' MUHAMMAD FARRUKH MAHMUD, J.---This judgment will dispose of Criminal Appeal No,1860 of 2000 filed by Azhar, who was convicted and sentenced by the learned Sessions, Judge, Mandi Baha-ud- Din, vide his judgment dated 29-11-2000 as under:-- ' Death with compensation of Rs,50,000 or in default six months' S.I. Under section 302(a), P.P.C.
' Murder Reference No,763 of 2000 for confirmation or otherwise of death sentence of appellant shall also be replied through this single judgment.
2. Brief facts of the case as narrated in F.I.R: Exh.PE are that the complainant was resident of Village Aski and was a cultivator. On 13-7-1996 at 9-00 p.m. Sultan Mehmood nephew (Bhateja) of the complainant went out to ease himself. He had just gone in the street when Azhar son of Ali Bahadar armed with .12 bore gun single barrel, who had hidden himself in a vacant place, fired with his gun at Sultan Mehmood, which hit on front side of his head and nose. Azhar fired another shot which hit Sultan Mehmood on the back of his head, he fell down. The occurrence was witnessed by the complainant, Khalid Mehmood and Abdul Ghafoor. Azhar fled away from the spot while firing.
' The motive. Behind the occurrence was that about 1-1/2 months ago Sultan Mehmood and Azhar quarrelled with each other and Sultan Mehmood had beaten Azhar. Due to said grudge Azhar had fired at Sultan Mehmood with intention to murder him.
3. After registration of formal F.I.R., the investigation of the case was taken over by Muhammad Iqbal, A.S.-I./P.W.11. He proceeded to the place of occurrence. While he was on his way at Gohr Chowk, Kuthiala Sheikhan, Khalid Mehmood and Abdul Ghafoor P. Ws. Met him along with Sultan Mehmood injured. He prepared injury statement of Sultan Mehmood Exh.PK and sent him for medical aid/examination. Thereafter he reached the place of occurrence and took into possession blood-stained earth from the place where Sultan Mehmood was injured vide memo. Exh.PC. He also collected two empty cartridges P.3/1-3 from the spot and took the same into possession vide memo. Exh.PB. On 18-7-1996 after receipt of information about death of Sultan Mehmood he reached General Hospital, Lahore, and took over the dead body, prepared injury statement Exh.PH and inquest report Exh.P1. On 5-8-1996 he arrested Azharaccused. At the time of arrest Azharaccused was holding gun P.5 in his right hand. The gun was taken into possession vide memo. Exh.PD. After completion of investigation, the accused was sent up to face trial.
4. At the trial, the prosecution in order to prove its case produced .12 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.PP, Serologist Exh .
PP/1 and that of Forensic Science Laboratory Exh.PO closed its case. The accused in his statement recorded under section 342, Cr.P.C. Pleaded his innocence and false implication. He did not appear as witness under section 340(2), Cr.P.C. However, he produced Ashfaq Ahmad, Secretary Union Council Chak No,40, Mandi Baha-ud-Din and Mumtaz Hussain, Nikah Khawan, as D.W.1 and D.W.2 respectively. After conclusion of trial the appellant was convicted and sentenced as stated above.
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, the learned counsel for the appellant in support of this appeal submits that the prosecution case rests on chance witnesses, who could not explain their presence at the time of occurrence; that the story put forward by the prosecution is neither supported by the circumstances of the case nor corroborated by the recovery, as the crime empties recovered from the spot were not sent to the Laboratory; and that the prosecution also failed *to prove the motive set in the F.I.R.
6. Conversely, the learned counsel appearing on behalf of the State has argued that both the eye- witnesses have given confidence-inspiring account of theoccurrence and both of them had no or enmity against the appellant to involve him in a false case; that it was a case of single accused and substitution is a very rare phenomenon; that the ocular account is supported by the medical evidence and corroborated by the factum of prompt F.I.R. And motive; that the appellant has acted in a brutal manner and no mitigating circumstances existed in his favour; he supports the judgment passed by the learned trial Court. However, the learned counsel has submitted that provisions under section 302(a), P.P.C. Were not attracted and the conviction should have been recorded under section 302(b), P.P.C.
7. We have heard the learned counsel for the parties at length and gone through the record of the case.
8. The occurrence took place during night in an open street, which was 18 feet wide, at 9-00 p.m.
The matter was reported to the police after 1-1/2 hours, although distance between the spot and the police station was only 4-1/2 miles. The delay in lodging the F.I.R. has not been plausibly explained. According to F . I . R. , the deceased left his house in order to ease himself and had covered some distance in the street, when he was assaulted. Firstly there was no need to inform the complainant that he was going to ease himself and secondly there is no reason available on, record as to why the P. Ws. Followed him. Muhammad Noor Ullah is real uncle of the deceased. F.I.R.
Was recorded on his statement. If he would have been present there he would not leave Sultan Mehmood while he was severely injured and would have tried to save his life. During his statement before the learned trial Court he stated that when he was going back from the police station along with police towards the place of occurrence, he saw that Khalid Mehmood and Abdul Ghafoor P.Ws.
Were taking Sultan Mehmood in injured condition towards Hospital. As already noted above, the occurrence took place at 9-00 p.m. And the matter was reported to the police at 10-30 p.m. Some time must have been consumed in writing the statement of the complainant. According to the complainant, while he was returning from the police station along with police officials, he spotted that the deceased was being taken to the Hospital by Khalid Mehmood and Abdul Ghafoor P.Ws. It means that Sultan Mehmood remained unattended and without medical aid for more than an hour at the place of occurrence. It is also pertinent to note that Khalid Mehmood was not produced, while Abdul Ghafoor did not say a word that he and Khalid Mehmood were taking Sultan Mehmood to the Hospital when the police met them. Through Sajjad Hussain, Dispensar/P.W.10 Medico-legal Report of Sultan Mehmood Exh.PJ has been brought on record of the case. The report reveals Sultan Mehmood was brought to the Hospital by the police at 11-15 p.m. In column, where name of the relative or friend is mentioned, only 'Police' has been entered. According to report, Muhammad Hayat, Constable, had taken Sultan Mehmood to the Hospital. Except for the complainant no other witness has been produced in support of the motive. The complainant had stated that a quarrel had taken place 1-1/2/2 months prior to the occurrence. It is not mentioned anywhere as to what was behind the quarrel and what was the gravity of the quarrel. The relationship of the complainant party with the appellant was never mentioned in the F.I.R. During cross-examination firstly the complainant stated that Azhar was remotely related to him and had to confess that his father and grand-father of the appellant were real Chachazad (cousins) and Azhar used to come in his house as well as in the house of other relatives prior to the occurrence. However, he added that Azhar used to visit the house of Sultan Mehmood before the quarrel between them. It is also in evidence that Azhar lived in Chak No,13, District Sargodha and used to visit the Village of the complainant party off an on. There is no evidence as to how the appellant knew that at the fateful time the deceased would pass through the street. The assailant has chosen night to commit the offence and intended to hide his identity, so there was no need to fire at the deceased at the time when he was being followed by the witnesses, including complainant who knew the assailant very well. The deceased was not going towards his house he was going out of his house and the assailant could easily take life of the deceased in some dark side of the street or at deserted place where the deceased intended to ease himself. In the above noted circumstances we are of the considered opinion that it was an unwitnessed occurrence and the appellant was roped in this case merely on suspicion.
9. As far as confirmatory evidence is concerned, the medical evidence supports the prosecution case to the extent that the deceased received injuries but it does not lead to the assailant. Similarly the alleged recovery at the instance of the appellant also does not advance the case of the prosecution as the two empties, which according to the Investigating Officer were recovered from the spot, were never sent to the Forensic Science Laboratory. As far as the abscondence of the appellant is concerned, it could be considered as corroboratory circumstances against the appellant in case the ocular evidence was believed. No conviction can be recorded on abscondence alone. One doubt genuinely arising out of the circumstances would be enough to record acquittal of the accused while instant prosecution case is replete with doubts. Hence, while extending the benefit of doubt to the appellant, we allow this appeal, set aside the impugned judgment and acquit the appellant from all the charges. He be released from Jail forthwith, if not required in any other case..
10. Murder Reference is answered in the negative. Death sentence is not confirmed.