' KHAWAJA MUHAMMAD SHARIF, J.---This judgment shall dispose of Criminal Appeal No,559/2006 (Tahir v. The State), Crl.Appeal No,789/2006 (Arslan v. The State) and Crl. Revision No,438/2006 (Lal Din v. Tahir and others , as they arise out of the' same judgment dated 31-3-2006 passed by the learned Additional Session Judge, Pasroor, District Sialkot, whereby, after having tried the appellants, convicted them under section 302(b)/34, P.P.C. And sentenced to imprisonment for life each with a further direction to pay a compensation of Rs,1,00,000 each as provided under section 544-A, Cr.P.C. In default whereof to further undergo six months' S.-I. Esch. Benefit of section 382-B, Cr.P.C. Was not extended to the appellants. Benefit of doubt was extended to four co-accused, namely, Arif alias Bau, Muhammad Boota, Abrar and Abbas, who were acquitted from the case and, admittedly, appeal against their acquittal was dismissed by this Court.
2. Brief facts of the case, as explained by Lal Din complainant in the F.I.R. Are that on 18-7-2004 at about 10-00 p.m., he along with his maternal nephew Amanat Ali deceased, after having closed shop, were proceeding to Darbar Panj Peer and Amanat Ali was a little bit ahead to the complainant; that when they reached near Ali Market, they saw appellants Tahir and Arslan armed with pistols, along with remaining accused Ibrar alias Baru, Arif alias Bau, Boota, Abbas, Yaseen, Amjad and Riaz armed with Sotas, who were already present there; that appellant Tahir placed pistol on Amanat Ali and directed him to proceed ahead while the other accused gave beating to Amanat and raised Lalkara that Amanat be done to death; that the complainant begged the accused not to murder Amanat but of no avail, whereafter, Boota caused a sota blow on the right arm of Amanat, Ibrar on the left arm while appellant Tahir fired a shot with his pistol which hit on the neck back of his head who succumbed to the injuries at the spot while all the accused decamped from the spot; that the occurrence was witnessed by the complainant Tassadaq Hussain and Ghulam Hussain in the light of the bulbs and that the motive behind the occurrence was that the complainant had a civil litigation with father of accused Tahir, namely, Yousaf, case was decreed in his favour, Tahir had filed an application under section 12(2) . C.P:C. For setting aside the said decree and that he had also litigation with father of accused Abbas.. As per complainant, all the accused persons belong to the same party and had a grudge against the complainant and Amanat Ali due to pursuing the cases which resulted into murder of Amanat Ali.
3. After having completed legal formalities, challan was. Submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where, the.
Prosecution, in order to prove its case against the accused, produced 12 prosecution witnesses during the trial.
4.. Learned counsel for the appellant in Cr1. Appeal No,559/2006 (Tahir v. The State), while seeking acquittal of the appellant, submits that the occurrence had taken place in the dark hours of the night which was an unwitnessed one; that the case was lodged with an inordinate and unexplained delay of about ten hours while distance between the police station and the place of occurrence was three miles; that the complainant was not present at the place because had he been present there he could not have been spared; that there is a conflict between ocular account and the medical evidence; that no recovery was effected from Tahir; that he was also declared innocent by the police; that in all six accused were named including three unknown persons, but later on, a complaint was filed; that the prosecution has failed to prove its case against the appellant and that the appellant is entitled to acquittal by this Court.
5. Learned counsel for the appellant in Crl. Appeal No,789/2006 (Arslan v. The State), while seeking acquittal of the appellant, contends that no injury is attributed to Arslan appellant; that only evidence against him is of six months abscondence; that the prosecution has failed to prove its case against him and that he is entitled to acquittal. He has placed reliance on Abdul Khaliq v. The State 2006 SCM R 1886 to contend that factum of abscondence alone is not sufficient to award conviction under section 302, P.P.C. As it is just a corroborative piece of evidence.
6. On the other hand, Ch. Jamshed Hussain, Deputy Prosecutor General Punjab assisted by learned counsel for .The complainant submits that Tahir appellant is named with a specific role assigned to him; that recovery was effected from him; that the F.I.R. Was lodged promptly; that appellant Arslan remained absconder for a long period of six months; that the deceased was pursuing case filed by Yousaf, a father of Tahir appellant, which bore a grudge in the mind of the accused Tahir; that ocular account in this case is corroborated by the medical evidence qua seat of injuries and time; that it was not a case of mistaken identity because both the parties were lcnown to each other; that P.W.6/ complainant Lal Din and P. W.7 Tassaduq Hussain, though closely related to the deceased, but had no grudge or animus to falsely depose against the appellants; that no witness was produced in defence; that both of them are reliable witnesses; that the prosecution has proved its case against the appellants beyond any shadow of doubt and that both the appeals are liable to be dismissed.
7. I have heard learned counsel for the parties at a great length, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.
8. The occurrence in this case had taken place in the night between 18/19-7- 2004, the matter was reported to the police at 10-00 a.m. Through-a written complaint by P.W.6/complainant Lai Din, the formal F.I.R. Was recorded at 10-20 a.m. While distance between the place of occurrence and the police is three kilometers.
9. In all there were six accused persons, benefit of doubt was extended to four co-accused, namely,' Arif alias Bau, Muhammad Boota, Abrar and Abbas, who were acquitted from the case and, admittedly, appeal against their acquittal was dismissed by this Court while both the present appellants were convicted and sentenced accordingly. Dr. Gull Nawaz (P.W.l) conducted the post- mortem examination on the dead body of the deceased on 19-7-2004 and found following injuries on the person of the deceased:- "1. A fire-arm wound lxl c.m. Margin inverted back of neck upper part. Entry wound.
2. Multiple abrasions on right forearm.
3. Multiple abrasion on left forearm. "
' According to Dr. Gull Nawaz (P.W.l) the time between injury and death was within half an hour and between death and the post-mortem examination was 12 to 24 hours.
10. In order to prove its case,' prosecution, in all, produced three eyewitnesses, namely, P.W.6/complainat Lai Din, who is real maternal uncle of Amanat Ali deceased, P.W.7 is Tassaduq Hussain while Ghulam Hussain, a real brother of Lai Din P.W., was not produced and given up as an unnecessary. P.W.7 is the real son of the said Ghulam Hussain and nephew of Lai Din complainant.
11. Tahir appellant was arrested on 9-8-2004 and no recovery was affected from him whilQ Arslan appellant was declared Proclaimed Offender and was arrested six months after the occurrence on 30-1-2005, a pistol was recovered on his pointation and no crime empty was taken into possession from the spot.
12. During the course of investigation conducted by the police except Arslan appellant, all the accused were declared innocent. The complainant being aggrieved by the tenor of investigation filed a private complaint on 4-4-2005 which is Exh.PF on the record against nine accused persons.
Three accused persons, who were shown unknown in the F.I.R., were also named therein as Yasin, Amjad and Riaz but the learned trial Court, in view of cursory glance on the statements of the complainant and the other witnesses did not summon them for trial while benefit of doubt was extended to four co-accused, namely, Arif alias Bau, Muhammad Boota, Abrar and Abbas, who were acquitted from the case and, admittedly, appeal against their acquittal was dismissed by this Court and the remaining two accused persons are appellants before this Court who were convicted and sentenced by the learned trial Court as mentioned in para 1 of this judgment.
13. It has not been denied that the occurrence in this case had taken place between in the night of 18/19-7-2004. Motive behind the occurrence giVeii by the complainant was that the complainant had a civil litigation with father of accused Tahir, namely, Yousaf, case was decreed in his favour, Tahir had filed an application under section 12(2), C.P.C. For setting aside the said decree while deceased was pursing that matter. I have gone through Exh.PK, which is an application under section 12(2) C.P.C., it was filed by Yousaf, father of Tahir appellant, but in the said application it has been said that he Was an old man of 75 years of age, was infirm, sick and mentally deranged person, so, he had appointed Tahir (his son) to pursue that application against Lai Din complainant who claimed to be present at the spot. There are nine accused persons iil this case who were variously armed with fire-arm and Sotas. Had the complainant been present at the spot he must have been given injuries by the accused persons;
14. Moreover, distance between the place of occurrence and the police station was three kilometers. Although a written application was submitted to the police at the next day at 10-00 a.m.
But no explanation whatsoever has been given in the said application qua ten hours delay in lodging the F.I.R. I am of the opinion that the contention of the complainant that Amanat Ali deceased was done to death onaccount of pursuing the case is not correct because thd grudge, if any, should have been against Lai Din P.W., who was respondent in the said case. In fact Lai Din had a grudge against Tahir who was the person pursuing the case on behalf of his father, so, the motive set forth by the prosecution is hereby disbelieved. Apart from above, no recovery was effected from Tahir appellant. He was declared innocent during three successive investigations.
15. So far as ocular account is concerned, prosecution produced P.W.6/ complainant Lai Din and P.W.7 Tassaduq Hussain. Lai Din is maternal uncle while Tassaduq is the real nephew of the complainant. In my considered view, had they been present at the spot they must have been attacked by the nine accused persons who were variously armed. Even otherwise, in the instant case credibility of their statements has to be adjudged very minutely because their statements are not corroborated by any evidence of independent in nature.
16. Apart from above it was stated that all the accused person gave beating on the person of Amanat Ali deceased before the firing by Tahir appellant. As per Dr. Gull Nawaz (P.W.l) there is one fire-arm injury while two are abrasions i.e, a multiple abrasion on right forearm and a multiple abrasion on left forearm of the deceased. In the complaint and before the learned trial Court, dishonest improvements were made by the complainant and P.W.7 Tassaduq Hussain and specific injuries were attributed to two accused persons, namely, Boota and Ibrar and this was also held by the learned trial Court about the same. So, in my view, they were rightly acquitted and, admittedly, appeal against their acquittal was dismissed by this Court.
17. There is only one fire-arm injury on the person of the deceased which is attributed to Tahir appellant. In the written complaint submitted by Lai Din complainant to the police for registration of case it was stated that the shot fired by Tahir appellant hit on his head but there is no injury on the head of the deceased. In my considered opinion, in order to make the medical evidence in line with the ocular account, in the complaint and before the learned trial Court, both the eye-witnesses have made dishonest improvements and stated that tjie short fired by Tahir appellant hit on the .Back-side of the neck of the deceased.
18. There should have been no ambiguity on the part of the witnesses qua the seat of injury because there is only one fire-arm injury on the person of the deceased, so, there is clear conflict between the ocular account and the medical evidence.
19. Now this Court is left with the recovery aspect of the case. There is no recovery from Tahir appellant coupled with the fact that he was declared innocent in three successive investigations.
Further more, on the samex set of evidence four accused have already been acquitted by the learned trial Court and appeal against their acquittal has failed before this Court coupled. It is important to note that the complaint was submitted at 10-00 a m., in column No,3 of the Inquest Report time regarding the death of the deceased has been given as 9-30 a.m. But it was not the case of the prosecution. The relevant column of date and time of death in the postmortem report is empty. It means that the F.I.R. Was neither recorded nor the Inquest Report was prepared before conducting the postmortem examination, so,, in my considered view the F.I.R. Was recorded after due deliberations, concoctions and considerations.
20. As per prosecution both the eyewitnesses, namely, P.W.6/complainant Lai Din and P.W.7 Tassaduq Hussain are closely related to the. Deceased but surprisingly neither any Lalkara was raised nor there was any brick batting on the accused persons from them. Had they been present at the place of occurrence they must have done so which was a natural react, so, statements of both these eye-witnesses are discarded from the ocular account.
21. As far as appellant Arslan is concerned, no injury is attributed to him except abscondence of six months but, surprisingly, there is no evidence on the ' record which can be believed to the said effect, so, his learned counsel has rightly placed reliance on Abdul Khaliq v. The State (2006 SCM R 1886) to contend that factum of abscondence alone is not sufficient to award conviction under section 302, P P.G. As it is just a corroborative piece of evidence.
22. After having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt to sustain conviction. The prosecution case is full of doubts and doubts on the basis of such a shaky evidence/the conviction and sentence awarded to the appellants cannot be maintained because the same has not come through unimpeachable sources, is untrustworthy, unreliable and cannot stand the test of judicial scrutiny/Resultantly, both the appeals bearing Crl. Appeal No,559/2006 (Tahir v. The State) and Crl. Appeal No,789/2006 (Arslan v. The State) are allowed, the impugned judgment is set- aside, the appellants are acquitted'from"the case and shall be released forthwith if not required to be detained in any other case. For reasons given above Crl. Revision No,438/2006 (Lai Din v. Tahir and others) has no merit which is accordingly dismissed.