IJAZ AHMAD CHAUDHRY, J.--------This judgment will dispose of Criminal Appeals Nos.378 and 379 of 1999, filed by the appellants against their conviction and Criminal Appeal No.28 of 2000 tiled by the complainant against the acquittal of Muhammad Hanif Akhtar and Yasin and Criminal Revision No.280 of 1999 for the enhancement of the sentence of Muhammad Ramzan, Akbar and Muhammad Bashir, as all these matters have arisen from a single judgment passed by the Court constituted under Suppression of Terrorist Activities Act, 1975, at Multan Division, Multan, on 26-10- 1999, by which the learned trial Court has found Ghulam Haider and Muhammad Sharif appellants as guilty of the offence under sections 302-B/109, P.P.C. And sentenced to death on two counts each who were to be hanged till their death. They were further directed to pay Rs.50,000 as compensation to the .Legal heirs of the deceased on two counts each which have to be recovered as arrears of land revenue and in default in payment of compensation, they will have to undergo six months' R.I. Each on two counts.
2. Muhammad Ramzan, Akbar, Muhammad Bashir accused in Criminal Appeal No.379 of 1999 were convicted under sections 302-B and 149, P.P.C. And sentenced to imprisonment for life on two counts each. They were directed to pay Rs.50,000 on two counts each to the legal heirs of the deceased under section 544-A, Cr.P.C. And in case of default of payment, to further undergo six months' R.I. On two counts. Benefit of section 382-B, Cr.P.C. Was extended to the appellants. Both the sentences were directed to run concurrently. However, Muhammad Amin, Yasin and Akhtar accused were acquitted from the charge.
3. This judgment has been passed by deciding the case arisen out of F. I. R. No. 103 dated 28-7-1997 at about 10-15 a. m. Registered on the statement of Muhammad Ismail (P.W.-5) at Police Station Dhanot, District Lodhran, under sections 302/324/148 and 149; P.P.C. The statement was recorded by Liaquat Ali, S.-I./S.H.O. (P.W.-11).
4. The brief facts mentioned in the F.I.R. Are that at about 9-30 a.m. He alongwith his brother Muhammad Ibrahim and Noor Muhammad were doing Godi of their cotton crop, while Muhammad Ibrahim and Noor Muhammad were taking their meal at minor Jimrani alongwith Elahi Bakhsh P.W.
The complainant started working in the nearby field. In the meanwhile Ghulam Haider armed with pistol .12 bore, Muhammad Sharif armed with .12 bore gun, Muhammad Ramzan armed with .12 bore pistol, Akbar armed with pistol .30 bore, Yasin armed with .12 bore gun, Bashir Ahmad armed with mauser, Muhammad Akhtar armed with 7 mm rifle, Muhammad Amin armed with 222 rifle came there while riding on three motorcycles, two Honda CD--70 and one Suzuki 100 CC. Ghulam Muhammad raised Lalkara that no body should be saved today and they will take the revenge of murder of their father Imam Khan. On hearing the noise, Muhammad Akbar and Jumma Khan also attracted to the spot. Ghulam Haider fired at Muhammad Ibrahim at his head with his pistol, which hit him there. Muhammad Sharif tired with .12 bore gun hitting the left shoulder of Muhammad Ibrahim. Muhammad Akbar also fired with his .30 bore pistol which hit Muhammad Ibrahim on different parts of the body. Muhammad Ramzan also fired with his .12 bore pistol at Noor Muhammad hitting on his head. Yasin also fired with his .12 bore gun at Noor Muhammad hitting him on his abdomen. Bashir Ahmad fired with his mauser at Noor Muhammad hitting on his Naaf.
Elahi Bakhsh also received injuries. Muhammad Akhtar and Amin continued firing in the air and also continued raising Lalkara that if any body came there; he would not be saved, hence they did not go near. Noor Muhammad, Muhammad Ibrahim and Elahi Bakhsh were seriously injured and the accused while saying that they have taken the revenge of murder of Imam Khan went towards their house. Muhammad Ibrahim and Noor Muhammad died due to the injures while Elahi Bakhsh was seriously injured, who was sent to the Hospital, Kehror Pacca.
5. The motive of the occurrence has been narrated as that Imam Khan father of Ghulam Haider accused was murdered and Noor Muhammad and Muhammad Ibrahim were challaned due to this reason, the accused in connivance with each other and in furtherance of their common object had committed this offence.
6. After the registration of the case, P.W.-11 Liaquat Ali visited the spot, recovered blood-stained earth with grass from the place where Muhammad Ibrahim received the injuries and blood- stained earth with grass from the place where Noor Muhammad received injuries in the presence of Jumma Khan, not produced and Akbar (P.W.-6) which were taken into possession vide Memo.
Exh.P.F. And Exh.P.G. He also took into possession three empties of .12 bore P-7/1 to 3 and five empties of pistol .30 bore P-8/1 to 5 in presence of the above said witnesses vide memo. Exh.PH and Exh.PJ.
7. The accused were arrested in this case on 8-8-1997. Ghulam Haider led to the recovery of motorcycle P-9 which was taken into possession vide memo. Exh.PK on 18-8-1997 from his residential room in presence of Mauj Din P.W.-7 and Muhammad Nawaz P.W. Not produced. The recovery was effected in presence of Liaquat Ali, Inspector/P.W.-11. On 20-8-1997 Ghulam Haider got recovered pistol P-10 in presence of same witnesses vide memo. Exh.PL. While Muhammad Sharif got recovered pistol .12 bore P-11 in presence of same set of witnesses vide memo. Exh.PM on 20-8-1997.
8. After the conclusion of the investigation, report was submitted under section 173, Cr.P.C. The charge was framed against all the accused and on their denial, the prosecution in order to prove the guilt of the accused produced 12 witnesses.
9. The prosecution evidence mainly rests on the ocular account consisting of the statements of Akbar P.W.-4 and Muhammad Ismail P.W.-6. While Meraj Din P.W.-7 had witnessed the recoveries from Ghulam Haider and Muhammad Sharif accused.
10. P.W.-9 Dr. Maqbool Ahmad conducted the post-mortem of both the deceased and also medically examined Elahi Bakhsh injured P.W. P.W.-11 Liaquat Ali conducted the investigation.
However, rest of the P.Ws. Are of formal nature. Muhammad Munawwar, D. S. P. Was examined as C.W.I.
11. The accused in their statements under section 342, Cr.P.C. Denied the allegation and have stated that they have been involved in this case due to previous enmity.
It is an unwitnessed occurrence and they have been falsely involved. They did not appear in their defence and also did not produce any defence evidence. The learned trial Judge passed the impugned judgment which has been assailed through these appeals.
12. Mr. Muhammad Iqbal Khan Khichi, Advocate, the learned counsel for the appellants-convicts contends that Imam Khan father of Ghulam Haider appellant was murdered in the year 1989', in which the deceased and the complainant were also accused and two persons from their side were sentenced to death, but subsequently their death sentence was converted into life imprisonment; that P.W.5 and P.W.6 eye--witnesses are real brothers inter se and also of the deceased and they are interested witnesses and their statements cannot be relied upon without independent corroboration which is not available in the case in hand and that prosecution evidence is also doubtful as Muhammad Ismail injured P.W. Was not produced in the case who was the only independent person present at the spot at the time of the occurrence and he was given up as unnecessary.
13. The learned counsel for the appellants further contends that the stand taken by the complainant that the deceased were taking meal is belied by the medical evidence as no undigested food was found in their stomaches by the doctor, who conducted the post-mortem. It is also contended that the medical evidence is also in contradiction with the ocular account as the empties of .30 bore have been recovered from 50 feet, while according to the witnesses, they were fired at from fourteen feet and from no other place empties of .30 bore were recovered. Also contends that empties were recovered from place No.5 while the accused were standing at place No.2 which, according to the site plan, is at about 50 feet from the place of recovery of empties, and all these facts show that the witnesses were not present at the spot. It is also contended that Muhammad Ismail and his other brothers were also accused in the previous murder case and had they been present there, they would also have been murdered. Furthermore contends that recovery is also not helpful to the prosecution, as motorcycle was recovered on 18-8-1997 in presence of Meraj Din. P.W.7 and Muhammad Nawaz (given up P.W.) and again on 20-8-1997 same set of witnesses was shown to have been present with the police at the time of recovery of the weapons of offence from the accused Ghulam Haider and Muhammad Sharif and both the P. Ws.
Are closely related to the deceased as well as the eye-witnesses and independent persons were not joined in the recovery proceedings by the police. It is also contended that Ghulam Haider appellant was shown while armed with .12 bore pistol and Muhammad Sharif appellant armed with .12 bore gun according to the complainant, but recovery was effected of 12 bore pistol from Muhammad Sharif while pistol .30 bore was recovered from Ghulam Haider and as such the different weapons have allegedly been recovered from Muhammad Sharif and Ghulam Haider. It is also contended that there are material contradictions in the statements of the eye--witnesses and the recovery witnesses.
15. The learned counsel for the appellants Sahibzada Farooq Ali, Advocate, in Criminal Appeal No.379 of 1999, has contended that the eye-witnesses are interested witnesses and their statements required independent corroboration which is not available in the case in hand as the recovery of weapons of offence was effected from Ghulam Haider and Muhammad Sharif on 20-8- 1997 while empties were recovered on 28-7-1997 which were not sent to the Forensic Science Laboratory immediately after their recovery, but all the empties and weapons were sent together on 28-8-1997, hence the report of the Forensic Science Laboratory is of no use for the purpose of corroboration also for the reason that the recoveries were shown to have been effected in the presence of close relatives of the deceased. It is also contended that after perusal of the diagram attached with the post--mortem report it becomes crystal clear that the shots were fired with .12 bore pistol as only pellets were recovered and the injures were of 1 c.m. x 1 c.m., hence the medical evidence is in contradiction with the ocular account. It is also contended that the empties were recovered from point No.5 while the accused had fired shots from a different place. It is emphasised that the F.I.R. Is shown to have been recovered within 45 minutes of the occurrence, while the distance between the Police Station and place of occurrence is 15 kilometres, which is not possible, hence the F.I.R. Cannot be termed to have been lodged with promptitude. It is also contended that the only independent witness Elahi Bakhsh was withheld by the prosecution without bringing anything on record to prove that he was not fit to make the statement, but he was given up being unnecessary by the prosecution which causes serious doubt in the prosecution case as he was the only witness who was independent being not related to any of the parties and obviously was not interested in the acquittal or conviction of any of the accused. Further contends that the eye--witnesses were not present at the spot, who were later on introduced as such by concocting prosecution story.
16. On the other hand, the learned counsel appearing on behalf of the complainant, who is also counsel in Criminal Appeal No.28 of 2000 filed against the acquittal of Muhammad Amin, Akhtar and Yasin contends that the same evidence is available against the respondents and they are also liable to be convicted. Also argues in favour of the acceptance of Criminal Revision No.280 of 1999 for the enhancement of sentence of Muhammad Ramzan, Bashir and Muhammad Akbar from life imprisonment to death, as they had acted in a brutal manner and two persons had lost their lives and they are not entitled to any leniency. While defending the prosecution case, has stated that two persons were murdered; the empties recovered from place of occurrence had matched with the weapons recovered from appellants Ghulam Haider and Muhammad Sharif; it is day light occurrence; and the culprits had a motive to murder both the deceased being related to Imam Khan. About non-production of Elahi Bakhsh P.W. He has referred to the cross-examination of Muhammad Ismail P.W.-5, wherein, he stated that he was not fit to make the statement and doctor had also-found him un--fit at the time of his examination to make the statement, hence no inference can be drawn against the prosecution due to this reason, while motive has been proved which though is double-edged weapon yet provides corroboration to the ocular account: Also contends that whether the deceased had been taking the food or not immediately before the occurrence is a question which has not been got resolved during the cross-examination, hence it cannot be said, if the doctor has not found undigested food in the stomaches of the deceased that it contradicts the version of the complainant. Lastly contends that all the accused had formed unlawful assembly. And in furtherance of their common object had launched attack on the complainant party, hence all the accused were responsible for the commission of the offence and are liable to be awarded capital sentence. Reliance has been placed upon 2000 SCMR 1855 that mere close relationship of the witnesses inter se or with the deceased is not sufficient to discard their evidence. Further contends that non-- effecting of recovery from the remaining accused was due to their belated arrest and no adverse inference can be drawn and the accused are also guilty of offence under section 324, P.P.C. Relies upon 2002 SCMR 1428 and 2002 SCM R 1851.
17. The learned State Counsel has also opposed the appeal filed by the convicts.
18. We have heard the arguments advanced from both the sides and with their help perused the available record.
19. The ocular account consists of the statements of Muhammad Ismail P.W.-5 and Akbar P.W.-6. It is an admitted fact that both these eye-witnesses are real brothers of both the deceased. The previous enmity existed between the parties is proved on record as Imam Khan father of Ghulam Haider accused and brother of Yasin was murdered and the accused-appellants are closely related inter se as well as to Imam Khan whereas the complainant etc. Including both the deceased were challaned as accused. Hence it can safely be said that both the eye-witnesses .Are interested witnesses. If the accused had a motive to commit the murder of the deceased, the witnesses had also motive to implicate the accused for the murder of their real brothers, even if, it was unwitnessed occurrence as motive is always termed as double-edged weapon. It is also admitted fact that all the major members of the families of the accused have been involved in the case in hand. The statements of these witnesses due to previous enmity have to be taken into consideration with due care and caution to ascertain whether they were present at the spot at the time of occurrence or not.
20. According to the prosecution story, at the time of occurrence, Muhammad Ismail complainant was doing Goddi while both the deceased and Muhammad Ismail were taking their meals and P.W.-9 Dr. Muhammad Maqbool while conducting the post-mortem of these two deceased persons had not found any piece of undigested food in the stomaches of both the deceased which negates the prosecution version and creates doubt about the presence of the eye-witnesses.
21. The presence of these witnesses is further negated after the perusal of the site plan prepared by P.W.-I, Qurban Ali Patwari on the instructions of these P. Ws. According to the site plan, the deceased Noor Muhammad received injuries at place No.1, while Muhammad Ibrahim deceased received injuries at place No.2 which is 33 feet from place No.1. Place No.4 has been mentioned from where the accused had fired at the deceased. But the recoveries have been effected from place No.5. Place No.5 is about 50 feet away from place No. 1, while the accused had fired from place No.4 which is in the centre of the bank of canal. The empties have not been recovered from the place from where they were allegedly fired. The presence f of the empties at place of 50 feet away negates the presence of the accused at place No.4 at the time of firing on the deceased persons. It is also strange that Muhammad Ibrahim and Noor Muhammad alongwith Elahi Bakhsh who were present at different places Nos. 1, 2 and 3 which were at considerable distance from each other had received the injuries from their back side and did not receive the injury from the front side. It is strange that when the eight accused had arrived on three motorcycles in the village, their noise attracted the eye-witnesses and others but did not attract the deceased and they continued taking meals facing towards their opposite side. It means that the shots were not fired as have been stated on the deceased and the story that all the accused had come at the spot on the three motorcycles is doubtful for the reason that it had not attracted the deceased to have turned themselves towards the accused. P.W.-5 during cross-examination stated that Imam Khan father of Ghulam Haider was murdered in 1989. Muhammad Ramzan accused was complainant in that case while Din Muhammad, Shabbir, Noor Muhammad, Rasheed, Majid, Sufaid Khan, Muhammad Ibrahim, Akhtar, Fajra and P. W.-5 were the accused. Also stated that in the aforesaid case, Din Muhammad and Bashir were sentenced to death while Noor Muhammad was sentenced to imprisonment for life while the remaining accused were sentenced to one year R.I. According to P.W.-5 in appeal before the High Court, Din Muhammad and Bashir were sentenced to imprisonment for life. From the bare perusal of the cross-- examination it reveals that the same enmity and grudge also existed against the complainant which was against both the deceased, but he was not fired at which also casts doubt in the prosecution story. No doubt, it is up to the prosecution to produce as many witnesses in support of its version as it thinks fit, but in the peculiar circumstances of this, when both the eye-witnesses produced as P. Ws.-5 and 6 were admittedly interested witnesses due to the previous enmity between the parties proved on record, the non --production of Elahi Bakhsh, the only injured P.W. Whose presence at the spot could not be doubted in normal circumstances, casts serious doubt in our mind about the prosecution case.
Though the complainant P.W.-5 during cross-examination tried to explain that he was not being produced as was not mentally fit yet at the same had stated that Elahi Bakhsh had joined the investigation alongwith him and made the statement before the 1.0. In such circumstances, we are not in agreement with the learned counsel for the complainant that he was medically unfit to make the statements, without being supported this fact by any medical certificate, rather he was given up being unnecessary. Hence, an inference can easily be drawn that he was not produced being unwilling to support the prosecution case.
22. Due to the above reasons, we are not satisfied that Muhammad Ismail P.W.-5 and Akbar P.W.-6 were present at the spot and had witnessed the occurrence. It is not safe to rely upon the statements of these witnesses for the conviction of the accused for an offence punishable with capital charge. The quantity of evidence is not required but the quality of the evidence has to be appreciated for the conviction of an accused person in an offence where sentence of death or life imprisonment can be awarded to the accused.
23. Now we come to recoveries effected in this case, which could be corroborative piece of evidence to the ocular account, which has been discarded in this case in the preceding paragraphs. The alleged weapons of offence were recovered from Muhammad Sharif and Ghulam Haider appellants. Ghulam Haider and Muhammad Sharif were arrested on 8-8-1997 while motorcycle was recovered on 18-8-1997 from the residential room in presence of closely related witnesses Meraj Din and Muhammad Nawaz, but after two days pistol p-10 was recovered from the same place in presence of the same witnesses on 2-8-1997 and none of the independent witnesses were joined in the recovery proceedings. It. Is also admitted that the residential house from where the recovery was effected, was not exclusively in possession of the appellant Ghulam Haider. Similarly, pistol .12 bore was shown to have been recovered from Muhammad Sharif on 20- 8-1997 in presence of the same set of the witnesses, while in the F.I.R. He was shown to be armed with gun .12 bore at the time of the occurrence and the complainant during cross-examination claimed to be well conversant with the type of different weapons. Now there is another aspect of the case. Though empties were allegedly recovered from the place of occurrence on 28-7-1997 yet the same were not sent to the Forensic Science Laboratory and their despatch to the said office was delayed till the recovery of weapons of offence from the appellants as stated above and the empties alongwith weapons of offence were sent on 28-8-1998 to the Forensic Science Laboratory, which creates doubt about the credibility of its report Exh.P which though is in positive. Non- sending of the crime empties to the Forensic Science Laboratory immediately after their recovery creates doubt about their recovery from the place of occurrence as the Inquest Reports Exh:PP and Exh.PS do not find mentioned the presence of the crime empties at the place of occurrence and the dead bodies in its Columns Nos.2 and 3. In such circumstances non-sending of the crime empties to the Forensic Science Laboratory immediately after their recovery coupled with the non- mentioning of the crime empties in the Inquest Reports (Exh.PP and Exh.PS) is sufficient to draw an inference that the crime empties were manoeuvred after the recovery of the alleged weapons of offence from the appellants. Moreover, P.W.-10 also admitted during cross-examination that parcels were returned with the objection from the office of Forensic Science Laboratory that seals were not intact, though in the same breath he showed ignorance from the same being not recollected and stated that it was the duty of the I.O. To remove the objection. In such circumstances, it is not safe to rely upon the recoveries as corroborative piece of evidence.
24. For the foregoing reasons, we are of the considered view that the prosecution has miserably - failed to bring home the guilt against the appellants beyond any shadow of doubt. Therefore, the impugned judgment of conviction and sentence is set aside, both Criminal Appeals Nos.378 and 379 of 1999 are accepted and the appellants are acquitted of the charge by extending them the benefit of doubt. The reference sent for confirmation of death sentence is replied in the negative. All the five appellants are in custody and shall be released forthwith, if not required in any other case.
25. Due to the above reasons, Appeal No.28 of 2000 filed against the acquittal of Muhammad Amin, Akhtar and Yasin respondents and Criminal Revision No.280 of 1999 for the enhancement of the sentence of Ramzan etc. Are dismissed.