' MUHAMMAD FARRUKH MAHMUD, J.---This judgment will dispose of Criminal Appeal No,91 of 2001 filed by Javed Akhtar, who was convicted and sentenced by the learned Additional Sessions Judge, Rawalpindi, camp at Central Jail Adiyala, Rawalpindi, in case F.I.R. No,16, registered at Police Station Kotli Sattian, District Rawalpindi, on 11-3-1994 for offences under section 302/34 P.P.C., vide his judgment dated 27-2-2001 as under:- ' Death with compensation of Rs,1,50,000 or in default six months' imprisonment under section 302(b)134, P.P.C.
' Murder Reference No,430 of 2001 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.
2. Brief facts of the case as narrated in complaint Exh.PE by Sultan Ahmad/ complainant (P.W.7) are that on the fateful day i.e, on 11-3-1994 at about 5-00 p.m. While the complainant and his brother Muhammad Asif (army personnel) were watching the cricket match among children at Qalla Thandi, Zahoor Ahmad and Muhammad Javed (Javed Akhtar-Appellant), both armed with 7 mm rifles reached there and called Muhammad Asif who refused their call . At that time the complainant was also present at a distance of some yards. Within the view of complainant, Muhammad Asif and Zahoor Ahmad grappled with each other. Muhammad Asif fell Zahoor Ahmad down and caught hold of his rifle. Zahoor Ahmad raised Lalkara directing Muhammad Javed to fire.
Thereafter Muhammad Javed fired four shots with his 7 mm rifle towards Muhammad Asif. One fire hit Muhammad Asif on his right armpit and the second fire hit him on left hip from external side.
One fire also hit Zahoor Ahmad. Thereafter both the accused fled away from the spot leaving Muhammad Asif in injured condition. Muhammad Asif died at the spot.
' The motive behind the occurrence was that Aziz Ahmad, maternal uncle of Zahoor Ahmad was murdered about 6/7 years prior to the occurrence. Zahoor Ahmad suspected that Muhammad Asif was involved in the said murder but the allegation could not be proved against him. For that reason the accused with their common intention murdered Muhammad Asif.
3. After registration of formal F.I.R., the investigation of the case was taken over by Ashraf Ali, S.- I./P.W.12. He proceeded to the place of occurrence, took over the dead body, prepared injury statement Exh.PJ and inquest report Exh.PL. He took into possession blood-stained earth from the spot vide memo. Exh.PC. He also collected four empties P-1/1-4 from the spot and took the same into possession vide memo. Exh.PF. On 12-6-1996 Muhammad Yousuf, Inspector/P.W.11 arrested Javed Akhtar-accused, who, while in custody, on 24-6-1996 led to the recovery of rifle P-2 from the house of his brother-in-law Zahoor Ahmad, which was taken into possession vide memo. Exh.PG.
Zahoor Ahmad could not be arrested, as he was absconder. After completion of investigation, Javed Akhtar-accused was sent up to face trial.
4. 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.PN and that of Forensic Science Laboratory Exh.PO closed its case. The accused in his statement recorded under section 342, Cr.P.C. Pleaded his innocence. He did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial the appellant was convicted and sentenced as stated above.
5. 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 both the witnesses are not only related to the deceased but were also inimical towards the appellant and in addition to that they were chance witnesses; that their statements are not supported by the medical evidence and are belied by the report of Forensic Science Laboratory; and that the prosecution case is replete with doubts.
6. The learned counsel appearing on behalf of the State have contended that the occurrence took place when the light was available; that mere relationship of the deceased with the P.Ws. Would not be enough to discard credibility of their statements; that both the witnesses have given consistent account of the occurrence, as, according to doctor, the deceased lost his life due to fire- arm injuries; that the empties recovered from the spot could not match with the weapon recovered at the instance of the appellant because of technical reasons and thus, would not benefit the appellant; and that the prosecution has successfully proved motive as set down in the F.I.R., which supports the ocular account. They support the judgment passed by the learned trial Court.
7. We have heard the learned counsel for the parties at length and gone through the record carefully. The prosecution case revolves around the evidence furnished by Sultan Akbar P.W.7 (brother of the deceased) and Muhammad Miskeen P.W.8 (uncle of the deceased). They are eyewitnesses. They are also witnesses of the motive and recovery. Their statements need deeper scrutiny as enmity existed between the complainant party and the accused. As per F.I.R.
Muhammad Asif-deceased, who was a Fuji (Army Personnel), was on leave and on the fateful day at 5-00 p.m., he and complainant, were present at Qalla Thandi, where the children were playing cricket. Meanwhile, Zahoor Ahmad co-accused (absconder) and Javed Akhtar-appellant, armed with 7 mm rifles, reached there and called Muhammad Asif-deceased. Firstly, the deceased refused but when he was called against he went to Zahoor Ahmad co-accused. The moment he reached there, Zahoor Ahmad and Muhammad Asir grappled with each other. Muhammad Asif fell Zahoor Ahmad down and caught hold of his rifle. Thereafter Zahoor Ahmad raised Lalkara instructing Javed Akhtarappellant to fire. The appellant caused four fires with his 7 mm rifle. One fire hit Muhammad Asif under right armpit while the other on the outer side of left buttock. One fire also hit Zahoor Ahmad absconding co-accused. Both the accused made good their escape after leaving Muhammad Asif in injured condition, who died at the spot. The motive behind the occurrence was that Aziz Ahmad, maternal uncle of Zahoor Ahmad, was murdered 6/7. Years prior to the occurrence and in that case Muhammad Asif-deceased was implicated but the allegation could not be proved against him. The accused felt aggrieved and took life of Muhammad Asif. In the background of motive it is not plausible that 'Muhammad Asif would go near the accused on their call, who were armed with deadly weapons like rifles. It is also not believable that real brother would allow his brother to go near his enemies. It is also strange that both the accused, who were armed with 7 mm rifles, did not cause fire when they saw the deceased sitting and instead of that they called the deceased and started grappling with each other. This part of story is too unnatural to be true. Both the P.Ws. Stated that one fire hit on the right armpit while second fire hit on the left buttock on the external side. Their version is belied by the B medical evidence, as doctor Muhammad Qasim Zia/P.W.9 observed the following injuries:-
(1) There was an oval shaped lacerated wound .5 c.m. x .5 cm. Which was 8 c.m away from the nipple and 6 c.m. From the anterior wall of the right axilla. This was the wound of entry.
(2) There was a wound of exit which was a lacerated wound 1 c.m. x 1 c.m. On the back of left hip joint 10 c.m. Away from the middle of sacrum and 22 c.m. From the anterior superior iliac spine.
It is manifest that when the witnesses reached the spot they noticed injury on the left hip and therefore, stated that the deceased received two injuries at the hands of the appellant, one on the armpit and the other on the hip joint. The second injury was an exit wound and was C not the result of independent fire. This shows that the P.Ws. Were not present when the injuries were caused. We are further strengthened in our view by looking into rough site-plan Exh.PM and scaled site-plan Exh.PD, wherein the presence of the accused has not been mentioned.
8. It is also pertinent to note that time of death was mentioned in the post-mortem report as 8-15 p.m. On 11-3-1994, while according to P.Ws., the occurrence took place at 5-00 p.m. During cross- examination the doctor verified the above noted fact. Sultan Akbar P.W.7 stated that he reached police post at about 7-00 p.m. While according to Ashraf Ali, S.-I./ P.W.12 he received information through complainant at 9-00 p.m.
9. In the instant case the motive is existing hostility between the parties, so it cuts both ways. It could be a reason for causing murder and it could also be a reason for implicating the appellant in the case, especially when the P.Ws. Had not E seen the assailant. Aziz Ahmad, who was murdered earlier, was maternal uncle of Zahoor Ahmad co-accused and was not related to the appellant.
The motive, in the circumstances, does not enhance the prosecution case.
10. As far as the recovery evidence is concerned, it rather adversely affects the prosecution case as, according to the report of , Forensic Science Laboratory Exh.PO, four crime empties of .7 mm C-1 to C-4 were received at the laboratory on 7-4-1996, while the rifle, allegedly recovered at the instance of the appellant, was received at the laboratory on 14-7-1996. The crime empties C-2, C-3 and C-4 could not be used for identification due to some technical faults, while C-1 was found to be not fired from the recovered rifle. In addition to that no independent witness was associated during the recovery proceedings. The appellant was arrested on 12-6-1996 i.e, after more than two years of the occurrence. On 24-6-1996 allegedly he led to the recovery in the presence of P.Ws. 7 and 8.
Even after two years of the occurrence the Investigating Officer found it fit to cite eye-witnesses as witnesses of recovery instead of any independent witness. According to P.W.8, on the date of recovery i.e, 24-6-1996 he and P.W.7 proceeded to the place of occurrence on their own, as if the Investigating Officer was waiting for them at the place of occurrence after two years.
11. The learned counsel for the complainant has laid much stress on the factum of abscondence without realizing that the abscondence was not substantial evidence and it could be used against the appellant, if legally proved, only as corroborative evidence. Needless to say that after giving considered opinion that the P.Ws, were not present at the time of occurrence, abscondence would not help the prosecution in any manner.
12. The upshot of the whole discussion is that the prosecution case is not free from doubts. Hence, we allow this appeal, set aside the judgment passed by the learned trial Court and acquit the appellant of all the charges. He would be released from jail forthwith, if not required in any other case.
13. Murder Reference is answered in the negative. Death sentence is not confirmed.
14. However, this judgment will not affect the order passed by the learned trial Court against Zahoor Ahmad proclaimed offender.