' ASIF SAEED KHAN KHOSA, J.---Taj Ahmad alias Mumtaz appellant was convicted for an offence under section 302(b), P.P.C. Vide judgment, dated 30-11-2001 rendered by the learned Additional Sessions Judge, Depalpur, District Okara and was sentenced to death and to pay asum of Rs,50,000 to the heirs of Munawar Ali deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for six months. The appellant has challenged his conviction and sentence before this Court through the present appeal which has been heard by us along with Murder Reference 831 of 2001 seeking confirmation of the sentence of death passed by the learned trial Court against the appellant. We propose to decide both these matters together through the present consolidated judgment.
2. The prosecution's case unfolded in the F.I.R. Was that Muhammad Ali complainant was a resident of Nai Abadi, Rasoolpura situated within the area of Police Station Mandi Ahmad Abad, District Okara and was an agriculturist by profession. The complainant's son namely Munawar Ali aged about 14/15 years, was a tailor doing business in Nai Abadi, Rasoolpura. At about 5-00 p.m. On 23- 3-1998 the complainant was sitting and chatting in the shop of Munawar Ali in the company of Sanaullah, Muhammad Rafique, Maqbool Ahmad and Nazeer Ahmad when suddenly Taj Ahmad alias Mumtaz appellant, armed with a rifle 303, came in front of the shop of the complainant's son and raised a Lalkara that he would teach a lesson to Sanaullah for getting a criminal case registered against the appellant and the members of his family in respect of an abduction. After raising that lalkara the appellant entered the shop of the complainant's son but he was forbidden by the complainant's son and Muhammad Rafique from fighting with Sanaullah inside the shop and they asked the appellant to get out of the said shop. The appellant got provoked over the same and fired a shot at Munawar Ali hitting him on his right flank and making an exit from the left side of his body. Upon receipt of that injury Munawar Ali fell down and then the appellant fired a shot at Muhammad Rafique hitting him on his right foot. In the meanwhile Sanaullah found an opportunity and ran away and soon thereafter the appellant also decamped from the place of occurrence while resorting to firing. The said occurrence was witnessed by Maqbool Ahmad and Nazeer Ahmad besides many other persons belonging to that village but none of them intervened in the same out of fear. The injured Munawar Ali and Muhammad Rafique were removed to Civil Hospital, Mandi Ahmad Abad by the complainant, Maqbool Ahmad and Nazeer Ahmad. The doctor attending the injured victims at the hospital admitted Muhammad Refique to the hospital for treatment but referred Munawar Ali to Mayo Hospital, Lahore. The complainant and others were preparing to take Munawar Ali to Lahore for medical treatment but in the meanwhile he succumbed to his injuries and died. Leaving dead-body of Munawar Ali deceased in the hospital in the care of Maqbool Ahmad and Nazeer Ahmad the complainant went to Police Station, Mandi Ahmad Abad, and District Okara and lodged F.I.R.No,56 thereat in respect of the above-mentioned incident at 6-15 p.m. On 23-3-1998 for offences under sections 302 and 324, P.P.C.
3. The investigation of this case was conducted by Muhammad Rafique, S.-I. (P.W.10) and Abad Ali, Inspector (P.W.12) and during the investigation an injury statement and an inquest report were prepared, the dead-body was dispatched to the mortuary for autopsy, the place of occurrence was inspected, blood-stained earth and two crime-empties were secured, a rough site-plan of the place of occurrence was prepared and a supplementary statement of the complainant and statements of witnesses were recorded. After the post-mortem examination of the dead-body the last-worn clothes of the deceased were secured and later on a formal site-plan of the place of occurrence was not prepared, the appellant was arrested and a rifle 8MM was recovered from his possession. Upon completion of the investigation a challan was prepared and submitted in connection with this case.
4. At the commencement of the trial the learned trial Court framed a charge with two heads under sections 302, P.P.C. And 324, P.P.C. Against the appellant to which he pleaded not guilty and claimed a trail.
5. During the trial the prosecution produced twelve witnesses in support of its case against the appellant. Muhammad Ali complainant (P.W.4), Nazeer Ahmad (P.W.2) and Sanaullah (P.W.3) furnished the ocular account of the incident in question and they also deposed about the motive.
Qasim Ali (P.W.1) stated about recovery of a rifle .8MM from the appellant's possession during the investigation of this case. The medical evidence was provided by Dr. Abdul Majeed Joiya (P.W.5) and Dr. Munir Ahmad (P.W.6), Muhammad Rafique, S.-I. (P.W.10) and Abad Ali, Inspector (P.W.12) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature.
6. In his statement recorded under section 342, Cr.P.C. The appellant denied and controverted all the allegations of act levelled against him by the prosecution and professed his innocence. He opted not to make a statement on oath under section 340(2), Cr.P.C. But he produced the injured prosecution witness namely Muhammad Rafique in his defence as D.W.1.
7. Upon conclusion of the trial the learned trial Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt and, thus, it convicted and sentenced him as mentioned and detailed above. Hence, the present appeal and the connected Murder Reference before this Court.
8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been arguedby the learned counsel for the appellant that the prosecution had miserably failed to prove its case against the appellant beyond reasonable doubt as presence of the eye-witnesses at the place of occurrence at the relevant time had not been established and the said witnesses had failed to receive any independent corroboration or support. He has pointed out that two of the eye-witnesses being relied upon by the prosecution, including an injured witness, had refused to support the prosecution's case against the appellant. It has, thus, been submitted by him that the appellant is entitled to be acquitted by this Court. As against that the learned counsel for the State have maintained in unison that the prosecution had succeeded in establishing the appellant's guilt to the hilt and, therefore, his conviction and sentence recorded by the learned Trial Court do not warrant any interference by this Court.
9. After hearing the learned counsel for the parties and going through the record of this case with their assistance we have straightaway observed that in order to establish its case against the appellant the prosecution had relied upon five witnesses namely Muhammad Ali complainant, Sanaullah, Muhammad Rafique, Maqbool Ahmad and Nazeer Ahmad. Out of the said eye- witnesses the prosecution had produced Muhammad Ali complainant (P.W.4), Nazeer Ahmad (P.W.2) and Sanaullah (P.W.3) before the learned trail Court in support of its case but the other two eye-witnesses namely Maqbool Ahmad and Muhammad Rafique have refused to support the prosecution's case against the appellant and they had been given up by the prosecution as having been won over. Muhammad Rafique P.W. Was an injured eye-witness whose presence at the scene of the crime at the relevant time could not be doubted and Maqbool Ahmad P.W. Was one of the two eye-witnesses in whose care the dead-body of Munawar Ali deceased had been left at the time when the complainant had gone to report the matter to the police. The said two prosecution witnesses were, thus, of crucial importance and it is of great significance that both of them had refused to support the prosecution's case against the appellant. Muhammad Rafique P.W. Had in fact appeared before the learned Trail Court in defence of the appellant and had got his statement recorded as D.W.1. In this backdrop the ocular account furnished by the prosecution had suffered a serious setback and had been irretrievably shaken.
10. Muhammad Ali Complainant (P.W.4) was the father of Munawar Ali deceased and before the learned trial Court he could not even tell the measurements of the shop of the deceased where he had claimed to have been sitting with the deceased at the time of the present occurrence. The house of the complainant was situated about one Killa away from the place of occurrence and he had advanced no explanation as to why he was sitting with the deceased at his shop at the time of the present occurrence. The complainant had maintained that at the time ofreporting of the matter to the police the dead-body of his son was available at the hospital but Sardar Ali, FC (P.W.11) had given a lie to him in that regard by deposing that the dead-body had been handed over to him at the place of occurrence for the purpose of taking the same to the mortuary for autopsy. The complainant had claimed before the learned trial Court that he was the one who shifted the injured victim namely Muhammad Rafique to the hospital but Dr. Abdul Majeed Joiya (P.W.5) had categorically stated before the learned trial Court that the injured victim namely Muhammad Rafique had been brought to the hospital by one Ghulam Farid. Muhammad Rafique (D. W.1) had explained before the learned trail Court that the said Ghulam Farid was the Ustad of Munawar Ali deceased in the tailoring profession. This shows that the complainant's claim regarding his presence at the place of occurrence at the relevant time was quite doubtful. We have further noticed that in the F.I.R. The complainant had maintained that the appellant was armed with a rifle .303 but subsequently through a supplementary statement made by him he had maintained that the appellant was armed with a rifle. 8 MM. The statement made by the complainant before the learned trial Court shows that the . Said supplementary statement made by him had been made after seeing the crime-empties of rifle .8MM at the place of occurrence.
The complainant had never claimed in the F.I.R. That the appellant had ever aimed his rifle at Sanaullah (P.W.3) but he had. Changed his version in that regard before the learned trial Court and had claimed that the appellant had pulled the bolt of his rifle for firing at Sanaullah (P.W.3) whereupon Sanaullah (P.W.3) had started running away and the appellant had given him a chase.
All this was never mentioned in the F.I.R. And the complainant was duly confronted with the F.I.R. In that respect.
11. As regards Sanaullah (P.W.3) we have observed that he was not related to the complainant or the deceased and he had no house or a shop anywhere near the place of occurrence. He had claimed before the learned trial Court that his house was situated about 10/12 acres away from the place of occurrence but Nazeer Ahmad (P.W.2) had categorically stated before the learned trial Court that the house of Sanaullah (P.W.3) was situated one kilometer away from the spot.
Sanaullah (P.W.3) did not know much about the place of occurrence as he had claimed before the learned trial Court that the shop of Muhammad Rafique (D.W.1) was situated on the North of the deceased's shop whereas the site-plan of the place of occurrence showed that the shop of Muhammad Rafique (D. W.1) was situated towards the South of the deceased's shop. This witness also did not know the size or other particulars of the shop of the deceased where he had claimed to be present with the deceased at the time of the present occurrence. This witness had claimed that at the relevant time he was sitting with the otherwitnesses inside that shop on a bench but no such bench was shown in the site-plan of the place of occurrence (Exhibit-PL). We have found it to be quite intriguing that according to the prosecution the target of the appellant's anger was Sanaullah (P.W.3) but despite having an ample opportunity in that regard the appellant had not harmed him at all and had instead harmed two others who had allegedly stopped him from harming Sanaullah (P.W.3). In his examination-in-chief Sanaullah (P.W.3) had maintained that after hearing the appellant's Lalkara he had hidden himself but in the cross-examination he changed his stance in that regard and claimed that he had never hidden himself. It had been conceded by him that there was no place in the relevant shop where he could hide himself from the appellant. The evidence available on the record shows that a sister of Sanaullah (P.W.3) had been abducted by a brother of the appellant and a criminal case had been registered in that regard against the appellant and his brother and others but the said case was subsequently cancelled. This shows that this witness was inimically disposed towards the appellant and his statement made before the learned trial Court in the present case is, therefore, to be looked at with some suspicion.
12. Nazeer Ahmad (P.W.2) was related to the complainant and he had also claimed that he was present with Munawar Ali deceased inside his shop at the time of the present occurrence. The statement made by this witness before the learned trial Court shows that he too did not know much about the place of occurrence and he was wrong in most of the details about the place of occurrence given by him. He had claimed that he had a Pansari shop near the shop of the deceased but the other two eye-witnesses produced by the prosecution had maintained that this witness had a store of pesticides. Almost every direction or place described by him before the learned trial Court with reference to the place of occurrence was contrary to the site-plan of the place of occurrence (Exhibit-PL) which had allegedly been prepared at his pointing out.
13. For the reasons recorded above all the three eye-witnesses produced by the prosecution have utterly failed to inspire our confidence. As against that Muhammad Rafique (D.W.1) was an injured witness of the prosecution but he had supported the appellant's case before the learned trial Court by clearly maintaining that it was not to present appellant who had caused injuries to the deceased and to this witness. Maqbool Ahmad P.W's presence at the spot had been asserted by all the eye-witnesses produced by the prosecution before the learned trial Court but the said witness had been given up by the prosecution as having been won over. It could well be that he had been won over by the truth rather than by the appellant.
14. The beleaguered ocular account furnished by the prosecution had failed to receive any independent corroboration or support. Munawar Ali deceased was a young boy aged about 14/15 years and admittedly the appellant had absolutely no motive against him. Even the motive set up with reference to Sanaullah (P.W.3) has failed to impress us because the relevant criminal case for abduction had admittedly been cancelled about four years prior to the present occurrence and no quarrel or any untoward incident whatsoever had taken place between the appellant and Sanaullah (P.W.3) during all these years. Apart from the Sanaullah (P.W.3) had himself disclosed before the learned trial Court that the house of the appellant and his brother and the house of this witness were situated very close to each other. Thus, if the appellant had to launch an assault upon Sanaullah (P.W.3) then there was hardly any occasion for him to go to shop of Munawar Ali deceased and to attack Sanaullah (P.W.3) there. Sanaullah (P.W.3) had also disclosed that a sister of the appellant was the wife of the said witness's paternal uncle and that the family of Sanaullah (P.W.3) was on good terms with the appellant. In these circumstances the motive set up by the prosecution was either nonexistent or the same had remained far from being established.
15. A rifle .8MM had allegedly been recovered from the appellant's possession during the investigation of this case and subsequently two crime-empties had statedly matched with the said rifle. We have, however, found that the date of recovery of the said rifle was the same as the date of handing over of the crime-empties by the Investigating Officer to the Moharrir/HC of the relevant Police Station. A possibility, thus, could not safely be ruled out that the crime-empties had in fact been manufactured after recovery of the rifle and then both the said items were deposited in the Malkhana on one and the same day. It is also curious to note that according to the Memorandum of Recovery (Exhibit-PB) two empty 'cartridges' and not two empties of bullets had been recovered from the place of occurrence and this was also confirmed by the Investigating Officer namely Muhammad Rafique, S.-I. (P.W.10). It appears that at some subsequent stage the recovered empty cartridges were replaced by empties of bullets so as to suit the prosecution's case against the appellant. It may also be relevant to mention here that in the Inquest Report (Exh.PJ) no mention had been made to recovery of any crime-empty. As if this were not enough the report of the Forensic Science Laboratory (Exh.PN) regarding matching of the crime-empties with the recovered rifle had never been put to the appellant at the time of recording of his statement under section 342, Cr.P.C. It is settled law that a piece of evidence not put to an accused person under section 342, Cr.P.C. Cannot be considered against him. In this view of the matter no corroboration to the ocular account was forthcoming on this score.
16. The occurrence in this case had taken place at about 5-00 p.m.On 23-3-1998 and an F.I.R. In respect of the same had statedly been lodged at 6-15 p.m. On the same day but post-mortem examination of the dead-body had been conducted on the following day i,e, 24-3-1998 at 11-30 a.m. Dr. Munir Ahmad (P.W.6) had maintained that he had conducted post-mortem examination of the dead-body soon after receipt of the police papers. This shows that the police papers were not ready till about mid-day on 23-3-1998 whereas the F.I.R. Had been shown to have been registered at 6-15 p.m. On 23-3-1998. Such a delayed postmortem examination of the dead-body was clearly suggestive of a real possibility that time had been consumed by the complainant party and the police in procuring and planting eye-witnesses and in cooking up a story of the prosecution before preparation of the police papers necessary for getting a post-mortem examination conducted. We have also noticed that according to the site-plan of the place of occurrence (Exh. PL) and also according to the eye-witnesses produced by the prosecution the distance between the appellant and the deceased at the place of occurrence was ten feet whereas the entry wound found on the dead-body had blackening on the same. Such blackening found on the injury was not possible from a distance of ten feet. The medical evidence, thus, contradicted the ocular account in this regard.
17. For what has been discussed above we have felt no hesitation in concluding that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant recorded by the learned trial Court are set aside and he is acquitted of the charge of extending the benefit of doubt to him.
He shall be released from the jail forthwith if not required in any case.
18. Murder Reference No,831 of 2001 is answered in the negative and the sentence of death passed by the learned trial Court against Taj Ahmad alias Mumtaz appellant is not confirmed.