' KHAWAJA MUHAMMAD SHARIF, J.---This judgmentwill dispose of Criminal Appeal No,472 of 2001 filed by Ahmad Yar, appellant, who was convicted under section 302(b), P.P.C.And sentenced to death with further direction to pay Rs,50,000 compensation, in default six months' S.-I. The conviction and sentence was recorded vide judgment, dated 29-3-2001 rendered by learned Additional Sessions Judge,Sargodha.
' Murder Reference No,252 of 2001 for confirmation or otherwise of death sentence of convict appellant shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 5.30 p.m. On 2-12-1998 within the revenue estate of mauza Wajee which is at a distance of 4-1/2 kilometers from Police Station Miani while the matter was reported to the Police by Muhammad Iqbal on the same day and formal F.I.R. Exh.PH was recorded by Muhammad Anwer, S.-I. At 6.15 p.m. The same evening.
3. Briefly stated the facts of the case are that on 2-12-1998 at 5-00 p.m. Complainant Muhammad Iqbal along with Allah Bukhsh and Mazahar Iqbal was coming from this cattle-shed to his house; Ghulam Abbas, brother of the complainant was going 20 paces, ahead of him and when he reached near the sugarcane field of Muhammad Ayaz, accused Ahmad Yar armed with .12-bore gun emerged from the sugarcane field, raised Lalkara and fired a gun shot which hit on the right side of abdomen of Ghulam Abbas and he fell down. The complainant, due to fear went inside the sugarcane field when in the meanwhile accused Ahmad Yar reached near Ghulam Abbas and shouted and then Ahmad Yar fired shots which hit on the front side of his chest and face. The accused Ahmad Yar thereafter, fled away.
' The motive alleged was that Bashir Ahmad, father of accused Ahmad Yar was murdered 11/12 years prior to the occurrence and the complainant party was reported against and due to this grudge, Munawar, Sikandar, Hayat and Muhammad Hayat abetted Ahmad Yar to kill the deceased.
Muhammad Akram and Sardar Ali P.Ws. Allegedly heard this conspiracy.
4. Muhammad Sarwar, S.-I. P.W.12 took over the investigation. He went to the place of occurrence, prepared injury statement (Exh.PB), inquest report (Exh.PC) in respect of dead-body of Ghulam Abbas deceased, from the place of occurrence, took into possession the bloodstained earth vide memo. Exh.PI, recorded statements of the witnesses and on 18-12-1998 arrested accused Ahmad Yar who while in custody on 20-12-1998 got recovered .12-bore gun, P.4 which was taken into possession vide memo. Exh.PF. After completion of all formal investigation, accused Ahmad Yar was sent to face the trial while the names of Munawar, Sikandar and Hayat were placed in Column No,2 of the report under section 173, Cr.P.C.
5. At the trial, prosecution in order to prove its case produced 12 witnesses in all. The learned DDA tendered in evidence report of the Chemical Examiner (Exh.PJ), report of the Serologist (Exh.PK) 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 after having read the prosecution evidence and other material available on record submits that occurrence having taken place at 5.30 p.m. In the month of February, it was dark time and identity of the accused was not possible specially when the appellant had ambushed in a sugarcane field which was of more than a man's height. Further submits that both the eye-witnesses were alsoaccused of abetment of earlier murder case of father of the appellant but they were not even touched. According to learned counsel, had the eyewitnesses been present at the spot, they must have been attacked by the appellant.
' It is argued that there is conflict between ocular and the medical evidence inasmuch as according to eye-witnesses the appellant after coming out from the sugarcane field, reached near deceased and then fired but there is neither any blackening nor scorching around any of wounds on the person of the deceased. Next submits that though there were 26 injuries on the person of the deceased, but not a single crime empty was recovered from the spot so mere recovery of fire-arm on the pointation of the appellant is of no avail to the prosecution and as such was disbelieved by the Trial Court.
' Lastly submits that in fact the deceased was a person of bad character, womanizer inasmuch as had abducted one Mst. Nasim twice and was also involved in another abduction case. By submitting this, learned counsel submits that the deceased had many enemies so he might have been murdered by any of his enemy.
' Concluding his submissions, learned counsel submits that the prosecution has failed to prove its case against the appellant and entitled to acquittal.
7. The two learned counsel for the State submit that there were three murder in series; firstly brother-in-law of the deceased was murdered, secondly father of the appellant Ahmad Yar was murdered and it was now the turn of the appellant to commit the murder of deceased. Further submit that number of injuries on the person of the deceased are suggestive of the fact that how much the appellant was aggressed. According to learned counsel, it is the mind of the accused which way he reacts and to whom he chose to take the revenge. Add that both the parties being known to each other there was no question of mistaken identity. Lastly submit that statement of Patwari, P.W.7 is not a substantive piece of evidence and merely on the basis of his evidence, other confidence-inspiring evidence produced by the prosecution cannot be ruled out of consideration.
In nutshell, they both support the impugned judgment of Trial Court.
8. We have heard learned counsel for the parties at length and have gone through the evidence on record. In the instant case, the occurrence had taken place at 5.30 p.m. On 2-12-1998 and the matter was reported to the Police in the Police Station at 6.15 p.m., the same evening though distance between the place of occurrence and the Police Station is 4-1/2kilometers so it can be said to be a case of promptly lodged F.I.R. but it is not so rather it was -recorded after due deliberation and consultation as facts would reveal in the next paragraphs.
' The motive alleged by the prosecution behind the occurrence was that Ghulam Abbass deceased had murdered the son of appellant and the appellant in order to take the revenge of murder of his father, committed the occurrence. It is noteworthy that in the motive case, both the present eye- witnesses namely Muhammad Iqbal and Mazhar Iqbal (P.Ws. 10 and 11) were accused of abetment.
Had they been present, as alleged by the prosecution, they must have been fired at specially when there were 26 fire-arm injuries on the person of the deceased. So far as murder of father of deceased is concerned, the matter was compromised between the parties and the complainant while appearing as P.W.10 before the trial Court admitted in his cross-examination that 4/5 years prior to the instant occurrence, the appellant had joined the fateha khawani of his mother, hence the relations between the parties were not so strained as alleged by the prosecution.
' The time of occurrence is 5.30 p.m., and the month was of December. In the month of December, maghrab prayer time is 5 p.m. And at 5.30 p.m,.Sufficient dark takes over the light. At this stage, we may reproduce the cross-examination of Muhammad Nawaz, Patwari who appeared before the Trial Court as P.W.7:-- "The place where the deceased received the shot is on the Banna of the sugarcane field and the accused had fired at him from a distance of 3 karmas' from - inside the sugarcane crop. The sugarcane crop at that time was of more than a man height and the crop was very thick in the above field. There was no rasta (path) at the place of occurrence."
From a perusal of the above-quoted cross-examination of the P.W., it can safely- be concluded that it was not possible for the eyewitnesses to have seen the accused and also witnessed the occurrence.
26 Fire-arm injuries were found to be present on the person of the deceased but not a single crime empty was taken into possession from the spot, so this was the reason that the trial Court has disbelieved the recoveries and we also do the same.
' There is yet a big circumstances in favour of the appellant and that is that the appellant after coming out from the sugarcane field reached at the deceased and then fired but there was no blackening, scorching or burning around the wounds on the person of the deceased. It also proves that the eye-witnesses were not present at the spot and hadthey been present at the spot, they must have stated the correct distance between the deceased and the assailant.
' It has also come on record that the deceased was a womanizer and in the habit of abducting women inasmuch as abducted twice one Mst. Nasim. The deceased was also a heroin addict.
' Taking into consideration the above discussion and attending to the submissions made by learned counsel from both the sides, we are of the considered view that possibility of false implication of the appellant in this case cannot be ruled out and the doubts in this case are floating on the surface of the record. So while extending the benefit of doubt, we accept the appeal filed by the appellant, set aside conviction and sentence recorded against him vide impugned judgment of the Trial Court and acquit him of the charge. The death sentence of the appellant is NOT confirmed and Murder Reference is answered in the NEGATIVE.
' The appellant Ahmad Yar is in jail. He shall be released forthwith if not required to be detained in any other case.