad Akhtar, Haji alias Arshad and Abdul Razaq on 20-3-1995 and, as such, laid a foundation for their criminal trial for the murder of his son, Muhammad Saleem.
2. Occurrence of the alleged incident took place on 20-3-1995 at about 7-30 a.m. At Adda Mai Di Khoi and the matter was reported to the police on the same day, by Abdul Karim (P.W.1) at 11-30 a.m, at the police station. Place of occurrence is situated at a distance of eight miles from the police station. First Information Report (Exh.P.A.) was drawn up by Dildar Ahmed, S.-I./S.H.O. (C.W.3)
Police Station Makhdoom Rashid.
3. Facts disclosed in the First Information Report by Abdul Karim (P.W.1) are; that he is a cultivator by profession and is residing at Chah Shadi Wal; his son Muhammad Saleem was serving in the police department being posted as Naib-Reader to Deputy Superintendent at Police Headquarter, Multan.
Muhammad Siddique, another son of the complainant was also an employee of the police Department and posted at Multan. On the day of occurrence at about 7-30 a.m. Abdul Karim (P.W.1), his son Muhammad Siddique (not produced) and Abdul Majid, brother of the complainant were on their way to Adda Mai Di Khoi. Muhammad Saleem (deceased) was 10/15 paces ahead of them. No sooner did Muhammad Saleem reach a little ahead of the house of Muhammad Sadiq Blacksmith, than a blue coloured car arrived from front and stopped near Muhammad Saleem.
Muhammad Tufail alias Mushtaq Ahmed, Muhammad Akhtar, both armed with .7 mm rifles, Haji alias Arshad Ahmed, armed with .12 bore pistol and Abdul Razaq armed with .12 bore gun alighted from the Car. Abdul Razaq directed the whole operation by shouting that their enemy Muhammad Saleem should not be spared and he be taught a lesson for offering help to Aziz Ahmed. To begin with, Muhammad Tufail alias Mushtaq Ahmed made a shot through his rifle at Muhammad Saleem, which struck his left leg, who immediately fell down, on sustaining this injury: Muhammad Akhtar, then made a shot through his rifle at Muhammad Saleem, which struck him at the back of his chest and he became unconscious. When P.Ws. Made an attempt to intervene, Abdul Razaq, while wielding his gun pronounced openly that whosoever intercepts, meet the same fate at his hands.
All the accused then decamped from the spot by that very car with their respective weapons.
Motive, alleged by the complainant is that Muhammad Saleem deceased had helped complainant of case F.I.R. No,323 of 1994, under section 302/109, P.P.C., registered at Police Station Seetal Mari, against the present accused persons. Muhammad Saleem, in injured condition was shifted to Nishter Medical Hospital, Multan immediately, where he succumbed to his injuries after a short time. Abdul Majid and Muhammad Siddique were deputed to guard the dead body of the deceased Muhammad Saleem and the complainant himself left for police station, where he dictated his complaint Exh.P.A. To Dildar Ahmed S.-I./S.H.O.
Immediately taking down the First Information Report, Dildar Ahmed, S.-I./S.H.O. Left for the hospital and took charge of the dead body of Muhammad Saleem. He prepared injury statement (Exh.P.E./2) and inquest report (Exh.P.E/3) and despatched the dead body to the mortuary for post- mortem examination through Ghulam Mustafa, Constable No,626. Thereafter, he reached to the spot, inspected the place of occurrence and recovered crime empties of .7 mm rifle, Exh.P.1/1-4 and made them into sealed parcel. They were taken into possession through recovery memo. Exh.P.B., duly attested by Muhammad Siddique, Abdul Karim and S.H.O. (C.W.3) himself. During the course of spot inspection, blood-stained soil was also secured from he spot and taken into possession through memo. (Exh.P.J.), attested by the aforementioned P.Ws. Two exercise books (Exh.P.5 and Exh.P.6) and a pencil (P.7) were also seized by the Investigating Officer, from the spot through recovery memo. (Exh.P.G.), which was also attested by the same witnesses. Rough site-plan of the place of occurrence (Exh.P.K.) was also prepared by him. Supplementary statement of Abdul Karim'
(P.W.1) was also recorded by him. Statement of Muhammad Siddique, Abdul Majid, Muhammad Aslam and Ghulam Murtaza-Constable were also recorded by him.
Ghulam Murtaza, Constable No,626 produced before the Investigating Officer last worn blood- stained clothes of the deceased, Shirt (P.2), Shalwar (P.3) and Bunyan (P.4), which were taken into possession vide recovery memo. Exh.P.F., attested by Abdul Majid (P.W.2) and Dildar Ahmed, S.- I./S.H.O. (C.W.3). On 21-3-1995, he recorded statements of Muhammad Hanif and Muhammad Ashraf, witnesses in the case.
On 6-5-1995, Muhammad Akhtar, Zafar lqbal, Muhammad Khan, Manzoor and Muhammad Aslam alias Mumtaz were arrested by Dildar Ahmed (C.W.3) in this case. Manzoor Machhi, accused on the same day, led to the recovery of Car No,SGF-8205, which was allegedly used during the commission of crime in question. It was taken into possession through recovery memo. (Exh.P.L.) attested by Muhammad Jamil, A.S.-I., (C.W.4), Dildar Ahmed, S.-I./S.H.O. (C.W.3) and Nisar Ahmed, A.S.-I., (not produced).
On 7-5-1995, Muhammad Akhtar, accused had shown his willingness to get recovered rifle .7 mm from his residential house. Accordingly, he led to the recovery of .7 mm rifle (P.8) alongwith 6 bullets (P.9/1-6), lying concealed under the bed in the room of his house. Memo. (Exh.P.I.) was drawn up by Dildar Ahmed (C.W.3), which was attested by Muhammad Aslam, A.S.-I. (P.W.8) and Nisar Ahmed (not produced).
On 7.5.1995 Zafar Iqbal, accused had got recovered rifle .7 mm (Exh.P.10) alongwith 7 live bullets (P.11/1-7) from the residential room of his house. Exh.P.M. Was drawn up by C.W.3, which was also attested by the aforementioned P.Ws.
A .12 bore gun (Exh.P.N) alongwith 3 live cartridges (P.13/1-3) were recovered at the instance of Muhammad Aslam alias Mumtaz, accused from his house and were taken into possession through recovery memo. (Exh.P.N.).
Not only the site-plan of the various places of recoveries were prepared but statements of all the recovery witnesses were reduced into writing.
On asking of the Investigating Officer, Muhammad Amin, Patwari (P.W.7) visited the spot on the pointation of the witnesses concerned and prepared site-plan, Exhs.P.H, P.H./1 and P.H./2 in triplicate, duly signed by him. He made over these site plans to the Investigating Officer, who put notes in red ink on the same and put his signatures as well.
After taking everything into full consideration, the Investigating Officer found Zafar Iqbal, Muhammad Akhtar, Muhammad Khan, Manzoor, Muhammad Aslam alias Mumtaz and Muhammad Akram, fully involved in the occurrence and challaned them.
5. The complainant was dissatisfied with the investigation carried out by the local police, so he instituted a private complaint Exh.P.C. Against Muhammad Tufail alias Mushtaq, Akhtar, Haji alias Arshad and Abdul Razaq relying on facts of the First Information Report.
6. Learned Judge Punjab Special Court No,VI, constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, Multan Divisions, Multan, passed a detailed order to the effect that prima facie a case under section 302/34, P.P.C. Was spelt out against the accused complained against and they were ordered to be summoned to face their trial in the complaint case. Copies of the statement and other necessary documents were supplied to the accused, as required under the relevant provisions of section 256-C, Cr.P.C. Then this case stood transferred to the trial Court, (constituted under the Anti-Terrorism Act, 1997). The trial Court took cognizance of the complaint case first, as per dictum laid in Noor Ilahi v. The State PLD 1996 SC 708.
7. The accused were formally charged for the offence alleged to have been committed by them and they pleaded not guilty to the charge. The complainant side was directed to adduce evidence with a view to establish charge against the accused persons.
8. Abdul -Karim opted to appear as P.W.1 to furnish ocular account; motive part of the incident, and other attending circumstances of the case. He confirmed having set the criminal law into motion by getting case F.I.R. No,111 of 1995 (Exh.P.A.) registered against them. Abdul Majid (P.W.2), brother of the complainant appeared as P.W.2 to support the prosecution version contained in the First Information Report. Abdul Hamid, Constable No,1713 was deputed to transmit the parcel allegedly containing bloodstained soil and an empty cartridge by Zafar Ullah, Moharrar Head-Constable (P.W.9) to the concerned quarters at Lahore. He received this parcel on 26-3-1995 and deposited it with the concerned office on 27-3-1995 intact. Ghulam Murtaza, Constable appeared as P.W.4. He had escorted dead body of Muhammad Saleem, deceased from the Hospital to the mortuary for post-mortem examination by the competent medical authorities. He delivered back the dead body to the legal heirs of the deceased. He also produced last worn clothes of the deceased and post-mortem report before the Investigating Officer, who prepared seizure memo. Exh.P.F. Duly attested by this witness.
9. Dr. Sultan Ahmed (P.W.5), Medical Officer, Nishter Hospital, Multan had attended to Muhammad Saleem in an injured condition and had issued medico-legal report Exh.P.D., duly signed by him. He observed the following injuries on the person of the victim:-- "(1) A lacerated wound 7 c.m. x 5 c.m. On the right side of chest, going deep into chest, with burnt edges just medial to the nipple. Air bubbles were coming out from the wound.
(2) Lacerated wound 2.5 c.m. x 1.5 c.m. On left upper part of the abdomen posterior. Edges of the wound were burnt and everted (Exit wound).
(3) A lacerated wound 3 c.m. x 2 c.m. With burnt edges and inverted edges at the lower part of the left knee medial.
(4) Lacerated wound 4 c.m. x 2 c.m. With blackish and everted edges below the left knee laterly."
According to opinion of the doctor all the injuries had been caused by discharge of fire-arm.
Injuries Nos.1 and 2 were dangerous to life. These injuries had been caused within duration of two hours.
10. P.W.6 Dr. Raza Mohy-ud-Din, S.M.O., Civil Hospital, Multan on 20-3-1995 had subjected the dead body to post-mortem examination on request of the police to ascertain cause of death. He made the following observations:-- "(1-A) lacerated wound of entry 1 c.m. x 1/2 c.m. On outer side of lower most part of left side of chest 22 c.m. From left nipple in 4.0' clock position-margins of the wound were inverted and blackening were present around the wound. Corresponding hole present on Qameez and Bunyan.
(1-B)Lacerated wound of fire-arm exit 6 c.m. x 2-1/2 c.m. On front of right side of chest, oblique 2 c.m. Medial to and in the line of right nipple. Margins of the wound were everted.
(2-A) Lacerated wound of entry 1 c.m. x 1/2 c.m. Below on inner side of left leg 3 c.m. Below left knee cap. Margins of the wound were everted and blackening present around the wound.
(2-B)Lacerated wound of exit 2-1/2 c.m. x 1 c.m. Outer part of upper third of left leg 9 c.m. Below left knee cap margins of the wound everted. The injuries 2-A and 2-B are entry and exit wounds and communicated with each other through musculature under line tibia bonds was found fractured.
On direction of chest/abdomen for injury No,1 .
The bullet entered through injury No,1(a) the of entry fractured 8th rib entered abdominal cavity punctured stomach through and through and paritonium upper lobe of liver and right lungs. It fractured 5th rib at its junction with sternum and came out at the side of injury No,1(b). Chest and abdominal cavity was full of blood and semi digestive food.
Left side of heart was empty whereas right contained blood. The stomach was punctured through and through. The liver was also punctured whereas the urinary bladder was empty."
The doctor opined that death in this case occurred due to haemorrhage, shock and injury to vital organ (lung). The injuries present over the body were ante-mortem caused by fire-arm (bullet) and sufficient to cause death in an ordinary course of nature. The probable time, which elapsed between injuries and death was within about 3 hours, whereas between death and post-mortem was 4 to 6 hours. After post-mortem examination, he handed over the dead body alongwith post- mortem report, police papers and last worn clothes duly signed by him to the constable concerned. Exh.P.E was the attested photostat copy of his post-mortem report, while Exh.P.E./1 was the pictorial diagram of the injuries. Exh.P.E./3 was the attested copy of the inquest report, which bears his signature.
11. Duties performed by Muhammad Amin, Patwari (P.W.7) have also been given in the earlier part of the judgment, so it needs not be discussed again.
12. Muhammad Aslam, A.S.-I. (P.W.8) was associated in the investigation carried out by Dildar Ahmed, S.-I4S.H.O. (C.W.3). He proved recoveries at the instance of Muhammad Akhter, accused.
Muhammad Zafarullah, Head Constable (P.W.9) was posted as M.H.C. At the police station and he received two sealed parcels pertaining to this case from the Investigating Officer and deposited the same in the Malkhana for safe custody. On 26-3-1995, he made over these parcels to Abdul Hamid (P.W.3) directing him to deposit these parcels intact in the Office of Chemical Examiner, Lahore and Forensic Science Laboratory, which he accordingly did.
On 15-5-1995, Dildar Ahmed (C.W.3) delivered two more parcels pertaining to this case to this witness to be dealt with in accordance with law. These parcels were further made over by this witness to Safdar Hussain-Constable for their onward transmission to the concerned quarters.
On 8-10-1998, Abdul Karim (P.W.1) gave up Nisar Ahmed, A.S.-1., Muhammad Siddique and Muhammad Hussain P.Ws. _ as unnecessary and Dildar Ahmed S.-I./S.H.O. (C.W.3), according to him had acted adverse to him. Thereafter, on 23-11-1998, he declared the prosecution case close.
11. The learned trial Judge, then proceeded to summon Muhammad Hanif, Muhammad Ashraf, Jamil Ahmed A.S.-I. And Dildar Ahmed, S.-I./S.H.O. As C.Ws.
Muhammad Hanif (C.W.1) and Muhammad Ashraf (C.W.2) frankly stated that they knew nothing about the occurrence and as such they both were cross-examined.
Dildar Hameed, S.-I./S.H.O. (C.W.3) made a detailed statement of the relevant facts ascertained by him through his discrete investigation. All that he did in the matter of investigation has already been stated in. The earlier part of this judgment, so the same need not be reiterated once again here.
Muhammad Jamil, A.S.-I. (C.W.4), on 6-5-1995, was associated in the investigation by Dildar Ahmed C.W.3. He proved the factum of recovery of Suzuki Car from the possession of Manzoor- accused. He had signed the recovery memo. Exh.P.L.
Abdul Karim, complainant tendered in evidence, certified copies of report of chemical examiner Exh.P.R., and that of Serologist Exh.P.S. And declared his case close.
12. Now accused were called upon to make their statements under section 342, Cr.P.C. They vehemently denied the correctness of all the allegations levelled against them and pleaded their innocence. They have also stated that they were falsely involved in the case because of party- faction and animosity. Muhammad Tufail, Haji alias Arshad and Abdul Razaq asserted that they were given clean slate by the local police after thorough and discrete investigation.
13. None of the acct.-Bed except Haji alias Arshad expressed his desire to produce evidence in defence. They also opted not to make their statements on oath, in disproof of the accusations, brought against them, as required under section 340(2), Cr.P.C. Haji alias Arshad, accused produced in evidence certified copy of the application for cancellation of bail on behalf of Abdul Karim, against Muhammad Akram and Muhammad Khan, is Exh.D.D. And copy of the order dated 14-4-1998 Exh.D.E. And closed his defence evidence.
14. After consideration of all the facts and circumstances of the case, the learned trial Judge found and adjudged all the four accused persons guilty for the murder of Muhammad Saleem, deceased and dealt with them in the matter of punishment as under:-- Muhammad Tufail alias Mushtaq and Muhammad Akhtar were punished with death as Qisas, under section 302(a), P.P.C. Abdul Razaq and Haji alias Arshed, was sentenced to imprisonment for life each as Ta'zir, under section 302(b), P.P.C. Muhammad Akhtar managed to flee away from the Court without hearing the order. His bail was cancelled and proceedings against sureties were ordered to be initiated. Warrant of sentence was sent to the District Magistrate, so that the same be executed on the event of his arrest.
15. Muhammad Tufail, Haji alias Arshad and Abdul Razaq by filing Criminal Appeal No,50 of ;1999 have called in question, conviction and sentence passed against them by the learned trial Judge, vide his judgment dated 28-9-1999.
16. Abdul Karim, complainant had filed Criminal Revision No,259 of 1999 for enhancement of sentence of imprisonment for life of Haji alias Arshad and Abdul Razaq to the maximum provided under the law and award of adequate compensation to the legal heirs of the deceased. All these matters are being disposed of together by this single judgment.
17. Learned counsel for the appellants has urged following points for our consideration:--
(i) That place of occurrence is situated in a thickly populated area and is flanked by inhabited houses, but no independent disinterested witness had been produced by the prosecution to prove its story.
(ii) That there is no corroboration from an independent source of an unimpeachable character.
(iii) That report of the Forensic Science Laboratory (Exh.P.T.), which is positive, connects only Akhtar absconder or Zafar Iqbal accused in the challan case. Furthermore, car used in the occurrence was not recovered from possession of the appellants.
(iv) That the appellants were given a clean slate by different responsible Investigating Officers and were not even arrested. The prosecution had awfully failed to establish its case beyond any shadow of doubt against the appellants.
18. Conversely, learned counsel for the complainant assisted by learned State Counsel argued that the appellants were named in the First Information Report, which was lodged promptly at the police station by the complainant and the P.Ws. Had adhered to the prosecution theory propounded in the First Information Report. It was next argued that Muhammad Tufail alias Mushtaq and Abdul Razaq appellants are brothers inter se. Likewise, Muhammad Akhtar and Haji alias Arshad are also real brothers and they are also first cousins of Muhammad Tufail alias Mushtaq and Abdul Razaq. They had a motive against the deceased and various parts attributed to Muhammad Tufail alias Mushtaq appellant and Muhammad Akhtar absconder are borne out by the medical evidence.
19. We have attentively heard arguments of both the sides and perused the record. We find that Muhammad Siddique P.W. (not produced) is son of Abdul Karim (P: W.1). Abdul Majeed (P.W.2) is real brother of the complainant-Abdul Karim. Muhammad Aslam son of Muhammad Ibrahim, given up P.W., is the nephew of Abdui Karim (P.W.1). Muhammad Siddique P.W. During the days of occurrence used to drive the official vehicle of D.S.P., Makhdoom Rashid. Abdul Majeed (P.W.2) did not live at or around the place of occurrence and was resident of Mian Channu, which is . About 60 or 65 miles away from the place of occurrence. Muhammad Aslam P.W. Is resident of Kot Addu, which is situated at a distance of 100 miles from the venue of occurrence. There was hardly any reason for Abdul Majeed (P.W.2) to be present at the place of occurrence at the relevant time of occurrence. He is a chance witness. The place of occurrence is situated in a populated area, but the fact remains that not a single person of that area was associated in the investigation or produced by the complainant to substantiate allegation against the appellants. Non-production of independent witnesses of the locality casts a reasonable suspicion upon genuineness and correctness of the prosecution story.
20. During the course of investigation, thorough probe was made by the Investigating Officers to ascertain truth of the matter. Muhammad Akhtarabsconder, Zafar Iqbal, Muhammad Aslam, Manzoor, Akram Thaheem and Khan Muhammad were discovered to be the actual offenders. Both these witnesses supported allegation against them. The complainant side had been appearing before Dildar Ahmad, S.-I. (C.W.3), the D.S.P. Of the Circle and Ijaz Ahmad, Additional S.P. They consistently named and accused, Muhammad Akhtar, Zafar Iqbal, Muhammad Aslam, Manzoor, Muhammad Akram Thaheem and Khan Muhammad of the offence of murder. The net result of investigation was that they all stood challaned to the Court. After a year or so, the complainant came out with another explanation that the police had spoiled his case and he thought of filing a complaint (Exh.P.C.) against the appellants and Muhammad Akhtar absconder.
21. Abdul Karim (P.W.1) had got recorded his statement (Exh.D.A), under section 161, Cr.P.C. During the course of investigation. In that statement (Exh.D.A.), he had stated that due to murder of his son, he had lost his wits and that he had wrongly named Muhammad Tufail alias Mushtaq, Abdul Razzaq, and Haji alias Arshad. Firstly he denied having so stated in Exh.D.A. But his attention was drawn to the said statement (Exh.D.A.), he was duly got confronted with it. He had also stated in Exh.D.A. That after receipt of copy of F.I.R. He came to know that the names of 3/4 persons had been wrongly recorded. He also stated that Zafar Iqbal armed with .7 mm rifle, Muhammad Aslam alias Mumtaz, armed with .12 bore gun, Manzoor, driver of car No,SGF/8205, were the real culprits, who murdered his son. He had also stated that Zafar Iqbal had made a shot upon Muhammad Saleem deceased with his rifle, which struck at his left leg, due to which he fell down and thereafter he made a second shot, which hit him on the right side of his chest. He also stated that all the accused ran away by boarding the same car and he alongwith Abdul Majeed and Muhammad Siddique P.Ws., immediately shifted Muhammad Saleem to Nishtar Hospital. He also stated that Exh.D.A. His supplementary statement, was correct and the same be created as part of the First Information Report. He also stated that he had requested the police to apprehend the above- named persons, so that they could be dealt with in accordance with law. He also stated that he had seen the accused subsequently named while firing at Muhammad Saleem. He had stated many other facts, which he denied whilst he was under cross-examination. But he was effectively cross-examined and duly got confronted, with his statement (Exh.D.A.). This conduct of the witness clearly shows that he had no respect for truth and he '7"'C guilty of making mutually contradicted and inconsistent statement. When this is the state of affairs, how he can be believed.
Abdul Karim (P.W.1) also admitted that Zafar Iqbal, Muhammad Akram, Muhammad Aslam alias Mumtaz, Manzoor Hussain driver and Muhammad Khan, aforementioned, were arrested by the police, but they were released on bail. He denied having filed affidavit before the High Court in connection with bail matter of Zafar Iqbal and others, accused in the challan case, to help them.
That affidavit is available on the file as Exh.D.D. Contents of the affidavit filed by the complainant in the matter of cancellation of bail of Muhammad Akram and Muhammad Khan, completely falsify his present version.
It may additionally be seen that during the course of cross-examination, he made certain manoeuvres and also mass of lies relating to material facts. Same facts hold good treatment in case of Abdul Majid (P.W.2). His statement is also identical to that of P.W.1. Muhammad Siddique, given up P.W., being an employee of police department was expected to be acquainted with the investigation proceedings. The senior police officials were not at all inimical towards the complainant side, rather they had utmost sympathies with them. The complaint was filed on the pretext that he was seriously aggrieved of the conduct of investigation by the police officials. He had come to know of the arrest of other set of accused. He had been appearing before all the Investigating Officers and even the Courts, but he never lodged protest against unfair and dishonest investigation throughout, which falsifies his claim that the investigation was not fairly and properly conducted by the police.
22. High-ranking police officials made frequent visits at the spot, who did their best to dig out the hard facts. After very long and hard exercise, they were of the unanimous opinion that appellants were not involved in the matter. They found Zafar Iqbal and others guilty of the offence of murder of Muhammad Saleem and challaned them accordingly.
23. As regards motive, that too is meagre and nobody ever bothered to prove it. The motive is a piece of evidence and not an element of crime. Mere motive is not always sufficient to prove the offence of murder. Abdul Majeed (P.W.2) also had a motive to wish maximum harm to the appellants by deposing falsely. He is also guilty of making several dishonest improvements in his statement, which constitutes a sufficient ground for rejection of the testimony.
24. We are not inclined to place explicit reliance upon statements of these eye-witnesses. They are wholly unreliable and it would not be safe to act upon their testimony in the criminal administration of justice. Their statements are improbable and contrary to the course of nature. We accordingly discard their evidence.
25. After having exhaustively examined evidence in its entirety, we find that this case is packed to the full with real doubts. Benefit of doubts is always required to be given to the accused. We are not oblivious of the fact that we have to ward off punishment with doubts, because it is better for the judge to err in acquittal, than in conviction.
26. Accordingly, we accept this appeal, set aside conviction and sentence of the appellants and acquit them of the charge. They are directed to be set at liberty forthwith if not required to be detained in any other case. However, Criminal Revision No,256 of 1999 is dismissed.