' TANVIR AHMED KHAN, J.---This appeal with leave of the Court is directed against the judgment dated 18-11-1999 of a learned Division Bench of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby Criminal Appeal No,122 of 1996 filed by respondents Nos.1 and 2 was allowed and. Their convictions and sentences recorded by the trial Court were set aside. Criminal Miscellaneous No,847-M of 1996 filed by the complainant for the enhancement of sentence of Mumtaz Khan respondent was also dismissed. The murder reference sent by the learned trial Court was answered in the negative.
2. The facts, in brief, leading to the disposal of the present appeal are that F.I.R. (Exh.P.E.) was recorded on 23-8-1995 at 10-30 a.m. At Police Station Lawa, District Chakwal, at the instance of Khizar Hayat (P.W.10) under section 302/34, P.P.C. For an occurrence stated to have taken place on the same day at 9-30 a.m. In which his father, Sultan Khan, was murdered. It was the case of the complainant that he alongwith his father Sultan Khan and brother Muhammad Khan (P.W.11) was residing in village Pichnand. On the above date at about 9-30 a.m. His father Sultan Khan and his brother Muhammad Khan (P.W.11)alongwith his maternal cousin Subedar Allah Yar Khan were returning from the cattle Mandi towards their house. The complainant, at that time, was going from his house to Pichnand Bazar. When his father alongwith others named above reached near the house of Subedar Muhammad Nawaz, a Suzuki car driven by Muhammad Iqbal, absconded co- accused, stopped there. Imtiaz Ali Khan and Mumtaz Khan respondents Nos.1 and 2 got down from the Suzuki having Kalashnikov and pistol respectively. Imtiaz Ali Khan fired a burst from hisKalashnikov at Sultan Khan while raising Lalkara, whereupon the latter fell on the ground.
Subsequent thereto, Imtiaz Ali Khan respondent fired three more bursts hitting Sultan Khan. Mumtaz Khan respondent fired a shot at Sultan Khan from his pistol. Muhammad Iqbal, absconded co- accused, remained seated in the Suzuki car and thereafter respondents Nos.1 and 2 succeeded in fleeing from the place of occurrence brandishing their weapons. Sultan Khan succumbed to the injuries at the spot.
3. The motive for the above incident, as set up by the prosecution, was that two years prior to the present occurrence one, Dalil Khan, a very close relative of Imtiaz Ali Khan respondent, was murdered by one Muhammad Altaf and Sultan Khan deceased was pursuing this case. The Investigating Officer secured blood-stained earth as well as 16 empties of Kalashnikov from the spot. The Suzuki car (P.7) was also taken into possession by the police on 24-8-1997.
4. After usual investigation of the case challan was submitted against respondents Nos.1 and 2 alongwith Muhammad Iqbal, absconded, co-accused, in the Court. The prosecution, in order to establish its case, examined as many as 13 witnesses. The respondents Imtiaz Ali Khan and Mumtaz Khan in their statements recorded under section 342, Cr.P.C. Denied their participation in the offence and stated that they had been roped in due to enmity. They further deposed that at the time of occurrence they were present in the office of Sardar Maqsood Khan, D.S.P. Saddar, Chakwal.
5. The learned trial Court vide its judgment dated 1-7-1996 returned the verdict of guilt against respondents Nos.1 and 2 and convicted both of them under section 302/34, P.P.C. Imtiaz Ali Khan respondent, to whom principal role was attributed, was awarded sentence of death, subject to confirmation by the High Court, with a fine of Rs,50,000 and in default of payment of fine, he was to suffer two years R.I. As regards Mumtaz Khan respondent is concerned, the trial Court in view of his lesser participation in the offence sentenced him to imprisonment for life with a fine of Rs,50,000 and in default thereof, he was to undergo two years R.I. It was also ordered by the trial Court that the Suzuki Car No,IDF-1082, which was used in the crime, be confiscated to the State.
6. Respondents Nos.1 and 2 filed Criminal Appeal No,122 of 1996 in the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereas Criminal Miscellaneous No,847-M of 1996 was preferred by the complainant for enhancement of sentence awarded to Mumtaz Khan respondent by the trial Court. A murder reference was also forwarded by the trial Court to the High Court for confirmation or otherwise of the death sentence imposed upon Imtiaz Ali Khan respondent. A learned Division Bench of the Lahore High Court through its judgment delivered on 18-11-1999, impugned herein, accepted the appeal of the respondents and acquitted both of them of the charge. The aforesaid criminal' miscellaneous filed by the complainant was dismissed as also the murder reference sent by the learned trial Court. Hence, this appeal with leave of the Court.
7. Learned counsel appearing for the appellant has argued that the F.I.R. In this case was recorded with promptitude with specific roles assigned to the respondents and the same were established through unshakeable testimony of Khizar Hayat (P.W.10) and Muhammad Khan (P.W.11). The medical evidence, according to him, is totally in line with the ocular version. He has prayed that in the facts and circumstances of the case the judgment of the learned trial Court be restored by setting aside the acquittal recorded by the learned Judges of the Division Bench.
8. Learned counsel for respondents Nos.1 and 2 has supported the impugned judgment and has stated that during the course of investigation, both the respondents were found innocent as they were present in the office of Sardar Maqsood Khan, D.S.P. Saddar, Chakwal, a place 92 k.m. Away from the place of occurrence. He has further stated that enmity between the parties has been established on record and the eye-witness account in the circumstances cannot be believed.
9. Learned counsel representing the State has supported the stance taken by the learned counsel for the appellant. He has stated that the learned Division Bench of the Lahore High Court has not appreciated the evidence brought on record in its true perspective and has fell into error in completely misreading the same.
10. We have considered the contentions raised by the parties and have gone through the entire documents available on record with the assistance of their learned counsel. We have noticed that the F.I.R. In the present case was lodged promptly with specific roles mentioned therein to respondents Nos.1 and 2. The occurrence is stated to have taken place at 9-30 a.m. While the F.I.R.
Was recorded at 10-30 a.m. In spite of the fact that distance of the police station is 18 k.m. From the place of incident. The learned Judges of the Division Bench have fell into error in holding that the F.I.R. Was recorded after deliberations as in the inquest report the name of exact weapons were not mentioned although the same were described as fire-arms weapons and the names of the respondents were also not given therein as they were simply termed as 'Mulzaman'. We are sorry to hold that simply because of this omission on the part of the investigating agency, it cannot be said that the complainant's side got it recorded after complete deliberations. On the contrary, as is reflected from the preceding paragraphs, the investigating agency was all out in a mala fide manner to help the respondents so as to frustrate the case set up by the complainant. The learned trial Court had appreciated this aspect and had taken strong exception to the conduct of the investigation in this case.
11. The learned Judges of the Division Bench have discarded the ocular account merely on the ground that the same has been brought on record through inimical witnesses. It is not denied that there is long standing enmity between the parties but that solitary aspect would not be sufficient to discredit the testimony of the eye-witnesses. They are natural witnesses and their presence at the spot cannot be doubted in any manner as the defence side, in spite of lengthy cross-examination, utterly failed to shatter their testimony.
12. The arguments of the learned counsel for the respondents that since aforementioned Altaf, the complainant's cousin, was sentenced to death by the learned Sessions Judge, Chakwal, for the murder of aforesaid Dalil Khan on 12-7-1994 i.e, prior to the present occurrence, as such, there was no reason whatsoever for the respondents to murder Sultan Khan, who was following the case of said Altaf. It is regrettable to note that this reason advanced by the learned Division Bench of the High Court is totally shallow as the prosecution has successfully established the ocular version and recovery of 16 empties of Kalashnikov from the spot. The argument that had the witnesses been present over there, they too would have been attacked, does not fit in the circumstances of the case in which the respondents jumped down from the Suzuki car and after committing the murder of Sultan Khan, immediately boarded the same and fled away from the scene of occurrence.
13. The respondents during the course of their statements recorded under section 342, Cr.P.C. Have set up the plea of alibi stating that at 11-00 a.m. On the fateful day they were present in the office of Sardar Maqsood Khan, D.S.P. Saddar, Chakwal. This plea of alibi taken by the respondents did not lend support from the evidence on record. The Investigating Officer, Muhammad Taj, S.-I. (P.W.12), in a mala fide manner, gave concession to the respondents qua their presence in the office of D.S.P.
Saddar, Chakwal. He had wrongly shown in record that he got recorded the statements of Sardar Maqsood Khan, D.S.P., and his Reader, Muhammad Mukhtar, A.S.-I. In this regard. We have noticed that (P.W.13) Muhammad Younas, D.S.P., Range Crime, Rawalpindi Division, categorically stated in his statement that Sardar Maqsood Khan, D.S.P. Saddar, Chakwal, did not tender any statement before Muhammad Taj, S.-I. (P.W.12) the Investigating Officer of the case, nor Muhammad Mukhtar, A.S.-I., Reader of said D.S.P. He further stated that Muhammad Taj, S.-I. Had wrongly shown their statements having been recorded by him. He further deposed that he recommended for initiation of disciplinary action, against said Muhammad Taj, S.4. The learned trial Judge in paragraph 38 of his judgment had also taken serious note of the conduct of Muhammad Taj, S.-I., the InvestigatingOfficer. He too recommended action against the said Investigating Officer and his observations are to the following effect:-- 'Before parting with the judgment, I feel my bounden duty to say something about the investigation of this case. Muhammad Taj, S.-I.Has not properly investigated this case. He had not recorded statements of S.P. Chakwal and his Reader and that his investigation is defective. Muhammad Walayat, Inspector, has also verified investigation of Muhammad Taj, S.-I. Raja Munawar, D.S.P. Has also verified investigation of Muhammad Taj, S.-I. By recording statements of witnesses produced by the accused as well as complainant party. None of the Investigating Officer has given cogent reasons for declaring the accused as innocent. It is common tendency among the police officers that they adopt the role of a Judge during investigation and give concessions to the accused during investigation. Muhammad Taj, S.-I, had not arrested the accused about 10/12 days after the occurrence, in spite of the fact that they were present at their house, reasons best known to him. It should be brought to the notice of higher authorities. This practice must be discouraged. Copy of this order be sent to D.I.G., Rawalpindi and S.S.P., Rawalpindi."
14. We are sorry to hold that the learned Judges of the Division Bench of the High Court have further fell into error in saying that as it had come on record that the respondents were present at 11-00 a.m. On the day of occurrence with the D.S.P. Saddar, Chakwal, it was impossible for them to cover a distance of 92 k,m. From the place of incident to Chakwal city in one and a half hour. In this regard, the learned Judges have stated that such a distance could not have been covered even on G.T. Road and what to speak of improper conditions of roads in Chakwal, a small city. We are sorry to say that all these reasons advanced by the learned Judges of the Division Bench are based on conjectures and surmises. Even if the case of the respondents is admitted that they were present at the relevant time in the office of D.S.P. Saddar, Chakwal, they could have easily gone over there within a span of one and a half hour. Even otherwise, the plea of alibi taken by the respondents could not get any support as neither the above named D.S.P. Saddar, Chakwal, entered the witness-box nor his Reader Muhammad Mukhtar, A.S.-I. Appeared as a witness and the ground of alibi taken by the respondents cannot lend support from any piece of evidence brought on record.
15. Since, according to the prosecution, two types of fire-arm weapons were used in the commission of offence as reflected from the testimony of Dr. Muhammad Farooq (P.W.1) and the deceased sustained 15 injuries, the argument of the learned counsel for the respondents that the case of Mumtaz Khan respondent is distinguishable as no empty of pistol was recovered from the site of incident, has got no substance.
16. Keeping into consideration the recording of F.I.R. With promptitude, ocular account, motive, medical evidence, recovery of empties of Kalashnikov and the number of injuries suffered by the deceased with two fire-arm weapons and failure of the defence side to prove the plea alibi, we are of the considered view that the learned Judges of the Division Bench of the High Court have committed a grave error in basing their decision on conjectures and surmises.
17. The upshot of the above discussion is that we accept this appeal and set aside the impugned judgment dated 18-11-1999 of the Lahore High Court and restore judgment dated 1-7-1996 of the trial Court. As a consequence thereof, respondents. Nos.1 and 2 should be taken into custody forthwith to serve out the sentences imposed upon them by the trial Court.