' MUHAMMAD FARRUKH MAHMUD, J.--- This judgment will dispose of Criminal Appeal No,175 of 2001 filed by Sher Ghazi, who faced trial in case F.I.R. No,43, registered at Police Station Airport, Rawalpindi, on 7-2-1999, for offences under section 302/34, P.P.C., before learned Additional Sessions Judge, Rawalpindi, who after concluding the trial, vide his judgment dated 28-4-2001 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 months' S.I.
2. Murder Reference No,665 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.E./1 are that Siri Khan (complainant); who was a cultivator, had admitted his mother in the hospital at Taxila for treatment of her eyes. On the day of occurrence, the complainant along with his cousin Saif-ul-Malook went to Dhok Kashmirian to see their relatives. At about 11-30 p.m., when they were on the road within the vicinity of Dhok Kashmirian, they confronted with Sher Ghazi and Awal Khan, both armed with .30 bore pistols. Sher Ghazi raised Lalkara that he would teach a lesson to Saif-ulMalook for abduction of his wife and fired at Saif-ul-Malook, which hit on the backside of his head. After receipt of injury Saif-ul-Malook fell down. Meanwhile, Awal Khan kept on raising Lalkara that nobody should come near them. Saif- ul-Malook succumbed to the injury at the spot.
4. The motive behind the occurrence was that 7/8 years prior to the incident Saif-ul-Malook had abducted wife of Sher Ghazi. For that revenge Sher Ghazi with consultation of Awal Khan had committed the murder of Saif-ul-Malook.
5. After registration of formal F.I.R., the investigation of the case was conducted by Pervez Akhtar, S.- I., who died before the commencement of trial. However, to verify his investigation, Muhammad Khan, A.S.-I. Appeared as P.W.B. He stated on 7-2-1999 while he was posted at Police Station Airport as A.S.-I., at about 12-00 (mid-day) he along with Pervez Akhtar, S.-I., visited the place of occurrence at Dhok Kashmirian. Dead body of Saif-ul-Malook was lying in the street on the road side. Siri Khan complainant got recorded his statement before the Investigating Officer (Pervez Akhtar, S.-I.), who prepared the complaint on his statement and sent the same to the police station for registration of the case. The Investigating Officer despatched the dead body of the deceased Saif-ul-Malook to Civil Hospital, Rawalpindi for post-mortem under the escort of Mushtaq Ahmad, Head Constable. The Investigating Officer prepared injury statement Exh.P.M. And inquest report Exh.P.F./1. He collected blood-stained earth and one empty of .30 bore pistol from the spot vide memo.. Exh.P.C. And Exh.P.D. Respectively. On the same day, he arrested Sher Ghazi and Awal Khan accused persons. At time of arrest, both the accused were in possession of .30 bore pistols P.7 and P.9, which were unloaded at that time, along with three live bullets P.8/1-3 from the possession Sher Ghazi and two live bullets P.10/1-2 from the possession of Awal Khan were recovered, all the articles were taken into possession vide memo. Exh.P.G. And Exh.P.H. Respectively. Muhammad Khan, A.S.- I./P.W.9 identified the handwriting and signatures of Pervez Akhtar, S.-I./ Investigating Officer. After completion of investigation, the accused was sent up to face trial.
6. At the trial, the prosecution in order to prove its case produced 9 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.P.O. And that of Serologist Exh.P.P.
Closed its case. Muhammad Arshad, constable, Muhammad Aslam, Head constable and Muhammad Sheraz, constable, also appeared as C.Ws.1, 2 and 3 respectively. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence. They did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial, the learned trial Court while acquitting Awal Khan convicted and sentenced Sher Ghazi appellant as stated above.
7. 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 have contended that the complainant did not appear before the learned trial Court to prosecute the matter; that Mehdi Khan, constable, did not know the appellant previously, as according to his own statement he had only glimpse of the appellant from a distance of 200 yards; that he did not identify and distinguish the two accused before the learned trial Court; that evidence of recovery was not worthy of any credence; and that case of the prosecution is replete with doubts.
8. The learned counsel appearing on behalf of the State have contended that Mehdi Khan, constable/P.W.5 was an independent witness; that he had no motive to involve the appellant in a false case; that his statement was fully supported by the medical evidence and corroborated by the evidence of recovery and the factum of arrest of the appellant on the same day. They support 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. Accordingly to prosecution case, the occurrence had witnessed by Siri Khan/complainant of the case and Mehdi Khan, constable/P.W.5, whose name was mentioned in the last three lines of the F.I.R. Statement of Siri Khan could not be recorded by the learned trial Court due to his non-availability. After making best efforts to procure the attendance of Siri Khan, the learned trial Court after recording statements of - Muhammad Arshad, constable/C.W.1, Muhammad Aslam, Head constable/C.W.2 and Muhammad Sheraz, constable/C.W.3 closed the prosecution case.
10. Now we are left with the statement of Mehdi Khan, constable/P.W.5. During trial he admitted that he did not know the accused previously and could not tell complexion of the deceased, Siri Khan/complainant or any of the accused. He also admitted that the accused left immediately after causing fire and he had only glimpse of the accused. Furthermore he stated that he was at a distance of 200 yards when fire was caused. To top it all he stated that he could not tell whether two shots were fired or one shot was fired. He did not point out before the learned trial Court as to which of the accused was Awal Khan or Sher Ghazi. He also did not point out as to which of the accused, present in the Court, fired at the deceased. In the above noted circumstances, no reliance can be placed on his statement about the identification of the accused, who caused fatal injury to the deceased. He was also a chance witness, as according to him, he had gone to Dhok Kashmirian to effect service of summons and warrants but during cross-examination he cannot specify as to who was to be served or which Court issued the summons. His name as witness has not been mentioned in the brief summary of facts given in the inquest report Exh.P.F./1. It appears that Pervez Akhtar, S.-I., who recorded the statement of Siri Khan/complainant, obliged the complainant by supplying him an eyewitness.
11. As far as the medical evidence is concerned, it supports the prosecution case to the extent that the deceased lost his life due to fire-I arm injury but it does not point to the killer.
12. The evidence of motive has also been furnished by P.W.5, who did not know the parties nor he knew about the enmity existed between them. According to him, the motive was told to him by Siri Khan, who D did not appear before the learned trial Court. It is evident that he has Oven parrot like story about the motive according to F.I.R. After memorizing it.
13. Now coming to the recoveries. According to the prosecution case the appellant and his co- accused Awal Khan were arrested on the ,date of occurrence i.e. 7-2-1999 by Pervez Akhtar, S.-I., who died before his statement could be recorded by the learned trial Court. Pervez Akhtar effected recovery of .30 bore pistol, which contained three live bullets from the right fold of the trousers of the appellant at the time of his arrest. Memo. Exh.P.G. Prepared by him was attested by Muhammad Khan, S.-I. And Tariq Mehmood, constable. On the same date and time Pervez Akhtar, S.-I., recovered .30 bore pistol from the left fold of the trousers worn by Awal Khan (acquitted co- accused). The pistol contained two live bullets. Memo. Exh.P.H. Was prepared on that behalf and was attested by the witnesses mentioned above. Strangely, pistol recovered from Awal Khan accused was not sealed, while the pistol recovered from the appellant was sealed. Perusal of the report of Forensic Science Laboratory Exh.P.P. Reveals that Muhammad Jamil deposited the empty and the pistol on two different dates i.e. On 10-2-1999 and 16-2-1999. The reason why pistol, which had already been recovered and was with the police, was not sent along with empties to the Laboratory was not available on record. It is also noteworthy that according to Muhammad Aslam, Head constable/Muharrar (P.W.1) on 15-2-1999 he had handed over the sealed parcel of .30 bore pistol and three live rounds to Muhammad Jamil, constable, for onward transmission to the office of Forensic Science Laboratory. The statement of Muharrar and Muhammad Jamil, Constable, do not reconcile with each other. The three live rounds never received at the Laboratory. Muhammad Khan, A.S.-I./P.W.8 stated during cross-examination that the Investigating Officer checked the pistols in order to test whether those were in working order. He added that however, no shot was fired by him for that purpose. In the above noted circumstances, the recovery evidence is notlE free from doubt and cannot be used against the appellant.
14. For all what has been said above we have concluded that the prosecution case was not free from doubt. Hence, this appeal is allowed and the judgment passed by the learned trial Court is set aside. Sher Ghazi appellant is acquitted of all the charges. He would be released from jail forthwith, if not required in any other case.
15. Murder Reference is answered in the negative. Death sentence is not confirmed.