' M. BILAL KHAN, J.--- This judgment will dispose of Criminal Appeal No,803 of 1999 filed by Ehsan Ullah son of Behram Khan appellant, Criminal Appeal No,805 of 1999 file by Roshan Zamir son of Muhammad Sadiq appellant, Criminal Revision No,46 of 2000 filed by Haji Rozi Khan son of Sohna Khan for the enhancement of compensation and infliction of punishment of independent fine against Roshan Zamir appellant and Criminal Revision No,63 of 2000 for the enhancement of compensation and infliction of punishment of independent fine against Ehsanullah appellant and Murder Reference No,355 of 1999 for the confirmation of death sentence awarded to Ehsanullah and Roshan Zamir appellants as all these matters arise out of the judgment dated 28-7-1999 passed by Additional Sessions Judge-I, Bhakkar, whereby he convicted Roshan Zamir and Ehsanullah appellants under sections 302(b)/379/34, P.P.C. And sentenced as under:--
(1) Under section 302(b)/34, P.P.C.
' To death as Ta'zir each, for committing the murder of Aziz Ullah alias Rais Khan deceased, because the proof in form of section 304, P.P.C. To be punished under section 302(a), P.P.C. As Qisas is not available.
' Both the convicts were also directed to pay Rs,30,000 each as compensation to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. Failing which they were to undergo R.I. For six months each.
(2) Under section 379, P.P.C.
' To two years' R.I. Each and with a fine of Rs,2,000 each failing which to further undergo R.I. For two months each, for committing theft of truck P.B.
2. Briefly stated the facts of the prosecution case as disclosed in the F.I.R. Are that the complainant Rozi Khan and Azizullah Khan alias Rais Khan deceased who were brothers inter se, were owners of two trucks being driven by them. On the fateful day Aziz Ullah Khan deceased started in his Truck No,QAE/1715 from D.I. Khan for Azam Chowk whereas Rozi Khan complainant also left in his Truck No,7092/DNC along with Matti Ullah (P.W.8) and Sibghat Ullah P.W. (not produced) for Multan and when the complainant reached near Khani Jain Petroleum at M.M. Road in the area of Chak No,208/TDA at about 3-30 p.m. He saw truck of his brother parked at M.M. Road towards south of the aforesaid Khani Jani Petroleum and heard cries of his brother from western side of that road.
They rushed towards that direction and saw in the torch light Ehsanullah and Roshan Zamir accused giving dagger blows to the deceased and on seeing the complainant and his companion coming towards them the accused ran towards the road, boarded the truck of Aziz Ullah and drove towards the southern side. The complainant found that Azizullah Khan deceased had sustained numerous injuries on his head due to which he died after a short while. The complainant proceeded to Police Station Sarai Mohajir to lodge F.I.R. While Mattiullah and Sibghatullah remained with the dead body. Regarding this incident F.I.R. No,127, dated 15-11-1998 was recorded under sections 302/379/34, P.P.C. By Kashif Melimood S.H.O./S.-I., who after recording the F.I.R. Visited the place of occurrence, inspected the dead body and sent the same to mortuary for post-mortem examination where Dr. Muhammad Nawaz, Medical Officer D.H.Q. Hospital Bhakkar (P.W.6) found the following injuries on the dead body of Aziz Ullah Khan deceased:--
(1) An incised wound 6 c.m. x 1 c.m. On forehead.
(2) An incised wound 6 c.m. x 1 c.m. On the right side of skull, 2 c.m. On the right of injury No,l.
(3) An incised wound 7 c.m. x 2 c.m. On front of skull, 3 c.m, above injury No,3 above injury No,l.
(4) An incised wound of 8 c.m. x 1 c.m. On the top of skull, 1 c.m. Above injury No,3.
(5) An incised wound of 3c.m. x 1 c.m. Just 1/2 c.m. Left side of injury No,4.
(6) Right eye-ball was protruding out due to penetrating injury.
(7) An incised wound of 8 c.m. x 1 c.m. On the right side of skull, 10 c.m. Above right ear.
' In the opinion of the doctor the cause of death was shock resulting from haemorrhage and head injury. All the injuries were ante-mortem caused by sharp-edged weapon and were sufficient collectively to cause death in the ordinary course of nature. The probable time which elapsed between injury and death was 1/2 to 1 hour, whereas between death and postmortem examination about 12 to 16 hours.
' After sending the dead body to the mortuary, Kashif Mehmood, S.H.O./S.-I. Prepared injury statement Exh.P.G., inquest report Exh.P.G./1, collected blood-stained earth vide recovery memo.
Exh.P.J., prepared site plan Exh.P.K. He arrested Ehsanullah accused on 30-11-1998 from the Link Road of Chak No,60/61, recovered truck P.8, its Registration Book P.9 and driving licence of Azizullah deceased P.10 and secured the same through recovery memo. Exh.P.1. On 8-12-1998 Kashif Mehmood S.H.O./S.-I. Arrested Roshan Zamir accused. On 10-12-1998 Ehsanullah accused led to the recovery of blood-stained dagger P.7 which was taken into possession through recovery memo.
Exh.P.D. And on the same day Roshan Zamir accused got recovered blood-stained dagger which was taken into possession vide recovery memo. Exh.P.C. Roshan Zamir also got recovered wrist watch P.5 and cash amounting to Rs,5,400 P.11/1-11 which was taken into possession through recovery memo. Exh.P.8. After completing the investigation challan was submitted in the Court.
3. At the commencement of the trial, charge with two heads under section 302/34 and 379, P.P.C.
Was framed by the learned trial Court against the appellants to which they pleaded not guilty and claimed trial.
4. In order to prove its case the prosecution examined as many as nine witnesses including Muhammad Anwar F.C. (P.W.1), Aghar Khan, A.S.-I. (P.W.2), Manzoor Ahmad H.C. (P.W.3), Zakaullah F.C. (P.W.4), Muhammad Shall, Patwari (P.W.5) Dr. Muhammad Nawaz (P.W.6), Rozi Khan complainant (P.W.7), Matiullah (P.W.8) and Kashif Mehmood, S.H.O./S.-I. (P.W.9). The prosecution gave up Ejaz Hussain, A.S.-I., Sibghatullah and Habibullah P.Ws. As being unnecessary. Apart from the above mentioned witnesses, prosecution also tendered in evidence reports of Chemical Examiner Exhs.P.O., P.O./1, P.O./2, P.O./3, P.O./1-2 and Exh.P.O./1/1 and closed the prosecution case.
5. Rozi Khan (P.W.7) who was complainant of the case and real brother of the deceased and Mattiullah (P.W.8) a real nephew of the deceased and the complainant were produced by the prosecution as eyewitnesses of the alleged occurrence. They also deposed about the recovery of truck, its Registration Book and driving licence of the deceased, whereas regarding the recovery of blood-stained daggers from both the appellants Aghar Khan, A.S.-I. Appeared as (P.W.2). Dr. Muhammad Nawaz (P.W.6) provided the the evidence, Zakaullah (P.W.4) son of the complainant identified the dead body of the deceased at the mortuary at the time of post-mortem examination. Muhammad Anwar (P.W.1) escorted the dead body of the deceased from the place of occurrence to the mortuary and received last-worn clothes of the deceased along with police papers from the doctor who conducted the post-mortem examination. He also delivered a parcel containing blood-stained earth from the office of Chemical Examiner. Manzoor Ahmad, Head Constable (P.W.3) kept the sealed parcel containing blood-stained earth in the Malkhana of the police station and delivered the same to Muhammad Anwar (P.W.1) for its transmission to the office of Chemical Examiner. Kashif Mehmood (P.W.9) stated about the various steps taken by him during the course of investigation of the case.
6. Apart from above mentioned witnesses the prosecution also tendered in evidence reports of Chemical Examiner Exhs.P.O., P.O./1, P.O./2, P.O./3, P.O./1-2 and P.O./1-1.
7. After closing the prosecution case the accused/appellants were examined under section 342, Cr.P.C. Who denied and controverted the allegations and pleaded their innocence. Roshan Zamir accused in answer to question No,12 i,e, have you anything else to say, replied as under:-- "I am innocent. In fact it was a blind murder. The complainant, the eye-witnesses and the deceased hail from Dera Ismail Khan a District of (N.-W.F.P.). The complainant being friend of Rana Farzand Ali, a Councillor and President of District Muslim League, Bhakkar approached him for help, who had a dispute over the possession of land measuring 14/15 Acres, situated at Chah Ismail Wala with my relative, who offered to help the complainant. I was nominated as accused so that he by putting the pressure could get the possession of the land and also for the reasons that I have been resisting the dispossession of my relatives. The complainant on the promise and asking of Rana Farzand Ali being influential person continued pursuing the prosecution case and ultimately succeeded in having challaned me falsely in this case."
' Likewise Ehsanullah accused in answer to question No,13 i,e, have you anything else to say, stated as under:-- "I am innocent. It was a blind murder. I am resident of Kolechi, a Tehsil of District Dera Ismail Khan, where the complainant and his sons prior to the occurrence were putting up. A quarrel took place between me and Ehsanullah son of Rozi Khan, the complainant at Kolechi about few days prior to the occurrence over which the complainant nourished grudge against me. I am a poor man. The complainant being influential person and taking the said incident as his insult, with the help of Rana Farzand Ali, a political figure of District Bhakkar, who is also Municipal Councillor and President, District Muslim League, Bhakkar got me falsely involved in this case. The complainant continued searching the assailants and when did fail, got me falsely involved in this case to vindicate his grudge."
' Both the accused did not opt to appear as their own witnesses as required under section 340(2), Cr.P.C. And also did not produce any defence evidence.
8. The trial culminated in conviction and sentence of both the accused as mentioned hereinabove.
Hence these appeals.
9. We have heard the learned counsel for the parties and have gone through the record of the case with their assistance. It has been argued by the learned counsel for the appellants that it was a night time occurrence which had gone unwitnessed; that the witnesses produced by the prosecution were closely related to the deceased and as such were interested witnesses; that the story narrated by the witnesses about their presence at the scene of occurrence was highly improbable and that even otherwise there were serious contradictions in their statements; that no corroboration was forthcoming inasmuch as the recovery of alleged weapons of offence and the cash amount etc. Had been discarded by the trial Court; that the learned trial Court had wrongly believed the recovery of truck and its related documents; that the medical evidence contradicts the ocular account. Finally they argued that the prosecution has failed to prove its case against the appellants beyond reasonable doubt and, therefore, they deserve to be acquitted. As against that learned counsel for the complainant as also learned counsel for the State maintained that the eye-witness account was confidence-inspiring; that they had sufficiently explained the reasons for their presence at the place of occurrence and that there was no reason for the complainant to falsely implicate the appellants. Finally they argued that the prosecution had succeeded in proving the guilt of the appellants to the hilt. The learned counsel for Roshan Zamir appellant in Criminal Appeal No,805 of 1999 has adopted the arguments advanced by the learned counsel for Ehsanullah appellant and maintained that the conviction and sentence recorded against Roshan Zamir was not sustainable.
10. After hearing learned counsel for the parties and going through the record we have found that according to prosecution's own showing the alleged eye-witnesses, namely Rozi Khan (P.W.7) and Mattiullah Khan (P.W.8) besides being closely related to the deceased were also chance witnesses, as such the Court had to be satisfied about the reasons of their presence at the alleged scene of occurrence. We have noticed that the story that the said witnesses loaded Khal in their truck and left for Multan has in fact been introduced for the first time in their depositions before the trial Court. In his cross-examination Rozi Khan (P.W.7) stated that he had mentioned about the loading of Khal in his truck but that was confronted with the F.I.R. Where it was not so recorded. The consignment note (Bilty) relating to Khal was never produced before the police but during his deposition Rozi Khan admitted that the said Bilty was on an ordinary plain paper and that the name of the driver, registration book, of the truck and place where the consignment was to be delivered was not recorded on the said Bilty. He further stated in his cross-examination that he reached Adda Indus Goods on 14-11-1998 to collect the consignment of the Khal which was booked at 3-00 p.m. Whereas Matiullah (P.W.8) stated that the Khal was loaded from Commission Agent's Godown which was at a distance of 2/2-1/2 K.M. From Adda Indus. No entry pass was obtained from any octroi post although the Khal which was being transported was subject to levy of export tax.
There are other material contradictions between the statements of both the eye-witnesses regarding the manner in which they proceeded towards Multan although Rozi Khan complainant in the F.I.R. And Mattiullah (P.W.8) in his statement before the police under section 161, Cr.P.C. Had not stated that Ehsanullah and Roshan Zamir accused-appellants accompanied Azizullah when his truck left D.I. Khan for Multan. Even otherwise we have noticed that the ocular account as given by the P. Ws. In their statements before the Court is loaded with strange co-incidents. It is absolutely amazing that the complainant after leaving Adda Indus D.I. Khan covered a distance of more than 100 k.Ms. And reached the place of occurrence on the main highway to find the truck of his brother parked there and then within moments he witnessed the entire occurrence at the small hours of the night in pitched darkness and that too in the torch light. He immediately identified the assailants and also noted the minutest details of the occurrence viz. The weapons, the locale of the injuries, the number of injuries etc. In view of the material contradictions in the testimony of the eye-witnesses their presence at the scene of occurrence was highly doubtful. They have not been able to sufficiently justify their presence at the place of occurrence. Insofar as the corroborative evidence is concerned which has to be in the form of motive, recovery and the medical opinion it may be observed that the recovery of daggers, the recovery of cash amount of Rs,5,400 and the wrist watch had already been discarded by the learned trial Court for valid and convincing reasons. We are, however, surprised that the evidence relating to the recovery of truck P.8 and its related documents was accepted by the learned trial Court. We have noticed that the truck P.8 was allegedly recovered from Ehsanullah appellant who was allegedly driving it in the vicinity of the place of occurrence with the same number plate after 15 days of the alleged occurrence. He did not take any measure to change number plate or other identification marks. This recovery was allegedly witnessed by the complainant (P.W.7) and Aghar Khan, A.S.-I. And no independent witness was associated in the recovery proceedings in violation of section 103, Cr.P.C. Admittedly the complainant who is an eye-witness was an interested witness. Recovery is always effected for the purpose of corroboration. How can an eye-witness who was admittedly an interested witness provide corroboration by becoming a witness of recovery? Even otherwise it does not appeal to reason at all that the accused after fifteen days of the alleged occurrence would be roaming about close to the area of occurrence and with the same number plate of the truck. In this view of the matter no reliance can be placed on the recovery of truck allegedly effected from Ehsanullah appellant.
11. In so far as the medical evidence is concerned there is a glaring contradiction between the said evidence and the ocular account. According to the evidence of Dr. Muhammad Nawaz (P.W.6) all injuries on the person of the deceased except injury No,6 were caused with heavy sharp-edged weapon. He did not contradict the suggestion of the defence counsel that all the injuries except injury No,6 were caused either by hatchet or by an axe or by a Toka. He also stated that parital bone is a very hard bone and that the same cannot be fractured through an ordinary light sharp- edged weapon. He also opined that the injuries recorded by him in the post-mortem report could not be said to be stab wounds. This inconsistency between the medical and ocular evidence creates a serious doubt in the prosecution case and obviously the appellants would be entitled to benefit of any such doubt. The mere fact that there was no apparent reason for the complainant to have falsely implicated the appellants is not by itself sufficient to maintain the conviction and sentences of the appellants. The prosecution has to prove its case beyond any reasonable doubt.
We have noticed that the whole prosecution story is shrouded in mystery and is full of doubts appearing at every step. Even otherwise when the substantive evidence in the shape of eye- witnesses account is not free from doubt, then the corroborative evidence of F recovery etc. Even if plausible is of no avail to the prosecution.
12. The upshot of the above discussion is that the prosecution has not been able to prove its case beyond reasonable shadow of doubt against the appellants. We accept their appeals and acquit both the appellants, Ehsanullah and Roshan Zamir by extending to them the benefit of doubt. They shall be released forthwith if not required in any other case.
13. Since Criminal Appeal No,803 of 1999 and Criminal Appeal No,805 of 1999 have been allowed, therefore, Criminal Revision No,46 of 2000 and Criminal Revision No,63 of 2000 filed for the enhancement of compensation and infliction of independent punishment of fine are dismissed.
Murder Reference No,355 of 1999 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.