Kh. Muhammad Sharif, J.--This judgment will dispose of Criminal Appeal No, 601 of 2000 filed by Altaf Ahmad, appellant who was convicted under Section 302(b) PPC and sentenced to death with further direction to pay Rs, Two lacs as compensation, in default six months RI vide judgment dated 13.4.2000 passed by learned Additional Sessions Judge, Jhang.
Murder Reference No, 355 of 2000 for confirmation or otherwise of death sentence of conviction shall also be replied through this single judgment.
2. Occurrence in this case had taker. place 11.30 a.m. on 20.6.1998 within the revenue estate of Chand Bharwana at a distance of 4 kilometers from Police Station Massan, district Jhang while the matter was reported to the Police at 11 a.m. on the same day by Mst. Kalsoom at Shahsharif Chowk Chand through written complaint Ex. PD/1 and formal FIR Ex. PD was recorded by Riaz Hussain, Head Constable at 11.30 a.m.
3. Briefly stated the facts of the case are that on 20.6.1998 at about 9.30 a.m., Mst. Kalsoom alongwith her real brother Muhammad Ashraf went to adda Chund where both were attacked by Sarfraz armed with rifle, Mushtaq armed with 30-bore pistol, and Altaf also armed with 30-bore pistol. Sarfraz raised lalkara upon which Altaf fired three shorts simultaneously which hit on left cheek, left ear and chain towards right of Altaf Ahmad. Mushtaq accused also fired. Out of the shots fired by the accused, one hit on the right thigh of Juma Khan, a passerby. The occurrence was allegedly witnessed by complainant, Mushtaq and Muhammad Khan, apart from others. Gul Muhammad and Aftab son of Gul Muhammad along with Mumtaz were named as accused of abetment.
The motive alleged was previous enmity of murders.
3. Initially, Muhammad Anwar, SI (CW.5) took over the investigation. He, after sending the complaint to Police Station for registration of formal FIR, went to the place of occurrence, took into possession the blood-staineded earth vide memo Ex. PQ, also took into possession three crime empties from the spot vide memo Ex. PR, prepared injury statement (Ex. PG) and inquest report (Ex. PH) of the deceased, also prepared rough site-plan, took into possession the blood-staineded clothes of the deceased vide memo Ex. PK, recorded statements of the witnesses, searched for the accused and then the investigation was taken over by Muhammad Abid SI/SHO (CW.1). He on 13.7.1997 arrested Altaf Ahmad accused and the accused while in custody on 16.7.1997 got recovered a .30-bore pistol recovered which was secured vide memo Ex. PP. After completion of usual investigation, only Altaf Ahmad was challaned while Aftab, Muhstaq, Gul Muhammad, Mumtaz Ahmad and Sarfraz were found to be innocent.
Feeling aggrieved with the result of investigation carried out by the Police, Mst. Kalsoom filed a private complaint. In the inquiry under Section 202 Cr.P.C. the learned Magistrate opined that no case was made out against any accused except Altaf Ahmad. Accordingly, he was summoned by the learned trial Court.
4. At the trial, prosecution in order to prove its case produced eight PWs and five were examined as Court witnesses. The accused in his statement under Section 342 Cr.P.C. pleaded false implication.
After conclusion of the trial, Altaf was convicted and sentenced as stated above.
5. Learned counsel for the appellant submitted that Mst. Kalsoom, complainant was real sister of deceased Muhammad Ashraf, she was not the resident of place of occurrence, she was resident of Chak No, 232/GB which was at a distance of 20/25 miles from the place of occurrence, Mushtaq son of Muhammad Khan and Muhammad Amir son of Amir and one Juma Khan, an injured where mentioned as eye-witnesses in the FIR but they were not so mentioned in the complaint filed by Kalsoom on 16.3.1998, Mushtaq Ahmad and Juma Khan appeared before the trial Court as CWS. 3 and 4 and exonerated the present appellant, in the private complaint one Ghulam Haider was introduced as an eye-witness whose statement was recorded by the trial Court one year after the occurrence, the name of Ghulam Haider (PW.3) was not mentioned in the FIR, Mst. Kalsoom appeared as PW.2, she was an interested witness and that there is no independent corroboration of her statement. He further submitted that both the parties are inimical towards each other and Mst. Kalsoom is a regular witness in every case in which the convict appellant or any of his relative is an accused. He has drawn out attention to Ex. PB.
As far as positive report of the Fire-arms is concerned, learned counsel submitted that three crime empties were taken into possession from the spot on 20.6.1997, the appellant was arrested on 13.7.1997 and he on 16.7.1997 got recovered the pistol P.5 but the crime empties alongwith pistol P.5 were sent to the Fire-arms Expert together on 23.8.1997, hence positive report Ex. PN of the Fire-arms Expert is no avail to the prosecution It was lastly submitted by learned counsel that in the private complaint filed by Mst. Kalsoom, five co accused of the convict were not summoned by the trial Courts but no petition for leave to appeal was filed before this Court.
6. Learned counsel for the State assisted by learned counsel for the complainant submitted that it was broad day light occurrence, parties were known to each other so there was no question of mistaken identity, ocular account is fully supported by medical evidence and that the accused by exercising their influence has won over the witnesses.
7. We have heard learned counsel for the parties and have gone through the evidence on record.
In the instant case, the occurrence had taken place at 9.30 a.m. on 20.6.1997 within the jurisdiction of Police Station Massan while the matter was reported to the Police by Mst. Kalsoom at adda Shahsharif chowk, Chund, outside the police station while the formal FIR Ex. PD was recorded at 11.30 a.m., the same day. The deceased was Muhammad Ashraf, real brother of Mst. Kalsoom, the complainant while one Juma Khan was injured. Besides herself, Mst. Kalsoom, mentioned Musl-taq son of Muhammad Khan and Muhammad Khan son of Amir and Juma Khan (injured) as eye- witnesses of the occurrence. She in the private complaint which was filed on 16.3.1998, she introduced Ghulam Haider and one Ahmad son of Shandat as eye-witnesses. In the complaint case, six persons were arrayed as accused. Out of them, five were not even summoned by the trial Court to face the trial. The complainant did not challenge the order of not summoning the accused of the private complaint before this Court.
Before the trial Court, Ghulam Haider appeared as PW.3 while Mst. Kalsoom as PW.2. During her cross-examination it came on record that there existed enmity between the appellant and Mst.
Kalsoom. She was not the resident of Chund Bharwana of Police Station Massan but was resident of Chak No, 232/GB within the jurisdiction of Police Station Mochiwala, district Jhang. Although a suggestion was put to her that her residence was 50 miles away from the place of occurrence but she admitted that it was 20/25 miles from the place of occurrence. Mst. Kalsoom firstly had gone to the house of her brother and from there she went to the house of some person for condolence whose mother had died. Ex. PB is a FIR in which Sarfraz, (the accused of present complaint filed by Mst. Kalsoom) was accused of firing at Muhammad Abdullah. In the said FIR, Mst. Kalsoom was an eye-witness and the story alleged in that FIR (Ex. PB) was that the complainant alongwith Mst.
Kalsoom was going for qul khawani of mother of some known person. In the instant private complaint, Mst. Kalsoom also alleged that she alongwith his brother Muhammad Ashraf (deceased) was going for fateha khawanai of mother of one known person to Chak No, 232/GB. In our considered opinion Mst. Kalsoom becomes a witness in a case against the present accused party where there is no other witness available. We are not satisfied with the statement made by Mst. Kalsoom before the trial Court.
The most important witness in this case was Juma Khan who according to FIR, was injured. He while appearing as CW. 4 has fully exonerated the present appellant. He was cross examined by learned counsel for the complainant but nothing in favour of the prosecution could be brought on record.
Juma Khan (CW.4) deposed that a muffled face culprit fired at Muhammad Ashraf deceased.
Similaily, Mushtaq Ahmad while appearing as CW.3 deposed that he heard 3-4 fire shots but could not identify the culprit who was a person of long stature. In our considered opinion in fact Mushtaq and Juma Khan were the actual eye-witnesses but they were not produced by the prosecution but appeared as CWs.
So far as positive report of the Fire-arms (Ex. PN) is concerned, it is to be noted that the three crime empties were taken into possession from the spot, on 20.6.1997, the appellant was arrested on 13.7.1997 and he got recovered pistol P.5 on 16.7.1997 but the crime empties and the pistol P.5 were sent to the Fire-arms Expert together on 23.8.1997, so the wedding of empties with the fire-arm is of no avail to the prosecution and recovery loses its significance.
Having adjudged the case from all angles, we are of the views that Mst. Kalsoom being a chance witness, her presence at the spot was doubtful, Mushtaq and Juma Khan (injured) both being independent witnesses have fully exonerated the appellant and have narrated the actual story, merely on the basis of evidence of Ghulam Haider (PW.3) whose name was not stated in the FIR as an eye-witness, conviction on a capital charge without any independent corroboration cannot be maintained. Consequently, while granting the benefit of doubt, we accept the appeal filed by convict appellant and set aside the conviction and sentence recorded against him by the trial Court vide the impugned judgment and acquit him of the charge. The death sentence of Altaf Ahmad, appellant is not confirmed and Murder Reference is replied in the Negative.
The appellant is in jail. He shall be set at liberty if not required to be detained in any other case.