Muhammad Farrukh Mahmud, J.--This judgment will dispose of Criminal Appeal No. 1751 of 2001 filed by Imran alias Imranu, who, alongwith his three brothers Mir Mussa, Adnan, Salman and Shahbaz alias Majhu son of Khan Muhammad faced trial in case F.I.R. No. 168, registered at Police Station Satellite Town, Gujranwala, on 20-3-2000, for offences under Sections 302/148/149/109, P.P.C., before learned Additional Sessions Judge, Gujranwala, who after concluding the trial, vide his judgment, dated 31-10-2001, while acquitting rest of the accused, convicted the appellant under Section 302(b), P.P.C. and sentence him to death with compensation of Rs. 2,00,000 or in default six months' S. I.
2. Murder Reference No. 727 of 2001 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.
3. Brief facts of the case as mentioned in F.I.R. Exh.P.E./1 as stated by Safdar Ali complainant/P.W.9 are that on 23-3-2000 at about 8-00 p.m. son of the complainant Ijaz Ahmad was going to offer "Esha Prayer". When Ijaz Ahmad reached near the house of Aslam Zia, Imran, alias Imranu and Abu Mussa, both armed with .222 bore rifles, Adnan alias Danu, Salman alias Salmanu and Shahbaz Ahmad alias Majhu, all armed with fire-arms, who were sitting there, started straight away firing at Ijaz Ahmad, which hit Ijaz Ahmad on the lower part of his abdomen and different parts of the body, who fell down. Meanwhile, Khadim Hussain son of Muhammad Ramzan and Muhammad Afzal son of Allah Ditta also came to the spot. The accused, while raising Lalkara and firing, made good their escape. Ijaz Ahmad succumbed to the injuries while on his way to hospital.
4. The motive behind the occurrence was previous litigation between the parties. It is also mentioned in the F.I.R. that the accused committed the murder of Ijaz Ahmad on the abetment of Kaleem Ahmad Bhatti (Ex-Councillor) and Naeem Ahmad Bhatti.
5. On receipt of information Muhammad Razzaq, S.-I./P.W.11 reached Civil Hospital, Gujranwala, where he recorded the statement Exh.P.E. of the complainant and sent the same to the police station for registration of formal F.I.R. He took over the dead body, prepared injury statement Exh.P.K. and inquest report Exh.P.H. He inspected the spot and took into possession blood-stained earth, one shoe and a Chaddar from the spot vide memo. Exh.P.G. On 24-3-2000 the complainant made supplementary statement, wherein he nominated Ehsan alias Shani, Shahbaz, Mir Mussa, Adnan and Suleman as accused. The Investigating Officer arrested them except Ehsan, who was later on declared proclaimed offender. On 8-5-2000 he arrested Imran-appellant and on the same day the appellant led to the recovery of pistol P. 5 alongwith five live bullets P.6/1-5 from Dera of one Shaqu, which were taken into possession vide memo. Exh.P.B. After completion of investigation, the accused were sent up to face trial.
6. At the trial, the prosecution in order to prove its case produced 12 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.P.M. and that of Forensic Science Laboratory Exh.P.N. closed its case. TTie accused in their statements recorded under Section 342, Cr.P.C. pleaded their innocence. They did not appear as witness under Section 340(2), Cr.P.C. However, they produced Shahid Mehmood and Zaheer-ud-Din Malik as D.W.1 and D.W.2 respectively. After conclusion of trial the learned trial Court, while acquitting rest of the accused, convicted and sentenced the appellant as stated above.
7. After having read the entire prosecution evidence, statement of the appellant recorded under Section 342, Cr.P.C. and other relevant material available on record the learned counsel for the appellant in support of this appeal submits that on the statements of the eyewitnesses four of the accused, who were assigned the similar role have been acquitted and no independent corroboratory evidence is available against the appellant, hence, his conviction was recorded against the principles laid down by the superior Courts.
8. The learned counsel for the complainant submits that P.Ws. have specifically stated against the appellant as well as Ehsan alias Shani, who remained absconder; that case of the appellant was distinguishable from the acquitted accused as he led to the recovery of .30 bore pistol from his house; and that statements of both the witnesses are consistent as far as the appellant is concerned and their statements are supported by the medical evidence and corroborated by the factum of recovery.
9. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely. In order to prove its case the prosecution produced two eye-witnesses namely Safdar Ali P.W.9, who is father of the deceased, and Muhammad Afzal P.W.10, who is Mamoonzad of the complainant. Both the witnesses resided at a place, which was at a distance of 300/400 yards from the spot and it was stated in the F.I.R. that enmity existed between the complainant party and the accused. According to F.I.R., Ijaz Ahmad-deceased was going to mosque for saying Esha Prayer and when he was near the Kothi of Aslam Zia, the accused who were five in number and all armed with fire-arm weapons, were present there. The weapons of Imran-appellant and Abu Mussa (acquitted accused) were specified as .222 rifles. All of them opened fire at Ijaz Ahmad, who received injuries on different parts of his body. Meanwhile, Khadim Hussain, who was not produced before the trial Court and was related to the complainant, and Muhammad Afzal P.W.10 reached the spot. In order to justify their presence the witnesses made dishonest improvements in their statements before the learned trial Court. Muhammad Afzal stated that Safdar had called him and asked him to reach the Kothi of Aslam Zia and that Safdar and the deceased were going to the Kothi of Aslam Zia. The complainant, who had never mentioned in the F.I.R. that he was going to Kothi of Aslam Zia, stated before the learned trial Court that he alongwith Ijaz was going to the Kothi of Sardar Aslam, Advocate and Khadim Hussain and Muhammad Afzal P.W. were going behind him. He further stated that when they reached near the Galla of Aslam Zia, Ijaz entered in the street for offering Esha Prayer. The portion of the statement that the complainant and the deceased were going to Kothi of Sardar Aslam Zia and the witnesses were going behind them is against the facts given in the F.I.R. However, it remained mystery as to why the P.Wse. and the complainant were going to the Kothi of Aslam Zia. During cross-examination the complainant admitted that the mosque was situated at a distance of 10 yards from his house towards East. So the very basis of presence of the P.WS. at the spot is not free from doubt.
10.Both the witnesses also made dishonest improvements about the occurrence before the learned trial Court. According to F.I.R., Imran-appellant was armed with .222 rifle, Abu Mussa was also armed with .222 rifle, while Adnan, Suleman and Shahbaz accused were armed with fire-arni weapons. All of them fired at Ijaz Ahmad. In supplementary statement before-the police Safdar Ali added the name of Ehsan alias Shani (proclaimed offender) as one of the accused. In his statement before the learned trial Court he dishonestly did not mention that Imran and Abu Mussa were holding rifles in their hands. In his improved version he attributed effected fires to all the six accused. The weapons were not specified as the complainant was aware that during investigation police had recovered .30 bore pistol from the appellant instead of rifle. Muhammad Afzal P.W. went a step further by stating that fire caused by Imran hit on the left side near penis, while the fire caused by Ehsan (P.O.) hit on the right thigh of the deceased. Thereafter all the accused fired on the deceased and he fell down. During cross-examination he stated that the accused were running behind the deceased and that the accused caused 10 to 12 fires. The statements of both the witnesses are contradicted by the medical evidence. According to doctor, the deceased had received only three injuries on his person. Injury No. 1 was on the inner and front of left thigh and it had an exit wound, which was on the left buttock. Injury No. 2 was also on the front of right thigh and Injury No. 3 was on inner side of left thigh. During cross-examination he explained that Injury No. 1.damaged the femeral artery and vein on left side, while Injuries Nos. 2 and 3 did not cause any internal damage: They were simple in nature and muscle deep. He further explained that there was possibility that missile, which exited of Injury No. 2, could cause glancing wound/Injury No. 3 on the person of the deceased. Even if it is presumed that the deceased received three distinct fire-arm injuries, it would be enough to destroy the prosecution case, as according to the complainant all the six accused effectively fired at the deceased then number of injuries should have been at least six. While P.W. 10 Muhammad Afzal stated that the accused caused 10 to 12 fires. It is also pertinent to note that according to doctor possibility of injuries having been caused by a .12 bore gun could not be ruled out. No blackening or burning was seen around the wounds, which also contradicted the story put forward by the complainant that all the accused emerged in front of the deceased and fired at him.
11. Most importantly the case of the appellant was at par with that of the acquitted accused. His role cannot be distinguished from them. Though P.W. 10 made dishonest improvement by stating that first fire was caused by Imran and the second fire was caused by. Ehsan but he also stated that all the accused effectively fired at the deceased. Hence it cannot be said that the case of the appellant was distinguishable from rest of the accused. P.Ws. have been disbelieved qua acquitted accused. The appeal filed against their acquittal has already been dismissed vide order, dated 31- 1-2002. In these circumstances, the appellant can only be convicted if his case can be sifted from rest of the accused and that G would be possible only in presence of some strong reliable independent corroboratory evidence, which is lacking in this case. The learned counsel for the complainant has referred to the recovery of pistol at the instance of appellant on that regard, but the recovery of .30 bore pistol would not advance the prosecution case in any manner for the reason that recovery was effected from a Dera of one Shaqu situated in Ittifaq Colony, Gujranwala, which was accessible to other persons as well; and that no empty was recovered from the spot.
12.Considering all the above noted circumstances, we allow this appeal, set aside the judgment passed by the learned trial Court and acquit Imran alias Imranu-appellant of all the charge. He would be released from jail forthwith, if not required in any other case.
13.Consequently, Murder Reference is answered in the negative and the death sentence is not confirmed.