' SH. ABDUL RASHID, J.---Gulzar Ahmad son of Hayat Muhammad appellant along with his five other co-accused namely Muhammad Afzal, Asghar Ali, Shahid Mehmood, Hayat Muhaminid and Nazar Muhammad were tried in case F.I.R. No,206, dated 16-8-1995 under section 302/34, P.P.C. Of Police Station, Ladhey Wala Waraich, District Gujranwala and vide judgment, dated 16-12-2000 was convicted under section 302, P.P.C. And was sentenced to death and a fine of Rs,50,000 by Syed Iftikhar Hussain Shah, Judge Special Court constituted under the Suppression of Terrorist Activities Act, 1975, Gujranwala. The appellant has assailed his conviction and sentence through this Appeal No,1939 of 2000.
2. Briefly stated the facts of the prosecution case as set out in the F.I.R. Are that about 3 months prior to the occurrence Arshad son of Khushi Muhammad Caste Jat resident of village Dalo Khabeyki was murdered and the F.I.R. Was lodged against Anjum Navees Ahmad complainant of the case and his father Muhammad Ashraf deceased and five others. The complainant and his father Ashraf deceased were declared innocent and only Ansar brother of the complainant was challaned. On 16-8-1995 at about 1 p.m. The complainant along with his father Muhammad Ashraf deceased, Ghulam Mustafa son of Ehsan Ullah, Imran Ali son of Muhammad Ashiq were present at their Dera situated within the area of Khabbeyki. Muhammad Ashraf deceased was lying on a cot when all of a sudden Gulzar Ahmad appellant along with Muhammad Afzal, Asghar Ali armed with .222 rifles, Shahid Mehmood armed with .12 bore gun along with an unidentified culprit armed with .7 MM rifle who was driving the motorcycle came over to the Dera of the complainant. The appellant and his acquitted co-accused started firing at Muhammad Ashraf deceased with their respective weapons hitting him on different parts of the body who died at the spot. The complainant and his companion Ghulam Mustafa and Imran Ali while witnessing the occurrence saved themselves by concealing their person. The appellant along with his co-accused then ran away raising the Lalkaras. The occurrence had been committed by the appellant and his co- accused at the behest of Nazar Muhammad son of Noor Muhammad co-accused leaving the dead body at the spot. Anjum Navees Ahmad went to the Police Station, Ladhaywala Waraich, Farman Ali, S.-I. On narration of the complainant recorded F.I.R. Exh.P.E.. Which was read over to the complainant and he signed the same in token of its correctness. Farman Ali, S.-I. Then proceeded to the place of occurrence. He carried out the site inspection and prepared the site-plan Exh.P.F.
Without scale, of the place of occurrence. He recorded the statement of the P.Ws. Under section 161, Cr.P.C. Prepared the inquest report Exh.P.G. Injury statement of the deceased Exh.P.H. And drafted application for postmortem examination of the deceased Exh.P.K. He handed over the dead body of Muhammad Ashraf deceased to the Constables for transmission to the mortuary at D.H.Q. Hospital, Gujranwala. He took into possession blood-stained earth from the place of occurrence and made it into a sealed parcel vide memo. Exh.P.B. Attested by Ghulam Nabi and Ghulam Mustafa P.Ws.
3. Abdul Constable No,2072 and Muhammad Asim Constable No,714 escorted the dead body to the mortuary and produced it before Dr. Basharat Rasool who conducted its post-mortem examination on 17-8-1995. He found the following injuries on the dead body:---
(1) Fire-arm wound of entry 1/2 c.m. x 1/2 c.m. x going deep on the left side of chest. 10 c.m. From left nipple inward, 8 c.m. From midline with corresponding wound on the back of the left chest middle part 1-1/2 c.m. x 1-1/2 c.m. On measuring on exploration pleurae and left lung injured.
(2) Fire-arm wound of entry 1 c.m. x 1/2 c.m. Going deep on the left chest, lower part 9 c.m. From left nipple and 3-1/2 c.m. From midline with corresponding wound exit wound 2 c.m. x 1 c.m. On the outer and backside of the chest lower part. On dissection, right lung lower part injured, liver was injured, and diaphragm was injured.
(3) Fire-arm wound of entry 1/2 x 1/2 c.m. Going deep in the left hypoclendrium region, upper part, 13 c.m. From umbilicus, 4 c.m. From midline, on exploration exit wound on the outer side of the right abdomen upper part size 1/2 c.m. x 1 c.m. Corresponding to the entry wound, stomach, intestine, injured liver lower part injured.
(4) Fire-arm wound of entry 1/2 c.m. x 1/2 c.m. Going deep on the outer and middle of the left thigh, no exit wound on exploration, femur bone fractured, bullet was recovered, sealed signed and handed over to police, urinary bladder injured.
' Scalp, skull and vertebrae.
' Scalp, skull and vertebrae were healthy. Membrances, brain, 'spinal cord were healthy.
' Thorax ' Walls, ribs and cartilages, pleurae were found to be injured, right and left lungs were also injured.
Small intestines and their contents large intestine and their contents liver, spleen, bladders were found to be injured. Mouth, Pharynx, Oesphagus, Pancreas, Kidneys Organs of general external and internal were healthy.
' In the opinion of the Medical Officer the death had been caused by the fire-shot injuries which had led to extensive haemorrhage and shock which was sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was 3 to 8 minutes and between death and post-mortem examination was 12 to 24 hours. Exh.P.M. Is the correct carbon copy of the post-mortem report and P.M./1 is diagram showing the location of injuries, which are in his hand and signed by him.
4. After the post-mortem examination the stitched dead body along with police papers, last-worn clothes of the deceased viz., shirt P.1, Tehband P.2 and Salooka P.3 and a sealed phial Exh.P.4 were handed over to Muhammad Asim Constable who produced the same before the S.-I. Who took them into possession vide recovery memo. Exh.P.A. The said S.-I. Also got prepared site-plan of the place of occurrence Exh.P.C. And its copy Exh.P.C./1 from Masood Ahmad Bhatti Draftsman and gave his notes in read ink on the same. The S.I. Recorded the statement of all the P.Ws. Under section 161, Cr.P.C. He delivered the sealed parcel to Moharrir for safe custody in the Malkhana. On 22-8-1995 Asghar Afzal, Shahid Mehmood, Nazar Muhammad and Hayat Muhammad accused appeared before him but he postponed their arrest. He searched for Gulzar Ahmad accused (appellant) who could not be traced as he had absconded and then he got issued proclamation under sections 87 and 88, Cr.P.C. Against him. In his investigation he found that except appellant, all other remaining accused were innocent. Subsequently the investigation of this case was entrusted to Nazir Ahmad D.S.P. Who also found that all the co-accused except Gulzar Ahmad were innocent in the occurrence.
5. On 20-8-1999 while appellant was present at his Dera Nasir Khan, A.S.-I. Arrested him. At the time of his arrest the appellant was holding a rifle .222 which was taken into possession vide memo.
Exh.P.D. Upon completion of the investigation, in the initial report under section 173, Cr.P.C. All the five co-accused were shown in Column No,2 and the appellant was shown as an absconder and upon his arrest the challan against the appellant was also submitted.
6. The absconder co-accused (appellant) was also summoned to face trial along with other (acquitted) accused and charge under sections 302/34/109, P.P.C. Was framed against them, which, was read out and explained to them to which they pleaded not guilty and claimed to be tried.
7. The prosecution had produced Muhammad Aslam, P.W.1, Imran Ali (eye-witness) P.W.2, Ata Ullah P.W.3, Muhammad Asim Constable P.W.4, Masood Ahmad Bhatti, Draftsman P.W.5, Nasir Khan, A.S.-I.
Investigating Officer P.W.6, Farman Ali, S.-I. Investigating Officer P.W.7. Muhammad Anwar, A.S.-I., P.W.8., Dr. Basharat Rasool Ghuman, P.W.9 and Nasir Khan, A.S.-I. P.W.10. All the remaining P.Ws. Were given up and the Special Public Prosecutor tendered report of Serologist Exh.P.O. And that of Forensic Science Laboratory Exh.P.P. And closed the prosecution case.
8. Thereafter the statements of all the accused under section 342, Cr.P.C. Without oath were recorded and all the incriminating evidence was put, to them, which they refuted and they pleaded that the occurrence was unwitnessed and that they had been falsely implicated on account of deep-rooted enmity and suspicion. They produced Nazir Ahmad, D.S.P. Saddar Gujrat, who investigated this case as D.W.1 and then statement of Muhammad Afzal accused without oath was recorded. The copies of F.I.Rs, and various other documents showing their criminal litigation with the complainant party had been produced. Upon conclusion of the trial the appellant had been sentenced to death and fine of Rs, 50,000 whereas all his co-accused had been acquitted of the charges. Feeling aggrieved by the conviction and sentence the appellant has filed this appeal.
9. The learned counsel for the appellant has mainly argued that Imran Ali, P.W.2 in his evidence had attributed the role of firing to the appellant along with his other four co-accused namely Afzal, Asghar Ali, Shahid Mehmood and Hayat Muhammad and their role is of identical nature and cannot be distinguished and that when other co-accused have been acquitted, the appellant on the basis of the same evidence could not be convicted. It is further contended that there is no other corroborative evidence available against the appellant to distinguish his case from his other co- accused and that the same motive and enmity exists on the part of the appellant which existed on the part of the acquitted co-accused. It is further contended that the learned trial Court has erred in law while partly believing the ocular testimony of Imran Ali, the solitary eye-witness, who had been produced by the prosecution without any other corroborative evidence.
10. The prosecution case mainly hinges on the testimony of Imran Ali P.W.2 who had been produced as sole eye-witness of the occurrence. Anjum Navees complainant of this case had been murdered prior to the holding of the trial. The other two P.Ws. Namely Ghulam Mustafa had been given up. Imran Ali, P.W.2 in his evidence stated that on 18-8-1995 at about 1 p.m. He along with Ghulam Mustafa, Muhammad Ashraf (deceased) and Anjum Navees complainant of this case were present at the Dera of the deceased in village Dalo Khabbeyki at Nawan Khooh where Ashraf deceased was lying on a cot. Gulzar Ahmad (appellant). Afzal and Asghar Ali co-accused while armed with .222 rifles and one unknown person armed with .7 MM rifle, Shahid Mehmood armed with .12 bore gun came over there. The unknown accused was on Motorcycle. All the accused fired at Muhammad Ashraf deceased which hit him on different parts of his body who died at the spot.
He and Ghulam Mustafa P.Ws. Saved their lives by hiding themselves in nearby garage. The accused decamped while resorting to aerial firing. This P.W. Admitted in his cross-examination that he was a resident of village Arthly Virkan which is at a distance of 80 Kms. From the place of occurrence and that he was on visiting terms with the deceased and the complainant party and on the day of occurrence he was present in village Dalo Khabbeki. He also admitted that the accused were not known to him previously. Neither Mustafa nor Anjum Navees (complainant deceased) told him about the names and addresses of the accused. He further stated that he used to visit village Dalo Khabbeyyki causally, therefore, he had the knowledge of the names of the accused and that he came to village Dalo Khabbeyki a day before the occurrence at 10 a.m. And that he had a quarrel in his village about which he came to inform Muhammad Ashraf deceased to seek his help who had promised to accompany him in the next morning, that his younger brother had a quarrel with the son of a Chaudhry whose name he did not know. Thus according to this P.W.
His brother had a quarrel with son of a Chaudhry and he did not know the name of the person with whom his younger brother had a quarrel and he went to the place of occurrence covering 80 Kms.
In quest of help of the deceased. This version does not appeal to reason and makes his presence at the scene of occurrence highly improbable. The accused according to him were 5 in number and were armed with fire-arms and they did not fire at him or cause him any injury which goes to imply that the accused despite having the capability to fire at him did not do so and permitted him to become a witness against them. Even if his presence is admitted at the place of occurrence for the sake of arguments, still he is a chance witness and there is no other independent corroboration of his testimony. He had attributed the same role to the appellant and as well as the acquitted co- accused. The case of the appellant according to his evidence is not distinguishable from the other acquitted co-accused who was found to be innocent in successive investigations and as well as by the trial Court also. This P.W. Is thus trying to implicate the innocent persons in a murder case and as such is not worthy of credence. The appellant no doubt absconded after the occurrence but he cannot be convicted alone on the basis of the absconcion. Therefore, the trial Court has erred in law in partly disbelieving the testimony of Imran Ali solitary eye-witness, against the acquitted co-accused and partly believing him against the appellant without any material corroboration. Case of the appellant is not distinguishable from his co-accused who has been acquitted.
11. Resultantly, by accepting this appeal we set aside the appellants conviction and sentence and acquit him of the charges. He is in jail, he be released forthwith if not required in any other case.