' ASIF SAEED KHAN KHOSA, J.--- Masood Aslam alias Shada appellant was convicted for an offence under sections 302/34, P.P.C. Vide judgment dated 25-9-1999 rendered by the learned Judge, Anti- Terrorism Court No,1, Multan and was sentenced to death by way of Ta'zir and to pay a sum of Rs,1,00,000 to the heirs of Muhammad Sadiq deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months.
Masood Aslam alias Shada appellant was also convicted for an offence under section 337-A(i), P.P.C. For causing injuries to Noor Muhammad (P.W.7) and was sentenced to rigorous imprisonment for two years and to pay Daman. Through the same judgment Muhammad Akhtar alias Nai co- accused was also convicted for an offence under section 302/34, P.P.C. And was sentenced to imprisonment for life and to pay a sum of Rs,50,000 to the heirs of Muhammad Sadiq deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months. Through the same judgment another accused person namely Muhammad Ashad alias Jinn was acquitted by the learned trial Court. Masood Aslam alias Shada convict has challenged his convictions and sentences before this Court through Criminal Appeal No,48 of 1999 whereas Muhammad Akhtar alias Nai convict has challenged his conviction and sentence before this Court through 'Criminal Appeal No,49/1999. The acquittal of Muhammad Arshad alias Jinn accused by the learned trial Court has not been challenged before this Court either by the State or by the complainant. We have beard both the abovementioned appeals together and we proposed to decide the same through the present consolidated judgment.
2 . The prosecution's case unfolded in the F.I.R. Was that at about 3-00 p.m. On 10-2-1997 Mushtaq Ahmad A.S.-I.(P.W.6) had gone to Chak No,140/10-R within the area of Police Station Jahanian, District Khanewal in the company of Muhammad Sadiq, F.C. So as to effect the arrest of Masood Aslam alias Shada appellant in connection with case F.I.R. No,68 of 1997 registered at the abovementioned police station and upon reaching the said Chak Mushtaq Ahmad, A.S.-I. Met Noor Muhammad (P.W.7), a Police Razakar, and the latter informed him that Masood Aslam alias Shada appellant as well as his , companions Muhammad Akhtar alias Nai appellant and Muhammad Arshad alias Jinn accused had .Entered a garden adjacent to the said Chak a short while ago.
Upon receipt of that information Mushtaq Ahmad, A.S.-I., Muhammad Sadiq, F.C. And the abovementioned Noor Muhammad entered the said garden and separately embarked upon search of Masood Aslam alias Shada appellant. Soon thereafter Mushtaq Ahmad, A.S.-I. Heard hue and cry of Muhammad Sadiq, F.C. Whereupon he went towards him and saw Masood Aslam alias Shada appellant firing two shots from his pistol upon Muhammad Sadiq, F.C. Which hit him on his right shoulder and left side of chest. He also saw Muhammad Akhtar alias Nai appellant firing a shot from his pistol at Muhammad Sadiq, F.C. Which hit him above his hip-joint. Upon receipt of those injuries Muhammad Sadiq, F.C. Fell down and in his fallen condition Masood Aslam alias Shada appellant snatched away Muhammad Sadiq, F.C's. Belt and .30 bore pistol. Upon witnessing that incident Mushtaq Ahmad, A.S.-I. Resorted to aerial firing and the culprits then decamped from the spot with Muhammad Sadiq, F.C.'s belt and his licensed pistol after taking out an amount of money from the front pocket of Muhammad Sadiq, F.C.'s jersey. Mushtaq Ahmad, A.S.-I. Then arranged for transportation of the injured persons to the hospital at Jahanian. Upon receipt of an information about that occurrence Nawaz Ahmad, Inspector/S.H.O. (P.W.12) reached the place of occurrence and recorded the statement of Mushtaq Ahmad, A.S.-I. On the basis of which formal F.1.R. No,69 was subsequently recorded at 3-30 p.m. On the same day at Police Station Jahanian, District Khanewal for offences under sections 392/324/353/186/34, P.P.C. Subsequently upon the death of Muhammad Sadiq, F.C. Section 302, P.P.C. Was added to the F.I.R.
3 . While present at the place of occurrence Nawaz Ahmad, Inspector/S.H.O. (P.W.12) inspected the spot took into possession the blood-stained earth and five crime-empties and prepared a rough site-plan of the place of occurrence. He then proceeded to the hospital whereat he secured the blood-stained clothes of Muhammad Sadiq, F.C. As well as a copy of the licence of his pistol. A blood-stained shirt belonging to Noor Muhammad (P.W.7) was also secured by him at the hospital.
Upon the death of Muhammad Sadiq, F.C. On 13-2-1997 Nawaz Ahmad, Inspector/S.H.O. (P.W.12) prepared an inquest report and an injury statement and sent his dead body to the mortuary for autopsy. On 18-2-1997 he arrested Muhammad Arshad alias Jinn accused and recovered a pistol from his possession. Masood Aslam alias Shada and Muhammad Akhtar alias Nai appellants were arrested by him on 3-3-1997. On 7-3-1997 Masood Aslam alias Shada appellant led to the recovery of a pistol and three live cartridges. Subsequently the said Investigating Officer was transferred and the investigation of this case was then taken over by Muhammad Amin, S.-I. (P.W.9). On 13-3-1997 Masood Aslam alias Shada appellant again led to the recovery of another pistol (allegedly belonging to Muhammad Sadiq, F.C. Deceased) and also a belt belonging to the deceased. On the same day Muhammad Akhtar alias Nai appellant also led to the recovery of a pistol and two live bullets which were recovered and secured by Muhammad Amin, S.-I. (P.W.9). On 16-3-1997 Masood Aslam alias Shada appellant led to the recovery of Rs,6,000 belonging to the deceased and the said amount was secured by the abovementioned Investigating Officer. Still later the investigation of this case was entrusted to Manzoor Ahmad, Inspector (P.W.13) who recorded the statements of some witnesses and got a formal site-plan of the place of occurrence prepared by a Patwari.
4. On 10-2-1997 Dr. Allah Bukhsh Maitla (P.W.14) medically examined Muhammad Sadiq, F.C.
Deceased when he was still alive and found four lacerated wounds on his person caused by a fire- arm within a duration of about one hour. On the same day the said Doctor had also medically examined Noor Muhammad (P.W.7) and had found four injuries on his person out of which injury No,1 was caused by sharp-edged weapon while the remaining injuries were caused by a blunt weapon. All the said injuries had been caused within a duration of about one hour. After the death of Muhammad Sadiq, F.C. On 13-2-1997 postmortem examination of his dead body was conducted by Dr. Ghayasud-Din Khawaja (P.W.10) on 14-2-1997. In the opinion of the said Doctor the injuries sustained by the deceased bad been caused by a Sua as all the injuries were in the shape of penetrating wounds.
5. Upon completion of investigation a challan was submitted before the learned trial Court which on 29-10-1997 framed a charge against the present appellants and their co-accused with nine heads under sections 186/34, 353/34, 324/34, 337-A(ii)/34, 302/34, 337-A(ii), 392/34, 411, and 412, P.P.C. The appellants and their co-accused pleaded not guilty to the charge and claimed a trial.
6. During the trial the prosecution produced as many as fourteen witnesses in support of its case against the appellants and their co-accused. Mushtaq Ahmad, A.S.-I. Complainant (P.W.6) and Noor Muhammad (P.W.7) furnished the ocular account of the incident in question. Dr. Ghayas-ud- Din Khawaja (P.W.10) and Dr. Allah Bukhsh Maitla (P.W.14) provided the medical evidence. Mukhtar Ahmad, F.C. (P.W.2), Abid Hussain, F.C. (P.W.5) and Ramzan Younis (P.W.8) deposed about the recoveries effected during the investigation of this case. Nawaz Ahmad, Inspector/S.H.O. (P.W.12), Manzoor Ahmad, Inspector (P.W.13) and Muhammad Amin, S.-I. (P.W.9) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
7. In their statements recorded under section 342, Cr.P.C. The appellants and their co-accused denied and controverted each and every allegation of fact levelled against them by the prosecution and professed their innocence. However, they neither made any statement on oath under section 340(2), Cr.P.C. Nor they produced any witness in their defence.
8. At the conclusion of the trial the learned trial Court found the prosecution's case against the appellants to have been proved beyond reasonable doubt and, thus the appellants were convicted and sentenced as mentioned and detailed above. However, the appellants' co-accused namely Muhammad Arshad alias Jinn was acquitted of the charge. Hence the present appeals before this Court by the convicts-appellants.
9. We have heard the learned counsel for the appellants as well as the learned counsel for the State and the complainant and have gone through the record with their assistance. 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 and, thus these appeals warrant acceptance with a resultant acquittal of the appellants. As against that the learned counsel for the State and the complainant have maintained that the prosecution had succeeded in proving the guilt of the appellants to the hilt and, therefore, the present appeals may be dismissed.
10. After hearing the learned counsel for the parties and going through the record we have arrived at a confident conclusion that the prosecution had indeed failed to prove its case against the appellants beyond reasonable doubt. In this context we have noticed that the very purposes and reasons for the presence of Mushtaq Ahmad, A.S.-I. Complainant (P.W.6) and Noor Muhammad (P.W.7) at the place of occurrence at the relevant time had remained far from being proved.
According to the prosecution Mushtaq Ahmad, A.S.-I. (P.W.6) had gone with Muhammad Sadiq, F.C.
Deceased to Chak No,140/10-R to effect the arrest of Masood Aslam alias Shada appellant in connection with case F.I.R. No,68 of 1997 registered at Police Station Jahanian, District Khanewal but it is admitted at all hands that the stated involvement of the said appellant in that criminal case has not been established on the record through any material whatsoever. The said F.I.R. Has not been brought on the record of this case; no written order had ever been passed by anybody deputing Mushtaq Ahmad, A.S.-I. And Muhammad Sadiq, F.C. Deceased to go for the arrest of Masood Aslam alias Shada appellant; their departure from the police post had never been recorded in the Daily Diary; both Mushtaq Ahmad, A.S.-I. (P.W.6) and Muhammad Sadiq, F.C.
Deceased were admittedly carrying their personal licensed revolvers and not official weapons at the relevant time; and it had never been proved that they were carrying handcuffs with them at that time. The record of this case further shows that the prosecution's assertion that the appellants were peddlers of narcotics had never been substantiated and nothing whatsoever had been placed on the present record to establish the said allegation so as to believe that the abovementioned Police Officers had in fact gone to effect the arrest of Masood Aslam alias Shada appellant in connection with a case involving narcotics. Nawaz Ahmad, Inspector (P.W.12) did not even remember handing over any case file to Mushtaq Ahmad, A.S.-I. Complainant (P.W.6) before requiring him to go and arrest the said appellant. In view of these deficiencies in the prosecution's evidence the very purpose of Mushtaq Ahmad, A.S.-I. Complainant's visit to and presence at the place of occurrence has remained far from being proved or established.
11. Apart from what has been observed above the conduct displayed by Mushtaq Ahmad, A.S.-I.
Complainant (P.W.6) itself suggest that his claimed presence at the place of occurrence at the relevant time is nothing but concoction incarnate. In this context it has been noticed by us that according to the prosecution's case the complainant had distanced himself from the deceased while embarking upon the appellant's search in the garden. We have formed an impression that the story about such distancing of the complainant and the deceased had been fabricated as the same does not fit into natural conduct. According to the complainant himself despite seeing the deceased a colleague of his, having been fired at the injured by the appellants and being belaboured and robbed and also despite having seen Noor Muhammad (P.W.7) being injured by the assailants the complainant had only resorted to firing in the air such a conduct and a claim based on such a conduct are neither understandable nor easily palatable or acceptable. It is also admitted by the complainant that he had not gone with his injured colleagues to the hospital. It is also an admitted position in this case that the first information about the incident had been lodged at the place of occurrence. More often than not such recording of a first information about an incident at the spot leads to an irresistible inference that the said information would have been recorded after deliberations.
12. It may also not be out of place to mention here that no crime-empty belonging to the revolver of the complainant had been secured from the place of occurrence and admittedly the complainant had never handed over the crime-empties of his revolver or his revolver itself to the Investigating Officer during the entire investigation of this case and according to the complainant himself the empties and the revolver had throughout remained in his personal possession. Even otherwise had the complainant been present at the place of occurrence and had he witnessed his colleagues being fired at, injured and robbed by the appellants and their co-accused then he would have fired at them in exercise of right of private defence rather than in the air in futility. In these circumstances the claim of Mushtaq Ahmad, A.S.-I. Complainant (P.W.6) regarding his presence at the place of occurrence at the relevant time has appeared to us to be nothing but a make belief.
13. The claim regarding Noor Muhammad (P.W.7's) presence at the place of occurrence at the relevant time is also not free from serious doubts. Noor Muhammad (P.W.7) lived at a place situated one and a half miles away from the place of occurrence and his explanation that he was present at the spot at the relevant time looking for a tractor to plough his land situated in his own Chak had never been substantiated through any independent evidence. On his own showing Noor Muhammad (P.W.7) did not know anything about Chak No,140/10-R, where the occurrence had taken place, or its residents and thus his claim that he had come to that Chak looking for a tractor to be taken on hire does not appear to be probable. Noor Muhammad (P.W.7) had allegedly been belaboured by Masood Aslam alias Shada appellant with the belt of Muhammad Sadiq, F.C.
Deceased which had allegedly been snatched away from the injured Muhammad Sadiq, F.C. By the said appellant. In this context the prosecution wants this Court to believe that at a time when all the three accused persons in this case were already in possession of their respective pistols and Masood Aslam alias Shada appellant was also in possession of the pistol of Muhammad Sadiq, F.C.
Deceased the latter had resorted to belabouring of Noor Muhammad (P.W.7) with the belt of the deceased rather than firing at him from the four pistols possessed at that time by the accused party. Noor Muhammad (P.W.7) is admittedly a Police Razakar who had been serving with the local police for the last about twelve years. It appears that, in keeping with his profession as Razakar, he had been made by the local police to volunteer in this case to pose and stand as an injured eye- witness and the injuries on his persons were created and manufactured so as to lend support to the said claim. In this connection we have noticed that although a belt is generally made of leather and its buckle is a blunt object yet the most serious injury on the person of Noor Muhammad (P.W.7) was an injury on his scalp which, according to the Doctor, had been caused by a sharp- edged weapon. The dimensions of that injury (injury No,1) are not compatible with those of the belt allegedly recovered in this case. This clearly shows that either the injuries of Noor Muhammad (P.W.7) had been manufactured and created by the police itself or the medico-legal certificate being relied upon by the prosecution in that regard was not genuine.
14. For what has been discussed above we have found that the claimed presence of the abovementioned eye-witnesses at the place of occurrence at the relevant time is replete with serious doubts.
15. The medical evidence produced by the prosecution did not lend much support to the ocular account and the same had in fact gone a long d way in casting further shadows of doubt on the ocular account. According to Dr. Ghayas-ud-Din Khawaja (P.W.10) the injuries sustained by Muhammad Sadiq, F.C. Deceased had been caused by a pointed weapon like a Sua and not by a fire-arm. The said injuries had no exit wound and admittedly no bullet or metallic piece had been recovered from the dead body at the time of its post-mortem examination. The said Doctor had disagreed with the inquest report, the injury statement and the medico-legal certificate prepared in respect of the deceased regarding the cause of death or the manner of receipt of injuries.
According to Dr. Allah Bakhsh Maitla (P.W.14) injury No,1 on the person of Noor Muhammad (P.W.7) had been caused by a sharp-edged weapon. All these factors, coming on the record from the mouths of the prosecution's own witnesses, had substantially, if not irretrievably, damaged the prosecution's case.
16. The recoveries effected during the investigation of this case had not been believed by the learned trial Court for the detailed reasons recorded in the impugned judgment. Even otherwise the alleged recoveries of fire-arm weapons from the appellants were not of much avail to the prosecution as the statements of P. Ws. 2, 5 and 11 show that the crime-empties and the said weapons had been sent to the Forensic Science Laboratory together. Thus a possibility of manufacturing of the said crime-empties before their dispatch to the Forensic Science Laboratory could not be ruled out of consideration.
17. The prosecution had not set up any motive in this case which could prompt the appellants to commit the murder of the deceased and to cause injuries to Noor Muhammad (P.W.7).
18. After a detailed evaluation of the record of this case we have felt that Muhammad Sadiq, F.C.
Deceased might have been done to death in circumstances not known to the prosecution and on account of his being a serving police official Mushtaq Ahmad, A.S.-I. (P.W.6) might have volunteered to become a complainant and Noor Muhammad (P.W.7), in keeping with his profession, might have volunteered to become- an injured witness so as to cook up a case against the present appellants and their co-accused.
19. The upshot of the discussion made above is that the prosecution has miserably failed to prove its case against the appellants beyond reasonable doubt and the benefit of such doubt must be extended to the appellants. Both these appeals are, therefore, allowed, the convictions and sentences of the appellants recorded by the learned trial Court are set aside and they are acquitted of the charge. They shall be released from jail forthwith, if not required in any other case.