' MUHAMMAD FARRUKH MAHMUD, J.---This judgment will dispose of Criminal Appeal No,248-J of 2001 filed by Abdul Jabbar and Criminal Appeal No,1390 of 2001 filed by Muhammad Aslam who were convicted and sentenced by the learned Additional. Sessions Judge, Jaranwala, District.
Faisalabad, in case F.I.R. No,237, registered at Police Station Lundianwala, District Faisalabad, on 8- 5-1999 for offences under sections 302/34/109, P.P.C., vide his judgment dated 31-7-2001 as under:- -- ' Abdul Jabbar Death under section 302(b)/34, P.P.C.
' Muhammad Aslam Life Imprisonment with compensation of Rs,25,000 under section 302(b)/34, P.P.C.
Murder Reference No,583 of 2001 for confirmation or otherwise of death sentence of Abdul Jabbar- appellant and Criminal Revision No,620 of 2001 filed by Dan son of Sohna seeking enhancement of sentence awarded to Muhammad Aslam respondent No,1 therein shall also be disposed of through this single judgment.
2. Brief facts of the case as narrated by Dan son of Sohan (complainant/P.W.8) in his written application Exh.P.A. Are that on 8-5-1999 at about 5-00 p.m. The complainant along with Inayat Ali (Bhanja of the complainant), Muhammad Fazil son of Bagga, Khizar Hayat son of Maja caste Chadhar residents of the village, left Adda Lundianwala for their village on foot. Inayat Ali was going ahead of the complainant and others. When Inayat Ali reached in front of a shop at a distance of ten Karams, he was confronted by Muhammad Aslam son of Ahmad and Abdul Jabbar son of Amir, both armed with .30 bore pistols. Muhammad Aslam fired which hit Inayat Ali on right side of his chest. Inayat Ali fell down on the ground. Abdul Jabbar fired several shots on Inayat Ali, while he was lying on the ground, on different parts of his body. Both the accused remained raising Lalkara that if any one came near to save Inayat Ali he would be done to death. Due to fear of death the complainant, Muhammad Fazil and Khizar Hayat did not go near Inayat Ali. The accused fled away from the spot while brandishing their pistols. The occurrence was witnessed by complainant, Muhammad Fazil and Khizar Hayat as well as other persons, who were present at Adda Lundianwala. Inayat Ali was taken to Civil Hospital, Jaranwala, in a wagon. The Medical Officer after admitting Inayat Ali in the hospital referred him to Allied Hospital, Faisalabad, who succumbed to the injuries after reaching Allied Hospital. It is also mentioned in Exh.P.A. That 15/20 days prior to the occurrence Muhammad Aslam and Abdul Jabbar, while sitting on Thara in front of Javed's shop, were consulting. Javid was telling to Muhammad Aslam and Abdul Jabbar that he should teach a lesson to Inayat Ali for becoming a Chaudhry of the village. Walayat Ali son of Kabir and Idris son of Nousher, residents of the village, while standing with the wall of the shop of Javed heard their conversation. They informed the complainant and Inayat Ali about the conspiracy.
' Motive behind the occurrence was the previous litigation between the parties. So on the abetment of Javed, Muhammad Aslam and Abdul Jabbar committed the murder of Inayat Ali.
3. After registration of formal F.I.R., the investigation of the case was taken over by Habib Ullah, S.- I./P.W.12, who took over the dead body which was lying in the Civil Hospital, Jaranwala, prepared injury statement Exh.P.E. And inquest report Exh.P.F. Thereafter on 9-5-1999 he proceeded to the 'place of occurrence and took into possession bloodstained earth from the spot vide memo.
Exh.P.G. On 23-5-1999 he arrested both the accused. While in custody, on 6-6-1999 Abdul Jabbar led to the recovery of .30 bore pistol P.1 from his residential house, which was taken into possession vide memo. Exh.P.B. On the same date, P.W.12 also arrested Javed-accused. After completion of investigation, the accused were sent up to face trial.
4. At the trial, the prosecution in order to prove its case produced 12 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.P.M. And that of Serologist Exh.P.M,/1 closed its case. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence. They did not appear as witnesses under section 340(2), Cr.P.C.
After conclusion of trial, the learned trial Court while acquitting Javed son of Bashir Ahmad convicted and sentenced the appellants as stated above.
5. After having read the entire prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. And other relevant material available on record, the learned counsel for the appellants submit that it was an unwitnessed occurrence and the P. Ws. Lived at a distance of two miles from the spot; that none from the locality was produced; that the eye-witnesses failed to furnish plausible explanation for their being present at the time of occurrence; -that non-presence of the P.Ws. Is evident from the fact that Inayat Ali while he was injured was taken to hospital by one Shahjahan, whose name has not been mentioned in the F.I.R. Nor by any of the P.Ws.; that there was unexplained delay in lodging the F.I.R.; that statement of Muhammad Fazil was not recorded at the hospital rather it was recorded on the next date, which shows that he was not present along with Dan-complainant in the hospital; that the Investigating Officer did not support the allegation of the eye-witnesses vis-a-vis Muhammad Aslam; that initially different motive was set in the F.I.R. And subsequently another motive was carved out, but the same was not supported by any evidence; and that the occurrence took place in front of the shops near Bus-Adda Lundianwala but no one from the shopkeepers was even cited as witness. The learned counsel for Muhammad Aslamappellant Mian Sikandar Hayat, Advocate, adds that it appears that the occurrence did not take place at the place narrated by the P.Ws., as no empty was recovered from the spot; and that F.I.R. Was recorded after an unexplained delay with due deliberation, as the assailants were not known to the P.Ws.
6. The learned counsel appearing on behalf of the State have contended that Muhammad Fazil and Dan gave very consistent account of the occurrence before the learned trial Court and lengthy cross-examination could not shake their veracity; that occurrence took place while daylight was available, hence the identity of the accused was not in question; that delay in F.I.R. Stands fully explained as P.Ws. Had been making desperate attempts to save the life of Inayat Ali; and that the ocular account was fully supported by the medical evidence and non-recovery of empties would not benefit the accused, as there was no doubt that the deceased lost his life- due to fire-arm injuries.
7. We have heard the learned counsel for the parties at length and scanned the entire record minutely. The prosecution case against the appellants revolves around the statements of Dan complainant/P.W.8 (maternal uncle of the deceased) and his Phophized Muhammad Fazil P.W.7.
Both of them lived at a distance of two miles from the spot and were chance witnesses. According to F.I.R., at about 5-00 p.m. The complainant, his Bhanja Inayat Ali-deceased, Muhammad Fazil P.W.7 and Khizar Hayat (who was not produced during trial) left Adda Lundianvvala and started towards their village on foot. The deceased was going ahead of the P.Ws. The distance between the deceased and P.Ws. Was ten Karams, When the deceased reached near a shop, he was confronted by appellants, who opened fire at him. First fire was caused by Muhammad Aslam, while the rest of the fires were caused by Abdul Jabbar. After firing, the assailants left the scene of occurrence.
Inayat Ali was taken to Civil Hospital, Jaranwala, on a wagon. The doctor firstly admitted Inayat Ali in the hospital but subsequently due to his serious condition referred him to Allied Hospital, Faisalabad. Inayat Ali lost his life the moment he reached Allied Hospital and his body was brought back from Allied Hospital to Jaranwala Hospital, where Habib Ullah S.-I./P.W.12 reached and recorded the statement of the complainant at 9-30 p.m.
8. In his statement before the learned trial Court the complainant made many dishonest improvements vis-a-vis the motive and the occurrence. He was duly confronted with his earlier statement. The complainant and P.Ws. Muhammad Fazil also came out with stories justifying their presence at Adda Lundianwala, which were not mentioned in their previous statements. The complainant also introduced the name of Shahjahan, who, according to him, went inside the office of Allied Hospital and was given a chitt. Thereafter Shahjahan told the complainant and P.Ws. To go back to Jaranwala. He further stated that after recording his statement the Investigating Officer along with him, Shahjahan and Imran went to place of occurrence on two cars, one was occupied by Shahjahan and P.Ws. While the other by the police. Muhammad Fazil/P.W. Also made many dishonest improvements in his statement before the learned trial Court including that he, Dan, Khizar Hayat and Shahjahan put the deceased on a cot and then took him to Civil Hospital, Jaranwala, where the Medical Officer attended to Inayat Ali and gave treatments for 45 minutes. It may be noted here that the complainant did not state that Shahjahan was with them when Inayat Ali was taken to Civil Hospital, Jaranwala. The statement of Shahjahan was never recorded by the Investigating Officer. His name was not mentioned in the F.I.R. At all. The name of Shahjahan was also not mentioned in the statement of Muhammad Fazil Exh.D.B., which was recorded on the next date i.e, 9-5-1999 under section 161, Cr.P.C. The question is, why the P.Ws. Introduced Shahjahan in their statements, the answer lies in the statement of Dr, Anwar Saood Saqib/P.W.9. Who firstly examined Inayat Ali and prepared medico-legal report Exh.P.J. In his statement the doctor mentioned that Inayat Ali was brought in injured condition to the hospital by his friend Shahjahan son of Riaz. Medico-legal report verifies the statement of doctor; wherein in the relevant column name of Shahjahan son of Riaz (friend) has been mentioned. Obviously if both the P.Ws., who were related to the deceased, would have brought the deceased to the hospital then their names would have been mentioned in the medico-legal report. Perusal of Exh.P.J. Further reveals that Inayat Ali in injured condition was taken to the hospital at 6-00 p.m. And he was attended to at 7-00 p.m. After one hour. The injured remained in the hospital without any medical aid, perhaps for the reason that doctor was not available at the hospital at that time. The doctor stated on Oath before the learned trial Court that injured was accompanied by Shahjahan. He has not mentioned the name of any other relative/witness. It was for that reason that both the P.Ws. Felt necessary to introduce the name of Shahjahan. According to P.W.8, they reached Allied Hospital at 7-45/8-00 p.m. But they did not take the dead body of Inayat Ali to Medical Officer at Allied Hospital, as he had died. P.W.7 stated that when they reached the courtyard of Allied Hospital Inayat Ali had died and he was not examined by any one there. He further stated that Shahjahan got the papers prepared from Allied Hospital and then dead body of the deceased was taken to Civil Hospital, Jaranwala on the same day. There is no record available that any papers were prepared by any doctor posted at Allied Hospital, Faisalabad, nor it is believable that any doctor would prepare the papers without examining the deceased. It is also not believable that near relatives after reaching Allied Hospital would not approach any doctor to confirm the death of Inayat Ali. No plausible explanation is available on record as to why Inayat, who had died, was taken back to Jaranwala Hospital.
Ordinarily he should have been taken to the police station immediately. No wagon driver or independent witness was produced to prove that indeed Inayat was taken to Allied Hospital, Faisalabad. It 'appears that P.W.9 did refer Inayat Ali to. Allied Hospital due to his precarious condition as at the time of examination blood pressure and pulse of Inayat were not recordable and respiration was eighty per minute. The doctor also observed that the injuries had been caused within three hours. It appears that though Inayat was referred to Allied Hospital but he was not taken there and he died at Jaranwala Hospital. It is evident that after knowing about the incident Dan-complainant reached Jaranwala Hospital, where Habib Ullah, S.-I./P.W.12 also reached and met him. P.W.12 admitted that he did not record the statement of Muhammad Fazil on 8-5-1999 rather he recorded the same on the next day i.e, 9-5-1999 at the spot. In case Muhammad Fazil would have been there his statement must have been recorded at the hospital. Perusal of post- mortem report Exh.P.D. Reveals that time of death has not been mentioned in the relevant column.
Similarly the time of death has not been mentioned in column No,3 of inquest report Exh.P.F.
Furthermore, though according to Investigating Officer, bloodstained earth was collected on 9-5- 1999 but the same was deposited with the Moharrar on 10-5-1999. IC It is pertinent to note that the matter was not reported to the police at police station, which was at a distance of three miles from the spot rather the police officer reached the hospital at 9-30 p.m. After 4-1/2 hours of the occurrence. It may be added here that the place of occurrence was at a distance of one Acre from Bus-Adda and was in front of many shops, so it was not possible that the police would not come to know about the occurrence soon after. In the above noted circumstances it is more plausible that the occurrence was not witnessed by the complainant or other P.Ws. Mentioned in the F.I.R. And the c complainant reached the hospital after receipt of information of Inayat having been injured and subsequently the F.I.R. Was recorded after due deliberation.
9. Both the P.Ws. Also introduced new motives before the learned trial Court and were duly confronted with their earlier statements. As far as the motive, which was set in the F.I.R., is concerned, suffice it to say that the same could not be proved. Javed co-accused was acquitted and his acquittal was maintained.
10. No recovery was effected from Muhammad Aslam-appellant, while there is no record that pistol recovered at the instance of Abdul Jabbar-appellant was deposited with the Moharrar of police station to place it in safe custody nor the said pistol was sent to Forensic Science Laboratory to ascertain whether it was in working order or not. Surprisingly no empties were collected from the spot. Judgey P.W.4 admitted that he oftenly used to visit the police station and thus was conveniently available to the Investigating Officer. Hence the evidence of recovery, being not worthy of any credence, cannot be used against Abdul Jabbar-appellant.
11. Upshot of the whole discussion is that we are of the opinion that the prosecution failed to prove its case against Abdul Jabbar and Muhammad Aslamappellants beyond doubt. Resultantly, we allow both the appeals filed by Abdul Jabbar and Muhammad Aslam-appellants and set aside the judgment passed by the learned trial Court. They are acquitted of all the charges and would be released from jail forthwith, if not required in any other case.
12. Murder reference is answered in the negative. Death sentence awarded to E Abdul Jabbar- appellant is not confirmed.
13. For the same reasons, we find no merit in the revision, which stands dismissed.