' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.583 of 2000 filed by Mutalli Khan appellant, who was convicted and sentenced by learned Additional Sessions Judge, Mandi Bahauddin vide his judgment, 'dated 19-4-2000 to death with the further direction to pay Rs.100,000 (one lac) as compensation to the legal heirs of the deceased or in default six months S.I. Under section 302 P.P.C.
' Murder Reference No.307 of 2000 for confirmation of death sentence or otherwise shall also be disposed of through this single judgment.
2. Brief facts of the case as disclosed by Ghulam Haider complainant are that on '5-12-1997 he had come to village Kot Sattar to see his real brother Ghulam Rasul (deceased). At about 7-00 p.m. He proceeded towards graveyard of the village after hearing the report of firing, when on the way his nephew Mukhtar Ahmad met him, who told him that he along with his father Ghulam Rasul and Nasir Ahmad was coming to their village from Hailan on a motorcycle and when they reached near ' the graveyard, they dropped Nisar Ahmad as he had to go to village Baghanwala. A few steps ahead a cycle was parked. In the light of the motorcycle, he saw accused Mutalli Khan armed with rifle standing there, who came to them and asked as to who they are. In the meanwhile, his father Ghulam Rasul alighted from the motorcycle, whereupon accused Mutalli Khan fired shot from his rifle upon his father Ghulam Rasul hitting him on his right leg. He fell down, who asked him to run away. In the meantime, accused Mutalli Khan fired second shot hitting his father on his neck and simultaneously he raised a Lalkara that the enemies have arrived, therefore, they should not be left alive. Whereafter, three unknown persons armed with fire-arm emerged from the bushes of the graveyard, who fired upon the complainant but he was saved by mere sheer of luck and he escaped himself by rushing towards the village on his motorcycle.
' Motive behind the occurrence was Soeni Khan brother of accused Mutalli Khan had proceeded abroad, where from he used to send money to Mutalli Khan. On his return Soeni Khan, who is real maternal uncle of the complainant demanded his money from the accused Mutalli Khan. He suspected that Soeni Khan is making demand for the return of . His money upon the instigation of Ghulam Rasul deceased, therefore, due to this annoyance Mutalli Khan accused and his three unknown companions in furtherance of their common object have murdered the deceased.
3. After registration of the formal F.I.R. Hakim Ali, S.-I. P.W.12 went to the place of occurrence, prepared injury statement Exh.PG and inquest report Exh.PH, inspected the place of occurrence, secured blood-stained earth vide memo. Exh.PD, on 5-3-1998 arrested Mutalli Khan accused, who on 17-3-1998 while in police custody got recovered 8 mm rifle, which was taken into possession vide memo. Ex. PE. After completion of remaining formal investigation the accused was challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 13 witnesses in all, thereafter, learned District Attorney tendered in evidence report of Chemical Examiner Exh.PM, that of the Serologist Exh.PN and closed the prosecution case, then, the statement of the appellant under section 342, Cr.P.C. Was recorded, in which he pleaded innocence.
5. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record, learned counsel for the appellant submits that occurrence having taken place in dark hours of night, it was not witnessed by anyone, the story to prove the presence of the witnesses at the spot has been concocted, Nisar P.W. Was resident of a place 3 miles away from the place of occurrence, complainant apart from being father of the deceased was residing at 18 miles away from the place of occurrence, the F.I.R.
Was recorded after due deliberation and consultation, the eyewitnesses are closely related to the deceased, no crime empty was recovered from the spot, there is clear conflict between ocular account and the medical evidence, the witnesses have made dishonest improvements inasmuch as they refused to accept involvement of deceased and his grandfather in a double murder case an that motive has also been disbelieved by the trial Court.
' It was submitted by learned counsel for the appellant that brother of Mutalli Khan, appellant had divorced Mst. Sardaran sister of the deceased and it was in the mind of the complainant party that it was the appellant who was instrumental in giving divorce to Mst. Sardaran.
' Concluding his submissions, learned counsel submitted that prosecution has miserably failed to prove its case against the appellant and he is entitled to acquittal.
6. Learned counsel for the State assisted by learned counsel for the complainant submitted that name of the appellant was given in the promptly lodged F.I.R., presence of the P. Ws. At the time and place of occurrence was natural and that the ocular account is fully corroborated by medical evidence. Further submitted that the appellant remained fugitive from law.
7. We have heard learned counsel for the parties and have gone through the evidence on record. In the instant case, two accused namely Mutalli and Nazir were tried by the trial Court. Nazir was not named in the F.I.R. And even no description of the said accused was given in the F.I.R. The occurrence took place at 7 p.m. On 5-12-1997. It was cold winter season and even time of Isha Prayer was before 7 p.m. The appellant according to complainant was identified in the light of motorcycle and admittedly no other source of light was there.
' Allegation against the appellant was that he fired two shots, which hit on right leg and neck of the deceased. In order to reach at a just conclusion, we may with advantage reproduce here the injuries observed by the doctor (P.W.11) who conducted post-mortem examination on the dead body of the deceased:-- "(1) 1 x 1 c.m. Lacerated wound with inverted edges on the lateral aspects of the right chest, 6 c.m.
From the right nipple.
(2) 2 x 2 c.m. Lacerated wound with inverted edges present on the front of the chest on left side, 12 c.m. Above left nipple.
(3) 7 x 7 c.m. Wound with averted edges present on the left side of the chest, 9 c.m. Above the left nipple.
(4) 3 x 3 c.m. Wound with averted edges, 18 c.m. Above the left nipple and 8 c.m., from the wound No.3.
(5) 7 x 8 c.m. Wound with averted edges on the right side of the neck, 4 c.m. Below the right ear.
(6) 4 x 3 c.m. Wound on the front of thigh, 4 c.m. Above the right knee joint with averted edges.
(7) 1 x 1 cm wound with inverted edges on the lateral side of right thigh, 12 c.m. Above the knee joint.
(8) 10 x 4 c.m. Crushing wound present on the right leg, interior aspect, 4 c.m. Below the right knee joint. Crushing muscles and fracture tibia and fibula bones."
' P.Ws. 5 and 9 respectively are closely related to the deceased inasmuch as Mukhtar P.W. Was maternal uncle of the deceased while Nisar Ahmad P.W. Was Phupizad of the deceased. No independent witness was cited or produced by the prosecution.
' A bare perusal of the above quoted injuries on the person of the deceased sufficiently demonstrates only Injuries Nos.5 and 6 were attributed to the appellant and those are exist wounds. Injuries Nos.1 and 2 are entry wounds, Injury No.3 is exist wound, Injury No.4 is entry and Injuries 7 and 8 are also entry wounds but none of these injuries were attributed either to the appellant or his acquitted co-accused. Such a glaring conflict cannot be reconciled without a pinch of salt. This negates presence of the P.Ws. At the spot. Had they been present at the spot, they must have not committed such a big mistake in explaining injuries on the person of the deceased caused by the appellant or his acquitted co-accused.
' A very important factor of the case is that according to case of the prosecution, the occurrence took place at 7 p.m. On 5-12-1997 and postmortem examination on the dead body of the deceased was conducted by Dr. Ijaz Ahmad (P.W.11) at 10-45 a.m. On 6-12-1997. The duration given by the doctor between the death and post-mortem examination was 26/27 hours while the duration if counted from the time of occurrence to the time of post-mortem examination that comes to 15 hours. This duration given by the doctor also does not fit iii with the time of occurrences alleged by the prosecution.
Mukhtar Ahmad and Nisar Ahmad No crime empty having been recovered from the spot is of no avail to the prosecution though while in custody the appellant got recovered rifle 8 MM, which was seized, vide memo. Exh.PE.
The motive set up by the prosecution was also disbelieved by the trial Court and rightly so.
The motive is disbelieved, there is glaring conflict between ocular account and the medical evidence, there is no report of the Fire-arms Expert as to matching of empty with the rifle recovered on the pointation of the appellant, nothing is left behind upon which conviction and sentence of the appellant can be maintained rather we are of the considered opinion that the prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt. So, while extending the benefit of doubt, we accept the appeal filed by convict appellant, set aside the conviction and sentence recorded against him by the trial Court and acquit him of the charge. The death sentence of Mutalli appellant is NOT confirmed and Murder Reference is replied in the NEGATIVE. The appellant is in jail. He shall be released forthwith if not required to be detained in any other case.