' Muhartunad Amir, Muhammad Mazhar, Munir-appellants alongwith Falak Sher, Riaz and Ghulam were sent up to face trial in case F.I.R. No.185 of 1999, registered at Police Station Madrisa, for causing murder of Fateh Muhammad. Vide judgment dated 6-4-2002, the learned Additional Sessions Judge, Bahawal Nagar, acquitted Falak Sher, Riaz and. Ghulam co-accused but convicted Muhammad Amir, Muhammad Mazhar and Munir-appellants for offence under section 302(b), P.P.C., each of them was sentenced to imprisonment for life and to pay Rs.1,00,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. In default whereof the convicts were to suffer further R.I. For one year. Benefit of section 382-B, Cr.P.C. Was extended to the convicts-appellants. Feeling aggrieved the appellants have challenged their conviction and sentence through the instant appeal.
2. Vide Serial No.185 of 1999 Exh.P.A. Was registered at Police Station Madrisa, on 22-12-1999, at about 1-05 a.m. (during night), for offences under sections 302/34/109, P.P.C., at the instance of Nazar Muhammad P.W.9, brother of Fateh Muhammad-deceased.
3. According to F.I.R., on 21-12-1999 the complainant alongwith his brother Fateh Muhammad- deceased and Fayyaz Ahmad left for Chishtian in order to visit Muhammad Siddique, resident of Basti Kaisrian, Mouza Mitha .Aakuka. They reached the house of Muhammad Siddique at about 'Asar Wela' and stayed there till 'Iftari'. Muhammad Siddique informed them that Pir Muhammad Amir Chishti was not feeling well. Thereafter the complainant alongwith Fateh Muhammad, Fayyaz Ahmad and Muhammad Siddique went on foot to Mouza Kapooran Basti to visit Pir Muhammad Amir. At about 9-30 p.m. (during night) the complainant party left Basti Kapooran and started for their hodse. They had covered distance of one square on Kacha Road, when Muhammad Amir, Muhammad Mazhar, Munir (armed with guns) and Falak Sher armed with hatchet came out of the fields, who were identified by the complainant in the moonlight. The accused raised Lalkara that Fateh Muhammad should suffer the consequences for murdering Niaz Ahmad five years ago.
Thereafter Muhammad Amir fired, which did not hit anyone. Fateh Muhammad ran for his life. The accused followed Fateh Muhammad and after covering distance of one Acre they overpowered Fateh Muhammad in the field belonging to one Allah Sacha, where wheat crop had been sown.
Muhammad Amir placed his gun on the chest of Fateh Muhammad and fired. Allegedly at that time, Falak Sher acquitted co-accused was holding the legs of Fateh Muhammad. Thereafter Mazhar and Munir fired on the face of Fateh Muhammad. The accused raised Lalkara that if anyone tried to approach, he would be murdered. The complainant party due to fear of life did not advance towards the scene of occurrence. After the accused left, the complainant party rushed towards Fateh Muhammad, who had lost his life due to the injuries.
4. The motive as set down in the F.I.R. Was that in the year 1996 Niaz Ahmad was murdered and a case was registered against Fateh Muhammad-deceased, Muhammad Aslam (nephew of the complainant), Allah Ditta (brother-in-law (Behnoi) of the complainant) and one Bashir Ahmad. In that case Allah Ditta, Bashir Ahmad and Fateh Muhammad were acquitted, while' Muhammad Aslam was convicted and sentenced to imprisonment for 25 years. For that reason the accused murdered Fateh Muhammad. Accoridng to F.I.R., Riaz Ahmad and Ghulam (acquitted co-accused) had abetted the offence.
5. Riaz Hussain, S.-I., S.H.O. p.w.13 after registration of case reached the scene of occurrence and collected the blood-stained earth from the spot vide memo. Exh.P.D. He also collected three empty cartridges P.1/1-3, which were lying near the dead body, vide memo. Exh.P:E. He secured another empty P.4, which was lying near the watercourse, vide memo. Exh.P.F. He recovered a Seiko watch P.5 and Rs.163 P.6 from the pocket of the shirt worn by the deceased. He also secured a. Shoe P.7, which was lying near the foot of the deceased, vide memo. Exh.P.G. All the memos. Were attested by Muhammad Siddique P.W.7 and one Fayyaz Ahmad, who was not produced during trial.
6. On 28-1-2000 Haji Nazir Ahmad, S.-I. P.W.11 arrested the appellants. Muhammad Amir-appellant, while in custody, led to the recovery of one .12 bore gun P.9 and five live cartridges P.9/1-5 from his house. The articles were taken into possession vide memo. Exh.P.1, attested by Allah Ditta P.W.10 and one Muhammad Irshad, who was not produced. Muhammad Mazhar-appellant led to the recovery of hatchet P.8, which was lying in his room, and the same was taken into possession vide memo.
Exh.P.H. The memo. Was prepared by Nazir Ahmad P.W.11 and was attested by P.W.1 Allah Ditta and one Muhammad Irshad.
7. After completion of investigation, the appellants alongwith acquitted accused were sent to face trial, who denied the charges. Thus the trial commenced. During trial, the prosecution produced 14 witnesses in support of its case. Muhammad Siddique P.W.7 and Nazar Muhammad P.W.9 furnished the ocular account. They stuck to the story as narrated in the F.I.R. These P. Ws. Also stated about the motive behind the occurrence. Muhammad Siddique P.W.7 stated about the recoveries .Effected from the spot. Allah Ditta P.W.10, who is father of Muhammad Aslam who was convicted for the murder of Niaz Ahmad, stated about the recoveries effected from the appellants Muhammad Amir and Muhammad Mazhar. This P.W. Was married with the sister of Nazar Muhammad- complainant. Dr. Shamshad Hussain, who had conducted the postmortem on the dead body of Fateh Muhammad-deceased, appeared as P.W.6 and stated that the deceased had received seven fire-arm injuries on his person. Six of them were on the face while the seventh was on the chest of the deceased, which also had a corresponding exit wound mentioned at Sr. No.8. He had conducted the post-mortem examination on 22-12-1999 at 11-00 a.m. And according to his opinion the time elapsed between death and post-mortem examination was 18 hours. Haji Nazir Ahmad, S.-I., appeared as P.W.11. He stated that he had arrested the appellants. He also stated about the recoveries and partial investigation of the case. Riaz Hussain, S.-I./S.H.O. Appeared as P.W.13, who stated that he had registered the case at the instance of Nazar Muhammad (P.W.9); thereafter he had gone to the spot and investigated the case. The rest of the witnesses were formal in nature and need not to be discussed. The prosecution closed its case after placing on record the reports of the Forensic Science Laboratory, Serologist and the Chemical xaminer Exh. P .M . , Exh .P. N. And Exh.P.O. Respectively. According to the report of the Forensic Science Laboratory, the empties collected from the spot had not been fired by the gun recovered from Muhammad Amir-appellant.
8. After the closure of the prosecution case, statements of the appellants under section 342, CT .
P.C. Were recorded. The appellants denied the charges. Muhammad Amir-appellant stated that the gun, which was planted upon him, in fact was a licensed gun and belonged to Muhammad Aslam Pervaiz _son of Allah Ditta P.W.10 and real maternal nephew of Fateh Muhammad- deceased, who had been sentenced to imprisonment for life, for causing murder of his brother Niaz Ahmad. He further stated that after the conviction of Muhammad Aslam Pervaiz, Fateh Muhammad used to carry the said gun and in fact the Investigating Officer had taken the gun in possession on the night of occurrence, while the same was lying near the dead body of Fateh Muhammad- deceased. He further stated that the witnesses were related inter se and they had not seen the occurrence and that they have been roped in this case on the basis of enmity. The other appellants almost stated in line with the statement of Muhammad Amir-appellant. Though the appellants did not appear as witness in their defence under section 340(2), Cr.P.C. But they produced two defence witnesses. Nazim Ali, Record Keeper, Aslah Branch, D.C.O. Office, Bahawal Nagar, appeared as D.W.I alongwith record and stated before the Court that the recovered gun belonged to Muhammad Aslam Pervaiz and licence was issued to him to keep the same. Muhammad Ikhtiar alias Akhtar son of Pir Muhammad Amir Chishti appeared as D.W.2 and stated that Fateh Muhammad-deceased alongwith one Zafar Langheka had visited his ailing father at 'Esha Wela'. They remained at the Dera about 1 or 1-1/2 hours thereafter they left. After 15/20 minutes, he heard the noise of firing and when he alongwith other witnesses reached the scene of occurrence, they saw that Fateh Muhammad was lying dead. He further stated that Nazar* Muhammad-complainant, Fayyaz P.W_ and Muhammad Siddique were not present there and he had informed the relatives of Fateh Muhammad-deceased about the eventuality. He also stated that he had informed the police about the incident. He also appeared before the D.S.P. Niazi and another D.S.P. Who was the Incharge of Crimes Branch and stated the same story to them. During cross-examination it was admitted by him that Ali Akbar, D.S.P., recorded his statement three months after the occurrence.
9. The learned counsel for the appellant has argued that the witnesses were the chance witnesses and were not only related to the deceased but were also inimical towards the appellants; that the ocular account was not inspiring and trustworthy; that D.W.2, who was an independent witness and had no links either with the appellants or with the complainant, has knocked out the story relating to the presence of the P.Ws. At the time of occurrence; that no recovery was effected from Munir, while recovery of hatchet from Mazhar-appellant, in fact, proved that the prosecution story was incorrect, as according to F.I.R. Mazhar was carrying a gun at the time of occurrence; that it has been proved from the record brought by D.W.1 that the gun, which wP.s shown to have been recovered at the instance of Muhammad Amir, in fact belonged to Muhammad Aslam Pervaiz son of Allah Ditta P.W.10.
10. Conversely, the learned counsel for the State has tried to support the judgment passed by the learned trial Court and has argued that the trial Court after sifting the grains from chaff has already acquitted the co-accused Falak Sher, Riaz and Ghulam; that the ocular account was supported by the medical evidence, as the deceased had received fire on his chest, which was attributed to Muhammad Amir-appellant; that the deceased had also received fire-arm injuries on his face, which were attributed to Muhammad Mazhar and Munir; and that the appellants had a motive to take the life of Fateh Muhammad. However, the learned counsel remained unable to answer the question raised by the learned counsel for the appellants relating to the recovery of weapons from the appellants.
11. I have heard the learned counsel for the parties at length and gone through the record carefully.
12. Admittedly, P.W.9 (complainant of the case) lived 30 miles away from the place of occurrence.
Similarly P.W.7 Muhammad Siddique, who is also related to the complainant and the deceased lived at a distance of 2-1/2 Km. From the place of occurrence. It is also admitted that the occurrence took place at 9-30 p.m. (during night) and the only source of light was the moon. It is also noteworthy that the occurrence took place in the cool month of December. It is admitted that enmity existed between the complainant party and the appellant. In these circumstances the evidence of P. W .7 and P.W.9 requires deep scrutiny.
13. The prosecution case is that on the fateful night P.W.9 and the deceased alongwith one Fayyaz had gone to the house of Muhammad Siddique and after 'Mari' they went to the house of Pir Muhammad Amir Chishti, who was ailing. They left that house at about 9-30 p.m., while they were on road they were surprised by the appellants. The vital question is that as to how the appellants came to know about the presence of the complainant party in the house of Pir Muhammad Amir Chishti, which was situated at a distance of one square from the place of occurrence. The appellants lived at a distance of 2/3 miles from the spot and there is nothing on the record to show as to how the news leaked to the appellants about the presence of the complainant party at the house of Pir Muhammad Amir Chishti.
14. The question of identification is also involved in this case. In the F.I.R. It was stated that the accused were identified in the moonlight but during trial P.W.V tried to improve his case by stating that he had identified the accused by voices as well as due to the moonlight. He was duly confronted on the points. Both the P. Ws. i.e. P.W.7 and P.W.9 have also stated that at the time of firing Falak Sher acquitted co-accused was holding the legs of the deceased. According to F.I.R., they were at a distance of one. Acre when the appellants fired upon the deceased. It is hardly plausible that during the winter night the complainant party could see the occurrence from a distance of one Acre; especially when the deceased was fell down in the field where wheat crop had been sown. According to the prosecution case, Muhammad Amir fired a shot, which did not hit anyone. Fateh Muhammad-deceased ran towards the Basti when he was followed. In the normal circumstances, the appellants would have fired on the deceased while he was running away but according to P.W.7 and P.W.9 the accused did not fire at the deceased and instead chased him to a distance of about one Acre and thereafter caught hold of him. According to F.I.R., the reason for presence of P.W.7 and P.W.9 at the place of occurrence was that they alongwith Fateh Muhammad-deceased had gone to the house of Pir Muhammad Amir Chishti, who was ailing. But on the other hand, the appellants produced Muhammad Ikhtiar alias Akhtar son of Pir Muhammad Amir Chishti, who stated on oath that P.W.7 and P.W.9 had not visited his house. This witness had appeared during the investigation, which was conducted by Ali Akbar, D.S.P. He is not related to the appellants or the complainant party. He is an independent witness and during cross-examination no dent could be caused in his statement.
15. Admittedly, Niaz Ahmad, brother of Muhammad Amir and Muhammad Mazhar-appellants, was murdered in the year 1996. Fateh Muhammad-deceased alongwith his nephew Muhammad Aslam, his brother-in-law Allah Ditta, who is father of Muhammad Aslam, and Bashir Ahmad were sent up to face trial in the case. The other accused were acquitted but Muhammad Aslam was convicted and sentenced to imprisonment for 25 years. Prima facie after the conviction of Muhammad Aslam, there was no occasion for the accused to take the law in hand and perhaps it would be the complainant party, which would feel aggrieved over the incarceration of their near and dear relative.
16. The motive is a double edge sword. It can be a reason for commission of crime and it can also be a reason for involving an innocent in the case due to enmity. It is a salutary principle of administration of justice that when two possibilities exist, one in favour of the accused is to be preferred.
It is indeed unfortunate that the Investigating Officer instead of associating independent respectable witnesses of the locality in the recovery proceedings as envisaged by section 103, Cr.P.C. Chose Allah Ditta as a recovery witness, whose son had been convicted for the murder of Niaz Ahmad, brother of the appellants Muhammad Amir and Muhammad Mazhar. During trial it was proved that the recoveries had been planted upon the appellants, as is evident from the fact that the gun shown to have been recovered from the house of Muhammad Amir-appellant in fact was a licensed gun and belonged to Muhammad Aslam Pervaiz son of Allah Ditta. To prove that.
D.W.1 appeared with record of the case and no fault could be found in his evidence. The recovery of hatchet from Mazhar appellant is also of no help to the prosecution. Neither the hatchet was blood-stained nor it was used during the occurrence. As according to the story as mentioned in the F.I.R. Mazhar was armed with gun at the time of occurrence. Last but not least is the fact that the empty cartridges collected from the place of occurrence did not tally with the gun planted on Muhammad Amir-appellant.
17. As far as the medical evidence is concerned, it supports the prosecution case to the extent that the deceased lost his life due to fire-arm injuries but the same does not lead as to who fired upon the deceased.
18. The upshot of the whole discussion is that I am of the firm opinion that the prosecution failed to prove its case against the appellants beyond doubt. Thus I allow this appeal, set aside the impugned judgment dated 6-4-2002 passed by the learned trial Court and acquit the appellants of all the charges. They would be released from Jail fort with, if not required in any other case.