' MIAN MUHAMMAD NAJUMUZ-ZAMAN, J.---Appellants Zulfiqar Ali alias Liaquat Ali and Zia Ullah alias Shahid were tried for the murder of Asmat Ullah in case F.I.R. No.53, dated 16-5-1995 registered under section 302/34, P.P.C. At Police Station Phlora, District Sialkot who vide judgment dated 23-7- 1999 convicted both the appellants under section 302(b)/34, P.P.C. And sentenced each of them to death.
2. Challenging their conviction and sentence both the appellants filed Criminal Appeal No.852 of 1999 while the trial Court has made a reference (Murder Reference 400/1999) seeking confirmation of death sentence awarded to the appellants. Both these matters are being disposed of together by this judgment.
3. Occurrence in this case had taken place at 9-30 on 15-4-1995 within the revenue estate of Mauza Chowinda which is at a distance of 5 Kilometers from Police Station Phlora, District Sialkot and the matter was reported to the police at 10-00 a.m. On the next day i.e. 16-4-1995 by Muhammad Bashir through written complainant Exh.PA and formal F.I.R. Exh.PA/1 was recorded by Muhammad Akram A.S.-I.
4. Succinctly the facts of the prosecution case are that on 15-4-1995 the complainant Muhammad Bashir and Muhammad Saeed, brother-in-law of the deceased and one Ahmed Sher Khan, came at Chowinda to visit his brother. After having meal, he along with Muhammad Saeed, Ahmed Sher Khan and Asmat Ullah (deceased) was chatting in room, when the outer door of the house was knocked upon which his brother Asmat Ullah deceased opened the door and two persons namely Rafaqat Ali alias Faka and Shahid who were introduced by the deceased to the Rafaqat Ali and Shahid Ali entered the house. All the three persons entered in the room and he along with Muhammad Saeed and Ahmad Sher Khan sent to other room. At about 9-30 p.m., on hearing the exchange of hot words between them, the complainant along with the P.Ws. Attracted to the said room and saw Rafaqat Ali being armed with .30 bore pistol, firing at deceased, hitting on the chest.
The second fire with pistol wnq made-by-Shahid which hit the deceased on the right side of the chest. Thereafter each of the accused fired 2/3 successive shots which hit the deceased on different parts of right flank and right arm who fell down. Both the accused while brandishing their weapons decamped from the place of occurrence. Asmat Ullah in an injured conditions was removed to Civil Hospital Chowinda from where he was referred to Government Hospital, Sialkot where the deceased succumbed to the injuries after 2/3 hours. The motive behind the occurrence was stated to be return of loan amounting to Rs.8,000.
5. After complying with all legal formalities the Investigating Officer submitted challan before the trial Court where prosecution produced ten witnesses including Muhammad Bashir P.W. 1 and Ahmad Sher Khan P.W.2, the eyewitnesses of the occurrence to prove the charge against the appellants. Learned D.D.A. Tendered in evidence report of Chemical Examiner Exh. PL and that of Serologist Exh.P.M as well as Forensic Science Laboratory Exh.PN and closed the prosecution case.
Thereafter the trial Court recorded statements of the appellants under section 342, Cr.P.C. In which they pleaded innocence.
6. Trial Court after appraisal of evidence available on record vide judgment dated 23-7-1999 convicted and sentenced the appellants as narrated earlier.
7. Learned counsel for the appellants after having read the entire prosecution evidence and other material available on record submitted that the F.I.R. Was lodged against Rafaqat Ali and Shahid whereas the actual names of the appellants were Zulfiqar and Zia Ullah but later on with the connivance of local police while distorting the facts on the basis of supplementary statement, both the appellants were involved in this case upon the asking of local MPA who had enmity with the appellant; that none of the eye-witnesses who were closely related to the deceased and residents of Mianwali were present at the spot but they were brought into picture later on during the investigation; the F.I.R. Was registered after a delay of more than twenty four hours, that the Investigating Agency after manufacturing the crime empties had obtained a fictitious report from the Forensic Science Laboratory and thus in the circumstances this piece of evidence cannot be relied upon. With regard to motive it was submitted that are was no direct evidence on the record to prove the motive part of the prosecution case and finally argued that in a circumstance learned trial Court had erroneously convicted and sentenced the appellants. Conversely, learned counsel for the complainant while supporting the impugned judgment, vehemently opposed the arguments raised by the learned counsel for the appellants. It was submitted that after the occurrence the deceased was removed to Civil Hospital, Chowinda and thereafter upon the advise of doctor he was taken to D.H.O. Hospital, Sialkot for medical treatment of the deceased the empties recovered from the spot had matched with weapon recovered at the instance of Zulfigar, thus this piece of evidence corroborates the ocular account which was narrated by Muhammad Bashir P.W.1 and Ahmad Sher Khan P.W.2, close relatives of the deceased and their presence at the relevant time also stands established from the data available on record; that in the circumstances the impugned judgment needs no interference.
8. We have heard the learned counsel for the parties at length and perused the record with their assistance. This occurrence took place in the house of the deceased on 15-4-1995 at 9-30 p.m.
When statedly both the eye-witnesses namely Muhammad Bashir P.W.1 and Ahmad Sher Khan P.W.2, brother and brother-in-law of the deceased respectively were present and had seen the occurrence. Both of them were the residents of Mianwali and statedly had gone to the house of deceased to see him. After the occurrence the natural conduct of both the witnesses who were closely related to the deceased should have removed the injured to the hospital for medical aid but according to the statement Dr. Muhammad Iqbal Hayat P.W. 6 one Khalid Manzoor had brought the injured Asinat Ullah deceased for medical treatment. We have observed that the site plan prepared by the Patwari and the Investigating Officer are absolutely silent about the identity of the accused persons who had committed the offence. Had the name of the appellants been known earlier, their names should have been mentioned by the said officials in these documents. As it is apparent from the site plan, this occurrence took place in a thickly-populated area and allegedly accused had fired many shots, it is repellant to common sense that the neighbours were not attracted by the said firing. The police station was only five kilometers from the place of occurrence but strangely none of the Mohallandars/ neighbours informed the police about the occurrence. The matter was reported to the police at 9-00 a.m. On 16-4-1995 (the next day) when the police reached at D.H.Q. Hospital Sialkot. In the said circumstances, the possibility of registration of F.I.R.
After c nsultation and deliberation could not be ruled out. Both the said eye-witnesses who were the close relatives of the deceased were the residents of Mianwali and as apparent from the contents of the F.I.R., the accused who had come to see the deceased were not known to them because statedly, they were introduced to the witnesses by the deceased. The name of these persons as disclosed by the deceased were Rafaqat alias Faqa and Shahid but later on through a supplementary statement complainant of this case while improving the prosecution case disclosed that in fact Rafaqat was Zulfiqar Ali and Shahid was Zia Ullah and in such-like situation it was incumbent upon the prosecution to put the appellants to the test of identification parade to rule out the possibility of false involvement but unfortunately, this exercise was never done by the agency during the investigation.
Motive for this occurrence i.e. Dispute of the appellant with the deceased over the settlement of account was not proved before the trial Court because there is no direct evidence in this regard.
No doubt during the investigation crime empties recovered from the spot had matched with the pistol recovered at the instance of Zulfiqar Ali but in the light of above-said circumstances of the case, the possibility that this piece of evidence might have been manufactured by the prosecution could not be ruled out. Even otherwise, this evidence alone is not sufficient to convict a person on the charge of capital sentence.
9. In the light of the said circumstances of the case our considered view is that the evidence relied upon by the prosecution is not worth-reliance. The presence of the eye-witnesses at the spot is full of doubts and the conviction and sentence of the appellants could not be sustained. Accordingly, the instant appeal is accepted, conviction and sentence of the appellants is set aside and they stand acquitted of the charge. Both the appellants shall be released forthwith if not required in any other case.
' Death sentence of the appellants are not confirmed and the murder reference is answered in the negative.