' MUHAMMAD FARRUKH MAHMUD, J.---This judgment will dispose of Criminal Appeal No,396-J of 2001 filed by Mansib Khan, who faced trial in case F.I.R., No,472, registered at Police Station Chak Jhumra, District Faisalabad, on 10-9-1995, for offences under sections 302/ 34, P.P.C., before learned Sessions Judge, Faisalabad, who after conclusion of trial, vide his judgment dated 31-10-2001 convicted the appellant under section 302(b) P.P.C., and sentenced him to death with compensation of Rs,1,00,000 or in default six month's R.I.
2. Murder Reference No,769 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.F. Recorded on the statement of Ijaz Ahmad/complainant (P.W.7) brother of the deceased are that on 9-9-1995 at about 10-00 a.m.
Mansib Ali abused Gulzar Ahmad son of Muhammad Sadiq, a wagon driver. Riaz Ahmad brother of the complainant) favouring Gulzar Ahmad abused Mansib Ali and also called him "Bagharat". On the same day at about 6-15 p.m. While the complainant, his brother Riaz Ahmad, Irshad Ahmad and Zafar Iqbal were coming to their house from their Dera and were in front of the house of Mansib Ali, Mst. Sahib Bibi mother of Mansib All and Mansib Ali armed with .12-bore double barrel gun suddenly came out of their house. Mst. Sahib Bibi raised Lalkara to teach a lesson to Riaz Ahmad for calling "Bagharat". Thereupon Mansib Ali fired at Riaz Ahmad, which hit him on his right wrist. Riaz Ahmad turned back. Mansib Ali fired another shot, which landed on his belly and right thigh. ' Riaz Ahmad fell down. Thereafter Mansib Ali made good his escape. The P.Ws. Witnessed the occurrence and shifted Riaz Ahmad to Civil Hospital, Chak Jhumra, in injured condition. Due to his serious condition, the Medical Officer referred the injured to Civil Hospital, Faisalabad. When they reached Civil Hospital, Faisalabad, Riaz Ahmad succumbed to the injuries.
4. The motive behind the occurrence was that Mansib Ali and his mother murdered Riaz Ahmad due to the incident of abusing and calling "Bagharat" by Riaz Ahmad to Mansib Ali.
5. After registration of formal F.I.R., the investigation of the case was taken over by Muhammad Razzaq, S.-I./P.W.9. As the dead body had been brought to the Police Station, he took over the same, prepared injury statement Exh.P.C. And inquest report Exh.P.D. After dispatching the dead body for post-mortem, he proceeded to the place of occurrence, where he prepared rough site-plan Exh.P.H. And recorded the statements of P.Ws. Zafar Iqbal and Irshad Ahmad. Earlier Mansib Ali was declared proclaimed offender but later on he was arrested on 22-10-2000 and after completion of investigation, he was sent up to face trial.
6. At the trial, the prosecution in order to prove its case produced 11 witnesses in all. Dr. Arshad Ali Cheema/ P.W.4 medically examined Riaz Ahmad in injured condition, who was brought by Arshad Mehmood, FC, and later on conducted post-mortem on the dead body of Riaz Ahmad. He observed the following injures:--
(1) Three fire-arm wounds of entrance with inverted margins on the outer aspect of left abdomen having each diameter of 1/2 c.m. x 1/2 c.m. In an area of 10 c.m. x 8 c.m..
(2) Three fire-arm wounds of exit with averted margins on the front of left abdomen having each diameter of 1/2 c.m. x 1/2 c.m. In an area of 13 c.m. x 9 cm.
(3) A fire-arm wound of entrance on the front of right abdomen having diameter of 1/2 c.m. x 1/2 c.m. With inverted margins.
(4) A fire-arm wound of entrance with inverted margins having a diameter of 1/2 c.m. x 1/2 c.m. On the back of the right fore-arm.
(5) A fire-arm wound of exit with averted margin having a diameter of 1/2 c.m. x 1/2 c.m. On the inner aspect of the left fore-arm.
(6) A fire-arm wound of entrance 1/2 c.m. x 1/2 c.m. With inverted margins on the outer aspect of the right inguinal region.
(7) A fire-arm wound of entrance 1/2 c.m. x 1/2 c.m. With inverted margins on the right upper thigh.
(8) A fire-arm wound of exit 1/2 c.m. x 1/2 c.m. With averted margins on the inner aspect of the right upper thigh.
(9) A grazing wound of 1-1/2 c.m. x 1 c.m. On the root of penis.
' The accused in his statements recorded under section 342, Cr.P.C. Pleaded his innocence and false implication. He did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial, the learned trial Court convicted and sentenced the appellant as stated above.
7. The learned counsel for the appellant 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 in support of this appeal has contended that both the eye-witnesses were not only related to the deceased and they were also chance witnesses; that both the P.Ws. Made dishonest improvements before the learned trial Court; that both the P.Ws. Failed to plausibly explain their presence at the time of occurrence; that the medical evidence belies the version as narrated by the P.Ws.; that no independent witness was produced to prove the motive, which was trivial in nature; that the P.Ws. Also involved the mother of the appellant in the case, who was acquitted and no appeal against her acquittal was filed; that the alleged recovery of gun at the instance of the appellant was of no consequence and was rightly disbelieved by the learned trial Court; and that the prosecution case was not free from doubt, so benefit of doubt should be extended in favour of the appellant.
8. The learned Additional Prosecutor General submits that both the P.Ws. Had no previous enmity or against the appellant so as to depose falsely against him; that both of them have plausibly explained their presence at the time of occurrence as they had taken the deceased to the hospital while he was injured; that the ocular account was fully supported by the medical evidence; that the delay in lodging the F.I.R. Stood explained, as the P.Ws. Who were related to the deceased had been attempting to save life of the deceased and could not report the matter to the police; that the ocular account stands corroborated by the factum of abscondence of the appellant; and that the lapses on the part of the Investigating Officer would not be enough to throw out the prosecution case, which stood proved through the direct evidence. He supports the judgment passed by the learned trial Court.
9. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely.
10. In support of its case the prosecution produced Ijaz Ahmad/ complainant, brother of the deceased and Irshad Ahmad, maternal cousin of the deceased as eye-witnesses. The occurrence took place during evening at 6-15 p.m. According to F.I.R. The complainant along with his brother Riaz Ahmad-deceased, Irshad Ahmad P.W.8 and one Zafar Iqbal was going towards his house from his Dera. When they reached, near the house of Mansib Ali appellant, Mansib Ali emerged out of hOuse along with his mother and twice fired at Riaz Ahmad after raising Lalkara by his mother Sahib Bibi, who was tried separately and was acquitted. The P.Ws. Claimed that while Riaz Ahmad was injured he was taken to Civil Hospital, Chak Jhumra by them. Due to precarious condition of Riaz Ahmad the Doctor referred him to Civil Hospital, Faisalabad. Both the witnesses were per chance present at the time of occurrence. So the first question would be whether presence of the P.Ws. At the time of occurrence was established through reliable evidence or not.
11. The statements of the P.Ws. Were also recorded at the time of trial of Sahib Bibi mother of the appellant. In his earlier statement Exh.P.C. Before the learned trial Court Ijaz Ahmad P.W. Conceded during cross-examination that house of absconder accused Mansib All did not fall in their way from Dera to Adda and that house of Riaz was towards the west of the house of Mansib Ali. He further conceded that his Dera was towards east of the house of absconded accused Mansib Ali.
He further stated that the deceased had gone from his Dera to the shop of the complainant alone and from there they all went together to the house. In the instant case the complainant made different statement from his earlier statement and was duly confronted. For example he stated that it was not correct to suggest that he had earlier deposed that the house of the accused fell en route from Dera to Adda (confronted with Exh.D.C. So recorded). In order to justify the presence of Irsand Ahmad P.W.8, the complainant stated that Irshad had turn of canal water and so he had to divert the canal water to irrigate his land. The duration of his turn of water was from 4-30 p.m. To 5- 15/30 p.m. He had left his Kassi, while coming back at our Dera and that he had taken the Kassi from Dera of the complainant and had irrigated two Acres of his land. He denied the suggestion that Irshad had no turn of water on that day. On the same point Irshad squarely contradicted the complainant by stating that in the relevant days his turn of water used to be from 10-00 p.m. To 1- 30 a.m. And on the eventful day he had not irrigated his land.
12. The claim of the P.Ws. That they had taken Riaz Ahmad to the Hospital is also not supported by any evidence rather documentary evidence shows that they had not taken the deceased to the Hospital. We may refer to the medico-legal report Exh.P.A. Of Riaz Ahmad when he was initially examined by the Medical Officer, TRW, Chak Jhumra. In the column relating to name of relative or friend instead of the name of eye-witnesses the name of Arshad Mehmood, Constable, has been mentioned. In his statement before the learned trial Court Dr. Irshad Ali Cheema clearly stated that Riaz Ahmad while injured was brought by Arshad Mehmood, Foot-Constable. He has not mentioned the name of any of the witnesses. He further clarified during cross-examination that Riaz Ahmad was referred to Allied Hospital, Faisalabad through Arshad Mehmood FC. We have also perused the inquest report Exh.P.D. Wherein Columns Nos.1 and 2 relating to place where the death occurred or from where the dead body was recovered and the distance and direction between the spot and the police station were left vacant. In addition to that undeniably no bloodstained earth was lifted from the spot, in spite of the fact that according to P.W.8 the deceased remained on the spot while injured for about fifteen minutes and bleeded profusely.
13. As per F.I.R., at the time of occurrence the deceased was accompanied by three persons.
However, none of them chose to report the matter to the police and the case was registered at 12- 30 a.m. During night after more than six hours of the occurrence, while the distance between the police station and the place of occurrence was 13 miles. The complainant stated that distance between the Hospital and the police station was 2/3 acres. In that case any of the P.Ws. Could go and report the matter to the police within minutes after reaching the Hospital but no effort was made by the P.Ws. It is also noteworthy that the F.I.R. Was not lodged at the police station and statement of the complainant was recorded at 11-50 p.m. At Adda Sultan Nagar, whereas Muhammad Razzaq, S.-I., was present per chance. Such-like F.I.Rs,, which are not recorded at the police station, are surrounded by inherent doubt that in fact the case was registered after due deliberations and consultations.
14. As far as the medical evidence is concerned, it supports the prosecution case to the extent that Riaz lost his life due to fire-arm injuries. However, according to P.Ws. The appellant fired twice by his gun, one hit on the wrist while the other on the abdomen and thigh. The medico-legal examination of the deceased, Which has been reproduced above, tells a different story and it is obvious that the deceased received more than one fires. The Doctor also conceded that the deceased suffered five entry wounds from different directions.
15. The above noted circumstances have led us to conclude that the P.Ws. Were F not present at the time of occurrence.
16. As far as the motive is concerned, no independent witness was produced in G support of the motive. P.Ws. Admitted that the deceased and appellant had been close friends. In addition to that undeniably no serious quarrel had taken place between the deceased and the appellant and according to prosecution case itself whatever nature of the quarrel was, the matter stood patched up.
17. The alleged recovery of 12 bore gun at the instance of the appellant on 30-10-2000 after five years of the occurrence is not worthy of any credence. The gun was allegedly hidden in an open place near Saimnala. No independent witness was associated with the recovery proceedings and gun was never sent to any expert for determination whether it was in working order or not.
18. The abscondence of the appellant has also not been proved according to I judicial standard. It is in evidence that the appellant had already been arrested in some other case when he was formally arrested in this case. Even otherwise no one can be convicted on the basis of evidence of abscondence alone, as it was not a substantive piece of evidence.
19. For all what has been said above, in our considered opinion the prosecution case is not free from doubt. Hence while extending benefit of doubt in favour of the appellant, we allow this appeal, set aside K 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.
20. Consequently, sentence of death is not confirmed. Murder Reference is answered in the negative. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.