' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No,1431 of 2002 filed by Mudasar Munawar and Criminal Appeal No,2057 of 2003 filed by Khurram Shahzad. Both the appellants were convicted and sentenced by learned Additional Sessions Judge, Sargodha vide judgment, dated 17-7-2002 as under:-- Seven years' R.I. and to pay Diyat to legal heirs of the deceased each under section 308, P.P.C.
Five years' R.I. and to pay a fine of Rs,20,000, in default four months' S.I. Each under section 394, P.P.C.
' Criminal Revisions Nos.1047 of 2002 and 266 of 2003 filed by the complainant for enhancement of sentence of convict appellants shall also be disposed of through this single judgment. We may observe that in both the revision petitions filed by the complainant, notice had been issued to the convicts.
3. Occurrence in this case had taken place at 1 p.m. On 25-8-2001 within the revenue estate of Chak No,51/Shumali which is at a distance of 7 kilometers from Police Station Satellite Town, District Sargodha while the matter was reported to the police by Zafar Khan 1-45 p.m., the same day at Civil Hospital through written complaint Exh.P.D. And the formal F.I.R. Exh.P.D./1 was recorded by Muhammad Rafique, A.S.-I.
4. Briefly stated the facts of the case as disclosed in the F.I.R. Exh.P.D./1 are that at about 1 p.m. On 25-8-2001 within the view of Zafar Khan and Gul Khan who were following the deceased on a motorcycle, two unknown persons one of whom was armed with a firearm and other was empty- handed, waylaid the deceased who too was on a motorcycle, which resulted into altercation and upon resistance of deceased Lahore Khan, the accused who was armed with a fire-arm fired a shot on the right thigh of Lahore Khan. The victim while in his way to hospital succumbed to the injury.
5. Sub-Inspector Ghulam Abbass (P.W.9) took over the investigation. He on receipt of information about the incident, proceeded to the hospital; examined the dead body of Lahore Khan, deceased; prepared injury statement Exh.P.B., inquest report Exh.P.C.; and then went to the place of occurrence from where he took into possession the blood-stained earth vide memo. Exh.P.A. Five crime- empties were also secured from the spot vide memo. Exh.P.L. The investigator carried out formal investigation and it was on 26-8-2002 that he arrested both the present appellants out of whom Khuram Shahzad was carrying a .12 bore gun and the same was secured vide memo. Exh.P.J. After completion of investigation, both the present appellants were sent to face the trial.
6. At the trial prosecution in order to prove its case produced 10 witnesses in all. The ocular account was furnished by Zafar Khan and Khan Gul, P.Ws.5 and 6 while Dr. Muhammad Azam (P.W.1) conducted post-mortem examination on the dead body of the deceased. The learned A.D.A.
Tendered in evidence report of the Chemical Examiner Exh.P.O., report of the Serologist Exh.P.P. And closed the case of prosecution. The accused in their statements under section 342, Cr.P.C. Pleaded false implication. After conclusion of the trial, both the accused were convicted and sentenced as stated above.
7. Mr. Saif-ul-Malook, learned counsel for Mudassar Munawar appellant submits that presence of the eye-witnesses is most unnatural; no reason for their being available at the place of occurrence has either been stated in the F.I.R. Or brought on record before the trial Court; both the eye- witnesses in order to bring in line the case according to recovery of five crime-empties from the spot, made dishonest improvements in their statements before the trial Court inasmuch as in the F.I.R., only one shot was attributed to Khuram Shahzad, appellant while before the trial Court, the said accused was given the role of firing five shots at the time of occurrence. Further submits that both the eyewitnesses stated before the trial Court that they did not know the names of the accused persons prior to. 26-8-2001 but the Investigating Officer while preparing the rough site plan on 25-8-2001 has given the names of two present appellants as accused though the investigator while appearing as P.W.9 before the trial Court tried to explain that he prepared the site plan on 25-8-2001 and had given the notes on 26-8-2001. Elaborating his argument, learned counsel submits that the investigator was confronted with case diaries and he admitted that he had written the names of the accused on 25-8-2001. Learned counsel has also drawn our attention to statement of Dost Muhammad, Revenue Patwari P.W.3 who had stated that he inspected the place of occurrence on 25-8-2001 on the direction of the police as also the P.Ws. And he also mentioned the names of the accused in the site plan.
' It is next submitted that the draftsman and the Investigating Officer has given the distance between the assailant and the deceased as five feet while the doctor who conducted the post- mortem examination on the dead body of the deceased had given the distance as 8-10 feet.
' Concluding his submissions, learned counsel submits that there are doubts and doubts in this case and the benefit of even one major doubt has to be given to the appellant hence the appellant is entitled to acquittal.
' Mr. A.G. Tariq Chaudhary, Advocate for Khurram Shahzad, appellant adopts the arguments advanced by Mr. Saif-ul-Malook, Advocate but adds that conduct of both the eye-witnesses at the spot is against the human conduct which proves their absence at the spot.
8. Learned counsel for the complainant who had filed criminal revision petitions for enhancement of sentence of convict appellants and in those revision petitions, notice had been issued, submits that there was no earthly reason for the eye-witnesses to have falsely implicated the appellants coupled with the fact that the empties recovered from the spot matched with the rifle recovered on the pointation of Khuram Shahzad, appellant.
' Learned counsel for the State submits that there are material contradictions in the statements of the eye-witnesses and they had made dishonest improvements.
9. We have heard learned counsel for the parties at length and have gone through the record with their able assistance. In the instant case, the occurrence had taken place at 1 p.m. On 25-8-2001 within the revenue estate of Chak No,51/Shumali which is at a distance of 7 kilometers from Police Station Satellite Town, District Sargodha while the matter was reported to the police by Zafar Khan at 1-45 p.m. The sai:e day at Civil Hospital through written complaint Exh.P.D. And the formal F.I.R.
Exh.P.D./1 was recorded by Muhammad Rafique, A.S.-I. Though nobody was named in the F.I.R.
According to F.I.R., complainant Zafar Khan son of deceased Lahore Khan along with Khan Gul was following his deceased father who was on a motorcycle. Neither the complainant nor the other eye-witnesses had stated any reason either in the F.I.R. Or before the trial Court for their following the deceased. The complainant has also given no reason why he was going along with Khan Gul although from the place of occurrence the house of complainant is 4/5 kilometers and the house of Khan Gul is 11 kilometers from the house of complainant. No identification parade was held in this case. According to F.I.R., one shot was fired by the assailant but from the spot five crime-empties were taken into possession, so the eye-witnesses in order to toe the case of investigator, made dishonest improvements before the trial Court and stated that Khuram Shahzad fired five shots and he was duly confronted. The conduct of the eyewitnesses also negates their presence at the spot. It is the case of prosecution itself, both the eye-witnesses were just behind the deceased and within their view, the accused waylaid the deceased, altercation took place and thereafter, one accused fired a shot. We may state that one eye-witness namely Zafar Khan is real son of the deceased but he did not take any action or made any effort to save the life of his father. We are thus fully satisfied that presence of both the eye-witnesses at the spot is very doubtful. The name of Aslam Khan P.W.8 does not find mention in B the F.I.R. But he was shown to have identified the dead body of the deceased in the hospital when the dead body was removed to the hospital by the complainant Zafar Iqbal and Khan Gul, both eye-witnesses.
' The story of arrest of both the appellants as coined up by the prosecution on the face of it appears to be improbable for the reason that according to case of the prosecution it was on 26-8- 2001 when the investigator was present in Chak No,91 at the Check Post along with Zafar Khan, complainant and Khan Gul, the other eye-witnesses, both the accused were arrested. The occurrence had taken place on 25-8-2001 in which the real father of Zafar Khan complainant had died; whether the complainant should have been present at his house or Dera to receive the people who had come for condolence and to say Fateha prayer or he could be presumed to be present at the police Naka and whether the accused were too fools that they on the very next day of occurrence would roam about along with fire-arm where the police had launched a Naka and could they not had made their escape while seeing the police party from a long distance when it was broad-daylight.
There is still another very much important factor and that is that both the eye-witnesses stated before the trial Court that they did not know the names of the accused persons prior to 26-8-2001 but the Investigating Officer while preparing the rough site plan on 25-8-2001 has given the names of two present appellants as accused though the investigator while appearing as P.W.9 before the trial Court tried to explain that he prepared the site plan on 25-8-2001 but mentioned the points therein on 26-8-2001. The investigator was confronted with case diaries and he admitted that he had written the names of the accused on 25-8-2001. Dost Muhammad, Revenue Patwari P.W.3 had also stated that the inspected the place of occurrence on 25-8-2001 on the direction of the police as also the P.Ws. But he too mentioned the names of accused on 25-8-2001.
Crime-empties were taken into possession from the spot on 25-8-2001, the appellant Khurram Shahzad was arrested on 26-8-2001 along with a .12 bore gun but the parcel of empties and that of rifle were received in the office of the Fire-arms Expert together on 1-9-2001, so the positive report loses its significance.
' Taking all the facts as stated above into consideration, we are of the considered opinion that the F.I.R. Was recorded after due deliberation and consultation; the eye-witnesses were not present at the spot and were cooked up later on being closely related to the deceased and the story of prosecution is full of doubts so while extending the benefit of doubt, we accept both the appeals filed by convict appellants, set aside the conviction and sentence recorded against them by the trial Court vide impugned judgment and acquit them of the charge. They are in jail and shall be released from jail if not required to be detained in any other case. Both the criminal revisions filed by the complainant bearing Nos.1047 of 2002 and 266 of 2003 are dismissed.