1. ' BASHIR A. MUJAHID, J.--- Sarfraz alias Safu and Ghulam Rasool sons of Muhammad Hussain, Muhammad Shafiq son of Fateh Muhammad alongwith Muhammad Akhtar alias Pervez son of Muhammad Shafi (acquitted co-accused) were tried by the learned Additional Sessions Judge, Nankana Sahib, District Sheikhupura under section 302/34, P.P.C. For commission of murder of Muhammad Hanif in case F.I.R. No,7 (Exh.P.A./1) dated 5-1-1994 got registered by Abdul Rashid P.W.5 with Police Station Mangtanwala and were convicted vide the impugned judgment, dated 30-7- 1996 and Sarfraz alias Safu was sentenced to death, Ghulam Rasool and Muhammad Shafiq were sentenced to imprisonment for life under section 302(b)/34, P.P.C. All the accused were ordered to pay fine of Rs,10,000 each in default of fine to undergo one year's R.I. Each. Half of fine if realized shall be paid to the legal heirs of the deceased. Benefit of section 382-B, Cr.P.C. Was extended to Ghulam Rasool and Muhammad Shafiq accused.
2. ' The occurrence which resulted into murder of Muhammad Hanif took place at 10-00 a.m. On 5-1- 1994 on the road side near minor Mangu Taru in village Mahukay at a distance of 11 miles from Police Station Mangtanwala and F.I.R. Exh.P.A./1 was registered at 12-22 p.m. At the Police Station Mangtanwala, District Sheikhupura, on the statement Exh.P.A. Of Abdul Rashid recorded by Arif Ali, 5.-I. Incharge Police Post Morr Khunda at Chowk Mangtanwala at 12-15 noon on the same day, wherein it was alleged that they were five brothers Muhammad Hanif was youngest and was tonga driver. On the day of occurrence, at 10-00 a.m. The complainant alongwith his brother Muhammad Sharif, P.W.6 and Muhammad Hanif, P.W.7 were going to their fields towards east of Mangu Taru minor and when they reached near area of Madhukay Muhammad Hanif, deceased while driving tonga crossed them and was ahead of them about 15/20 Karams, when Sarfraz, Ghulam Rasool accused armed with carbine, Muhammad Shafiq armed with mauzer and brother-in-law of Adalat Khan resident of Chak No,17 Changa Manga, who were ambushed in the canal emerged all of a sudden and came near the tonga. Ghulam Rasool fired from his carbine hitting on right leg of Muhammad Hanif, who fell on the tonga. Sarfraz accused fired two successive shots by standing near Muhammad Hanif hitting on his head. Muhammad Shafiq fired two mauzer shots hitting on left and right arms of the deceased. Brother-in-law of Adalat Khan also fired from his gun hitting Muhammad Hanif on his head, who succumbed to the injuries at the spot.
3. ' The motive alleged was that 15 days before the occurrence, Muhammad Hanif, deceased had quarrel with Sarfraz and others and Sarfraz was given beating by Muhammad Hanif, who had extended threats that he will not be spared.
4. ' Arif Ali, S.-I. P.W.10, after recording the statement Exh.P.A. At Moor Khunda, sent the same to Police Station Mangtanwala for registration of case through Muhammad Rafiq, F.C. And he himself alongwith Falak Sher and Muhammad Iqbal, F.Cs. Arrived at the place of occurrence and he took the dead body of Muhammad Hanif into possession and prepared the inquest report vide memo.
5. Exh.P.J. And collected the blood-stained earth vide memo. Exh.P.E. And dispatched the dead body for post-mortem examination. He recorded the statements of the prosecution witnesses. On 11-2- 1994, he arrested accused Sarfraz, Ghulam Rasool and Muhammad Shafiq. On 24-2-1994 Sarfraz accused while in police custody led to the recovery of carbine P.6 which was taken into possession vide memo. Exh.P.B. On the same day, Muhammad Shafiq while in police custody also led to the recovery of Sota P.7 which was taken into possession vide memo. Exh.P.C. On the same day, Ghulam Rasool, accused while in police custody led to the recovery of carbine P.8 which was taken into possession vide memo. Exh.P.G. On 14-8-1994, Muhammad Wakeel, S.-I./S.H.O. Police Station Mangtanwala arrested Muhammad Akhtar alias Pervez who was declared proclaimed offender and he partially investigated the case and submitted report under section 173, Cr.P.C. The accused denied the allegations and claimed trial.
6. ' The formal charge was framed against all the accused. The prosecution examined as many as 10 witnesses to prove the guilt of the accused.
7. ' Medical evidence was furnished by Dr. Muhammad Ashraf, P.W.4, who on 6-1-1994, conducted the post-mortem examination on the dead body of Muhammad Hanif and found the following injuries on his person:--
(1) There was a lacerated wound with inverted edges 15 x 9 c.m. On the right parital region of head.
8. The skull bone was fracture at the site of injury and brain matter was lying outside.
(2) There was a lacerated wound with everted edges 15 x 16 c.m. On the while of left side of head.
9. The skull and left eye was absent.
(3) There was a lacerated wound on right forearm posterolaterally 1.0 x 1.0 c.m.
(4) There were multiple lacerated wound on right arm posterolaterally 1/2 c.m. x 1/2 c.m. Each.
(5) There was a lacerated wound with inverted edges and black margins 2-1/2 x 2-1/2 c.m. On the outer surface of right leg with fracture of right tibia and fibula.
(6) There was a lacerated wound 1 x 1/2 c.m. With inverted 'edges on left arm, laterally also with black margins.
10. ' The ocular account was furnished by Abdul Rashid P.W.5, who was complainant of the case. He supported the version of the F.I.R. And motive of the occurrence. Muhammad Sharif, P.W.6 was real brother of Abdul. Rashid, P.W.5 and of deceased. He corroborated the prosecution story as an eye- witness of the occurrence. Muhammad Hanif was examined as P.W.7, he narrated the prosecution story as an eye-witness of the occurrence. He also attested the recovery memo. Exh.P.E. Whereby blood-stained earth from the spot was taken into possession by the Investigating Officer Muhammad Anwar, Patwari was examined as P.W.8, who had prepared the site plan of the place of occurrence. Faqir Hussain, P.W.1 had recorded the formal F.I.R. Exh.P.A./1. Falak Sher, F.C. Was examined as P.W.2, who had escorted the dead body of Muhammad Hanif for post-mortem examination and produced the last-worn clothes of the deceased before the Investigating Officer who took the same into possession. He also attested the recovery memo. Exh.P.B. And Exh.P.C.
11. Whereby the weapons of offence were got recovered by Sarfraz and Shafiq accused.
12. ' The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.P.N. And that of Serologist Exh.P.O.
13. ' The statements of the accused under section 342, Cr.P.C. Were recorded. They denied the charge and claimed their innocence and false involvement. Sarfraz, appellant in reply to Question No,8 as to why the case against him and Question No,9 as to why the P.Ws. Deposed against him, replied as under:-
8. Muhammad Hanif deceased was having bad character. He had much enmity in the village. The deceased took illegal possession of the Haveli of one Niamat after his death. Myself and my family members helped the wife of Niamat for returning of the illegal possession from Muhammad Hanif deceased. A case was also registered against the deceased Muhammad Hanif, Abdul Rashid complainant, Muhammad Sharif P.W. And the other brothers of Muhammad Hanif deceased for causing the injuries to the wife of Niamat and Amanat brother of Niamat deceased. Due to that reason, this case has been registered against me, and my relatives. In fact it was a blind murder.
9. The P.Ws. Have deposed against me due to the reasons mentioned above. In fact Abdul Rashid complainant alongwith P.Ws. Muhammad Sharif, Muhammad Rafique and their sons had broken the leg of Muhammad Hanif deceased prior to the occurrence. Muhammad Hanif deceased threatened them that he would not spare them. As a result, the complainant alongwith P.Ws.
14. Muhammad Sharif left their village. On the day of occurrence it was talk of the village that the deceased Muhammad Hanif has been murdered by his brothers Abdul Rashid etc. To save their own skin, they got registered this concocted case and have deposed falsely against me and my co-accused.
15. ' Reply of the other accused/appellants was almost the same.
16. ' The trial culminated into conviction of the appellants as mentioned above. They have challenged their conviction and sentence through Criminal Appeal No,763 of 1996 while the trial Court has sent up Murder Reference No,118 of 1997, under section 374, Cr.P.C. For confirmation of death sentence of Sarfraz. Both the matters are being decided by this single judgment.
17. ' The contention of the learned counsel for appellants is that the F.I.R. Was not recorded at the police station and presumption is that the same was recorded after preliminary investigation and consultation; that post-mortem examination was conducted with delay of 24 hours which creates serious doubt about the prosecution case; that the motive alleged by the prosecution has not been proved; that the presence of the prosecution witnesses at the spot has also not been proved, as complainant stated that Sarfraz accused caused two fire shots but only one injury has been found on the head of the deceased. The injury was also attributed to Akhtar alias Pervez, acquitted co-accused which shows that the occurrence was not witnessed by the prosecution witnesses; that Muhammad Hanif, P.W.7 has been disbelieved by the trial Court; that both the eye-witnesses Abdul Rashid, P.W.5 and Muhammad Sharif P.W.6 are real brothers of the deceased and their testimony has not been corroborated from any other independent source as the ocular account furnished by them has been disbelieved qua co-accused Akhtar. Reliance has been placed on 1988 SCM R 931, 1985 SCMR 555, 1997 SCM R 254 and 1999 SCM R 697. Lastly it has been argued that the deceased had enmity with others also and case of the prosecution against the appellants is doubtful.
18. ' Conversely, the appeal has been opposed by the learned counsel for the State by arguing that it was a daylight occurrence and there was no reason for false implication of the accused. Heard.
19. Record perused.
20. ' Admittedly, the case was registered on the statement Exh.P.A. Of Abdul Rashid which was recorded at Chowk Mangtanwala and presumption is that if the case is not registered at the police station the same is recorded after preliminary investigation after deliberations. Abdul Rashid, complainant P.W.5 has stated that he went to lodge the F.I.R. On Tonga which was being driven by Muhammad Hanif, deceased and he brought the Investigating Officer alongwith him on the same Tonga, but Arif Ali, P.W.10 states that he arrived at the spot in hired Tonga. The presence of Muhammad Hanif, P.W.7 has been disbelieved by the trial Court as he was resident of some other area and his claim to be resident of the same village was falsified by the complainant, P.W.5 and Muhammad Sharif, P.W.6. Abdul Rashid complainant P.W.5 had alleged in the F.I.R. That two fire shots were made by Sarfraz accused hitting on head of the deceased but only one injury was found by the doctor in post-mortem examination and the second wound was exit of injury No,1 which is clear/material contradiction in the ocular account and the medical evidence and leads us to believe that the occurrence was not witnessed by the complainant or his brother Muhammad Sharif P.W.6. It is also to be noticed that Akhtar acquitted co-accused was also attributed firearm injury caused on the head of the deceased, but he was acquitted by giving benefit of doubt as no such injury was found on the head of the deceased. The conduct of both the eye-witnesses Abdul Rashid and Muhammad Sharif was unnatural. Had they present at the spot they would have intervened to save the skin of their real brother. They never tried to apprehend or chase the accused, therefore, their physical presence at the spot is not believable. Learned trial Court while recording the statement of Muhammad Sharif P.W.6 had also noticed that he answered the questions with great pause is also relevant for consideration and this witness also admitted that he remained present in Court when the statement of the complainant was recorded, therefore, his statement is not worth reliance.
21. Another contradiction in the ocular account and the medical evidence is that Ghulam Rasool was attributed fire shot from a distance of 4/5 Karams but injury No,5 allegedly caused to him has black margins which shows that the same was caused from close range. The delay in conducting the post-mortem examination also creates serious doubt about the prosecution case as the occurrence took place at 10-00 a.m. On 5-1-1994 and the post-mortem examination was conducted at 10-00 a.m. On 6-1-1994 with unexplained delay of 24 hours. The recoveries of weapons of offence have rightly been not relied upon by the trial Court as the same was immaterial in absence of recovery of any empty from the spot.
22. ' The motive alleged by the prosecution has also not been proved by any other independent evidence.
23. After deep reappraisal of the evidence, we are convinced that it was an unwitnessed occurrence and the prosecution has failed to prove its case against the appellants beyond any shadow of doubt, therefore, by extending benefit of doubt, we allow the appeal and acquit the appellants of the charge. The death sentence of Sarfraz alias Safu is not confirmed. The appellants are directed to be released forthwith if not required to be detained in any other case.
24. ' Murder reference is answered in the negative.