' This judgment will dispose of Criminal Appeal No.300 of 1992 filed by Shafaqat Ali appellant, who was convicted under section 302, P.P.C. And sentenced to imprisonment for life with fine of Rs.10,000 or in default thereof to further undergo R.I. For four months, and also a direction for payment of Rs.10,000 as compensation to the legal heirs of the deceased, in default whereof to undergo R.I. For four months vide judgment, dated 21-10-1992 passed by learned Sessions Judge, Sahiwal and Criminal Revision No.219 of 1992 filed by Muhammad Khan for the enhancement of his sentence arising out of the same judgment. Benefit of section 382-B, Cr.P.C. Was also extended to the convict/appellant.
2. On the statement of Muhammad Khan (P.W.5) made on 12-5-1991 before Muhammad Ameer Abdullah Niazi, Inspector (P.W.8), F.I.R. No.213 of 1991 (Exh. PD) was registered at Police Station Dera Raheem, District Sahiwal at about 6-30 a.m.
3. Succinctly stated the facts of prosecution story as unfolded in F.I.R. According to Muhammad Khan (P.W.5) are that on 12-5-1991 at 4-30 a.m. Muhammad Khalid deceased accompanied by the complainant, his brother Muhammad Umar and Sikandar Khan was proceeding to Chak No. 110/15- L Mian Channun to see their ailing sister Mst. Aasia. Muhammad Khalid was going ahead of the P.Ws, who sat near boundary wall of graveyard in Killa No. 15 of Square No.78 for urination where he was confronted with Shafaqat Ali appellant who was armed with a gun, and he stood up. The appellant raised a lalkara that Muhammad Khalid would be taught a lesson for having illicit relations with Mst. Razia Bibi, aunt of the appellant. The appellant fired at Muhammad Khalid with his .12 bore gun, who due to the injuries fell on the ground. The report of the firearm also attracted residents of the village. The appellant succeeded in fleeing from the spot with his gun. Muhammad Khalid had succumbed to his injuries at the spot.
' The motive of the occurrence as alleged by the complainant was that Shafaqat Ali appellant had a suspicion regarding illicit relations between the deceased and his aunt Mst. Razia Bibi.
4. After recording the statement Exh.PD, Muhammad Ameer Abdullah Niazi, Inspector/S.H.O. (P.W.8) went to the place of occurrence and took into possession blood-stained earth vide recovery memo. Exh. PE. He also took into possession an empty cartridge P5 from the spot vide recovery memo. Exh.PF., and the same was sent to the office of Chemical Examiner and Forensic Science Laboratory, respectively. He also sent the dead body of the deceased for autopsy through Sabir Hussain (Constable (P.W-1), who produced last-worn clothes, i.e., shirt P1 and shalwar P2 (both blood-stained) of the deceased before him after post-mortem which were taken into cces sio n vide recovery memo. Exh.PA. He also completed the other formalities. Shafaqat Ali appellant was arrested on 1-6-1991 by him, who on 15-6-1991 while in police custody led to the recovery of gun P4 from his residential house which was taken into possession by him vide memo Exh.PC. After completion of the investigation, report under section 173, Cr.P.C. Was submitted in the Court.
5. On receipt of the report under section 173, Cr.P.C. Learned trial Court supplied the copies of the statements of the witnesses recorded under section 161, Cr.P.C. As well as other documents required under section 265-C, Cr.P.C. And framed the charge against the appellant which was denied by him and he claimed to be tried.
6. The prosecution in order to prove the guilt of the appellant produced as many as 9 witnesses.
7. On close of the prosecution evidence, statement under section 342, Cr.P.C. Of Shafaqat Ali appellant was recorded in which he denied the allegation levelled against him and claimed his innocence. However, he did not appear in his defence as required under section 240(2), Cr.P.C. And also did not produce any defence evidence.
8. After hearing the learned counsel for the parties, learned trial Judge has convicted and sentenced the appellant supra through the impugned judgment, which is being assailed through this appeal and revision petition has been filed for enhancement of sentence.
9. Learned counsel for the appellant contends that the story narrated by the eyewitnesses is unbelievable and unacceptable for certain reasons; firstly there was no occasion for the complainant, deceased and other witnesses to start their journey at 4-30 a.m. In the morning as they had not produced any evidence in this regard and even Mst. Aasia Bibi was not produced whereas the Investigating Officer also stated that he had not verified from her about her ailment or if she was residing in Chak No.110/15-L, and secondly how the appellant could know that they would have started their journey at that time and surprisingly he was hiding under the wall of graveyard expecting that the deceased would come near the wall for urinating purpose. It is also contended that the story was concocted and fabricated by the complainant and other witnesses in order to become the eye-witnesses, otherwise, it was an unseen occurrence committed by some unknown culprit. Further contends that P.W.8. Muhammad Ameer Abdullah Niazi during investigation vide Zimni No. 25 on 26-6-1991 came to the conclusion that involvement of the appellant was doubtful and he was innocent whereas the witnesses had not seen the occurrence. Further contends that the occurrence admittedly took place near the house of Khizar Hayat who was not joined in the investigation and moreover according to the eye-witnesses there were residential houses around the place of occurrence and about 20/25 persons reached the spot just after the occurrence, but not a single person from the locality was joined in the investigation or produced at the trial to corroborate the prosecution story. It is also contended that P.W.5 Muhammad Khan during cross- examination stated that the witnesses from the locality had attracted to the spot when the accused had already left the place of occurrence but in the F.I.R. He had stated that a lot of persons from the locality had attracted to the spot on hearing the noise of firing that according to the eye- witnesses the deceased was fired at by the appellant from 5-1/2 feet but according to Exh.PB Site- plan, the deceased was at about 3 karams from the assailant, that there was no possibility of receiving the injury on the right thigh which could have caused on the upper portion of the deceased due to the hurdle of wall between the accused and the deceased; that if the deceased was already wearing shalwar and kameez, but corresponding holes were not found on both these clothes and this fact lends support to the defence version that the occurrence was unwitnessed and the deceased was not wearing the clothes which were taken off by the doctor at the time of post-mortem, that medical evidence is in contradiction with the ocular account as no blackening and corresponding holes were found; that in fact no empty was recovered from the spot as there was no occasion for the appellant to expel the empty who allegedly was armed with double barrel gun and even as per prosecution story the appellant had not repeated the fire; that the gun recovered from the appellant during investigation was the licensee weapon of appellant; that according to P.W.4, recovery was effected from Chak No. 185-9-L while P.W.8 stated that it was effected from the house of the appellant and his brother and sister were also residing in the said house; that the appellant was arrested on 1-6-1991 whereas the recovery was shown to be effected on the last day of his remand and moreover the gun was not in a working condition; that the investigation was not conducted in an independent and impartial manner, and that motive has already been disbelieved by the learned trial Court.
10. On the other hand, learned counsel for the complainant contends that the appellant is named in the F.I.R which was lodged with promptitude and he is the single accused and no enmity or grudge was there to falsely implicate the appellant in the present case hence P.W.5 and P.W.6 though were closely related inter se and with the deceased but they are independent witnesses as there was no material contradiction or inconsistency in their statements; that the ocular account is corroborated by the medical evidence and the appellant has failed to produce any evidence for his false implication in the present case by letting off the real culprit.
11. Learned State counsel also adopts the same arguments advanced by the learned counsel for the complainant.
12. I have heard the learned counsel for the parties and also perused the record with due care and caution.
13. Both the eye-witnesses P.W.5 Muhammad Khan and P.W.6 Muhammad Umar admittedly are the real brothers of the deceased and their statements cannot be relied upon merely on the ground that they had no enmity to falsely implicate the appellant. They have to establish that they were present at the spot and had witnessed the occurrence. I am convinced by the arguments of the learned counsel for the appellant that the deceased and the witnesses were not going to their routine work while passing through the place of occurrence and how the appellant came to know that the deceased alongwith the witnesses at 4-30 a.m. Was going to see their sister or presumed that the deceased would sit near the wall of graveyard for urinating where he was hiding in order to cause injury to the deceased. The presence of the witnesses of the place of occurrence is also doubtful as the ocular account was not supported by the medical evidence as only one fire-arm injury has been found on the front upper part of the left thigh 15 CM below the anterior superior iliac spine with inverted. Margins and according to the eye-witnesses the deceased after easing himself had stood up who was tightening his string when he was fired at and there was a wall in between both of them which was 3 or 4 feet in height. According to the story the deceased was wearing shalwar and kameez, but the doctor has categorically stated that no corresponding hole was found on the said shalwar and kameez. Similarly, no blackening was found on the injuries by the doctor.
14. It is strange that the injury was on the non-vital part of the body and even according to the eye- witnesses the deceased died after 15/20 minutes whereas according to the doctor the time between death and injury was one hour, but the eye-witnesses who were real brothers of the deceased while present at the time of occurrence has made no effort to shift him to the hospital or anywhere else to save his life and waited until he expired. It lends support to the defence version that it was an unseen occurrence and the witnesses were later on introduced by concocting a false story. The eye-witnesses failed to establish their presence at the place of occurrence alongwith the deceased as the purpose for their going together to see their ailing sister Aasia at such a time could not be proved at the trial or during the investigation.
15. The occurrence was allegedly committed at 4-30 a.m. And F.I.R. Was shown to be -promptly lodged at 6-30 a.m. Just within two hours but the post-mortem was conducted in the evening at 5-30 p.m. (after 13 hours of the occurrence). P.W.9 Dr. Muhammad Yusuf Nadeem during cross- examination admitted that in the column of death of P.M.. Report (Exh.P-J), the time of death was subsequently changed. Even otherwise admittedly the place of occurrence was located within the thickly-populated area consisting of 2000-3000 people and according to the complainant himself 20/25 persons had attracted to spot just after the occurrence, but none of them was produced at the trial or joined in the investigation to establish the presence of the eye-witnesses at the time of occurrence. Even Khizar Hayat in front of whose house the occurrence had allegedly taken place was nor joined in the investigation. Hence it can be easily inferred that it was an Unseen occurrence.
16. It is also worth-mentioning that P.W.8 Muhammad Ameer Abdullah Niazi, Inspector during cross- examination was specifically questioned that whether he had declared the appellant as innocent during the investigation according to Zimni No.25 recorded on 21-6-1991 had denied this suggestion. However, when this witness was re-called on 25-5-1992 had admitted that on 21-6-1991 during the investigation many people appeared to verify that it was a blind murder, but he (P.W.8) did not agree with them, that it was a blind murder. It is well-settled law that the Court can peruse the case diaries if need be so to find out the truth. Hence I have myself seen the said case diary and found that the reply made by P.W.8 was totally incorrect and false as he had himself found the case as doubtful. This Court is mindful that the opinion of the police is not binding on the Courts and it has only been taken under consideration as it finds support from the facts and circumstances of the case noted by this Court.
17. It is also pertinent to point out here that the empty was shown to be recovered from the place of occurrence according to the Investigating Officer, which was kept in Malkhana for about 17 days and then it was sent to the Forensic Science Laboratory. It has rightly been pointed out by the learned counsel for the appellant that it was a double barrel gun alleged to be used by the appellant, who had not repeated the fire according to the prosecution own case, hence there was no occasion for the appellant to expel the empty from the gun. Recovery of the gun was also doubtful as it was shown to be effected on the last day of his remand i.e. 15-6-1991 while the appellant was arrested on 1-6-1991 and only the police constable Naseer Ahmad P.W.4 was produced to prove the recovery alongwith P.W.8 Muhammad Ameer Abdullah Niazi, Inspector/Investigating Officer. There are also contradictions in the statements of both these recovery witnesses regarding the place from which the gun was retcred as according to P.W.4 Naseer Ahmad Head Constable it was recovered from Chak No.185-9-L, but according to P.W.8 Muhammad Ameer Abdullah Niazi, S.H.O/ Inspector it was recovered from the house where the appellant was residing alongwith his other relatives. Even otherwise, it was admitted fact that the place of recovery was surrounded by residential houses but no independent witness from the public was joined to prove the recovery from the appellant in violation of section 103, Cr.P.C. In such circumstances the evidence of recovery cannot be used as corroborate piece of evidence.
Moreover, the motive part has already been disbelieved by the learned trial Court on valid reasons.
18. For the foregoing reasons. I am of the considered view that the prosecution has failed to bring home guilt to the appellant beyond any shadow of doubt. It was in fact an unseen occurrence and the presence of the eye-witnesses at the time of occurrence was unbelievable. The recovery of empty from the place of occurrence and gun from the appellant has also become doubtful. The motive also Could not be proved. Hence this appeal is accepted, the impugned judgment of conviction and sentence is set aside and the appellant is acquitted of the charge. He is already on bail and his surety is discharged of the liability.
19. Resultantly, Crl. Revision No.219 of 1992 for enhancement of sentence having become infructuous is dismissed.