2007 PLP 670 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.842 of 2005 filed by Riaz Hussain Shah, appellant and Criminal Appeal No.1047 of 2005 filed by Iftikhar Ahmad and Muhammad Riaz, appellants, who were convicted and sentenced by learned Sessions Judge, Mandi Baha ud Din vide his judgment dated 11-5-2005 to undergo imprisonment for life each under section 302(b)/34, P.P.C. with further direction to pay Rs,1,00,000 each as compensation to the legal heirs of the deceased with the benefit of section 382-B, Cr.P.C. Criminal Revision No.429 of 2005 filed by Asif Mehmood against Riaz Hussain Shah etc. and P.S.L.A. No.57 of 2005 filed by Asif Mehmood against the acquittal of Zulfiqar Hussain Shah etc. shall also be disposed of through this single judgment. 2.

2. Brief facts of the case are that on 8-4-1999 Nazar Muhammad, A.S.-I. (acquitted accused) was on patrol duty and was going on Phalia Road from Raika to Phalia. At about 8-30 p.m., he reached near hut's of Pathans midway Raika and Phalia, he saw a Pajero Van parked on the side of the road and some persons were boarding an injured in the said van. Upon inquiry by the said A.S.-I. From" said persons, he came to know that Major retired Muhammad Azam son of Muhammad Ashraf along with Mian Khan son of Ali Muhammad and Rehmat Ullah son of Bashir Ahmad was going to Phalia from his village Mano Chak. In the way, a white coloured car in which five persons were boarding over took the said van and stopped it. One person dragged Major Azam out of the van whereupon Major Azam tried to escape but all the five persons started firing with Kalashnikov type fire-arms and Major Azam was injured. Major Muhammad Azam was being taken to hospital in an injured condition but when he reached at Phalia hospital, he died on account of said injures. The companions of Major Azam told that all the five persons fled away towards Phalia in the said car. Nazar Muhammad, A.S.-I. himself made complaint Exh. P. H. of the occurrence whereupon formal F.I.R. Exh.P.H./1 was recorded on 8-4-1999 at 9-05 p.m. by Muhammad Latif MHC at Police Station, Phalia.

3. On the same night i.e. 8-4-1999, Asif Mehmood son of Nazir Ahmad, a paternal cousin of Major Azam deceased moved an application to the police claiming himself to be the eye-witness of the occurrence stating therein that he along with his cousin Major Azam (deceased), Muhammad Asghar, Abbas Haider and Rehmatullah was going to Phalia to play badminton and when they crossed the bridge of Saim Nala Raika, a white coloured corolla car crossed their van and signaled to stop whereupon Major Azam stopped his van near Dera Pathanan. Riaz Shah armed with rifle Klashnikov type along with four unknown persons came out of the car and said Riaz Shah dragged Major Azam from the van. Major Azam tried to escape whereupon Riaz Shah fired two shots hitting Major Azam at his back, who fell down and thereafter, the remaining persons made firing hitting Major Azam at back of his right shoulder, upper part of right ankle, left leg and right upper arm. The accused fled away in their car. It was mentioned that he and his companions in the light of two vehicles witnessed the occurrence. They were taking the injured to the hospital but the injured succumbed to the injuries at Phalia Hospital. It was further mentioned in the application that on 3-4-1999 he (Asif Mehmood) along with the deceased was sitting in their house at Mano Chak at 7-00 p.m. when Rashid Ahmad and Javed Akhter Virk came there and told that "they went to the house of Syed Binyamin Rizvi (accused since dead) at Iqbal Town, Lahore, on 2-4-1999 at about 10/11 a.m. where Riaz Shah along with two unknown persons was present and that in their presence Binyamin Rizvi took Riaz Shah and his companions to another room. Binyamin said to Riaz Shah etc. that Major Azam be murdered in his absence as he was going to foreign country." When Rashid Ahmad and Javed Akhter disclosed the said planning, Major Azarn said that his life and death was in the hands of God. The motive as stated in the said application was that on 1-4-1999, Major Azam addressed a meeting of Kisan Union at Phalia levelling different allegations against Pir Binyamin and also that about 4/5 months before Major Azam produced Allah Dad in the open Court of the then Prime Minister at Model Town, Lahore, wherein the said person levelled different allegations against Riaz Shah and Pir Binayamin. It was further stated that Major Azam was murdered in the result of abetment/ conspiracy mentioned above.

4. Preliminary investigation was carried out by Inspector/S.H.O., Zulfiqar Hussain Shah (acquitted accused), who arrested Iftikhar Ahmad and Riaz Ahmad and sent them to judicial lock-up. On 13-5-1999 Baidar Bakhat, Magistrate Section 30, Phalia conducted identification parade of Iftikhar Ahmad and Riaz Ahmad accused persons whereupon Asif Mehmood-(P.W.2) and Rehmat Ullah (P.W.4) and Akhtar Abbas (P. W .5) identified the said two persons. On 23-6-1999 the said Judicial Magistrate again conducted identification parade in the Jail at Mandi Bahaud Din and the said three persons mentioned above identified Javed Iqbal accused (since dead). Jamil Akhter Ghauri the then, D.S.P./S.D.P.O., Phalia also investigated the case regarding involvement of Pir Binayamin and declared him innocent on 14-5-1999. Muhammad Shaukat Hayat, D.S.P., Crime Branch, Gujranwala (C.W.4) and Mushtaq Ahmad Sukhera, the then SSP, Gujranwala (C.W.11) also investigated the case. Both of them found Pir Binayamin accused innocent and Iftikhar, Riaz and Javed Iqbal accused persons as well as Ashraf. and Muhammad Arif (not facing the trial) were found guilty while Shaukat Hayat, D.S.P. held that Riaz Hussain Shah did not take part in the actual occurrence but he was declared guilty for abetment-conspiracy for the murder. On 15-4-2000 Muhammad Nawaz S.-I./S.H.O. prepared the report under section 173, Cr.P.C. wherein Iftikhar Ahmad, Muhammad Riaz, Javed Iqbal and Riaz Hussain Shah were challaned.

5. On 31-3-2000 Asif Mehmood cousin of Major Azam deceased filed a private complaint against 12 persons including the present accused persons facing the trial. The learned Addl. Sessions Judge after procuring the report under section 202, Cr.P.C. did not summon Abdul Khalid Khawarzmi, the then Assistant Commissioner, Phalia while the remaining 11 persons were - summoned as accused to face the trial.

6. At the trial, complainant examined 11 P.Ws. to prove the charge while gave up Muhammad Aslam, Muhammad Asghar, Dr. Tariq Mehmood, Muhammad Hayat, Javed Akhter P.Ws. being unnecessary and closed his case but later on, upon application, reports of Chemical Examiner Exh.P.L. and that of Forensic Science Laboratory Exh.P.M. were tendered in evidence, thereafter, 13 C.Ws. were recorded, then the statements of the accused were recorded under section 342, Cr.P.C. and they also produced two witnesses namely, Tauseef Liaqat D.W.1 and Muhammad Hayat D.W.2 in their defence. After completion of the trial, present appellants were convicted and sentenced as mentioned above while the remaining accused were acquitted by the learned trial Court.

7. After having read the entire prosecution evidence, statements of P.Ws. D.Ws. and C.Ws., statements of the appellants recorded under section 342, Cr.P.C. and other relevant material available on record, learned counsel for Riaz Hussain Shah appellant submits that in the instant case a prompt F.I.R. was registered on the statement of Nazar Muhammad, A.S.-I.: that nobody was named in the said F.I.R.; that only two witnesses were named therein; that they were Mian Khan (not produced in the Trial Court) and Rehmat Ullah; that this F.I.R. was recorded on 8-4-1999 regarding the occurrence which had taken place on the same day; that the complaint was filed on 31-3-2000 by Asif Mehmood, Advocate/ paternal first cousin of the deceased after more than 10 months of the occurrence that Asif Mehmood stated in the complaint that first time he came to know about said F.I.R. lodged by said Nazar Muhammad, A.S.I. on 12-4-1999.

8. Learned counsel for the appellant submits that this complaint was lodged after concocting and fabricating a false story and 11 accused were made respondents in the said complaint; that learned trial Court on the ground of compromise acquitted Dr. Ijaz Ahmad Mughal on 6-5-2005. Learned counsel further submits that learned trial Court acquitted Zulfiqar Hussain Shah, Inspector, Nazar Muhammad A.S.-I., Qudrat Ullah, S.S.P. and Jamil Akhtar. Ghori, D.S.P. after holding the trial through the impugned judgment; that one of the accused Javaid Iqbal died before the final judgment on 13-9-2005; that one co-accused Binyamin was murdered before the final judgment.- He has referred to the statement of Muhammad Latif, A.S.-I./Moharar P.W.9 who had recorded the formal F.I.R. on 8-4-1999 at 9-05 p.m. according to Rapat No. 6 he was not cross-examined by the complainant party; that formal F.I.R. is Exh.D.H./1; that Muhammad Akram P.W. paternal real uncle of the deceased appeared before the learned trial Court; that he was recovery witness of blood-stained earth and empty cartridges which was not challenged.

9. Learned counsel for the appellant submits that as far as motive is concerned, Asif Mehmood, Advocate, complainant of the complaint who appeared as P.W.2 and stated in the complaint that Major Muhammad Azam had addressed Kissan Union and levelled serious allegations against Binyamin accused (now dead) and 4/5 months prior to the present occurrence Major Muhammad Azam also levelled serious allegations against Binyamin and his co-accused Riaz Shah in the open katchery of Prime Minister of Pakistan; that Asif Mehmood complainant was not witness of both these incidents. Learned counsel further submits that allegation against both these accused was that they had unsurped the property of one Allah Dad; that said Allah Dad was not produced before the learned trial Court; that Rehmat Ullah P.W.4 was driver of Major Muhammad Azam; that he had stated before the learned trial Court that deceased used to make serious allegations against Binyamin accused in the open katchery of Prime Minister of Pakistan; that in this regard no date, time and place of open katchery has been mentioned by this witness and according to him this was hearsay evidence; that learned trial Court has not accepted the motive in his judgment vide paragraph 10 at page 16.

10. Learned counsel further submits that. no weapon was recovered from Riaz Hussain Shah accused; that there is no ocular account against the appellant and these witnesses are interested and chance witnesses; that complainant is "Mamoon-Zaad" o the deceased; that Asif Mahmood wanted to lodge the F.I.R. regarding murder of the deceased on the same day but S.H.O. refused to entertain his written application; that complainant could have lodged the complaint on the same day but the complaint was lodged after more than 10 months; that allegation against the appellant Riaz Shah was that according to application which was submitted to the D.S.P. he was armed with rifle "Kalashnikov" type but in the complaint after 10 months Riaz Shah was 'allegedly shown to be armed with gun Kalashnikov type; that this was 'dishonest improvement after receipt of report of post-mortem report; that Riaz Shah had been declared innocent by different Investigating Officers including 5 police officers having highest rank and they all concluded that Riaz Shah was not present at the spot at the time of occurrence; that Riaz Shah appellant also produced Tauseef Liaqat DMA, who stated that Riaz Shah was present in Peoples House Lahore, in Room No.10 of Diwan Mushtaq, M.P.A. from 4-00 p.m. to 10-00 p.m. on 8-4-1999 that's on the day of occurrence.

11. Learned counsel further submits that prosecution also produced P.W.4 Rehmat Ullah driver of the deceased; that he, in his statement under section 161, Cr.P.C. Exh. D.B. before the police never named Riaz Shah appellant; that other eye-witness Abbas Haider was produced as P.W.5, who is chance witness; that he admitted. that he does not play badminton and he accompanied the deceased by chance; that none of three eye-witnesses Asif Mehmood P.W.2, Rehmat Ullah P.W.4 and Abbas Haider P.W.5 had received even a scratch on their bodies at the time of occurrence; that Asif Mehmood was inimical towards Riaz Shah due to political rivalry; that these witnesses are, inimical and interested against Riaz Shah; that they have stated that at the time of occurrence they had focused their eyes towards the accused but it was night time occurrence; that the eye-witnesses had stated in their statements that they had seen the occurrence in the light of a car; that these witnesses are not reliable because they are not the independent witnesses.

12. Learned counsel adds that as far as allegation against the Riaz Shah appellant of abetment is concerned, prosecution has produced Rashid Ahmad Advocate P.W.8 in this regard; that on 2-4-1999 at 10/11 a.m. this witness was present in the house of Binayamin accused at Lahore, where Binayamin accused conspired with Riaz Shah accused for the murder of deceased; that in successive investigations it came to light that no abetment was made at the house of Binayamin accused and Riaz Shah is innocent in this case; that Shaukat Hussain, D.S.P., C.W.4 appeared before learned trial Court and stated that Riaz Shah was not present at the spot and he directed the S.-I. That the evidence of abetment be collected; that thereafter Muhammad Nawaz S.-I. C.W.7 recorded the evidence of Nazar Muhammad C.W.12 and Aurangzeb C.W.13 on 29-2-2000 ten months after the occurrence; that C.W.12 and C.W.13 did not support the factum of abetment against Riaz Shah; 'that on the other hand Riaz Shah had produced D.W.2, Muhammad Hayat in his favour who stated that Riaz Shah was present in Pahrianwali, District Mandi Bah-ud-Din; that learned trial Court in the impugned judgment has not accepted the evidence regarding the abetment against Riaz Shah.??????

13. Learned counsel further adds that allegation of prosecution was that inquest report was removed by the accused party in connivance with the police; that there are so many doctors in the family of complainant party and they used their influence and got a letter written by Dr. Ijaz Ahmad Mughal that inquest report has been taken away by the police and police is not returning the same and later on complainant compromised with the said doctor who was also an accused in the complaint case and got him acquitted; that father of the deceased Dr. Muhammad Ashraf was Medical Superintendent in Mandi Bah-ud-Din; that Dr. Tariq Chaddar, President of Pakistan Medical Association was close relative of the deceased and was also present at the time of post-mortem examination; that post-mortem examination was conducted by a board of doctors; that there was no reason to remove the inquest report; that it was not even beneficial towards the accused; that facts of the case which are given in the F.I.R. are also given in the inquest report briefly; that even trial Court has acquitted all the accused persons who were concerned with the alleged removal of inquest report and were police officials;

14. Learned counsel for the appellant Riaz Shah submits that there is a conflict between ocular account and medical evidence; that Dr. Asif Ali P.W.6 was one of members of board who conducted the post-mortem examination; that there are 14 injuries on the person of the deceased, out of which 7 were entry wounds with fire-arm, one is exit wound and six were with blunt weapon; that six blunt weapon injuries have not been explained by the complainant party before the learned trial Court, therefore, one can say that eye-witnesses were not present at the spot; that there are 7 entry wounds with fire-arm but only two crime empties were recovered from the spot and those were of .12 bore gun; that in this regard the prosecution witnesses have been changing their instance that's changing the type of weapon of offence; that in the F.I.R. specific injuries were attributed to the appellant excluding the blunt weapon injuries. Learned counsel has relied upon following judgments: 1989 PCr.LJ 92; 1993 SCMR 550; 1984 SCMR 930; 1976 SCMR 236; 1974 PCr.LJ 391; 2006 PCr.LJ 944; 1988 PCr.LJ 674; 1978 PCr.LJ Note 10 at p.7; PLD 1974 Lahore 306; 1976 PCr.LJ 65; 1997 SCMR 1531; NLR 1990 Criminal 282; PLD 1990 Karachi 314; PLD 1974 Lahore 306; PLD 2006. Peshawar 144; 1996 .PCr.LJ 238 and PLD 1990 Karachi 314

15. Learned counsel for the appellants Iftikhar Ahmad and Riaz Maken submits that after going through the evidence learned trial Court came to the conclusion that motive alleged against Riaz Shah appellant and Iftikhar accused was not proved; that learned trial Court in paragraph 14 of the judgment had stated that there is no need to discuss the evidence of abetment as Binayamin has already died.

16. Learned counsel further submits that as far as destruction of evidence is concerned, learned trial Court has disbelieved this evidence in paragraphs 14, 15 and 16 of the impugned judgment; that the F.I.R. was lodged before commencement of investigation; that as far as recoveries are concerned, learned counsel has referred to the statement of Hakim Ali, S.H.O., he stated that S.P. directed him to effect recoveries from Riaz Shah and Iftikhar Ahmad and he in compliance of said direction got recovered weapon of offence, .12 bore repeater gun from Iftikhar Ahmad and Sota from Riaz appellants; that when he got recovered weapon of offence the witnesses were present in the police station and not at the place of occurrence and for this reason learned trial Court has disbelieved this piece of evidence; that the same did not advance the prosecution case because crime weapon recovered from Iftikhar Ahmad did not match with the crime empties, recovered from the place of occurrence; that it was not the case of prosecution that any accused was armed with Danda at the time of occurrence; that this alleged incriminating evidence of .12 bore repeater gun was never put to the accused person in his statement under section 342, Cr.P.C.

17. Learned counsel further adds that as far as ocular account is concerned, prosecution had been improving its case at different stages, he has referred to the F.I.R. lodged by Nazar Muhammad A.S.-I. to the effect that all the five accused were armed with Klashinkov type arms that on the same day in the application which was submitted to the S.H.O. by the complainant, he had stated that Riaz Shah appellant was armed with rifle Kalashnikov type and 4 other unknown accused were armed with rifles; that after receipt of post-mortem report when the complaint was filed 10 months after the occurrence even then the nature of weapon was changed to the effect that except Riaz appellant who was armed with gun Kalashnikov nama Iftikhar Ahmad was armed with pump action while other accused persons including unknown accused were armed with rifles and .12 bore guns; that the complainant introduced before the police 22 days after the occurrence two eye-witnesses namely Asghar and Abbas Haider; that Abbass Haider P.W. appeared before the learned trial Court and stated that he was with the deceased per chance; that Rehmat Ullah P.W. was servant of the deceased, he told a lie; that in Exh.D.B. he had named Riaz Shah appellant as one of the accused; Learned counsel further adds that evidence which has been brought on record suggests that accused were shown to the P.Ws. prior to .the identification parade; that complainant at page 10 of his statement before the learned trial Court stated that he came to know about Iftikhar one or two days before the identification parade; that learned Magistrate who had conducted identification parade had admitted that two days prior to the identification parade Iftikhar and Riaz were produced before him for remand; that complainant stated before the learned trial Court that on the said date the accused were produced before the learned Magistrate, he was served for joining in the identification parade and further admitted that he requested the learned Magistrate to adjourn the matter for 2/3 days because he has to bring his witnesses from Chiniot; that in the application which was submitted immediately after the occurrence by the complainant except name of Riaz Shah he did not mention even any type of description of any accused; that this alleged incriminating evidence of identification parade was never put to both the appellants in their statements under section 342, Cr.P.C. In this regard he has relied upon PLJ 1996 FSC 239; 1984 PCrLJ 2069; 1975 PCr.LJ 1116; PLD 1972 (Lahore) 129; 1969 SCMR 777; PLD 1961 Lahore 146; PLD 1955 FC 88; PLD 1955 FC 129; PLD 1952 FC 63; PLD 1952 FC1.

19. Lastly learned counsel submits that such type of witnesses cannot be relied upon and he relied upon 1996 SCMR 176.

20. On the other hand learned counsel for the complainant submits that learned trial Court has not discussed mark "A" and "B", the news in "Daily Jang" and English Newspaper "The News" which were about the motive of the case and learned trial Court had dismissed the application under section 540, Cr.P.C. in this regard filed by the complainant vide order dated 11-2-2004 wherein learned trial Court observed that he would take notice of these two news; that motive is against Riaz Shah appellant because deceased put distinct political activities, against him;, that complainant party had no personal enmity with any of the accused nor there was any litigation against the accused party prior to this occurrence; that Shaukat Hayat D.S.P. was examined as C.W. who had stated that complainant had produced before him above said cuttings of two newspapers; that none of the Investigating Officer had declared Riaz Shah to be innocent; that Nazar Muhammad, A.S.-I., who had lodged, the F.I.R. had stated before the learned trial Court that he was not -on patrol duty at the time of occurrence but Karwai police shows that .he was on patrol duty at the time of occurrence. He has referred to the statement of C.W. 4 Shaukat Hayat, D.S.P. one of the Investigating Officer who stated before the learned trial Court that he ordered for registration of the case under section 409, P.P.C. regarding alleged removal of inquest report against Imtiaz Ahmad, A.S.-I., who had taken away inquest report from Dr. Ijaz Ahmad Mughal and was also one of the accused in the complaint case; that Riaz Shah appellant and Iftikhar Ahmad son of Allah Dad had motive to commit murder of the deceased; that the objection raised by learned defence counsel during the course of arguments that Allah Dad to whom the deceased was supporting, his son namely Iftikhar Ahmad had grabbed his land, said Allah Dad was not produced for the reason that he was father of said Iftikhar Ahmad and did not want to make statement against him due to his blood relation; that even defence has not produced any P.W. in order to prove plea of their innocence before the learned trial Court; that when the deceased was murdered he was wearing a shirt, Neeker and sports shoes which is evident from recovery memos; that delay about filing the complaint was for the reason that accused had been giving different applications against the Investigating Officer; that even police failed to submit the challan before the Court so the complaint was filed after 10 months of the occurrence; that father of the deceased was never posted as M.S. DHQ Hospital, Mandi Bah-ud-Din at the time of occurrence and he had been retired from service many years back from the date of occurrence. He has referred to the statement of Dr. Muhammad Ashraf, P.W.3 father of the deceased which according to him Dr. Ijaz Ahmad Mughal with the consultation and approval of other members of board who had conducted the post-mortem examination in this case had written a letter to the police to produce all the relevant papers regarding this case which is Exh.P.D.; that as far as arguments, advanced by defence counsel that a compromise took place between the complainant and Dr.. Ijaz Ahmad Mughal is concerned, the contention of learned counsel is that Dr. Ijaz Ahmad Mughal submitted an application under section 265-K, Cr.P.C. before the learned trial Court and the complainant did not oppose the same and then he was acquitted; that defence has not denied the presence of Rehmat Ullah P.W. being an eye-witness; that statement of Rehmat Ullah P.W. was not recorded by Nazar Muhammad, A.S.-I. On the day of occurrence when he was' already present in the hospital at the time of post-mortem examination; that presence of Asif Mehmood complainant P.W.2 was natural because he is owner of the land in that area; that none of the eye-witnesses had made false statement; that all the eye-witnesses are independent witnesses and have no animus against the accused; that attitude of the police was harsh one towards the complainant party till registration of the case; that Nazar Muhammad A.S.-I. Had become complainant, although Rehmat Ullah P.W. was there and in fact Nazar Muhammad, A.S.-I. should have been made Rehmat Ullah as first informant because Rehmat Ullah P.W. was already present there before arrival of Nazar Muhammad, A.S.-I. And this all has been done with mala fide intention by the police; that Nazar Muhammad, A.S.-I. admitted before his superior officers that at the time of occurrence he was not on patrol duty; that F.I.R. recorded by Nazar Muhammad, A.S.-I. was manoeuvred one in order to give benefit to the accused party; that-Asif Mehmood had given application in which he named Riaz Shah as an accused; that Riaz Shah was member of District Council of the area and he was known to every body; that other accused were not named in the said application by Asif Mehmood but all of them including Riaz Shah were identified by the eye-witnesses during the identification parade; that the-eye-witnesses had attributed fire shot to Riaz Shah appellant; that injury with blunt weapon on the person of the deceased were not mentioned by the complainant and eye-witnesses as they were in shock due to murder of the deceased although they had deposed the same before the learned trial Court.

21. Learned counsel further submits that as far as change of weapon of offence from Kalashnikov type rifle to Kalashnikov type gun is concerned, the eye-witnesses were not expert about the same and in this regard he has relied upon 2002 SCMR 1842; that as far as non-recovery of weapon of offence from Riaz Shah appellant is concerned, learned counsel submits because the police was partial, hostile and acted against the complainant party; that there is no need for supporting evidence just for the recovery of weapon of offence from the accused and he has relied upon 2004 SCMR 220 in this regard.

22. Learned counsel further submits that in view of order passed by learned trial Court on 11-2-2004 the news as Mark "A" and "B" are admissible in this case; that newspapers are sufficient to establish motive against the appellants in the instant case; that prosecution has been able to prove its case against the appellants beyond any shadow of doubt.

23. Learned counsel adds that revision petition for the enhancement of sentence has also been filed against the appellants that there are no mitigating' circumstances in favour of appellants to take lenient view regarding the lesser punishment by learned trial Court and he has relied upon 2002 SCMR 429 and 2005 SCMR

49. In the above said judgments it has been held that when the case against an accused is proved and the charge of murder is also proved only death sentence can be awarded.

24. Learned counsel further submits that as far as plea of alibi of Riaz Shah appellant that he was present in the room of Diwan Mushtaq, MPA in the Peoples House, Lahore, is concerned, in this regard no employee of Peoples House was produced before the learned trial Court; that even Diwan Mushtaq has never appeared before the learned trial Court in support of Riaz Shah appellant; that no credence can be given to the statement of D.W.1 who was from Gujrat and was member of District Council, thus such-like plea cannot be accepted. He has relied upon 1989 SCMR 144 and PLD 1989 SC 20 and submits that in view of above submissions revision petition for enhancement of sentence may also be accepted.

25. Learned Addl. A.-G. submits that although lengthy arguments have been made from both sides but he would only press on two points and adds that F.I.R. Exh.P.H. was lodged at 9-05 p.m. on 8-4-1999 while occurrence had taken place at 8-30 p.m. on the same day; that complainant is Nazar Muhammad, A.S.-I. although he is not an eye-witness of the occurrence; that the .complainant Asif Mehmood submitted an application for registration of the case on 8-4-1999 at 9-00 p.m; that haste has been shown by the local police for registration of the case with mala fide intention; that in our society the culture is that police always makes nearer relative in such-like cases as complainant but in the instant case it is vice versa; that this has been done for the reasons that a sitting Minister and a politician were accused in this case; that on the application which was submitted by the complainant on the same night should had come to the notice of the police and police should have investigated the matter on the basis of said application; that the police should have collected the evidence being uninfluenced by the said F.I.R. which was lodged by Nazar Muhammad A.S.-I.; that said Nazar Muhammad, A.S.-I. was never produced before the learned trial Court as C.W. or P.W. At this stage learned counsel for the appellants submits that, he was made an accused in the complaint case lodged by the complainant Asif Mehmood. Learned Addl: A.-G. submits that due to non-appearance of said A.S.-I. This F.I.R. has lost its significance.

26. Learned Addl. A.-G. submits that as far as removal of inquest report is concerned, that does not matter in this case, however, the grievance of the complainant was that they were not being accommodated by the police; that in the instant case police and the complainant Asif Mehmood of the complaint case were not looking eye to eye with each other; that substantial evidence was not collected by the police; that Nazar Muhammad A.S.-I. has recorded the statement of Rehmat Ullah P.W. which has been placed on record but said Nazar Muhammad did not appear before the learned trial Court and in view of above facts statement of Rehmat Ullah P.W. Exh.D.B. is not admissible in the evidence; that the application which was submitted by Asif Mahmood complainant before the police that should have been taken as fundamental document regarding the occurrence; that according to said application submitted by Asif Mahmood there were four eye-witnesses including himself, Asghar, Abbas Haider and Rehmat Ullah; that amongst them Asghar has not appeared before the learned trial Court; that all the other P.Ws. have fully supported the case of prosecution.

27. Learned Addl: A.-G. further adds that except Riaz Shah nobody was named so the identification parade was held; that other P.Ws. have identified all the accused in the identification parade; that no objection was raised by the present appellants before the identification parade that they were shown to the P.Ws.; that gun has been recovered from Iftikhar Ahmad appellant; that case of prosecution mainly rests upon ocular account; that maximum weight should be given to the ocular account as the appellants have been convicted by the learned 'trial Court in private complaint and complainant had no source to create other evidence substantial in nature for the purposes of corroboration.

28. Learned Addl: A.-G. further submits that medical evidence is corroborated by ocular account; that specific role has been .attributed by the P.Ws. to the accused persons but the Court should not expect that said eye-witnesses have an eye of camera and there are minor discrepancies in this case; that learned trial Court while convicting the accused has relied upon the statement of Rehmat Ullah P.W. although the other P.Ws. have also been relied upon; that even presence of Rehmat Ullah P.W. has not been denied by the accused party; that conviction and sentence can be awarded and maintained even on the statement of a single truthful witness and he supports the judgment passed by learned trial Court; that the complainant party and investigating agency both are consistent against Riaz Maken and Iftikhar Ahmad accused; that Investigating agency in fact has exonerated the presence of Riaz Shah appellant at the time of occurrence, however, investigating agency was of the view that he is an accused of conspiracy and that two P.Ws. who had appeared before the learned trial Court had not supported the case of prosecution.

29. I have heard lengthy arguments in this case on so many dates. The occurrence in this case had taken place on 8-4-1999 at 8-30 p.m. matter was reported by Nazar Muhammad A.S.-I. On the same day at 9-05 p.m. formal F.I.R. was recorded in Police Station, Phalia. In the said F.I.R. he had stated that when he reached near the Jhuggies of Phatans he saw a Pajero standing there on the roadside where an injured person was being put in the said Pajero. He came to know that said injured is Major (Retd.) Muhammad Azam. Two persons namely Mian Khan son of Ali Muhammad and Rehmat Ullah son of Bashir Ahmad were with him. Rehmat Ullah told him that from Manoo Chak they were going towards Phalia, then a white corolla car was seen by him in which five armed persons were sitting and if brought before him he can identify them. The said car overtook the Pajero and stopped the said Pajero, one person came down and dragged Major Azam from the Pajero. Major Azam tried to run away when all the five accused persons fired with fire-arms like Kalsnikov type and injured him and the accused ran away towards Phalia in the said car. Major (Retd.) Azam succumbed to the injuries in the hospital.

30. The case of prosecution is that on the same night at 9-00 p.m. Asif Mehmood complainant had also submitted an application to the police for registration of the case in which he had mentioned that he along with Major (Retd.) Muhammad Azam, Muhammad Asghar, Abbas Haider and Rehmat Ullah were going to Phalia in order to play badminton, a white colour corolla car signaled to stop the vehicle. Major Muhammad Azam stopped the vehicle near Dera of Phatnan. Syed Riaz Shah came out from the car armed with rifle Kalashnikov type and four unknown persons armed with rifles dragged out Major Muhammad Azam from Pajero, the lights of car were on, Major Muhammad Azam tried to run away, Riaz Shah fired two shots hitting on the back of Major Muhammad Azam. Then all the accused persons fired at Major Muhammad Azam, which hit on different parts of his body and then accused persons ran away from the spot. Major Muhammad Azam was taken to the hospital where he died.

31. It was further stated that on 3-4-1999 at 7-00 p.m. when he was present along with Major Muhammad Azam in his house, Rashid Ahmad son of Saee Muhammad and Javed Akhtar came there and told Major Muhammad Azam, that on 2-4-1999 they in connection with some personal matter had gone to the house of Syed Binyamin accused (now dead) at 10/11-00 a.m. at his residence Allama Iqbal Town Lahore, where Riaz Shah along with two unknown persons was present and in their presence Binyamin took Riaz Shah along with other unknown persons in a separate room, the door of the room remained open, Binyamin asked Riaz Shah to murder Major Muhammad Azam, he was going to foreign country, in his absence he should be murdered and when this was being told by Rashid Ahmad and Javed Akhtar to Major Muhammad Azam he replied that life is in the hands of Almighty Allah.

32. The motive of the present occurrence was that on 1-4-1999 Major Muhammad Azam had made a speech to Kissan Union and levelled allegations against Binyamin who was Provincial Minister at that time. It was further stated that 4/5 months prior to the occurrence Major Muhammad Azam was helping one Allah Dad (father of co-accused Iftikhar Ahmad and levelled serious allegations against Riaz Shah and Binyamin at Model Town, Lahore, in open katchery of Prime Minister of Pakistan.

33. Now two things are very clear in the F.I.R. lodged by Nazar Muhammad A.S.-I., and the application submitted by Asif Mehmood complainant. In the F.I.R. lodged by Nazar Muhammad, A.S.-I., Muhammad Asghar and Abbas Haider were not mentioned as eye-witnesses. After 10 months of the occurrence Asif Mehmood, complainant filed private complaint. The post-mortem examination was conducted by a board of doctors and one of member of board namely Dr. Asif Ali P.W.6 had appeared before the learned trial Court and gave a statement regarding the post-mortem examination. To prove that ocular account is in conflict with the medical evidence. The detail of injuries are given below:-- (1) A lacerated fire-arm entry wound 1 x 1-1/2 c.m. going deep on right scapular region 10 c.m. from the midline and 10 c.m. from base of the neck. The edges were inverted and blackening was present around it. (2) A lacerated fire-arm entry wound 2 x 1 c.m. going deep on right lower thoracic region of back, 10 c.m. from midline and 20 c.m. below Injury No.1. The edges were inverted and blackening was present around it. (3) A lacerated entry fire-arm wound I x 1 c.m. going deep on right lumbar region, .5 c.m. anteromedial to Injuries Nos.2 and 7 c.m. from the midline. (4) A lacerated charred wound 1 x 4 c.m. skin deep oblique in direction on .the lower part of front of right arm 6 c.m. above elbow joint. (5) Three abrasions reddish in colour in an area of 8 x 7 c.m. on the upper part of right fore-arm. (6) Contused swelling 6 x 5 c.m. on the inner side of left arm. (7) Abrasion 2 x 1 c.m. on the back of left elbow joint. (8) Contused swelling 13 x 10 c.m. on middle of left fore arm with crepitus on palpation. (9) Multiple contusion in an area of 13 x 10 c.m. on the inner side of left knee with crepitus on palpation. (10) Fire-arm lacerated entry wound 1 x 1 c.m. going deep on front of left lower leg 14 c.m. above left ankle joint. (11) Lacerated fire-arm exit wound 1 x 1-112 c.m. on back of middle of left leg going deep, 14 c.m. above left ankle joint. Injuries Nos.10 and 11 are continuous on probing. (12) Lacerated fire-arm wound 1 x 1/2 c.m. on the medial side of lower leg 7 c.m. above left ankle joint. (13) Multiple contusion and swelling in an area of 26 x 20 c.m. on the front, inner and back of right knee and lower part of right thigh. (14) A lacerated fire-arm wound 2 x 2 c.m. going up to the bone but periosteum remain intact' on right lower leg anteriorly.

34. Injuries Nos., 2, 3, 4, 12 and 14 were fire-arm entry wounds while injury No.11 was an exit wound, then Injuries Nos.5, 6, 7, 8, 9 and 13, were abrasions, contusions including multiple contusions shown in Injuries Nos.9 and

13. The duration between injuries and death was 1/2 hour and between death and post-mortem examination was 6 to 24 hours. The prosecution failed to explain the blunt weapon injures. It was never the case of prosecution that the deceased was also given injuries with Danda, Sota or any blunt weapon. Had the eye-witnesses been present at the spot, they must have mentioned those injuries and especially by Asif Mehmood complainant in the application submitted by him allegedly on the same day. Moreover, according to the prosecution case the deceased Major Muhammad Azam was pulled down from his Pajero Jeep, except that there. is no evidence on the record that he was dragged to some reasonable distance and the blunt weapon injuries on his person were in fact dragging marks. This shows, as has been mentioned above that these blunt weapon injuries could have only been caused by Danda/Sota or iron rod. In the application submitted by Asif Mehmood who was practising Advocate stated that Riaz Shahi, accused. was armed with rifle Kalashnikov type while rest of unknown accused were, armed with rifles. In the complaint, whichi was filed on 31-3-2000 the weapon of offence was changed from rifle Klashinkov, type to gun Kalashnikov type. As far as Iftikhar Ahmad appellant is concerned, in the complaint he was stated to be armed with pump action, Riaz son of Bashir, Javed son of Karam Elahi and one unknown. accused, were armed with rifles and guns. This dishonest improvement was made in order to make the case in line with the post-mortem report because the injuries on the person of deceased were with gun and not with rifle. Had the eye-witnesses been present there, they could not have made such mistake and even no recovery was effected from Riaz Shah appellant. According to prosecution case five persons armed with fire arms fired at the spot but none of the witnesses received a single scratch on their bodies, which also falsifies their presence. As far as recovery from Iftikhar Ahmad and Riaz son of Bashir appellant is concerned, from Iftikhar Ahmad .12 bore gun was recovered while from Riaz son of Bashir Danda was recovered. In the complaint six more accused were added who were acquitted by learned trial Court. Two crime empties were recovered from the spot and there is no matching report from the office of Fire-arms Expert.

35. The occurrence had taken place in dark hours of the night. Except the name of Riaz Shah, none of the accused were mentioned. The complainant Asif Mehmood in his application also gave even no description of any accused. The investigation was conducted by many senior gazetted police officers and they all came to the conclusion that Riaz Shah was not present at the spot. Dr. Ijaz Ahmad Mughal was also one of members of board who conducted the post-mortem examination, he was also made an accused in the complaint but during the trial the complainant entered into a compromise on which Dr. Ijaz Ahmad Mughal submitted an application under section 265-K, Cr.P.C., same was not opposed by the complainant party and he was acquitted by learned trial Court. Learned trial Court had held that motive was not proved and even recovery is of no consequence. The eye-witnesses, which were produced are Asif Mehmood complainant himself, Abbas Haider and Rehmat Ullah. The story given by Rashid Ahmad, P.W. regarding the abetment is also not believable. He is resident of Bohat Mandi Bah-ud-Din and according to him he had gone to see Binyamin where Binyamin asked Riaz Shah and others to commit murder of Major Muhammad Azam while door of the room in which conspiracy was being made remained opened. This is most unnatural and unbelievable story.

36. As far as identification parade is concerned, in my opinion it is of no consequence for the reasons that description of none of the accused was mentioned even in the application submitted on 8-4-1999 by Asif Mehmood complainant so it was very easy for the eye-witnesses to have stated that the accused which they have identified in jail were murderers of the deceased. The proceedings of identification parade were never put to Riaz Maken and Iftikhar appellants in their statements recorded under section 342 Cr.P.C. being incriminating evidence. As far as Asif Mehmood and Abbass Haider are concerned, they were examined as P.W.2 and P.W.5. They were not mentioned as eye-witnesses in the F.I.R. lodged by Nazar Muhammad, A.S.-I. As far as Rehmat Ullah P.W. is concerned, his statement was recorded by Nazar Muhammad, A.S.-I., which has been exhibited as Exh.D.B., even he has not named Riaz Shah as one of assailant of the deceased in the said statement. When Rehmat Ullah P.W. appeared before the learned trial Court whole of his statement was got confronted with his previous statement recorded by the police. The complainant and eye-witnesses have not mentioned any source about the fact that how they came to know the names of other two appellants namely Riaz Maken and Iftikhar Ahmad.

37. Shaukat Hayat D.S.P. C.W.4 had stated that Riaz Shah was not present at the spot but found him guilty of abetment. He had directed the S.-I. to collect the evidence of abetment against Riaz Shah. In this regard Nazar Muhammad C.W.12 and Aurangzeb C.W.13 have appeared before learned trial Court and they have not stated a single word against Riaz Shah, they have not supported the charge of abetment and they were not even declared hostile. Riaz Shah appellant had produced D.W.1 Tauseef Liaqat and Muhammad Hayat D.W.2. Tauseef Hayat D.W.1 stated that he was present in Room No.10 Peoples House of Diwan Mushtaq, M.P.A. and Riaz Shah was also there and they both remained there from 4-00 p.m. to 10-00 p.m. on 8-4-1999 that's on the day of occurrence. Learned counsel during cross-examination himself brought on record that Diwan Mushtaq MPA was not present at that time. The other witness Muhammad Hayat D.W.2 stated that on the day of alleged conspiracy, which was made at Lahore in the house of Binyamin, at that time Riaz Shah was present in Pahrianwali District Mandi Bah-ud-Din. Answers to Questions Nos.17 and 18 of the statement of Riaz Shah appellant recorded under section 342, Cr.P.C. are very important for the just decision of this case which are reproduced below:- Q. No.17, why this case against you and why the P.Ws. have deposed against you? Ans. I contested local bodies election twice against Waseem Hussain Maken who is a son of Muhammad Hussain Maken Sessions Judge. A sister of Waseem Hussain is married to Capt. Saif Ullah son of Riaz Chaddar. Said Riaz Chaddar is cousin of the father of deceased. Furthermore, maternal uncle of Ch. Ashraf father of the deceased is paternal grand father of said Capt. Saif Ullah Chaddar. I and Waseem Hussain belong to same village Lasuri Kalan and are opposed to each other. I have been falsely involved in this case. Q. No.18. Have you anything else to say? Ans. I am innocent. On 2-4-1999 I was at Adda Parianwali in my office. From 6-4-1999 to 8-4-1999 I was in Peoples House at Lahore staying in Room No.10-C of Dewan Mushtaq MPA Mandi Bah-ud-Din. I produced large number of persons in my defence and was found 'innocent by all the Investigating Officers and was shown as such in the challan. I was challaned under section 109, P.P.C. on the strength of statements of Nazar Muhammad and Aurangzeb who have been examined as C.Ws.

38. It has come on record that Riaz Shah has been contesting election against son of one Muhammad Hussain Maken Sessions Judge for Member District Council and said son of Muhammad Hussain Maken was related to Major Muhammad Azam deceased, thus there exists political rivalry, between the parties. Allah Dad in whose favour Major Muhammad Azam made a protest in the open Katchery of Prime Minister of Pakistan was never produced by the prosecution so the allegation that for this reason the accused persons had committed the murder of deceased goes away, thus such motive is not proved. The Investigating Officers have not accepted the story-of abetment regarding Binyamin that he had held conspiracy at his home at Allama Iqbal Town, Lahore. Muhammad Akram P.W. had appeared as recovery witness of blood-stained earth, two crime empties and one piece of broken butt of the gun. The said recoveries took place on the same day that's 8-4-1999. He is real paternal uncle .of the deceased Major Muhammad Azam, so it cannot be said that Nazar Muhammad, A.S.-I. had lodged the F.I.R. on the asking of his superior officers with mala fide intention. Even no incriminating evidence regarding recovery of weapon of offence has been put to the appellants Riaz Maken and Iftikhar in their statements recorded under section 342, Cr.P.C.

39. As far as allegation of removal of inquest report is concerned, that has nothing to do with the accused persons because no benefit could have been taken by the accused persons as, only brief facts of the case and facts given in the F.I.R. are mentioned therein. The allegation against the co-accused Dr. Ijaz Mughal and police officials are concerned, that they had destroyed the record, they have been acquitted by the learned trial Court as there was no evidence on record to connect them with the alleged allegation.

40. Nazar Muhammad, A.S.-I., , complainant of F.I.R. had recorded the statement of Rehmat Ullah P.W.4 but he was not produced as P.W. before the learned trial Court for the reason that complainant had made him as an accused in the complaint case and later on he was acquitted by learned trial Court.

41. As far as mark A and B, regarding newspaper which were referred by learned counsel for the complainant are concerned, those are not admissible in the evidence.

42. The investigation of this case was conducted by Zulfiqar Hussain Shah, Inspector, Shaukat Hayat, D.S.P., Jamil Akhtar Ghauri, S.D.P.O. and Mushtaq Sukhaira, S.S.P. On the direction of Shaukat Hayat, D.S.P. C.W.4, Muhammad Nawaz C.W.7 recorded the statements of two P.Ws. under section 161, Cr.P.C. but while appearing before the learned trial Court these C.Ws. did not state a single word against Riaz Shah and they were never declared hostile by the prosecution. This fact also casts doubt on the prosecution case as a whole, prosecution also fails to produce any evidence to the effect that any of the P.Ws., who alleged to be present at the spot took the dead body of the deceased in an injured condition to the Hospital. The present case-law relied upon by learned counsel for the complainant is of no avail to him being distinguishable both on facts and law.

43. The result of above discussion is that this Court is of the view that eye-witnesses were not present at the spot, the story was concocted later on and as far as complaint is concerned, that was filed with the delay of 10 months without any explanation.

44. After having heard learned counsel for the parties and going through the evidence available on record I am of the considered opinion that case against the appellants is doubtful in nature. While giving them benefit of doubt both the appeals are hereby accepted, conviction and sentence recorded against them by the learned trial Court is set aside and appellants are acquitted from the charge. They are behind the bars and they shall be released forthwith if not required to be detained in any other case.

45. For the afore referred reasons, Revision Petition No.429 of 2005 and P.S.L.A. No.57 of 2005 filed by the complainant are hereby dismissed. S.M.B./R-58/L???????????????????????????????????????????????????????????????????????? Appeal accepted.