' KHAWAJA MUHAMMAD SHARIF, J.---This appeal is directed against the judgment dated 19-5-2004 passed by the learned Additional Sessions Judge, Sheikhupura, whereby, after having tried the appellants, they were convicted under section 302(b), P.P.C. Each and sentenced to imprisonment for life each with a further direction to pay a compensation of Rs.50,000 each to the legal heirs of the deceased under section 544-A, Cr.P.C. In default whereof to further undergo R.1. For six months.
Benefit of section 382-B, Cr.P.C. Was extended to the appellant Gulfam Rasheed. Criminal Revision No.622 of 2004 was filed by the complainant for enhancement of the conviction and sentence awarded to the appellants. Tamour Nawaz was acquitted from the case. C.P.S.L.A. No.57 of 2004 filed against the acquittal of Tamour Nawaz was dismissed by this Court vide order dated 17-9- 2004. Both these matters are being disposed of together through this single judgment.
2. Brief facts of the case, as given by the complainant in the complaint (Exh.PC) filed by Haji Almas Ali (P.W.3) are that on 24-10-1998 at about 12-05 a.m. (midnight) complainant along with his real brother Ayub and Arshad Ali were asleep in a room of the Haveli/Dera whereas deceased Bashir was sleeping in the courtyard, all of a sudden on the noise of firing complainant along with others got up, electric bulb was on, they saw appellant Gulfam Rasheed alias Gullu armed with .12 bore double barrel gun, Riaz armed with Kalashnikov, Babar Munir alias Bari armed with .244 bore rifle, Temour Nawaz armed with 8 MM rifle along with three unknown persons armed with fire-arms were standing by the cot of deceased Bashir, all the accused persons by firing with their respective weapons caused fire-arm injures to the deceased Bashir, being empty-handed and fear they did not step forward and the accused thereafter fled away, his brother Bashir succumbed to the injuries and the motive stated to be a previous quarrel.
3. All the above mentioned accused were summoned to face the trial in the private complaint case filed by the complainant, accused denied the charge and claimed trial, and before the learned trial Court the prosecution! In order to prove its case against the accused persons, produced four prosecution witnesses during the trial.
4. Learned counsel for the appellants in support of this appeal submits that there is a delay of 8-1/2 hours in lodging the F.I.R. Although, according to the complainant, he reached the police station after half an hour, distance between the police station and the place of occurrence is two miles and the time consumed was 40/45 minutes, the F.I.R. Was lodged on the written application but the complainant did not know who wrote the same, the F.I.R. Was recorded after due deliberations and consultations, there is a delay of more than 28 hours in conducting the post-mortem examination, there is no documentary proof to the effect that the doctor was not available during the said period, according to P.W.3 the dead body was dispatched at 11-00 a.m. On 24-10-1998 but according to C.W.1 the same was dispatched at evening time while the post-mortem examination was conducted on 25-10-1998 i.e. The next day, it was an unwitnessed occurrence which had taken place during dark hours of the night, it was unusual that the deceased was sleeping in the courtyard and too alone, P.W.4 has his own house at a distance of 1-1/2 acre, according to the prosecution witnesses both the eye-witnesses had seen the occurrence from the door but they did not raise hue and cry which is unnatural, according to F.I.R. Firing were made by the accused while standing by the cot of the deceased but the prosecution witnesses, to make the medical evidence in line with the ocular account, stated that the firing was made from a distance of 25/30 feet, there was no blackening or burning on the person of the deceased, only three missed cartridges were deposited in the Malkhana and no empty of Kalashinkov, 8 MM or .244 bore rifles were found in the Malkhana although those were alleged to have been taken into possession on the day of occurrence which were handed over to the police by the complainant, in Column No.12 of the Inquest Report there is no mention of empties or description Of weapons, C.W.1 who was first Investigating Officer and reached at the spot prepared rough site-plan but there is no name of accused or eye-witness, even there is no mention of the light in the first inspection note, the site- plan produced before the learned trial Court is Exh.P.J. Which is different from C.W. 1/1 and the site- plan was got prepared by the draftsman after 2-1/4 years of the occurrence.
' While advancing his arguments, learned counsel further contends that no evidence of quarrel has been produced by the prosecution, even no detail of quarrel was given during the course of investigation, according to the post-mortem report death was instantaneous but according to the complainant it took place at 5-00 a.m. As has been mentioned in Column No.3 of the inquest and postmortem reports, according to P.W.3, 12 shots were fired while there are 9 injuries only on the person of the deceased, the police did not find the prosecution case true, co-accused Temour was declared juvenile and was acquitted from the case, C.P.S.L.A. No.57 of 2004 filed against the acquittal of the said Temour Nawaz was dismissed by this Court vide order dated 17-9-2004, appellants case is at par with the said Temour, the complaint was filed after two years and two months of the occurrence, the prosecution has failed to prove its case against the appellants and that the appellants are entitled to acquittal by this Court because the prosecution has failed to discharge the burden on its shoulders. In support of the above submissions, learned counsel for the appellants has relied on Bashir Ahmad v. Muhammad Azam and another (PLD 1969 SC 469) and Shahbaz Khan Jakhrani v. Lal Beg Jakhrani and others (1984 SCM R 42).
5. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that CAW.3 Munir Ahmad is the real father of t1.1 accused Babar Munir while is the real uncle of Gulfam, Riaz and acquitted accused Temour, this C.W. Has admitted that Brig. Zulfiqar Dhilloon was his real brother who remained M.P.A. And M.N.A., it was due to his influence that the police did not investigate the matter honestly, the parties were known to each other prior to the occurrence and there was no question of mistaken identity, source of light has been mentioned in the F.I.R., no undue advantage was taken in the F.I.R. And role of general firing has been established and proved by the prosecution, Gulfam appellant remained absconder and was arrested after two years and four months after the occurrence, the police did not file challan for two years four months and thereafter the complainant was forced to file the private complaint in which appellants were summoned and convicted accordingly, the time and date of occurrence was not changed and has not even been disputed by the police, different type of weapons were used in the occurrence, the weapons and empties were taken into possession by the police but were not deposited in the Malkhana, in brief facts of the Inquest Report it has been mentioned that the death took place at 12-05 a.m. On 24-10- 1998 but in Column No.3 of the Inquest Report the Investigating Officer has given time of death as 5-00 a.m., there was no background of enmity between the parties and no question of mistaken identity or substitution arises, appellant Gulfam Rasheed was found guilty by the police and a .12 bore gun was recovered from him, due to dishonest investigation the prosecution case cannot be thrown away as opinion of the police is not binding on the Courts, there is no contradiction between the ocular account and the medical evidence, the prosecution has proved its case against the appellants beyond any shadow of doubt and that this appeal is liable to be dismissed.
Learned counsel for the complainant has relied on Farooq alias Farooqay v. The State (2003 SCM R 567), Allah Dad and others v. Muhammad Nawaz and others (2001 SCM R 1111), Muhammad Iqbal and others v. Muhammad Akram and another (1996 SCM R 908) and Muhammad Afzal and 2 others v. The State (2003 SCM R 1678). He lastly submitted that although co-accused Temour was acquitted by this Court yet the matter is pending before the august Supreme Court of Pakistan.
6. I have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.
7. The occurrence in this case had taken place on 24-10-1998 at 12-05 a.m., the matter was reported to the police at 8-30 a.m. i.e. 8-1/2 hours after the occurrence although the distance between the place of occurrence and the police station was two miles.
In all, four accused were named in the F.I.R., three are the present appellants while the fourth was Temour who was acquitted from by the learned trial Court through a separate judgment and C.P.S.L.A. Filed against the said judgment of acquittal was dismissed by this Court and two were shown as unknown persons. Motive behind the occurrence was stated to be the previous quarrel between the deceased and the present appellants but surprisingly neither the date nor the time or place of the said quarrel or the reason of quarrel was mentioned by the prosecution.
According to the recovery Memo of crime empties, 13 crime empties of Kalashnikov, 6 of .222 rifle, 5 of 8 MM rifle, 1 of .12 bore gun, 1 missed cartridge of .12 bore gun were taken into possession but no empty of either Kalashnikov or .222, 8 MM rifles were deposited in the Malkhana nor those were sent to the Fire- arms Expert, no weapon was recovered from the accused except a double barrel gun from Gulfam Rasheed appellant but there is no matching report in this regard, so, the recovery in question is of no help to the prosecution case.
' According to the F.I.R. The firing was made by the accused while standing close to the cot of the deceased but before the learned trial Court the eye-witnesses stated that the same was made from 25/30 feet in order to make the medical evidence in line with the ocular account because there was no burning or blackening on any of the injuries on the person of the deceased. This glaring contradiction cannot be overlooked benefit of which would go to the accused persons.
Even otherwise, the F.I.R. In question was lodged after eight and a half hours of the occurrence although according to him, the complainant had reached the police station within half an hour of the occurrence. Moreso, he could not tell the name of the police officer who wrote the application.
Furthermore, he made improvements qua the place of sleeping of the deceased and the eyewitnesses.
' There is another more salient feature Of this case i.e. The F.I.R. Was recorded on 24-10-1998 at 8-30 a.m. But the post-mortem examination was conducted on 25-10-1998 at 9-30 a.m. And the doctor had given the time between the death and the post-mortem examination as 24/28 hours.
According to the prosecution case, house of Ayub P.W. Is situated at a distance of 1-1/2 acre.
' In all the investigations, all the appellants except Gulfam were found innocent not only by the Investigating Officers but also by S.P. Ghulam Muhammad Kalayar (D.W.1) whose investigation was verified by the D.I.-G.Crimes. Although opinion of the police is not binding on the Courts but the facts remains that the occurrence had taken place during the dark hours of the night, it is a case of delayed F.I.R. And delayed postmortem, nothing was recovered from the appellants except from Gulfam and, according to Register No.19, the crime empties were neither deposited in the Malkhana nor were sent to the Fire-arms Expert, so, it became necessary to see the same to reach at a just decision of the case. According to the draftsmen, the site-plan was prepared after two and a half years of the occurrence.
' The main contention of the learned counsel for the complainant that C.W.1 Muhammad Munir, who is father of Babar appellant and real uncle of the other appellants, has himself admitted that his real brother Zulficiar Ali Dhillan was a retired Brigadier, at the time of occurrence he was serving M.P.A. And had pressure on the police due to which the prosecution case was spoiled and on this ground alone, the prosecution case cannot be thrown away. The answer to this contention is that, firstly, there is nothing on the record to substantiate the said stand and, secondly, if this was the position then Gulfam should also have been declared innocent which was certainly not done. So, the said contention has no legs to stand. Even otherwise, C.P.S.L.A. Filed against the acquittal of acquitted co-accused Temour was also dismissed by this Court.
In the first inspection note a copy of which is normally handed over to the accused persons before commencement of the trial, there is no mention of the electric bulb at the time of the occurrence.
The police had also not taken into possession the "Gadda" and the cot on which the deceased was lying at the time of occurrence. Even otherwise, there is a difference between the site-plan Exh.P.J prepared by the Draftsman and the site-plan prepared by the Investigating Officer (C. W.1/1). So, learned counsel for the appellants has rightly relied upon We case of Bashir Ahmad v. Muhammad Azam and another (PLD 1969 SC 469), head note (b) which is relevant and which reads as under:-- "(b) Witness---Credibility---Fact that witnesses are not relation witnesses---Does not mean that they are witnesses of truth---Acid test of veracity of a witness is inherent merit of his own statement".
' Even learned counser has rightly relied upon Shahbaz Khan Jakhrani v. Lal Beg Jakhrani and others (1984 SCM R 42) which is a Full Bench judgment of the august Supreme Court of Pakistan.
The precedent case-law relied upon by the learned counsel for the complainant is distinguishable and is not applicable in the facts and circumstances of the present case.
8. After having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt to sustain conviction. The prosecution case is full of doubts and doubts and on the basis of such a shaky evidence, the conviction and sentence awarded to the appellants cannot be maintained because the same has not come through unimpeachable sources, is untrustworthy, unreliable and cannot stand the test of judicial scrutiny.
' Resultantly, this appeal is allowed, the impugned judgment is set aside, the appellants are acquitted from the case and shall be released forthwith if not required to be detained in any other case. For afore-referred reasons, Criminal Revision No.622 of 2004 has no merit which is hereby dismissed.