' MIAN MUHAMMAD NAJUM-UZ-ZAMAN, J.-- Appellants were tried by the Sessions Judge, Sargodha for the murder of one Atta Muhammad in case F.I.R. No,108 of 1995 under section 302/34, P.P.C.
Registered at Police Station Midranjha, District Sargodha who vide judgment, dated 9-5-1998 convicted all the four appellants under section 302(b)/34, P.P.C. Muhammad Riaz and Sultan appellants were sentenced to death and to pay Rs,30,000 each as compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C. Or in default whereof to further undergo imprisonment for six months. Muhammad }Jaya( and Muhammad Yousaf appellants were sentenced to imprisonment for life and were directed to pay Rs,30,000 each as compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C. Or in default whereof to further undergo imprisonment for six months.
2. Being aggrieved of the impugned judgment, appellants have filed Criminal Appeal No,456 of 1998. Whereas, Muhammad Nazir, complainant has filed Criminal Revision No,248 of 1998 seeking enhancement of sentence of Muhammad Hayat and Muhammad Yousaf (respondents) as well as the enhancement of the compensation against all the respondents. A Reference (Murder Reference No,162 of 1998) under section 374, Cr.P.C. Has also been made by the learned trial Court seeking confirmation of death sentence a*arded to Muhammad Riaz and Sultan accused/appellants.
3. Atta Muhammad was done to death in the area of village Ghaus Muhammad Wala situates at about 11 kilometres from the Police Station Midranjha. The report was lodged by Muhammad Nazir, P.W.3 real brother of the deceased and formal F.I.R. Exh.P.A./1 was registered.
4. The story of the prosecution case as narrated in the F.I.R. Is that on 23-5-1995 Atta Muhammad deceased along with Ansar lqbal and Zafar lqbal, brother, son and nephew respectively, of the complainant had gone to the workshop of a mechanic at Ghaus Muhammad Wala for the repair of the tractor as the tyre tube of the said tractor had worn out. At about 4-30 p.m. Atta Muhammad in order to send his son Anser to fetch new tube from Sargodha, stopped a truck. Statedly at the same moment a Barat was also passing by near them when suddenly Riaz son of Bati, Sultan Ali son of Lala being armed with 7 mm rifles, Hayat son of Malku and Yousaf son of Hayat armed with .12 bore guns also came there and started firing. Statedly fire made by Riaz accused hit Atta Muhammad at the back near the right shoulder. The fire made by Sultan accused hit Atta Muhammad on the back near the left shoulder. Hayat and Yousaf accused while raising Lalkaras also made firing at the complainant party. Statedly due to the intervention of participants of the Barat as well as Ansar and Zafar lqbal P.Ws. The accused while making firing decamped from the scene of crime.
' The motive for this offence as narrated in the F.I.R. Was that in the year 1988 the complainant party quarrelled with Khizer Hayat, brother of Sultan Ali (accused). During this occurrence Khizer Hayat was injured and one Hayat Muslim Sheikh from the appellants party was murdered. Statedly because of the said grouse the accused had committed the murder of Atta Muhammad.
' After the occurrence Atta Muhammad in injured condition was removed to the D.H.Q. Hospital, Sargodha where he was medically examined by Dr. Muhammad Afzal P.W.9. The doctor observed two firearm entry wounds with exits on the person of Atta Muhammad and prepared Medico-legal Report ,Exh.P.L. Reportedly there was profused bleeding from the wounds, B.P. And pulse of the injured was nil. The patient was in shock, semi-conscious, gasping and his condition was serious.
After the death of Atta Muhammad post-mortem examination was conducted by Dr. Safdar Mahmood P.W.10.
5. This case was investigated by many Police Officers including Syed Walayat Hussain Shah, S.- I./P.W.8, Muhammad Farid, S.-I./ P.W.11 and Khan Muhammad, Inspector/P.W.12. Syed Walayat Hussain Shah, S.-I./P.W.8 during the investigation after obtaining permission from the doctor on 27- 5-1995 recorded statement (Exh.P.l.) of Atta Muhammad deceased (when he was still alive). Atta Muhammad died on 6-6-1995-The said Police Officer added section 302, P.P.C. In the F.I.R. As well as after examining the dead body prepared necessary documents and sent the dead body to the mortuary for postmortem examination. He also arrested Muhammad Riaz appellant on 3-6-1995.
' During the investigation conducted by Muhammad Farid, S.-l./ P.W.11 Muhammad Riaz appellant on 13-6-1995 led to the recovery of rifle 7 mm (P.2) which wan taken into custody vide recovery memo, Exh.P.E. Challan of this case was prepared by Khan Muhammad, Inspector P.W.12. It is notable that through the investigations conducted by the said Police Officers Sultan, Makhdoom Hayat and Muhammad Yousaf appellants were found innocent and they were never arrested by the police in this case.
6. During the trial prosecution produced 13 witnesses to prove the charge against appellants.
Muhammad Saleem, Draftsman/P.W.2 prepared scaled site plans Exh.P.Cr and Exh.P.C./1.
Muhammad Nazir P.W.3 complainant of this case while supporting the prosecution case deposed on the lines he got registered the first information report. Anser lqbal P.W.4 and Zafar lqbal P.W.5 being the eye-witnesses of the case while supporting the prosecution case narrated the circumstance under which the appellant committed the murder of Atta Muhammad. Muhammad Yar P.W,6 witnessed the recovery of rifle P.2 at the instance of appellant Muhammad Riaz as well as signed the recovery memo. Exh.P.E. In this regard. Muhammad Younas F.C./P.W.7 took the dead body to the mortuary for post-mortem examination. Syed Walayat Hussain Shah. S.-I./P.W.8 conducted the investigation as narrated earlier. Dr. Muhammad Afzal P.W.9 and Dr. Safdar Mehmood P.W.10 prepared the Medico-legal Report and post-mortem report of the deceased respectively. Muhammad Farid, S.-I./P.W.11 and Khan Muhammad Inspector/P.W.12 conducted the investigation of the case as narrated in the earlier part of the judgment. Dr. Tariq Mehmood P.W.13 deposed that on 27-5-1995 on the application Exh.P.H. Moved by the Investigating Officer he gave report Exh.P.H./1 that Atta Muhammad was fit to make statement.
7. Learned trial Court also examined the appellants under section 342, Cr.P.C. All of them while denying the charge took the plea that they had been falsely implicated in this case. None of the appellants made any statement under section 340(2), Cr.P.C. Nor produced any evidence in their defence.
' The learned trial Court after appraisal of evidence convicted and sentenced the appellants as narrated earlier.
8. While challehging the legality of the impugned judgment learned counsel for the appellant submitted that F.I.R. In this case was got registered after the unexplained delay of 17 hours and this time was -consumed by the prosecution to deliberate and concoct the story for the .False implication of the appellants. It was argued that evidence of dying declaration relied upon by the prosecution was tailored during the investigation of this case. That the eye-witnesses namely Anser Iqbal and Zafar lqbal were not present at the spot and both of them were introduced later on just to strengthen the prosecution case. It was further argued that this occurrence took place in a populated area but no independent witness from the locality was associated during the investigation nor ever produced before the trial Court. Learned counsel for the appellants. Further submitted that witnesses who had deposed before the trial Court were interested witnesses and the statement of such type of witnesses could not be taken into consideration without any independent piece of corroboration. It was further argued that during the investigation three appellants namely Sultan Ali, Muhammad Hayat and Yousaf were found innocent and none of them was arrested by the agency and that this fact had shattered the credibility of the prosecution case. It was lastly argued that in the circumstances, the learned trial Court had erroneously convicted and sentenced the appellants. Conversely learned counsel for the complainant as well as State vehemently opppsed the appeal filed by the convicts and had prayed for the enhancement of sentence of Makhdoom Hayat and Muhammad Yousaf respondents.
9. Record of this case has been perused with the able assistance of the learned counsel for the parties.
' In order to prove charge against the appellants prosecution has mainly relied upon the statements of two eye-witnesses namely Anser Iqbal P.W.4 and Zafar Iqbal P.W.5, the dying declaration of the deceased, recovery of crime-weapon at the instance of Muhammad Riaz appellant, the motive for this occurrence and the Medico-legal Reports.
' Admittedly during the investigation no empty was recovered from the spot nor the weapon recovered at the instance of appellant Muhammad Riaz was ever sent to the Forensic Science Laboratory for its examination and thus there is nothing on the record to show that the weapon recovered from the appellant was the same which was used during the occurrence. In this view of the matter, this piece of evidence relied upon by the prosecution has no value and the same cannot be taken into consideration.
10. Motive is a double-edged weapon which cuts both sides. A particular motive can persuade a person to commit an offence but the same motive can also be used by the prosecution to falsely implicate an innocent person. The motive for this occurrence as narrated in the F.I.R. Was that in the year 1988 the complainant party had caused injuries to brother of Sultan Ali appellant as well as committed the murder of one Hayat Muslim Sheikh, a party man of the appellants and in order to wreck the vengeance of said occurrence appellants had committed the murder of Atta Muhammad. The fact that both the parties had'a long standing enmity stands established from the statement of Muhammad Nazir P.W.3 (complainant) as well as from the statements of the eye: witnesses. In the circumstances of this case, the possibility of false implication of appellants because of their previous enmity with the complainant party cannot be ruled out.
11. Another piece of evidence relied upon by the prosecution to strengthen the case is in the form of dying declaration of Atta Muhammad deceased. Statedly when the injured deceased was being removed to the hospital for medical treatment he narrated the facts to the complainant Muhammad Nazir, P.W.3 and on the basis of the same he lodged the present F.I.R. Similarly during investigation on 27-5-1995 Syed Walayat Hussain Shah, S.-I./P.W.8 also recorded the statement Exh.P.I. Of Atta Muhammad deceased (when he was fit to make statement) under section 161, Cr.P.C. It is interesting to note that Muhammad Nazir P.W.3 admittedly was not present at the spot when this occurrence took place and statedly after the occurrence Atta Muhammad deceased was taken to the house of the complainant and from there he (Alta Muhammad) was removed to the hospital at Sargodha by the complainant and other witnesses. It is repellent to common sense that after the occurrence the witnesses would take Atta Muhammad to the house of the complainant instead of taking him immediately to the doctor for the first aid. It is also evident from the statement of Anser Iqbal P.W.4 that very close to the place of occurrence a Dispensary at Lakseens and R.H.C. Hospital at Bhagtanwala were also available. It is not understandable as to why the witnesses opted to take Atta Muhammad at D.H.Q. Hospital, Sargodha after travelling a long distance instead of taking Atta Muhammad to the nearest medical centres. Another factor which creates doubt about the authenticity of this piece of evidence is the condition of Atta Muhammad deceased. Medico-legal Report prepared by Dr. Muhammad Afzal P.W.9 reveals that the patient (Atta Muhammad) deceased was semi-conscious, his B.P. (Blood Pressure) and pulse were nil. In the light of the said condition of a person, it is hard to believe that he would be in a position to make statement or narrate the circumstances under which he had received injures.
Record of this case also reveals that on 27-5-1995 after the permission of Dr. Tariq Mehmood P.W.13, Investigating Officer Syed Walayat Hussain Shah P.W.8 recorded the statement of Atta Muhammad deceased under section 161, Cr.P.C. This occurrence took place on 23-5-1995 at 4-30 p.m. And according to Exh.P.B. Copy of Rapt No,2 at Police Station Midranjha, the deceased Atta Muhammad died on 6-6-1995. There is nothing on the record to show that after 27-5-1995 till his death i,e, 6-6- 1995 the deceased was not fit to make statement. It means that the prosecution had ample time to request the Magistrate concerned to record the statement of the deceased. It is unfortunate that no attempt was made by the prosecution in this regard. Even otherwise the Investigating Officer while recording the statement of Atta Muhammad under section 161, Cr.P.C. Never bothered to procure the attendance of Dr. Tariq Mahmood P.W.13 who was available at the relevant time. In the light of the said lacunas in the prosecution case, we are not persuaded to rely upon this piece of evidence for upholding the conviction of the appellants on the charge of capital sentence.
12. Ocular account in case was narrated by Anser Iqbal P.W.4 and Zafar Iqbal alias Zafar Hayat P.W.5. Both these witnesses are related inter se as well as the complainant party and admittedly had a long standing enmity with, the appellants. In this view of the matter they fall within the category of interested witnesses. A careful analysis of the statements of these witnesses reveals that their presence at the time of occurrence is doubtful. From the very beginning the stand of the prosecution was that on the day of occurrence both the eye-witnesses and the deceased together took the tractor to the workshop of Ghaus Muhammad Wala altogether but before the trial Court Anser Iqbal P.W.4 deposed that he had brought the tractor to Ghaus Muhammad Wala one day prior to the occurrence i,e, on the evening of 22-5-1995. He left the tractor with the Mistri (mechanic) and on the next day i,e, the day of occurrence he again went to Ghaus Muhammad Wala at about 3-00 p.m. On the other hand the statement of Zafar Iqbal P.W.5 is to the effect that Anser lqbal P.W.4 had parked the tractor in Korian Camp which is about one kilometre from Ghaus Muhammad Wala and had brought the same to the workshop at Ghaus Muhammad Wala at 2-00 p.m. On the day of occurrence and that he along with Atta Muhammad (deceased) had gone to Ghaus Muhammad Wala to find out whether the tractor had been repaired or not. Before the police stand of both the witnesses was that the tractor needed repair but before the trial Court their stand was that the tube of the tractor was punctured which was' to be replaced. Both of them were got confronted in this regard with their previous statements. Statements of both the eye-witnesses are also in conflict with the Medico-legal Reports on the point of location of injuries allegedly caused by Riaz and Sultan appellants. Even otherwise the statements of these witnesses cannot be relied upon in the absence of any independent corroborative piece of evidence and there is nothing on the record to be treated as corroboration to the ocular account.
13. The unexplained delay of 17 hours in lodging the F.I.R. Is another factor to doubt the credibility of prosecution case. This occurrence took place on 23-5-1995 at 4-30 p.m. And after the occurrence Atta Muhammad deceased, when he was still alive was taken to the hospital for medical treatment at Sargodha by the complainant and other witnesses. Medico-legal Report Exh.P.L. Prepared by Dr. Muhammad Afzal Warraich P.W.9 reveals that Atta Muhammad in injured condition. Had arrived at the hospital at 6-35 p.m. But on the other hand the report with the police was lodged by Muhammad Nazir, P.W.3 on the next day i,e, 24-5-1995 at 8-45 a.m. And on the basis of the same formal F.1.R. Was entered at the police station at 9-30 a.m. There is no explanation on the record-as to why the witnesses did not inform the police well in time and the possibility that the time was consumed by the prosecution to I deliberate and concoct the story to falsely implicate the appellants because of their previous enmity with the complainant party, cannot be ruled out.
14. It is also important to note that three of the appellants namely Sultan Ali, Makhdoom Hayat and Muhammad Yousaf were found innocent during the investigation. The investigation of this case was conducted by many police officials including Inspector Range Crimes, Sargodha, S.P., C.I.A. And S.P. Range Crimes, Sargodha. All the said Police Officers found Sultan Ali, Makhdoom Hayat and Muhammad Yousaf innocent and none of the said appellants was ever arrested during the investigation. No doubt the opinion of the Police Officers is not a proof of innocence or guilt of an accused yet the factum of impact of such an opinion cannot be thrown away to winds altogether.
This view is in line with the observation of their Lordships in the case titled Muhammad Naeem alias Gogi and others v. The State 1990 PCr.LJ 1607 and the case titled Ashiq Ali v. The State 1996 M LD 1484.
15. Record of this case also reveals that the deceased was a man of bad character. Statement of Muhammad Farid, S.-I./P.W.11 reveals that name of the deceased as well as the complainant find mentioned in the list of bundle "A" of the police station and that they had many enemies.
' In the light of the above discussed circumstances of this case, the statements of both the eye- witnesses i,e, Anser P.W.4 and Zafar lqbal alias Zafar Hayat P.W.5 and the other evidence relied upon by the prosecution are not worth reliance. The appellants in the circumstances of this case are entitled to get the benefit of doubt. Accordingly the appeal of the convicts i,e, Criminal Appeal No,456 of 1998 is accepted. The conviction and sentence of the appellants is set aside. They shall be released forthwith if not required to be detained in any other case.
' In the light of foregoing. Reasons we see no force in Criminal Revision No,248 of 1998, the same stands dismissed.
' Murder Reference is answered in the negative. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.