' This judgment will dispose of Criminal Appeal No.1291 of 2002 filed by Talib Hussain alias Goga appellant, who was convicted sentenced by learned Additional Sessions Judge, Sheikhupura vide his judgment dated 22-6-2002 to undergo Imprisonment for Life under section 302(b), P.P.C. With the further direction to pay Rs.50,000 as compensation to the legal heirs of the deceased or in default six months' R.I. With the benefit of section 382-B, Cr.P.C.
2. Brief facts of the case as disclosed by Safdar Mehmood complainant are that he along with his brother Khalid Musa (deceased), Shafqat Mahmood his brother and Muhammad Bashir was standing .In front of the house. The accused Goga armed with .244 bore rifle' Ashiq alias Ashi armed with .30 bore pistol, Razzaq alias Zakir armed with .244 bore rifle, Akhtar armed with .12 bore gun and Khan alias Khanu armed with Klashnikov came there and started firing. Khalid Musa was injured due to firing and fell down on the ground while P.Ws. Saved their lives after having laid themselves down on the ground. The accused persons fled away from the spot while making firing.
Khalid Musa was shifted to Civil Hospital in an injured condition where he succumbed to the injuries.
3. The allegation against Abdul Rehman and Munawar Hussain accused was that they along with their co-accused hatched conspiracy to commit the murder of Khalid Musa.
' The motive behind the occurrence was about 16/17 years prior to the instant murder Rehmat Ali father of Talib Hussain alias Goga and Ashiq alias Ashi accused was murdered by Amjad brother of the complainant who was later on acquitted from the said case. Another motive for the occurrence was that Khan alias Khanu (since murdered) was injured by the complainant party 20/22 years back in which they were also acquitted.
4. On 25-2-2001 Irshad Ali, S.-I. P.W.11 after receipt of information of the occurrence reached the emergency ward Civil Hospital, Sheikhupura, where he recorded the statement of Safdar Mahmood complainant Exh.P.F., the, thereafter, prepared injury statement Exh.P.J. And inquest report Exh.P.C., then, he arrived at the spot, inspected the same, prepared the site-plan without scale Exh.P.K., then.
He collected blood-stained earth through a cotton from the place of occurrence and took into possession vide memo. Exh.P.G. He also secured two crime empties P.3/1-2 of .244 bore rifle from the place of occurrence vide memo. Exh.P.H. He arrested Talib Hussain alias Goga, Ashiq Hussain alias Ashi, Razzaq Ahmad alias Zakir and Muhammad Akhtar on 29-3-2001. After completion of the remaining formal investigation, the accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 11 witnesses in all, thereafter, learned S.P.P. Tendered in evidence report of Chemical Examiner, Exh.P.L., report of Serologist Exh.P.M. And closed the prosecution case, then, the statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence.
6. Learned counsel for the appellant in support of this appeal submits that both the eye-witnesses, namely, Safdar Mehmood P.W.8 and Muhammad Bashir P.W.9 are closely related to the deceased, that Safdar Mehmood was real brother of the deceased while Muhammad Bashir was his maternal uncle, that Muhammad Bashir presence at the spot had been disbelieved by the learned trial Court, that an the same evidence Ashiq Hussain alias Ashi, Akhtar Hussain, Razzak alias Zakir have been acquitted by the learned trial Court while Khan Muhammad alias Khanu who was allegedly armed with Klashnikov was killed in police encounter, that co-accused, who were accused of abetment, namely, Abdul Rehman and Munawar Hussain have also been acquitted by the learned trial Court, that two crime empties marked as C.1 and C.2 were recovered from the spot but those were of 7.6 m.m., that there is no positive report of fire-arm expert, that no recovery was effected from the present appellant, that all the accused except pt Khan Muhammad alias Khanu were declared innocent by the police, that no specific injury was attributed to the present appellant and there was no independent corroboration to the statements of these interested witnesses. As far as, motive is concerned, learned counsel submits that two motives were mentioned in the F.I.R. And the recent motive was that Khan Muhammad alias Khanu was severely injured by the complainant party prior to the present occurrence. Concluding his arguments, learned counsel submits that case of the present appellant is on similar footing to those, who have been acquitted by the learned trial Court. He has also relied upon 2000 SCM R 1038 and 1999 SCM R 172.
7. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that 21 pages of cross-examination has been conducted on Safdar Mahmood complainant and learned defence counsel has himself brought on record presence of Safdar Mahmood complainant, that motive has been admitted by the defence in this case, that appellant was armed with .244 rifle and two crime empties of said rifle was recovered from the spot, that opinion of the police about the innocence of the present appellant is not binding on the Court, that it was a case of promptly lodged F.I.R. And there is an independent corroboration from the suggestion put by the learned defence counsel at page 17 of the statement of Safdar Mahmood complainant. They both support the judgment of the learned trial Court. Learned counsel for the complainant has relied upon PLD 2002 SC 643, 1999 PCr. IJ 1346, 1997 SCM R 1537, PLD 1958 SC 275, PLD 2002 SC 62, 2002 SCM R 20, 1997 SCM R 89 and PLD 2002 SC 62.
8. I have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. In the instant case, occurrence had taken place at 6-00 p.m. On 25-2-2001 after Mughrab prayer, complaint was made to the police on the same day at 7-00 p.m., it was not a case where the F.I.R. Was lodged at the Police Station but outside the Police Station. Five accused were named in the . F .I.R. Including the present appellant. Namely. Ashiq alias Ashi armed with .30 bore pistol, Razzaq alias Zakir armed with .244 bore rifle, Akhtar armed with .12 bore gun, Khan Muhammad alias Khanu armed with Klashnikov, who was later on, killed in police encounter.
On the same evidence Ashiq alias Ashi, Razzaq alias Zakir and Akhtar have been acquitted by the learned trial Court, who were allegedly present at the spot and fired at the deceased along with present appellant while Abdul Rehman and Munawar Hussain who were accused of .Abetment were also acquitted by the learned trial Court. Two eye-witnesses, namely, Safdar Mahmood complainant P.W.8 and Muhammad Bashir P.W.9 have been produced by the prosecution. Safdar Mahmood complainant is the real brother of the deceased while Muhammad Bashir is maternal uncle.Of the deceased. The learned trial Court has disbelieved the presence of MuharAmad Bashir P.W.9. Now Court has to see whether there is any independent corroboration to the statement of Safdar Mahmood complainant in order to maintain the conviction of the appellant, in my considered opinion, the answer is in negative for the reasons that no specific injury was attributed to any of the accused including the present appellant. Two crime empties recovered from the spot has no evidentiary value because no recovery was effected from the present appellant.
Moreover, all the accused including the present appellant except Khan Muhammad alias Khanu, who was later on killed in police encounter were found innocent by the police during the course of investigation and police came to the conclusion that it was Khan Muhammad alias Khanu who was the main accused in this case. To maintain a conviction on a capital charge, evidence must have come from an unimpeachable source, which is lacking in the instant case and the Court is of the opinion that the witness who has appeared as an eye-witness has made a true statement. As far as, acquitted accused is concerned, against them Criminal Appeal No.1288 of 2002 was filed before this Court which was dismissed in limine. As far as, motive is concerned, two motives were given in the F.I.R. Amjad brother of Khalid Musa deceased killed Rehmat Ali Virk, father of the present appellant and Ashiq Hussain alias Ashi acquitted co-accused. The immediate motive was that the complainant party has seriously injured Khan Muhammad alias Khanu accused killed later on in police encounter. In long 16/17 years from the side of the accused/appellant nobody has touched Khalid Musa, Amjad and Safdar Mahmood complainant. Ashiq Hussain alias Ashi who was real brother of the present appellant has also the same motive but the learned trial Court has acquitted him. Razzaq alias Zakir who was armed with .244 bore rifle has also been acquitted by the learned trial Court, so in my considered opinion, there is no independent corroboration to the statement of Safdar Mahmood complainant to maintain the conviction of the appellant.
9. Ater having heard the learned counsel for the parties and going through the record I am of the considered opinion that prosecution has failed to prove its case against the appellant beyond any shadow of doubt, therefore, this appeal filed by the appellant is accepted. The conviction and sentence recorded against him by the learned trial Court is set aside. He is in jail and shall be released forthwith if not required to be detained in any other case.