1. ' Muhammad son. Of Babu and Bashir son of Murad have challenged judgment dated 10-6-1998 passed by the learned Additional Sessions Judge, Sargodha passed in private complaint filed by Muhammad Hayat P.W.6, whereby they were convicted under section 302(b)/34, P.P.C., for commission of murder of Bati Khan and sentenced to imprisonment for life each. They were also ordered to pay fine of Rs,20,000 each as compensation to the legal heirs of the deceased Bati Khan.
2. ' Through the same judgment Murtaza son of Murad, Bashir son of Babu and Shamsher son of Mirza were acquitted of the charge, ' Briefly facts of the case are that Muhammad Hayat filed complaint under section 302/34, P.P.C.
3. Read with sections 109/120, P.P.C. About the occurrence allegedly took place in Chak No,54/SB of Police Station Pull No,111/SB, District Sargodha. According to the complainant on 13-8-1994 at 5-30 p.m., he was sleeping in the courtyard of his house near to the Bekah of Bati Khan (in Chak No,54/SB). Bati Khan was sleeping at his Bekah while Sher Muhammad P.W.7 and Ahmad Khan P.W.8 were also sleeping near him. The complainant was awakened on the barking of dog and saw that Muhammad appellant armed with gun and Bashir armed with Sota and their co-accused Murtaza also armed with gun, came near the cost of Bati Khan and Bashir appellant inflicted Sota blow near his right eye. While Muhammad appellant fired from his gun hitting Bati Khan on right side of his chest. Murtaza accused fired but did not hit. The occurrence was also witnessed by Ahmad Khan and. Sher Muhammad apart from the complainant. They raised hue and cry on which the accused fled away towards their Dera. Bati Khan succumbed to the injuries at the spot. It was also alleged in the complaint that, the accused had committed murder of Bati Khan on the instigation and connivance of Bashir son of Babu and Shamsher son of 'vlirza. The motive for the alleged occurrence was that on a day earlier i,e, 12-8-1994 a quarrel had been taken place between the accused and the deceased, Bati Khan ',ad fired towards the accused with his gun and they in order to take revenge committed the instant occurrence. The complainant lodged F.I.R.
4. No,157 dated 13-8-1994 at 7-15 a.m. At. Police Station Pull No,111/SB at a distance of 16 k.Ms. From the place of occurrence, with Hafiz Muhammad Rustam, Sub-Inspector. The accused nominated by him were declared innocent in successive investigations on which he tiled the complaint.
5. ' After recording preliminary evidence, the trial Court summoned the accused to face, the trial and framed the charge. Which was denied by the accused and they claimed trial.
6. ' During trial, prosecution examined Dr. Hussain Ahmad Malni as P.W.1 who on 13-8-1994 at 11-30 a.m. Had conducted the post-mortem examination, on the dead body of Bati Khan and found the following Injuries on his person:-
(1) A lacerated wound 1-1/2 x 1 c.m. x bone deep on outer side of right eye.
(2) A fire-arm wound, wound of entrance 4 c.m. x 2 c.m. With inverted margin, edges are burnt and black on outer and upper 1/3rd of right chest.
7. ' Opinion ' In his opinion death occurred due to shock and haemorrhage under injury No,2 which was sufficient' to cause death in ordinary course of nature. The time between injury and death was immediate. The time between death and post-mortem was about six hours.
8. ' Zafar Iqbal, Revenue Patwari P.W.2 had prepared the site plan of the place of occurrence Exh.P.B.
9. Muhammad Saleem,F.C. P.W-.3 had, escorted the dead body of Bati Khan (deceased) for post- mortem examination. Muhammad Nawaz P.W.4 had attested the recovery memo. Exh.P.0 whereby blood-stained earth and Exh.P.D through which blood-stained cot Exh.P.1 of the deceased were taken into possession by Investigating Officer Muhanimad Yar P.W. 5 was a witness of alleged conspiracy among the accused. Muhammad Hayat complainant was examined as P:W.6, he supported the version of the aid of the complaint. He stated that at 9-00 p.m. On previous night Ahmad and Muhammad Yar P.Ws. Had gone to Dera of Muhammad appellant and saw the accused sitting in a room and talking to each other to eliminate Bati, Khan (deceased). He claimed to be an eye-witness of the occurrence and identified the appellants for causing injuries to the deceased Bati Khan. Sher Muhammad alias Shera P.W.7 was also an eye-witness of the occurrence. He corroborated the statement of Muhammad Hayat P.W.6. He narrated the story that on the day of occurrence, he was sleeping at his own Bekah. Ahmad Khan son of Wali P.W.8 was also sleeping there and they both saw the occurrence and identified the appellants causing injuries to the deceased. He admitted his felation with Bati Khan as his wife's real brother and was his cousin. Ahmad Khan P.W.8 supported the complainant Muhammad Hayat P.W.6- and Sher Muhammad P.W.7 by stating, that on the day of occurrence, he was sleeping on the Dera of Bati Khan, Shera, Muhammad Hayat and Bati Khan were also there. He along with others witnesses identified the accused causing injuries to Bati Khan. Umar Daraz, MHC, P.W.9 kept the sealea parcel deposited by the Investigating Officer.
10. ' The statements of the accused/ appellants were recorded under section 342, Cr.P.C. They denied the allegations and claimed their innocence and Muhammad accused replied to the question No,6 as to why this case against him and the P.Ws. Deposed against him, as under:- ' It is false case and the witnesses have made false statements on account of their enmity. Our land was cultivated by Muhammad Hayat complainant and his father for a very long time but some time before the occurrence I had taken back that land from Muhammad Hayat complainant and had given it to Murtaza accused as a tenant which annoyed the complainant and he falsely implicated me my brother and Murtaza and his relatives due to that grudge.
11. ' Reply of Muhammad Bashir was almost the same.
12. ' The accused appellants examined Muhammad Aslam, Inspector as D.W.1 in their defence who had earlier investigated the case when he was posted as Inspector (CIA) and found the accused innocent. Zulfiqar Ali, S.I. (CIA) D.W.2 had also earlier investigated the case and prepared the final report as untraced on 15-6-1995, when he was posted as S.H.O. Police Station Pull No,111/SB. Matee Ullah Khan, Inspector (CIA) was examined as D.W.3 who while posted as Inspector CIA, Sargodha, also found the accused innocent. Hafiz Muhammad Rustam, S.I, was examined as D.W.4 who had registered the case vide F.I.R. No,157 of 1994 and conducted the investigation and found all the accused innocent. According to his investigation, the occurrence had taken place much prior to Fajjar Prayer.
13. ' The trial culminated into conviction of the appellants as mentioned above. They have challenged their conviction and sentence through the instant appeal.
14. ' Learned counsel for the appellants has argued that it was night unwtinessed occurrence taken place much before as alleged by the complainant and the witnesses were not present at the spot.
15. The accused/appellants were declared innocent in all the investigations P.Ws. Are related inter se and to the deceased and their testimony has not been corroborated from any independent source.
16. The evidence of the same witnesses has been disbelieved by the trial Court qua their acquitted co- accused, therefore, it is not safe to place reliance on those witnesses to maintain the conviction of the appellants that opinion of the Investigating Officer cannot be brushed aside altogether.
17. Reliance has been placed on the case "Zulqarnain v. The State" (PLD 1994 Federal Shariat Court 34) and "Muhammad Naeem alias Gogi and others v. The State" (1990 PCr.LJ 1607).
18. ' Conversely, the appeal has been opposed by the learned counsel for the. State who has supported the impugned judgment.
19. ' Heard. Record perused.
20. ' According to the complainant, the occurrence took place at about 5-00 a.m. And he lodged F.I.R.
21. At the police station at about 7-15 a.m. At a distance of 16 k.Ms. From the place of occurrence. The 1st Investigating Officer Rustam, S.I, D.W.4 arrived at the spot and undertook the investigation, according to his finding, the complainant or the other prosecution witnesses could not prove their presence at the spot when the occurrence took place. Muhammad Hayat P.W.6 admits that he was available at a distance of about 15/16 k.Ms. And was sleeping near his own Bekah. While Sher Muhammad and Ahrnad Khan P.Ws. 7 and 8 were sleeping at the Bekah of Bati' Khan but Sher Muhammad P.W. 7 says in his chief- examination that he was sleeping in his own Bekh, Ahmad Khan and Bati Khan were also sleeping there while Hayat was sleeping in the courtyard near the same Bekh. Hayat complainant says that Ahmad Khan and Sher Muhammad were sleeping at the Bekh of Bati Khan. The clear contradictions in the statements of these witnesses creates serious doubt about their presence at the spot.
22. ' The trial Judge has put reliance on the statement of the Doctor who conducted the post-mortem examination at 11-30 a.m: on 14-8-1994 and stated that the time between death and post-mortem was about six hours which shows, that the occurrence took place at about 5-00 a.m. But the time given by the doctor is always approximate which may be erroneous by 2/3 hours as laid down by the Honourable Supreme Court in "Haji and others v. The State" (1972 PCr.LJ 465) and "Martian Ali v.
23. Gulistan" (1998 SCMR 889). It has been held that opinion of the doctor as to the time of death of the deceased is merely conjectural and not conclusive. The witnesses had admitted their close relationship with the deceased. The ocular account furnished by Muhammad Hayat P.W.6, Sher Muhammad P.W. 7 and Ahmad Khan P.W. 8 had not been corroborated, from any independent source. It is true that conviction can be maintained on the basis of direct testimony of the P.Ws.
24. Provided they are confidence-inspiring but in the instant case they had admitted their relationship with the deceased and the accused had pad their innocence and false involvement from the very first day. The complainant had also accepted the matter to be decided through the arbitrator at some stage which shows that he himself was not sure about the culprits. The accused/appellants were declared innocent in all the investigations conducted by the senior police officers. It is true that opinion of the investigation is not binding on the Court but at the same time opinion of the Investigating Officer about the innocence of the accused cannot simply be brushed aside. More than three Investigating Officers had found the appellants/accused innocent, after making investigation in presence of the many people of locality. Who had neither animosity against the complainant party nor any interest with the appellants. Following the law laid in PLD 1994 Federal Shariat Court 34 and Division Bench, judgment reported in "Muhammad Naeem alias Gogi and others v. The State" (1990 PCr.LJ 1607) wherein it was held that opinion expressed by the police although is no proof of innocence or guilt of any accused, yet the factum of impact of such as opinion cannot be thrown away to winds altogether and since no weapon of offence was recovered from the possession of the accused and there is no independent corroboration in support of interested prosecution witnesses. I am of the considered view that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt Resultantly, the appeal is allowed, conviction and sentence of the appellants is set aside and they are acquitted of the charge by giving the benefit of doubt. They are directed to be released from the jail forthwith, if not required to be detained in any other case.