' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,870 of 1996 filed by Misri and Allah Bukhsh appellants who were convicted and sentenced by learned Additional Sessions Judge, Chiniot vide judgment dated 13-10-1996 as under:--- ' Misri: Death on two counts under section 302(b), P.P.C. And to pay compensation of Rs,50,000 in default two years' S.I, 10 years' R.I. And to pay a fine of Rs,10,000 in default two years' R.I. With further direction of Rs,5,000 As required under section 544-A, Cr.P.0 in default one year S.I. Under sections 324/34, P.P.C.
' Allah Bukhsh: Imprisonment for life and to pay Rs,50,000 as required under section 544-A, Cr.P.C. In default two years' S.I. Under sections 302(b)/34, P.P.C.
10 years' R.I. And a fine of Rs,5,000 in default R.I. For one year and also to pay compensation of Rs,5,000 in default one year S.I. Under sections 324/34, P.P.C.
3.Benefit of section 382-B, Cr.P.0 was also granted to the convicts Murder Reference No,297 of 1996 for confirmation of death sentence of Misri appellant or otherwise shall also be replied through this single judgment.
2. Occurrence in this case had taken place at Deegarwela on 13-4-1992 within the revenue estate of Chah Jhanianwala Jeewan Ki Jhalar Dakhli Nowshera at a distance of 4-1/2 miles from Police Station Bhawana, District Jhang while the matter was reported by Anwer through written complaint Exh.P.K at 6-3/4 p.m. On the same day and the formal F.I.R. Exh.PK-1 was recorded by Inspector S.H.O. Briefly stated the facts of the case are that the Dhari of complainant Anwer was situated at Chah Jhanianwala in the area of Mauza Nowshera. His first cousin Ahmad was also residing in his own Dhari nearby. On 19-4-1992, the complainant alongwith Ahmad, Walayat, Mst. Jantan and Mst.
Penah Bibi were coming back to their houses from Hamuyun Ki Jhalar. At about Deegerwela time, when they reached near Jewan Ki Jhalar Dakhli, Mauza Nowshera, Sultan Bukhsh, Muhamamd Khan, Nasir, Ghulam Mashki, Misri, Muhammad Hayat, Zafar, Afzal, Nasir Khizar, Gulzar, Riaz, Gulzar, Wajid and Asghar armed with firearms raising Lalkara came there. Bukhsh fired straight on Walayat which hit him on his head and he fell down. Misri fired which hit Mst. Jantan on her right chest and upper arm. Zafar (PC, fired a shot hitting Mst. Penah Bibi on her neck. Mst. Jantan and Mst. Penah fell down. Then all the accused encircled them and started indiscriminate firing. The complainant and Ahmad took refuge behind a wall. Sikandar and Mamman by chance were present there and witnessed the occurrence. Due to firing of the accused, the other relatives of t\he complainant reached running towards the place of occurrence and the accused which firing fled away. Mst. Jantan and Mst. Penah Bibi succumbed to their injuries at ,Ite spot.
' The motive behind the occurrence was that more than 11/2 years prior to the occurrence, Misri etc. Injured Walayat. On the next day of that occurrence, Liaqat brother of Misri was murdered as the parties had again an encounter and that murder case was under trial. Due to that reason, all the accused while armed with fire-arms committed the murder of Mst. Jantan and Mst. Penah Bibi.
3. After registration of the formal F.I.R, Ghulam Mustafa, A.S.I (P.W.11) reached at the spot along with the complainant, prepared injury statement Exh.PQ, inquest report Exh.PR in respect of dead body of Mst. Jantan, also prepared injury statement Exh.PS and inques - report Exh.P.T. In respect of dead body of Mst. Penah Bibi. Thereafter, both the dead bodies were sent to the hospital for post. Mortem examination. Misri appellant was arrested by Muhammad Arshad, S.I. (P.W.19) who got recovered klashnikov which was taken into possession vide memo. Exh.PX. The investigation was also conducted by Khizar Hayat, S.I. (P.W.12) and Ch. Munir Ahmad, D.S.P. Who died before the trial. After necessary investigation, 16 'accused were challaned to face the trial.
4. At the trial, prosecution in order to prc ve its case produced 15 witnesses in all, then the learned DDA tendered in evidence report of the Chemical Examiner Exh.PAA, report of the Serologist Exh. PBB and closed the prosecution case. Thereafter, statements of the accused were recorded under section 342, Cr.P.0 in which they pleaded innocence. After conclusion of the trial, Fazal Abbass, Ghulam Mashki, Muhammad Hayat, Muhammad Riaz, Khiza Hayat, Gulzar son of Sohna, Ahmad Khan, Nasir son of Muhammad Hayat, Nasir son of Dost Muhammad, Wajid, Muhammad Khan, Sultan and Asghar were acquitted of the charge. Zafar accused was declared as P.O. And he did not face the trial.
5. Learned counsel for the appellants after having read the entire prosecution evidence and other material available on record submits that the matter having been reported outside the police station, the F.I.R. Was recorded after due deliberation and consultation, on the same set of evidence 14 co-accused of the appellants were acquitted of the charge while one Zafar was declared as P.0, the story of the prosecution that except Misri, Allah Bukhsh and Zafar (P.O.) the other acquitted accused encircled the complainant party and then resorted to indiscriminate firing is not probable and believable because had the occurrence taken place as alleged by the prosecution, someone else apart from the two deceased ladies must have received injuries but none was injured and that no independent witness has been produced by the prosecution to prove its case against the appellants. Further submits that most important point in this case is that one Muhammad Bukhsh son of Wali Muhammad was also murdered in the present occurrence which fact has been admitted by the complainant and the P.W. Walayat but no case for his murder was registered.
Adds that the two deceased ladies were real sisters inter se. Further adds that, that no vaginal swa bs of the two deceased were taken with ulterior motive and that the dimensions of injuries of both the deceased is same which suggest that the injuries were caused by one weapon and by one assailant. Also adds that on similar evidence 14 co-accused of the appellants have been acquitted. Learned counsel lastly submits that both the eye-witnesses are chance witnesses and their testimony cannot be made basis for recording finding of conviction against the appellants. In nutshell submits that the prosecution has failed to prove its case against the appellants once the appellants are entitled to acquittal.
6. On the other hand, learned counsel for the State submits that the appellants are named in the F.I.R. With specific role, Misri appellant remained P.O. For three years but admits that no explanation has been given by the prosecution about the murder of Muhammad Bukhsh son of Wali Muhammad.
7. We have heard learned counsel for the parties and have gone through the record with their able assistance. In the instant case, the occurrence took place at Deegerwala on 134-1992 while the matter was reported to the Police at Lorry Adda at 6-45 p.m the same day and the formal F.I.R Exh..PK/1 was recorded at 6-55 p.m. We are not going to accept that the F.I.R. Was lodged promptly rather it was after due deliberation and consultation for the reason that in postmortem reports of both the deceased Exh.PH and Exh.PJ underneath the column "Death" no date and time has been given by the doctor which suggests that the post-mortem was conducted first and thereafter the inquest reports Exh.PR and Exh.PT were prepared. Had the inquest report been prepared first and had been sent to the doctor for post-mortem examination carrying the date and time in the relevant column No,3, the doctor conducting post-mortem examination must have mentioned the same in the post-mortem reports Exh.PJ and Exh.PH. Moreover the matter was informed to the police outside the police station. After recording the complaint the Investigating Officer sent the same to the Police Station for registration of the F.I.R. And went to the spot. Where the dead bodies were lying and at the time when he prepared the inquest report, he had not with him the number of the F.I.R., but the same is mentioned in the brief facts of both the inquest reports. This also proves that the F.I.R. Number was given in the inquest report after the post-mortem examination was conducted. The duration given by the doctor who conducted the post-mortem examination between the death and post-mortem was 12-24 hours. It means that the occurrence might have taken place at any time either in earlier hours on 13-4-1992 or after the lsha prayer on 13-4-1992 which does not fit in with the prosecution story. The signatures of the doctor who conducted the post-mortem examination appear on the top of first page of the inquest report Exh.PR and Exh.PS which also suggests that these inquest reports were not sent to the doctor along with other Police papers for the purpose .Of post-mortem examination. The doctor conducting postmortem examination of the deceased ladies did not take their vaginal swabs in order to verify whether they indulged in sexual intercourse or not.
8. Walayat P.W. According to the complainant was injured. The occurrence took place at 5-45 p.m.
On 13-4-1992 but he was medically examined at 10-45 p.m. Though on the same but with a. Delay of 6 hours. Dr. Ijaz Haider (P.W.9) who medically examined said Walayat in cross-examination stated as under:-- "I did not observe any blackening, burning or tattooing around the injuries. It was not a penetrated wound. I did not observe any gun powder around the wound or scratching of the hait. The possibility cannot be ruled out that in view of my above observation this injury can be caused by blunt weapon."
' A perusal of the cross-examination of the doctor would show that the injury was not with fire-arm.
Even the injured Walayat was advised to get his injury X-rayed but he did not do so and the doctor declared the said injury to be a simple injury. Had Walayat P.W. Been present at the spot, he should have been the first target of the appellants.
No type of weapon which the assailants were carrying at the time of occurrence was mentioned but the complainant and the other P.Ws. Before the trial Court specifically mentioned the weapons which each assailant was carrying. No independent corroboration was made available to support the version of the, two alleged eye-witnesses of the case.
' No crime empty was recovered from the spot though according to the prosecution 17 accused armed with fire-arms resorted to indiscriminate firing. The case set up by the prosecution was that except the present appellants and the P.O. Zafar, all the remaining assailants fourteen in number encircled the complainant party and used firearms but none of them even received a scratch.
' Another important point in this case is that one Muhammad Bukhsh son of Wali was also murdered in the instant occurrence but there is no mention of him either in the said F.I.R. Or through any other F.I.R. The Investigating Officer had admitted that Muhammad Bukhsh was also murdered but no case was registered for his murder. In fact the complainant party had suppressed the material facts from the Police and also from the Court.
' The version of the appellants finds mention in the statement of Fazal Abbass acquitted co- accused. The same was adopted by the present appellants while giving reply to the questions put in their statements under section 342, Cr.P.C. For the just decision of this case reply given by Fazal Abbas acquitted co-accused in answer to question No,8 may be reproduced:-- "All the P.Ws. Are related inter se and had established and admitted enmity against me. In fact Muhammad Bukhsh son of Wali deceased was messenger between Mst. Penah Bibi and Muhammad Bukhsh son of Bukhsh. Mst. Penah Bibi and Muhammad Bukhsh had illicit relations. On the day of occurrence when Muhammad Bukhsh son of Wali deceased had brought Mst. Penah Bibi and Mst. Jantan Bibi on the calling of Muhammad Bukhsh son of Bukhsh. When they reached in Killa Nos.9 and 12, Square No,63 parents of Mst. Penah Bibi had gained knowledge. They chased and apprehended them when Mst. Panah Bibi was present with Muhammad Bakhsh in a deserted Kotha of Noora Kobhar. They have murdered Mst. Penah Bibi and Mst. Jantan and also committed murderous assault upon Muhammad Bakhsh son of Wali deceased who had later on,. Succumbed to the injuries. As I and my co-accused had enmity with the complainant party, therefore, they had falsely implicated us in this false case with the connivance of the local Police. "
A bare perusal of the above-said reply of the accused would show that the version of the accused was more probable and nearer to the truth for the reason that the murder of Muhammad Bukhsh was not mentioned in the F.I.R. By the complainant party for ulterior motive. Moreover, there was no need on the part of the appellants to have committed the murder of two ladies when all the male members of the family specially when Walayat and Muhammad Anwar P.Ws. Were present and were encircled by the acquitted accused according to prosecution case itself. Muhammad Anwar, complainant during the cross-examination admitted enmity between him and the appellants. This enmity according to the prosecution started in the year 1950. The enmity between the parties had also been brought on record by the defence at page 69 of the paper book.
' The offence with which the appellants have been booked entails the major penalty of death and to maintain conviction on such a charge evidence must have come from an unimpeachable source which important factor is missing in the instant case. We have elieved the presence of the eye-witnesses at the spot, F.I.R has been held to have been lodged after consultation and due deliberation; medical evidence does not fit in with the prosecution case with regard to time of occurrence, delay in medical examination of Walayat the alleged injured P.W and specially his denial to get his injury X-rayed and the motive also having not been proved, we are left with no option but to hold the case of the prosecution to be doubtful. The benefit of doubt arising in a case has to be given to the accused not as a grace but as a matter of right. Reliance can be placed on 1995 SCM R 1345. Applying the said principle we extend the benefit of doubt in favour of the appellants, set aside the conviction and sentence recorded against them by the learned trial Court and acquit them of the charge. Both the appellants are in jail and shall be released forthwith, if not required to be detained in any other case. The death sentence of Misri appellant is Not confirmed.
Murder reference is replied in the NEGATIVE.