' MUHAMMAD FARRUKH MAHMUD, J.---Bodi-appellant along with his co-accused namely Shahid Iqbal, Nazir Ahmad, Ghulam Muhammad and Muhammad Ramzan was tried by the learned Additional Sessions Judge, Jaranwala, District Faisalabad, for offences under sections 302/34/109, P.P.C. For having caused the murder of Khadim Hussain. Vide judgment dated 18-9-2000, the learned trial Judge, while acquitting the aforesaid co-accused, convicted the appellant for offence under section 302(b), P.P.C. And sentenced him to death. He was also directed to pay Rs,50,000 as compensation to the legal heirs of the deceased. In default in payment thereof, he was to undergo S.I. For six months.
2. Bodi appellant has challenged the legality of his above noted conviction and sentence through the instant appeal, while the learned trial Court has made a reference bearing Murder Reference No,567 of 2000 seeking confirmation or otherwise of death sentence-inflicted upon the appellant.
We propose to decide both these matters through this consolidated judgment.
3. The brief facts of the prosecution case per complaint (Exh.P.B./1) recorded by Sher Muhammad, S.-I./P.W.9, at the instance of Muhammad Abbas, complainant/P .W.4 , which based the registration of formal F.I.R. Exh.P.B., are that on the fateful night, Muhammad Abbas, his brothers Khadim Hussain (deceased), Muhammad Sharif and maternal uncle Amanat Ali/P.W.5 (who had come to see them from Mohallah Ghaziabad, Nishatabad) were present in the house. At about 9-30 p.m. On 19-5- 1999, Nazir Ahmad and Shahid Iqbal (acquitted co-accused) came there and took along with them Khadim Hussain to watch VCR. Subsequently, the complainant received information that Bodi- appellant, while armed with .12-bore gun, was searching for Khadim Hussain to commit his murder, whereupon the complainant, his brother Muhammad Sharif and maternal uncle Amanat Ali went out to search for Khadim Hussain and when they reached near the house of Ghulam Muhammad/D.W.1, they saw Khadim Hussain coming from the side of Chowk and when the latter reached in front of the house of D.W.2 at about 12-15 a.m., Bodi-appellant, while armed with .12-bore gun, came out of his house and raised Lalkara that he would teach a lesson to Khadim Hussain for having illicit intimacy with his sister Mst. Sughran Bibi and within the view of the P.Ws., the appellant fired a shot from his gun which hit Khadim Hussain on his head, as a result whereof brain matter of the deceased came out. The appellant, while brandishing his gun, ran away from the spot. Khadim Hussain died at the spot.
' As to the motive, it was alleged that Bodi-appellant suspected that Khadim Hussain had illicit relationship with his sister Mst. Sughran and the appellant had committed the murder of the deceased on the abetment and instigation of his father Ghulam Muhammad and brother Muhammad Ramzan (both acquitted co-accused).
4. On the same date, i.e, 19-5-1999, when Sher Muhammad, S.-I./P.W.9, along with other police officials, was present at Adda Khurrarianwala in connection with patrol duty, Muhammad Abbas complainant came there and got recorded his statement Exh.P.B./1, which was sent to the police station for registration of formal F.I.R.
5. After drafting and sending the complaint to the police station, Sher Muhammad, S.-I. Went to the place of occurrence; prepared injury statement Exh.P.G. And inquest report Exh.P.H. Of the deceased and sent the dead body for post-mortem examination. He collected blood-stained earth from the spot and sealed the same into parcel vide memo. Exh.P.D. He also prepared the site-plan of the place of occurrence without scale. The last-worn clothes of the deceased were taken into possession through memo. Exh.P.A. Bodi appellant was arrested on 23-5-1999 and while in custody on 1-6-1999, the appellant led to the recovery of gun P.4 which was unloaded and empty P.5 was recovered from it. Both these articles were taken into possession through memo. Exh. P.C. , attested by Ashiq Ali/P.W.3. After completion of investigation, the appellant along with his acquitted co- accused was challaned to face the trial.
6. To substantiate its version at the trial, the prosecution produced ten witnesses. Ocular account was furnished by Muhammad Abbas and Amanat Ali, P.Ws. 4 and 5. They also stated about the motive. Dr. Javed Iqbal/P.W.7, who conducted post-mortem examination on the dead body of the deceased, while observing following injuries on the person of the deceased:--
(1) "A fire-arm lacerated wound 17 c.m. x 7 c.m. Through and through making open compound fracture of skull from front to back with laceration of brain matter and meningis, damaging the blood vessels with entrance from front and exit on back. Blackening was present at entrance.
(II) Contusion mark 5 c.m. x 3.7 c.m. On front of right knee."
' Opined that death had occurred due to head injury (brain matter), haemorrhage and shock, which was as a result of Injury No,1, which was sufficient to cause death in ordinary course of nature and was fall. According to the doctor, Injury No,1 was by fire-arm, while Injury No,2 was by fall. Death was immediate. Post-mortem examination was conducted about 13 hours of the death. Sher Muhammad, S.-I./P.W.9 stated about the drafting, sending of complaint Exh.P.B/1 and the investigation thereafter. Ashiq Ali/P.W.3 stated about the recovery of gun effected at the instance of the appellant. The rest of the evidence is formal in nature and need not be discussed.
6-A. In his statement recorded under section 342, Cr.P.C., Bodi-appellant pleaded his innocence and false implication in the case in the following words:-- ' "I am innocent. I have been falsely involved in this case by the complainant party due to suspicion.
Khadim Hussain deceased was vagabond and man of bad character. He used to tease the girls in the village. He was beaten by the villagers many times. Some unknown person had murdered him in the darkness. As the occurrence had happened in the street, therefore, I have been falsely involved in the occurrence due to suspicion."
' The appellant did not opt to appear as a witness in his defence as contemplated by section 340(2), Cr.P.C. However, he produced Ghulam Muhammad as D.W.1, in front of whose house the occurrence had taken place. D.W.1 stated that someone was murdered in front of his door and he was in the Haveli at that time. At about mid night, his relatives Ishaq and Mushtaq came to him and told that some had thrown a person after murdering him before his house. He came to spot where Abdul Hameed Chairman and 4/5 other persons were present there. The dead body was unidentifiable. Abdul Hameed informed the police about the occurrence on telephone. The watchman told that the dead person was boy of Malik Abbas's family.. The family of Malik Abbas came there and identified the dead body of Khadim Hussain. He further stated that he did not know who had murdered Khadim Hussain.
7. Learned counsel for the appellant submits that the F.I.R. Was registered with due deliberations without explaining the delay of four hours; that both the eyewitnesses were chance witnesses; that the recovery is not believable; and that the motive was disowned during the trial. On these premises, the learned counsel contends that the prosecution has failed to prove the case against the appellant and, thus, he deserves acquittal.
7-A. Conversely, the learned counsel appearing on behalf of the State has submitted that both the witnesses had no enmity against the appellant so as to involve him in a false case; that the F.I.R.
Was lodged within four hours of the occurrence, wherein the appellant was duly named with specific role; that the prosecution evidence is supported by the medical evidence as well as recovery of gun which contained empty; that the acquittal of the co-accused would not benefit the appellant, as they were saddled with the responsibility of lesser role and had not caused any injury to the deceased. He has supported the judgment passed by the learned trial Court.
8. We have heard the learned counsel for the parties and have also gone through the record of the case.
9. The occurrence took place in the mid of the night in front of the house of one Ghulam Muhammad son of Fazal Din who appeared as D.W. I. P.W.4/ Muhammad Abbas who is brother of the deceased and P.W.5/Amanat Ali who is Mamoon (maternal uncle) of the deceased reached the place of occurrence per chance. The sole point which needs evaluation is whether both the P.Ws. 4 and 5 were actually present at the time of occurrence or not. According to the prosecution case, on the night of occurrence, Muhammad Abbas/complainant, his deceased brother Khadim Hussain, his other brother Muhammad Sharif and his uncle Amanat Ali were present in the house.
At about 9-30 p.m. Nazir and Shahid Iqbal (acquitted co-accused) reached there and took Khadim Hussain along with them on the pretext of watching VCR. Thereafter, the P.Ws. Received information that the appellant, while armed with .12-bore gun, was searching for Khadim Hussain. So they left the house in search of Khadim Hussain and per chance spotted him at about 12-15 a.m. (during night) when Bodi appellant who was armed with .12-bore gun came out of his house and after raising Lalkara fired at Khadim Hussain which proved fatal. It is not in evidence that the P.Ws.
Inquired from Khadim Hussain as to where he was. It is also not in evidence as to who had informed the P.Ws. About the fact that appellant was in search of Khadim Hussain in order to murder him.'
This most important link is missing because otherwise there was no occasion for the P.Ws. To leave their house and search for Khadim Hussain. It is also noteworthy that on the one hand it was alleged that the appellant, while armed with a gun, was searching for Khadim Hussain, whereas on the other hand, according to F.I.R., the appellant came out of his house at about 12-15 a.m., while the deceased was passing through the street. The occurrence took place at 12-15 a.m. During night, while the matter was reported to Sher Muhammad, S.-I./P.W.9,. Who was present at Adda Khurrianwala at 4-00 a.m. The distance between Adda Khurrianwala and the police station was hardly 10/15 karams and the distance between the spot and the police station was two miles.
Hence, the matter could easily be reported within half an hour and the delay in reporting the matter to the police casts doubt on the presence of the P.Ws. According to D.W.1, whose house is situated in front of the place of occurrence, it was one Abdul Hameed who had informed the police about the murder of an unknown person through telephone call. The complainant was cross- examined on this point. His answer was that he did not know whether Abdul Hameed had rung up the police about an unknown dead body. Muhammad Ansar, H.C./P.W.2, admitted that it was Abdul Hameed who had come to the police station and informed them about the presence of a dead body in the village. Amanat Ali/P.W.5 admitted that he resided in Mohallah Ghaziabad, Faisalabad and had come to the house of his sister on the fateful day at about 4-00/5-00 p.m. He admitted that his visit was casual. According to him, the Investigating Officer came to the village at about 9- 00/8-30 a.m, and at that time Muhammad Abbas was present at the spot. On the contrary, P.W.4 stated that the Investigating Officer reached the spot at 4-15/4-20 a.m. And the dead body was sent to the mortuary at 4-45 a.m. For post-mortem examination. Both the witnesses tried to implicate Shahid Iqbal, Nazir, Ghulam Muhammad and Muhammad Ramzan in the case who were acquitted by the learned trial Court and their statements to the extent of acquitted accused were disbelieved.
10. Though it was alleged in the F.I.R. As well as in the examinations-in-chief by P.Ws.4 and 5 that the appellant had committed the murder of Khadim Hussain due to suspicion of illicit relationship of the deceased with the sister of the appellant yet during cross-examination P.W.4 disowned the motive as narrated in F.I.R. And was duly confronted with the relevant portion, while P.W.5 stated that it was not in his knowledge prior to the occurrence that Khadim Hussain was carrying on illicit relationship with Sughran Bibi, sister of the appellant. All the afore-mentioned circumstances cast doubt on the presence of the P.Ws. At the time of occurrence.
11. As far as medical evidence is concerned, it supports the prosecution case to the extent that the deceased lost his life due to fire-arm injury which was caused from a close range but it does not lead to the assailant.
12. Now we are left with the report of Forensic Science Laboratory Exh.P.M. It is noteworthy that according to P.W.9, Sher Muhammad/S.-I., the appellant was arrested on 23-5-1999, i.e, after four days of the occurrence. While in custody on 1-6-1999, the appellant led to the recovery of gun from his residential house. The empty was secured after unloading the gun. The empty and the gun were received at the laboratory on 18-6-1999. According to the report, no opinion could be given as to whether the empty was fired from the allegedly recovered gun or not. Even otherwise it is not believable that the accused would keep the empty intact in his gun and would not get rid of it.
Hence, the recovery of gun cannot be used as incriminating evidence against the appellant.
13. The upshot of the whole discussion is that we are of the opinion that the prosecution case is not free from doubt. This appeal is allowed and the judgment passed by the learned trial Court is set aside. The appellant is acquitted of all the charges and would be released forthwith, if not required in any other case.
14. The death sentence is Not confirmed. The Murder Reference is answered in the negative.