1. Kh. Muhammad Sharif, J.--This appeal is directed against the judgment dated 31.8.2000, passed by the learned Additional Sessions Judge, Attock, whereby, after having tried the appellant., convicted him under Section 302(b) PPC, and sentenced him to death with a further direction to pay a compensation of Rs, 1,00,000/- as provided under Section 544-A Cr.P.C. in default whereof to further undergo six months S.I. The appellant has assailed the above conviction and sentence through the titled appeal while the learned trial Court has sent the titled Murder Reference for confirmation of the sentence of death awarded to him. Crl. Revision No, 165/2000 was filed for enhancement of amount of compensation. All these matters are being disposed of through this single judgment as they arise out of the same judgment.
2. 2.Brief facts of the case, as explained by Safdar Khan complainant (PW-7) in the FIR are that he is police employee posted at Attock, in the evening of 8.7.1998 he and his Chacha Ghulam Khan had taken the dinner together, his said Chacha used to remain in the Baithak so he went there while the complainant went to his house to sleep, he went to say that Fajar prayer on 9.7.1998, after the said prayer he alongwith Adam Khan went in front of the said Baithak at about 4.30 a.m., at that time Asif appellant jumped over the wall of the Baithak having hatchet in his hand, Baithak was chained inside so he jumped over the wall and went inside and unchained the door, the said Adam Khan also entered the Baithak where they found Ghulam Khan lying dead smeared with blood. The motive behind the occurrence, statedly, was that Asif appellant had suspicion that poison was given to his father with consent of Ghulam Khan deceased.
3. 3.The accused was arrested, he was found guilty during investigation and after having completed legal formalities, challan was submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where, the prosecution, in order to prove its case against the accused, produced ten witnesses during the trial.
4. 4.Learned counsel for the appellant in support of this appeal submits that the complainant, who is a police official, never went to the police station to lodge the FIR and instead the police came at the spot for which purpose Pervez was sent to the Police Station but the case was not registered on his statement; that the FIR was registered after due deliberations and consultations; that the complaint was made at 8.00 a.m., formal FIR was registered at 8.20 a.m. and the distance between the police station and the place of occurrence is 8 kilometers; that it is an un-witnessed occurrence; that the prosecution has failed to prove the motive as no body was suspected as an accused in Mark-A; that the blood-stained earth was taken into possession on 9.7.1998, appellant was arrested the same day, got recovered hatchet on 13.7.1998 although both of them were sent to the office of the Chemical Examiner on 19.7.1998; that according to the I.O. he arrested the appellant on 13.7.1998 but without any progress of the case from 9.7.1998 to 13.7.1998 meaning thereby that he had already arrested the appellant; that the place of recovery of hatchet is accessible to public at large; that Farman Ali, a witness of Wajtakkar was given up; that the prosecution has failed to prove its case against the appellant and that the appellant are entitled to acquittal by this Court.
5. 5.On the other hand, the learned Assistant Advocate General Punjab, appearing on behalf of the State, submits that he would support the impugned judgment while learned counsel for the complainant submits that the motive was proved by the prosecution; that Safdar and Ilyas had no enmity with the appellant and they are independent witnesses of the case; that the appellant was never arrested on 9.7.1998 and was arrested on 13.7.1998; that as per PW 10 it was a clerical mistake and categorically stated that he was arrested on 13.7.1998; that the ocular account is corroborated by the medical evidence; that the prosecution, witnesses were subjected to lengthy cross- examination but nothing could be shaken; that no question arises for false implication of the appellant as the parties are known to each other; that it was a brutal murder because as many as there are 12 injuries on the person of the deceased; that the deceased was a man of 65 years of age; that the prosecution has proved its case against the appellant beyond a shadow of doubt to sustain conviction of the appellant.
6. 6.We 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. 7.The occurrence in this case had taken place on 9.7.1998 at 4.30 a.m., the complaint was made at 8.00 a.m., formal FIR was registered at 8.20 a.m. and the distance between the police station and the place of occurrence is 8 kilometers.
8. According to the FIR the occurrence had taken place at 4.30 a.m. but it was not mentioned therein that who went to the police station to inform the police about the occurrence. It came to light during cross-examination that one Pervez had gone to inform the police. The said factor was never even mentioned in the Police Karwai. Neither the complainant, who is a police official having 13 years service at his credit at the time of occurrence especially when he is first cousin of the deceased, nor other witnesses went to the police station to apprise them about the occurrence.
8. Rather the police reached at the spot. So, in our view, the FIR was lodged after due deliberations and consultations.
9. As per prosecution case, in the evening of 8.7.1998 the complainant and his Chacha Ghulam Khan had taken the dinner together, his said Chacha used to remain in the Baithak so he went there while the complainant went to his house to sleep, he went to say the Fajar prayer on 9.7.1998, after the said prayer he alongwith Adam Khan went in front of the said Baithak at about 4.30 a.m., at that time Asif appellant jumped over the wall of the Baithak having hatchet in his hand, Baithak was chained inside so he jumped over the wall and went inside and unchained the door, the said Adam Khan also entered the Baithak where they found Ghulam Khan lying death smeared with blood. We note that occurrence in this case had taken place on 9.7.1998 at 4.30 a.m., the complaint was made at 8.00 a.m., formal FIR was registered at 8.20 a.m. and the distance between the police station and the place of occurrence is 8 kilometers while the post-mortem Examination was conducted at 8.30 a.m. by Dr. Muhammad Irshad (PW-4) but we are unable to understand that how, within a period of 20 minutes, the "Fard Bayan" was taken to the Police Station and FIR was recorded. It is also repellent to common sense that the post-mortem Examination shall be conducted within ten minutes of the recording of formal FIR which was conducted by Dr. Muhammad Irshad (PW-4) because the formal FIR was to be lodged, the Inquest Report was to be prepared, the dead body was to be sent to the hospital after having made arrangement of the vehicle as well which is humanly impossible. There is also a certificate which is called as "Shanakhat Certificate Mulzim" which is Exh.DA on the Paper Book at page 93. We have also seen the original one from the judicial file. It is written and signed by Hanif SI/I.O. who had stated before the learned trial Court that the appellant was arrested on 13.7.1998 but this certificate, which is dated 9.7.1998, is reflective of the fact the appellant was arrested on 9.7.1998. Thereafter, he showed the arrest of the appellant on 13.7.1998 which is a replication and is a concocted one. In our view, it is but natural that after the commission of such a horrible incident, one cannot remain in his house and would definitely flee from the spot and house. All these factors make the prosecution full of doubts and doubts. So far as motive is concerned, even as per Mark-A none from the appellant side was accused in that case, so, it can be said that the motive set up by the prosecution has no legs to stands. As far as recovery of blood-stained hatchet from under the Pulli is concerned, it has come on record that the said place is accessible to the public. Even otherwise, it is beyond the thoughts of a man of normal prudence that after having committed such an offence, the appellant would keep the hatchet alongwith him, would scale over the wall alongwith the said hatchet, would not throw the same there and then i,e, at the spot, and would not come out of the Baithak after having unbolted the door of the .said Baithak. Even no trial of blood was found either on the wall or outside the Baithak which belies the prosecution version that the culprit scaled over the wall alongwith the weapon of offence i,e, hatchet. Even otherwise, the witnesses of the occurrence are chance witnesses because they had allegedly seen the occurrence when they were returning home after saying the Fajar Prayer. So, it can be said that they were chance witnesses. More so, 4.30 a.m. is such a time when darkness prevails and it is repellent to common sense that they would identify the appellant from such a distance. They have even not mentioned any source of light in this regard. In our considered view, they are telling lies and lies and this Court cannot rely upon their such type of evidence.
10. There is yet another aspect of the case, in Column No, 3 of the Inquest Report, time of death of the deceased was given as 7.00 a.m. while in the Column of deaths in the Post-mortem Report, the doctor has given the times of death as 4.00 a.m., so, it can easily be gathered that the different times of death given in different judicial papers does not reconcile with each other. The doctor gives time on this Column according to the Inquest Report. Merely saying that it is a case of single accused and substitution is a rare phenomenon, is no ground to say that the prosecution has proved its case against the appellant.
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 appellant 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 appellant 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 appellant is acquitted from the case and shall be released forthwith if not required to be detained in any other case. Murder Reference is answered in the Negative. Death sentence awarded to the appellant is not confirmed while Crl.
11. Revision No, 165/2000 is dismissed.