' SH. ABDUR RASHID, J.---Four Criminal Appeals Nos.1290 to 1293 of 2000 have been filed by Muhammad Anwar son of Abdul Aziz, Kaisar Aziz, Iftikhar Khalid and Zulfiqar Ahmad sons of Jalal Din appellants against the judgment dated 26-8-2000 passed by Rao Shafe Ali Khan, Judge Special Court constituted under the Suppression of Terrorist Activities Act, 1975, Gujranwala in case F.I.R. No,102 dated 26-2-1997, under sections 302/ 324/148/149, P.P.C. Of Police Station Baghbanpura, Gujranwala, whereby, all the said convicts had been sentenced to death on two counts under section 302(b)/34, P.P.C., praying for their acquittal.
2. Abdul Waheed complainant has also filed Appeal No,1385 of 2000 in the same case against the acquittal of Abdul Aziz, Azhar Aziz sons of Jalal Din and Mst. Saleem Akhtar alias Salima praying for their conviction.
3. All the five appeals arise out of the same occurrence and are disposed of by this single order.
4. Briefly stated the facts of the prosecution case are that on 25-2-1997 at about 9-00 p.m. Abdul Waheed complainant was going to the house of his, father Abdul Aziz, who lived in Mohallah Chah Chohanwala and when he reached Ghalla Haji Abdul Aziz at about 9-30 p.m. He saw in the light of electric bulb that Iftikhar alias Fattu armed with .222 bore rifle, Zulfiqar Ahmad armed with .30 bore pistol, Abdul Aziz also armed with .30 bore pistol, all sons of Jalal Din, Muhammad Anwar armed with .30 bore pistol, all sons of Abdul Aziz, Caste Arain, residents of Mohallah Chah Chohanwala, were sitting in ambush with common object in a corner of the Chowk. Muhammad Saeed brother of the complainant came there riding on a motorcycle and seeing him Abdul Aziz called out Lalakara that he should be taught a lesson for his earlier firing at them and that he should not be spared and be killed, upon which Iftikhar, Zulfiqar, Abdul Aziz, Muhammad Anwar, Kaiser and Azhar with their respective weapons made Muhammad Saeed a target of their reckless firing, hitting the different parts of his body, who fell down. Upon reports of firing shots, Abdul Aziz father of the complainant Muhammad Saeed came over there. All the six accused with their respective fire- arms started reckless firing at him as well and their fire shots hit the different parts of his body.
Abdul Waheed complainant being scared got aside. On the report of the fire shots, Abdul Hameed, Amanullah and Kausar Bibi P.Ws. Reached the place of occurrence and had witnessed the same.
With the firing of the accused, one passerby Rashid Iqbal son of Muhammad Farid was also injured.
While leaving from the place of occurrence, the accused took away motorcycle and licensed pistol of Muhammad Saeed deceased.
5. The motive for the occurrence was that about one and half years prior to the occurrence, an exchange of firing had taken place between the accused and the complainant party in which Abdul Aziz and Muhammad Anwar accused were injured and a case F.I.R. No,355 of 1995 under section 324, P.P.C. Was registered at Police Station Baghbanpura, Gujranwala. The said incident rankled in the mind of the accused due to which, they made murderous assault at Muhammad Saeed and his father Abdul Aziz being armed with deadly weapons.
6. Abdul Waheed complainant removed his father Abdul Aziz and brother Muhammad Saeed in injured condition to Civil Hospital, Gujranwala, where Abdul Aziz expired due to the injuries and Muhammad Saleem after his medical examination was referred to General Hospital, Lahore, for further treatment, while Muhammad Saeed was being shifted to Lahore on an ambulance, he also expired on the way. His dead body was brought back to the hospital at Gujranwala.
7. Nabi Ahmad, S.-I., Police Station Baghbanpura, on learning about the incident reached the hospital and he recorded the statement Exh. P. A. Of Abdul Waheed complainant which was read over to him who signed the same in token of its correctness. The statement Exh.P.A. Was sent to the police station through Nasrullah Khan, Constable No,533/C for the registration of case. Muhammad Arshad, Moharrar H.C. Recorded the formal F.I.R. Exh.P.A./1 on the basis of the same. The said S.-I.
Examined the dead body of Muhammad Saeed and Abdul Aziz deceased. He prepared the injury statement of the dead body of Abdul Aziz Exh.P.J. And inquest report Exh.P.K. He also prepared the injury statement of the dead body of Muhammad Saeed Exh.P.L. And inquest report Exh.P.M. He entrusted both the dead bodies to Zulfiqar Ali Constable 969 , and Amjad Ali, Constable 946 alongwith papers for post-mortem examination and thereafter he proceeded to the place of occurrence and upon reaching there, he carried out the site inspection and prepared its rough site-plan Exh.P.R. All the drawings and notes and writings on Exh.P.R. Are in his hand and bear his signatures. He secured the blood-stained earth from two places. The blood-stained earth from the place of injury of Muhammad Sated deceased was made into sealed parcel and was taken into possession vide memo. Exh.P.S. Which was attested by Abdul Hameed and Amanullah P.Ws. The blood-stained earth regarding Abdul Aziz was made into a sealed parcel and was taken into possession vide memo. Exh . P . V . Which was also attested by the said witnesses. The S.-I. Also took into possession three crime empties of .222 bore rifle and five crime empties of .30 bore pistol which were made into a sealed parcel and taken into possession vide memo. Exh.P.B. Which was attested by Abdul Hameed and Amanullah P.Ws. The S.-1. Recorded the statements of all the witnesses under section 161, Cr.P.C.
8. Ghulam. Nabi, S.-1. Also received information at the place of occurrence that a Motorcycre No, 2091-GAD Honda 100 CC, P.1, owned by Muhammad Saeed was lying near Al-Rai Hospital, Jinnah Road, Gujranwala. He proceeded to the said place and, took the motorcycle P.1 into possession vide memo. Exh.P.D. Which was attested by Mansha Tariq and Muhammad Shahbaz P.Ws. He recorded supplementary statement of the complainant Abdul Waheed and handed over sealed parcels containing the blood-stained earth, crime empties and the last-worn clothes of the deceased to Muhammad Arshad, H.C. For their safe custody in the Maal Khana.
9. Dr. Abdul Latif, M.O. P.W.9 on 25-2-1997 at about 10-20 p.m. Medically examined Rshid Iqbal injured P.W. Who was brought by one Safdar Butt and he found following injuries on his person:-- 1.A Fire-arm lacerated wound of entry measuring 1 c.m. x 1 c.m. Going deep on lateral side of right side of abdomen. 8 c.m. Above the right iliac wrest.
' Injury was kept under observation for surgeon's opinion. Duration of injury was fresh, caused by fire-arm. Exh.P.E. Was attested copy of the said MLR issued by him which bore his signatures.
10. On the same day, the said Medical Officer also medically examined Muhammad Saeed son of Abdul Aziz, who was then semi-conscious and he found 15 injuries on his person out of which first 12 injuries had been caused by the fire-arm and the injuries Nos.13 to 15 had been caused by blunt weapons. The injuries had been suffered ' afresh and were all kept under observation. Exh.P.F. Is the copy of MLR which ' is in his handwriting and signed by hind.
11. On 26-2-1997, Dr. Zahid Butt conducted post-mortem examination on the dead body of Muhammad Saeed deceased and he found the following injuries on his person:-- ' INJURIES
(1) Lacerated fire-arm wound. Of inlet .25 c.m. x 1.25 c.m. On the left side of thigh outer surface with fracture femur.
(2) Fire-arm lacerated wound of outlet 5 c.m. x 3 c.m. On inner side of the thigh.
(3) Lacerated fire-arm wound of inlet 11 c.m. Below the injury No,l. .25 c.m. x .2 c.m. On the left thigh.
(4) Fire-arm lacerated wound of outlet 4.5 c.m. x .4 c.m. On lower thigh inner side. 6 c.m. From injury No,2.
(5) Fire-arm lacerated -wound of inlet .5 c.m. x .5 c.m. Back of left knee joint, inner 4 c.m. Below the injury No,3.
(6) Fire-arm lacerated wound of outlet 2.5 c.m. x 1 c.m. Back of left knee joint, inner.
(7) Fire-arm lacerated wound of inlet .5 c.m. x .5 c.m. Back of left knee joint.
(8) Fire-arm lacerated wound .25 c.m. x .25 c.m. Inlet on left leg 14 c.m. Below left knee outer.
(9) Fire-arm lacerated wound of outlet 1 c.m. x .5 c.m. Adjacent to patella.
(10) Fire-arm lacerated wound of inlet 5 c.m. x .5 c.m. On right thigh outer side.
(11) Fire-arm lacerated wound of inlet 2.5 c.m. x 1.5 c.m. Inner side left leg.
(12) Fire-arm lacerated wound of outlet 3.5 c.m. x 2 c.m. On right thigh inner side upper.
(13) Fire-arm lacerated wound glancing on right ring finger with fracture middle pharyax .3 c.m. x 2 c.m.
(14) Lacerated wound 3 c.m. x 1 c.m.
4.5 c.m. Above the left ear cruciate in shape on left side of head.
(15) Lacerated wound 3 c.m. x 1.5 c.m., 2.5 c.m. Above the injury No,14. Cruciate in shape, with fracture skull.
(16) Lacerated wound 3 c.m. x 2 c.m. Cruciate in shape .5 c.m. Before the injury No,15.
' On internal examination cranium, spinal cord, scalp and skull were found to be lacerated, vertebra was healthy. Spinal cord was found to be injured. All the organs of thorax and abdomen were healthy. In the opinion of M.O. The death was caused due to damage of brain and haemorrhage and shock which was sufficient to cause death in the ordinary course of nature and all the injuries were ante-mortem. Exh.P.G. Is the carbon copy of the postmortem report of Muhammad Saeed deceased, whereas, Exh.P.G./1 and Exh.P.G./2 are the diagrams which all are in the handwriting of M.O. And bears his signature.
12. On the same day at about 1-00 p.m. Dr. Zahid Butt, conducted the post mortem on the dead body of Abdul Aziz and found the following injuries:- INJURIES "(1) A lacerated wound of 2 c.m. x 1 c.m. On top of the head, scalp deep.
(2) A lacerated wound 2.5 c.m. x 1 c.m. On back of head 9 c.m. Back from right ear.
(3) A contusion on the left arm measuring 16 c.m. x 7 c.m.
(4) Contusion on the left chest, 28 c.m. x 16 c.m.
(5) A glancing fire-arm wound with blackening 1 c.m. x 0.5 c.m., 4 c-.m. Below the left sub-costal margins 11 c.m. From umbilicus.
(6) A wound of inlet of fire-arm 1 c.m. x 1 c.m., 6 c.m. Below the injury No,5.
(7) A fire-arm glancing lacerated wound of 1 c.m. x .02 c.m. On the left thigh, middle.
(8) Lacerated fire-arm wound of inlet 0.5 c.m. x 0.5 c.m. On the left knee joint outer and middle.
(9) A fire-arm outlet injury 2 c.m. x 1 c.m. Above the knee joint.
(10) A lacerated fire-arm wound of inlet on left thigh 0.5 c.m. x 0.5 c.m. On back (middle).
(11) A wound of outlet 9 c.m. Above injury No,9, 2 c.m. x 2 c.m.
(12) A lacerated fire-arm wound of inlet 1 c.m x 0.5 c.m. Above the right (inner) malleolus.
(13) A wound of outlet 2 c.m. x 1.5 c.m. Above the right malleolus (outer)."
13. On internal examination, cranium and spinal cord were found to be lacerated and the other organs, skull, vertebra, membranes, brain and spinal cord were found to be lacerated. Peritoneum was perforated containing blood, small intestines were also lacerated and other organs of abdomen were healthy. In the opinion of M.O. The injuries Nos.1 to 4 had been caused by blunt weapons, whereas injures Nos.5 to 13 have been caused by fire-arm. The probable time between the injuries and death was 15 to 20 minutes and the death had been caused due to haemorrhage and shock which was sufficient to cause death in the ordinary course of nature. Exh.P.H. Is the carbon crpy of the post-mortem report, whereas, Fxh.P.H./1 and Exh.P.H./2 are pictorial diagrams which are in the hand of said M.O and bears his signatures.
14. On 3-3-1997 Ghulam Nabi, S.-I. Got prepared scaled site-plan Exh.P.D. And its ccmy Exh.P.D./1 from Maqsood Ahmad Bhatti Draftsman and gave his notes in the red ink.
15. On 20-3-1997, Tassadaq Hussasin, Insoector arrested Muhammad Anwar and oth4 r accused.
Muhammad Anwar accused Mile in custody led to the recovery of pistol .30 bore P.2 on 3-4-1994 from his facts ry which was lying beneath a cot wrapped in a black coloured shopper bag; upon unloading two live bullets were recovered and these were taken into possession vide memo.
Exh.P.C. Which was attested by Asif and Ayyub P.Ws.
16. On 8-4-1997 four accused namely Kaiser, Abdul Aziz, Zulfiqar Ahmad and Iftikhar Ahmad were arrested by Tassadaq Hussain, S.-I. Kaiser accused while in custody led to the recovery of rifle .222 bore P.6 from beneath a bed lying in the drawing room of his house which was unloaded and four live bullets were recovered. The rifle and bullets were taken into possession vide memo. Exh.P.V. On the same day, Zulfiqar Ahmad in the custody led to the recovery of .30 bore pistol P.7 from the Bethak of his house which was lying beneath a sofa which was taken into possession vide memo.
Exh.P.X.
17. All the sealed parcels were delivered to the Moharrar H.C. And upon completion of the investigation, the appellants alongwith their acquitted accused namely Azhar Aziz1 Abdul Aziz sons of Jalal Din and Mst. Salima Akhtar alias Seema wife of Abdul Aziz were challaned in this case, who were all charged under sections 302/324/148/149, P.P.C. By the learned trial Court to which they all pleaded not guilty.
18. The prosecution produced Abdul Waheed complainant P.W.1, Mst. Kosar Bibi eye-witness P.W.2, Muhammad Mansha Tariq P.W.3, Muhammad Asif P.W.4, Masood Ahmad Bhatti, Draftsman P.W.5, Hameed Ullah Constable P.W.6, Muhammad Arshad, Moharrar H.C. P.W.7, Riyasat Ali, Constable P.W.8, Dr. Abdul Latif, M.O. P.W.9, Dr. Zahid Butt, M.O. P.W.10, Zulfiqar Ahmad, Constable P.W.11, Nabi Ahmad, S.-I./I.O. P.W.12, Masood Ahmad, S.-I./ I.O. P.W.13, Tassadaq Hussain, Inspector/ I.O. P.W.14 and Khushi Muhammad, D.S.P./ I.O. P.W.15 in support of its case. The learned A.P.P. Tendered in evidence the report of Serologists regarding blood-stained earth Exh.P.Y., report of Chemical Examiner regarding blood-stained earth Exh.P.Z., report of Chemical Examiner Exh.P.Z./1, report of Serologists regarding bloodstained earth Exh.P.Z./2.
He gave up the remaining witnesses and closed the prosecution case.
19. The statements of the appellant and their co-accused under section 340(2), Cr.P.C. Without oath were recorded and all the incriminating prosecution evidence was put to them which they controverted and they took up the plea that it was a night occurrence and blind murder. No P.W.
Was present at the spot at the time of occurrence and that they all had been falsely involved due to their enmity.
20. At close of trial, the learned trial Court vide impugned judgment, acquitted. Azhar Aziz, .Abdul Aziz sons of Jalal Din and Mst. Saleem Akhtar alias Seema and convicted the appellants as mentioned above. Feeling aggrieved by which, the appellants have filed separate criminal appeals and feeling aggrieved by the acquittal of the three accused, the complainant has filed appeal against their acquittal.
21. The learned counsel for the appellants has argued that the motive as alleged by the prosecution is extremely weak, as the first occurrence of firing had taken place one and half years prior to the occurrence and enough time had elapsed to assuage the feelings of the accused party and there was no fresh reason to attack the deceased. It has been argued that the occurrence had taken place during night time and no one had witnessed the same. The deceased by their conduct had annoyed others as well and the appellants and their co-accused were involved in occurrence merely on account of suspicion by concocting a false story. It has been argued that F.I.R. Of this case has been lodged with considerable delay. The occurrence allegedly took place at 9-00 p.m.
On 25-2-1997 and the F.I.R. Was lodged at about 1-45 a.m. On the said date despite the fact that the police station was at a distance of one kilometre from the place of occurrence. It has also been argued that no crime empty and the fire-arms allegedly recovered from the appellants and the co-accused had been sent to the fire-arm expert and as such these recoveries will not be of corroborative value to the ocular version. Even the recoveries of fire-arm from the accused has been assailed. It has further been argued that the entire prosecution case hinges on the testimony of two eyewitnesses namely Abdul Waheed P.W.1 and Mst. Kausar Bibi P.W.2, who both are related to the deceased and inimical to the P.Ws. And they have improved their evidence from the police version in order to bring it in conformity with the medical evidence and thus are unworthy of credibility. It has further been argued that both the eye-witnesses had no reason to be at place of occurrence to witness the same and their entire conduct during the occurrence is reflective of their non-presence at the place of occurrence. It has been also argued that in case both the P.Ws. Were present, they would have also been injured, as the alleged motive of the appellants and their acquitted co-accused, weighed equally against Abdul Waheed complainant as well. It has also been argued that Tasaddaq Hussain, Inspector/Investigating Officer found four accused namely Abdul Aziz, Azhar Aziz, Muhammad Anwar and Iftikhar Khalid innocent which included Muhammad Anwar and Zulfiqar Ahmad appellants also and there is no corroborative material against the said convicted two appellants to distinguish their case from the other two acquitted accused to justify their conviction. It has also been argued that the ocular version is completely at variance with the medical evidence for which no reliable justification is available and had the two eye-witnesses been present at the place of occurrence and had witnessed the same, this conflict between the medical evidence and ocular version would not have occurred.
22. Regarding motive, the prosecution version is that about one and half years prior to the occurrence, an exchange of firing had taken place between the complainant party and the appellants in which Muhammad Anwar appellant and his father Abdul Aziz were injured and a case vide F.I.R. No,355 of 1995, under section 324, P.P.C. Was registered at the Police Station Baghbanpura against the complainant party and the said incident rankled in the mind of the appellants and their acquitted co-accused and impelled them to commit the occurrence.
23. Abdul Waheed P.W.1 in his evidence supported the said motive. In cross-examination he conceded that the accused of the motive occurrence were bailed out after one and half months of the occurrence and thereafter no quarrel of both the parties took place nor any case was registered between them.
24. After the motive occurrence, the complainant party of this case abandoned their residence from the Mohallah of the appellants and about one and half months prior to the occurrence Abdul Aziz and Muhammad Saeed both deceased again took up residence in the Mohallah of the appellants and during the said period no quarrel took place between the parties and no case was registered between them. Both the deceased used to pass from the same street daily where the house of the accused w. Situated. Thus, the accused had every opportunity to take revenge from both the deceased even earlier in case they nourished grudge regarding the tiring incident which took place about one and half years ago. These facts clearly indicate that the earlier rancour between the parties had mollified as none of them ever tried to attack the other. This motive incident narrated by the prosecution witnesses in more of a source of suspicion on the part of the complainant party against the appellants, then actually being a cause for the attack.
25. Abdul Waheed complainant was also an accused in the earlier firing incident and the appellants nourished the same strength of motive against him as well. Had this occurrence taken place on account of the alleged motive then the appellants and their co-accused who were armed with deadly weapons could have easily targeted him as well. The very fact that the complainant despite being visible to the accused was not fired at reflects the weakness rather non-existence of any motive on the part of the appellants and the co-accused to launch an attack on the deceased.
26. During police investigation, the recoveries of fire-arms had been effected from the appellants.
However, the three crime empties of .222 bore rifle and five crime empties of .30 bore pistol taken into possession from the place of occurrence by Nabi Ahmad, S.-I. Were not sent to the fire-arm expert to match with fire-arms recovered from the appellants. Therefore, the alleged recovery of the fire-arms from the appellants is of no significance and it cannot be held that the weapons allegedly recovered from the appellants were the same which had been used in the occurrence.
Furthermore, the weapons had been allegedly recovered from the appellants in suspicious condition. The weapons had been allegedly kept by the appellants in their rooms or factory premises in open being visible and accessible to others. It is against the human conduct that the weapon of offence would be stored in such negligent manner, so that any person could lay its hand on it. Thus, ' the recoveries of weapon of offence made in this case also do not lend support to the ocular version.
27. The prosecution case mainly hinges on the testimony of Abdul Waheed complainant P.W.1 and Mst. Kausar Bibi P.W.2. Abdul Waheed P.W.1 in his evidence stated that accused Iftikhar, Abdul Aziz, Zulfiqar are real brothers. Kaiser Aziz, Muhammad Anwar and Azhar Aziz are also real brothers. Mst.
Saleem Akhtar is real mother of Azhar Aziz etc'. About two years and 9 months ago, at about 9-30 a.m. He reached Ghalla of Haji Abdul Aziz, the electric bulb was on in the corner of Chowk, he saw Abdul Aziz armed with .30 bore pistol, Iftikhar Ahmad armed with .222 rifle, Zulfiqar armed with .30 bare pistol, Muhammad Anwar armed with .30 bore pistol, Kaiser Aziz armed with .7 mm rifle and Azhar Aziz armed with .30 bore pistol, standing in the Chowk. Meanwhile, his brother Muhammad Saeed came there on a motorcycle. Abdul Aziz raised Lalkara that Muhammad Saeed be taught a lesson for previous firing. On his Lalkara, all the accused started firing with their weapons.
Muhammad Saeed received fire-shot injuries on different parts of his body and fell down on the ground. The noise of firing attracted his father Abdul Aziz son of Ibrahim. Iftikhar Ahmad gave a butt blow on the head of his father, who fell down on the ground. The accused then made reckless firing on his deceased father with their weapons. Iftikhar and Abdul Aziz gave "Thudda" blows to his father and brother when they were fluttering on the ground. When the accused were to free Mst. Saleem Akhtar alias Seema came over there and stated that the deceased were still alive and that they be killed otherwise they would kill them. The accused again returned and started reckless firing on Muhammad Saeed and Abdul Aziz. The accused took away motorcycle and pistol of his deceased father, when they decamped from the place of occurrence. The occurrence was witnessed by this P.W., Mst. Kausar Bibi, Muhammad Saeed, AmamiIlah sons of Faiz Ali and Abdul Hameed son of Ibrahim. Rashid Iqbal a passerby was also injured in the firing.
28. Mst. Kausar Bibi appearing as P.W.2, stated that about two years and 9 months ago, at about 9- 30 p.m. She came out from her house in the street, where an electric bulb was alit. Abdul Aziz accused armed with .30 bore pistol, Iftikhar Khalid armed with .222 rifle, Zufliqar Ahmad armed with .30 bore pistol, Muhammad Anwar armed with .30 bore pistol, Kaiser Aziz armed with .7 mm rifle, Azhar Aziz armed with .30 bore pistol were standing in the Chowk. Her deceased husband Muhammad Saeed was coming on a motorcycle. Abdul Aziz raised Lalkara to teach him lesson for previous firing. All the accused including Abdul Aziz made reckless firing at his deceased husband who after sustaining fire-shots fell on the ground. On hearing the noise of firing, her father-in-law Abdul Aziz came over there. Iftikhar Khalid gave a butt blow on the head of her deceased father-in- law Abdul Aziz, who fell down on the ground. All the six accused made reckless firing on Abdul Aziz.
Iftikhar Khalid and Abdul Aziz accused gave 'Thudda' blows to Abdul Aziz deceased when he was fluttering on the ground. When the accused were to flee Mst. Salima Bibi came over there and told the accused that both the injured were alive and if they survived, they would kill them. The accused then again made firing on the deceased person. The accused took away motorcycle of her deceased husband alongwith his pistol when they decamped from the place of occurrence. The occurrence was witnessed by Abdul Waheed, Abdul Hameed, Amanullah P. Ws. Rashid Iqbal a passerby was also injured in the firing.
29. Abdul Waheed P.W. Resides at a distance of one mile from the residence of his father which is near to the place of occurrence. This P.W. Used to go to the residence of his father every day between 6-00 to 8-00 p.m. To buy milk from a person who was neighbour of his father namely Javed alias Judge. However, on the night of occurrence, instead of going to fetch milk between 6- 00 to 8-00 p.m. He goes there at about 9-30 p.m. Then he further states in his cross-examination that he went to the place of occurrence as he received information about departure of his father for Hajj. He did not go to the house of his father alongwith family members on receiving the said information. Abdul Aziz deceased used to come to his printing press every day, as he used to work with him. There are thus two reasons given by this P.W. For his presence at the place of occurrence, firstly buying milk from neighbour of his father and secondly the intimation letter received by his father for Hajj. Muhammad Javed the neighbour from whom this P.W. Used to purchase milk every day, has not been produced as a witness to support the said fact. On the night of occurrence this P.W. Did not buy milk from Javed. When father of this P.W. Visited his printing press every day, there was no special occasion for this P.W. To go to the house of his father at the place of occurrence at 9-30 p.m. In case his father had received Hajj intimation letter, then it was more probable that he should have gone there alongwith his family members and not alone. This P.W. In his version before the police i.e, F.I.R. Did not state the reasons for his appearance at the place of occurrence at 9-30 p.m. Thus, he is a chance witness.
30. This P.W. Was also involved in the earlier firing incident and was an accused. The complainant of that firing incident who are presently the accused, had the same motive and grudge against him as well besides Muhammad Saeed deceased and their father Abdul Aziz. Four appellants and two acquitted accused, who were all six in number all allegedly armed with firearms and were allegedly firing recklessly on the deceased. This P.W. Admitted in his cross-examination that the accused were facing him and there was no intervening hurdle between them, but they still did not fire at him. In case, this P.W. Had been present at the scene of occurrence and the occurrence had taken place in the manner stated by him, then there was no reason for the accused to have spared him. The fact that he was not fired at by the accused and injured in the occurrence constitute a strong circumstance negating his presence at the scene of occurrence.
31. The evidence of this P.W. Is at variance with his earlier version given in the F.I.R. Exh.P.A. He admitted in his cross-examination that he did not mention in the F.I.R. Exh.P.A. That Iftikhar and Abdul Aziz accused gave 'Thudda' blows to the deceased. He also did not mention in his F.I.R.
Exh.P.A. That Mst. Salima Akhtar came there and she stated that injured persons were still alive and if they were not killed, they will kill the accused persons and then the accused again resorted to the firing at the deceased. He also admitted not to have stated in the F.I.R. That Iftikhar accused gave butt blow on the head of Abdul Aziz deceased. In the postmortem report of both the deceased, it had been found that they had received blunt weapon injuries and to bring his evidence in conformity with the medical evidence, this P.W. Has now introduced the factum of butt blow by Iftikhar accused on the head of Abdul Aziz and 'Thudda' blows to both the deceased. Three blunt weapon injuries on the dead body of Abdul Aziz located on the head are lacerated wounds only one butt blow on the head of the deceased has been described by this P.W., whereas, no explanation as to how the deceased received remaining two head injuries had been given. The nature of said injuries clearly shows that they had been inflicted with some weapon and not by mere 'Thudda' blows. Similarly, Muhammad Saeed injured P.W. Had sustained four lacerated injuries on the head area out of which injury No,15 is a fracture of skull. These injuries are also the result of blow by a heavy weapon and not of mere 'Thudda' blows. In case this P.W. Had been present at the scene of occurrence and had witnessed the entire occurrence, then he would have known as to how both the deceased had suffered blunt weapon injuries on their bodies and he would have been able to give their true account. The manner in which this P.W. Has now tried to explain the blunt weapon injuries received by both the deceased goes to show that he is not a truthful person who is ready and willing to change his version to meet a situation.
32. According to his version recorded in F.I.R., both the deceased had only received fire-shot injuries, but according to the post-mortem report of both the deceased, they had also sustained blunt weapon injuries on their persons as well which appear to have been inflicted with heavy weapon.
The nature and dimension of blunt weapon injuries on the persons of deceased indicate that they had not been caused by "Thudda" blows as explained by this P.W. In his evidence. Thus, the testimony of this P.W. Does not fully explain as to how the deceased suffered blunt weapon injuries on their persons and his testimony stands belied and contradicted by the medical evidence. Had he been present at the scene of occurrence and witnessed the same, then he would have been in a position to truthfully describe the manner in which the deceased, suffered their blunt weapon injuries. This conflict of medical evidence with his version negates his presence at the scene of occurrence.
33. When the accused had allegedly killed his brother and father, had he been present there, they would have definitely attacked him as well. Absence of any injury on his person thus negates his presence at the scene of occurrence.
34. The version of this P.W. Had been disbelieved by the learned trial Court against Azhar Aziz, Abdul Aziz and Mst. Salima Akhtar. The learned trial Court had held that the complainant who is this P.W.
Had involved Mst. Salima Akhtar accused in a supplementary statement and her that involvement was false and as such was disbelieved. Tassadaq Hussain, Inspector P.W.4 had found four of the accused namely Abdul Aziz, Iftikhar Khalid, Muhammad Anwar and Azhar Aziz appellants to be innocent in the investigation and the learned trial Court had also held that the active participation of Abdul Aziz and Azhar Aziz remained doubtful throughout the occurrence. This P.W. Had thus, involved in the occurrence the two appellants and two accused who were found to be innocent in police investigation and he also imputed a role to Abdul Aziz and Azhar Aziz acquitted P.Ws., which the learned trial Court did not believe. Thus, the testimony of this P.W. Is replete with infirmities inconsistencies and as such is not believeable.
35. Mst. Kausar Bibi, P.W.2, the second eye-witness produced, is wife of Saeed Ahmad deceased.
The occurrence allegedly took place in the Chowk outside her house. She according to her evidence was present at the Chowk waiting for her husband who had gone to fetch medicine for the sick child and when he got late, she out of anxiety went out of her house in the Chowk to wait for her husband. Thus, the reason for her presence in the Chowk is that her husband was bringing medicine for the child and she was waiting for him in the Chowk. She admitted in the cross- examination that they had not consulted any Medical Officer and that her husband also had not taken the sick daughter with him. The reason for her presence at the scene of occurrence outside her house at 9-30 p.m. Is against the normal human conduct as the ladies would not stand alone in the Chowk when the house is so nearby, normally she would have waited for her husband inside the house and not outside in the Chowk. Her husband was injured at the spot and he fell down. No medicine had been recovered from the place of occurrence during spot inspection and investigation. In case Muhammad Saeed deceased had gone to fetch medicine and was bringing the same, then medicine should have been found lying at the place of occurrence. The absence of medicine at the place of occurrence negates the factum that Muhammad Saeed had gone to fetch medicine for sick child and thus, the very basis for Mst. Kausar Bibi P.W.2 to stand out in the Chowk and wait for the arrival of her deceased husband is rendered nugatory and her presence at the Chowk and watching the occurrence becomes doubtful.
36. According to the evidence of Mst. Kausar Bibi when she was standing in the Chowk, four appellants alongwith other two acquitted co-accused being armed with firearms were present there. She knew about the factum of enmity between the parties and the earlier incident of firing, but she did not get alarmed, did not raise hue and cry and just kept standing there watching them sitting. This conduct of P.W.2 appears to be improbable in the ordinary course of human nature.
37. During the entire occurrence according to her evidence, this P.W. Remained standing at the scene. The six assailants armed with fire-arms fired indiscriminatory on Muhammad Saeed and Abdul Aziz deceased on account of an alleged earlier grudge. Had she been present at the scene of occurrence, she would also have been targeted by the assailants and would have been injured.
The absence of injuries on her person allude to her non-presence at the scene of occurrence.
38. Her evidence in the Court is contradictory of her earlier version before the police recorded in her statement under section 161, Cr.P.C. She admitted in her cross-examination that in her statement under section 161, Cr.P.C. Accused Iftikhar and Abdul Aziz inflicted 'Thudda' blows to the deceased persons when they were lying on the ground; that Mst. Salima Akhtar came to the place of occurrence and told the accused that both the injured were alive and that they >should not be spared and if they survived they would kill the accused, upon which the accused started refiring on the deceased. She was confronted with her statement under section 161, . Cr.P.C. Exh.P.A. Wherein, the said facts which he deposed in her evidence before the trial Court were not recorded. This P.W.
Has thus firstly tried to improve her version in the evidence by concocting the explanation for the blunt weapon injuries on the persons of the deceased which she had not stated in her statement under section 161, Cr.P.C. And secondly she had tried to implicate Mst. Salima Akhtar accused by assigning her role which she had not described in her statement under section 161, Cr.P.C. Mst.
Salima Akhtar accused had been acquitted by the learned trial Court, as this part of the version of this P.W. Had been disbelieved. Therefore, Mst. Kausar Bibi is a person who has no qualms in changing her version to suit the requirements and as well as taking re-. Course to falsely implicate innocent person and thus cannot be described as a truthful witness.
39. According to her version recorded in her statement under section 161, Cr.P.C. (Exh.P.A.) both the deceased had only received fire-shot injuries, but according to the post-mortem report of both the deceased, they had also sustained blunt weapon injuries on their persons which appears to have been inflicted with heavy weapons. The explanation of this P.W. That they received the injuries through 'Thudda' blows and with butt of a pistol of Iftikhar accused, does not appeal to the reason.
When the accused were resorting to actual firing, then there appears to be no reason to hit the head of Abdul Aziz with the butt of a pistol. The nature and dimension of blunt weapon injuries on the persons of the deceased indicates that they had been inflicted by blunt weapon and not by mere 'Thudda' blows. Thus, the testimony of this P.W. Stands belied and contradicted by the medical evidence. Had she been present at the scene of occurrence and witnessed the same, then she would have been in a position to truthfully describe the manner in which the blunt weapon injuries were sustained by both the deceased, right in the first instance in her statement under section 161, Cr.P.C. And thereafter, in her evidence. This conflict of medical evidence with her version negates her presence at the scene of occurrence.
40. No independent corroboration is available on the file to support the ocular version of Mst.
Kausar Bibi.
41. The prosecution in this case has only produced Abdul Waheed and Mst. Kausar Bibi, who are both related to the deceased, are inimical to the accused and whose presence at the scene of occurrence does not appeal to the reason. In the occurrence Arshad Iqbal one passerby was also injured with a fire shot and he had been medically examined. The prosecution did not produce him as he did not support the prosecution version.
42. Tassadaq Hussain, S.-I. P.W.14, who investigated the case admitted in his cross-examination that one Azim son of Muhammad Hanif, Khurshid Ahmad, Muhammad Nawaz, Arshad Mehmood, Allah Ditta appeared before him and claimed to have witnessed the occurrence. They have also not been produced by the prosecution and cited as P.Ws. The occurrence allegedly took place in a Chowk of residential area and must have attracted independent P.Ws. But no other residents of the area had been produced in support of the prosecution version.
43. Tassadaq Hussain, P.W.14, who investigated the case had found Abdul Aziz, Azhar Aziz (acquitted co-accused), Iftikhar Khalid and Muhammad Anwar appellants as innocent and according to his investigation they had not participated in the occurrence. The learned trial Court while believing the innocence of Abdul Aziz and Azhar Aziz in the police investigation disbelieved the innocence of Muhammad Anwar and Iftikhar Khalid on the same evidence without any other supportive or corroborative evidence.
44. The prosecution case is replete with infirmities and discrepancies. The independent eye- witnesses have not been produced. The two eye-witnesses produced are related to the deceased and inimical to the appellants and their presence of occurrence stands belied by the circumstances and facts of the case. Their partial acceptance and belief against the appellants and disbelief against the other three accused without any supportive evidence is legally untenable.
45. In view of the above discussion, we are of the view that the prosecution has failed to prove its case against the appellants through reliable evidence. Therefore, by accepting the four appeals of the appellants, they are acquitted. They shall be released from jail forthwith if not required in any other case.
46. For the reasons discussed in the judgment, the Criminal Appeal No,1385 of 2000 against the acquittal of Mst. Salima Akhtar, Azhar Aziz and Abdul Aziz is dismissed.