2004 PLP 1379 (YLR)

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. 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.Ws. 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 Saif ur 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. 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. Ocular account. 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. 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. 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. 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 were 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. 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. 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. 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. 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. 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 accused‑hit 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. Muhammad Akram and Abdul Majeed emerged from the shrubs and fired at Yaqoob and Asghar. 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 safety be concluded that ocular account is contradicted by medical evidence. 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. Next are recoveries. According to Investigating Officer, Muhammad Suleman, S.‑I. 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 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 I is also clear violation of section 103, Cr.P.C. Exh.D.E. to D.V. are copies of the F.I.Rs. against Asghar Ali deceased and Muhammad Akram P.W. and his brother. This reflects their antecedents. 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. 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. Criminal Appeal No.587 of 1999 and Criminal Revision No.329 of 1999 filed by the complainant are dismissed. 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 its 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. Separate file may be prepared and notice be issued to Ansar Javed complainant. To be fixed immediately after summer vacations. N.H.Q./M‑2078/L Appeal accepted.