State vs Muhammad Rafiq

Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT AT LAHORE

JUDICIAL DEPARTMENT

Murder Reference No.57 of 2012 (The State v. Muhammad Rafique) Crl. Appeal No. 246 of 2012 (Khalid Aziz etc v. The State) Crl. Appeal No. 409 of 2012 (Izzat Baig Awan v. Muhammad Rafique etc) Crl. Revision No. 223 of 2012 (Izzat Baig Awan v. Khalid Aziz etc)

JUDGMENT

Date of hearing: 25-04-2016.

Appellants by: Ms. Yasrab Gulzar, Advocate for the appellants. (in Crl.Appeal No.246-2012) The State by: Mr.Muhammad Jaffer, Deputy Prosecutor General

Complainant by: Ch. Afrasiab Khan, Advocate. (for the appellant and petitioner in Crl.Appeal No.409-2012 & Crl. Revision. No.

AALIA NEELUM, J:- Khalid Aziz son of Muhammad Sharif and Muhammad Rafique son of Muhammad Sharif, Caste Awan, resident of Kahoot Kallar Kahar, District, Chakwal, the appellants having involved in case F.I.R. No.138-2009, dated 28.05.2009, offence under Sections 302, 324, 148, 149 P.P.C., registered at Police Station, Kallar Kahar, District, Chakwal and were tried Raja Pervez Akhtar, learned Additional Sessions Judge, Chakwal. The learned trial court seized with the matter in terms of judgment dated 24.05.2012 while convicting the accused, Muhammad Rafique under Section 302 (b) P.P.C., and sentenced to death as Tazir with the direction to pay Rs.2,00,000/-as compensation to the legal heirs of the deceased,

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Amanat Hussain failing which, further undergo six months S.I. The accused, Khalid Aziz was convicted under Section 302(b) P.P.C., and sentenced to imprisonment for life as Tazir with the direction to pay Rs.2,00,000/- as compensation to the legal heirs of deceased, Altaf Hussain and in case of default, further undergo six months S.I. The accused, Khalid Aziz was also convicted under Section 324 P.P.C., and sentenced to ten years R.I. with the direction to pay Rs.50,000/-as fine and in default whereof, further undergo three months S.I. Further convicted the accused, Khalid Aziz under Section 337-A(ii) P.P.C., and sentenced to five years R.I., with the direction to pay Arsh amounting to Rs.50,000/- and will be detained in the jail till the payment of amount of Arsh. The benefit of Section 382 (b) Cr.P.C., was also extended in favour of the appellant-Khalid Aziz. The co-accused namely Dost Muhammad, Muhammad Latif and Amjad Hussain were declared proclaimed offenders.

2.Being aggrieved by the judgment of the learned trial court, Khalid Aziz and Muhammad Rafique-the appellants impugned the same through filing Crl. Appeal No.246 of 2012 whereas the learned trial court has forwarded Murder Reference No.57 of 2012 for confirmation of death sentence inflicted upon the convict, Muhammad Rafique. The complainant being dis- satisfied with the judgment dated 24.05.2012, filed a Criminal Appeal No.409-2012 for awarding the sentence to the appellants on each count whereas through the Crl. Revision No.223-2012, the complainant has prayed for enhancement of sentence of the respondent/accused, Khalid Aziz from life to death. As all the matters are arising out of one and the same case judgment, therefore, they are being disposed of through a single judgment.

3.The prosecution story as alleged in the F.I.R (Exh.P.G/1) lodged on the complaint (Exh.PG) of Izzat Baig (PW-

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12)/complainant is that the complainant (PW-12) was resident of village Kahut and a cultivator by profession and on the fateful day, the complainant (PW-12) along with his brothers, Altaf Hussain, Azad Hussain sons of Aurangzaib along with Amanat Hussain son of Gul Baig, Atif Ashfaq son of Ashfaq Hussain, resident of same village, were going to Jhamra in connection with their domestic affair and when they reached near the Kahut graveyard at 08:30 a.m. the accused Dost Muhammad, Muhammad Latif, Muhammad Iqbal sons of Ahmad Khan, Muhammad Rafique, Khalid Aziz, Muhammad Shafique sons of Muhammad Sharif, Tajammal Hussain, Tasaddaq Hussain sons of Aalam Sher, Amjad Hussain, Tariq Hussain sons of Resham Khan, Sadam Hussain son of Dost Muhammad, Adeel Iqbal son of Muhammad Iqbal while equipped with rifles whereas the accused, Muhammad Islam, Muhammad Gulistan son of Muhammad Sultan equipped with gun 12-bore, all by Caste Awan, resident of village Kahut whereas Manzoor Hussain, Maqbool Hussain, Matloob Hussain sons of Mian Khan, all by Caste Awan, resident of Jhamra equipped with their rifles were sitting beside the wall of the graveyard and appeared suddenly while accused, Muhammad Rafique raised a lalkara that a lesson will be taught to them for not allowing to pass the tractor from the land, whereupon all the accused persons started firing. The accused, Muhammad Rafique fired which hit on the chest of Amanat Hussain whereas the accused, Khalid Aziz fired which landed on the left flank of Altaf Hussain. The accused, Dost Muhammad fired which hit on the head of Altaf Hussain whereas the accused, Muhammad Latif fired which hit on the inner side of left thigh of Altaf Hussain. The accused, Iqbal fired which landed on the right thigh of Altaf Hussain, The accused, Manzoor Hussain fired which hit Altaf Hussain on his right deltoid region whereas the accused, Islam fired with his 12-bore gun which hit Altaf Hussain on left knee and pallets hit on the right ear. The

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accused, Muhammad Latif fired which hit Azad Hussain on the right side of head while the fire of accused, Amjad Hussain was hit to Atif Ashfaq on his genital region on front where the accused, Tariq Hussain fired which hit Atif Ashfaq on the right thigh, who fell down on receiving the injuries. On report of fire shots, Muhammad Rameez Hussain son of Altaf Hussain, Abid Hussain son of Gul Baig were attracted to the place of occurrence and witnessed that the accused, Tajammal Hussain fired which hit Muhammad Rameez Hussain on the right side of his head whereas the accused, Sadam Hussain fired which hit on the back side of left ear of Muhammad Rameez Hussain. Thereafter the accused, Matloob Hussain fired which landed on the calf of right leg of Muhammad Rameez Hussain whereas the fire of accused, Tasaddaq Hussain was landed on the left thigh of Muhammad Rameez Hussain. The accused, Adeel Iqbal made a fire shot which hit Muhammad Rameez Hussain on his left thigh while the accused, Muhammad Islam fired which hit Abid Hussain on the back side of his head. The accused, Muhammad Gulistan made a fire shot and pallets were landed on the head of Abid Hussain whereas the accused, Khalid Aziz fired which hit Abid Hussain on the left side of his head, who after sustaining the injuries, fell down. In the meantime, Sajjad Hussain son of Karam Daad, Nau Bahar Hussain son of Aurangzaib reached at the spot and witnessed the occurrence whereas the accused persons rushed towards their houses and when the accused were on their way, Faheem Matloob son of Matloob Hussain was present there whereas the accused, Muhammad Latif and Dost Muhammad made single fire each on Faheem Matloob and injured him. The accused persons made aerial firing and as a result whereof, their companion, Muhammad Rafique son of Muhammad Sharif was also injured. Thereafter the complainant (PW-12) took the injured to R.H.C., Bochal Kalan but Altaf Hussain, Amanat Hussain and Azad Hussain succumbed to the

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injuries whereas on the way, from R.H.C., Bochal Kalan to District Headquarter Hospital, Chakwal, the injured Aatif Ishfaq also succumbed to the injuries.

4.The motive behind the alleged occurrence was that two days prior to the occurrence, accused, Muhammad Latif was forbidden by the complainant’s brother Naubahar from passing the tractor through the crop of “bajra/jawar” over which hot words were exchanged and due to that grudge, alleged occurrence took place.

5.On receipt of information regarding the occurrence, Kausar Abbas, S.I. (PW-15) along with Hafeez-ullah 419/L.H.C, Nusrat Ali 287/C and Faheem Ahmad 21/C while riding on the official vehicle reached at R.H.C., Bochal Kalan and reduced into writing the statement (Ex.PG) of the complainant (PW-12) and the complainant (PW-12) signed thereon as a token of its correctness and after completion of police karawi, Kausar Abbas, S.I. (PW-15) sent the same to the police station through Faheem Ahmad 21/C whereupon formal F.I.R. (Ex.PG/1) was chalked out by Shaukat Javed, 7/H.C (PW-4). Thereafter, the Investigating Officer (PW-15) prepared the injury statements of injured, Aatif Ishfaq, Rameez Hussain, Abid Hussain and Faheem Matloob as Ex.PA/1, Ex.PB/1, Ex.PC/1, Ex.PD/1 and handed over the injury statements as well as injured persons to Hafeez Ullah 419/C for the purposes of medical examination. Thereafter the Investigating Officer (PW-15) prepared the inquest reports qua dead bodies of deceased, Amanat Hussain, Azad Hussain, Altaf Hussain and Aatif Ishfaq as Ex.PY, Ex.PZ, Ex.PAA and Ex.PAF and also drafted applications for the postmortem examination of deceased persons as Ex.PAB, Ex.PAC, Ex.PAD and Ex.PAE and handed over the same to Nusrat Ali 287/C (PW- 3), who escorted the same to the District Headquarter Hospital, Chakwal. Thereafter the Investigating Officer (PW-15) visited

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the place of occurrence and collected blood-stained earth from the place of murder of deceased, Aatif Ishfaq and took into possession vide recovery memo Ex.PM, blood-stained earth from the place of murder of deceased, Amanat Hussain and took into possession vide recovery memo Ex.PN, blood-stained earth from the place of murder of deceased, Altaf Hussain and took into possession through recovery memo Ex.PO, blood-stained earth from the place of murder of deceased, Azad Hussain and took into possession vide recovery memo Ex.PP. During spot inspection, the Investigating Officer collected 15 crime empties of 7-mm, 10 crime empties of 44-bore, 15 crime empties of Kalashnikov and 13 cartridges of 12-bore gun from different places, which were taken into possession vide recovery memo Ex.PQ and thereafter the Investigating Officer prepared the rough site plan of the place of occurrence without scale as Ex.PAG. Thereafter, Nusrat Ali 287/C (PW-3) handed over the postmortem report along with last worn blood-stained clothes of the deceased, Altaf Hussain i.e. Shalwar (P-1), Qameez (P-2), postmortem report along with last worn blood-stained clothes of the deceased, Amanat Hussain i.e. Shalwar (P-3), Kurta (P-4), Bunyan (P-5), postmortem report of deceased, postmortem report along with last worn blood-stained clothes of deceased, Azad Hussain i.e. Kurta (P-6), Shalwar (P-7), Bunian (P-8) and postmortem report along with last worn blood-stained clothes of deceased, Aatif Ishfaq i.e. Shalwar (P-9), Qameez (P-10), Bunyan (P-11), which were taken into possession by the Investigating Officer (PW-15) vide recovery memo Ex.PF and thereafter statements of prosecution witnesses were also recorded by the Investigating Officer (PW-15) under Section 161 of Cr.P.C. On reaching the police station, the Investigating Officer (PW-15) handed over the case property to the Moharrir of police station for keeping the same in safe custody. On 29.05.2009, the Investigating Officer (PW-15) recorded the statement of injured-

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Faheem Matloob at Kahout Adda under Section 161 of Cr.P.C and on 01.06.2009, the Investigating Officer (PW-15) recorded the statements of injured-PWs namely Rameez Hassan and Abid at Kahout Adda under Section 161 of Cr.P.C. On 08.06.2009, Sajid Mehmood, Patwari Halqa (PW-2) visited the place of occurrence and prepared the scaled site plan and submitted the same before him (PW-15), who on 22.06.2009 incorporated the notes with red ink on all the scaled site plans which are Ex.PE/1-

3.On 11.06.2009, the Investigating Officer (PW-15) arrested the accused persons namely Saddam, Adeel, Tasaddaq and Muhammad Iqbal from Dhoke Riasat whereas rest of the accused persons namely Tariq, Muhammad Shafiq, Manzoor, Matloob and Maqbool appeared at police post Bochal Kalan and were arrested there. During the course of investigation, on 22.06.2009, the accused Manzoor Hussain led the police party in the hilly area situated behind Dhoke Riasat and got recovered one rifle 44-bore (P-17) which was taken into possession by the Investigating Officer (PW-15) vide recovery memo Ex.PS whereas rough site plan qua place of recovery was prepared by him (PW-15) as Ex.PS/1, the accused, Muhammad Iqbal led the police party in the hilly area situated behind the Dhoke Riasat and got recovered a rifle 7-mm (P-16) from the bushes, which was taken into possession by the Investigating Officer vide recovery memo Ex.PR and prepared the rough site plan of the place of recovery as Ex.PR/1, the accused Muhammad Shafiq (since acquitted) led the police party to the same area and got recovered a rifle 8-mm (P-18) which was taken into possession by the Investigating Officer as Ex.PT and prepared the rough site plan of the place of recovery as Ex.PT/1 and on the same day, the concerned Station House Officer/Inspector (PW-14) handed over the custody of the accused, Muhammad Islam and Muhammad Gulistan to the Investigating Officer (PW-15) whereas on 24.06.2009, the accused Tariq Hussain led the police

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party to the area of Paharr Khan and got recovered a rifle 44- bore (P-20) which was taken into possession by the Investigating Officer vide recovery memo Ex.PV and prepared the rough site plan of the place of recovery as Ex.PV/1. Similarly, the accused, Tasaddaq Hussain led the police party to the jungle and got recovered a rifle 7-mm (P-19) which was taken into possession by him (PW-15) as Ex.PU and prepared the rough site plan of the place of recovery as Ex.PU/1 and thereafter the Investigating Officer got issued the docket on 26.06.2009 as Ex.PAH and sent the case properties to the Forensic Science Laboratory, Lahore. The Station House Officer/Inspector, Police Station, Kallar Kahar (PW-14) arrested the accused, Muhammad Gulistan and Muhammad Islam on 22.06.2009 whereas the accused, Muhammad Gulistan was having a 12-bore single barrel gun in his right hand (P-23) which was taken into possession by him (PW-14) vide recovery memo Ex.PAK whereas the accused, Muhammad Islam got recovered a 12-bore gun (P-24) from a room located at the roof of poultry farm, which was taken into possession by (PW-14) as Ex.PAL and prepared rough site plan of the place of recoveries as Ex.PAK/1 & Ex.PAL/1. Thereafter he (PW-14) arrested the accused, Tajammal Hussain on 31.08.2009, who during the course of investigation, got recovered a rifle 44- bore (P-25) from the house of his father-in-law and same was taken into possession by (PW-14) through recovery memo Ex.PAM and prepared the rough site plan of the place of recovery as Ex.PAM/1. Thereafter the investigation of this case was entrusted to Muhammad Ajaib, S.I. (PW-17), who on 08.07.2009, got issued the non-bailable warrants of six absconding accused by submitting an application Ex.PAK to the learned Illaqa Magistrate whereas warrants of arrest of the absconding accused were obtained as Ex.PW-17/A, Ex.PW- 17/B, Ex.PW-17/C, Ex.PW-17/D, Ex.PW-17/E and Ex.PW-17/F and thereafter he (PW-17) got issued a docket Ex.PAL from the

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office of the District Police Officer, Chakwal for the purpose of sending the recovered weapon to Forensic Science Laboratory, Lahore for comparison on 08.07.2009. Thereafter, on 03.05.2011, the investigation of this case was handed over to Ijaz Abbas, S.I. (PW-16), who arrested the accused, Khalid Aziz and Muhammad Rafique and during the course of investigation, the accused, Khalid Aziz led the police party to his house and got recovered a Kalashnikov (P-21) which was taken into possession by him (PW-

16)vide recovery memo Ex.PW while preparing the site plan of the place of recovery as Ex.PW/1. Thereafter the accused, Muhammad Rafique got recovered a rifle 7-mm (P-22) from the house of his brother-in-law (Sala), which was taken into possession by the Investigating Officer (PW-16) vide recovery memo Ex.PX while preparing the site plan of the place of recovery as Ex.PX/1. Thereafter the Investigating Officer (PW-

16)got issued a docket Ex.PAJ on 24.05.2011 for transmission of the above said fire arms to the office of Forensic Science Laboratory, Lahore.

6.Having found the accused persons guilty, the Station House Officer/Inspector prepared report under Section 173, Cr.P.C. and sent the same to the court of competent jurisdiction. On 14.09.2011, the learned trial court formally charge sheeted the appellants to which, they pleaded not guilty and claimed trial. The prosecution in support of its version produced as many as eighteen (18) prosecution witnesses.

7.Ocular account of first part of occurrence in this case has come out from the statements of Izzat Baig (PW- 12)/complainant, the injured PWs-Rameez Hussain (PW-10), Abid Hussain (PW-11), Faheem Matloob (PW-13), whereas Dr. Mian Mumtaz Hussain, (PW-1) had observed the body of the deceased-Aatif Ishfaq in an injured condition on 28.05.2009 and found the following injuries on his person:-

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1.A round to oval fire arm mark of wound on lateral side of right hip, measuring 0.8 x 0.8 cm margins inverted. No blackening, no tattooing seen on margins. Wound located 13 cm below iliac crest of right hip bone.”

2.A lacerated wound on left side of scrotum, which was 2 x 1.5 cm. Margins everted, flesh is coming out whole testis. Bruising on scrotum and right inginal area. Corresponding hole on shalwar was present, while was stained with blood. Genheral condition was still severe. I/V line maintained by latterly.”

After conducting the medical examination, the doctor rendered the following opinion. Opinion.

“Injury No.1 was entry wound, while injury No.2 was exit wound. Referred to D.H.Q Hospital Chakwal for management. Weapon of offence was fire arm. Duration between injuries and examination was within one hour.” Exh.PA is carbon copy of report of MLC.

On the same day, the doctor had examined the injured-Rameez Hussain and found the following injuries on his person:-

1.Incised wound on head left side just above the left ear measuring 2 x 0.2 cm.

2.Incised wound on face in front of left ear having 1 x 0.2 cm.

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3.Incised wound on head “H” shape on left side 15 cm posterior to head. It was measuring 1 x 0.2 cm of each limb of “H”.

4.A lacerated wound on leg lying interiorly measuring 4 x 3 cm cutting the flash at bone tibia on right leg, closed to ankle joint.

5.Fire arm wound on left thigh on lateral sight measuring 2 x 2 cm, margins were inverted. Blackening and tattooing seen around the wound. It was about in the middle of thigh.

6.Fire arm wound on medial aspect of left thigh 2 x 2 cm located 15 cm above knee joint. 2 cm below the level of wound No.5.

Corresponding mark hole on Shalwar was present. Shalwar handed over to police after signatures.

After conducting the medical examination, the doctor rendered the following opinion Opinion.

Injuries No.1, 2, 3 were sharp edge weapon, while injury No.4 was with blunt weapon and Injuries No. 5 & 6 were with fire arm.

Duration between injuries and examination was half to one hour. Ex.PB is carbon copy of MLC.

On the same day, the doctor had examined the injured-Faheem Matloob and found the following injuries on his person:-

1.A round wound lacerated 1 x 1 cm, located on right upper part of thigh, latterly

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2.A second lacerated wound 2 x 1.5 cm on medial and lower part of right buttock. Margins were everted. Probably it was exit wound. On shalwar the hole was present.

Corresponding side was stained with blood.

After conducting the medical examination, the doctor rendered the following opinion.

Opinion.

Fire arm weapon was used. Duration between injuries and examination was fresh. Ex.PC is carbon copy of MLC.

Likewise, the doctor had medically examined the injured Abid Hussain on the same day and found the following injuries on his person:

1.A lacerated wound on head located on left side, measuring 2 x 0.3 cm, bone was not exposed. Located 4 cm from left ear.

2.“T” shape lacerated wound on head, measuring 5 x 0.4 cm, bone was exposed. The length of second limb of “T” was 6 x 0.4 cm, bone was exposed. Wound was located on head on left side 8 cm above the left ear.

3.A lacerated wound on head 9 x 0.2 cm, lying

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4.A scratch on left hand on little finger with difficulty in movement.

The doctor rendered the opinion after conducting the medical examination.

Opinion.

Blunt weapon was used. Duration between injuries and examination was half to one hour. Ex.PD is carbon copy of MLC.

On the same day, Dr. Abdur Rehman (PW-7) conducted postmortem of the body of deceased, Altaf Hussain and found the following injuries:

1.An entry wound fire arm 0.8 x 0.7 cm in front of right fore arm in middle with stretching and color of abrasion. Margins inverted and directed off-ward and slightly backward. Leading into injury No.2.

2.It was an exit wound, located 3 cm above elbow joint on interior aspect of upper arm with irregular margins. Margins are everted.

3.An incised wound vertical 4 x 2 cm incised in middle of back of the skull, 4 cm below the occipital protuberance.

4.An incised wound 0.2 x 1.5 cm, just right to the occipital protuberance.

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5.0.5 x 2 cm on right ear directed off-ward and slightly backward. Two bullets were recovered.

6.A fire arm wound 1.5 x 2 cm with collar of abrasion directed towards left slightly off-ward and backward, located 10 cm above the right knee joint.

7.An exit wound at medial aspect of right thigh 15 cm above knee joint. It was 4 x 4 cm in size, irregular and its markers were everted.

8.A fire arm wound at left lower chest with scorching. It was 2 x 2 cm directed towards right backward and upward.

After conducting the postmortem, the doctor rendered the following opinion.

Opinion.

In his opinion, cause of death is injury No.3, which has caused brain damage and it was incised wound due to sharp weapon and not fire arm. This injury was enough to cause death and remaining injuries are contributory. Probable time, that elapsed between injuries and death 10 to 30 minutes and between death to postmortem 6 to 12 hours. The postmortem report is Ex.PH along with pictorial diagram as Ex.PH/1.

On the same day, Dr. Abdur Rehman (PW-7) conducted postmortem of the body of deceased, Amanat Hussain and found the following injuries:

1.A fire arm wound in front of left chest 4 cm from mid line in 20 cm below left clavicle. Margins were

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inverted with collar of abrasion. Directed backward towards right making its exit of injury No.2.

2.At back of right chest 11 cm from mid line and 3 cm below right shoulder.

3.An abrasion 1 x 1.5 cm at right side of the neck at the level of thyroid cartilage.

After conducting the postmortem, the doctor rendered the following opinion.

Opinion.

In his opinion, the cause of death was injuries No.1 & 2 which were fire arm. Injuries caused damage to heart and right lung. There injuries were enough to cause death.

Probable time between injury and death 15 to 30 minutes whereas duration between death and postmortem 6 to 12 hours. The postmortem report is Ex.PJ and pictorial diagram is Ex.PJ/1.

Likewise on the same day, Dr. Abdur Rehman (PW-7) conducted postmortem of the body of deceased, Azad Hussain and found the following injuries:

1.A fire arm wound 0.7 x 0.8 cm, scorching with collar of abrasion about 6 cm above the left eye brow, directed towards left backward and slightly down-wards with under lying bond fracture. It was an entry wound.

2.6 cm behind the left ear 2 x 2 cm in size irregular margins were everted. It was an exit wound.

After conducting the postmortem, the doctor rendered the following opinion.

Opinion.

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In his opinion, the cause of death was with injuries No.1 & 2 which were fire arm injuries. Injury No.1 was entry, while injury No.2 was exit wound. These injuries were enough to cause death. Probable time between injury and death 10 to 20 minutes whereas duration between death and postmortem 6 to 12 hours. The postmortem report is Ex.PK, pictorial diagram is Ex.PK/1 & 2.

Similarly, on the same day, Dr. Abdur Rehman (PW-7) conducted postmortem of the body of deceased, Aatif Ishfaq and found the following injury:

1.A fire arm wound 0.8 x 0.7 cm with colour of abrasion, located on right side of hip. 13 cm below right iliac crest. Margins were inverted. It was entry wound. It was directed towards left and slightly forward making its exit as injury No.2 from right side of top of scorotum.

After conducting the postmortem, the doctor rendered the following opinion.

Opinion.

In his opinion, the cause of death was with injuries No.1 & 2 which were fire arm injuries. Injury No.1 was entry wound whereas injury No.2 was exit one. These injuries were enough to cause death. The cause of death seemed to be vasovagal shock. Probable time between injury and death 10 to 30 minutes whereas duration between death and postmortem 6 to 12 hours. The postmortem report is Ex.PL along with pictorial diagram is Ex.PL/1.

The statements of remaining prosecution witnesses are formal in nature.

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8.On 10.03.2012, learned Deputy District Public Prosecutor gave up PWs-Noubahar, Sajjad Hussain and Maqbool Hussain being un-necessary and by tendering the reports of Chemical Examiner as Ex.PAV, Ex.PAW, Ex.PAX & Ex.PAY as well as reports of Forensic Science Laboratory Punjab, Lahore as Ex.PAZ & Ex.PBA & Ex.PBB and closed the prosecution evidence.

9.The appellants were also examined in terms of Section 342 Cr.P.C., wherein they opted to lead defence evidence but refused to appear as their own witnesses in disproof of the allegations levelled against them in the prosecution version. In response to a particular question why this case against him and why the PWs deposed against him, Khalid Aziz-appellant, made the following deposition:- “I am related to both the parties of this case. Complainant party had an impression that I and my brothers take side with Muhammad Iqbal etc co- accused persons, therefore, they under the policy of wider net have falsely involved myself and my two brothers namely Muhammad Shafique and Muhammad Rafique who were only able bodied members of the family. My father is an old and infirm person. No body has been left to even pursue our cases. At the relevant time of alleged occurrence, I was on duty as stated above. All the PWs are closely related inter-se and are partisan, who have made false statements against me and my co- accused.”

Likewise, the appellant-Muhammad Rafique while replying the particular question, made the following deposition:- “I along with my co-accused have been falsely involved in this case. I adopt the detailed answer given by Khalid Aziz, my co-accused in this regard.”

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In defence evidence, Dr. Muhammad Haleem (DW-1) had medically examined the injured Malik Muhammad Rafique on the same day and noted the following injuries on his person:-

1.Crush injury 7 x 8 cm on right side of the face, bone exposed.

2.Multiple pellets injuries on the right side of chest, larger injuries 2 x 1 cm and smaller 1 x 1 cm. Blackening and scorching was present. All were entry wounds.

3.A wound on abdomen 1 x 1 cm at right lumber region.

Blackening and scorching was present. It was an entry wound.

4.A wound 1 x 1 cm on right front upper side of thigh. Blackening and scorching was present. It was also an entry wound.

5.A wound 1 x 1 cm on right arm at deltoid region. Blackening and scorching was present. It was also an entry wound.

Due to serious condition, the doctor (DW-1) shifted the injured, Malik Muhammad Rafique to the District Headquarter Hospital, Rawalpindi after primary treatment. Ex.DG is carbon copy of

MLC.

Whereas Rana Haji Noor Ullah Khan and Muhammad Arif appeared in the witness box as (DW-2 & DW-3).

10.The learned trial court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt resulting into conviction of the above stated appellants in the afore said terms.

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11.Arguments advanced from both sides have been heard. We have also gone through the record available on file with the able assistance of learned counsel for the appellants and learned counsel for the complainant as well as Deputy Prosecutor General.

12.In the instant case the occurrence had taken place on 28-05-2009 at 8.30 a.m. and the matter was reported to the police on the same day at 11:00 a.m whereas inter-se distance between the police station Kallar Kahar, District Chakwal and the place of occurrence is 7-Miles. There was inordinate delay of 2:30 hours in lodging the F.I.R. and in this way possibility of deliberations and consultations cannot be ruled out.

13.As per prosecution version put forth in the crime report by the complainant-Izzat Baig (PW-12), his real brothers deceased-Altaf Hussain, deceased-Azad Hussain, his maternal nephew deceased-Amanat Hussain, his paternal nephew deceased-Aatif Ishfaq were going to the village Jhamra at about 8.30 a.m. in connection with the piece of work. When they reached near the graveyard situated adjacent to their village the appellants (1) Khalid Aziz and (2) Muhammad Rafique along with 15 co-accused persons Tariq Hussain, (since acquitted), Muhammad Iqbal, (since acquitted), Tassaddaq Hussain, (since acquitted), Adeel Iqbal (since acquitted), Manzoor Hussain (since acquitted), Sadam Hussain (since acquitted), Muhammad Shafiq (since acquitted), Maqbool Hussain (since acquitted), Matloob Hussin (since acquitted), Muhammad Gulistan (since acquitted), Muhammad Islam (since acquitted), Tajammal Hussain (since acquitted), Dost Muhammad (proclaimed offender), Muhammad Latif (Proclaimed offender) and Amjad Hussain (Proclaimed offender) who were ambushed behind the

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wall of graveyard came forward while making firing at them simultaneously.

14.The appellant-Khalid Aziz had made a fire shot which landed on the left flank of deceased-Altaf Hussain and the appellant-Muhammad Raffiq had made a fire shot which landed on the chest of deceased-Amanat Hussain.

15.The complainant-Izzat Baig (PW-12) deposed at the trial that he brought the injured to RHC Buchal Kalan, where Altaf, Amanat Hussain and Azad Hussain Succumbed to the injuries. He (PW-12) also deposed during cross-examination that, he along with Noubahar Hussain (given up PW) and Sajjad (given up PW) and his other relatives shifted the injured to the RHC, Bochal Kalan after 5/10 minutes of the occurrence; he did not inform the police prior to leaving the place of occurrence; the people of the nearby vicinity were collected at the place of occurrence; he did not state in his earlier statement Ex.DE (statement of the witness recorded in the earlier trial) that almost entire villagers were collected at the scene of occurrence before his departure to the police station, they did not provide first aid to the injured/deceased persons at the place of occurrence. This statement of the witness was confronted with Ex.DE where assembling of whole village and providing of first aid i.e. bandage are mentioned; he did not ask any one to inform the police regarding the occurrence; they reached in the RHC Bochal Kalan after 1⁄2 hours of the occurrence; police reached in the hospital after 15/20 minutes of their arrival there; he did not ask any of his relatives to inform the police about the occurrence from the hospital; Thanedar himself met him in the hospital and asked him regarding the occurrence; Thanedar was not familiar to him prior to the occurrence; the Investigating Officer verified his identity that he belonged to the complainant party and the

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Investigating Officer accepted him as a complainant; he got recorded his statement Ex.PG in senses; he was fully conscious about the contents of his complaint; he was not under the shock of the incident at the time of recording of his statement Ex.PG; he was well aware about the motive, cause of the alleged incident at the time of record of his statement Ex.PG; he had not stated in his statement Ex.PG that on the fateful day, they were proceeding to village Jhamara to collect visas for his Bhanjas namely Azad Hussain, Sajjad and Aatif Ishfaq from Ghazanfar, who brought visas from the abroad; he signed Ex.PG with full consciousness. But from the Medico legal report (Exh.PA) it reveals that injured- Aatif Ishfaq (since died) was brought to the hospital at 11:11 noon, however, who brought him to the hospital was not mentioned therein, from the Medico legal report (Exh.PB) it reveals that the injured-Rameez Hussain was brought to the hospital by Hafeez Ullah, 419/Constable at 11:45 noon, from the Medico legal report (Exh.PC) it reveals that injured-Faheem Matloob was brought to the hospital by Hafeez Ullah, 419/Constable at 12:15 noon, from the Medico legal report (Exh.PD) it reveals that injured-Abid Hussain was brought to the hospital by Hafeez Ullah, 419/Constable at 12:00 noon and none else. In the column of medico legal reports (Exh.PB, Exh.PC and Exh.PD), “name of relative and friend” was written by the police/ Hafeez Ullah, 419/Constable. It is clear from the medico legal certificates that the injured were not previously examined and in the column of date of admission, name of Hafeez Ullah, 419/Constable was written who brought the injured on 28.5.2009 from 11:45 a.m. to 12:00 noon. From the contents of the medico- legal reports (Exh.PB, Exh.PC and Exh.PD), it reveals that the injured-prosecution witnesses were brought by the police for medical examination and not by the complainant or any eye witness of the occurrence, makes the case of the prosecution doubtful. However from the evidence it reveals that the police

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had reached at the hospital in presence of the complainant as deposed by the complainant-Izzat Baig (PW-12). Kausar Abbas (PW-15)-the investigating officer, deposed in his court statement that on 28-05-2009 he received information through phone that some quarrel took place in Mauza Kahout, during which some persons were injured and he rushed to the spot; contrary to this, he (PW-15) deposed during cross-examination that he received the information of the occurrence at about 08:15 a.m. on 28.05.2009 through unknown informer on his cell phone. However, he (PW-15) admitted that he did not incorporate this information in the register roznamcha; he (PW-15) reached village Kahout where inhabitants of the locality informed him that injured persons have been taken to RHC Buchal Kalan. Whereas, during cross-examination he (PW-15) deposed that he rushed to the place of occurrence and met with two women in Mouza Kahout i.e. at the place of occurrence. Kausar Abbas (PW-

15)deposed during cross-examination that it was about 08:35 a.m. when he reached at the spot; when he reached RHC, he came to know that three persons had died and five were injured seriously in the occurrence. Whereas from the Medico legal report (Exh.PA) of deceased-Aatif Ishfaq (then injured) it reveals that injured-Aatif Ishfaq (since died) was brought to the hospital at 11:11 noon by Hafeez Ullah, 419/Constable and probable duration of injuries was within one hour. This led us to the conclusion that the evidence of the prosecution witness is untrue. In these circumstances the testimony of the eye witnesses does not inspire confidence. This leads to the conclusion that the F.I.R. was recorded with a delay and same cannot be used against the appellants as a corroborative piece of evidence. Hence this circumstance was taken, as the one, to raise considerable doubt, regarding the veracity of the case, and it was held that it was not safe to base conviction.

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16.Now, coming to the presence of the complainant-Izzat Baig (PW-12) at the place of occurrence, it is urged that presence of the complainant (PW-12) was not proved at the place of occurrence and as-such his evidence is not worthy of acceptance. Izzat Baig (PW-12) in the cross-examination admitted that Altaf Hussain and Azad Hussain were his brothers’ whereas Amanat Hussain and Aatif Ishfaq were his maternal nephew and paternal nephew respectively. In addition to this there is another glaring infirmity in the evidence of Izzat Baig (PW-12) that he is very emphatic that on 28-05-2009 at about 08:30 A.M., he and his brothers Altaf Hussain, Azad Hussain, his maternal nephew Amanat Hussain, paternal nephew Aatif Ishfaq were going to the village Jhamra for meeting with Ghazanfar Abbas as he had brought visas from abroad as they wanted to get visas for Azad Hussain (maternal nephew), Sajid Hussain (maternal nephew) and Aatif Ishfaq (paternal nephew). Whereas in the F.I.R. (Exh.PG/1) the complainant (PW-12) had mentioned that they were proceeding to Jhamra on account of some personal piece of work. On the other hand, the presence of Izzat Baig (PW-12) was also denied by Rameez Hussain (PW-10). Rameez Hussain (PW-10) deposed during examination-in-chief that, “I and Abid due to sustaining injuries fell down. Over which, my MAMU Sajjad Hussain, CHACHA Noubahar Hussain and Izzat Baig reached at the spot. Prior to that accused persons had gone towards their houses.” He (PW-12) also deposed during cross-examination that he was fully conscious about the contents of his complaint; he was well aware abut the motive/cause of the alleged incident at the time of recording his statement Ex.PG; he had not stated in his statement Ex.PG that on the fateful day, they were proceeding to village Jhamra to collect visas for their Bhanjas namely Azad, Sajid and Aatif Ishfaq from Ghazanfar, who had brought visas from abroad. Scrutiny of the testimony of Izzat Baig (PW-12) produced by the prosecution

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clearly indicated that he was chance witness. We have also noticed that the prosecution did not produce the most material witness Ghazanfar Abbas, who had brought visas from abroad as the complainant (PW-12) wanted to get visas for Azad (Bhanja), Sajid Hussain (Bhanja) and Aatif Ishfaq and adverse inference for withholding a material witness has to be drawn on this count also, which would materially and adversely affect the prosecution story. We have made an elaborate discussion as to the presence of the complainant (PW-12) at the place of occurrence and come to the conclusion that the complainant (PW-12) was not present at the place of occurrence.

17.We, now therefore turn to the question whether the injured prosecution witnesses i.e. Rameez Hussain (PW-10, Abid Hussain (PW-11) and Faheem Matloob (PW-13) are truthful witnesses, and whether it would be safe to accept their testimony. We have to examine their evidence and also that of Dr. Mian Mumtaz Hussain (PW-1) in the background of the fact that they are not only very close relatives of the deceased Azad Hussain, Altaf Hussain, Aatif and Amanat, but, are also inimical to the appellants. Coming to the evidence of Rameez Hussain (PW-

10)deposed that Saddam Hussain (since acquitted) and Matloob Hussain (since acquitted) made fire shots which hit him (PW-10) at the back of left ear and Shin respectively. We find that the medical evidence indicates that injuries attributed to Saddam Hussain (since acquitted) and Matloob Hussain (since acquitted) were not result of fire arm. He was examined by Dr. Mian Mumtaz Hussain (PW-1) who found that injuries No. 1, 2, 3 were result of sharp edge weapon whereas injury No. 4 was result of blunt weapon and Injuries No. 5 and 6 were result of fire arms, which were attributed to Adeel Iqbal and Tassadaq Hussain. He (PW-10) was examined by Dr. Mian Mumtaz Hussain (PW-1) who found blackening and tattooing on the injury No.5. Meaning

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thereby the shot was fired from a very close range. But it is not the prosecution case that the shot was fired from the close range. On the other hand, Rameez Hussain (PW-10) had not deposed that the accused Adeel Iqbal and Tasaddaq Hussain had made fire shot from the close range. The medical evidence belies the ocular version brought forward by Rameez Hussain (PW-10) and made his statement doubtful.

18.Similarly, Abid Hussain (PW-11), injured witness, we find that in his statement recorded in the trial Court, he has categorically alleged that Islam (since acquitted) accused fired pellets which landed on the left side of his (PW-11) head. However, during cross-examination, Abid Hussain (PW-11) improved his statement and deposed that he had made the statement that Muhammad Islam and Gulistan accused made fire shots with their respective guns and pellets hit his head; in this earlier cross-examination, he (PW-11) had got recorded that pellets from the fire shot of Islam, accused hit him on the left side of his head. Faheem Matloob (PW-13) and Rameez Hussain (PW-

10)also deposed that in the same line. All prosecution witnesses deposed that Abid Hussain (PW-11) received fire arm injuries. However, to our dismay, we find that the medical evidence indicates that Abid Hussain (PW-11) received no fire arm injury on his head or on any part of body. He was examined by Dr. Mian Mumtaz Hussain (PW-1) who found that all injuries were result of blunt weapon.

19.Besides this, Faheem Matloob (PW-13) deposed in his court statement that Latif accused fired a shot hitting on his right thigh whereas in the F.I.R (Ex.PG/1), a joint role of firing to Latif (proclaimed offender) and Dost Muhammad (proclaimed offender) was attributed by the complainant (PW-12). He (PW-

13)was examined by Dr. Mian Mumtaz Hussain (PW-1) who

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found one entry wound having tattooing on the upper part of thigh. Meaning thereby the shot was fired from a very close range. All though in the un-scaled site plan (Exh-PAG) and scaled site plan (Exh-PE) distance between point No.7 and point’s No. 11 and 12 had not been given but a bare look of site plan shows great distance between point No.7 and point’s No. 11 and 12. In the site plan (Ex.PY), the shortest distance had been shown by the witnesses between different points is 05-karams. So, tattooing and blackening is not possible. Presence of tattooing belies the ocular version and renders the prosecution case doubtful.

20.In similar way all prosecution witnesses has deposed that Accused Muhammad Islam (since acquitted) caused fire arm injury on the person of Altaf Hussain (the deceased) at his left knee whereas Dr. Abdur Rehman (PW-7) had not found any injury on the left knee of Altaf Hussain (the deceased).

21.We have also noticed that Izzat Baig (PW-12) deposed that Manzoor Hussain accused fired which hit on right deltoid region of Altaf Hussain-deceased and Tariq Hussain fired which hit on the right thigh of Aatif Ashfaq-deceased. Rameez Hussain (PW-10) and Abid Hussain (PW-11) also corroborate the statement of Izzat Baig (PW-12). Dr. Abdur Rehman (PW-7) conducted post-mortem on the dead body of Altaf Hussain- deceased and found injury No.1 in front of right forearm, however no injury was found of right deltoid region. The deltoid region is located on the outer aspect of the shoulder and is recognized by its triangular shape. Similarly one entry wound was found on the body of Aatif Ashfaq-deceased at right side of hip and same was not available on the right thigh of Aatif Ashfaq- deceased. Besides this, the prosecution witnesses deposed that accused Amjad Hussain (proclaimed offender) fired which hit on genital region on front of Altaf Hussain-deceased. Dr. Abdur

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Rehman (PW-7) conducted post-mortem on the dead body of Aatif Ishfaq-deceased and found injury No.1 on right side of hip, it was entry wound and it was directed towards left and slightly forward making its exit as injury No.2 from right side of top of scorotum. The injury attributed to Amjad Hussain (since proclaim offender) was exit wound. These circumstances make us have serious doubts about the mode and manner of the incident. We are inclined to accede to the submission of learned counsel for the appellants that this shows that the incident did not take place in the mode and manner as alleged by the prosecution. As a matter of fact, the injuries sustained by the injured witnesses and deceased do not inspire any confidence for another reason. The conflict between medical evidence and ocular testimony was so serious that it travelled to the root of the incident and knocked the bottom of the case of the prosecution. We are left with no other option but to believe that injured witnesses i.e. Rameez Hussain (PW-10), Abid Hussain (PW-11), Faheem Matloob (PW-13) have deliberately concealed the mode and manner of occurrence. This shows that the prosecution witnesses have not only exaggerated the incident but have also suppressed the incident by not explaining injuries on their persons. The question arises for consideration is whether in view of the facts indicated above, it can be said that the incident had not been exactly taken place in the manner the prosecution witnesses of the occurrence have deposed. We have gone through the entire persecution evidence and found that the prosecution has suppressed the genesis and the original of the occurrence and has thus not presented the true version. . In these circumstances it is difficult to accept their testimony.

22.These are not the only reasons as to why we are not able to place reliance on the evidence of injured witnesses i.e. Rameez Hussain (PW-10), Abid Hussain (PW-11), Faheem

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Matloob (PW-13). There are some other reasons also the statements of injured witnesses were not recorded soon after registration of FIR. Kausar Abbas, S.I (PW-15), the investigating Officer, deposed that, “all the four injured were unconscious and therefore I prepared injury statements of those injured on the basis of my personal observation.” Contrary to this, Dr. Mian Mumtaz Hussain (PW-1) deposed that Abid Hussain (PW-11) and Faheem Matloob (PW-13) were well oriented in time and space. Abid Hussain (PW-11) deposed during his cross-examination that he, “met the police for the first time in RHC Bochal Kalan; at that time his uncle Izzat Baig and Nouobahar were present n the hospital; police did not record the statement of anybody in RHC Bochal Kalan in his presence; his statement was recorded on 01- 06-2009 at Adda Kahout. Faheem Matloob (PW-13) deposed during cross examination that his statement was recorded on 29- 5-2009 at Adda Kahout along with Izzat Baig. The prosecution fails to satisfactorily explain the delay in recording statements under section 161 Cr.P.C and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case. In the instant case Abid Hussain (PW-

11)and Faheem Matloob (PW-13) were able to make statement but same was not recorded. As no specific role was attributed to any accused and the part played by them, as well as the names of the eye-witnesses, present at the scene of occurrence was mentioned in the inquest reports (Exh.PY, Exh.PZ, Exh.PAA and Exh.PAF) prepared at the earliest point of time. As such, the delay in recording statements of important witnesses, without reasonable explanation, has created a reasonable doubt in our mind as to the genuineness of the prosecution case.

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23.That the testimony of the witnesses becomes further unreliable. As from the testimony of the witnesses, it reveals that the real genesis of the incident was suppressed. The complainant (PW-12) deposed during cross-examination that when firing started, he was already beside the wall; it is correct that in case of sitting position beside the wall, other sides are not visible; firing continued for about four minutes; he stood up after 2 or 3 minutes of stoppage of firing when the accused persons fled away. Abid Hussain (PW-11) deposed in his examination-in- chief that he was in his house when he heard reports of fires and voices from the side of village graveyard whereas during his (PW-11) cross-examination he deposed that he came to know after reaching the graveyard that who resorting to the firing; the firing remained continued during his departure from the house at reaching the place occurrence; his house is at a distance of about 100 yards from the place of occurrence; 5/6 minutes consumed in reaching to the graveyard from his house and not 15/20 minutes as suggested; his house is 4/5 feet at height from the graveyard; that graveyard is situated on the southern side and his house is 2/3 feet in depression from his house. He had previously made statement in the court and stated that level of graveyard and his house is even. (underlined for emphasis). He had not stated in his previous statement before the court Ex.DC that while standing in the courtyard, he was not able to see either the accused or deceased and injured PWs; he met the police for the first time in RHC, Bochal Kalan; he had recorded in his previous statement before the court Ex.DC that he had stated before the Investigating Officer that on receiving of information that Dost Muhammad etc accused were having been quarreled with his relatives namely Azad Hussain, Altaf Hussain and upon this information, he along with Rameez Hussain-PW went to the spot. Rameez Hussain (PW-10) deposed during his court statement that, “on 28.05.2009, he was present in his house, where

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he heard voices and reports of fires from graveyard nearby his house.” During cross-examination, (PW-10) deposed that occurrence took place in the graveyard situated after the first graveyard at the intervening distance of 100 yards; it is correct that between his house and place of occurrence, residential houses are situated; he had not stated in his previous statement before the court that graveyard is not visible from his house and same is visible after coming in the main street; the statement of the witness was confronted with Ex.DD (previous statement of PW-10) where it is recorded that the graveyard is not visible, again said from the courtyard. He did not point out where he heard the voices and gun shots reports at the time of occurrence to the Investigating Officer. Sajid Mehmood, Patwari Halqa (PW-

2)deposed during cross-examination that it is correct that he did not mention about any graveyard in the site plan Ex.PE/1-3; he also did not mention about the adjacent Abadi Deh in his site plan; the ground level where graveyard is situated is equal with the adjoining land. Kausar Abbas, S.I. (Retired) (PW-15) deposed during cross-examination that Faheem Matloob was injured in the alleged occurrence at point No.7 visual site plan prepared by him. He (PW-15) has not shown the place from where he had seen the occurrence first time; there is no constructed area at point No.7 of his visual site plan; he (PW-15) has not shown the place from where firstly firing was resorted by the accused on the complainant party; he (PW-15) has not shown the presence of injured when firstly they were fired upon. From the circumstance, it does not appear that the witnesses have shown themselves to be present in their houses which were stated to be present near the graveyard. In such circumstances it could not be ruled out that the witnesses had suppressed the original occurrence and has thus not presented the true version.

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24.On careful examination of the evidence, it reveals that the appellant also received six injuries at the occurrence. Izzat Baig (PW-12) deposed during his court statement that due to the aerial firing made by the accused persons, Muhammad Rafique, accused was injured. He (PW-12) also deposed during cross-examination that he came to know by his own source that Muhammad Rafique, accused was hospitalized in Chakwal hospital. He (PW-12) did not disclose this fact to the police in the hospital; police party was present in the hospital at the time of his knowledge regarding the presence of Muhammad Rafique accused in the hospital; Rameez Hussain (PW-10) deposed during cross-examination that it is correct that Muhammad Rafique was arrested by the police on the day of occurrence in an injured condition and was examined through police. Kausar Abbas, S.I. (PW-15) deposed that Muhammad Rafique accused present in the court did not meet him in injured condition on 28.05.2009 at DHQ hospital Chakwal while answering to the suggestion he (PW-15) deposed that it is incorrect to suggest that Muhammad Rafique accused joined him on the same day in the injured condition. Neither he prepared his injury statement nor mentioned this fact in his case diary; it is correct that he did not annex the injury statement of Muhammad Rafique, accused in the challan file; it is incorrect that he prepared injury statement of Muhammad Rafique accused. However, in the next breath, perhaps when he realized the significance of the question, (PW-15) deposed during cross-examination that it is correct that he prepared injury statement of accused, Muhammad Rafique in DHQ, Chakwal which is annexed with the police file instead of annexing with the challan, however, he denied the suggestion that he concealed the injury statement of Muhammad Rafique, accused in order to support the prosecution case. The injury statement of Muhammad Rafique accused is Ex.DE which was “taken from the police file and placed with the

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report under Section 173 of Cr.P.C”. He also deposed during cross-examination that Muhammad Rafique, accused was produced before the doctor through Muhammad Khan/C for getting him medically examined; Muhammad Khan/C did not produce before him the MLC of Muhammad Rafique, accused, however, he made voluntarily statement that the accused was referred by the doctor to the PIMS hospital Islamabad due to precarious condition. He admitted that he did not make any effort to procure the MLC report of accused from the DHQ hospital as well as from the PIMS Islamabad. He admitted that Muhammad Rafique, accused was in his custody in the PIMS hospital Islamabad from where he managed to escape. He also admitted it correct that he did not mention all these facts in any case diary of police file; Muhammad Rafique, accused met him in the DHQ, hospital Chakwal in an injured condition; he was not able to make statement; he (PW-15) verified this fact from the doctor as to whether he (Muhammad Rafique) was able to make statement. The statement of Doctor Muhammad Haleem (DW-1) as well as M.L.C (Ex.DG) reveal that all wounds having blackening and scratching. Meaning thereby the shots were fired from a close range and same were not result of the aerial firing made by the co-accused persons. After going through the entire evidence, we come to the irresistible conclusion that both i.e. the appellant and the complainant side suppressed the real occurrence. The incident does not appear to have taken place in the manner, as alleged especially in the background, as the complainant had not assigned any specific role to any accused at the time of preparing of inquest reports (Ex.PY, Ex.PZ, Ex.PAA and Ex.PAF). The prosecution witnesses have shown reckless disregard for the truth. This amount to suppression of material evidence and in turn would adversely affect the prosecution version.

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25.It is also an admitted fact on record that there existed enmity between the parties. This creates doubt about the genuineness of the version given by the complainant-Izzat Baig (PW-12). The complainant-Izzat Baig (PW-12) deposed during cross-examination that it is within my knowledge that the case vide FIR No.49 dated 25.03.2006 was registered at Police Station Saddar Chakwal under Section 148, 149 PPC on an application moved by one Adnan, Altaf Hussain, Amanat and Azad deceased of this case and Tabarak Hussain. I do not remember if 17 persons were accused in that case that included Muhammad Iqbal accused of this case. I know one Rashid Iqbal son of Haq, Caste Awan of my village. I do not remember if the said Rashid Iqbal lodged a counter case at Police Station Saddar Chakwal agaist my brother Noubahar and nine others. However, I remember that Altaf Hussain, Mohammad Azad and Amanat Hussain deceased were amongst those who were named as accused by said Rashid Iqbal. I know one Mukhtar Hussain son of Aksar Khan r/o my village. It is correct that said Mukhtar Hussain had got a criminal case registered on 27.10.2005 at Police Station Kallar Khaar under Sections 324, 34 PPC against my brothers Altaf Hussain deceased of this case, Zaffar Iqbal and one Shafiq son of Muhammad Sharif. Village Pahar Khan is at distance of about 2 Kilometers from our village. We have our brother-hood members in that village, some of the witnesses of this case belong to that village. I know one Liaqat Ali son of Walayat Ali, Caste Awan, r/o Pahar Khan. It is correct that said Liaqat got a criminal case registered on 09.02.2006 against Altaf Hussain, Azad Hussain and Amanat Hussain deceased besides Matloob Hussain, Muhammad Irfan and Tabarak Hussain under Section 337-H(ii), 148, 149 of PPC. It is correct that one Sunawar Khan son of Abbas Khan, r/o village Kahout got a criminal case registered vide FIR No.233, dated 29.09.1998, under Sections 302, 324, 336, 337-A(ii), 147, 427 of PPC, against myself, my

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brothers Altaf Hussain, Azad Hussain deceased of this case and nine others. It is correct that Muhammad Iqbal accused of this case got a criminal case registered vide FIR. No.76 dated 31.05.2002, under Sections 337-F(v), 337-L(ii), 34 PPC against Amanat Hussain deceased of this case. Abid injured PW of this case and one Gul Baig. I do not remember, if one Haji Sultan Mehmood got a criminal case registered on 21.08.1997 against Amanat Hussain deceased of this case under Section 294 of PPC. Nazran Begum w/o Gul Baig of village Kahout is my sister. It is correct that my above named sister got a criminal case registered FIR. No.269, under Section 337-F(vi),337-A(i),337- L(ii),147,149 PPC against Nusrat Parveen, Attia Latif, Sunawaran Bibi w/o Sultan, Irram Shehzadi, Zahid, Shagufta Iqbal, Zareena Begum. Lalan Bibi, Rehana Begum & Asia all variously related with the accused present in the Court at Police Station Kallar Kahar. I do not know if a private complaint in respect of the same incident by Dana Bibi widow of Resham Khan, related with the accused present in the court, is pending in the court against 15 persons from our side. However, I know that an incident was reported by said Dana Bibi at Police Post Buchal Kalan registered vide Rapt No.9 on 02.09.2009. We have gone through the testimony of the complainant-Izzat Baig (PW-12). It is evident from the cross-examination of this witness that the deceased were involved in different criminal cases and which fact would show that they were men of questionable character.

26.Since, the prosecution came up with a motive on the part of accused persons to commit the incident right from beginning, it required to be examined on the anvil of reliability. The motive set up by the prosecution in the F.I.R. (Exh.PG/1) is that two days ago Muhammad Latif accused (P.O) was stopped by the complainant’s brother Naubahar from passing the tractor from the Bajra crop. Whereupon hot words were exchanged

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between Naubahar and Muhammad Latif accused (P.O). Whereas, the complainant-Izzat Baig (PW-12) also introduced other motives and deposed that Amanat Hussain and Abid Hussain (maternal nephews) had assaulted accused Muhammad Iqbal due to which ribs of Muhammad Iqbal were fractured and criminal case was registered against them (Amanat Hussain and Abid Hussain). Khalid Aziz accused had quarreled with Altaf Hussain (the deceased). As Altaf Hussain (the deceased) had got vehicle on lease from the bank in the name of Khalid Aziz accused as Altaf Hussain (the deceased) being in police service could not get car on lease. However Altaf Hussain (the deceased) deposited the installments in the bank account of Khalid Aziz accused but Khalid Aziz accused had not deposited the installments in the bank due to which Altaf Hussain (the deceased) became defaulter and bank officials along with Khalid Aziz accused snatched the vehicle. Whereupon matter was informed to the Motorway police and Motorway police took the vehicle in possession and delivered the possession to Police Station Kallar Kahar. Thereafter compromise between parties was arrived. However, during cross-examination he (PW-12) admitted that he had not mentioned above said both motives in Exh.PG.

27.The complainant-Izzat Baig (PW-12) has deposed during cross-examination that he had shown the field where in Bajra crop was destroyed, to the investigating officer. He (PW-

12)deposed during cross-examination that, he did not stated in Ex.PG that in the year 2002, his maternal nephew (Bhanjas) Amanat Hussain and Abid Hussain had beaten Muhammad Iqbal accused which resulted into fracture of his ribs and a case was registered against them. He did not state in his statement Ex.PG that some time ago, Khalid Aziz accused who is his Khalazad had a quarrel with his brother. He did not state in his statement

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Ex.PG that his brother had taken vehicle on lease in the name of Khalid Aziz accused present in the court as being police employee his brother was not authorized to get the same on lease in his own name; that the amount of installments was being deposited by them maintained by Khalid Aziz accused but he did not make payment to leasing bank and due to default, bank officials along with Khalid Aziz accused came to take the vehicle; that the vehicle was snatched from Altaf; that the motorway police was informed accordingly by them and they stopped the same and delivered it to police station Kallar Kahar; that then at police station, they reached at a compromise where Khalid Aziz deposited the outstanding installments and stamp paper was also executed by Khalid accused present in the court to the effect that he should deal with the bank independently. He did not produce the affidavit to the police or in the court. Volunteered, he can produce the same today if required. He did not state in his statement Ex.PG that they made a program to visit village Jhamara in presence of Mst. Sunawaran Bibi wife of Sultan, who is mother-in-law of his brother Noubahar and is sister of Dost Muhammad etc and Khala of Manzoor Hussain etc, who informed the accused persons and they ambushed and attacked them due to which four persons were murdered and three sustained injuries. It is correct that Sunawaran Bibi wife of Sultan is enjoying her happy matrimonial life in her house. He neither produced the receipt of depositing amount in the bank by Khalid Aziz accused regarding the aforementioned car nor before the court. It is incorrect that he has deposed falsely with regard to dispute over the vehicle taken on installments in the name of Khalid Aziz accused and that he has improved dishonestly the motive in order to strengthen the prosecution case against Khalid Aziz accused. It is incorrect that he has made false and dishonest improvement in his statement with regard to Mst. Sunawaran Bibi. It is further incorrect that he has ascribed

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the false motive against the accused in order to connect him with the alleged heinous crime”. We have also noticed that the prosecution did not produce the most material witness i.e. Noubahar, with whom, Muhammad Latif-accused scuffled two days prior to the occurrence and he (Noubahar) was given up as being un-necessary, therefore, adverse inference within the meaning of Article 129 (g) of the Qanun-e-Shahadat Ordinance, 1984, would be drawn that had he been produced, he would have not supported the prosecution version. He (PW-12) also deposed during cross-examination that, he did not state before the police about the aforementioned facts of the motive additionally stated in his examination-in-chief before the court. So, the motive imputed by the prosecution was built on straw. The motives introduced by the complainant-Izzat Baig (PW-12) have been found by us to have remained un-proved. The motive is a double edged weapon, which can be used for the commission of crime or for falsely implicating the accused. The motive for the commission of crime, by the accused was, therefore, not proved, through cogent and convincing evidence. In the circumstances, we cannot avoid the conclusion that the motive, as alleged, was an afterthought and has not been proved by any credible evidence.

28.As regards the recoveries of the Kalashnikov P-21 from the appellant-Khalid Aziz, rifle 7MM P-22 from the appellant-Muhammad Rafique was the only incriminating evidence, on the disclosure and pointing of the appellants- Khalid Aziz and Muhammad Rafique were recovered and taken into possession vide recovery memos Exh.W and Exh.PX, respectively. The appellants-Khalid Aziz and Muhammad Rafique were arrested on 03-05-2011. Recoveries from the appellants were effected on 14.05.2011 whereas, the empties were deposited in the office of Forensic Science Laboratory on

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19-06-2009. From the report of Forensic Science Laboratory (Ex.PBB) it reveals that same is in negative. So, the recovery of the weapon from the accused persons is of no consequence.

29.All the above narrated facts and circumstances lead this Court to only one conclusion that the whole prosecution case seems to be hinging upon conjectures and surmises and it had badly failed to lead incriminating, corroborative/ independent evidence to bring home guilt of the accused persons in the case of capital charge. The learned trial court was not justified in convicting the appellants while basing upon such un- trustworthy, un-corroborated evidence and conviction passed by the learned trial court in the circumstances is against all cannons of law recognized for the dispensation of criminal justice. As per dictates of law, benefit of every doubt is to be extended in favour of the accused. In the case of “Muhammad Akram v. The State” (2009 SCMR 230), it has been held as under:-

“--Benefit of doubt----Principles--- For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right.”

30.It is golden principle of law that the Court should let off 100 guilty but should not convict one innocent person. In the case of “Ayub Masih v. The State” (PLD 2002 SC 1048), it has been held by the Hon’ble Supreme Court of Pakistan that:-

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“----It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, “it is better that ten guilty persons be acquitted rather than one innocent person be convicted”. In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in “ The State v. Mushtaq Ahmed” (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H) that the “mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent”.

31.The upshot of the above discussion is that the prosecution had badly failed to bring home charge against the appellants beyond any reasonable doubt, therefore, in the interest of safe administration of Criminal Justice, Crl. Appeal No.246 of 2012 filed by Khalid Aziz and Muhammad Rafique, the appellants is accepted in toto. The conviction and sentence awarded by the learned Additional Sessions Judge, Chakwal vide judgment dated 24.05.2012 is set aside and the appellants

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are acquitted of the charge. The appellants-Khalid Aziz and Muhammad Rafique are ordered to be released forthwith, if not required in any other case. Murder Reference No.57 of 2012 is answered in the negative and the sentence of death awarded to Muhammad Rafique son of Muhammad Sharif, Caste Awan, resident of Kahout, Kallar Kahar, District, Chakwal (convict) is Not Confirmed.

32.So far as Criminal Appeal No.409 of 2012 to the extent of respondents No.1 & 2 as well as Crl. Revision No.223 of 2012 to the extent of respondent No.1 seeking conviction under Section 302 (b) P.P.C., are concerned, for the above-stated reasons, the same have no weight, which are accordingly dismissed.

(Syed Shahbaz Ali Rizvi) (Aalia Neelum) Judge Judge

Approved for reporting.

Judge Judge

A.S.Khan.