' KHAWAJA MUHAMMAD SHARIF, J.---this judgment will dispose of Criminal Appeal No.1956 of 2003 filed by Tahir Khan alias Niazi, appellant, who was convicted under section 302(b), P.P.C. And sentenced to death and to pay compensation to the tune of Rs. Two lacs, in 4fault six months S.I.
Also death and pay a fine of Rs.Two lac, in default five years R.I. Under section 7(a) of Anti-Terrorism Act, 1997. The conviction and sentence was recorded by Special Judge, Anti-Terrorism Court, Sargodha vide judgment, dated 29-10-2003.
' Murder Reference No. 42/T of 2003 for confirmation or otherwise of death sentence of convict shall also be replied through this single judgment.
2. In the instant case, the occurrence had taken place at 5-30 p.m. At a distance of four kilometres from Police Station City Mianwali while the matter was reported to the Police through written application Exh.PH by Sufi Muhammad Aslarn Khan and formal F.I.R. Exh.PHG/1 was recorded at 6-15 p.m. The same evening.
3. Briefly stated the facts of the case as disclosed in complaint Exh.PH are that on 7-9-2003, at about 11 a.m., when Nauman Khan, son of the complainant was at home, accused Tahir Khan came to the house of the complainant to call his son. Nauman Khan told his father complainant that Tahir Khan wanted to develop carnal relations with him so the complainant should advise him.
Upon this, the complainant entreated the accused Tahir and sent him back but did not disclose this matter to anyone. Thereafter, accused again came to house of the complainant at 5-30 p.m., rang the bell whereupon Nauman Khan came out of the house folloWed by the complainant. The accused wanted to take son of the complainant along with him and on refusal of Nauman the accused fired two successive shots with .30-bore pistol out of which one hit on the chin and other below the neck. Nauman ran towards the street whereupon accused fired two more shots. Nauman Khan fell down inside the gate.
4. Inspector Muhammad Nawaz Gondal (P. W.12) took up the investigation. He after registration of the case went to the hospital, inspected the dead body of the deceased, prepared injury statement (Exh.PE), inquest report (Exh.PF) and took into possession the blood-stained earth vide memo.
Exh.PA. On 14-9-2003, the accused was arrested who during the course of investigation, on 18-9- 2003, led to the recovery of Pistol P.1 which was taken into possession vide memo. Exh.PC. After completion of the investigation, the accused was challaned to face the trial.
5. At the trial, prosecution in order to prove its ease produced 12 witnesses in all. The learned D.A.A.
Tendered in evidence report of the Chemical Examiner (Exh.PJ) repo: f:.r the Serologist (Exh,PK) report of the Forensic Science Laboratory (Exh.PL) and closed the case of prosecution. The accused in his statement under section 342, Cr.P.C. Pleaded false implication. After conclusion of the trial, the accused was convicted and sentenced as stated above.
6. Learned counsel for the appellant submitted that there is glaring conflict between ocular account and the medical evidence; the alleged eye-witnesses were not present at the spot, the F.I.R. Was recorded after due deliberation and consultation, no crime empty was recovered from the spot and that the complainant party is so influential that though the case had no nexus with terrorist but the challan was put before the Special Court constituted under Anti-Terrorism Act, 1997. According to learned counsel, the prosecution has miserably failed to prove its case against the appellant and he is entitled to acquittal.
7. Learned counsel for the State assisted by learned counsel for the complainant submitted that appellant is named in the F.I.R., ocular account is fully corroborated by medical evidence, the occurrence had taken place in broad-daylight so there was no question of mistaken identity, no father would leave the actual culprit and involve an innocent person and it is a case of single accused.
' Much stress was laid by learned counsel for the complainant on the point that the case having no nexus with the terrorism, the jurisdiction of the Anti-Terrorist Court was barred and the case be remitted for trial by ordinary Sessions Court.
' We have heard learned counsel for the parties at length and have gone through the record with their able assistance. In the F.I.R., it was alleged as under:-- {{URDU TEXT}} ' The postmortem examination on the dead body of the deceased was conducted by Dr. Muhammad Rafique Khan and he found the following injuries on his person:-- "(1) A fire-arm would of entry 1/2 x 1/2 c.m. On the back of left chest, 5 c.m. From the middle line and '9 c.m. From the tip of left scapula. There was burning of edges with blackening of the area of wound.
(2) Fire-arm wound of exist of Injury No.1 just on the left sterno clavicular joint. It was 1/2 x 1/2 c.m.
The deformity showed the fracture of underlying bone.
(3) A grazing fire-arm wound 3 x 1/2 cm with burning of edges just below the chin."
' According to F.I.R., the first shot fired by the accused appellant hit on the chin of the deceased, which according to post-mortem examination of the deceased is a grazing fire-arm wound. The second fire hit below the neck of the deceased. There is no entry wound below the neck of the deceased. There is no mention of Injury No.3 in the F.I.R. Injury No.2 is exist of Injury No.l. In fact it was one shot. Moreover, injury No.1 is on the backside of the deceased, which made an exist, wound on the front side of neck of the deceased. This injury could not have been caused to a person who was in funning position. It could only have been caused when the deceased was lying on a cot or ground and fire is made from the side of legs. So there is a glaring conflict between ocular account and the medical evidence. This conflict also reflects upon the presence of eye-witnesses at the spot.
' According to opinion of the doctor who conducted post-mortem examination on the dead body of the deceased, the time between death and postmortem was 6/8 hours. It is settled proposition of medical jurisprudence that two hours margin can be given on either side. The occurrence had taken place at 5-30 p.m. It can be also at 7-30 p.m so the occurrence could have taken place in the dark hours of the night unwitnessed by anybody.
' The Explanation offered by learned counsel for the complainant that on seeing firing at his son, the father complainant was not in a fit frame of mind to give the seat of the injuries correctly is not plausible for the reason that the complainant attributed specific injuries to the accused on different parts of body of the deceased. Moreover, the complainant was also involved in a murder case, sentenced to 25 years and after 2-1/2 years came on parole and being teacher was imparting education.
No witness except the complainant stated about the motive. Even bare perusal of statement of the complainant regarding motive seems to be very unnatural and unbelievable.
' The F.I.R. Was recorded on 7-9-2003 and trial was concluded on 29-10-2003 within one month and 22 days of lodging the F.I.R. It has been conceded by learned counsel for the complainant that the occurrence had no nexus with the terrorism but in spite of that the challan was submitted before the special Court. The influence of the complainant party can be gathered from the following cross-examination of complainant while appearing as P.W.10:-- "Brigadier Sher Afghan son of Ahmad now posted in I.S.I. At Islamabad is my distant kinder."
' The influence of the complainant party is also reflected from the fact that the occurrence took place at 5-30 p.m. On 7-9-2003 and post-mortem examination on the dead body of the deceased was conducted at 1-05 (a.m.) Night) on 10-9-2003 in a district like Mianwali.
According to case of the prosecution, the occurrence had taken place in, the street, which is surrounded by houses, and in fact it was a congested Abadi but not a single witness from the locality was cited, or produced as a witness rather two very close related witnesses were produced to have witnessed the occurrence.
It was the case of prosecution that four shots were fired by the accused but not a single crime empty was recovered from the spot, so mere recovery of pistol on the pointation of the appellant does not render any help to case of the prosecution.
There being clear conflict between ocular account and the medical evidence, presence of the eye- witnesses at the spot being doubtful, no crime empty having been recovered from the spot, we are of the considered opinion that the case against the appellant is of doubtful nature. To err in acquittal is better than to err in conviction.
' It was also contended by learned counsel for the complainant that the case having no nexus with the terrorism, the Special Court lacked jurisdiction to hold the trial, as such the case may be remitted back to Sessions Court for retrial. This contention is misconceived because it was the complainant party who got the challan, put up before the Special Court and revision petition of the appellant was disposed of by a learned Division Bench of this Court on the ground that trial has commenced before the Special Court. Now, the complainant cannot take somersault and say that the Special Court had no jurisdiction to try the case. Secondly, when as has been stated above, that case of the prosecution is doubtful, no useful purpose will be served by sending the case back to the ordinary Court of Session which would amount not to prolong the agony of the appellant but also the complainant and the P.Ws.
' For what has been discussed above, we are of the considered opinion that the prosecution has 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 by the trial Court through the impugned judgment and acquit him of the charge. The death sentence of appellant is NOT confirmed and Murder Reference 'is replied in the NEGATIVE.