1. Mian Muhammad Najum-uz-Zaman, J.--Appellants Muhammad hafi, Muhammad Siddique, Tariq Mehmood and Muhammad Ashraf were tried for the murder of Iqbal Hussain in case FIR No, 501 dated 16.9.2001 registered under Sections 302/34/109 PPC at Police Station Kunjah by the Addl.
2. Sessions Judge Gujrat, who vide judgment dated 14.11.2002 convicted all the appellants under Section 302 PPC and sentenced each of them to death.
3. 2: Calling in question their conviction and sentence the appellants filed Crl. Appeal No, 1994/2002 while the trial Court has made a reference (M.R. No, 114/2003) seeking confirmation of death sentenced awarded to the appellants. Both these matters are being disposed of together by this judgment.
4. 3.Succinctly the prosecution story as contained in FIR Ex. PB/1 lodged by Nadir Ahmad complainant PW.7 is that on 14.9.2001 at Shamwela the complainant alongwith Muhammad Ashraf son of Muhammad Hussain, Muhammad Yousaf PW.8 and Iqbal Hussain deceased were coming from his Dera towards his house situated in Mangowal Town and when they reached near the graveyard, Tariq Mehmood, Muhammad Ashraf sons of Shafi Muhammad alongwith two unknown persons being armed with fire-arms, emerged from the nearby Jawar crop. Muhammad Ashraf appellant fired from his rifle hitting Iqbal Hussain deceased on left side of his abdomen who fell on the ground. Thereafter the appellant fled away from the place of occurrence while firing in the air. Iqbal Hussain in an injured condition was removed to R.H.C. Kunjah from where he was referred to Aziz Bhatti Shaeed Hospital, Gujrat. The injured succumbed to the injuries in the hospital on 16.1.2002.
5. Allegedly the accused committed the murder of Iqbal Hussain on the abetment of Shafi Muhammad appellant.
6. Motive for the occurrence is the enmity between the parties.
7. 4.After complying with all legal formalities the Investigating Officer submitted challan against Muhammad Shafi, Muhammad Siddique, Muhammad Ashraf and Muhammad` Tariq before the trial Court where prosecution produced twelve witnesses including Nadir Ahmad PW.7 and Muhammad Yousaf PW.8, the eye-witnesses of the case and Muhammad Anwar PW.11, the witness of conspiracy.
8. 5.Trial Court also examined the appellants under Section 342 Cr.P.C. who while denying the charge pleaded their false implication due to previous enmity. The appellants did not make any statement under Section "340(2) Cr.P.C. however, they produced two witnesses namely Muhammad Hussain DW. 1 and Muhammad Sharif DW.2 in their defence.
9. 6.Trial Court after appraisal of evidence available on record vide judgment dated 14.11.2002 convicted and sentenced the appellants as narrated earlier.
10. 7.It is submitted by the learned counsel for the appellants that it was unseen occurrence in which Iqbal Hussain deceased was done to death by some unknown persons when the eye-witnesses were not present and the appellants were falsely involved in this case because of their enmity with the complainant party; that the FIR was lodged after an unexplained delay of two days whereas the police station was only two kilometers away from the place of occurrence; that during the investigation case of the prosecution was found false, none of the witnesses had uttered a single word against Muhammad Siddique appellant and with regard to the abetment of Shafi Muhammad appellant, the FIR is absolutely silent about the time, place and date when the conspiracy was hatched nor any independent witness was produced in support of this part of the prosecution case; no blood-stained earth was taken into possession from the place of occurrence which is sufficient to doubt the credibility of the prosecution case. On the contrary, learned State counsel while supporting the impugned judgment vehemently opposed the arguments raised by the learned counsel for the appellants.
8. We have heard the learned counsel for the appellants as well as the State and gone through the record minutely with their assistance.
11. This occurrence took place on 14.9.2001 at Shamwela but the matter was reported to the police on 16.9.2001 at 2.30 a.m. i,e, two days after the occurrence. Admittedly police post Mongowal was at a distance of two kilometers from the place of occurrence, one brother of the complainant is also a retired police officer but in spite of that nobody bothered to inform the police immediately after the occurrence. Statedly, after the occurrence injured was removed to RHC Kunjah and 'thereafter to Aziz Bhatti Shaheed Hospital, Gujrat but there is no medico legal report nor any evidence except bald statement of eye-witnesses about taking the injured to the hospital for medical treatment.
12. The lacuna in the prosecution case creates doubt about the presence of prosecution witnesses at the relevant time. The possibility that FIR was registered after consultation and deliberation cannot be ruled out. None of the eye-witnesses had uttered a single word qua the involvement of Muhammad Siddique appellant and with regard to Shafi Muhammad appellant against whom the allegation of abetment had been leveled, though Nadir Ahmad PW.7 had deposed in this regard before the trial Court but the statement of this witness as well as the FIR is absolutely silent about the time, date and place where allegedly this appellant had abetted his co-accused. To prove this part of the case, prosecution has also relied on the statement of Muhammad Anwar PW.11. Statedly he had heard Shafi Muhammad appellant instigating his sons to commit the murder of Trimi Bradari while traveling in bus. Not only that the manner and mode in which allegedly Shall Muhammad had instigated his co-accused is unbelievable, we have also observed that the said witness after hearing conspiracy never bothered to inform the complainant well in time. Since Shafi Muhammad appellant is father of two appellants namely Muhammad Ashraf and Muhammad Tariq, his false implication because of his relationship with his co-accused as well as enmity with the complainant, could not be ruled out.
13. As far as Muhammad Tariq appellant is concerned, no specific role has been attributed to him nor any recovery was effect from him. Similarly Muhammad Ashraf appellant, allegedly at the relevant time was armed with rifle and had caused firearm injury to the deceased but during the investigation the said weapon was never recovered at his instance. The complainant of this case while deposing before the trial Court denied that he ever made any statement with regard to the weapon with which Muhammad Ashraf was armed at the relevant time. We have also noticed glaring improvements made by the eye-witnesses while deposing before the trial Court.
14. Admittedly, complainant also never joined the investigation. During E the investigation conducted by Khushi Muhammad Inspector PW.12, all the four appellants were found innocent, he also opined that prosecution had failed to prove the guilt against the said accused persons.
9. The crux of the above discussion is that prosecution case is full of doubts and in the circumstances, we are persuaded to accept the instant appeal. Accordingly while setting aside the conviction and sentence of the appellants, we acquit all of them from the charge. They shall be released forthwith if not required in any other case.
15. Death sentence of the appellants IS NOT CONFIRMED and the murder reference is answered in the negative.