' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Murder Reference No,209 of 1995, Criminal Appeal No,566 of 1995 filed by Muhammad Mushtaq and Umar Hayat appellants. They were convicted and sentenced by learned Additional Sessions Judge, Lahore for the murder of Amir deceased as under:
(1) Muhammad Mushtaq, appellant, death under section 302/34, P.P.C. With a fine of Rs,20,000 and in default two years' R.I. Fine if recovered was ordered to be paid to the legal heirs of the deceased.
(2) Umar Hayat, appellant, to undergo life imprisonment under section 302/ 34, P.P.C. With a fine of Rs,20,000 and in default two years. Fine if recovered was ordered to be paid to the legal heirs of the deceased. Benefit of section 382-B, Cr.P.C. Was also granted.
' There is also a Criminal Appeal No,567 of 1995 filed by Mst. Musarat Begum etc. Against the acquittal of Muhammad Riaz and Rashid Ahmad and Criminal Revision No,502 of 1995 filed by Mst.
Musarat Begum etc. For the enhancement of sentence against Umar Hayat, that shall also be disposed of through this single judgment.
2. Occurrence in this case took place on 13-7-1992 at 4-00 p.m. Within the Revenue Estate of Mouza Ladhekay Uchay at a distance of 16 K.Ms. Away from Police Station City Raiwind, Lahore while the matter was reported to the police on the same day at 5-45 p.m. By Muhammad Amir deceased while the formal F.I.R. Exh.P.B./1 was recorded by Muhammad Yasin, S.-I.
3. Facts of the case are that Muhammad Amir son of Chiragh Din lodged complaint Exh.P.B. In writing on 13-7-1992 to Muhammad Abdullah, A.S.-I., alleging therein that on the abovesaid date at 4-00 p.m. He was cultivating land with tractor, he saw Muhammad Riaz accused armed with gun, Muhammad Mushtaq accused armed with hatchet, Umar armed with Sota and ' Rashid armed with pistol all resident of village Ladhekey Uchey came to him and started abusing and said that they would teach lesson to the deceased for getting Mushtaq accused arrested by C.I.A., Staff. The accused persons dragged the deceased from the tractor and Muhammad Riaz accused fired shot at the deceased with gun which hit the left lower part of his leg, Mushtaq accused gave hatchet blows on the left upper part of his leg, Umar accused gave Sota blows on the back of the deceased and Rashid accused fired a shot with pistol which escaped and hit a buffalow grazing nearby. The deceased raised hue and cry for seeking shelter which attracted Boota, Mohsin sons of Chiragh and Sarwar son of Kalay Khan. Accused after having sight of Boota, Mohsin and Sarwar fled away from the scene.
' Initially the case was registered against the accused under section 324/34, P.P.C. And thereafter, on the death of the complainant section 324/34, P.P.C. Were replaced by section 302/34, P.P.C.
4. After registration of the formal F.I.R. Muhammad Abdullah S.-I. P.W .1 I proceeded to the place of occurrence, prepared inquest report Exh.P.L., injury statement Exh.P.M, then the investigation was taken over by S.-1. Muhammad Aslam P.W.12, on 25-7-1992, arrested Muhammad Riaz, Muhammad Mushtaq, Umar Hayat and Rashid Ahmad, Muhammad Mushtaq led to the recovery of hatchet P.6 which was taken into possession vide memo. Exh.P.D., Umar Hayat also led to the recovery of Sota P.7, which was taken into possession vide memo. Exh.P.E. Recorded the statements of the witnesses, sent Mushtaq, Riaz and Umar Hayat to judicial, lock-up, obtained personal remand of Rashid, moreover, recovery could not be effected from him, on 9-8-1992, Rashid was sent to judicial lock- up and after completion of investigation the accused were challaned to face the trial.
5. At the trial prosecution in order to prove its case produced 12 witnesses in all, then the learned D.D.A. Tendered in evidence report of the Chemical Examiner Exh.P.N., report of the Serologist Exh.P.O and closed the prosecution case, thereafter, statements of the accused were recorded under section 342, Cr.P.C. In which they claimed innocence and also produced Farzand Ali, D.S.P. As C.W.1.
After conclusion of the trial, Mushtaq was sentenced to death, Umar Hayat was awarded life imprisonment while rest of the accused were acquitted of the charge.
6. Learned counsel for the appellants after having read the entire prosecution evidence submits that F.I.R. Was recorded after due deliberation and consultation, that the said F.I.R. Is a fabricated piece of document, that same was recorded after examining and going through the medico-legal report of complainant (now deceased in this case), that prosecution has failed to prove the motive against Muhammad Mushtaq and Umar Hayat appellants, that main fatal injury on the head of the deceased which was mentioned by Dr. Muhammad Khalid P.W.10 in the post-mortem report was neither mentioned in the F.I.R. By the deceased nor by Dr. Ehsan Elahi P.W.6, who had conducted the medico-legal examination on the deceased when he was alive, that according to the F.I.R. Which was lodged by Muhammad Amir deceased himself, he received a fire shot on his leg by Muhammad Riaz with a gun but according to M.L.R. There is no such injury on his leg, that both the eye-witnesses Mohsin and Boota, who are real brother of the deceased were not present at the spot, that 3rd eye-witness Sarwar, who was cousin of the deceased was deliberately not produced by the prosecution before the learned Trial Court, that injuries Nos.1 to 8 are with blunt weapon, that there is no firearm injury or with hatchet on the person of the deceased, that it was also stated that fire of Rashid acquitted co-accused hit the buffalo but neither that buffalo was apprehended nor she was medically examined, that on the same day, one Hakim Ali and Mst. Kishwar Bibi were also injured, they belonged to the same village i.e, of the deceased, Kishawar Bibi was the first cousin of the deceased while Hakim Ali was her father-in-law, they were medically examined on the same day, that recoveries were not blood-stained, that according to Farzand Ali D.S.P. C.W.1, Umar Hayat convicted accused and Rashid acquitted accused were found innocent in this case, that in fact, Kishwar Bibi and Hakim Ali were not produced in this case with ulterior motive, that there is a conflict between ocular account and medical evidence.
7. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that ocular account is corroborated by medical evidence, that time of medical examination coincide with the time of occurrence, that appellants have not denied the motive in this case, that appellant had not produced Hakim Ali and Kishwar Bibi in their defence, that learned Trial Court was right in convicting the appellants. They both support the judgment of learned Trial Court.
8. We have heard learned counsel for the parties at a great length and have also gone through the record with their assistance. Complaint Exh.P.B. Was recorded Muhammad Amir (deceased) himself at Jodh Railway Phathak at 5-25 p.m. On 13-7-1992 about an occurrence which took place according to the prosecution at 4-00 p.m., formal F.I.R. Exh.P.B./1 which was recorded in the Police Station by Muhammad Yasin, S.-I. P.W.3 at 4-45 p.m. According to the prosecution case, Muhammad Riaz accused armed with gun, Muhammad Mushtaq armed with hatchet, Umar Hayat armed with Sota and Rashid was armed with pistol, it was stated in the F.I.R. Lodged by Amir deceased that Riaz fired with his gun which hit on the leg of the deceased. According to the M.L.R., there was no injury with fire-arm on the leg of the deceased, Mushtaq was stated to have caused injury with the blunt side of hatchet on the left thigh of the deceased, Umar Hayat gave injury with Sota on the back of the deceased, thereafter, Rashid fired with his pistol which did not hit the deceased but hit the buffalo, the said buffalo was not medically examined. According to the F.I.R., Boota, Muhammad Mohsin real brothers of the deceased and Sarwar first cousin of the deceased saw the occurrence. In the F.I.R., it was also stated that deceased alongwith Boota were going towards the Police Station when Muhammad Abdullah A.S.I. Met them at Jodh Railway Phatak and recorded the statement of the deceased which is Exh.P.B., in the Karwai Police, it has not been mentioned that any injury statement of the deceased was prepared before sending him* to the office of Surgeon Medico-legal Neela Gumbad, Punjab, Lahore for medical examination, it was the police, who took the deceased in an injured condition to Surgeon Medico-legal Punjab, Lahore for medical examination, neither the Mohsin nor his other brother Boota accompanied him to the hospital, it means that both of them were not present at the spot at the time of occurrence.
According to post-mortem report, the fatal injury on the person of deceased was injury No,1 on the head as stated by Dr. Muhammad Khalid P.W.10, this injury was neither mentioned by the deceased himself in the F.I.R. Nor by Dr. Ehsan Elahi P.W.6, who medically examined the deceased when he was alive, injury No,9, in the post-mortem report was stated to be with sharp-pointed weapon and rest were with blunt weapon. It was stated in the F.I.R., that deceased also received fire-arm injury on his left leg which is not there. We are unable to understand that how the deceased could have given the wrong weapon of offence about the injury on his leg, nobody had used any sharp- pointed weapon during the occurrence while according to Dr. Ehsan Elahi P.W.6 that injury was kept under observation by the doctor and he had stated that he would give the weapon of offence after the receipt of X-Ray Report while the other injuries are with blunt weapons. This doctor has also admitted in his cross-examination, that injured was brought by Ghulam Hussain Constable No,1724, he also admitted in the cross-examination that it was Zulfiqar Constable No,6174 of Police Station City Raiwind, who brought Hakim Ali son of Farzand Ali from same village i.e, Ochey Key Ladhey from where the deceased belonged and he medically examined the said Hakim Ali at 10-45 p.m.
The said doctor also medically examined Kishwar Bibi daughter of Kalay Khan of Ooche Key Ladhey, she was also brought by the said Zulfiqar constable, prosecution did not state anything about these two injured P.Ws.
' It may be noted here, that Mst. Kishwar Bibi is the real sister of Muhammad Sarwar cousin of the deceased and was named as an eye-witness in the F.I.R., but she was not produced by the prosecution best reasons known to them. In our considered opinion, she was not produced by the prosecution for the reasons that actual facts may not come to light because Mst. Kishwar Bibi was married to Qadir son of Hakim Ali, who was also medically examined on the same day as mentioned above. In this regard we would like to mention the answer of question No,8, given . By Muhammad Mushtaq; appellant, which is reproduced below:-- ' Ans. I have been falsely involved in this case, in fact Ghulam Qadir son of Hakam Ali, Caste Bhatti resident of village Uchay Ladhakay, Tehsil and District Lahore is married with Mst. Munawar Bibi, first cousin of Amir deceased and real sister of Muhammad Sarwar and Muhammad Anwar P.Ws., was deserted by the said Ghulam Qadir after having contracted a second marriage. The complainant party had a grudge over it, on the day of occurrence Amir deceased quarrelled with Hakam Ali, father of abovesaid Qadir and his partymen, who forcibly took Amir deceased to their Baithak, where he was given beating and in order to rescue him the complainant party fired at them in which Hakim Ali and Kishwar Bibi received fire-arm injuries. After this occurrence the complainant party due to the intervention of elders of their sister/cousin (Mst. Munawar Bibi) entered into a compromise with Hakim Ali's party and decided not to initiate criminal proceedings against each other and P.Ws. Falsely involved me in this case due to enmity."
' After going through this answer of Muhammad Mushtaq appellant and the defence stated by him before the learned Trial Court, the version mentioned by Mushtaq appellant seems to be more plausible and convincing one. Muhammad Abdullah S.-I./I.O. P.W.11 was also cross-examined in this regard about the injuries on the persons of Mst. Kishwar Bibi and Hakam Ali. At page 75 of the paper book when he was cross-examined about the injuries of Hakam Ali and Mst. Kishwar Bibi, his replies were as follows. For the just decision of the case, we would like to mention following parts of his cross-examination below:-- "When I visited the place of occurrence Hakam and Kishwar Bibi injured did not appear before me there, they, however, appeared before me in the village. It is correct that the occurrence of this case took place in the area of the said village. It is correct that they both appeared before me at the same time. It is correct that both of them had received fire-arm injuries on their person. It is further correct tat I got both of them medically examined through my subordinates. They also got their statements under Section 161, Cr.P.C."
' Another Investigating Officer P.W.12 Muhammad Aslam, S.-I. Also admitted at page 81 of the paper book that police officials got medically examined Mst. Kishwar Bibi and one Hakam Ali of the same village. Injuries of Mst. Kishwar Bibi and Hakam Ali still remain a mystery but if both the versions i.e, of the prosecution and the other given by Muhammad Mushtaq appellant are put in juxtaposition, the story put forward by Muhammad Mushtaq appellant seems to be more plausible and convincing one, ocular account in this case is fully contradicted by medical evidence, Sarwar P.W.
An eye-witness and real brother of Kishwar Bibi mentioned above was not produced and the presumption is had he been produced, he would not have supported the prosecution case because all these questions must have been asked by the learned defence counsel and specially regarding the injuries of Mst. Kishwar Bibi and Hakam Ali, presence of Muhammad Mohsin and Boota P.Ws. Is not established on record. F.I.R. In our opinion was recorded after due deliberation and consultation, even after the fatal injury which the deceased received on his head, he was not in a position to make the statement Exh.P.B., recoveries of weapon of offence are of no consequence being not stained with human blood, evidence of the prosecution is not of such a character or nature which could bring home guilt of the accused rather the defence has been able to shatter the veracity of the prosecution story, the benefit of which has to go to the accused.
Resultantly, while extending the benefit of doubt to the appellants, we acquit them from the charge, set aside the conviction and sentence recorded against them by the learned Trial Court, accepting their appeal. Death sentence of Muhammad Mushtaq is ' not confirmed. Murder Reference to his extent is replied in the negative. Muhammad Mushtaq appellant is in jail, he shall be released forthwith if not required to be detained in any other case. Umar Hayat appellant is on bail, he shall be discharged from his bail bonds.
'Death sentence awarded to Muhammad Mushtaq appellant is not confirmed.