' ASIF SAEED KHAN KHOSA, J.--- Qasim appellant was convicted by the learned Additional Sessions Judge, Layyah vide judgment, dated 15-12-1996 for an offence under section 302(b), P.F.C. And was sentenced to death and to pay a sum of Rs,50,000 by way of compensation to the heirs of Gharib Nawaz deceased under section 544-A, Cr.P.C. Failing which the said amount was to be recovered as arrears of land revenue and in case of failure of such a recovery he was ordered to suffer imprisonment for six months. Through the same judgment Younus appellant was also convicted by the learned trial Court for an offence under section 302(b), P.P.C. And was sentenced to imprisonment for life and to pay a sum of Rs,50,000 by way of compensation to the heirs of Gharib Nawaz deceased under section 544-A, Cr.P.C. Failing which the said amount was to be recovered as arrears of land revenue and in case of failure of such a recovery he was ordered to suffer imprisonment for six months. A co-accused of these appellants, namely Umar, was, however, acquitted by the learned trial Court. Qasim and Younus appellants have challenged their convictions and sentences before this Court through Criminal Appeals Nos.3 and 4 of 1997 respectively. We have heard their appeals alongwith Murder Reference No,58 of 1997 seeking confirmation of the sentence of death passed against Qasim appellant. We propose to decide all these matters together through the present consolidated judgment.
2. The prosecution story narrated in the F.I.R. Was that Faryad Ali complainant was a resident of Chak No,148-B/TDA situated within the area of Police Station City, Layyah. The complainant had a fruit shop and near his shop his brother Gharib Nawaz alias Ghribu had a fruit kiosk in front of Piracha Petrol Pump. During the night between 15/16-7-1995 Gharibu, his brother-in-law Khair Din and Gharibu's son Muhammad Nadeem were present at Gharibu's kiosk and the complainant was available at his own shop as usual. At about 2-00 a.m. Gharibu told the complainant that he had already earned Rs,7,000 that day and that they should now close their shops. They then started closing their shops down and in the meanwhile Gharib put his Rs,7,000 in a white handkerchief which had his name embroidered on it kept it in his pocket. Gharibu then started off on his bicycle with his son Muhammad Nadeem riding with him. The complainant and Khair Din left a little later and followed Gharibu and his son. When they had hit the metalled road three persons well-known to the complainant came running from the side of the Fawarah Chowk. They were Ghulam Qasim armed with a pistol, Mushtaq, armed with a dagger, and Younus, armed with a dagger. They hit Gharibu's bicycle which fell down. Ghulam Qasim then took out his pistol and demanded that Gharibu should hand over all his possessions to him Gharibu did not accede to that demand upon which Mushtaq slapped Gharibu on the face. In retaliation Gharibu also slapped him. Younus then tried to take out money from the pocket of Gharibu which was resisted by him. Ghulam Qasim then fired at Gharibu hitting him at his head. Upon receipt of that injury Gharibu fell down and the assailants took out Rs,7,000 and his national identity card from his pocket and ran away towards the north-east of that place. The occurrence had been witnessed by the complainant, Muhammad Nadeem and Khair Din in the light of a tubelight available in the street. The complainant and others tried to chase the culprits but they were threatened by them not to do so. Gharibu died at the spot.
It was stated in the F.I.R. That the said offence had been committed by Qasim, etc. At the behest of Muhammad Nawaz and Gulsher.
3. Leaving the dead body of his brother Gharib Nawaz at the place of occurrence in the care of Khair Din P.Ws., the complainant went to Police Station City, Layyah and lodged F.I.R. No,264 in that regard at 2-35 a.m. During the same night. The F.I.R. Was recorded by Muhammad Aslam, M.H.C.
(P.W.3) for offences under section 392/302/34/109, P.P.C.
4. After registration of the F.I.R. Ijaz Ahmad, S.-I. (P.W.14) took up the investigation of this case, went to the place of occurrence, inspected the same, prepared the injury statement and the inquest report qua the dead body of Gharib Nawaz and sent the same to the mortuary for autopsy. He also collected blood-stained earth from the place of occurrence and recorded the statements of witnesses.
5. The post-mortem examination of the dead body of Gharib Nawaz was conducted by Dr. Javaid Iqbal (P.W.4) at 10-00 a.m. On 16-7-1995. He had found five injuries on the dead body which were all ante-mortem. Injury No,1 had been caused by a blunt weapon whereas all the other injuries had been caused by fire-arm. Injuries Nos.1, 3, 4 and 5 were simple in nature and injury No,2 was dangerous to life which had caused damage to the brain. The death occurred due to injury to the brain, skull, haemorrhage and shock caused by injury No,2 which was sufficient to cause death in the ordinary course of nature. The probable time elapsing between the injuries and death was stated by the doctor to be instantaneous while the duration between the death and post-mortem examination was opined by the doctor to be between 8 to 10 hours.
6. After the post-mortem examination of the dead body Ijaz Ahmad, S.-I. (P.W.14), the Investigating Officer, took into possession the bloodstained last worn clothes of the deceased. Subsequently he got a site plan of the place of occurrence prepared by a Patwari. Ghulam Shabir, S.-I. (P.W.10) arrested the appellants and their co-accused on 22-8-1995 and recovered various weapons of offence, some cash and a handkerchief from them which they were carrying at the time of their arrest. Thereafter, Ijaz Ahmad, S.-I. (P.W.14) completed the other formalities, finalized his investigation and submitted a challan in respect of this case against Qasim and Younus appellants and one Umar (who was substituted in the place of Mushtaq accused mentioned in the F.I.R.). Muhammad Nawaz and Gulsher accused were not challaned.
7. At the commencement of the trial the learned trial Court framed a charge with two heads under sections 392/34 and 302/34, P.P.C. Against the appellants and their co-accused to which they pleaded not guilty and claimed a trial.
8. During the trial the prosecution produced as many as fourteen witnesses in support of its case against the appellants and their co-accused. Faryad Ali complainant (P.W.13) and Muhammad Nadeem (P.W.12) furnished the ocular account of the incident and also stated about the instigation of Muhammad Nawaz and Gulsher accused. Dr. Javaid Iqbal (P.W.4) provided the medical evidence. Muhammad Khalil (P.W.8), Abdul Hameed (P.W.9) and Ghulam Shabbir, S.-I. (P.W.10) deposed about the recoveries of weapons of offence from the appellants and their co-accused Ijaz Ahmad, S.-I. (P.W.14) and Ghulam Shabbir, S.-I. (P.W.10) 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. The appellants and their co-accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. Qasim appellant maintained that the prosecution witnesses had deposed against him due to their relationship with the deceased and also at the instigation of Noor Muhammad alias Noor Bootoon Wala and Muhammad Asghar M.P.A. While answering a question as to why he had been implicated in this case Qasim appellant had stated that:-- "Noor Muhammad alias Bootoon Wala is an influential settler Zamindar in the area of Fatehpur. He contested the last Provincial Assembly Election. I live in the area which is in his constituency. On the occasion of last election, in which he was candidate I and my relatives were against him and the workers of Noor Muhammad mentioned above had quarreled with me during election compain but being poor person I could not take any legal step against them. The deceased belonged to the constituency of M. Asghar Gujar present M.P.A. Of Layyah who is a fast friend of said Noor Muhammad. Asghar Gujar, M.P.A. Had won the previous three elections of Provincial Assembly consecutively and is an important person of Jamat-e-Islami. During the days of Martial Law Regime, said Noor Muhammad was involved in a murder case and was sentenced to death by the Military Court but by the endeavour of said M. Asghar M.P.A., the punishment of said Noor Muhammad was and he was released from jail. I have been involved in this case falsely by said Noor Muhammad and M Asghar, M.P.A."
' Younus appellant and Umar accused also made statements to the same effect. However, both the appellants and their co-accused opted not to make any statement on oath under section 340(2), Cr.P.C. And they also did not produce any evidence in their defence.
10. At the conclusion of the trial the learned Additional Sessions Judge, Layyah convicted and sentenced the appellants and acquitted their co-accused as noticed and detailed above. Hence, the present appeals and the connected Murder Reference before this Court.
11. We have heard the learned counsel for the appellants as well as the learned counsel for the State and have also gone through the record of this case with their assistance.
12. It has been argued by the learned counsel for the appellants that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. According to them the witnesses produced by the prosecution did not inspire confidence and that they had also failed to find material corroboration from any independent source. As against that the learned counsel for 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. The ocular account of the incident in question had been furnished by Faryad Ali complainant (P.W.13) and Muhammad Nadeem (P.W.12). Faryad Ali complainant (P.W.13) was a brother of Gahrib Nawaz deceased and Muhammad Nadeem (P.W.12) was the deceased's son. Both these witnesses were also chance-witnesses. The occurrence had taken place about half a mile away from their shops and still farther from their homes. The occurrence had taken place at about 2-00 a.m. The only explanation offered for the stated presence of these witnesses near the deceased at those small hours of the night was that they were going with the deceased towards their respective homes after closing their fruit shops. It was not proved on the record that the deceased or these witnesses did in fact run fruit shops at all. It was also stated by these witnesses that normally they used to close their respective shops before or around midnight. No explanation was brought on the record as to why during the fateful night they had closed their shops two hours later than their normal time. Statements of related chance witnesses are seldom relied upon in a case involving a capital charge unless such witnesses inspire confidence by furnishing plausible and convincing explanation for their presence at a place where they were not ordinarily expected to be present at a given time.
14. There are certain other weighty reasons also available in this case for arriving at a conclusion that the eye-witnesses produced by the prosecution were not reliable. It was admittedly a night occurrence wherein the deceased had a rendezvous with his death far away from his home as well as place of business. It had been admitted by the complainant in his statement before the learned trial Court that foot-trackers had been employed by the police in the morning after the night of occurrence and moulds of foot-prints of the culprits had been secured by the Investigating Officer.
The Investigating Officer had also admitted the fact that brief history of the case (Exh.D.B.) incorporated in the inquest report (Exh.P.M.) clearly recorded that the culprits perpetrating the offence had not been identified by the witnesses. All these aspects available on the record clearly belie the claim of the eye-witnesses to have not only witnessed the occurrence but also to have identified and nominated the culprits. The complainant had claimed in the F.I.R. That he knew the culprits very well but during his cross-examination his knowledge about the appellants and their background was thoroughly exposed. The appellants and the eye-witnesses produced by the prosecution lived in different villages and the said witnesses' acquaintance with the appellants had not satisfactorily been proved. Despite his claimed good knowledge about the culprits the complainant had named Mushtaq accused as one of the culprits who had subsequently been substituted by Umar accused who had no apparent connection with the said Mushtaq accused!
Muhammad Nadeem (P.W.12) had not claimed in his statement recorded under section 161, Cr.P.C.
(Exh.D.A.) that Faryad Ali complainant had also witnessed the occurrence. Muhammad Nadeem (P.W.12) was boy of impressionable age and was vulnerable to persuasion and tutoring. In the brief history of the case (Exh.D.B.) incorporated in the inquest report (Exh.P.M.) Muhammad Nadeem (P.W.12) was not mentioned as an eyewitness at all. We are not ready to believe that a boy of his age was working with his father at a far away fruit shop till 2-00 a.m. The complainant had stated that the F.I.R. Lodged by him was recorded by the Investigating Officer of the case who was present in the police station at the relevant time whereas Muhammad Aslam, H.C. (P.W.3) had claimed that the F.I.R. Had in fact been recorded by him at a time when the Investigating Officer was away from the police station. Muhammad Nadeem (P.W.12) had also stated that immediately after the occurrence a police party had arrived at the place of occurrence and had in fact unsuccessfully chased the culprits. Thus, the sanctity of the F.I.R. Was itself doubtful. We have, thus, felt dissuaded from relying on the statements of such witnesses on a capital charge.
15. The eye-witnesses produced by the prosecution had also failed to receive any corroboration from any independent source. The evidence about motive was virtually next to nothing. No direct motive was attributed to the appellants at all. The eye-witnesses had claimed that the appellants had committed the said offence at the behest and instigation of Muhammad Nawaz and Uulsher.
The said Muhammad Nawaz and Gulsher had not been challenged in this case. Even otherwise, no evidence worth the name had been produced by the prosecution as to why the persons would be wanting to get the deceased killed or 8 to why the appellants would become ready to take a life on the bidding of the said persons.
16. The alleged recovery of a pistol from Qasim appellant during the investigation had also remained inconsequential. No, crime-empty had been recovered from the place of occurrence for its possible matching with the said pistol so as to connect the same with the alleged offence. Even otherwise the pistol allegedly recovered from Qasim appellant was of .32 bore whereas the injuries sustained by the deceased were caused by pellets. It is elementary knowledge that a pistol of .32 bore can only fire a bullet and not a cartridge containing pellets. The cash recovered during the investigation could also not be connected with the offence in question. The recovered daggers were admittedly not stained with blood and they also, thus, failed to provide any corroboration to the ocular account. The national identity card of the deceased allegedly taken away by the culprits after the incident was never recovered from the appellants. The corroborative value of recovery of a handkerchief statedly belonging to the deceased was also next to nothing. The occurrence had taken place on 16-7-1995 whereas the said handkerchief had allegedly been recovered on 22-8- 1995, about one month and six days after the incident, through recovery memo. Exh.P.H. It has intrigued the Court to notice that the complainant had claimed before the learned trail Court that he had been shown the said handkerchief by the police after 2/4 days of the occurrence. Ijaz Ahmad, S.-I. (P. W. 14), the Investigating Officer, had unmincingly admitted that he had never got the said handkerchief identified by anybody to be that of the deceased. Ghulam Shabbir, S.-I.
(P.W.10) had also gone on to admit that it was not mentioned in the recovery memo. Exh.P.H. That the recovered handkerchief had the name of the deceased embroidered on it. Apart from all these considerations we have also noticed that Abdul Hameed (P.W.8) and Ghulam Shabbir (P.W.9), who had allegedly witnessed all those recoveries, were both maternal uncles of the deceased and both of them lived miles away from the place of recoveries. They had also made contradictory statements about the details of the alleged recovery proceedings. Thus, their claims of having witnessed the said recoveries have failed to impress us, to say the least. For all these reasons the recoveries allegedly effected in this case during the investigation have utterly failed to provide any corroboration to the ocular account.
17. The medical evidence produced by the prosecution in the present case could not provide much support to the ocular account. By its very nature medical evidence cannot identify the perpetrator of the offence. It can only provide support to the ocular evidence regarding various details.
However, medical evidence has no supportive value where the eye-witnesses themselves do not inspire confidence and, thus, there is nothing left to be supported.
18. For the foregoing reasons we have arrived at a confident conclusion that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. The benefit of doubt, thus, must go to the appellants. Therefore, Criminal Appeals Nos.3 and 4 of 1997 are hereby allowed, the impugned judgment passed by the learned Additional Sessions Judge, Layyah on 15-12-1996 is set aside and Qasim and Younus appellants are acquitted of the charge against him. They shall be released from jail forthwith if not required in any other case.
19. Murder Reference No,58 of 1997 is hereby answered in the negative.
' Death sentence is not confirmed.