' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment shall dispose of Criminal Appeal No,680 of 2004 .(Amjad Ali v. State), Criminal Appeal No,681 of 2004 (Wazir Ali v. State) and Criminal Revision No,391 of 2004 (Meraj Din v. Amjad Ali and others) as they arise out of the same judgment, dated. 27-3- 2004 passed by the learned Additional Sessions Judge, Gujranwala, whereby, after having tried the appellants, convicted them under section 302(b), P.P.C. And sentenced to imprisonment for life each with a further direction to pay a compensation of Rs,50,000 each as provided under section 544-A, Cr.P.C. In default whereof to further undergo six months' S.I. Each. Benefit of section 382-B, Cr.P.C. Was extended to the appellants. However, benefit of doubt was extended to co-accused, namely, Ashfaq, Tanvir and Kashif, who were acquitted from the case.
2. Brief facts of the case, as explained by Meraj Din complainant in the F.I.R. Are that on 27-7-2007 he along with his deceased brother Shaukat left the house for their jobs, Shaukat boarded a Tonga along with. Amjad and Kashif while complainant was on a bicycle at a short distance from the Tonga, when they reached near Gali Hawaldaranwali, Tanvir, Wazir and Amjad armed with .30 bore pistols stopped the Tonga, complainant moved aside, Tanvir raised a Lalkara to teach a lesson to Shaukat to pursue the case, upon which, Amjad made a fire on the right thigh of Shaukat; Wazir made a fire which landed on his right foot, his second fire hit on his shin while an unknown accused and Tanvir made firing in the air, on the request of Amjad and Kashif P.Ws., the accused left the spot while making aerial firing, he along with Amjad and Kashif shifted Shaukat to Civil Hospital, from where, due to his critical condition, he was referred to Mayo Hospital, Lahore and later on died due to the said injuries. According to the F.I.R. Motive was that Asghar Ali another brother of Shaukat deceased and Meraj Din complainant got a case registered against Amjad appellant and one Shahbaz on 4-6-2003 under section 392, P.P.C.
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 thirteen prosecution witnesses during the trial.
4. Learned counsel for the appellants in support of both the appeals (i.e. Criminal Appeal No,680 of 2004 Amjad Ali v. State and Criminal Appeal No,681 of 2004 Wazir Ali v. State) submit that there is a delay of two days in lodging the F.I.R.; that there is a conflict between the ocular account and the medical evidence because Injury No,3 according to the MLR, is an exit wound; that the injury attributed to Amjad is on non-vital part of the deceased who died after 18 days of the occurrence, so both the appellants cannot be saddled with the said death; that the recovery of pistol, in absence of any matching report, is inconsequential; that it was an unseen occurrence, nobody had seen it and the P. Ws. Were not present at the spot as the deceased was brought to the hospital by a constable in an injured condition; that Kashif was not named in the F.I.R. Although Tanvir acquitted accused was Hamzulf of the deceased while Tanvir, Kashif and Wazir are real brothers inter se which factum falsifies the prosecution story benefit of which must go to the appellants; that the prosecution has failed to prove its case against the appellants and that the appellants are entitled to acquittal by this Court.
5. On the other hand, Ch. Jamshed Hussain, Deputy Prosecutor-General, Punjab, submits that both the appellants are named in the F.I.R. With specific roles, delay in lodging the F.I.R. Has been explained, P.W.9 Meraj Din and P.W.10 Kashif are natural witnesses of the occurrence as the place of occurrence falls on the way of their place of job i.e. Factory and at the time of occurrence they were going to their job, the ocular account in this case is corroborated by the medical evidence, motive is proved on the record, recovery is only a supportive piece of evidence, appellants remained fugitive from law and 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.
6. I have heard learned counsel for the parties, 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.
7. Occurrence in this case had taken place on 27-7-2003 at 10/11 a.m. Within the area of Main Road Garjakh near Gali Hawaldaranwali within the jurisdiction of Police Station Garjakh, the matter was reported to the police through an application (Exh.P.G.) on 29-7-2003 at 6-15 p.m. While the formal F.I.R. Is Exh.P.G./1 recorded on the same day at about 6-30 p.m. And distance between the place of occurrence and the police station is four furlongs.
8. Deceased in this case is Shaukat Ali, a real brother of complainant Meraj Din. There are three eye-witnesses in this case, namely, P.W.9 Meraj Din, a real brother of the deceased and P.W.10 Kashif, a real maternal-nephew of the deceased while Amjad was given up as an unnecessary.
9. In all there were five accused persons in this case. Acquitted accused Tanvir and Ashfaq, appellants Amjad and Wazir were named while one person was shown as an unknown, who, later on was introduced through the supplementary statement as Kashif alias Kashi acquitted accused.
Criminal Appeal No,1114 of 2004 filed by the complainant Meraj Din against the acquittal of Tanvir and Kashif was dismissed by a learned Division Bench of this Court (headed by me) on 8-9-2005.
10. Three crime-empties were taken into possession by the Investigating Officer. Dr. Muhammad Jameel (P.W.8) conducted the medico-legal examination on 27-7-2003 in the injured condition of Shaukat deceased at 9-15 a.m. While he died on 12-8-2003 and postmortem examination on the person of the deceased was conducted by P.W.1 Dr. Muhammad Fiaz.
11. Appellant Amjad was arrested on 30-9-2003 who got recovered .30 bore pistol on 14-10-2003 which was taken into possession vide recovery memo. Exh.P.D. While appellant Wazir was arrested on 22-9-2003 who led to the recovery of a .30 bore pistol on 5-10-2003 which was taken into possession vide recovery memo, as Exh.P.C. Nobody had appeared to prove that both the appellants remained fugitive from law and were declared as proclaimed offenders.
12. According to the F.I.R. Motive was that Asghar Ali another brother of Shaukat deceased and Meraj Din complainant got a case registered against Amjad appellant and one Shahbaz on 4-6- 2003 under section 392, P.P.C. Wazir appellant was not accused in that case.
13. It may also be mentioned here that Kashif, Tanvir and Wazir Ali appellants are real brothers inter se, Tanvir was Hamzulf of Shaukat deceased but despite that close relationship the said Kashif was not named in the F.I.R. Although in the supplementary statement he was attributed aerial firing. In my view, -had he been present at the spot he must have been named in the F.I.R. Which factor creates doubts in the prosecution case. Tanvir was attributed aerial firing while Ashfaq was shown as an abettor, so, all three of them were rightly acquitted from the case.
14. According to the prosecution case, Amjad appellant fired a shot which hit on the right thigh of the deceased followed by two shots by Wazir appellant which allegedly landed on his right foot and shin. For a just decision of the case, it is imperative to reproduce injuries on the person of Shaukat deceased which were observed by P.W.8 Dr. Muhammad Jamil which are as under:-- "(1) F/A lacerated wound of entry 1 c.m. x 1 c.m. x going deep on inner side of right thigh middle part.
(2) F/A lacerated wound of entry 1 c.m. x 1/2 c.m. x going deep on outer side of right heel.
(3) F/A lacerated wound of exit 1/2 c.m. x 1/2 c.m. On sole of right foot under the heel."
' Perusal of the above mentioned injuries reveals that injuries Nos.1 and 2 are, entry wounds while Injury No,3 is an exit wound and there is no other injury on the person of the deceased.
15. There are some other important aspects of the case. According to the prosecution, the occurrence had taken place at 10/11 a.m. On 27-7-2003, three eye-witnesses, namely, P.W.9, P.W.10 and given up Amjad were mentioned but none of them shifted Shaukat to the hospital for treatment, who, at that time, was seriously injured. Relevant column of the said MLR (Exh.P.M.) shows that he was taken to the hospital by the police. In my view, had the eye-witnesses been present at the spot, at least, one of them must have accompanied him to the hospital for his treatment/examination.
16. Moreso, there is a two days delay in lodging the F.I.R. Although distance between the police station and the place of occurrence is only four furlongs. Surprisingly, none from the P.Ws. Went to the police station to report the matter.
17. There is yet another important aspect of the case which goes in favour of the appellants.
According to Exh.P.M. Shaukat was brought to the hospital by a constable at 9-15 a.m. While time of occurrence was 10/11 a.m. Which also falsifies the prosecution story. How, before two hours of the time of occurrence, the deceased could have been taken in an injured condition to the hospital?
18. Furthermore, Exh.D.A. Which is available at page 177 of the judicial file, which is a report lodged by Asghar Ali, a real brother of the deceased and the complainant on 28-7-2003 in the same police station at 10-20 a.m. In which he had stated that his brother (Shaukat deceased) was injured on 27-7-2003, he was taken to the Civil Hospital Gujranwala, from where, he was referred to Mayo Hospital, Lahore due to his serious condition and according to him, he could not report the matter due to precarious condition of his said brother Shaukat (deceased). He never gave name of any accused person who had caused injuries to his brother. Even he has neither been shown as an eye-witness in the F.I.R., which is yet another factor created doubts about the veracity of the prosecution case.
19. The crime-empties were never sent to the Fire-arm Expert either before or after arrest of the appellants although those were not taken into possession from the spot by the Investigating Officer but according to the recovery memo. Exh.P.J. Those were handed over to the Investigating Officer by Meraj Din complainant (P.W.9). Report of the Fire-arm Expert is Exh.P.P. According to which three pistols were recovered from the appellants and from Tanvir acquitted accused and were found in the working condition.
20. 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 because the afore-referred facts and circumstances of the case have led this Court to conclude that none of the eye-witnesses of the occurrence were present at the spot and they were later on planted, because, had they .Been present at the spot, fate of these appeals would have been different, so, their testimony is discarded accordingly. The prosecution case is full of doubts and doubts and 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, Criminal Appeal No,680 of 2004 (Amjad Ali v.
State), Criminal Appeal No,681 of 2004 (Wazir Ali v. 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 afore-referred reasons, I find no merit in Criminal Revision No,391 of 2004 filed by the complainant for enhancement of conviction and sentence of the appellants which is hereby dismissed with a further mention that this revision petition was signed by two learned Advocates, namely, Mr. Talib H. Rizvi and his son Mr. Taffazzul H. Rizvi, but, I am astonishing to note that right from the first hearing of the petition on 24-6-2004, both of them did not chose to appear even for a single time.