' MUHAMMAD FARRUKH MAHMUD, J.--- This judgment will dispose of Criminal Appeal No,115-J of 2001 filed by Muhammad Riaz, who was convicted and sentenced by the learned Additional Sessions Judge, Gujrat, in case F.I.R. No,21, registered at Police Station Saddar Gujrat, on 9-1-1998, for offences under sections 302/109/34, P.P.C. Vide his judgment dated 15-2-2001 as under:-- Death with compensation of Rs,1,00,000 or in default six months' S.I. Under section 302(b), P.P.C.
' Murder Reference No,197 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 the F.I.R. Exh.P.K. Are that the complainant was resident of Village Gondal Kot and was cultivator. His sister Mst. Bashiran Begum was married to Muhammad Akram resident of Chak No,23/Shumali, Sargodha, about 25/26 years ago. Her son Asjid alias Ashraf aged about 20/21 years had come to the house of the complainant 10/11 days earlier to the occurrence. At about 7-00 p.m. While the complainant along with Nazir Ahmad P.W.5, Muhammad Afzal P.W.6 and. Asjid was present at the Dera, Muhammad Riaz armed with .30 bore pistol and Amjad alias Ambi armed with .12 bore carbine came at the Dera. They called Asjid out of the Dera.
The complainant along with P.Ws. And Asjid came out. The electric bulb was on and in the light thereof they saw that Muhammad Riaz fired, which hit Asjid on his abdomen. Amjad also made a fire which did not hit Asjid. Asjid fell down after receipt of injury and died at the spot. Thereafter the accused fled away from the scene of occurrence.
' Motive behind the occurrence, as set down in the F.I.R., was that the complainant had enmity with Muhammad Aslam since long and on his abetment, Muhammad Riaz and Amjad alias Ambi, who had visiting terms with Muhammad Aslam, had committed the murder.
3. After registration of formal F.I.R., the investigation of the case was taken over by Sahib Dad, S.- I./P.W.12. He proceeded to the place of occurrence, took over the dead body, prepared injury statement Exh.P.M. And inquest report Exh.P.L. He secured the blood-stained earth from the spot vide memo. Exh.P.D. On 11-1-1998 he arrested Amjad alias Ambi accused. On 20-2-1999 Muhammad Younas, A.S.-I./ P.W.13 arrested Muhammad Riaz. On 5-3-1999, while in custody, Muhammad Riaz led to the recovery of .30 bore pistol P.3 from his house, which was taken into possession vide memo. Exh.P.G. After completion of investigation, the accused was sent up to face trial.
4. At the trial, the prosecution in order to prove its case produced 13 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.P.R. And that of Serologist Exh.P.S. 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 were chance witnesses and had contradicted each other on all the material points; that the matter was reported to the police after delay of 3-1/2 hours while the police station was at a distance of five miles only; that the P.Ws.
Were not present at the spot; that if they had been present there they would have certainly attended to the deceased, who remained alive for 1/2 hour after receipt of injury, that the occurrence took place during dark night while there was no source of light; that the prosecution has failed to prove any motive against the appellant and that the prosecution case is not free from doubt.
6. The learned counsel appearing on behalf of the State submits that both the P.Ws. Had no personal grudge or enmity against the appellant so as to involve him in a false case; that their statements were supported by the medical evidence and corroborated by the absconscion of the appellant; that the discrepancies in the statements of the P.Ws. Were minor in nature; and that as far as the occurrence is concerned the place of occurrence and time of occurrence have not been challenged. 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 minutely. The law was set in motion by Muhammad Ashraf, first informant, who died before his statement could be recorded by the learned trial Court. The prosecution case mainly rests on the ocular account furnished by Nazir Ahmad P.W.5 and Muhammad Afzal P.W.6. Firstly Nazir Ahmad claimed that he had no relationship with the deceased or the complainant and then he had to admit that the A complainant Muhammad Ashraf was his son-in-law as his second wife was daughter of Nazir Ahmad. Nazir Ahmad also admitted that Muhammad Afzal was related to him.
The occurrence took place just outside the Dera of the complainant and his brother Khalid on 9-1- 1998 at 7-00 p.m. Both these witnesses were present there per chance, as according to them, they had gone to the Dera to have "Gupp Shupp" with the complainant. As per F.I.R. The deceased, who was resident of Chak No,23/Shumali Bhalwal, District Sargodha had gone to Gondal Kot, where the complainant lived, 10/11 days prior to the occurrence in order to earn his living through labour. The deceased, complainant and P.Ws. Were present at the Dera at 7-00 p.m. When the accused reached there and called Asjid deceased outside the Dera. The P.Ws. Also come out of the Dera and saw in the light of electric bulb that Muhammad Riaz fired at Asjid, which hit on his abdomen.
Amjad co-accused also fired with carbine but that did not hit the deceased. Due to fire caused by Muhammad Riaz, Asjid died on the spot. Thereafter the complainant after leaving the dead body in the care of P.Ws.5 and 6 went to the police station to report the matter. The complainant went to police station at 10-30 p.m. i.e. After 3-1/2 hours, while the police station was at distance of only five miles, and the matter could be reported to the police easily within two hours. The delay remained unexplained and cast C doubt on the presence of P.Ws. Both the P.Ws. Have contradicted each other on almost all the material points and their statements are not in conformity with the story of F.I.R. P.W.5 stated that Asjid deceased was living with the complainant for the last one year while P.W.6 stated that the deceased was living in Gondal Kot for the last three years. The statements of both these witnesses are against the F.I.R., wherein it was stated that the deceased had gone to Gondal Kot 10/11 days prior to the occurrence. Most importantly it was stated in the F.I.R. That Asjid died on the spot and the complainant went to the police station after leaving the P.Ws. With the dead body, while P.W.5 stated that Asjid remained alive for about half an hour after receipt of injury.
However, according to him, no first aid was given to the deceased nor any water or milk was served to him. He further stated that the police came to the spot after four hours at that time the dead body was lying on a cot and was sent in the morning. P.W.6 went a step ahead and stated that police arrived after an hour and at that time Asjid was lying on a cot and was alive. According to him, his dead body was taken to the hospital by the villagers and the ,police. This glaring contradiction between the statements of P.W.5 and P.W.6 cannot be reconciled. P.W.6 admitted that it was a dark winter night. He could also not point out as to which of the accused called on Asjid deceased. All the above noted facts especially the fact that the deceased remained alive for at least 1/2 hour after receipt of injury and was not attended to and the fact that the matter was reported to the policed after an unexplained delay of at least 2 hours lead to the conclusion that the P.Ws. Were not present at the time of occurrence. Had they been present there they would have certainly taken the deceased immediately to the hospital. It was wrongly and deliberately mentioned in the F.I.R. That Asjid died on the spot.
8. As far as the medical evidence is concerned, the doctor who had conducted the post-mortem examination had gone to Saudi Arabia and was not available, therefore, Dr. Muhammad Munir Ahmad P.W.9 verified the signature of Dr. Nasir Shaheen on the post-mortem report Exh.P.F.
According to post-mortem report, the deceased lost his life within 1/2 to one hour. This strengthens our view that in case the witnesses would have been present there; they would have certainly tried to save the life of the deceased.
9. As far as the motive is concerned, according to F.I.R. Enmity existed between Muhammad Aslam (acquitted co-accused) and the complainant over murders. However, the appellant could not be linked with Muhammad Aslam, as Nazir Ahmad/P.W.5 frankly conceded that he did not know as to why Muhammad Riaz committed this crime. During cross-examination he conceded that the complainant and his brother Khalid had many enemies in the village and the enmity existed for the last 35 years. He further stated that a number of cases were registered against them and their enemies including the narcotic cases. Hence the prosecution failed to establish motive against the appellant.
10. The learned trial. Court has rightly disbelieved the evidence of recovery of pistol, which was effected after more than a year of the occurrence. Furthermore the pistol was never sent to the Forensic Science Laboratory.
11. The learned State counsel have submitted that very strong evidence in the shape of abscondence was available against the appellant. However, in the light of the statement of Ansar Iqbal/P.W.1 it could not be said with authenticity that the requirements of declaring a person proclaimed offender were met with. P.W.1 admitted that there was no verification of any person on his reports of service of warrants and proclamation. He further admitted that he did not meet with any Lumberdar or Councillor to obtain verification on his reports. The factum of abscondence, even if established, could only be used as corroboratory evidence and was not substantive piece of evidence, and the conviction cannot be recorded on the abscondence alone.
12. In the above noted circumstances, we have concluded that it was an unwitnessed occurrence.
Thus, we allow this appeal and set aside the judgment passed by the learned trial Court. The appellant is acquitted 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.