' Through this single judgment I would, like to dispose of Criminal Appeal No,.43/J of 1999 filed by Muhammad Mumtaz and Muzaffar Khan, appellants through jail, who were convicted and sentenced by learned Judge, Special Court (Suppression of Terrorist Activities) Act, 1975, Khushab vide his judgment, dated 25-3-1999 to undergo imprisonment for life under section 302/34, P.P.C.
And to pay Rs,50,000 each as compensation to the legal heirs of Muzaffar Khan deceased as required under section 544-A, Cr.P.C. Or in default six months' R.I. Each with the benefit of section 382-B, Cr.P.C.
2. Occurrence in this case had taken place on the night between 9/10-7-1997 at mid-night within the jurisdiction of Police Station Jauharabad at a distance of 15 Kms. Away while the matter was reported to the police by Abdul Rehman complainant on 10-7-1997 at 10-30 a.m. And the formal F.I.R. Exh.P.A. Was recorded by Altaf Hussain, S.-I. P.W.10.
3. Brief facts of the case as disclosed by Abdul Rehman P.W.1 is that he is resident of Chak No,45/A- MB and Muzafear Khan son of Bahadur Khan (deceased) his paternal uncle was also residing with him. On 9-7-1997 at about 6-00 p.m. Muzaffar Khan son of Bahadur Khan proceeded to Biloo Farm with a cart being driven by a donkey. He did not return back. Thereafter; he alongwith Sher Muhammad and Khan Bahadur searched him at different places. On 10-7-1997 at about 8-00 a.m.
When they reached at bridge of canal near Shaheed minor then under a Sheesham tree cart was available. Dead body of Muzaffar Khan was also available thereon. He had received injuries at his head and in the abdomen.
4. After receiving the information about the occurrence Altaf Hussain S.-I. P.W.10 proceeded to the place of occurrence, prepared injury statement Exh.P.G. And inquest report Exh.P.H. Inspected the spot, secured blood-stained earth vide recovery memo. Exh.P.B. On 14-7-1997 he arrested Muhammad Mumtaz and Muzaffar Khan and on the same day, while in police custody, Muzaffar Khan led to the recovery of hatchet P.6 vide memo. Exh.P.J. On the same day, Muhammad Mumtaz also led to the recovery of pistol P.7 and 9 live cartridges P.911-9 vide memo. Exh.P.K. During the course of investigation accused were found involved in the case and accordingly challan was submitted to face the trial.
5. At the trial, prosecution in order to prove its case produced 10 witnesses in all, thereafter, learned D.D.A. Tendered in evidence report of Forensic Science Laboratory Exh.P.M. Report of Chemical Examiner relating to earth Exh.P.N., report of Serologist relating to earth Exh.P.N./1 report of Chemical Examiner relating to hatchet Exh.P.O. Report of Serologist relating to hatchet Exh.P.O./1 and closed the prosecution case then the statements of the accused-appellants were recorded under section 342, Cr.P.C. In which they pleaded innocence and claimed false implication on account of suspicion and enmity.
6. In support of this appeal, learned counsel for the appellants submits that F.I.R. Was lodged by Abdul Rehman nephew of deceased Muzaffar Khan, that neither the eyewitnesses nor the names of the accused were mentioned therein, that Abdul Rehman in connivance with the local police had got recorded the supplementary statement in which he had also given the names of the accused persons, names of the eye-witnesses and the motive, that two eye-witnesses, namely, Qadir Bakhsh P.W.5 and Khan Zaman P.W.6 are not consistent in their statements, that Khan Zaman is brother-in- law of the decease while Qadir Bakhsh was also. Related to the deceased, that Qadir Bakhsh was resident of Chak No,47/A,MB and not near the place of occurrence, that occurrence had taken place in Jungle at mid-night, that it was an unwitnessed occurrence, that conduct of both the eye-witnesses was most unnatural, they did not report the matter to the police, father of the deceased or Councillor of the area, or Chowkidar or any other person in authority, that no independent witness has been produced, that Muhammad Sadiq in whose fields the occurrence had taken place was not produced by the prosecution, that deceased was also a person of bad character, he was involved in a murder case and had broken the leg of one man of the locality, that he has got so many enmities in his village, that appellants have been falsely implicated in this case due to suspicion, that no case is made out against the appellants, that no crime-empty was recovered from the spot so recovery of pistol on the pointation of Muhammad Mumtaz appellant has not consequence while recovery of hatchet on the person of Muzaffar Khan appellant has been planted one. T. On the other hand, learned counsel for the complainant, who has filed Criminal Revision No,208 of 1999 for the enhancement of sentence against the present appellants submits that complainant has got no reason to falsely implicate the present appellants, that complainant is brother-in-law of the deceased that there was no reason on the part of the eye-witnesses and the complainant to falsely implicate or depose against the present appellants, that ocular account is corroborated by medical evidence, that recovery was effected from both the appellants, that hatchet was found to be stained with human blood according to the reports of Chemical. Examiner and the Serologist, that there are minor discrepancies in the statements of the witnesses which are natural one and the same cannot be ignored.
8.. Learned State Counsel submits that presence of both the eye-witnesses has been established on the record, that ocular account, medical evidence and the circumstantial evidence is corroborated with each other. Both learned State Counsel and learned counsel for the complainant support the judgment of the learned trial Court.
9. I have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. According to the two eye-witnesses, namely, Qadir Bakhsh and Khan Zaman, occurrence had taken place at 7-45 p.m. On 9-7-1997 but according to the F.I.R. The occurrence had taken place between mid-night of 9/10-71997, police station was at a distance of 10 Kms. Matter was reported to the police on the next day, i,e, 10-7-1997 at about 10-30 a.m. Qadir Bakhsh is resident of Chak No,47/MB while the occurrence had taken place in Chak No,45/MB. Khan Zaman P.W. Had admitted that place of residence of Qadir Bakhsh is 4 Kms. Away from the place of occurrence. Qadir Bakhsh P.W. Had admitted that occurrence had taken place in jungle, Khan Zaman P.W. Is brother-in-law ( 6,,i^.1) of the deceased because sister of Muzaffar Khan deceased was married to him. The conduct of both these two so-called eye-witnesses is most .Unnatural because according to them deceased was being given hatchet and fire-arm blows but they did not raise hue and cry, they remained at the spot only for five minutes, they did not report the matter to the police, they did not report the matter even to the father of the deceased, who was father-in-law of Khan Zaman P.W., they even did not inform the Chowkidar, Councillor of the area or any other respectable person of the village, they kept mum till the registration of the F.I.R., they did not try to inform anybody regarding the murder of the deceased, their conduct is most unnatural and unconvincing one, they are cooked up witnesses. It is a case in which death sentence could have been awarded because criminal revision has also been filed by the complainant for the enhancement of the sentence. The evidence of these two eye-witnesses is totally unreliable. As far as, Abdul Rehman complainant, who is also a liar P.W. Is concerned, he does not mention the, names of the accused, names of the eye-witnesses and the motive in the F.I.R., he in order to cover up the weakness of the prosecution in connivance with the police got a supplementary statement recorded and became as an eye-witness in the instant case, furnished the motive, given the names Of the accused and the eye-witnesses, this shows the anxiety of Abdul Rehman complainant in order to falsely implicate the present appellants in this case. It is the duty of the prosecution that he has to prove its own case. Weakness of the defence cannot strong the prosecution case. Prosecution has to stand on his own legs, even the statements of Qadir Bakhsh and Khan Zaman P.Ws. Are contradicted by medical evidence because the Dr. Nazar Abbas, P.W.7, who conducted the post-mortem examination on the dead body of deceased on 10-7-1997 gave the duration between time of injuries and death from 3 to 5 hours. After the departure of the accused from the place of occurrence, both the above noted eye-witnesses did not go near the dead body to see the condition of the deceased, whether he was alive or dead, they even did not take the deceased to the hospital for medical treatment. In my considered opinion, both the eye- witnesses were not present at the spot, they were later on, introduced as an eye-witnesses during the , course of investigation. In such-like cases in which the mtxtmumi sentence can be awarded or maintained the evidence must come from an unimpeachable source which should have intrinsic value which is not available in the instant case.
As far as, recovery of pistol from Muhammad Mumtaz appellant is concerned, enhancement of the sentence. The evidence of these two eye-witnesses is totally unreliable. As far as, Abdul Rehman complainant, who is also a liar P.W. Is concerned, he does not mention the, names of the accused, names of the eye-witnesses and the motive in the F.I.R., he in order to cover up the weakness of the prosecution in connivance with the police got a supplementary statement recorded and became as an eye-witness in the instant case, furnished the motive, given the names Of the accused and the eye-witnesses, this shows the anxiety of Abdul Rehman complainant in order to falsely implicate the present appellants in this case. It is the duty of the prosecution that he has to prove its own case. Weakness of the defence cannot strong the prosecution case. Prosecution has to stand on his own legs, even the statements of Qadir Bakhsh and Khan Zaman P.Ws. Are contradicted by medical evidence because the Dr. Nazar Abbas, P.W.7, who conducted the post- mortem examination on the dead body of deceased on 10-7-1997 gave the duration between time of injuries and death from 3 to 5 hours. After the departure of the accused from the place of occurrence, both the above noted eye-witnesses did not go near the dead body to see the condition of the deceased, whether he was alive or dead, they even did not take the deceased to the hospital for medical treatment. In my considered opinion, both the eye-witnesses were not present at the spot, they were later on, introduced as an eye-witnesses during the , course of investigation. In such-like cases in which the maximum sentence can be awarded or maintained the evidence must come from an unimpeachable source which should have intrinsic value which is not available in the instant case .
As far as, recovery of pistol from Muhammad Mumtaz appellant is concerned, no crime-empty was taken into possession from the spot, so it has got no value in this case. So far as, recovery of hatchet fr.--in Muzaffar Khan appellant is concerned, this also seems to be planted one. No conviction can be made do such-like tainted ocular account which is present in the instant case.
Even otherwise, when the ocular account has been disbelieved by this Court then the recovery even if believed cannot advance the prosecution case.
After having gone through the prosecution evidence specially, the statements of two eye- witnesses and the submissions made by learned counsel for the parties I am of the considered opinion that prosecution has miserably failed to prove its case against the appellants beyond any shadow of doubt because it is a case of full of doubts and benefit of the same always is granted to the accused persons not as a matter of grace but as a matter of right, so while granting the same benefit, I allow this appeal, set aside the conviction and sentence recorded against the appellants by the learned trial Court. They are on bail and they shall be discharged from their bail bonds.