Kh. Muhammad Sharif, J.--This judgment will dispose of Criminal Appeal No, 148 of 2000 filed by Zulifor Ali, appellant, who was convicted under Section 302(b) PPC and sentenced to death as also to undergo five years RI and to pay compensation to the tune of Rs, 30,000/-, in default nine months SI under Section 458 PPC. The conviction and sentence was recorded by learned Additional Sessions Judge, Sargodha vide judgment dated 19.1.2000.
Murder Reference No, 153 of 2000 for confirmation of otherwise of death sentence of convict appellant shall also be replied through this single judgment apart from the Criminal Revision No, 73 of 2000 filed by the complainant.
2. In the instant case, the occurrence had taken place at 8.45 p.m. on 8.12.1996 at a distance of four kilometers from Police Station Pul-II, Sargodha while the matter was reported to the Police by Safdar Ali complainant and the formal FIR Ex. PA was recorded by Abdul Ghaffar, ASI.
3. Briefly stated the facts of the case as disclosed in the FIR Ex. PA are that complainant Safdar Ali was residing in Ghani Park, Sargodha and his brother Naseer Ahmad was residing with his family at Chak No, 58/SB where Mst. Umatul Farooq was working as a school teacher in a middle school. At about evening time, the complainant alongwith children of Naseer ahmad was present in a room of the house when at about 8.45 p.m., Mst. Umatal Batool switched of the electric bulb installed in the courtyard of the house and came out of the room for wazoo and witnessed that a person armed with 30-bore pistol, wearing yellow colour clothes standing inside the courtyard under a tree. She raised alarm as a result whereof, Naseer A hmad came out of the room and on seeing him (Naseer) the person armed with a fire-arm ran towards the outer gate of the courtyard.
Naseer Ahmad and the complainant ran behind him and when Naseer tried to apprehend the .man armed with a fire-arm, he fired a shot, which hit Naseer on the left side of his abdomen. It was also alleged in the FIR, that the complainant had identified the culprit.
4. Abdul Ghaffar ASI (PW.10) took over the investigation. He went to the spot, prepared injury statement (Ex. PE), inquest report (Ex. PF) and from the spot, took into possession the blood stained earth vide memo Ex PB. During the course of investigation, Zulfiqar was suspected to be involved in the case. In the jail, Mr. Ashiq Hussain Randhawa, MIC, held identification parade. During physical remand, the accused got recovered 30-bore pistol P.1 that was taken into possession vide memo Ex. PG. After completion of the investigation, the accused Zulfiqar was challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 1.1 witnesses in all. Then the learned DDA tendered in evidence report of the Chemical Examiner (Ex. PL), report of the Forensic Science Laboratory (E x. PM) and closed the case of prosecution. The accused in his stateme nt recorded under Section 342 Cr.P.C. pleaded false implication and in l ds defence produced 3 DWs. After conclusion of the trial, the accused was convicted and sentenced as stated above.
6. Learned counsel for the appellant after having read the prosecution evidence submitted that it was an unwitnessed occurrence, there is clear conflict between ocular account and the medical evidence, two close relations of the complainant were produced as eye-witnesses, there was no evidence of last seen and that no crime empty was recovered from the spot. 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 complainant who has also filed criminal revision submitted that it is a case of promptly lodged FIR, two eye-witnesses have supported the case of prosecution on material points, it is a case of single accused so there was no question of substitution, according to the doctor the bullet had traveled downward and by implication Injury No, 10 is exit of injury No, 9, the deceased when fell down on the grounds woods were lying there and as a result of fall on the woods, he received contusions and abrasions, the appellant did not take any defence plea during the course of investigation, no evidence to prove the defence plea was proved by the appellant and that the prosecution has been successful in proving its case against the appellant.
8. Learned counsel for the State submitted that both the PWs had identified the appellant during Identification Parade held in jail, no question was put to PW.2 that the .appellant was not the accused who committed the murder, both the eye-witnesses are independent and that if the case of the prosecution is proved through ocular account, there is no need of any corroboration of medical evidence and conviction can be based on it.
9. We have heard learned counsel for the parties at length and have gone through the record. In the instant case, the occurrence had taken place at 8.45 p.m. on 8.12.1996 outside the house of the deceased in cold winter season. The complainant Safdar is real brother of the deceased and was resident of House No, 63-B, Ghani Park, Sirgodha. In the FIR, not only the name of the accused but his description was never mentioned.
The allegation levelled against the appellant was that the single shot fired by him landed into abdomen of the deceased, Dr. Muhammad Aslam (PW.3) who conducted post-mortem examination on the dead body of the deceased on 9.12.1996 observed the fire-arm injuries, one on the abdomen and one on the buttock of the deceased. There were eight other injuries on the person of the deceased with blunt weapon out of which four were contusions and four abrasions.
Nine injuries except that of abdomen were not mentioned in the FIR. In Column No, 12 of the inquest report, the Investigating Officer had mentioned only three injuries. Even the eyewitnesses have failed to explain the nine injuries on the person of the deceased, so there is glaring conflict between ocular account and the medical evidence. Learned counsel for the complainant laid much stress on the point that Injury No, 10 was exit wound but he failed to point out anything in this regard from the post-mortem report and statement of the doctor who conducted the post-mortem examination on the dead body of the deceased. It has come on record that the appellant and the deceased were resident of same village. Had the appellant committed the murder of the deceased, the complainant must have recognized him and given his name in the FIR. The conflict between ocular account and the medical evidence also lands support to the reality that the eye- witnesses were not present at the spot.
No motive whatsoever was mentioned in the FIR. No suspicion had been shown against anybody in the FIR.
It was the case of the prosecution that the appellant also fired in the air apart from the shot, which hit into abdomen of the deceased but no crime empty was recovered from the spot. Mere recovery of pistol, which was his licensed weapon, does not advance the case of prosecution any further.
The appellant while appearing before the Investigating Officer after his arrest claimed innocence and to prove his innocence, he produced 3 DWs.
Merely on the basis of appellant having been identified in the Identification Parada, conviction cannot be maintained in the absence of any other independent corroborative evidence against the appellant.
For what has been discussed above, we are satisfied in our mind that the prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt rather case of the prosecution is full of doubts. So, while extending the benefit of doubt, we accept the appeal, set aside the conviction and sentences recorded against the appellant by the trial Court and acquit him of the charge. The death sentence of the appellant is not confirmed and Murder Reference is relied in the Negative. Criminal Revision No, 73 of 2000 filed by the complainant is dismissed.
Zulifqar Ali appellant is in jail. He shall be released forthwith, if not required to be detained in any other case.