' TARIQ PARVEZ KHAN, J.--- Our this judgment shall dispose of Criminal Appeal No,46 of 1998 filed by Mirza Khan convict who has been convicted and sentenced to life imprisonment with a fine of Rs,50,000 and in default to suffer two years' S.I. On the charge that he on 24-11-1996 at 12-00 noon has committed the offence of murder of Arab Khan deceased by firing at him, vide judgment dated 25-8-1998 passed by learned Sessions Judge, Lakki Marwat.
' Criminal Revision No,8 of 1998 has been filed by father of the deceased, namely, Gulistan, praying for enhancement of the sentence.
2. Facts shortly stated are that Gulistan (P.W.2) father of deceased reported the occurrence to Usman Ghani A.S.-I. (P.W.4) in Civil Hospital Lakki stating that at the time of occurrence he, his deceased son and Latifullah (P.W.3) also a son, after having made purchases in the Bazar were on their way to their village when Mirza Khan appellant and acquitted accused Nasrullah both emerged and under the command of Nasrullah, Mirza Khan is said to have fired a shot at the deceased who was hit, fell down and some more shots were also fired.
3. It is in the evidence of the prosecution that soon after the occurrence though the accused decamped but were chased by the police party and have allegedly apprehended the appellant at a distance of two furlongs near an octroi post and in this respect site plan Exh.P.W.4/3 was prepared.
' Motive for the occurrence stated was some dispute with regard to women-folk which was later explained that a sister of appellant had eloped after Matiullah, brother of the deceased, over which the appellant was annoyed.
4. It is the case of the prosecution at trial and also before this Court that the case stand proved against the appellant in view of ocular account furnished by Gulistan and Latifullah, apprehension of the accused by Usman Ghani (P.W.4), Bashir Khan F.C. (P.W.1) and Awal Khan F.C. (P.W.8), that crime pistol and two live rounds recovered from the possession of the accused appellant and three empties that were recovered from the spot were sent to the Fire-arm Expert and report in this behalf is Exh.P.W.4/6 which is in positive, that motive was on the part of the appellant to commit the crime. It is also argued that acquittal of Nasrullah co-accused shall have no bearing on the evidence of the eye-witnesses as he was not acquitted on merit but on compromise.
5. We have gone through the entire evidence and have heard learned counsel for the parties including the learned Deputy Advocate-General.
6. In this case though role of effective firing has been attributed to present appellant but in view of apparent dishonest investigation which is not only inconsistent inter se but reflected even in the first document of the prosecution, namely, Murasila Exh.P.A./1, and statements of two eye- witnesses, also runs contrary to document on the file, which will be hard to believe that the prosecution has proved its case.
' Our reasons for disbelieving the prosecution case are as under:--
(a) Occurrence is said to have taken place at 12-00 noon, report allegedly made at 12-20 but P.W.
Gulistan states that he took the dead body to the hospital and according to his calculation police arrived in the hospital after about one hour of his arrival.
(b) According to Exh.P.A./1, in rider thereto it is recorded by Usman Ghani (P.W.4) that 'during Gasht he got the information about the occurrence, injury sheet and inquest report were separately prepared and dead body entrusted to doctor for postmortem examination and, thereafter, Usman Ghani left for spot for chase of the accused, whereas at the trial Usman Ghani states that he heard the report of fire shots, proceeded to the spot in the company of Awal Khan. P.Ws. Found the dead body lying on the spot but started chase of the accused along with other police contingent, apprehended him near Michen Khel Adda at a distance of two furlongs from the spot, sent him to the police post and himself proceeded to the hospital for recording the report. Such statement is in direct conflict with what he has recorded in the rider to the Murasila.
(c) If the Murasila, injury sheet and inquest report were prepared round about 12-20 a.m. As time of occurrence given, but on the other hand P.W.6 Doctor Muhammad Iqbal had stated that he has carried out autopsy at 3-30 p.m. And the dead body arrived in the hospital twenty minutes earlier would mean that the dead body reached the hospital at 3 or 3-10 p.m. Which will again negate the claim both made by Gulistan as well as Usman Ghani.
(d) According to the eye-witness, namely, Gulistan immediately after the occurrence dead body is shifted in a Datsun to the hospital, whereas according to Latifullah, the other eye-witness, dead body remained on the spot until the arrival of the police. This fact would put into doubt the presence of both the eyewitnesses at the relevant time.
(e) P.W.5, Khalil-ur-Rehman, a co-villager of the deceased identifier of the dead body also stated that he identified the dead body before the police on the spot which belied the statement of Gulistan complainant.
(f) Awal Khan P.W.8 stated to be in the company of Usman Ghani A.S.-I. And after hearing the fire shots had rushed to the spot, they saw the dead body lying and people present there have pointed out towards the accused on which they started chase and after apprehending the accused, namely, the appellant, have returned to the spot for spot inspection, would mean that Usman Ghani P.W. On his arrival to the spot had made chase for apprehension, and had not gone to the hospital.
(g) Latifullah P.W.3 an eye-witness and brother of the deceased did not accompany his dead brother to the hospital and he also stated that police party arrived after the occurrence on the scene, while dead body was still lying there.
(h) According to P.W. Latifullah when the police arrived to the scene of crime he narrated the story and also pointed out the relevant place would reflect on if F.I.R. Was made by Gulistan or by him and also if the report was recorded on the spot or in the hospital, and also if apprehension was made first followed by report or vice-versa.
(i) According to P.W.2 complainant they had come to Bazar at about 8/9 a.m. And the distance between their village and Lakki is covered within 15/20 minutes. Their object to be in Bazar was to make purchases like sugar and "Gur" and nothing else. One fails to understand as to what they would be doing in Bazar for 3 to 4 hours.
(j) Both the eye-witnesses could not give the name or any other specification as to from whom they have made the purchases.
(k) The very apprehension of the appellant is differently stated by Bashir Khan F.C. And Awal Khan F.C. Their meeting together is also contrary.
(1) Though acquittal of Nasrullah is recorded not on merits but according to prosecution evidence appellant has acted under the order of said Nasrullah. Nasrullah is stated to be having a pistol of .30 bore in his hand whereas appellant is stated to have taken it out from his trouser-fold. Where there is motive based on "Ghairat"/Vendata, it is always the whole family which is involved, therefore, there was no need for Nasrullah to have made the command asking a brother of the eloped sister to shoot.
' For reasons stated above, the conviction and sentence recorded by the learned trial Judge are set aside. , appellant stand acquitted of the charge and shall be released forthwith if not wanted in any other case.
' As we have accepted the appeal, revision of Gulistan petitioner is dismissed.