1. ' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,86 of 1999 filed by Muneer Ahmad, Muhammad Ali, Khalid Mehmood, Liaqat, Munir Ahmad alias Bhoori, Shahbaz, Muhammad Ashiq and Shaukat, appellants, who were convicted and sentenced by learned Judge S.T.A. Multan Division, Multan vide his judgment, dated 16-2-1999 as under:
(1) Munir Ahmad, appellant, death on two counts under section 302(b), P.P.C. And to pay compensation of Rs,2,00,000 (two lacs) on two counts, in default six months' R.I. On two counts, seven years' R.I. On four counts and to pay a fine of Rs,10,000 on four counts, in default six months'
2. R.I under sections 324/149, P.P.C. One year's R.I. Under section 148, P.P.C.
(2) Muhammad Ali, Liaqat, Khalid Mahmood, Munir Ahmad alias Bhoori, Muhammad Ashiq, Shahbaz and Shaukat appellants, imprisonment for life on two counts, compensation of Rs, one lac each on two counts, in default six months' R.I. On two counts. Seven years' R.I. And a fine of Rs,10,000 each in default six months' R.I. Each on four counts, one year's R.I. Each under section 148, P.P.C.
3. ' All the sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
4. ' Criminal Appeal No,60 of 2000 filed by Muhammad Jehangir against the acquittal of five respondents namely Mian Khan, Ashraf, Muhammad Ashraf, Abdul Qadir and Nazir Ahmad shall also be disposed of through this single judgment.
5. ' Occurrence in this case had taken place at 3-00 a.m. (night) on 28-10-1994 at a distance of 8-05 k.Ms. From Police Station, Saddar Pakpattan Sharif while the matter was reported to the Police by Muhammad: Jehangir at 5-00 a.m. Early in the morning on the same day and the formal F.I.R.
6. Exh.P.A. Was recorded by S.-I./S.H.O.
7. ' Briefly stated the facts of the case are that on the night between 27/28-10-1994 at about 3-00 a.m.
8. Muhammad Jehangir complainant alongwith his father Bashir Ahmad (deceased), his uncle Muhammad Amir (deceased), Ghulam Abbas, his brother, Muhammad Siddique his grandfather (since dead), Muhammad Anwar and Muhammad Hashim' his uncle were sleeping in respective rooms of their Ihata whereas, Ghulam Farid, an uncle of the complainant, was sleeping outside the room in the Ihata to guard the cattle in the area of Thatha Rahimooka. There was a knock on the door, upon which the complainant and his father got up and opened the door. They saw that Munir Ahmad son of Ghulam Muhammad, Ali, Khalid Mahmood, Mian Khan, Liaqat, Muhammad Yar, Muhammad Munir alias Bhoori, Ashraf and Shahbaz armed with .12 bore guns, Muhammad Ashraf armed with Sota, Muhammad Saeed (absconder) armed with .222 rifle, Abdul Qadir armed with Sota, Muhammad Ashiq, Shaukat and Nazir Ahmad all armed with .12 bore guns were present in front of their door. Munir Ahmad accused raised Lalkara that he would teach them a lesson for not handing over the possession of Ihata to him. The complainant raised alarm whereupon Bashir Ahmad deceased, Amir deceased, Muhammad Abbas, Siddique, Anwar, Ghulam Farid and Hashim Ali P.Ws came out of their rooms and raised hue and `cry. The complainant entreated the accused but Munir Ahmad accused fired shot with his gun which hit Bashir on his thigh and testicles who fell down. Amir stepped, forward, where-upon he was fired at by Munir Ahmad and the shot hit him on his right side of the chest, ribs and right arm who also fell clown. Muhammad Ali alias Mammi fired with his gun which hit Muhammad Hashim on his right shoulder, neck and face. The shot of Liaqat also hit Muhammad Hashim on his left arm, chest and ribs, Khalid Mehmood fired at Muhammad Anwar hitting him on his right arm and chest, who fell down. Munir Ahmad alias Bhoori fired at Muhammad Siddique hitting him on his chest, abdomen and head. Muhammad Ashiq fired at Ghulam Farid on his head whereas the shot of Shahbaz hit Ghulam Farid on his right foot. Shaukat fired at Muhammad Anwar on his left shoulder. Ghulam Qadir caused Sota blows on the right hand whereas Muhammad Ashraf caused Sota blows on the head and face of Muhammad Siddique.
9. The remaining accused fired in the air and raised "Lalkara" that nobody should be let go alive.
10. Ameer and Bashir succumbed to the injuries at the spot. On account of the firing the electric wire caught fire and fell on two buffalos and two goats which also died. On hearing the tiring the other villagers reached the spot and on seeing them the accused left the spot alongwith their weapons in a tractor trolly and a wagon which had been parked there.
11. ' The motive alleged by the complainant was that his father and uncle had purchased three Kanals of land from Nazar Muhammad, the step-brother of Munir Ahmad four years prior to the occurrence where they had constructed residential houses and were residing there, Munir Ahmad claimer' that the land belonged to him and the complainant party should vacate the same. It was further alleged that Nazar Muhammad had mutated the aforesaid piece of land in favour of the complainant party and the Civil Court had also issued a stay order against Munir Ahmad and for this grudge Munir Ahmad hired his co-accused to take forcible possession of the Ihata, and in prosecution of common object, the accused attacked upon the complainant party.
12. ' After registration of the formal F.I.R. Muhammad Rafique, S.H.O. (C.W.1) conducted the investigation, recorded the statement of Muhammad Hashim injured P.W. In Mayo Hospital, Lahore on 2-11-1994, also recorded the statements of Muhammad Siddique, and Muhammad Nawaz on 3- 11-1994 at District Headquarter, Sahiwal, on the same day, he recorded the statement of Ghulam Farid at Qayyum Hospital, Sahiwal, during his investigation 12 accused out of 15 were found innocent, their names were Khalid Mahmood, Mian Khan, Muhammad Yar, Muhammad Ali, Liaqat Ali, Shahbaz, Ashraf, Ashiq, Shaukat Ali, Munir alias Bhoori, Ashraf son of Munir and Abdul Qadir, he found guilty Munir Ahmad, Nazir Ahmad, Saee, Muhammad Younis, Muhammad Nawaz, Khalid, Muhammad Nawaz Awan, Abdul Razzaq, Sabir. Ahmad, Muhammad Hanif, Goga, Mazhar Ali, Yousaf, Shera, Latif and Amin Pehattan, on 31-1-1995 he arrested Munir and Nazir, on 5-2-1995 Munir and Nazir got recovered the weapons of offence, the gun recovered from Munir was unlicensed, a separate case under section 13 of Arms Ordinance was registered on 15-2-1995 he arrested Muhammad Yasin and recovered from him a Sota, the recovery memo. Of Munir was Exh.P.D., whereas, recovery memo. Of Nazir was Exh.P.C., the investigation was then taken over by Israr Khalid, S.H.O. P.W.2, who on 22-7-1996, arrested Hanif, Yousaf, Goga and Mazhar and then he prepared the incomplete challan.
13. ' Being dissatisfied with the investigation, complainant Muhammad Jahangir filed a private complaint against 15 respondents.
14. ' Before proceeding with the case, we may note here that Muhammad Yar son of Muhammad Hanif died during the trial while Muhammad Saee son of Mutali became absconder.
15. ' In all 14 accused namely Munir Ahmad, Muhammad Ali, Khalid Mahmood, Mian Khan, Liaqat, Munir Ahmad alias Bhoori, Ashraf, Shahbaz, Muhammad Ashraf, Abdul Qadir, Muhammad A shiq, Shaukat and Nazir Ahmad were tried by the learned trial Court.
16. ' At the trial, prosecution in order to prove its case produced 8 P.Ws. And 8 C.Ws. Then learned D.D.A.
17. Tendered in evidence reports of the Chemical Examiner Exh. P.K and Exh.P.L, reports of the Serologist Exh.P.M. And Exh.P.M. And report of the Forensic Science Laboratory Exh.P.O. And closed the prosecution case, thereafter; statements of the accused were recorded under section 342, Cr.P.C. In which they denied the prosecution case and claimed innocence. After conclusion of the trial, Mian Khan, Ashraf, Muhammad Ashraf, Abdul Qadir and Nazir Ahmad were acquitted while the remaining 8 accused were convicted and sentenced as stated above.
18. ' Learned counsel for the appellant Munir Ahmad, Mr. Mansoor Alamgir Qazi, Advocate submits that prosecution has failed to prove the motive against the appellants, ocular account is contradicted by medical evidence, to supplement his this argument, learned counsel had taken us through the evidence of doctors, who conducted postmortem examination on the dead bodies of the deceased and medically examined the injured P.Ws., occurrence took place in dark hours of night so it was very difficult , for. The complainant and the P.Ws. To have identified the assailants, the weapons of offence which they were carrying and the injuries caused by them to the deceased and the injured P.Ws. The occurrence having taken place on 28-10-1994, the moon lit was insufficient to recognize the assailants, there was no other source of light because according to statement of Irshad Ahmad who was examined as D.W.1, there was no electricity supply from 1-00 a.m. Till 11-00 a.m on 28-10-1994 while the occurrence took place at 3-00 a.m. During the night between 27/28-10-1994, recovery has been planted upon Munir appellant because the same has been falsified by Muhammad Akram, D.S.P. C.W.5, who stated that the case under section 13 of Arms Ordinance, XX, 1965 was got cancelled, appellant has been involved in this case due to political victimization, in fact some unknown persons have murdered the deceased and the appellant alongwith his co-accused have been roped in falsely and that the occurrence had not taken place in the manner as suggested by the prosecution or the complainant. Further submits that C.W.5 and C.W.6 who are the police officials and in fact were the prosecution witnesses have falsified the prosecution story. Lastly submits that the injuries on the person of both the deceased according to post-mortem examination are with two different weapons and are of different dimensions. Concluding his arguments, learned counsel submits that the prosecution has miserably failed to prove its case against the appellants.
19. ' Mr. Muhammad Yaqoob Kung, learned counsel for the remaining convict/appellants dittoes the arguments addressed by Mr. Mansoor Alamgir Qazi, Advocate.
20. ' On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that the eyewitnesses wete present at the time of occurrence, they being injured witnesses and inmates of the house, their presence cannot be seen with the eye of doubt, there was no political victimization, Ghulam Qasim Bodla, who is a big landlord of the area only accompanied the complainant to get the F.I.R. Registered. The complainant party had no against the appellants to falsely implicate them, ocular account is fully corroborated by medical evidence and the duration given by the doctors between the time of death and the post-mortem coincide with the time of occurrence and that the D.W.1 an official from the WAPDA did not state the true fact before the learned trial Court because the register produced by him was a bogus one and the entry therein was fake.
21. ' We have heard learned counsel for the parties at a great length and have also gone through the record with their assistance. It is not denied that the occurrence took place in dark hours of night, i.e,, at 3-00 a.m. In between the night 27/28th October, 1994. The prosecution has failed to produce any documentary evidence to show that there was any electricity at the time of occurrence. No light has been shown even in the rough site plan prepared by the Investigating Officer who after registration of the case visited the spot. On 27/28th of October, 1994. It was 21st of Jamadi-ul-Awal.
22. It means that there was no sufficient moon lit at the time of :occurrence for identification of the accused. In that dark hour, it was impossible for the complainant and the eye-witnesses to state the role of every accused during the occurrence played by them when the accused were firing indiscriminately. Irshad Ahmad who was examined as D.W.1 being Incharge 132-K.V. Grid Station WAPDA, Pakpattan Sharif stated that on 28-10-1994 at 1-15 a.m. (midnight) the Sutlaj Fidder tripped off and the electricity supply failed and remained failed till 11-00 a.m next morning.
23. ' It is not a matter of principle, that the injured P.Ws. Always speak the truth. In 2/3 investigations out of 15 nominated accused, 12 were found to be innocent. The complainant party in our view had spread the net so wide that all the close relations of Munir Ahmad appellant, who was awarded death sentence have been implicated.
24. ' The motive alleged behind the occurrence was that father and uncle of the complainant had purchased three Kanals of land from Nazar Muhammad, the step-brother of Munir Ahmad, appellant four years prior to the occurrence and had constructed their residential houses. Munir Ahmad asked the complainant party to vacate the said land and a stay order had also been issued against Munir Ahmad. Admittedly, the land which became the cause of the motive was purchased by the complainant party four years prior to the occurrence and they had constructed their residential houses and were residing therein. The prosecution failed to bring on record any evidence to prove that Munir Ahmad had ever objected to sale of the land by his stepbrother or he had filed any suit against the said sale during all these four years. Only one Nazir Ahmad uncle of Jehangir complainant who was neither owner of the land nor had any share filed a suit against Munir Ahmad appellant for permanent injunction. There was no other complaint or any application to any Authority, Tribunal or the Courts filed by Munir ahmad for redressal of his grievances about the purchase of land by the complainant party. In our view a false motive was put up by the complainant in order to build up the prosecution case. There was thus, no motive with Munir Ahmad, appellant to commit the murder of two deceased and cause injuries to the injured P.Ws.
25. ' Now we take up the medical evidence. Dr. Farooq Ahmad, who was examined as P.W.7 had conducted the postmortem examination on the dead bodies of Muhammad Amir and Bashir Ahmad while Dr. Muhammad Younis P.W.8 medically examined the injured P.Ws. At 4-30 a.m on 28- 10-1994. The duration between injuries and examination given by Dr. Younis was about 4 to 6 hours.
26. The doctor in cross-examination stated that according to the duration mentioned by him in M.L.R.
27. The occurrence might have taken place at 10-00 p.m. While according to prosecution, the occurrence took place at 3-00 a.m. He also admitted that possibility cannot be piled out that one and the same kind of weapons was used for causing injuries to the injured P.Ws. And can be result of one shot. Injury No,2 on the person of Ghulam Farid measuring 10 x 4 c.m. With swelling on the back of left shoulder suggest that one of the assailant was also armed with blunt weapon while according to the complainant none of the accused was armed with a blunt weapon.
28. ' Dr. Farooq Ahmad P.W.7 had conducted the post-mortem examination on the dead body of Bashir Ahmad deceased at 1-00 p.m. On 28-10-1994. The duration between the death and the post- mortem was given as about 12 hours. It means that the occurrence had taken place at 1-00 p.m.
29. And not at 3-00 a.m. As alleged by the prosecution. In cross-examination, this witness has admitted that duration between death and examination cannot exceed 12 hours but it can be less than 12 hours by two hours. He further admitted that possibility of the death of Amir deceased could be at 11-00 a.m on 27-10-1994. According to the witness the deceased Amir was lying on his left side in tilted position, so he could have received injury No,1 in that condition and if the deceased was standing then the injury received by him could not have been at him from the front. The doctor also admitted that injuries were caused from some distance, as there was no blackening on the wound, also admitted that possibility of the injuries on the person of Bashir deceased by three different weapons cannot be ruled out. Further admitted that the injuries could not have been caused on the person of Bashir if he was lying on a cot with his face upward and the assailant was on his foot side and such injuries are possible if the assailant was standing at a higher level than the victim by 8 feet. Also admitted that the possibility of death of deceased having taken place at about 11-00 p.m. On 27-10-1994 cannot be ruled out. The doctor further admitted that the dimension of the injuries of Amir and Bashir deceased are different from each other. All this cross- examination and the admissions made by the doctors lead us to the irresistible conclusion that the occurrence had not taken place in the manner and at the time as the prosecution wants us to believe.
30. ' It may be noted here that eight C.Ws. Have appeared before the learned trial Court. Muhammad Rafique, S.H.O. C.W.1 stated in his examination-in-chief that during his investigation 12 accused persons out of 15 were found innocent and his investigation was verified by Muhammad Akram, D.S.P., who was examined as C.W.5, C.W.5 in cross-examination admitted that in the year 1994/1995 there was Government of Pakistan People's Party and Junejo Group, Mian Manzoor Ahmad Wattoo was Chief Minister, Punjab, Mian Saeed Ahmad son of Mian Ali Ahmad, caste Wattoo appeared before him on behalf of the accused party. About 168 persons appeared before him about the innocence of the accused. He also admitted that in this case Qasim Bodla had got implicated his political rivals. Muhammad Nadeem Afzal, S.-I. C.W. 4, who had recorded the F.I.R. Exh. P.A. Admitted that Qasim Bodla was a big landlord of the Illaqa, he was a political figure and took part in the Assembly Election. Also admitted in cross-examination that in Column No,3 of inquest report C.W.4/D and C.W.4/E, the time and date of death was recorded as 3-00 a.m. On 27-10-1994. Further admitted that in Column Nos.23 and 24 of the inquest report, there was no mention of any crime empty and blood-stained earth. Also admitted that no . Source of light was mentioned in the rough sketch of place of occurrence. Exh.C.W.4/A. This witness admitted that Qasim Bodla had accompanied the complainant Jehangir for registration of the case.
31. ' Prosecution case is that F.I.R. Was registered in the Police Station and thereafter, the Investigating Officer inspected the dead bodies where they were lying and prepared inquest report. If the F.I.R.
32. Had already been registered then the number of the F.I.R. Should have been with him and he should have mentioned the same in the inquest report but there is no such mention.
33. ' During the course of investigation, it was found that the recovery of fire-arm on the pointation of Munir Ahmad appellant was found to be false because the case registered under section 13 of Arms Ordinance, XX, 1965, was got cancelled. This falsifies the recovery of weapon on the alleged pointation of Munir Ahmad appellant.
34. ' In our view, one version was put forward by the complainant and the other was introduced by the appellants, if both the versions are put in juxtaposition the version of the defence which is supported by the Investigating Officers, who appeared as C.Ws., statement of one D.W. And the medical evidence furnished by P.W.7 and P.W.8, appears to be more plausible and nearer to the truth as compared to the prosecution story which seems to be unreasonable and improbable.
35. ' So far as, contention raised by learned counsel for the complainant that due to indiscriminate firing of the assailants the electric wires broke and fell on the two buffaloes due to whick they were killed, is of no avail to the prosecution because according to D.W.1 from 1-00 a.m. (mid-night) till 11- 00 a.m on 28-10-1994, there was no electricity in the Mauza where the occurrence had taken place at 3-00 a.m. (mid-night) as alleged by the prosecution.
36. ' It is noteworthy that the Investigating Officers were the functionaries of the State and were the prosecution witnesses. Though the opinion of the Investigating Officer is not binding on the Courts but in the peculiar facts and circumstances of this case, their opinion is of relevance.
37. ' In a case of capital punishment, the evidence must have come from an impeachable source which as discussed above is lacking in the instant case. Reliance can be placed on 1999 SCM R 1030.
38. ' For all that has been stated above, we are fully convinced that the prosecution story is full of doubts, the defence has been able to create dents in the prosecution story through material contradictions between the ocular account and the medical evidence, failure to prove the motive on the part of the prosecution and the recovery of the fire-arm on the pointation of Munir Ahmad appellant having been found to be bogus because the case under the Arms Ordinance was got cancelled, so, the benefit of doubt has to be granted to the accused not as a grace but as a matter of right. Resultantly, Criminal Appeal No,86 of 1999 filed by the convict appellants is accepted, conviction and sentence recorded against them are set aside, they are acquitted from the charge and shall be released forthwith if not required to be detained in any other case. Death sentence of Munir Ahmad, appellant is not confirmed.
39. ' So far as, Criminal Appeal No,60 of 2000 filed by complainant against the acquittal of five respondents is concerned, that is dismissed for the reasons enumerated above.
40. ' Death sentence of Munir Ahmad, appellant is not confirmed.