' MUHAMMAD FARRUKH MAHMUD, J.--- Haider Ali and Noor Ahmad son of Sherin were tried by Mr. Abdul Hameed, learned Additional Sessions Judge, Arifwala, District Pakpattan Sharif in complaint case brought by Noor Ahmad/complainant for offence under section 302/34, P.P.C. Vide judgment dated 18-12-2000, the learned trial Court, while acquitting Noor Ahmad/co-accused, convicted the appellant Haider Ali for offence under section 302(b), P.P.C. And sentenced him to death plus payment of Rs,50,000 as compensation to the legal heirs of the deceased, in default whereof to undergo further S.I. For six months.
2. The brief facts of the case per F.I.R. Exh.P.A. Lodged at the instance of Noor Ahmad, complainant/P.W.1, are that the complainant, who was cultivator by profession, had foul' brothers.
His younger brother Muhammad Nawaz had gone to Lahore on 23-3-1997 in search of some employment. On the fateful day (27-3-1997) at about 1-00 a.m. Muhammad Nawaz alighted from the bus at Adda Moeen Kot and was coming to the house, while the complainant, his brother Muhammad Iqbal and Allah Yar/P.W.2 were going towards Adda Moeen Kot. When they reached at a distance of three squares from the village, they saw Muhammad Nawaz (deceased) coming from Moeen Kot side. Meanwhile within the view of the P.Ws., Haider (appellant) and Noor son of Sherin (acquitted co-accused), who, while armed with .12 bore pistols, were hiding behind the bank of the watercourse emerged suddenly at the road. Haider Ali challenged Muhammad Nawaz. The later started running. Haider caused a fire from his pistol, hitting Muhammad Nawaz on the left side of his back, in view whereof Muhammad Nawaz fell on the ground. The second fire was shot by Noor son of Sherin, which hit Muhammad Nawaz on the right side of his back. The complainant, Muhammad Iqbal and Allah Yar, P.Ws., while challenging Haider and Noor came forward, when Haider threatened them with the same fate. Due to fear the P.Ws. Did not intervene. Both the accused decamped from scene of the tragedy with their respective weapons. Muhammad Nawaz succumbed to the injuries at the spot.
' The motive behind the occurrence was stated to be that six years prior to the occurrence, Yasin, paternal-cousin of the complainant, had committed the murder of the father of Haider and due to that grudge the accused killed Muhammad Nawaz the brother of the complainant.
3. On 23-12-1996, Muhammad Rafiq, Inspector/C.W.1, recorded F.I.R. Exh.P.A. At the instance of the complainant. On the same date, he went to the spot; took into possession blood-stained earth through memo. Exh.P.C.; prepared the injury statement Exh.C.W.1/A, Inquest report Exh. 1/B of the deceased and sent the dead body for post-mortem examination. The Investigating Officer/I.O.
Prepared rough site plan of the place of occurrence Exh.C.W.1./C. Scaled site plan Exh.P.F. Was got prepared from Muhammad Sadiq, Patwari/P.W.4. On 24-4-1997, Haider Ali/appellant and Saeed Ahmad (since dead) were arrested. While in custody on 1-5-1997, the appellant led to the recovery of pistol .12 bore P.4 which was taken into possession vide memo. Exh.P.G. After completion of investigation, both the appellant and Saeed Ahmad (since dead) were challaned to face the trial.
4. However, on 8-6-1998 Noor Ahmad, complainant, filed private complaint Exh.P.B. Against Haider Ali and Noor son of Sherin for offence under section 302/34, P.P.C. On the same facts as narrated in the F.I.R. Exh.P.A. With the addition that during investigation the police in connivance with the accused persons declared Noor accused innocent and challaned his brother Saeed dishonestly and that he filed many applications before the higher police authorities but all in vain. Preliminary inquiry was got conducted by Mr. Shahid Rafiq, learned Judicial Magistrate Section 30, Pakpattan Sharif, who vide his report dated 1-10-1998, held that the appellant and Noor son of Sherin were all connected with the commission of the offence. In view of the aforesaid report, both Haider Ali and Noor were summoned to face the trial in the complaint case.
5. In order to prove his case, the complainant examined eight witnesses. After tendering in evidence the reports of Chemical Examiner Exh.P.K. Serologist Exh.P.L. And Forensic Science Laboratory Exh.P.J., the complainant closed his side.
6. In his statement recorded under section 342, Cr.P.C., Haider Ali/appellant, pleaded his innocence and false implication in the following words:-- "It is a false case. The P.Ws. Have made false statements due to their relationship inter se and with the deceased and on account of enmity with us. Muhammad Nawaz deceased was neither a witness against us in any case nor he was an accused in any case between the parties and we had no motive to kill him. It was an unwitnessed occurrence. The complainant party after preliminary enquiries, deliberations and consultations falsely implicated me and my co-accused in this case. In the first instance Saeed Ahmad brother of Noor Ahmad co-accused was roped in and when he died in jail private complaint has been filed afterwards in which myself and Noor Ahmad have been arrayed as an accused. I am innocent."
' However, neither the appellant appeared as his witness as enjoined by section 340(2), Cr.P.C. Nor did he produced any witness in his defence.
7. Learned counsel for the appellant submits that both the eyewitnesses were chance witnesses who could not explain their presence at the time of occurrence; that the complainant in this case had been making divergent statements; firstly he implicated Noor Ahmad; then through supplementary statement substituted Saeed Ahmad for Noor Ahmad and when Saeed Ahmad died he filed the private complaint; that the medical evidence does not support the ocular account; that the prosecution failed to set up motive against the appellant; and that the case of the appellant was not distinguishable from that of Noor Ahmad who has been acquitted.
8. Contrarily, the learned counsel appearing on behalf of the complainant submits that the eye- witnesses explained before the learned trial Court that they were going to Adda Moeen Kot as their tractor was being repaired there; that as far as supplementary statement of the complainant is concerned, Noor and his brother Saeed had almost similar faces and, therefore, firstly there was some confusion, which was, later on, clarified; that the ocular account is supported by the medical evidence and corroborated by the factum of recovery of pistol; that both the P.Ws. Have given a very consistent account and their statements do not suffer from any infirmity qua the appellant who was the first who caused fire; that it was a daylight occurrence and the identification of the appellant was not in question; that it was a case of promptly lodged F.I.R. Which supported the prosecution case. The learned counsel appearing on behalf of the State, while adopting the line of arguments of the learned counsel for the complainant, support the judgment passed by the learned trial Court.
9. We have heard the learned counsel for the parties and have also read the entire evidence with their assistance.
10. In order to prove its case, the prosecution produced Noor Ahmad, brother of the deceased, and Allah Yar as P.W.1 and P.W.2 respectively. The place of occurrence, undeniably, was at a distance of three squares from the village where the P.Ws. Lived. Allah Yar P.W. Admitted that neither the P.Ws.
Had their agricultural land nor their residential houses near the spot. It was not mentioned either in the F.I.R. Or in the complaint which was lodged on 8-6-1998, after more than a year of the occurrence as to why on the fateful day the complainant and the P.Ws. Were going towards Adda Moeen Kot. A lame effort was made by the complainant by stating before the learned trial Court that on the fateful day he and the witnesses were going to Adda Moeen Kot to get back their repaired tractor but this dishonest improvement is not supported either by the other witness or by any circumstantial evidence. It is also noteworthy that according to F.I.R., the deceased had gone to Lahore since 23-3-1997 and on the fateful day he was coming back to his house after alighting at Adda Moeen Kot. The P.Ws., who were going towards the Adda, saw the deceased per chance.
The complainant did not mention in his statement before the learned trial Court that the deceased had gone to Lahore since 23-3-1997, knowingly that in that case the assailants could not know about the return of the deceased and the story of waylaying would fall flat. According to F.I.R., Haider appellant and Noor son of Sherin, both while armed with pistols, launched murderous assault on the deceased and each of them caused one fire. The fire caused by appellant hit on the left side of back, while the fire caused by Noor hit on the right side of the back of the deceased.
Both the accused were not only specifically named but specific role and specific injuries were also attributed to them. Supplementary statement of Noor Ahmad/ complainant was recorded on the same date, wherein he stated that the real culprit was Saeed Ahmad son of Sherin brother of Noor and he due to misunderstanding had named Noor in the F.I.R. During investigation, according to memo. Exh.P.H., Saeed Ahmad, on 1-5-1997, while in custody, led to the recovery of cycle which was used by the accused during the occurrence. Saeed died in jail on 7-11-1997. Thereafter the complainant filed private complaint wherein he again named Noor son of Sherin as the real culprit.
In his statement before the learned trial Court, he made dishonest improvement by stating that on the very first day, Noor was found innocent by the police and the contents of Exh.D.A. Were not correct and he had not made any such statement. Of course, he was duly confronted with his supplementary statement, i.e. Exh.D.A. Allah Yar/P.W.2, who is Bhanja of the deceased, stated before the learned trial Court that it was Noor accused who had caused the second fire. During cross- examination, he admitted that his statement was recorded by the police at the spot, wherein he had narrated to the police that the other accused was Noor son of Sherin. He was duly confronted with Exh.D.C., which is available on the police record, wherein second accused was Saeed Ahmad and not Noor. The above noted facts make it manifest that both the P.Ws. Were not present at the time of occurrence and they named the accused merely on suspicion. Noor was acquitted by the learned trial Court. No appeal against the acquittal has been filed. According to both the P.Ws. Noor and Haider Ali both the accused fired on the body of Muhammad Nawaz. The witnesses having been disbelieved qua Noor can only be believed against Haider Ali in the presence of very strong reliable independent evidence which is not available in this case.
11. As far as medical evidence is concerned, it supports the prosecution to the extent that the deceased lost his life due to fire-arm injuries and not further. Allah Yar/P.W.2 stated that the fire was caused from 1-1-1/2 feet, while according to medical evidence, no charring or blackening was seen around the wound, which shows that the fire was caused from some distance and not from a close range. Memo. Exh.P.H. Shows that on 1-5-1997 Saeed Ahmad, who was, later on, not named in the complaint as he had already died, led to the recovery of cycle which was used during the occurrence. This recovery memo. Casts further doubt on the prosecution case as the F.I.R. Was silent about the use of any bicycle.
12. As regards the recovery of pistol, the same is of no consequence because no empty was recovered from the place of occurrence and no one from public was associated with the recovery proceedings, in utter violation of the provisions of section 103, Cr.P.C. Reference may be made to the case of Zaman Iqbal v. The State 1990 MLD 90 (Lahore) (D.B.).
13. As to the motive, it was stated in the F.I.R. That Yasin cousin of the complainant had murdered the father of Haider Ali appellant six years prior to the occurrence; hence, the two accused, who were related inter se, took the life of Muhammad Nawaz. During trial the complainant made dishonest, improvement by stating that Nawaz used to pursue the case of Yasin. He was confronted with his earlier statements. It was admitted by the complainant that on 24-10-1997 Yaseen was sentenced to imprisonment for life by the learned trial Court, while Mansha/coaccused was acquitted and it was also correct that Yaseen was bailed out on 17-5-1995 and his appeal was pending decision in the High Court. It was also admitted by him that after his release on bail, Yaseen was leading his normal life in the village. In these circumstances, it is not believable that despite availability of the suspected murderer, the assailant would take the life of a person who was pursuing the case. The criteria for believing related evidence was laid down by the Honourable/ Supreme Court in the case of Thoba and another v. The State PLD 1963 SC 40, wherein it was observed that evidence on capital charge must come from unimpeachable source or be supported by strong circumstances that might remove inherent doubt attaching to the evidence of interest or partisan witnesses. The Honourable Supreme Court reiterated its above View in the case of Bagh Ali and .4 others v, The State PLD 1973 SC 321. The evidence in the instant case does not qualify according to above noted principles.
14. For the foregoing reasons, we allow this appeal and set aside the judgment passed by the learned trial Court. The appellant is acquitted of all the charges and would be released forthwith, if not, required in any other case. The death sentence is not confirmed. The Murder Reference is answer in the negative.