This appeal is directed against the judgment, dated 28-10-2003 passed by the learned Additional Sessions Judge, Bhakkar, whereby having tried the appellant in the case registered vide F.I.R. No,7, dated 14-1-2003 under section 302/34, P.P.C. Police Station Mankera, District Bhakkar, he was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life with a compensation of Rs,50,000 to be paid to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. in default whereof to further undergo R.I. for six months. Benefit of section 382-B, Cr.P.C. was extended to him.
2. The prosecution story, as unfolded through F.I.R. (Exh.P.F./1) registered on the statement of the complainant Akbar Ali, briefly stated is that his son Abdul Sattar had been serving as Salesman at Sajid Afridi Petroleum Service Chak No,70-A/ML for the last 6 months and had been performing duties mostly at night; that on 13-1-2003 he went to perform the duties, as usual; that early in the morning next day at about 6-00 a.m. information was received by him through Mushtaq Jatt that his said son had fired upon himself at 2-00 night and had consequently died; that the complainant stated that after getting this information, he rushed to the place of the occurrence along with his son Zulfiqar and Faqir Muhammad P.Ws. that he found an injury on the chest of the deceased and also on the little finger and its adjacent finger of the right hand; that he clarified to the police that his said son had not committed suicide and that Mumtaz Ahmad Munish and Aqal Zaman Gunman of the said petrol pump had killed his son in-question by firing.
3. After having completed legal formalities and having completed investigation of the case, the police submitted challan against the accused (i,e, both the above mentioned accused) to face trial before the learned Court of competent jurisdiction, where, in order to prove its case, the prosecution examined 12 witnesses including the doctor and the Investigating Officer.
4. The accused, when examined under section 342,Cr.P.C. denied the prosecution case and attributed involvement to false implication and claimed trial.
5. Learned counsel for the appellant, in support of this appeal, submitted that both the eye- witnesses i,e, Muhammad Akram (P.W.8) and Kala Khan (P.W.9) are chance and cooked up witnesses as the occurrence allegedly took place on 14-1-2003 but both of them appeared before the police on 18-1-2003; that during the interregnum they neither informed the police nor brought it to the notice of the complainant; that the gun was recovered from co-accused Aqal Zaman but was not sent to the Fire-arms Expert; that conviction and sentence awarded to the appellant is against the weight of evidence on record; that the judgment of conviction has been passed on surmises and conjectures; that the prosecution has failed to prove its case against the appellant beyond an iota of doubt and that, in the afore-referred circumstances, after having accepted the appeal, appellant be acquitted from the case.
6. Learned counsel for the complainant, who has also filed Criminal Revision No,52 of 2004 for enhancement of the sentence awarded to the appellant, submits that the ocular account is corroborated by the medical evidence; that two eye-witnesses have fully supported the prosecution case; that the prosecution has proved its case against the appellant beyond a shadow of doubt and that he not only supports the impugned judgment but also prays for enhancement of the said judgment of conviction.
On the other hand, learned counsel for the State submits that there are legal infirmities in the impugned judgment; that both the eye-witnesses appeared before the police after four days of the occurrence and that he is not in a position to defend the impugned judgment of conviction.
7. I have heard learned counsel for the parties, have gone through the evidence with their able assistance and have also given anxious consideration to the submission made by the respective parties at the bar.
8. Occurrence in this case had taken place on the night of 13/14th January, 2003 at 2-00 a.m. matter was reported to the police by Akbar Ali complainant, who is also father of the deceased, on 14-1-2003 at 8-30 a.m. while formal F.I.R. was registered on the same day at 1-45 p.m. Complainant is not an eye-witness of the occurrence. He was informed by one Mushtaq Jatt about the same.
There are two eyewitnesses of the occurrence, namely, Muhammad Akram (P.W.8) and Kala Khan (P.W.9). Both of them appeared before the learned trial Court to make their statements. According to them, after the occurrence, they went to their houses, they did not inform the complainant or the police about the occurrence on the same date but appeared before the police on 18-1-2003 i,e, four days after the incident and too without any proper and plausible explanation. A minute scrutiny of the date on the statement of Muhammad Akram P.W. (Exh.D.B.) showed that the same has been tampered with while statement of Kala Khan is of dated 18-2-003 which is Exh.D.C. on the record. Even in the original police file position is the same. Complainant is Jatt by caste while there two eye-witnesses are also Jatt by caste. They are residents of 4-1/2 kilometers away from the place of occurrence. Their presence at the spot is doubtful. Akram P.W. had admitted during cross- examination that Sajid Afridi Petroleum Service is in fact place of occurrence but none from the said Petrol Pump was produced as an eye-witness. Presence of both the above eye-witnesses i,e, Muhammad Akram (P.W.8) and Kala Khan (P.W.9) is per chance and as per my firm view they were not present at the place of occurrence. Had they been there, they must have informed the police or the complainant about the occurrence in-question. No recovery was effected from the appellant.
So far as motive is concerned, the same was duly confronted. As far as P.W.12 Muhammad Ramzan S.-I. is concerned, he had stated during the course of cross-examination as under: --- "... It is correct that on 8-2-2003 I recorded a Zimini, giving the observations that the complainant neither nominated anybody as accused nor he produced any evidence against the accused. It is correct that on the basis of medical report, I had recorded my findings that the same negated the contents of the F.I.R. and that the contention of the accused taken as defence appeared to be plausible."
9. After having adjudged the case from every angle and having sifted grain from the chaff, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond a shadow of doubt. It is a settled principle of criminal jurisprudence that at first the prosecution has to prove its case against the accused to the hilt and if it fails to discharge its onus its benefit must go to the accused. Even otherwise, it is a case which is exaggerated one and, as discussed above, even tampering was made with the date of the statement of the prosecution witness recorded by the police just to fit in with the prosecution story. Both the prosecution witnesses have failed to establish their presence at the place of occurrence which further becomes doubtful by way of delayed recording of their statements by the police during which period, which is either four days or one month four days, they neither informed the complainant nor the police about such an important event. If they had actually seen the occurrence, their immediate and natural reaction would have been that they must have informed the complainant or the police about the same. In the afore-referred circumstances, the impugned judgment is set aside and the appellant is acquitted of the charge levelled against him. He is in jail and shall be released forthwith if not required to be detained in any other case. For reasons given above. Criminal Revision No,52 of 2004 has no merit which is hereby dismissed.