' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No,747 of 2000 filed by Liaqat Ali alias Nana and Basharat Ali appellants, who were convicted and sentenced by learned Additional Sessions Judge, Gujranwala vide his judgment, dated 16-5-2000 to death under section 302(b), P.P.C. With further direction to pay Rs,50,000 each as fine or in default of six months'
'R. I .
' Murder Reference No,483 of 2000 for confirmation of death sentence of the appellants or otherwise shall also be disposed of through this single judgment.
2. Brief facts of the case as disclosed by Bashir Ahmad complainant are that he and his step-father namely, Muhammad Ashiq had friendly relations with Ghaffar Khan, Lumbardar resident of village Ghoman. One Zulfiqar Ali had come to the house of the complainant for visiting purpose 2/3 days earlier to 8-1-1990. On the said day in the morning Muhammad Akbar alias Akram had come to see Zulfiqar Ali, who was his nephew and at about 2-30 p.m., the complainant, Muhammad Ashiq, Muhammad Nawaz (brother of the complainant), Munawar Hussain, Zulfiqar Ali and Muhammad Akram came to the house of Ghaffar Khan, Lambardar and up till 4-00 p.m. They all remained sitting in his Baithaik and then left the Baithik to come back. Muhammad Ashiq and Zulfiqar Ali were ahead of others at a distance of 10/11 Karams and when both of them reached near the house of Muhammad Khaliq, Liaqat Ali alias Nana armed with rifle .7 mm, Basharat Ali armed with rifle .7 mm, Muhammad Ashraf alias Achhu armed with rifle .7 mm, Muhammad Akram alias Papu armed with pistol .30 bore, Muhammad Ashiq armed with gun .12 bore double-barrel and Muhammad Arif armed with gun .12 bore double-barrel, who were present behind the wall of a school on the opposite side, suddenly came out. Muhammad Ashiq made Lalkara that Muhammad Ashiq be not spared and be killed, upon which Liaqat All alias Nana made fire with his rifle .7 mm at said Muhammad Ashiq, which hit on front of his chest in the middle. He repeated the fire, which hit Muhammad Ashiq below left eye. Basharat Ali then made fire with his rifle at Zulfiqar Ali which hit him on his chest on right side. Liaqat Ali again made fire at Muhammad Ashiq, which hit at the back of his head, who fell down, whereas Zulfiqar managed to enter in side the house of Muhammad Khaliq in an injured condition, then, the assailants started blazing in the air. The complainant and his other companions ran towards village being frightened. When the assailants went away the complainant party reached at the spot. Both Muhammad Ashiq and Zulfiqar Ali succumbed to the injuries. According to the complainant the above-named assailants having common objection committed the offence at the instigation and abetment of Rana Muhammad Hafeez, Muhammad Sadiq, Safdar and Akbar.
' Motive behind the occurrence was that about one year ago cattle of Muhammad Ashiq accused party had been causing damage to the crops of complainant party. Muhammad Ashiq step-father of the complainant had abstained accused party but they did not stop upon, which Muhammad Ashiq had beaten Muhammad Ashiq assailants with his shoes. The matter was, however, hushed up through the intervention of the respectable but the accused had born grudge as a result of which they committed the offence of Qatl-e-Amad of Muhammad Ashiq son of Mouj Din and Zulfiqar Ali.
3. After registration of the formal F.L R., the investigation of the case was handed over by Muhammad Yunas, A.S.-I. P.W.3, who went to the spot, prepared inquest report Exh.P.K. And injury statement Exh.P.L., collected blood-stained earth, which was taken into possession vide memo.
Exh.P.F. And Exh.P.E. Liaqat All accused while in custody on 11-2-1990 led to the recovery of rifle .7 mm, which was taken into possession vide memo. Exh.P.J. After completion of the remaining formal investigation, 10 accused were challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 12 witnesses. In all, one Asghar All constable was examined as C.W.1, thereafter, learned D.D.A. Tendered in evidence report of Chemical Examiner Exh.P.Q., that of Serologist Exh. P.R. And closed the prosecution case, then, the statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence, they also produced one Gulsher Muhammad Malik as D.W.1 in their defence.
5. After having read the entire prosecution evidence, statements of the accused recorded under section 342, Cr.P.C. And other relevant material available on record, learned counsel for the appellant submits that the witnesses are related inter se, inimical and chance witnesses and there is no independent corroboration to their tainted testimony. Elaborating his arguments, learned counsel submits that chance witnesses have to explain and give cogent reasons for their presence at the place of occurrence but in the instant case, the said witnesses have failed to explain and give cogent reasons for their presence at the spot. Adds that occurrence had taken place in a thickly populated area and admitted, witnesses were available but none from the locality has been cited or produced as a witness. Further submits that the complainant and Investigating Officer had admitted before the trial Court that none appeared before the Investigating Officer to prove the motive part of the case. As far as recovery is concerned, learned counsel submits that it is of no avail to the prosecution because no crime-empty was taken into possession from the spot. Argues that there is conflict between ocular account and medical evidence, not only on the numbers of fires but also about the distance between assailants and the deceased. According to learned counsel, from a distance of 58 feet blackening and burning could not take place.
' It is submitted by learned counsel for the appellant that the eyewitnesses also negated each other as far as, numbers of shots fired by the accused Basharat and Liaqat are concerned. Learned counsel lastly, submits that criminal cases were pending between the family of Ashiq deceased and Zulfiqar. As to motive parts of the case, learned counsel submits that firstly it was not proved and if for the sake of arguments, it is presumed to be there, that was one year prior to the present occurrence and despite lapse of sufficient long time, no untowards incident took place. Concluding his submissions, learned counsel that the prosecution has failed to prove its case against the appellants and they are entitled to acquittal.
6. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellants and submits that Ghaffar Khan being not an eye-witness of the occurrence was rightly not produced by the prosecution and that it was a case of promptly lodged F.I.R. With specific roles of the accused and the ocular account is fully corroborated by medical evidence.
7. We have heard learned counsel for the parties at a great length and have gone through the record with their able assistance. In the instant case, occurrence had taken place at 4-00 p.m. On 8-1-1990 at a distance of 7 miles from Police Station, Saddar Kamokee, District Gujranwala while the matter was reported by Bashir Ahmad at 5-15 p.m. On the same day at More Dargahpur through written complaint Exh.P.D. And formal F.I.R. Exh.P.D./1 was recorded by Muhammad Younas, A.S.-I.
The complainant in this case is Bashir Ahmad, besides him two other eye-witnesses, namely, Munawar Hussain and Muhammad Akram P.Ws.8 and 9 respectively produced. The deceased in the instant case are Muhammad Ashiq and Zulfiqar Ali. Bashir Ahmad complainant is not only step-son of Muhammad Ashiq deceased but also his son-in-law - because he was married to the daughter of said Muhammad Ashiq from his first wife. Munawar Hussain P.W.8 is also son-in-law of Muhammad Ashiq and (URDU TEXT) of Bashir Ahmad complainant. None of the eye-witnesses are residents of the place where the occurrence had taken place. Munawar Hussain P.W.8 is resident of Kot Dhanpat while Muhammad Akram P.W.9 is resident of Kot Qazi Police Station Wandhoo. There is distance of four to five K.Ms. Between Kot Dhanpat and Kot Qazi. Not a single witness from the place of occurrence was cited or produced by the prosecution. The case of the prosecution was that the complainant alongwith others went to the Baithak of Ghaffar Khan, Lumbarck at village Ghooma, remained there till 4 p.m. And while they were returning from the house of said Ghaffar Khan, the accused party attacked but Ghaffar Khan, Lumbardar was not cited or produced by the prosecution to prove that the complainant party ever went to said Ghaffar Khan. It was also the story of the prosecution that Zulfiqar after receiving the injuries entered into the house of Muhammad Khaliq but the said Khaliq too was not cited or produced by the prosecution. Dr. Ali Muhammad P.W.11, who conducted post-mortem examination on the dead body of Muhammad Ashiq deceased opined that there were only two entry wounds and two exit wounds thereof on the person of the deceased while according to the F.I.R., three shots were fired on the person of Muhammad Ashiq deceased. The injury attributed to Liaqat Ali on the backside of head of Muhammad Ashiq deceased is an exit wound, so there is clear conflict between ocular account and medical evidence. Even injuries observed on the dead bodies of both the deceased were having burning around them and according to the doctor that could be caused from a distance of 4 to 6 feet. In the site plan Exh.P.A. Head note D distance between the assailants and the deceased was 58 feet, so even if this distance is kept in mind blackening could not have been around the wounds. Munawar Hussain P.W.8 had stated in his examination-in-chief that Liaqat Ali and Basharat Ali appellants tired one shot each while according to F.I.R. Liaqat Ali appellant fired three shots. It is also a glaring contradiction between the ocular account and the medical evidence. With this background, we are of the considered opinion that the eye-witnesses were not present at the spot and they had not witnessed the occurrence with their owns. This fact finds further corroborations from the fact that F.I.R. Was not recorded at the police Station. The eye-witnesses were the chance witnesses and later on, in connivance with the police, the F.I.R. Was recorded with the deliberation and consultation.
8. Six accused were shown to be present at the spot, while four were alleged to be abettors, eight were acquitted by the learned trial Court. Only Liaqat and Basharat who are real brother inter se were convicted and sentenced by the learned trial Court. Basharat was placed in Column No,2 of the challan. Rifle .7 mm was allegedly recovered from Liaqat appellant. Munawar Hussain and Muhammad Nawaz are witnesses of the recovery memos. Muhammad Nawaz was not produced while Munawar Hussain did not utter a single word about the recovery. Even otherwise, the recovery of rifle on the pointation of Liaqat Ali appellant is of no avail to the prosecution because not a single crime-empty was recovered from the spot, though six persons fired indiscriminately at the spot.
9. It has come on record that Safdar Hussain acquitted accused had enmity with Zulfiqar because he was one of the accused for the murder of his brother. It has also come on record that deceased persons and the complainant party had enmity with many other persons and cases were pending between the families of Muhammad Ashiq and Zulfiqar deceased.
10. The motive alleged in the F.I.R. Was that one year prior to the occurrence Muhammad Ashiq deceased had given beating with shoes to Muhammad Ashiq accused but the matter was patched up between the parties, however, the accused party having grudge in their mind, committed the murder of Muhammad Ashiq and Zulfiqar. It has been admitted by the Investigating Officer and the complainant that no witness was produced during the course of investigation to prove the motive. This being the position, motive though alleged, was never proved by the prosecution.
11. Having taking into consideration the contradiction between the ocular account and the medical evidence, the eye-witnesses being not the resident of the place of occurrence, as such were chance witnesses, had not seen the occurrence with their own eyes, the motive having been alleged but not proved and no crime-empty having been recovered from the spot, despite firing by six accused, mere recovery of .7 mm rifle on the pointation of Liaqat Ali appellant, it can safely be held that the prosecution has miserably failed to prove its case against the appellants beyond any shadow of doubt. Resultantly, the appeal filed by the convicts-appellants is accepted, conviction and sentence recorded against them by the learned trial Court is set aside and they are acquitted of the charge. Death sentence awarded to both the appellants is not confirmed and murder reference is replied in the negative.
' Both the appellants are in jail and they shall be released forthwith if not required to be detained in any other case.