' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,1995 of 2004 filed by Master Muhammad Younas appellant and Criminal Appeal No,1831 of 2001 filed by Atta Muhammad, appellant, who were convicted and sentenced along with Muhammad Yousaf co- accused (P.0) by learned trial Court, vide his impugned judgment dated 22-10-2001 as under:-- ' Master Muhammad Younas appellant and Muhammad Yousuf (P.O.) under section 302(b)/34, P.P.C., death with further direction to pay Rs,50,000 as compensation to the legal heirs of the deceased or in default six months' S.-I.
' Atta Muhammad appellant under section 302(b)/34, P.P.C. To undergo imprisonment for life with further direction to pay Rs,25,000 or in default six months' S.-I.
' Murder Reference No,674 of 2001 for confirmation of death sentence of Master Muhammad Younis appellant and Muhammad Yousuf (P.O.) or otherwise shall also be replied through this single judgment.
2. Brief facts of the case, as narrated by Ghulam Mustafa alias Moosa complainant in his statement Exh.P.B., are that on 24-6-1997 at morning time, the complainant came to his house from the "Dera" after bringing the milk and after some time, Israel alias Essa brother of the complainant came running to the house and disclosed that he and Ghulam Murtaza alias Ayyub (deceased) were going to bring fodder for the cattle and when they were passing near the cattle shed of Master Muhammad Younis, Muhammad Younis, his son Muhammad Yousuf and brother Atta Muhammad confined Ghulam Murtaza alias Ayyub in their "Haveli" hence, the complainant along with his elder brother Isreal alias Essa came to the brick kiln of "Arain brother" and took Shafique, Aslam and Rafique P.Ws. With them in order to rescue Ghulam Murtaza alias Ayyub and reached the "Haveli" of Master Muhammad Younis accused at 8-00 a.m. And they witnessed that Muhammad Younis had entangled Ghulam Murtaza and Ayyub from his neck through a piece of cloth and Muhammad Younis son of Master Muhammad Yousuf was standing nearby having a gun (D.B.) in his hand and Atta Muhammad brother of Muhammad Younis accused was also standing nearby, who directed to shoot Ghulam Murtaza alias Ayyub, hence Muhammad Younus fired with his gun .12 bore (D.B.) at Ghulam Murtaza alias Ayyub hitting his shoulder and chest from right side and brother of the complainant succumbed to the injuries at the spot.
' Motive behind the occurrence was that complainant and Muhammad Younis had quarrelled with each other but the matter was settled by the "Punchiat" and the accused had a grudge against the complainant party, hence brother of the complainant was murdered by the said accused persons in order to take revenge.
3. Investigation of the case was taken over by Sher Afzal S.-I. P.W.10. He on receipt of information about the occurrence, reached at the spot, took into possession blood-stained earth vide memo.
Exh.P.C., prepared inquest report Exh.P.K. And injury statement Exh.P.H. And arrested Muhammad Yousuf accused, who got recovered gun .12 bore, which was taken into possession vide memo.
Exh.P.F. He also arrested Master Muhammad Younis and Atta Muhammad and after thorough investigation, all the three accused were challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 10 witnesses in all, thereafter, learned A.D.A tendered in evidence report of Chemical Examiner Exh. P.L., report of Serologist Exh.P.N. And that of Forensic Science Laboratory Exh.P.M. And closed the prosecution case, then, the statements of the accused were recorded under section 342, Cr.P.C. Mahmood Ahmad Cheema, D.S.P., Dr. Ilyas Farooqi, Sardar Muhammad Inspector, Ghulam Shabier A.S.-I., Amjad Ali Shah S.-I. And Akhtar Hayat A.S.P. Were examined as D.W.1 to D.W.6 respectively in this case.
5. After having read the entire prosecution evidence, statements of the accused recorded under section 342, Cr.P.C. And other relevant material available on record, learned counsel for the appellant Master Muhammad Younis submits that Muhammad Younis appellant was seriously injured in this case, that he was medically examined by Dr. Ilyas Farooqi D.W.2 on the day of occurrence but his injuries were suppressed by the prosecution, that Muhammad Yousuf, who is absconding, although was taken into custody by the police on the day of occurrence and was produced before Dr. Ilyas Farooq D.W.1 for medical treatment but his arrest was shown on 10-7-1997 and in this regard, he has referred to Exh.D.D., which is an application at page 258 of the paper book to S.P. (Inv) for the transfer of investigation by the complainant, which shows that Muhammad Younas remained in hospital for 14 days and gun was broken and was produced by the complainant before the police on the same day but that was destroyed by the police and gun was planted on the person of Muhammad Yousaf on 15-8-1997, that as far as, Master Muhammad Younis appellant is concerned, the allegation against him was that he put the "Safa" around the neck of the deceased but according to post-mortem report conducted on 24-7-1997 at 3-00 p.m.
By Dr. Saleem ur Rehman P.W.8, there is no injury around the neck of the deceased, so ocular account to his extent is contradicted by medical evidence. He lastly, submits that prosecution failed to prove its case against the appellant beyond any shadow of doubt and he is entitled to acquittal.
6. Learned counsel for Atta Muhammad appellant submits that only "Lalkara" was attributed to the appellant and that he was falsely involved in this case being the real brother of Muhammad.
Yousuf, absconding accused.
7. On the other hand, both the learned counsel for the State submits that ocular account is corroborated by medical evidence, that it was a broad-daylight occurrence, that it was case of promptly lodged F.I.R. And that there was no previous background of enmity between the parties.
They support the judgment of the learned trial Court.
8. We have heard learned counsel for the parties at a great length and have also gone through the evidence available on record. According to the prosecution, occurrence took place on 24-6-1997 at 8-00 a.m. While matter was reported to the police on the same day at 8-39 a.m. At Canal Bank of Verum and the formal F.I.R. Exh. PB was recorded on the same day at 9-05 a.m., although the distance between place of occurrence' and Police Station was 2-Kms. Three accused were named in the F.I.R. i.e, Master Muhammad Younis appellant, Atta Muhammad appellant and Muhammad Yousaf (P.0) father of Master Muhammad Younas and brother of Atta Muhammad. Muhammad Yousaf is a Proclaimed Offender, he ran away from the Court at the time of announcement of judgment. According to the prosecution case, the allegation against Master Muhammad Younis was that he put the "Safa" around the neck of the deceased while his co-accused Muhammad Yousaf (P.0) fired at him hitting on his shoulder and chest. As far as, allegation against Atta Muhammad appellant is concerned, the only "Lalkara" was attributed to him, The most pivotal point in this case is that Master Muhammad Younis and Muhammad Yousaf (P.O.) were also injured during the occurrence but the prosecution suppressed their injuries. Master Muhammad Younis appellant had also filed private complaint but the same was dismissed by learned trial Court and in this regard Petition for Special Leave to Appeal was filed by Master Muhammad Younis, which is pending before this Court and was converted into criminal appeal in which bailable warrants of arrest were also issued against the respondents but neither the respondents nor their counsel is present. There is only one injury on the person of the deceased, whose postmortem examination was conducted by Dr. Saleem-ur-Rehman P.W.8 on 24-7-1997 at 3-00 p.m., the said injury is with fire-arm, then, there is Dr. Ilyas Farooqi D.W.2, who had medically examined Master Muhammad Younas appellant on the day of occurrence i.e, 24-6-1997 and found the following injuries on his person:-- "1. A lacerated wound measuring about 7 x 2 x 1.2 cm was located on the frontal part of right side of the skull. The edges were inverted. The angles were torn irregularly. It was bleeding and deep to bone.
2. An ecchymosed swelling about 26 x 1.5 cm was located on the back of the left side of chest.
3. An ecchymosed swelling about 16 x 1 cm was located on the back of right and left side of chest one centimeter above Injury No .
2.
4. An ecchymosed swelling about 28 x 1 cm was located on the back of right and left side of chest about 1.5 centimeter above the injury No,2."
' The bare perusal of the above said injures on the person of Master Muhammad Younas shows that injury No,1 was on his head and other three injures were also on the vital part of his body, which were suppressed by the prosecution. Master Muhammad Youas while appearing before the learned trial Court in his statement recorded under section 342 Cr.P.C. In reply to question No,5 had stated as under:-- "In fact on the day of occurrence I was present in my field and Ghulam Murtaza and Ayyub, deceased were passing through my paddy saddling with his she-ass, when I saw that the paddy saddling is being trampled, I protested against his act and followed hot words between us. Then I gave kick blow to the she-ass. He was told that he should take his own way properly. After leaving the she-ass there he returned towards the town Khudian. After his departure I seated myself on the cot in the courtyard of my Haveli, which is a open place outside the Haveli. And my son Yousuf at that time was taking bath at the tubewell nearby. Suddenly, Ghulam Mustafa, Ghulam Murtaza, Isreal, Zahir Babar, Muhammad Aslam, Muhammad Shafique came here with various weapons, while Aslam was armed with .12 bore gun double barrel. They came running and hurled with their weapons. When some person passerby heard the alarm, he gave caution to my son Yousuf that your father is being thrashed by the persons, he came running at the spot from the tubewell in order to rescue me and leaned on me at that time he was also injured. When Aslam aimed with his gun towards us, my. Son Yousuf jumped in order to snatch the gun from saving our lives but Aslam tried during the scuffle to turn the muzzle towards me and Yousuf always tried to turn it off. In this contest Mussa launched his Dang on Yousaf, which slipped and struck on the gun. With the stroke of the Dang the gun's butt was broken and went off. At that time the muzzle was 'towards Ghulam Murtaza alias Ayyub and he after getting the injury succumbed to his injury. The occurrence was seen by Muhammad Akram, Master Jameel, Muhammad Bashir Mushtaq Ahmad, Khushi Muhammad. I became unconscious at the spot. My son and some of the P.Ws. Namely, Muhammad Jameel, went to the Police Station in order to lodge the report that Ayyub etc. Had attacked on his father and he in an injured condition being unconscious is lying outside the Haveli and he also showed his injuries to the police. Police locked him into the Havalat. They did not record his statement and they came on the spot. They took into possession the broken gun and got examined me. Next day, when my son was in precarious condition, he was sent for the treatment in the Khudian Hospital. Despite, the doctor's request the police did not g et examined my son Yousuf.
Police suppressed my son's injury in order to strengthen the prosecution false story, which was launched on the behest of Malik Rasheed Ahmad backed MPA."
' We have perused the above said answer and the possibility of the above said answer to be true cannot be ruled out. There is yet another aspect of the case, Muhammad Yousaf, who was also produced by the police on 25-6-1997 but Dr. Ilyas Farooqi D.W.2 did not conduct his medical examination and stated that as the police wanted to get his treatment only, so he did not examine him, it means that he was also, injured during the occurrence but police with mala fide intention did not get his Medico-legal report, although he was in police custody since 25-6-1997 but his arrest was shown on 10-7-1997 and recovery of gun was got effected on his pointation on 15-771997 but Exh. DD indicates the recovery of gun from Muhammad Yousaf absconding accused on the day of occurrence i.e, 24-6-1997 and in the said Exh.DD, the complainant himself stated that he and his brother wanted to snatch the gun from Muhammad Yousuf, which was broken during the occurrence and same was produced before the police. If this was the case of the prosecution then, how Muhammad Yousuf led to the recovery of gun on 15-7-1997, which in fact had been planted on him.
' Another important question in this case is that Muhammad Yousaf absconded from the trial Court at the time of announcement of impugned judgment, murder reference has been sent to this Court by learned trial Judge for confirmation or otherwise of death sentence of Muhammad Yousaf under section 374 Cr.P.C. And this Court is fully competent to decide that matter also and in this regard, reliance is placed upon cases titled as Khanan Khan and others v. The State (PLD 1966 (W.P.) Peshawar 232 and Hayat Bakhsh and others v. The State (1981 SCM R 1), relevant head-note J, of 1981 SCM R 1 is reproduced below:-- "S. 374-Confirmation of death sentence-Convict decamping and forfeiting right of audience, High Court, held, nevertheless, competent to consider case of confirmation of his death sentence and confirm same on merits."
' After having heard learned counsel for the parties, going through the evidence available on record, postmortem report of the deceased, Medico-legal reports of Master Muhammad Younas appellant, Muhammad Yousaf (P.O.) and statement of Dr. Ilyas Farooqi D.W.2, we are of the considered opinion that possibility of the version given by the appellant before the learned trial Court being correct and nearer to truth cannot be ruled out. In this view of the matter, while deciding the case of the present appellant and also of Muhammad Yousaf (P.0) we are of the view that as the injuries of Master Muhammad Younas appellant and Muhammad Yousaf (P.O.) have been suppressed by the prosecution and complainant did not approach the Court with clean hands, although he tried to explain these injuries while submitting an application Exh. DD on 2-8- 1997, so while granting the benefit of doubt not only to both the appellants but also to Muhammad Yousaf (P.O.) we accept these appeals. The conviction and sentence recorded against both the appellants and also against Muhammad Yousaf (P.O.) by the learned trial Court is set aside. Death sentence awarded to Master Muhammad Younas and Muhammad Yousaf (P.O.) is not confirmed and murder reference is replied in Negative. Master Muhammad Younas and Atta Muhammad appellants are in Jail and they shall be released forthwith if not required to be detained in any other case.