' M.NAEEMULLAH KHAN SHERWANI, J.---Shoaib son of Mushtaq and Khalid Parvez alias Guddu son of Gulzar were tried by a learned Addl. Sessions Judge at Sheikhupura for committing murder of Irfan son of Fazal and murderous assault upon Naseer Ahmad (P.W.3). The said learned Judge by virtue of his judgment dated 27-4-1995 found them guilty of the said charges, convicted them under sections 302 (b)/34, and 337-F(vi), P.P.C. And sentenced them as under:- Under section 302(b), P.P.C.
' Shoaib son of Mushtaq was punished with death whereas Khalid Parvez alias Guddu was sentenced to imprisonment for life. A fine of Rs,10,000 each was also imposed upon them or in default whereof to further undergo Rigorous Imprisonment for three months.
Under section 337-F(vi), P.P.C.
' Khalid Parvez alias Guddu was sentenced to Rigorous Imprisonment for three years. He was also directed to pay Rs,3,000 to Naseer Ahmad (P.W.3) as Daman. In default of payment of Daman, he was ordered to be kept in jail under section 337-Y (ii), P.P. C .
' The sentences awarded to Khalid Parvez alias Guddu were ordered to run concurrently. Benefit of section 382-B Cr.P.C. Was also extended to him.
2. Murder Reference No,61 of 2000 seeks confirmation of sentence of death awarded to Shoaib convict whereas Shoaib and Khalid Parvez alias Guddu by filing two separate Appeals No,424 of 1995 and 434 of 1995 respectively have approached this Court to call in question the said convictions and sentences passed against them by the said learned Judge. Muhammad Parvez son of Fazal Ahmad complainant filed Criminal Revision No,457 of 1995 praying therein that Khalid Parvez alias Guddu convict be sentenced to death whereas Shoaib convict be ordered to pay compensation to legal heirs of the deceased. We propose to dispose of all these matters together through this single judgment.
3. Occurrence of the alleged incident took place on 16-3-1993 at 5-30 p.m. At Machheke Bus Stand, situate at a distance of four miles from Police Station Sadar, Sheikhupura. The said occurrence was reported by Muhammad Parvez son of Fazal Ahmad (P.W.5) to Riasat Javed S.I/S.H.0 (P.W.11) at the police station, who drew up F.I.R. Exh.P.G as per dictation of the complainant on the same day at 7- 30 p.m.
4. Muhammad Parvez complainant (P.W.5) puts the matter succinctly by stating that he is resident of village Ghangh. On the fateful day, he left for Lahore to pursue his brother's case and on his return on that very day, he alighted from bus at Adda Machheke at 5-30 p.m. Rasheed, his brother was waiting for the passengers by parking his Tonga at the said stop. His' brother Irfan and Naseer alias Kaku were approaching Machheke Tonga Stop from the side of Doaba Rice Mills and they were at a distance of 15/20 yards from Tonga of Abdul Rasheed, when Shoaib and Khalid Parvez, appellants armed with pistols, came running while abusing Irfan. They pronounced openly that today Irfan will not be allowed to go alive. He will be taught a lesson for acting as an informer.
Shoaib made a shot at Irfan striking him on his right abdominal region. He fell down. Naseer alias Kaku apprehended Shoaib, whereupon Shoaib made a shot at Naseer striking him on his left thigh.
He also fell down after sustaining this injury. Complainant, his brother Rasheed alias Saeen and Mumtaz (P.W.4) made an advance to catch hold of the accused. Accused took to their heels while firing. Irfan succumbed to his injuries at the spot.
' Motive behind the occurrence was that Irfan laid an information about activities of the accused.
About 2/3 days before this occurrence a quarrel ensued between the two sides. The people intervened and separated the two sides. Just because of this reason, Shoaib etc. Killed Irfan after having counselled with each other. Complainant deputed Rasheed alias Saeen and Mumtaz P. Ws.
To guard against the dead body of Irfan and shifted Naseer alias Kaku to the hospital for his treatment. He obtained his medico-legal report and left for the police station. Complainant established contact with Riasat Javed, S.I/S.H.O (P.W.11), who drew up F.I.R. (Exh.P.G) as per his dictation without any addition or subtraction on his part. The machinery of law was put into motion by the complainant in this manner.
5. Since it was a heinous crime of murder, Riasat Javed, S.I./S.H.O (P.W.11) took up the uphill task of investigation. After recording . Statement of complainant (Exh.P.G), he rushed to the spot without further loss of time. He inspected the dead body of Muhammad Irfan, prepared inquest report (Exh.P.H) and dispatched the dead body to the mortuary for autopsy purposes under the escort of Abdul Rashid (P.W.8) and Ghulam Nabi Constable (not produced). He collected blood-stained soil from the place of occurrence, made the same into a sealed parcel and prepared seizure memo.
(Exh.P.F), duly signed by Rashid (P.W.8) and Mumtaz Hussain (P.W.4). He prepared rough site plan (Exh.P.M.) of the place of occurrence. He arrested both the accused on 2-4-1993. He got prepared site plans (Exh.P.K & P. K/1) from Rab Nawaz , Draftsman (P.W.9). He prepared injury statement (Exh.P.L/2) of Naseer Ahmed. Nasir Ali Shah (P.W.12) partly investigated this case. Shoaib accused led to the recovery of pistol (P.1) from the bank of Rajbah of Mirza Virkan, which was taken into possession by him vide memo. (Exh.P.A), duly attested by Muhammad Naseeb (P.W.1) and Bashir Ahmad (not produced). On 16-4-1993, Khalid Parvez got recovered pistol (P.2) along with two live cartridges from area ' of Machheke brick kiln, which was taken into possession by him vide memo.
(Exh.P.B), duly attested by Abid Hussain (P.W.2) and Muhammad Siddique (not produced). He recorded statements of all the Televant witnesses under section 161, Cr.P.C.
' Riasat Javed (P.W.11) after completion of investigation, submitted the challan against the accused to face trial in accordance with law.
6. On receipt of challan, the learned trial Court subjected the same to necessary scrutiny and found it fit in all respects to proceed with the trial. The trial Court after observing necessary formalities framed charge against the accused to which they, pleaded not guilty and claimed to be tried. At this eventuality, the prosecution was directed to produce its evidence against the accused to prove its case against the accused beyond any shadow of doubt. The prosecution ventured to produce as many as twelve witnesses.
' Most prominent of all these witnesses are Muhammad Naseeb (P.W.1), Abid Hussain (P.W.2), Naseer Ahmad alias Kaku (P. W.3), Mumtaz Hussain (P.W.4), Muhammad Parvez (P.W.5), Pr.
Muhammad lam (P.W.6) and Dm: Muhammad SiMique (P.W.10).
' Muhammad Naseeb (P.W.1) and Abid Hussain (P.W.2) testified to the factum of recoveries, while the statements of remaining witnesses will be discussed during appraisal of evidence.
7. The learned Prosecutor gave up remaining witnesses and after tendering in evidence report of - Chemical Examiner (Exh.P.N) and that of Serologist (Exh.P.0), declared the prosecution case close.
8, The accused were then examined under section 342, CrP.C. To enable them to offer handsome explanation with regard to their alleged involvement in the occurrence. They vehemently controverted the allegations brought against them and alleged their false involvement in the occurrence, due to party faction and local political rivalry. They opted not to make their statement on oath as envisaged by the relevant provisions of section 340(2), Cr.P.C, in disproof of accusation brought against them. They produced two witnesses in defence.
9. The learned trial Judge after hearing both the sides and taking everything into his full consideration pronounced verdict of guilt against the appellants as aforementioned.
10. Learned counsel for the appellants while strenuously arguing this appeal submits that prosecution evidence is not reliable because ocular account is awfully contradicted by the medical evidence and their presence at the spot was extremely doubtful, that Naseer Ahmed alias Kaku (P.W.3), who made three divergent statements, ceases to be reliable, that Mumtaz Ahmed (P.W.4) was also relative of the complainant side and had made two statements, that motive was not proved and Investigating Agency did not collect a little bit of evidence to establish it, and that no crime empty could be secured by the police during the spot inspection and for that reason recoveries, if any, were of no avail to the prosecution.
11. Conversely, learned counsel for the State assisted by learned 'counsel for the complainant submits that presence of the eyewitnesses was natural and there is no dispute with regard to material facts like, time, date and place of occurrence. Witnesses were reliable and had no enmity with the appellants. There was no serious defect in the prosecution evidence, whith may be sufficient for dis-belieing the same.
12. We have courteously heard and soberly considered respective arguments of both the sides.
Now we enter into the realm of scrutiny and weightment of evidence. Evidence is the basis of justice. The backdrop of the prosecution story is the following.
' On 16-3-1994 at about 5-30 p.m., Muhammad Pervaiz (P.W.5) was coming from Lahore and alighted from bus at Machheke Tonga Stand. Abdul Rasheed alias Saeen his real brother was standing there along with Tonga waiting for Tonga passengers. Mumtaz P.W. Reached there. At that time, his brother Irfan and Naseer (P.W.3) were coming towards the Tonga Stand from the side of Duaba Rice Mills. When they were hardly at a distance of 15/20 yards from the Tonga Stand, appellants arrived there having pistols in their possession. They started abusing Irfan for having furnished intelligence to the police. A scuffle ensued, during the course of which Shoaib made a shot striking at the right buttock of Irfan, who fell down. Naseer alias Kaku apprehended Shoaib accused upon which Khalid Pervaiz alias Guddu accused fired at Naseer which hit him on the left thigh, who also fell down. The witnesses made an advance to catch the accused, but they became successful in levanting from the spot while still firing. Irfan met his instantaneous death at the spot.
Naseer was taken to the hospital in an injured condition by Muhammad Pervaiz. Mumtaz remained with the dead body.
' Shoaib and Khalid Pervaiz allegedly dealt in sale of narcotics and had a doubt that Irfan was furnishing information to the police regarding this affair. Even 2/3 days before the occurrence a quarrel took place between the accused and Irfan and it was for that reason that the crime in question was committed by them. Muhammad Pervaiz (P.W.5) is the complainant. Naseer Ahmed (P.W.3) and Muhammad Hussain (P.W.4) have been produced as eye-witnesses by the prosecution. Rasheed was given up by the learned Public Prosecutor. More or less they have made similar statements. Specific stand of (P.W.5) in the first information report was that Shoaib made a shot with his pistol striking on the right side of abdomen of Kan deceased.
13. In order to verify genuineness of this allegation we have to consult the post-mortem report. Dr. Muhammad Aslam (P.W.6) conducted autopsy on the dead body of Muhammad Irfan deceased.
He observed following injuries on his person:-
(1) A fire-arm wound of entry 0.5 c.m. x 0.5 c.m. On. Right buttock, upper and inner part, 3 c,m. From midline making an exit wound 3 c.m. x 2 c.m. On the front of abdomen right lower part, 5 c.m. From the right angle of hip bone. On dissection skin, muscles, blood vessels, hip bone on right side paritonium, small and large intestines, mesentry were damaged in the path way of the injury.
Abdominal cavity was full of blood.
(2) Two abrasions each measuring 1 c.m. x 1 c.m. In an area of 3 c.m. x 2 c.m. On the back of abdomen mid-part just left to the midline.
' The analysis of contents of postmortem report reveals that entry wound was on right buttock of the deceased and exit wound was on front of abdomen on right lower part. There is no entry wound on abdomen, so specific part assigned to Shoaib is not in consonance with the medical evidence.
There is a patent inconsistency between the ocular account furnished by the complainant through his F.I.R. When complainant came to know that story told by him has been torn into pieces by the medical evidence, then not only the Investigating Officer but also the complainant thought of ways and means to overcome this situation. The Investigating Officer fabricated a supplementary statement in which locale (situs) of injury was changed.
14. The next important circumstance is that it is in evidence that the shot made on the deceased was from a close quarter from a distance of one foot. No blackening, charring or tattooing could be observed or found by the Doctor. Whenever shots are made from this much distance, this phenomenon was bound to occur. P.W.5 Muhammad Parvez also stated that he removed Naseer to the hospital where he was medically examined and admitted to hospital and after obtaining medico-legal report, he 'went to the police station to lodge the F.I.R. The statement of Dr. Muhammad Siddique (P.W.10) is very clear on this point. According to him Naseer Ahmad was brought by ,one Ashraf. He does not name Muhammad Parvez. This Doctor had examined Naseer Ahmad (P.W.3) on 16-3-1993 at 7-00 p.m. He observed following injury on his person:-
1. A tire-arm wound of entry .7 c.m. x .7 c.m. On front of -thigh mid part making an exit wound .8 c.m. x .8 c.m. Back of the thigh mid part.
' The length and the breadth of the entry wound is .7 x.7 c.m. On front .Of left thigh mid part and the size of the exit would is .8. x .8 c.m. On back of the thigh mid part. This wound was allegedly produced by the discharge of a pistol. We areIafraid that these type of injuries could not have been produced by the use of pistol. The shot appears to have been made right from front, which after striking front of thigh made its exit from back of thigh. Only a small circular wound could be produced by the pistol pullet.
15. The matter does not rest here. There are additional circumstances which we are bound to consider These circumstances are as under:-
(i) This injury was kept under observation. X-rays as advised and matter was referred to Surgeon for his opinion and advice. No X-rays report or opinion of the Surgeon is there.
(ii) Clothes of victim of assault were not taken into possession which were bound to be blood- stained and there should have been corresponding perforations. Had he been wearing the clothes, corresponding perforations would have been encircled and initialed by the Doctor. The police was legally bound to secure these clothes because genuineness of statement of the victim of assault was to be determined through examination of the clothes as well. The Doctor did not find blackening or charring , around this wound.
(iii) The Doctor failed to describe reasons, for declaring this injury to have been caused by the discharge of a firearm. The doctor was not supplied either the report of the Radiologist or report of the Surgeon, so he could not have furnished a definite opinion about the nature of injury.. All that a Doctor states, is not gospel's truth. We have to take every thing into our full consideration before an opinion of the Doctor can be accepted as true and genuine.
16. For the afore-mentioned facts and circumstances, we are not prepared to agree with the opinion of the Doctor that it was a fire-arm injury. We may also point Out that whenever a through and through injury is produced over thigh which is a fleshy area of the body, surgical intervention is always there. Strangely enough, operation notes are not available in, post-mortem report or Doctor's statement. This injury should have resulted in profuse haemorrhage. Blood should have fallen on the ground. No blood was secured by the police from the place where allegedly Naseer Ahmad (P.W.3) fell on the ground. According to statement of Muhammad Parvez (P.W.5), he not only signed the F.I.R. But also thumb marked the same. F.I.R. (Exh.P.G) does not bear thumb mark.
During course ~of cross-examination, Muhammad Parvez (P.W.5) admits that he furnished locale of injury on the abdomen of Irian but later on, as we find, he changed his version to reconcile his statement with the medical evidence. He admits that the shot was-made when the assailant and the assaultee were grappling from a distance of one foot only. No blackening or charring of wounds is there. He admits that five to ten shots were made by the accusei while fleeing away from the spot. Two empties had been taken into possession by the police but the ' record. Indicates that no empties were secured-by he police during course of spot inspection. He denies that more tongas were available at the spot. He does not admit of the presence of anyone at the spot which is absolutely false. According to him, many persons came after the occurrence but they were never associated in the investigation. Doabi Rice Mills is situate at a distance of 4/5 acres from the place of occurrence. If the appellants had to commit the crime in question, then they would have killed him when he was coming from the Rice Mills. Killers always adopt special measures to conceal their identity. Why they shoed have chosen to kill him at the Tonga Stand. According to him, Boota, Shafique and Iqbal had separated the accused and the deceased while quarrelling with each other 2/3 days prior to the present occurrence. They are impartial persons of the village. They are not cited as witnesses. Their names were not furnished to the Investigating Officers. The complainant also failed to produce them before the police to prove motive part of the occurrence..
He did not give time and place of occurrence of the previous incident in his statement. He by himself was not present at the spot at that time but changed his statement abruptly. He was not present during the alleged first incident. He' also admits that Irfan was neither a witness nor complainant in any case against the accused. He had no knowledge about registration of any narcotics case against the accused'. He did' not produce any witness before the police to prove motive part of the occurrence. Throughout investigation, no effort was ever made either by the complainant or by the police to prove that the accused dealt in business of sale of heroin. Thisspiece of evidence could not be proved by the production of some evidence of convincing nature. Muhammad Parvez (P.W.5) did not produce any ticket or any other document to prove that he was coming from Lahore on the relevant day of occurrence. His presence at the spot is rendered doubtful, for the obvious reasons, That ocular account furnished by' him is in direct conflict with the medical evidence and that his presence in the hospital with Naseer Ahmad (P.W.3) is not established. Had he taken Naseer Ahmad (P.W.3) to the hospital, then his name should have been mentioned in the medico-legal report.
17. Mumtaz Hussain (P.W.4) stated that he too was coming from Lahore to' his village. He also states that Shoaib and Irfan were grappling, during course of which Shoaib made a shot at Wan. This witness states that the along with Khalid Parvez and Abdul Rasheed went towards the accused.
This conduct of the witnesses runs counter to the natural probabilities. Unarmed witnesses are not expected to go after armed accused to catch them. This witness has not explained as to why and under what circumstances, he had gone to Lahore. He has set up a false excuse to justify his presence at the spot. During cross-examination, he admitted this fact that he made his statement before the police at the spot and then second statement at the police station and both the statements were of the same nature. He admits that second statement was got recorded after the post-mortem had been conducted. ' At the time of recording of second statement complainant was present with him. This fact clearly suggests that second statement was meant to bring about a , change regarding seat of injury on the person of Han deceased. His statement is Exh.DB which was recorded at the police station. Why his statement was not made available by the prosecution.
He made no mention of this fact in his. Statement Exh.DB that he was coming from Lahore. He runs a private school at his residence in the village and he used to teach Holy Quran in the month of Ramzan to the children of the locality in the evening. His presence at the spot is not, acceptable. He did not state in Exh.DB that Khalid Parvez and Abdul Rashid P.Ws. Were present with him prior to the occurrence. He did not state in Exh.DB the fact of 15/20 yards and arrival of the accused from northern side across the road. He had stated in Exh.DB that the accused persons were also available at the spot. He has changed his statement to bring his statement in line with the statement of complainant. He has effected several deliberate improvements in his statement and was, duly confronted with his previous statement.
18. .Next important thing to be seen is that Muhammad Ashraf is husband of sister of Mumtaz (P.W.4) and is maternal uncle of Irfan deceased. One Nisar was murdered in the village earlier to this incident. Khalid, Irfan deceased and Farooq were named in the F.I.R. As culprits. Irian was acquitted whereas Khalid and Farooq were convicted. It was suggested to this witness that Mushtaq, father of Shoiab accused used to help the family of Nisar for the said murder case and for that reason the complainant party had grudge and enmity against the accused and Mushtaq. He does not know that Irfan was an informer of the police or not. This witness got registered a case under section 307; P.P.C. Against one Ghulam Jelani. His father was allegedly given a Chhuri blow by Ghulam Jelani. He denied the suggestion that case was found utterly false and he was proceeded against for an offence under section 182, P.P.C. This witness has stated that from Tonga Stand no path leads to any village except village Ghangh. He admits that Naseer and Irfan deceased had never passed any intelligence information about the accused to the police. This witness stated that the accused and the deceased were grappling at the reel ant time of occurrence. The manner and mode of grappling, described by him is sufficient to falsify the prosecution story. His presence at the spot is rendered doubtful because of inherent defects in his statement. He is a related witness and had failed to furnish explanation about his presence at the spot. We discard his evidence as his testimony inspires no confidence at all.,
19. As regards Nasir Ahmad alias Kaku P.W. 3, this witness does not state that he was shifted to the hospital by the complainant. He made a statement at 7-00 p.m. In the hospital. The F:I.R. Was recorded at the police station at 7-30 p.m. If it were so, then the F.I.R. Should have been recorded on his statement. He did not state before the police that he was coming along with Irfan towards Tonga Stand. He admits that 15/20 shops are located near that Tonga Stand. His statement contradicts statement of Mumtaz (P.W.4). According to, him, residential houses were also available near the Tonga Stand. This occurrence took place on Lahore-Sargodha Road which is a main road.
He admits that from the place of occurrence paths and thoroughfares lead to Farooqabad, Kaloke, Ghangh and Jhamke. He also admits that few Tongas were available there. This part of his statement is contradictory to the statement of Mumtaz (P.W.4). He 'admits that his statement under section 164 Cr.P.C. Was recorded by a Magistrate. He alleged that his statement was got recorded under duress and coercion and he was taken to the Court of a Magistrate on a car forcibly. He denied having executed affidavit Exh.P.W.3/E. He denies having appeared before any Oath Commissioner for attestation of affidavit on 18-5-1995. He denies having exonerated the accused from the commission of crime through the said affidavit. According to him, Han was not informer of the police. He stated that Khalid, Farooq, Saeen, Kala and Parvez are brothers of the deceased. He admits that Nisar Ahmad son of Aziz was murdered prior to the occurrence in question. He denies the fact that Farooq, Khalid and Irfan deceased were arrested in the said murder case. The house of Nisar deceased is situate at the back of house of Shoaib accused. He denies that accused party used to favour Nisar deceased party at the time of investigation and other proceedings. He also denies knowledge that father of Shoaib appellant used to pursue the murder case of Nisar deceased. He did not state before the police that Irfan and Shoaib grappled with each other. His statement before the police is Exh.DA.
20. The accused had produced two witnesses in their defence D. W.1 Abdul Ghaffar Sheikh.
Advocate District Courts Sheikhupura was working as Oath Commissioner in the Courts premises Sheikhupura for the last 7/8 years. Exh.P.W.3/E affidavit was attested and signed by him , on 18-5- 1993 on the presentation of Naseer Ahmad son of Muhammad Ibrahim. The affidavit bears his seal.
The contents of the affidavit were read over to the deponent and his thumb impressions were taken in his presence. His number of National Identity Card was also recorded by him.
21. Muhammad Usman-ud-Din, Magistrate 1st Class, Hafizabad was produced as D.W.2. This witness was acting as Magistrate Sheikhupura during the days of occurrence and on 19-9-1993 Naseer Ahmad preferred his application Exh.D.C. Through his counsel for recording his statement under section 164 Cr.P.C. In case F.I.R.. No,163/1993 registered under sections 302/337/34, P.P.C. At Police Station Sadar, Sheikhupura. He recorded his statement after completing formalities. His statement is Exh.P.W.3/C. It was signed by him. His certificate is Exh.DC/1. It was read over to the deponent who thumb marked the same in token of its correctness.
22. While appearing before the Magistrate along with his counsel Ch. Asghar Ali, Advocate he never complained of coercion or duress or pressure, exerted upon him through any quarter for making statement. 'He made statement Exh.P.W.3/C voluntarily according to his own will and consent. He fully knew that he was before a Magistrate and was not bound to make any such statement. In his statement he stated before the Magistrate that he was an injured eye-witness in the case and Shoaib had not made any shot at the deceased. He also stated that Shoaib had been falsely implicated in the case. Then in Exh.P.W.3/E he stated that two unknown persons resorted to firing in consequence of which not only Irfan but he himself sustained injuries. Irfan died after some time at the spot. He also stated that neither the complainant nor Rashid alias Saeen Mumtaz were present at the spot and they had seen the occurrence. He in clear-cut terms stated that Shoaib and Khalid Parvez were absolutely innocent in the matter and stood implicated in the case due to enmity. This witness is guilty of making highly contradictory and conflicting statements. He who makes mutually contradictory and inconsistent statements is not to be listened to. This is a cordinal principle regarding appreciation of evidence. He seems to have no regard for truth. In our estimation none of the eye-witnesses is reliable. They are wholly unreliable witnesses having no respect, for truth. Their statements are swollen with innumerable deliberate dishonest improvements and it would be highly dangerous to place explicit reliance upon their testimony. We reject their testimony as a whole. This case is pregnant with innumerable doubts and by providing benefit of doubt to the appellants quash their convictions and sentences and acquit them of the charges. They are directed to be released from custody if not required to be detained in any other case. Death sentence is not confirmed and murder reference is answered in the negative.
' In view of above observations, Criminal Appeals Nos.424 and 434 of 1995 are allowed, whereas Criminal Revision No,457 of 1995 is dismissed.