2007 PLP 1445 (YLR)

MUHAMMAD FARRUKH MAHMUD, J.

This judgment will dispose of Criminal Appeal No.468 of 2002 filed by Allah Ditta and Falak Sher-appellants, who along with Ghulam Haider, Annar Manazar Ali, Muhammad Nazir, Mirza, Nasrullah and Gulzar faced trial in case F.I.R. No.215, registered at Police Station Jalalpur Bhattian, on 6-6-2000, for offences under sections 302/449/148/149 P.P.C., before learned Additional Sessions Judge, Pindi Bhattian, who after conclusion of trial, vide his judgment dated 26-3-2002, while acquitting rest of the accused, convicted both the appellants under section 302(b), P.P.C., and sentenced them to death with compensation of the Rs,1,00,000 or in default six months' S.-I. each. Both the appellants were also convicted under section 449, P.P.C. and sentenced to ten years' R.I. with fine of Rs.1,00,000 or in default six months' S.-I. each.

2. Murder Reference No.239 of 2002 for confirmation or otherwise of death sentence of the appellants shall also be disposed of through this single judgment.

3. Brief facts of the case as mentioned in F.I.R. Exh.P.F. lodged by Muhammad Nazir-complainant are that on the fateful night at about 2-00 p.m. he along with Mian Khan was present on the roof top of his house. Muhammad Aslam awoke them and they saw that Manazar armed with rifle, Allah Ditta armed with rifle, Falak Sher armed with 12 bore gun, Nasarullah armed with 12 bore gun, Ghulam Haider armed with 12 bore gun, Mirza armed with 12 bore gun and two unknown persons armed with fire-arms were present outside the house of Shahbaz Ahmad. Within their view, Manzoor, Allah Ditta, Falak Sher and Annar entered the house by scaling over the wall, while the remaining accused took position outside the house. Allah Ditta fired at Bashir Ahmat which launched on the front side of his abdomen. Annar caused a fire which hit Bashir Ahmad on his fingers of left hand. Manazar fired a shot at Shahbaz hitting his left buttock and Falak Sher caused a fire upon Shahbaz at his left thigh. Both of them were seriously injured. The accused fled away from the scene of occurrence. Bashir Ahmad succumbed to the injuries at the spot. Shahbaz Ahmad was taken to Civil Hospital, Jalalpur Bhattian, but he lost his life before any medical aid could be given to him.

4. The motive behind the occurrence was that five years prior to the occurrence Nawaz brother of Shahbaz-deceased married with Mst. Nasrin daughter of Nazir-accused without his consent. For that grievance the accused with consultation committed the murders.

5. After registration of formal F.I.R., the investigation of the case was taken over by Ghulam Ahmad, S.-I./P.W.9. He proceeded to the Hospital, Jalalpur Bhattian, where the dead body of Shahbaz was lying, he took over the dead body and prepared injury statement Exh.P.J. as well as inquest report Exh.PJ/1. Thereafter; he reached the place of occurrence, took over the dead body of Muhammad Bashir, prepared injury statement Exh:P.L. and inquest report Exh.P.L./1. He secured the blood-stained earth from the place where Shahbaz-deceased sustained injuries and from the place where the dead body of Bashir Ahmad-deceased was lying vide memos Exh.P.M. and Exh.P.N. respectively. On 27-6-2000 he arrested Allah Ditta, Falak Sher, Manazar and Annar. On 4-7-2000 Allah Ditta, Falak Sher and Annar led to the recovery of rifle P-4, rifle P-6 and 12 bore gun P-7, which were taken into possession vide memo. Exh.P.C., Exh.P.D. and Exh.P.E. respectively. On 6-7-2000 the complainant moved written application to him regarding innocence of Gulzar and Nasarullah accused. While in custody, on 7-7-2000 Manazar got recovered rifle P-8, which was taken into possession vide memo. Exh.P.R. On 7-7-2000 P.W.9 also arrested Nazir, Ghulam Haider, Shabbir and Mirza. According to his investigation these four accused had not participated in the occurrence. After completion of investigation, the accused were sent up to face trial.

6. At the trial, the prosecution in order to prove its case produced 9 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.P. S. , Serologist Exh.P.T. and that of Forensic Science Laboratory Exh.P.U and Exh.P.V. closed its case. The accused in their statements recorded under section 342, Cr.P.C. pleaded their innocence and false implication. They did not appear as witnesses under section 340(2), Cr.P.C. After conclusion of trial, the learned trial Court while acquitting rest of the accused convicted and sentenced the appellants as stated above.

7. After having read the entire prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. and other relevant material available on record, the learned counsel for the appellants in support of this appeal has contended that the occurrence took place in , the mid of night when the P.Ws. were not present; that both the P.Ws. made dishonest improvements during trial and their dishonesty was exposed when their statements were confronted with their earlier statements; that as per F.I.R. the witnesses were present on the roof top of the house of Muhammad Aslam while during trial the witnesses stated that the house of Muhammad Aslam is at a distance of two Kanals from the house of Shahbaz; that Shahbaz and Bashir lived in two different houses and there was no occasion for Bashir to sleep in the house of Shahbaz on the fateful night; that the statement of the P.Ws. were belied by the medical evidence; that due to discrepancies in the ocular account and the medical account two of the co-accused, who according to prosecution case had effectively fired, have been acquitted; that the learned trial Court committed a patent error by convicting the appellants, as no independent incriminating evidence was available against them; that the appellants had no motive to take the life of the deceased; that the recovery evidence was not worthy of any credence; that the post-mortem was conducted after considerable delay, which denotes that the F.I.R., was registered after due deliberations and consultations; that the complainant specifically named Gulzar and Nasarullah as accused in the F.I.R., and subsequently he moved an application before the Investigating Officer, wherein he exonerated Gulzar and Nasarullah; that it could not be said with certainty that when the P.W. was telling lie and when he was telling truth and that the prosecution case is replete with doubts.

8. The learned Additional Prosecutor General submits that the witnesses were present on the roof top; that one of the deceased Shahbaz was shifted to Hospital, which shows that the witnesses were present at the time of occurrence; that the ocular account is supported by the medical evidence and corroborated by the recovery of weapon; that the prosecution has successfully proved the motive; that acquittal of eight accused would not benefit the appellants as their case stood on different footing. He supports the judgment of the learned trial Court.

9. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely.

10. The instant case was registered on the statement of Muhammad Nazir, brother of Bashir deceased at 5-30 a.m. on 6-6-2000, the occurrence took place during night at 2-00 a.m. and the police station was at a distance of 6 k.m. i.e. less than four miles. According to F.I.R., at 2-00 a.m. on the fateful night the complainant along with Mian Khan P.W.7. (uncle of Shahbaz-deceased) was present on the roof top of the house of Muhammad Aslam, who was not produced before the learned trial Court. The complainant and Mian Khan were sleeping. However, Muhammad Aslam was awoken and the light was on. Shahbaz Ahmad-deceased, cousin of the complainant, and Bashir, brother of the complainant, were sleeping in the compound of the house of Shahbaz Ahmad. On hearing some noise Muhammad Aslam, Nazir Ahmad and Mian Khan awoke and all of them saw 12 accused, who were armed with fire-arms except Shabbir, who was armed with spear, standing outside the house of Shahbaz. Ten of the accused including the appellants were named and were tried by the learned trial Court. The remaining two accused could not be traced out nor any effort was made to trace them. Four of the accused Manazar (acquitted accused), Allah Ditta-appellant, Falak Sher-appellant and Annar (acquitted accused) scaled over the outer wall, which was of small height and trespassed into the house. The rest of the accused took position around the house. Allah Ditta fired with his rifle, which hit on the abdomen of Bashir Ahmad, Annar also fired with his rifle, which hit on the fingers of left hand of Bashir Ahmad and he died at the spot. Manazar (acquitted accused) caused fire with his rifle which hit on the left buttock of Shahbaz. Thereafter Falak Sher caused a fire by his gun which hit on the front of left thigh of Shahbaz, who was seriously wounded and was taken to Civil Hospital, Jalalpur Bhattian, where he died before any medical aid could be given to him. The motive behind the occurrence was that three years prior to the occurrence, Muhammad Nawaz brother of Shahbaz deceased had married with Mst. Nasrin daughter of Nazir (acquitted accused) against the wishes of parents of Mst. Nasrin, which caused grievance to the accused party.

11. Muhammad Aslam, who, according to F.I.R. was the star witness of the case, was not produced during trial. Muhammad Nazis and Mian Khan both made dishonest improvements in their statements recorded by the learned trial Court by stating that they were present on the roof of the house of Mian Khan. They were duly confronted with their earlier statements. They also conceded that house of Muhammad Aslam, where, according to F.I.R. they were present, was at a distance of two Kanals from the house of Shahbaz and that of Mian Khan. The complainant further stated that in between the houses of Aslam/P.W. and Shahbaz/deceased there were houses of Minn Khan, Serja and Mughala. This dishonest improvement strikes at the root of the veracity of the statements of P.Ws.4 and

7. Both the witnesses made dishonest improvement for the reason that they could not witness the occurrence during night from the roof of the house of Muhammad Aslam, which was at a distance of two Kanals. The house of Muhammad Aslam was not only mentioned in the F.I.R., but it was also mentioned in the statement of Mian Khan recorded under' section 161, Cr.P.C. and is available at page 130 of the paper book as Exh.D.A. There is no explanation as to why Muhammad Aslam was present on the roof of the house of Mian Khan or Mian Khan and Nazir were present on the roof top of the house of C Muhammad Aslam, as all of them lived in separate houses. There was no occasion for sleeping together in. one house on the fateful night. P.W.7 conceded that Shahbaz and Bashir (both deceased) had their own houses. Bashir was a married person and was father of a daughter, while Shahbaz used to live along with his parents, brother and sisters. P.W.4 also admitted that Bashir was married and his sisters also lived with him and his house was adjacent but separate from the house of Shahbaz-deceased. However, again there is no explanation as to why Bashir slept in the house of Shahbaz on the fateful night. The complainant came out with ridiculous explanation that house of Bashir-deceased was locked on that night but later on he conceded that when the police visited the spot widow of Bashir and his sisters were present. It may be noted here that during his statement before the learned trial Court Mian Khan introduced a new fact by stating that Mst. Nasrin and Nawaz were sleeping on the roof top of the house. But both of them were not produced before the Investigating Officer when the later visited the place of occurrence. The presence of Mst. Nasrin and Nawaz on the roof of Mian Khan was introduced to justify the attack of the accused. However, in that case they would not spare Nasrin and Nawaz, as they had no direct enmity with Shahbaz or Bashir.

12. It is pertinent to note that no empty was recovered from the compound of the house of Shahbaz-deceased nor any empty was recovered from outside the house. According to P.Ws., the appellants along with Manazar and Annar entered the house by scaling over the small wall, but no such wall has been shown in the rough site-plan Exh.P.P. It is also pertinent to note that in rough site-plan house of Muhammad Aslam was shown adjacent to the compound of house of Shahbaz-deceased. The name of Mian Khan was also added. Similarly in the scaled site-plan Exh.P.Q. it was mentioned that the adjacent house was that of Aslam-Mian Khan. This shows dishonesty on the part of the Investigating Officer as well as on the part of the P.Ws. as undeniably the house of Muhammad Aslam was at a distance of two Kanals from the house of Shahbaz.

13. The quality of evidence of complainant can be judged by the fact that he implicated twelve persons in the F.I.R. Ten of whom were named therein. Later on, on 6-7-2000 he moved written application wherein he exonerated Gulzar and Nasarullah, who were named in the F.I.R.

14. Both the P.Ws. attributed specific fires to Annar and Manazar accused as well, who were acquitted by the trial Court, as the medical evidence did not support the allegation levelled against them. As per F.I.R., the fires caused by Manazar hit on the left buttock of Shahbaz-deceased, while according to Doctor it was an exit wound. Similarly the injuries on the person of Bashir Ahmad did not tally with the statements of P.Ws. Hence Annar, who was attributed injury to Bashir Ahmad was acquitted. It stands settled by the apex Court that evidence in capital charge must come through unimpeachable source. In the instant case the statements of P.W.4 and P.W.7 are not worthy of any credence in the above noted circumstances. The role F assigned to the appellants was similar to the role assigned to Manazar and Annar (acquitted co-accused). So conviction of the appellant, could only be recorded in the presence of reliable independent incriminating evidence against them to distinguish their case from the acquitted accused, which is lacking in this case.

15. As far as medical evidence is concerned, it tells only about the cause of death and does not lead to the assailants.

16. Though the motive was set down in the F.I.R. yet the best evidence was not produced before the learned trial Court, as Nasrin and Nawaz were the witnesses who were relevant. On the contrary, according to P.Ws. despite their availability they were not produced before the Investigating Officer. Furthermore, the motive is dated back 2/3 years and nothing happened in between.

17. As far as the recovery of weapon at the instance of appellants is concerned, it cannot be used against them in the absence of recovery of empties from the scene of I occurrence. As noted above, the occurrence took place at 2-00 a.m. during night and the case was registered after 3-1/2 hours at 5-30 a.m. while the distance between the spot and the police station was 6 km only. Any one of the witnesses could go and lodge the F.I.R. Moreover it was admitted by the P.Ws. that while going to the Hospital the Police Station fell on the way. Any of the accompanying P.Ws. could easily report the matter to the police. The delay in reporting the matter to the police indicates that the F.I.R. was lodged after due deliberation and consultation.

18. The upshot of the whole discussion is that in our opinion the prosecution case is replete with doubts. Hence, while granting benefit of doubt to the appellants, we allow this appeal, set aside the impugned judgment and acquit the appellants of all the charges. They would be released from Jail forthwith, if not required in any other case.

19. In view of the foregoing discussion, Murder Reference is answered in the negative. The sentence of death is not confirmed. N.H.Q./A-5/L Appeal accepted.