' KHAWAJA MUHAMMAD SHARIF, J.---This judgment shall dispose of Criminal Appeal No, 504 of 2005 (Khurram and others v. State) and Criminal Revision No,709 of 2005 (Muhammad Latif v. Khuram Butt and others) as they arise out of the same judgment, dated 17-3-2004 passed by the learned Additional Sessions Judge, Gujranwala, whereby, after having tried the appellants, they were convicted under section 302(b), P.P.C. And sentenced to imprisonment for life with a further direction to pay an amount of Rs,50,000 as compensation to the legal heirs of the deceased in default whereof to further undergo S.-I. For six months as provided under section 544-A, Cr.P.C. And benefit of section 382-B, Cr.P.C. Was extended to the appellants. However, benefit of doubt was extended to co-accused, namely, Amjad and Mumtaz Mithu who were acquitted from the case.
2. Brief facts of the case, as given by the complainant Muhammad Latif in Exh.PE are that on the fateful night he along with his son Khalid Mehmood, paternal grandson Waqas @ Kashi and paternal gradson Usman @ Moon were present in his baithak at about 12-00 (mid-night) of 24-4- 2003 when the door was knocked, the door was opened by Khalid Mehmood where appellant Khuram was present who called Waqas Mehmood @ Kashi, the said Waqas Memood @ Kashi left the baithak with appellant Khurram in their presence, after about 15/20 minutes boys of the Mohallah raised an alaram that Waqas Mehmood @ Kashi was quarrelling, upon which, they reached at the spot where an electric bulb was on, they saw Khurram Butt armed with a .30 bore pistol, Moin appellant was also armed with a .30 bore pistol, while Amjad @ Nanha empty-handed with two unknown persons engaged in the altercation with the said Waqas Mehmood @ Kashi, they saw that Khurram Butt made a fire with his pistol on the, back of left shoulder of Waqas which went through and through, then Moin made a fire with his pistol on his right flank who fell down upon which the accused fled away from the spot, Waqas Mehmood @ Kashi succumbed to the said injuries on the way to hospital while the Motive was stated to be a previous quarrel between Khuram Butt and the deceased Waqas which matter was patched up.
3. After having completed legal formalities, challan was submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where, the prosecution, in order to prove its case against the accused, produced eleven prosecution witnesses during the trial. It is pertinent to mention here that sentence ofappellant Khurram Butt was suspended by this Court while relief of bail was withdrawn by the august Supreme Court of Pakistan, but, till today he has not appeared before this Court. On the last date of hearing an opportunity was granted to his learned counsel to produce him before this Court today, an actual date was given but appellant Khurram Butt has neither appeared before this Court nor has surrendered before the police, so, his right of hearing appeal is forfeited by this Court with the result that this appeal, to his extent, is dismissed and shall only be heard qua appellant Moin Butt. In this regard reliance is placed on Karam Ellahi v. State PLD 2007 SC 255.
4. Learned counsel for the appellant Moin in support of this appeal submits that the motive was attributed to Khurram Butt and not Moin appellant as an altercation took place between the deceased and the Khuram Butt prior to the occurrence but the complainant Muhammad Latif (P.W.4) set up a different motive which reads as under:-- " The motive is that the accused Mumtaz @ Mithu etc. Hadset up a dera near my factory situated in Mohallah Duban where he used to take as well as sell the liquor and narcotics etc. And once they also had come to my factory in order to see Waqas deceased because he had many a time tried to restrain them from the nefarious activities but he was not available there upon which they called him from my house through Khurram Butt andkilled him for that reasonthat both the P.Ws., who are closely related to the deceased i,e, Muhammad Latil (P.W.5), who is paternal grandfather of the deceased and Khalid Mehmood (P.W.4), who is an paternal uncle of the deceased, made dishonest improvements before the learned trial Court; that they were duly confronted with their previous statements; that even their statements were contradictory one; that it was an unwitnessed dark night occurrence; that the F.I.R. Was recorded after due deliberations, concoctions and consultations and in this regard he would like to refer to para. No,14 of the first diary by P.W.10 Javed Siddique 5.-I. To the effect that a dead-body of an unknown person was found; that no recovery was effected from the appellant; that a motorcycle and pistol were recovered from Mumtaz, who, along with Amjad have already been acquitted by the learned trial Court while Waqas accused is a Proclaimed Offender; that no independent witness has been produced; that there is a conflict between the ocular account and the medical evidence because according to the F.I.R. a shot was fired by Khurram Butt Proclaimed Offender on the back of left shoulder which created an exit wound although there is an injury/entry wound on the front and not on the back; that as far as Moin is concerned he fired a shot on the back of right flank while there is no such injury on right flank that as per InvestigatingOfficer many persons appeared before the police in plea of innocence of Moin appellant; that even appellant's first version before the police was that he was innocent in this case when he was arrested on 29-4-2003; that neither the names of the persons who took the deceased in the injured condition to the hospital were mentioned nor their blood- stained clothes were produced; that the place where the tubelights have been shown, P. Ws. Could not have witnessed the occurrence in their light; that the prosecution has failed to prove its case against the appellant and that the appellant is entitled to acquittal by this Court.
5. On the other hand, Mr. Naseeruddin Khan Nayyar, the learned Additional Prosecutor General, while appearing on behalf of the State, submits that it was a timely recorded F.I.R. In which identity of the appellant was specifically mentioned with a specific role; that the source of light has been mentioned in both the site plans; that both the eyewitnesses have no malice to falsely depose against the appellant; that the opinion of the Investigating Officer is inadmissible in evidence; that the persons allegedly appeared before the Investigating Officer qua innocence of the appellant did not appear before the learned trial Court so, it is of no avail to the appellant and that he would support the impugned judgment of conviction.
6. I have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.
7. Names of the three accused persons, namely, Khurram Butt, Moin Butt and Amjad along with two unknown persons were mentioned in the F.I.R. Amjad and Mumtaz have been acquitted by the learned trial Court. The said Mumtaz was named in the supplementary statement along with absconding accused Waqas Saeed.
8. Occurrence in this case had taken place in the dark hours of the night. According to the F.I.R. It was Khurram Butt who brought the deceased from his house at the spot. According to the F.I.R. An altercation had taken place between the Khurram Butt and the deceased prior to the occurrence Moin appellant was not part of that alleged quarrel. He is not related to Khurram Butt. He is not even connected with the motive part of the prosecution story. His first version before the police is of great importance. The occurrence had taken place on 24-4-2003. He appeared before the police on 29-4-2003 to state about his innocence. He had stated before the learned trial Court that he was innocent in this case. In a Division Bench judgment of the Lahore High Court reported in Muhammad Yaqoob v. The State (PLD 1969 Lahore 548), the first version given by the accused before the police was held tobe of a great importance and it was held in the said judgment that the Court not to deprive accused of right to make use of such a statement.
9. A motorcycle and pistol were recovered from Mumtaz, who along with Amjad have already been acquitted by-the learned trial Court. It has come on record that many persons appeared before Investigating Officer S.-I. Javed Siddique (P.W.10) in support of plea of innocence of Khurram. Had the eye-witnesses been present at the spot, who are blood relations of the deceased i,e, Muhammad Latif (P.W.5) is paternal grandfather while Khalid Mehmood (P.W.4) is paternal uncle of the deceased, they could not have made any mistake qua seat of injuries on the body of the deceased and their attribution to the accused persons including the appellant. Argument of the learned counsel for the appellant qua contradiction between the ocular account and the medical B evidence, has force because it was alleged by the prosecution that Khurram Butt had caused fire-arm injury on the back of right shoulder of the deceased while no such injury exists there which belies the presence of both the eye-witnesses. The other injury is attributed on the right flank on the backside but the injury is not present on the right flank which contention of contradiction in the ocular account and the medical evidence was further supported by the statement of P.W.9 Dr. Muhammad Fiaz, who, in his cross-examination has categorically stated that there was no injury on the flank of the deceased.
10. Apart from above, no, crime empty was recovered from the spot. Javed Siddique examination that he had recorded in para. 14 of his first diary qua body of an unknown person. He also stated that the first version of the appellant Moin before the police was of innocence including submissions of affidavits by 33 persons qua innocence of appellant Moin, Khurram and Amjad acquitted accused. He further admitted that about sixty one persons had appeared before him in support of innocence of appellants Moin and Khurram. Added that three unknown persons had committed a dacoity in the area of Police Station Baghbanpura wherein a motorcycle was robbed qua which a wireless message remained in the air continuously. According to the said Investigating Officer, Khurram and D Moin appellants did not possess any weapon and that they did not make any fire on the person of the deceased.
11. I may also mention here that in both the site plans no bulb has been shown. In the site-plan (without scale) two tube-lights have been shown but those are far away from the place of occurrence i,e, one in front of the house of one Yousaf, the other in front of shop of one butcher while in the scaled site-plan, in order to fill upon the lacuna in the prosecution case, a tubelight in front of the milk shop of Akram has been shown where the alleged occurrence had taken place coupled withfact that the F.I.R. Was recorded outside the police station. Furthermore, both the P.Ws.
Who are closely related to the deceased i,e,Muhammad Latif (P.W.5), who is paternal grandfather of the deceased F and Khalid Mehmood (P.W.4), who is a paternal uncle of the deceased, made dishonest improvements before the learned trial Court. They were duly confronted with their previous statements. Even their statements are contradictory one with each other.
12. After having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt to maintain conviction. Resultantly, this appeal is allowed, the impugned judgment is set aside Moin (Appellant No,2) appellant is acquitted from the case and is directed to be released forthwith if not required to be detained in any other case. For afore- referred reasons, I find no merit in Criminal Revision No,709 of 2005 filed by the complainant for enhancement of conviction and sentence of the appellant which is hereby dismissed. It is made clear that any observation made in this judgment shall not affect the case of the absconding accused, if arrested and tried.