' This appeal has been directed against the judgment passed by Mr. Rustam Ali Malik, learned Additional Sessions Judge, Lahore, whereby on 10-8-1989 he convicted the appellant under section 302, P.P.C. And sentenced him to life imprisonment with a fine of Rs,10,000 and in case of default in payment of fine he has to further undergo R.I. For one year. It has also been directed by the learned trial Court that fine if recovered half of the same shall be paid to the legal heirs of the deceased as compensation. The appellant has further been convicted under section 324, P.P.C. And has been sentenced to one year's R.I. On the allegation of causing injuries to Karamat P.W.9. Both the sentences shall run concurrently. Benefit of section 382-B, Cr.P.C. Has been given to the appellant.
Muhammad Azeem co-accused has been acquitted giving the benefit of doubt. Mst. Nighat Tiwana daughter of the deceased could not be tried as she was murdered before the trial by unknown persons who could not be traced out during the investigation.
2. The occurrence in this case took place on 13-2-1987 at 8-15 p.m. Outside Bungalow No,171, Street No,4, Officers Colony, Lahore Cantt. Which was owned by Major (Rtd.) Allah Bakhsh deceased and the occurrence took place near the Main Gate of the said house. Arshad Farooq P.W.9 son of the deceased got recorded the statement Exh.P.A. Before Meraj Khalid, Inspector P.W.15 on the same night at 8-40 p.m. At the place of occurrence, on the basis of which formal F.I.R. Exh.P.A./1 was recorded by Mian Khan, A.S.-I. P.W.1 at Police Station South Cantt.
3. The brief facts of the case as recorded in the F.I.R. Exh.P.A./1 by Arshad Farooq Tiwana complainant P.W.9 are that on 13-2-1987 at about 8-15 p.m. He was present in his house when the servant Azim came inside and told his father Major (Rtd.) Allah Bakhsh that Col. Mumtaz had come outside the gate and he was in a hurry and wanted to see him. Thereupon, his father went to the main gate, where there was sufficient electric light and the complainant followed him. A white coloured car was parked near the main gate. As soon as his father reached near the car two persons were found sitting in the car and a man sitting in the rear seat of the car fired a brust with an automatic weapon at his father who got injured and fell down. The accused fired more shots, as a result of which the screens of the car parked inside the house were broken and a bullet also hit the window pane of the drawing room. The complainant, their Servant Azim and Karamat, orderly, got frightened and laid down in order to save themselves. But in spite of it a shot hit the left hand of Karamat, orderly. His father received injuries on his head, face and abdomen. He was taken to C.M.H. In a car by the complainant, Akhtar and Muhammad Nawaz. The accused fled away in the car. But the complainant could identify them. His father succumbed to the injuries while on the way to the hospital. Karamat orderly was also admitted in the C.M.H. In the F.I.R. It was further stated that for the last 1-1/2 or 2 years Gul Muhammad son of Muhammad Khan and Sher Ahmad son of Gul Muhammad, residents of Chak No,80- South Police Station, Bhagtanwala, District Sargodha had been having enmity with the deceased and the deceased had also got a case registered against them and the police had conducted the raid to arrest them. Incidentally on the said day there was the marriage ceremony of the aforesaid Gul Muhammad due to which he was very much aggrieved and he had threatened the deceased to kill him. The complainant alleged that his father had been murdered at the instance and abetment of Gul Muhammad and his son Sher Ahmad.
The occurrence was also witnessed by Muhammad Nawaz P.W. Son of Khuda Bakhsh.
4. The prosecution in order to prove the guilt of the appellant and his co-accused produced sixteen witnesses. The post-mortem examination was conducted by Dr. Rizwan Mahmood P.W.4 who found 21 injuries on the person of the deceased with fire-arm except injuries Nos.1 and 2, which were caused by blunt weapon. In his opinion injuries Nos.5(a), 5(b), 6(a) and 6(b) on the head and Injury No,17 on the abdomen were individually sufficient to cause death. P.W.6 Dr. Kaukab Akbar had medically examined Karamat Khan P.W.8, the only injured witness in the occurrence. The ocular account has been produced through statements of P.W.8 Karamat Khan and Arshad Farooq P.W.9.
The other statements though are important but had not been believed by the learned trial Court hence there is no need to discuss the same. The appellant in his statement under section 342, Cr.P.C. Has denied the allegations and has given a written statement in which he has stated that he has family relations with Amjad Noon son-in-law of the deceased and brother-in-law of P.W.9 Arshad Farooq and he was a member of the family of the deceased in the inner circles. He read the news of murder of Mehr Allah Bakhsh deceased in the newspaper on the next day of the occurrence that he was strolling in the lawn and some Unknown persons had murdered him, therefore, had gone to the house of Major Allah Bakhsh and came to know that the case has been registered against Gul Muhammad and his son Sher Muhammad who were completely innocent and he opposed their involvement in this case and told the complainant that it will not only be illegal to involve Gul Muhammad and Sher Muhammad but it will be immoral to implicate them as accused persons rather it will save the real culprits on which Khalid Lali disagreed with the appellant and became annoyed. He has further stated that due to the attitude of Khalid Lali, another son-in-law of the deceased, he felt that he not only knew the real culprits but was himself involved in this case. This doubt of the appellant was conveyed to the family members. The police took the appellant, according to him, on the night 5/6-3-1987 and kept him in illegal custody but the relatives of the appellant got registered F.I.R. No,130 on 6-3-1987 against the police on which he was given severe beating and was pressurized to get the case withdrawn by his relatives got registered against the police and the police in order to save their skin had introduced the appellant as an accused person and produced him on 12-3-1987 before the Ilaqa Magistrate. An application for the medical examination was moved and the doctor found number of injuries on his person.
The duration of the injuries was within tne period in which the appellant was in the custody of the police. In order to create an evidence against the appellant, Muhammad Azeem co-accused was produced before the Magistrate and his statement under section 164, Cr.P.C. Under coercion was got recorded. It is further stated by the appellant that he had no relations with Mst. Nighat and the motive alleged is incorrect. However, he has stated that Karamat P.W.8 even had not seen the house of Major Allah Bakhsh who has been shown as eye-witness. The learned trial Judge after hearing the arguments of both the parties has passed the abovesaid judgment which has been impugned in this appeal.
5. Learned counsel for the appellant has contended that admittedly the name of the appellant does not figure in the F.I.R. It is also contended that even the description of the culprit sitting on the rear seat of the car and fired allegedly at the deceased has not been given. The witnesses claim that they did not know the appellant before the occurrence. Admittedly no identification parade has been held in this case hence identification of the appellant as an accused is without any force and reasoning. It is further contended that P.W.9. Arshad Farooq has concealed the true facts and has been found contradictory on material points in his statements made before the police under section 154; Cr.P.C. And the statement made in the Court. It is further contended that from a bare perusal of the statements of the witnesses it has become crystal clear that the witnesses are not truthful witnesses and they are concealing the true facts and were bent upon to involve the appellant in this case. It is also contended that P.W.8 Karamat Khan who claims that he was injured during the occurrence but his statement was not recorded under section 161, Cr.P.C. By the Police for about two months, which is liable to be brushed aside on this score alone. It is also contended that P.W.8 Karamat Khan has failed to show any business at the place and time of occurrence hence his presence at the spot is not proved. Learned counsel for the appellant contends that there is no corroborative piece of evidence to support the ocular account which itself is not sufficient to connect the appellant with the commission of the crime. Learned counsel for the appellant also contends that the extra-judicial confession has been disbelieved by the learned trial Court. Mir Baz P.W.14 who has told the complainant about the involvement of the appellant in this case and has also stated about the motive to kill the deceased by the appellant has been disbelieved by the learned trial Court. It is also contended that the medical evidence is in conflict with the ocular account as according to the doctor two types of fire-arm weapons, rifle and 12 bore gun have been used during the occurrence and blunt weapon injuries had also been found on the person of the deceased hence the medical evidence does not support the ocular account that only one person fired at the deceased and only one weapon has been used during the occurrence.
It is also contended that the conduct of the complainant cannot be ignored who got registered a case for the murder of Mst. Nighat against one of the P.Ws. Of this case which was subsequently found false and P.W. Was acquitted from the charge. It is also contended that nothing was recovered from the appellant and it is a case of insufficient evidence and the learned trial Court has passed the judgment on conjectures and surmises which is not supported by the evidence on the record. The said judgment is liable to be set aside and the appeal merits acceptance and the appellant entitles acquittal.
6. On the other hand learned counsel for the State has opposed the appeal on the ground that the judgment of the learned trial Court is based on, reasonings and is supported by, the evidence on the record. Both the witnesses have no enmity or grudge to falsely implicate the appellant in this case. The recovery of empties from the spot also supports the ocular account and the prosecution has succeeded in making out a case against the appellant hence the conviction may be maintained by dismissing this appeal in hand.
7. I have heard the learned counsel for the parties and also perused the record carefully. The learned trial Court has not relied upon the statement of P.W.11 Muhammad Khalid who claims that extra-judicial confession was made before him. The learned trial Court has held that it is not safe to rely upon the statement of Muhammad Khalid P.W.11 regarding the relations between Mst. Nighat sister of the complainant and Raja Amjad Sultan appellant. The learned trial Court has also not relied upon the confessional statement of Azeem co-accused and has held that the statement was not made independently and without duress. It has further been held that confessional statement made by the co-accused involving the appellant was subsequently reiterated by him hence cannot be given any weight. The statement of Muhammad Khalid and the confessional statement of Azeem were introduced in order to prove the motive part against the appellant hence the learned trial Court held that the motive against the appellant is not proved. Similarly the other statement of P.W.14 Mir Baz who has told the complainant about the involvement of the appellant in this case has also not been believed by the learned trial Court has been excluded on the sound reasonings hence the main source of information about the involvement of the appellant in this case has not been relied" upon by the trial Court. The only evidence against the appellant is the ocular account consisting of Karamat Khan injured P.W.8 and Arshad Farooq complainant P.W.9.
Arshad Farooq P.W.9 got recorded the F.I.R. Immediately after the occurrence without naming any person as an accused person, who fired at the deceased, but he stated that some unknown persons have committed the offence and one fired at the deceased who was sitting on the rear seat of the car. He did not give the description or details of the person who has committed this offence. He did not disclose in the F.I.R. That P.W.14 Mir Baz was also present at the time of occurrence and claimed subsequently that Mir Baz was present at the spot and he has told that the appellant who was known to him had committed this occurrence. Mir Baz who was not named as an eye-witness in the occurrence had not gone to the hospital with the deceased and the complainant after the occurrence. Similarly in the site plan neither the Investigating Officer nor the Draftsman has shown his presence at any place. This fact of introduction of Mir Baz as present at the time of occurrence has been subsequently introduced in order to make him a witness against the appellant which has rightly been disbelieved by the trial Court. The complainant P.W.9 Arshad Farooq who is the son of the deceased cannot be held as an independent, impartial and truthful witness as he himself to a question by the learned counsel for the appellant has replied that the naming of Gul Muhammad and his son Sher Muhammad being responsible for the commission of murder of his father due to his enmity with them was misled by his sister Mst. Nighat. The reply of the complainant P.W.9 is reproduced as under:- "It is correct that in my statement Exh.P.A. I had mentioned before the police that for the last one and a half or two years my father was having enmity with Gul Muhammad and Sher Ahmad.
Volunteered that I had been misled by my sister Nighat at that time. About two weeks after the occurrence I had told the police that I had been misled by my sister Nighat at that time that my father was having enmity with Gul Muhammad and Sher Ahmad. When my statement Exh.P.A. Was recorded by the police my sister Nighat was also present and was also providing the necessary information. Before I made statement Exh.P.A. Before the police my sister Nighat had told me the names of Gul Muhammad and Sher Ahmad and had asked me to name them in the F.I.R. She had told me to make the statement mentioning their names while she was present in T.V. Lounge of our house."
' This witness has also quoted the name of Mir Baz his uncle as an eyewitness in his statement before the trial Court but the fact of non-mentioning of the same in the F.I.R. Was admitted by him in the cross-examination. This witness also admitted that he did not know the name of the appellant before the occurrence and he did not give the feature or description of the accused sitting on the rear seal of the car who fired at the deceased. He has also tried to conceal certain facts during his statement. He admitted that Khalid Lali P.W. Was nominated as accused when his sister Nighat was subsequently murdered and he became the complainant. Khalid Lali is the husband of the sister of the complainant. He also admitted that one of his sisters is married with Amjad Noon P.W. And he attended the marriage of his sister and in a question whether the appellant who claims that he was friend of Amjad Noon and had also family relations with him attended the marriage ceremony of Amjad Noon and was his "Shahbala". Similarly he could not deny that in most of the photographs of marriage ceremony of his sister with Amjad Noon the appellant is seen as a person who attended the marriage ceremony. This fact has not been clearly denied by the complainant. Hence the complainant due to other so many reasons has failed to show that how he came to know about the involvement of the appellant in this case. On the other hand he asserted that the appellant was known to him previously hence his name was not mentioned in the F.I.R. But he could not deny the factum of attending of the marriage ceremony of his sister by the appellant as an active participant of the same. He claims that the appellant was not known to him before the occurrence. The police did not arrange for any identification parade for the identification of the appellant in the case. The introduction of the appellant has been made due to some supplementary statement which was not found in the case diary by the learned trial Court. The contradiction has been found in the statement of the complainant made under section 154, Cr.P.C. And the statement made in the trial Court which are on the material points and cannot be taken lightly hence it is not safe to rely upon the statement of P.W.9 who himself claims that he was misled by his sister Mst. Nighat and had nominated Gul Muhammad and Sher Ahmad as the persons responsible for the commission of the crime. It is also worthmentioning that P.W.9 got registered a case against one of the prosecution witnesses namely Khalid Lali for the murder of his sister Nighat in which Khalid Lali was acquitted and the statement of the complainant was not relied upon. The complainant has not made the statement at his own under section 154, Cr.P.C. But has made the statement on the instructions and directions of the others. No sanctity can be attached to the statement of the complainant under section 154, Cr.P.C. The conduct of the complainant is also sufficient to hold that he is not a truthful witness and cannot be relied upon for the conviction of an accused person in a case involving the punishment of capital charge. The remaining witness against the appellant is P.W.8 Karamat Khan who claims that he received the injuries during the occurrence is also not worthy of credence in spite of the fact that he is not related to any of the parties. In spite of that he was injured at the spot on the day of occurrence and he was taken to C.M.H. For medical examination where he remained for some period but his statement was not recorded by the police under section 161, Cr.P.C. For about two months. He has also mentioned the name of the appellant as an accused person and claimed that he knew the appellant before the occurrence. He is not a truthful witness. He claimed that he is an orderly of son-in-law of the deceased and was living with the deceased in the days of occurrence. According to this witness son-in-law of the deceased was in the Army but he did not know his name. The official with whom he was serving the name of that officer is not known to him but the name of the appellant who was accused was known to him neither he was related to the accused/appellant nor he had shown any connection with him which resulted in the introduction of the appellant with him. This witness has falsely stated so and could not explain his presence at the spot sufficiently.
He also could not explain why his statement under section 161, Cr.P.C. Could not be recorded for two months. The Investigating Officer has waited for before the recording of his statement to show him that he knew the real culprits and has named him. He is also confronted with his earlier statement on material points. The nature of injuries received by him has not been opined by the concerned doctor with certainty that this injury has been received or caused by a fire-arm. He has also. Stated that he had seen the occurrence in a moonlight. Had the occurrence taken place at the Gate in the light of bulb there was no need to say that he had seen the occurrence in the moonlight. Karamat Khan P.W.8 who is not related to the deceased and had no motive to falsely implicate the appellant in this case cannot even in these circumstances be relied upon because a bare perusal of his statement shows that he is concealing the true facts and is a liar. Admittedly he is employee in the Army and had come to the house of the deceased just 2/3 days ago, how he had come to know about the name of the appellant when the real son of the deceased (complainant) claimed that he did not know the appellant before the occurrence. It has become crystal clear that this witness is concealing the true facts and is making a false statement and cannot be relied upon. Even otherwise medical evidence is in contradiction with the ocular account on the ground that the doctor who conducted the post-mortem has clearly mentioned that Injuries Nos.1 and 2 were caused by blunt weapon while the other injuries have been caused by fire-arm weapons that is rifle and gun etc. As the bullet injuries were also found on the person of the deceased and pellets were also recovered. Hence the claim of the complainant and the eye-witnesses that the appellant has fired at the deceased with the weapon and he died at the spot is falsified by the medical evidence as it has been proved that three types of weapons were used. In the absence of any motive the contradictory statements of the eye-witnesses, the contradiction between the medical evidence and the ocular account, the prosecution evidence cannot be believed. On the other hand the appellant has made a statement that he was arrested by the police few days before his arrest was actually shown by the police and a case was got registered by the relatives of the appellant and then the police decided to involve the appellant in this case falsely and started collecting the evidence against the appellant and the Investigating Officer P.W.15 has admitted that when the appellant was arrested he was not injured, but when he was produced before the Magistrate for his remand an application was moved in which it was alleged that the appellant had been given severe beating by the police and the medical examination was ordered to be conducted on the direction of the Magistrate and the appellant was medically examined by P.W.13 who found six injuries on his person and duration of the injuries was the same which is within the period of illegal detention as claimed by the appellant. The conduct of the Investigating Officer in this case is not F above board. He has admitted that he had not investigated that how the deceased received the injuries caused by three types of weapons. He has also tried to conceal the examination of the appellant by Dr. Qamar-udDin P.W.13 on the direction of the Magistrate and the receiving of the injuries by him during his arrest in this case. The mala fides on the part of the police cannot be ruled out.
8. In nutshell the prosecution has not succeeded in proving the case against the appellant beyond any reasonable doubt. The prosecution has failed to stand on its own legs. The judgment, dated 10- 8-1989 passed by the learned Additional Sessions Judge, Lahore, is set aside and the appellant is acquitted from the charges by extending benefit of doubt in his favour. He is on bail hence the bail bonds submitted by him are discharged.