KHAWAJA MUHAMMAD SHARIF, J. - This judgment will dispose of Criminal Appeal NO. 601 of 2000 filed by Altaf Ahmad, appellant who was convicted under section 302(b), PPC and sentenced to death with further direction to pay Rs. Two lac as compensation, in default six months R.I. Vide judgment dated 13.4.2000 passed by learned Additional Sessions Judge, Jhang.
Murder Reference No. 355 of 2000 for confirmation or otherwise of death sentence of convict shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 11.30 a.m. On 20.6.1998 within the Revenue estate of Chund Bharwana appellant distance of 4 kilometres from Police Station Massan, District Jhang while the matter was reported to the Police at 11 a.m. On the same day by Mst. Kalsoom at Shah Sharif Chowk Chund through written complaint Exh. PD/1 and formal F.I.R. Exh. PD was recorded by Riaz Hussain Head Constable at 11.30 p.m.
3. Briefly stated the facts of the case are that on 20.6.1998 at about 9.30 a.m., Mst. Kalsoom along with her real brother Muhammad Ashraf went to Adda Chund where both were attacked by Sarfraz armed with rifle, Mushtaq armed with .30-bore pistol, and Altaf also armed with .30 bore pistol.
Sarfraz raised Lalkara upon which Altaf fried three shots simultaneously which hit on left cheek, left ear- and chin towards right of Alaf Ahmad. Mushtar accused also fired. Out of the shots fired by the accused, one hit on the right thigh of Juma Khan, appellant passerby. The occurrence was allegedly witnessed by complainant, Mushtaq and Muhammad Khan, apart from others. Gul Muhammad and Aftab son of Gul Muhammad along with Mumtaz were named appellant accused of abetment.
The motive alleged was previous enmity of murders.
3-A. Initially, Muhammad Anwar, S.I. (C.W.5) took over the investigation. He, after sending the complaint to Police Station for registration of formal F.I.R., went to the p ace of occurrence, took into possession the blood-stained earth vide memo Exh. PQ also took into possession three Crime empties from the spot vide memo. Exh. PR, prepared injury statement (Exh. PG) and inquest report (Exh.PH) of t ie deceased, also prepared rough site-plan, took into possession the blood-stained clothes of the deceased vide nemo. Exh. PK, recorded statements of the witnesses, searched for the accused and then the investigation was taken over by Muhammad Abid, s.-I/S.H.O. (C.W.1). He on 13.7.1997 arrested Altaf Ahmad accused and the accused while in custody on 16.7.1997 got recovered appellant .30- bore pistol recovered which was secured vide memo. Exh. P. After completion of usual investigation, only Altaf Ahmad was challaned while Aftab, Mushtaq, Gul Muhammad, Mumtaz Ahmad and Sarfraz were found to be innocent.
Feeling aggrieved with the result of investigation carried out by the Police, Mst. Kalsoom filed appellant private complaint, In the inquiry under section 202, Cr.P.C, the learned Magistrate opined that no case was made out against any accused except Altaf Ahmad. Accordingly, he was summoned by the learned trial Court.
4. At the trial, prosecution in order to prove its case produced eight P.Ws, and five were examined as Court witnesses. The accused in his statement under section 342, Cr.P.C, pleaded false implication. After conclusion of the trial, Altaf was convicted and sentenced as stated above.
5. Learned counsel for the appellant submitted that Mst. Kalsoom, complainant was real sister of deceased Muhammad Ashraf, she was not the resident of place of occurrence, she was resident of Chak No. 232/GB which was at appellant distance of 20/25 miles from the place of occurrence, Mushtaq son of Muhammad Khan and Muhammad Amir son of Amir and one Juma Khan, an injured were mentioned as eye-witnesses in the F.I.R, but they were not so mentioned in the complaint filed by Kalsoom on 16.3.1998, Mushtaq Ahmad and Juma Khan appeared before the trial Court as C.Ws. 3 and 4 exonerated the present appellant, in the private complaint one Ghulam Haider was introduced as an eye-witness whose statement was recorded by the trial Court one year after the occurrence, the name of Ghulam Haider (P.W.3) was not mentioned in the F.I.R., Mst.
Kalsoom appeared as P.W. 2, she was an interested witness and that there is no independent corroboration of her statement. He further submitted that both the parties are inimical towards each other and Mst. Kalsoom is appellant regular witness in every case in which the convict appellant or any of his relative is an accused. He has drawn our attention to Exh. PB.
As far as positive report of the fire-arms is concerned, learned counsel submitted that three crime empties were taken into possession from the spot on 20.6.1997. The appellant was arrested on 13.7.1997 and he on 16.7.1997 got recovered the pistol P.5 but the crime empties along with pistol P.5 were sent to the Fire-arms Expert together on 23.8.1997, hence positive report Exh. PN of the Fire- arms Expert is of no avail to the prosecution.
It was lastly submitted by learned counsel that in the private complaint filed by Mst. Kalsoom five co accused of the convict were not summoned by the trial Court but no petition for leave to appeal was filed before this Court.
6. Learned counsel for the State assisted y learned counsel for the complainant submitted that it was broad-daylight occurrence, parties were known to each other so there was no question of mistaken identity, ocular account is fully supported by medical evidence and that the accused by exercising their influence has won over the witnesses.
7. We have heard learned counsel for the parties and have gone through the evidence on record, In the instant case, the occurrence had taken place at 9.30 a.m. On 20.6.1997 within the jurisdiction of Police Station Massan while the matter was reported to the Police by Mst. Kalsoom at Adda Shah Sharif Chowk, Chund, outside the Police Station while the formal F.I.R. Exh. Pd was recorded at 11.30 a.m., the same day. The deceased was Muhammad Ashraf, real brother of Mst. Kalsoom, the complainant while one Juma Khan was injured. Beside herself, Mst. Kalsoom, mentioned Mushtaq son of Muhammad Khan and Muhammad Khan son of Amir and Juma Khan (injured) as eye- witnesses of the occurrence. She in the private complaint which was filed on 16.3'1998, she introduced Ghulam Haider and one Ahmad son of Shahadat as eyewitnesses. In the complaint case, six persons were arrayed as accused. Out of them, five were not even summoned by the trial Court to face the trial. The complainant did not challenge the order of not summoning the accused of the private complaint before this Court.
Before the trial Court, Ghulam Haider appeared as P.W.3 while Mst. Kalsoom as P.W.
2. During her cross- examination it came on record that there existed enmity between the appellant and Mst.
Kalsoom. She was not the resident of chund Bharwana of Police Station Massan but was resident of Chak No. 232/GB within the jurisdiction of Police Station Mochiwala, District Jhang. Although appellant suggestion was put to her that her residence as 50 miles away from the place of occurrence but she admitted that it was 20/25 miles from the place of occurrence. Mst. Kalsoom firstly had gone to the house of her brother and from there she went to the house of some person for condolence whose mother had died. Ex. PB is appellant F.I.R, in which Sarfraz, (the accused of present complaint filed by Mst. Kalsoom) was accused of firing at Muhammad Abdullah. In the said F.I.R. Mst. Kalsoom was an eye-witness and the story alleged in that F.I.R. (Exh. PB) was that the complainant along with Mst. Kalsoom was going for Qul Khawani of mother of some known person, In the instant private complaint, Mst. Kalsoom also alleged that she along with this brother Muhammad Ashra (deceased) was going for Fateha Khawanai of mother of one known person to Chak NO. 232/GB. In out considered opinion Mst. Kalsoom becomes appellant witness in appellant case against the present accused party where there is no other witness available. We are not satisfied with the statement made by Mst. Kalsoom before the trial Court.
The most important witness in this case was Juma Khan who according to F.I.R., was injured. He while appearing as C.W. 4 has fully exonerated the present appellant. He was cross-examined by learned counsel for the complainant but nothing in favour of the prosecution could be brought on record. Juma Khan (C.W. 4) deposed that appellant muffled face culprit fired at Muhammad Ashraf deceased. Similarly, Mushtaq Ahmad while appearing as C.W. 3 deposed that he heard 3-4 fire shots but could not identify the culprit who was person of long stature, In our considered opinion in fact Mushtaq and Juma Khan were the actual eye-witnesses but they were not produced by the prosecution but appeared as C.Ws.
So far as positive report of the Fire-arms (Exh. PN) in concerned, it is to be noted that the three crime empties were taken into possession from the spot on 20.6.1997, the appellant was arrested on 13.7.1997 and he got recovered pistol P.5 on 16.7.1997 but the crime empties and the pistol P. 5 were sent to the Fire-arms Expert together on 23.8.1997, so, the wedding of empties with the fire- arm is of no avail to the prosecution and recovery loses its significance.
Having adjudged the case from all angles, we are of the views the Mst. Kalsoom being appellant chance witness, her presence at the spot was doubtful, Mushtaq and Juma Khan (injured) both being independent witnesses have fully exonerated the appellant and have narrated the actual story, merely on the basis of evidence of Ghulam Haider (P.W. 3) whose name was not stated in the F.I.R, as an eye-witness, conviction on appellant capital charge without any independent corroboration cannot be maintained. Consequently, while granting the benefit of doubt, we accept the appeal filed by convict appellant and set aside the conviction and sentence recorded against him by the trial Court vide the impugned judgment and acquit him of the charge. The death sentence of Altaf Ahmad, appellant is NOT confirmed and Murder Reference is replied in the NEGATIVE.
The appellant is in jail. He shall be set at liberty if not required to be detained in any other case.