1. ' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal No,576 of 1999 filed by Muhammad Ajmal and Ghulam Mustafa, Criminal Appeal No,596 of 1999 filed by Ghulam Rasool, Liaqat Ali, Muhammad Akmal, Abdul Majeed and Criminal Appeal No,582 of 1999 filed by Khushnood alias Kala, appellants who were convicted and sentenced by Judge Special Court (S.T.A.) Faisalabad Division Faisalabad vide judgment dated 20-5-1999 as under:-- ' Khushnood, Ghulam Rasool, Muhammad Ajmal, Liaqat Ali, Ghulam Mustafa, Muhammad Akmal and Abdul Majeed. Three years R.I. With a fine of Rs,5,000 each in default one year R.I. Under section 148, P.P.C., Two years R.I. And to pay a fine of Rs,5,000 each, in default six months R.I. Under section 427 read with section 149, P.P.C.
2. ' Death Ajmal alias Mithu and Ghulam Mustafa under section 302-B, P.P.C., on two counts.
3. ' Ghulam Rasool, Liaqat Ali, Muhammad Akmal, alias Sao and Abdul Majid Imprisonment for life and to pay Rs,1,00,000 each under section 302-B read with section 149, P.P.C., on two counts.
4. ' Khushnood alias Mithu 10 years R.I. And to pay Diyat to Walis of each deceased amounting to Rs,2,30,000 under section 308, P. P. C .
5. ' Criminal Appeal No,587 of 1999 against the acquittal of Muhammad Akram and Abdul Rehman and Criminal Revision No,329 of 1999 for enhancement of sentence filed by the complainant shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place at 11-30 a.m. On 7-8-1997 at a distance of 5 Kilometers from Police Station Sadar, Faisalabad and the matter was reported to police by Ansar Javed through written complaint Exh.P.Q. At 12-30 p.m. On the same day at Mor High Way Khanoana and formal F.I.R. Exh.P.Q.1 was recorded by Mukhtar Ahmad, H.C.
6. 2-A. Briefly stated the facts of the case are that in the morning of 7-8-1997 the complainant went to Chak No,226/RB to see his sister and Bahnoi. His sister sent her to fetch fodder for cattle on ass cart and he went to bring the fodder from the Charri crop of Muhammad Yaqoob. At 11-30 a.m., Ansar Javed, the complainant was cutting the fodder when he heard the voice of a motorcycle.
7. Muhammad Yaqoob and Asghar Ali were on the motorcycle. All of a sudden, firing was made from the purchased land adjacent to millet crop, whereupon Muhammad Yaqoob and Asghar Ali parked the motorcycle and ran towards the Dera of Abdul Rashid. The complainant hid himself in the eastern corner of sugarcane field and witnessed Mithu and Kaloo both armed with .222 rifles, Muhammad Aslam armed with .7 MM rifle, Liaqat and Mustafa both armed with .12 bore double and single barrel guns, chasing Ashgar and Yaqoob and firing. When Asghar and Yaqoob reached Killa No,7 of Square No,95, Mithu fired at Asghar All hitting on his leg and fire shot of Liaqat Ali hit Yaqoob.
8. Both of them were injured and ran towards the Dera of Abdur Rashid to save their lives. On the reports of firing six other accused namely Ghulam Rasool Bao Javed armed with .12 bore guns, Abdur Rehman armed with .30 bore pistol, Muhammad Akram armed with .222 rifle and Abdul Majid armed with rifle .7 MM emerged from the shrubs on eastern side firing aiming at Yaqoob and Asghar Ali. The accused dragged and gathered, injured Muhammad Yaqoob and Asghar Ali, whereafter fired at them. In the meanwhile, Muhammad Yousaf, Muhammad Akram and Sajjad arrived and witnessed the occurrence. The accused also demolished newly-constructed Pucca room of Muhammad Yaqoob and decamped. The complainant and P.Ws. Attended Muhammad Yaqoob and Asghar Ali who had succumbed to the injuries.
3. Investigation of the case was taken over by Muhammad Suleman, S.-I. (P.W.14). After registration of the formal F.I.R., 'he went to the place of occurrence, inspected the dead bodies of Asghar All and Muhammad Yaqoob, prepared injury statements Exh.P.G., P.K. Inquest report Exh. P.H , Exh. P. L. , took into possession the blood-stained earth vide memos. Exh.P.B., Exh.P.C., collected 5 empties of rifle .7 MM, 8 empties of .12 bore gun, 12 empties of rifle .222 vide memo. Exh.P.D. And on 19-8-1997 he arrested Khushnood and Ghulam Rasool accused, no weapon of offence was recovered from them and they were sent to judicial lock-up. On 11-9-1997 except Muhammad Aslam, 6 remaining accused were arrested. The investigation was then taken over by Zafar Abbass, S.-I. (P.W.15). On 19- 9-1997, accused Liaqat Ali, got recovered .12 bore gun P.7 while Javed got recovered .12 bore gun P.9 and similarly Ajmal led to the recovery of rifle .222, accused Ghulam Mustafa got recovered .12 bore gun P.13, the weapons were taken into possession vide memos. Exh.P.M., P.N., P.O. And Exh. P. P. After completion of the formal investigation, challan was prepared on 21-9-1997 and accused were sent to face the trial.
4. At the trial, prosecution in order to prove its case produced 16 witnesses in all. Then the learned D.D.A. Tendered in evidence reports of the Chemical Examiner, Exh . P. V . , Exh P . W . Reports of the Serologist Exh.P.X., P.Y., report of the Forensic Science Laboratory Exh.P.Z. And closed the case of prosecution. After that, statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded false implication. The accused also produced documentary evidence in order to prove their innocence. At conclusion of the trial, the present appellants were convicted and sentenced as stated above.
5. Learned counsel for the appellants submits that the prosecution failed to prove the motive set up in the 'F.I.R.; the F.I.R. Was recorded after due deliberation and consultation; the three eye-witnesses produced by the prosecution apart from being chance witnesses are also closely related to the deceased; the eye-witnesses made dishonest improvements; the complainant was resident of a place which was 10/12 Kilometers from the place of occurrence; in fact it was an unwitnessed occurrence; there is conflict between ocular account and the medical evidence; so far as recoveries from some of the appellants are concerned, there is violation of section 103, Cr.P.C. None from the adjacent house or a respectable person was joined with the recovery proceedings; the report of the Fire-arms Expert being positive in nature is of no avail to the prosecution because crime empties recovered from the spot and the fire-arms recovered on the pointation of the appellants were sent together; in the site-plan neither the donkey cart, the motorcycle of the two deceased nor the car on which Muhammad Yousaf, P.W. Came were mentioned even no place where the complainant hide himself and witnessed the occurrence is shown in the site-plan; on the recovery memos. Exh.P.M. And P.O., the signature were taken later on; recoveries were effected from one house; Arshad Javed recovery witness had admitted that he signed the recovery memos.
9. While coming out from the Chak from where therecoveries had taken place; though according to complainant the occurrence had taken place at 11-30 a.m. But the dead body of Asghar deceased was taken to hospital at 9-00 p.m.; as to taking of dead body of Yaqoob deceased to the hospital is concerned, no witness had stated anything about that; both the Investigating Officers P.Ws.14 and 15 admitted that they did not investigate about the motive set up by the prosecution in this case and that deceased Asghar and his cousin Muhammad Akram, P.W. Were involved in various criminal cases and to prove this fact, certified copies of the F.I.Rs, were tendered in evidence by the defence. Concluding his submissions, learned counsel submits that prosecution has miserably failed to prove its case against the appellants beyond any shadow of doubt and they are entitled to acquittal.
6. Learned counsel for the State assisted by learned counsel for the complainant submits that appellants were named in the F.I.R. With specific roles; ocular account is fully corroborated by medical evidence; according to statement of P.W.9 Muhammad Yousaf stated that deceased persons were also related to appellants so there was no question of false implication; it was a broad-daylight occurrence; there was no question of mistaken identity and that the version put by the defence during cross-examination of Ansar Javed, the complainant and Muhammad Yousaf P.W. Is false. They both support the judgment of the trial Court.
8. We have heard learned counsel for both the sides. In the instant case, Muhammad Ajmal and Ghulam Mustafa, appellants have been awarded death sentence while Ghulam Rasool, Liaqat Ali, Muhammad Akmal and Abdul Majeed were sentenced to imprisonment for life on two counts.
10. Khushnood' was convicted under section 308, P.P.C. And sentenced to undergo R.I. For 10 years and to pay Rs,2,30,000 as compensation. Abdur. Rehman and Muhammad Akram co-accused of the appellants were acquitted by the trial Court. The conviction and sentence was recorded for committing the murder of Yaqoob and Asghar Ali, Muhammad Aslam and Javed accused are still at large and have been declared as P.Os.
9. Four eye-witnesses were mentioned in the F.I.R. But the prosecution examined Ansar Javed complainant P.W.8, brother-in-law of both the deceased, Muhammad. Yousaf P.W.9 first cousin of the deceased and Muhammad Akram P.W.12 also a cousin of the deceased and Sajjad was given up. The recovery witness Arshad Javed P.W.7 is son of Muhammad Akram, P.W. At this stage we would like to mention the relationship of the appellants inter se. Abdul Majeed, and. Liaqat, Ali, appellants are real brothers and also of Javed. P.O. Muhammad Ajmal and Muhammad Akmal appellants are also real brothers inter se. They are sons of Muhammad Ismail. Ghulam Rasool, appellant died in jail. He is real brother of Abdur Rehman, acquitted accused. Similarly, Muhammad Aslam acquitted accused and Muhammad Aslam, P.O. Are real brothers. All the above-said accused persons are from one grandfather, that's Jan Muhammad.
10. First of all we would take up the motive set up by the prosecution in the F.I.R. According to complaint Exh.P.Q., the deceased had purchased 4-1/4 acres of land from Mst. Zubaida out of joint holding of accused, as such due to that grudge the accused committed the murder of both the deceased. The prosecution has miserably failed to prove the motive because not a single document from the Revenue Record whatsoever was produced either before the investigating or before the trial Court to prove the fact that the deceased had purchased any land from Zubaida Bibi out of joint holding of the accused-appellant. Both the Investigating Officers P.W.s. 14 and 15 admitted before the trial Court that they, did not investigate with regard to motive of the occurrence. At this juncture, the statement of Roshan Din, Patwari examined as P.W.2 is very much relevant. This witness in cross-examination admitted that as per Khasra Girdawari of Killa numbers 6, 15, 16 and 25 of Square No,87, from Kharif in 1995 to Rabi 1999 Mst. Zubaida Bibi is owner as co- sharer and possession is of Saif ur Rehman son of Abdul Rehman accused as a tenant; even prior to Kharif 1995 same was the status of the land-owner and Saifur Rehman, the aforesaid' land was transferred to Mst. Zubaida by her father through Hiba, Bashir Ahmad had challenged that mutation of Hiba in the Court of A.C., Faisalabad and temporary injunction was issued on 14-5-1997, whereafter Aziz Ahmad Khan" learned Additional Commissioner Revenue had confirmed the stay order on 2-6-1997. The temporary injunction was confirmed till further order, as per record there is no information about vacation thereof and that all the co-sharers with Mst. Zubaida had separate possession. There is not a single word about sale of the land by Mst. Zubaida Bibi in favour of deceased. It can thus safely be held that prosecution has miserably failed to prove the motive as alleged in the F.I.R.
11. ' However, Bashir Ahmad mentioned in the statement of Roshan Din, Patwari, P.W.2 had challenged the mutation' of Hiba in favour of Mst. Zubaida is related to the present appellants so there are possibilities of false implication of the appellants on the ground of getting the stay order and challenging the Hiba.
12. ' Ocular account.
13. ' Four eye-witnesses were named in the F.I.R. Ansar Javed, complainant P.W.8 is resident of Chak No,91-GB Tehsil and District Faisalabad. The occurrence had taken place in Chak No,226/GB which is at a distance of 5 Kilometers from Police Station Sadar Faisalabad. He himself admitted that his place of residence is 10/12 Kilometers from the place of occurrence though suggestion was put to him at page 51 of the paper book that his residence is 18/20 Kilometers by road. He also admitted that residence of Sajjad P.W. (given up) is in the area of Sangla Hill District Sheikhupura at a distance of 25 Kilometers from the place of occurrence. This witness in order to show his presence stated that he had gone to Chak No,226 to see his sister and her husband but his brother-in-law was not available. He then stated that his sister asked him to bring fodder; he took the donkey cart and went to fetch the fodder and there he witnessed the occurrence. Firstly, there was no occasion for this witness to be at the home of his sister at such early hours of the day. In our society, whenever a brother goes to see his sister, the brother is served like anything and he is never sent to cut the fodder. In the instant case, two sisters of the witness were not only married to the deceased but he was also married to sister of the deceased, so he is very closely related to them. In our considered view, this witness apart from being closely relate to the deceased is a chance witness.
14. ' The other witness produced by the prosecution is Muhammad Yousaf P.W.9. He claims himself to be resident of Chak No,226/RB where the occurrence had taken place. According to him, on the day of occurrence at 11-00 a.m. He went out of his house, Muhammad Akram, P.W. Met him and stated that he (Muhammad Akram P.W.) had to go to. Mauza Kajla in connection with some work, when both reached near the Dhari of Ayub, they heard the fire shots, stopped the car and witnessed that Asghar and Muhammad Yaqoob were running being chased by Mithu accused armed with rifle .222, Aslam with .7 MM rifle, Liaqat armed with .12 bore double barrel gun and Mustafa armed with .12 bore gun (single barrel) firing. The fact that Muhammad Yousaf P.W.9 was in the car was never mentioned by the complainant in the complaint Exh.P.Q. This witness Muhammad Yousaf did not state with specification as to in which connection Muhammad Akram, P.W. Asked him to go to Kajla.
15. In the first line of his cross-examination, this witness stated that he is labourer as trolley loader. How he got the car and was he so rich man to have a car and moreover on the asking of Muhammad Akram, P.W., he became ready to take Akram to Mauza Kajla. There is no mention of the said car in the F.I.R. And site-plan. He made dishonest improvements while appearing before the trial Court and was duly confronted. He stated that the place of occurrence was at a distance of 4/5 squares from the village Abadi but was contradicted when the P.W.2 stated that it was 7/8 squares. In our considered view, this witness is also a chance witness and his testimony does not inspire confidence.
16. ' The next eye-witness was Muhammad Akram examined as P.W.-12. He claims himself to be resident of Chak No,226/GB where the occurrence had taken place. The first question asked from this witness was that did he make any statement on 20-9-1997 before the police, he denied and stated that it is incorrect to suggest that on 20-9-1997 he made a statement before the police that names of accused Abdur Rehman and Akram wei-e introduced by the complainant Ansar Javed wrongly and they were not present at the time of occurrence and that he had made satisfaction about them. This portion was confronted with Exh.D.C. This leads us to the conclusion that this witness was not present at the spot and did not witness the occurrence. This witness is not, a truthful witness. He also did not specify the work for going Kajla with Younas P.W. It is available on the record, that a number of criminal cases had been registered against this witness at Faisalabad which shows that he ordinarily resided at Faisalabad and not in the village where the present occurrence had taken place. This witness was, thus, also a planted witness.
17. ' Neither the Investigating Officer nor the draftsman had shown in the site-plan the motorcycle belonging to the deceased, the car of Muhammad Yousaf P.W.9, the donkey cart or the Bhoosa or Charri crop. The Investigating Officer even in the first inspection note which is prepared on the very first visit of the Investigating Officer to the place of occurrence, these articles have not been shown therein also.
18. ' Thus the testimony of all the three eye-witnesses produced by the prosecution of not worthy of credence and on the basis of such a testimony, conviction on 'a capital charge cannot be awarded or maintained. They, in our view, are not believable.
19. ' The non-presence of the alleged three eye-witnesses at the spot is also proved from the fact that none of them is the witness of recoveries of crime empties and of blood-stained earth from the spot. All the witnesses are police officials. Had the eye-witnesses been present at the spot, they must have become the recovery witnesses also. It has been admitted by Muhammad Suleman, S.- I. (P.W.14) at page 73 of the paper book that at the time of collecting blood-stained earth and empties many persons beside the complainant were present and volunteered that they were not willing to become witnesses, therefore, the police officials were introduced as witnesses.
20. ' Now, we would take up the medical evidence. Dr. Javed Iqbal, Demonstrator conducted post- mortem examination on the dead body of the deceased. According to complainant, the occurrence had taken place at 11-30 a.m. On 7-8-1997. Post-mortem on the dead body of Asghar deceased was conducted at 10-30 a.m. On 8-8-1997. The duration given by the doctor between the death and post-mortem was 24 hours. In the case of Yaqoob deceased, the post-mortem examination was conducted at 12-30 p.m. On 8-8-1997 and the duration given by the doctor between the death and post-mortem was 36 hours. The occurrence having taken place at one and the same time, how there was difference of 12 hours. According to the time given by the doctor, there was difference of 2 hours in conducting the post-mortem examination then how it could be 10 hours. Neither the counsel for the complainant, nor the public prosecutor or the trial Court re- examined the doctor on this point.
21. ' According to F.I.R., Mithu, Kalo Muhammad Aslam, Liaqat Ali and Mustafa all armed with fire-arms chased Asghar and Yaqoob deceased while firing. When Asghar and Yaqoob reached Killa No,7 of Square No".95 accused Mithu fired at Asghar Ali hitting on his leg and fire shot of Liaqat Ali accusedhit Yaqoob, both in injured condition ran towards the Dera of Abdur Rashid to save their lives and on the reports of firing six accused namely Ghulam. Rasool Bao, Javed, Abdur Rehman.
22. Muhammad Akram and Abdul Majeed emerged from the shrubs and fired at Yagoob and Asghar.
23. The accused also allegedly dragged and gathered the injured and perforated their bodies as sieves. There is not a single injury on the back of any of the deceased. Even there are no dragging marks. All the injuries are on the legs, thighs and arms of both the deceased. It can safely be concluded that ocular account is contradicted by medical evidence.
24. ' The dead body of Asghar deceased was taken by Naubahar F.C. (P.W.10) on 7-8-1997. He was entrusted the dead body of Asghar from the spot for post-mortem examination but in examination-in-chief he stated that he took the dead body to hospital at night while the occurrence had taken place at 11-30 a.m. On the same day. It shows that the occurrence had not taken place at the time as the prosecution wants us to believe. On the other hand, there is statement of Muhammad Jamil. F.C. P.W.3. This witness stated that he took the dead bodies alongwith Muhammad Din, F.C. For post-mortem examination.
25. ' Next are recoveries. According to Investigating Officer, Muhammad Suleman, S.-l. P.W.14. Eight crime empties of .12 bore. 5 empties of rifle .7 MM and 12 empties of .222 rifle were recovered from the spot on the day of occurrence. None of the eye-witness is signatory to the recovery memos. No weapon of offence was recovered from Ghulam Rasool and Khushnood. Appellants. Except Muhammad Aslam, accused all the remaining accused were arrested on 11-9-1997. Recoveries were effected from them on 19-9-1997. The weapons of offence and the crime empties were received in the office of Fire-arms Expert on 25-9-1997 . So the positive H report of the Fire-arms Expert is of no credence and cannot be considered-to he a corroboration to the tainted testimony of eye-witnesses. Recovery witness namely, Rashid Javed P.W.7 is son of Muhammad Akram, P.W., eye-witness. He admitted that he signed the recovery memos. After coming out from the Chak from where the alleged recoveries were effected. The recoveries were effected from one house. No independent person was joined to associate the recovery proceedings. There is also clear violation of section 103, Cr. P.0 .
26. 'Exh.D.E. To D.V. Are copies of the F.1.Rs, against Asghar Ali deceased and Muhammad Akram P.W.
27. And his brother. This reflects their antecedents.
28. 'The eye-witnesses being chance and related, there being clear-cut conflict between ocular account and the medical evidence, the prosecution having miserably failed to prove the motive set up in the F.I.R. And the recoveries being of no help to the prosecution because both the crime empties and fire-arms were sent to the office of the F.S.L. together, there is nothing left to maintain conviction recorded by the trial Court against the appellants. We are mindful of the fact that it is a case of double murder but we have also to see whether the prosecution has been successful to prove its case against the appellants beyond any shadow of doubt. The answer is in the negative.
29. ' Resultantly, conviction and sentence recorded against all the seven appellants by the trial Court is set aside by accepting the appeal filed by them. They are in jail and shall be released forthwith if not required to be detained in any other case. The death sentence of Ajmal alias Mithu and Ghulam Mustafa appellants is NOT confirmed.
30. ' Criminal Appeal No,587 of 1999 and Criminal Revision No,329 of 1999 filed by the complainant are dismissed.
31. ' Before parting with this judgment, we may observe that tendency of false implication is on its peak and many innocent people rot in jail for years and years together. The innocent people do not go to the Civil Courts for damages because that process takes a long time and agony is increased more. In the present case we have entertained no doubt that Ansar Javed complainant had not witnessed the alleged occurrence but he had not only come forward to become a complainant but had also posed himself as an eye-witness and had, thus, provided false testimony. To curb the tendency of false implication and it may become a lesson to lessen the false implication, we issue notice to Ansar Javed, the complainant of the case as to why he should not be convicted under section 194, P.P.C. For fabricating and giving false evidence with the intent to procure conviction on a capital charge. Muhammad Akram and Muhammad Yousaf P.Ws. Have died.
32. ' Separate file may be prepared and notice be ' issued to Ansar Javed complainant. To be fixed immediately after summer vacations.