' Appellants namely Zahid Mehmood and Muhammad Sabir alongwith four others were tried by the learned Additional Sessions Judge, Kasur for the murder of one Abdul Ghaffar in case F.I.R. No,265 of 1994 dated 9-10-1994 under sections 302/459/34, P.P.C. Read with section 109, P.P.C. Registered at Police Station Allahabad, District Kasur, who vide judgment dated 30-9-2000 while acquitting co- accused convicted and sentenced both the appellants as under:-- ' Under section 302(b)/34, P.P.C.
' Convicted and sentenced each of them to imprisonment for life with compensation of Rs,50,000 to be paid to the legal heirs of Abdul Ghaffar deceased.
' Under sectidn 459/34, P.P.C.
' Convicted and sentenced each of them to five years' R.I.
' Both the sentences of imprisonment were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended in favor of both the appellants.
' Being aggrieved by the conviction and sentence, both the appellants filed instant criminal appeal.
3. Brief facts of the prosecution case as narrated in the F.I.R. Are that Muhammad Riaz (complainant) and his brother namely Abdul Ghaffar had installed an ice factory in village Dao Key Kallan. Statedly, on the night of occurrence, complainant alongwith his brother Abdul Ghaffar was sleeping in the room of the ice factory in routine. Muhammad Tufail and Muhammad Akram were sleeping in the Veranda and at about 10-30 p.m. Zahid Mehmood appellant armed with .12 bore gun, Abdul Khalique accused also armed with .12 bore gun and Sabir appellant armed with .30 bore pistol trespassed into the ice factory by scaling over the wall. The bulb was on. Statedly, Muhammad Sabir accused raised Lalkara and threatened Muhammad Tufail and Muhammad Akram who were sleeping in the Verandah. Zahid and Khalique accused entered the room after opening its door. Statedly, the complainant was sleeping on the floor of the room whereas Abdul Ghaffar deceased was sleeping on the bed. Allegedly, Zahid appellant fired with his .12 bore gun which hit Abdul Ghaffar at the left side of his waist. Abdul Khalique accused fired with his .12 bore gun which hit the deceased on his right side of eye and cheek. Statedly, Abdul Ghaffar succumbed to the injuries at the spot. After the occurrence, all the accused while raising Lalkara decamped from the scene of crime.
' Motive for this occurrence as narrated by the prosecution was that three years prior to the registration of instant case Khalid, brother of Zahid appellant, alongwith others in order to commit the murder of Ghaffar launched an attack and in the occurrence instead of Ghaffar, . Uncle of the complainant received injuries and the matter was reported to the police by Ghaffar (deceased).
4. This is case, investigated by Nasrullah, A.S.-J./P.W.6, Abdul Aziz, A.S.-I./P.W.13, and Mujahid Raza, Inspector/P.W.16. During the investigation from the spot, two crime-empties of .12 bore 'gun, P.5 and P.6, and seven empties of .30 bore pistol, P.7 to P.13 alongwith four metal pieces of .30 bore pistol P.14 to p.17 were taken into custody by the Investigating Officer vide recovery memo. Exh.P.D. The Investigating Officer also collected blood-stained earth from the spot vide recovery memo. Exh.P.C.
The file of this case reveals that during the investigation Sabir appellant on 18-10-1994, Abdul Khalique appellant on 22-10-1994 and Khalid Mehmood accused on 26-10-1994 were arrested. On 26-10-1994 Sabir appellant led to the recovery of .30 bore pistol; P.19, alongwith five live bullets, P.20 to P.24; these articles were taken into custody vide recovery memo. Exh.P.J. And on 25-12-1994 Zahid Mehmood appellant led to the recovery of gun P.21 which was taken into possession vide recovery memo. Exh.P.K. The Investigating Officers also got prepared scaled site plan, Exh.P.D. And Exh.P.D./1 of the place of occurrence through draftsman and after complying with all legal formalities submitted challan before the trial Court.
5. Dui ing the trial, prosecution produced seventeen witnesses in order to prove the charge against the appellants and their co-accused. The ocular account in this case was narrated by Muhammad Riaz, P.W.3/complainant and Muhammad Tufail, P.W.4. Both these witnesses were related to the deceased and while supporting the prosecution case narrated the circumstances under which the appellants had their co-accused committed the murder of Abdul Ghaffar. The post-mortem examination on the dead body of Abdul Ghaffar was conducted by Dr. Syed Fawad Ali Shah, P.W.15, who observed six fire-arm injuries on the person of Abdul Ghaffar deceased. The time between injuries and death was immediate whereas time between death and post-mortem examination was 8 to 16 hours. About the recovery of gun at the instance of Zahid Mehmood appellant, Muhammad Anwar P.W.11 while supporting the prosecution case deposed before the trial Court, whereas about the recovery of incriminating articles at the instance of Muhammad Sabir appellant prosecution had relied upon the statement of Muhammad Shafique P.W.l0. Rest of the witnesses being not relevant or of formal in nature, need no discussion.
6. Learned D.D.A. Tendered in evidence report of Chemical Examiner, Exh.P.O. And that of Serologist, Exh.P.P. Alongwith report of Forensic Science Laboratory, Exh.P.Q. And closed the case for the prosecution.
7. After recording the entire prosecution evidence, learned trial Court examined both the appellants under section 342, Cr.P.C. Wherein both of them denied their participation in the occurrence and pleaded innocence. While answering to the question: "Why this case against you and why P. Ws.
Have deposed against you? Zahid Mehmood appellant replied as under:-- "Ghaffar deceased was a bad character person. He was known black guard of the locality and had enmity with so many persons. He had in those days swarthy man (dark complexioned) who decamped from the ice factory at the night of alleged occurrence. It was admitted by the complainant in his evidence and in the Investigating Officer's evidence. No P.W. Was present at the time of allegedly occurrence. Our names were given in concocted story mere on suspicion which was fabricated by Mujahid Raza P.W.16. My brother Abdul Khaliq at the alleged time of occurrence was confined in Kot Lakhpat Jail. No independent witness has been produced by the prosecution.
P.Ws. Are closely inter-related with the complainant and deceased."
' To the similar question, Muhammad Sabir appellant made following reply:-- "I was implicated due to the political rivalry against my father, who used their terms and relations against our family and my brother Muhammad Aslam and myself."
' The appellants neither made any statement under section 340(2), Cr.P.C. Nor produced any evidence in their defence.
8. Learned trial Court after appraisal of evidence available on file, vide judgment, dated 30-9-2000 convicted and sentenced the appellants as narrated in the earlier part of this judgment.
9. Learned counsel for the appellants submitted that it was a blind murder which took place during the dark hours of the night and one of the eye-witnesses was present at the spot but during the investigation Muhammad Riaz, P.W.3 and Muhammad Tufail, P.W.4 being closely related to the deceased were introduced later on as eye-witnesses to strengthen the prosecution case; that the appellants were implicated in this case due to their previous enmity with the complainant party; that the trial Court had already disbelieved the eye-witnesses qua four co-accused of the appellants and the statements of such-like witnesses in the absence of any corroborative piece of evidence could not be relied upon against the appellants; that the recovery evidence relied upon by the prosecution was nothing but a pack of lies; that the enmity with the complainant party stood established from the record and in the light of the same false involvement of the appellants in this case could not be ruled out. Conversely., learned counsel for the State while supporting the impugned judgment had opposed the contentions raised by the learned counsel for the appellants.
10. Heard. Record perused.
11. Both the appellants are named in the F.I.R. With the role that they being armed with fire-arms alongwith other co-accused in the furtherance of their common intention committed the murder of Abdul Ghaffar. The specific allegation against Zahid Mehmood is that he caused fire-arm injuries to Abdul Ghaffar deceased on the hack whereas his acquitted co-accused namely Abdul Khalique gave fire-arm injury on "the face of the deceased. Similarly, the role attributed to Sabir appellant is that he alongwith other co-accused made indiscriminate firing at the place of occurrence. This occurrence was witnessed by two eyewitnesses namely Muhammad Riaz, P.W.3, and Muhammad Tufail, P.W.4 brother and cousin respectively of the deceased. Muhammad Riaz and the deceased had installed ice factory in Moza Dao. He alongwith the deceased was sleeping inside the room whereas Muhammad Tufail P.W.4 and Muhammad Akram (given up P.W. Who used to work in the said factory) were sleeping in the Verandah of the factory when this occurrence took place. Both of them witnessed the occurrence in the light of bulb. The presence of these witnesses at the spot in the circumstances of this case at the relevant time was very natural. The bare perusal of evidence .Of both the eye-witnesses show that they had deposed in natural manner and had given a version which is neither inconsistent nor contrary. The ocular account narrated by both the eye-witnesses also stands corroborated by the medical evidence. The nature, location and duration of injuries as narrated by eye-witnesses stands confirmed by this piece of evidence.
' A careful examination of the record reveals that there was long standing enmity between the parties which was the motive for the commission of this offence. Similarly, the eye-witnesses who ho had deposed before the trial Court were closely related to the deceased. In this view of the matter, I find force in the arguments of the learned counsel that both the eye-witnesses tell within the category of interested witnesses and to rely upon the testimony of such-like witnesses one must look for independent strong corroborative piece of evidence. Another important aspect of this case is that the ocular account has already been disbelieved by the trial Court qua four co- accused of the appellants and in such-like situation to rely upon this type of evidence corroboration from some independent piece of evidence is essential. This view is in line with the observation of their Lordships of the Honourable Supreme Court of Pakistan in case titled Ghulam Mustafa v. The State 1995 SCM R 175.
12. In this view of the matter, the case of the appellants can be bifurcated. As far Zahid Mehmood appellant is concerned, weapon of crime recovered from him had matched with the empties recovered from the spot and this piece of evidence is sufficient to lend ample support to the ocular account and to uphold the conviction of the appellant.
' As far as the case of Muhammad Sabir appellant is concerned, no doubt .30 bore pistol recovered at his instance had matched with the empties which were recovered from the spot but the facts available on record create doubt about authenticity of this piece of evidence. Admittedly, the crime-empties were recovered from inside the room where Abdul Ghaffar was done to death but according to the prosecution's own case, Muhammad Sabir appellant never entered the said room nor made any firing from inside the room. This pistol (crime weapon) was allegedly recovered at the instance of the appellant on 26-10-1994 but it remained lying with the police till 20-11-1994 when the same alongwith crime-empties recovered from the spot was sent to the office of Forensic Science Laboratory for its comparison. In this view of the matter possibility that the evidence of recovery relied upon by the prosecution to connect Muhammad Sabir appellant was fabricated during the investigation cannot be ruled out. Similarly there is no allegation against the appellant of causing any injury to the deceased. Thus to the extent of Muhammad Sabir appellant, the ocular account relied upon by the prosecution has no support from any independent corroborative piece of evidence and he is entitled to get the benefit of the same. Accordingly, this appeal to the extent of Muhammad Sabir appellant is allowed, his conviction and sentence is set aside and he is directed to be released from jail forthwith if not required to be detained in any other criminal case.
' As far as the appeal tiled by Zahid Mehmood appellant is concerned, same stands dismissed.
13. With this modification, instant criminal appeal stands disposed of.