' This judgment will dispose of Criminal Appeal No,1139 of 2000 filed by Khuda Bukhsh and Muhammad Feroze, appellants who were convicted under sections 311/34, P.P.C. And sentenced to 14 years' R.I.. And to pay Diyat amount of Rs,2,51,625.04 with the benefit of section 382-B, Cr.P.C. By the learned Sessions Judge, Khushab vide judgment dated 15-7-2000 Criminal Revision No,554 of 2000 filed by Muhammad Azam, complainant shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place at 1-00 a.m.(mid-night) on 30-8-1999 at a distance of 15 kilometers from Police Station Gunjial, District Khushab while the matter was reported to the Police at 2.00 a.m. The same day and the formal F.I.R. Exh.PJ was recorded by Naveed Murtaza S.I./S.H.O. On the same day.
3. ' Briefly stated the facts of the case are that Muhammad Azam, the complainant is resident of village Okhli Mohla and is cultivator. On the night of occurrence, that is, 30-8-1999, the complainant along with his brother Allah Bukhsh (deceased) Ghulam Dastgir, his nephew and Muhammad Mumtaz were sleeping on the roof top of their Dara after having forgotten to close the door of the stairs. On hearing the noise of footsteps at about 1.00 a.m. (mid-night) when the electric bulb was on and the night was moon-lit, Khuda Bukhsh, Muhammad Feroze and one unknown person, all armed with .12 bore guns came there. On reaching there, Muhammad Feroze raised Lalkara that if anybody tried to move, he would be finished. In the meantime, Khuda Bukhsh opened fire with his gun which hit Allah Bukhsh at his left temporal bone. The second fire made by Muhammad Feroze landed on the left hand of Allah Bukhsh and then the unknown accused opened fire hitting on the back side of Allah Bukhsh. Some pellets also hit various parts of body of 'Allah Bukhsh. Allegedly, the unknown person took .30 bore licensed pistol along with shirt of the deceased. All the accused then came down from the top of the room and boarded in a car. Allah Bukhsh succumbed to his injuries at the spot.
4. After registration of the formal F.I.R., Naveed Murtaza S.I./S.H.O. P.W.12 went to the place of occurrence, prepared injury statement Exh.PF; inquest report Exh.PG in respect of dead bode of the deceased; took into possession the bloodstained earth vide memo. Exh.PK, recorded the statements of the P.Ws.; got prepared site plans from the draftsman; on 19-9-1999, both the accused, namely, Khuda Bukhsh and Muhammad Feroze were arrested; third unknown accused was stated to be Zulifqar who could not be arrested and after completion of remaining formal investigation, both the accused were challaned to face the trial.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.P0, report of the Serologist Exh.PP and closed the prosecution case, thereafter, statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence and false implication, however, after conclusion of the trial, the accused were convicted and sentenced as stated above.
5. Learned counsel for the appellants after having read the entire prosecution evidence and other material available on record submits that the occurrence having taken place at mid-night, it was an eye-witnesses occurrence; both the eye-witnesses namely Muhammad Azam and Ghulam Dastgir were married persons having their families in the same village so there was no fun in their sleeping at the Dera of Allah Bukhsh where the deceased was murdered specially when he was issue-less; there was civil as well as criminal litigation; going 'on between the parties and they were inimical towards each other, there was no enmity with the deceased but in fact was between appellants and P.Ws. Muhammad Azam and Ghulam Dastgir, Feroze appellant was real father of Ghulam Dastgir and litigation was going on between them after the death of mother of Dastgir and wife of Feroze who died 7/8 years prior to the occurrence; Allah Yar, real brother of the complainant appeared as D.W..2 who has already waived his right of Qisas; according to this D.W., the murders were not the appellants but someone else; Zulifqar the unknown accused is still at large; he had taken away along with him the shirt and pistol of the deceased; Zulifqar was servant of the deceased and he in order to deprive the deceased from the amount which was lying in his shirt, also took away the shirt; both the P.Ws. We're having licensed fire-arms with them but they did not use the same at the time of occurrence to save the life of the deceased; no weapon of offence was recovered from the appellants; the story of raising Lalkara at 1-00 mid-night does not appeal to reason because that would amount to make the people residing in the surrounding area alert that something was going to happen, the appellants were found innocent and this fact was admitted, by the Investigating Officer when he stated that at least about 65 persons appeared before 'him to prove the innocence of the appellants; the appellants got an order for transfer of the investigation but the complainant by exerting influence got the challan submitted hurriedly; appellant Feroze a known patient of diabetic and in this regard he has produced Dr. Muhammad Iftikhar as P.W.1 and that in nutshell the prosecution has miserably failed to prove its case against the appellants and the appellants are entitled to acquittal.
7. On the other hand, learned counsel for the State supports the judgment of the trial Court and submits that prosecution has been successful in proving its case against the appellants to its hilt.
He had also made reference to para.14 of the judgment of the trial Court.
8. I have heard learned counsel for the parties and have gone through the record. In the instant case, the occurrence had taken place at 1-00 a.m. Mid-night on 30-8-1999 and the matter was reported to the Police at 2-30 a.m. The same day. It is an unfortunate occurrence in which one of the eye-witnesses namely Ghulam Dastgir is son of Feroze appellant and he had appeared against his own father before the trial Court. The mother and wife of Ghulam Dastgir and Feroze had died 7/8 years prior to the occurrence and then the litigation started. Both the eye-witnesses namely Muhammad Azam and Ghulam Dastgir are landlords and have got their families so there was no 'fun of their sleeping at the Dera of the deceased who was issue less. It has also come on record that the P.Ws. Namely Muhammad Azam and Ghulam Dastgir were having 7/8 with them licensed fire-arms but they did not use the same at the time of occurrence to save the life of the deceased.
Had they been present at the spot, they must have used the same to save the life of the deceased.
During the course of investigation, nothing' incriminating was recovered from the appellants. The Investigating Officer had admitted during the trial that 65 persons had appeared to support the plea of innocence of the appellant. The first version of the appellants was also of innocence.
Muhammad Feroze, appellant was patient of difference diseases. In this regard, he had produced Dr. Muhammad Iftikhar as D.W..1. Allah Yar who is real brother of the deceased had waived his right of Qisas. According to his version, assailants of the deceased were someone else and not the appellants. Unknown accused mentioned in the F.I.R. Was Zulifqar who is PO who in order to deprive the deceased from huge amount lying in his shirt also took away the shirt of the deceased. The medical evidence in this case cannot be held to be a corroborative piece of evidence for the reason that it only speaks of injuries and the weapon used in the occurrence but cannot tell as to who was responsible for causing these injuries. Corroboration can be sought from the recovery of weapon of offence at the instance of the appellants and the crime empties recovered from the spot but that is none in this case. No independent person has been either cited or produced by the prosecution. The witness produced by the prosecution are interested rather inimical towards the appellants . To award or maintain conviction on a capital charge evidence must be of such a nature that the Court could reach to the only conclusion that the persons challaned were the actual culprits. If the evidence brought on record by the prosecution is analyzed on the principles laid down for dispensation of criminal justice -by the superior Courts no case is made out against the appellants.
9. After hearing the submissions made by learned counsel for the parties, evidence brought on record by the prosecution as well as the defence, I am of the considered view that- the prosecution has not been able to prove its case against the appellants beyond any shadow of doubt rather the case is pregnant with doubts, the benefit of which has to be extended ungrudgingly not as a matter or grace but as a matter of right. By extending the benefit of doubt, I accept this appeal and set aside the conviction and sentence recorded against the appellants by the learned trial Court.
Both the appellants are in jail and shall be released forthwith, if not required to be detained in any other case.