' SARDAR MUHAMMAD RAZA KHAN, J.--- The trial Court in its judgment, dated 4-5-1994 and the High Court in its judgment dated 13-8-1997 having varied with each other, Asghar Ali complainant has filed this appeal, after leave of Court, against the acquittal of respondents Nos.1 to 4.
2. All the respondents were tried under sections 302/394/459/34, P.P.C. Read with section 20 of Ordinance VI of 1979. The trial Court sentenced Muhammad Ilyas Dogar to death and Ijaz Beg, Abid Hussain and Nazir Ahmed to imprisonment for life under section 302(b)/34, P.P.C. They were given 10 years rigorous imprisonment under section 459/34, P.P.C. And similar sentence under section 20 of Ordinance VI of 1979 read with section 394, P.P.C. The High Court acquitted all the respondents of all the charges.
3. The background is revealed by Asghar Ali complainant of village Rajar to the effect that on 25-6- 1993 at 2-45 a.m. He along with his uncle Muhammad Younas was asleep on the rooftop of his house when at the aforesaid time he heard some noise from the courtyard of the adjoining house of his brother Akhtar Ali who also was asleep along with his family in the courtyard of his adjoining house. Asghar Ali and his uncle Muhammad Younis saw Nazir son of Ghulam Qadir, Abid son of Muhammad Walayat of Rajar, Muhammad Ilyas Dogar son of Sajawal of Chilyanwala armed with a .12 bore small barreled shotgun, Ijaz Beg son of Sadiq Beg of Varina armed with a revolver standing in the courtyard of Akhtar Ali's house. They were calling each other by name. Nazir and Abid commanded, Akhtar Ali, the owner of the house, to deliver him the keys. Akhtar Ali tried to catch hold of the barrel of gun whereupon Muhammad Ilyas fired a shot that hit Akhtar Ali on his left shoulder. He fell to the ground.
4. Asghar Ali and Muhammad Younas raised hue and cry due to which all the four ran away by scalling over the wall. While running away, one of the culprits left his pair of moccasins on the spot.
Akhtar Ali who had fallen unconscious was being taken to Civil Hospital Sarai Alamgir when they came across Banaras Khan, S.-I. Police Station Sarai Alamgir who recorded the above facts as first information of the occurrence.
5. At the trial Asghar Ali and Mst. Sanjeeda Begum, the wife of the deceased and Muhammad Younas were examined as eye-witnesses. The prosecution seeks support from the recovery of an empty of .12 bore that eventually matched with the gun recovered from accused Muhammad Ilyas at the time of his arrest. Needless to say that the prosecution story was believed in by the trial Court but disbelieved by the High Court.
6. We have minutely gone through the record with the assistance of the learned counsel on either side as well .As the learned State Counsel. We stand confronted with certain factual aspects of the case that cannot be reconciled with and cannot at all be avoided despite effort.
7. From the narration of the F.I.R. It is abundantly clear that all the four culprits were dacoits. They were not known to the complainant side. How Asghar Ali, the complainant happened to have had known the names of the culprits is well-explained in the F.I.R. Itself. It was because each one of them has been naming each other on the spot. At the first instance we are fully convinced that there was no occasion for the culprits to have called each other by name because at the moment when Asghar Ali saw the accused, the only thing they, rather, Nazir and Abid did do was to ask for the keys of the house. Till such time they had not talked to each other and also they did not after the occurrence. It is quite surprising to note that still the names of each and every accused along with their parentage, caste as well as the address is mentioned in the F.I.R.' It is factually impossible.
We are, therefore, convinced that the F.I.R. Was either registered much after the occurrence or only after when the culprits got arrested.
8. The purpose of the culprits was nothing but dacoity. The dacoits normally do not come for such purpose with unmuffled faces but still they so came so as to be easily identified. They belonged to different villages but still got known to the complainant. It also does not appeal to reason that a husband and wife along with family while sleeping in the courtyard would keep the electric light switched on. Those witnesses (P.Ws.7, 8 and 12) who talked about pointation of bulbs, do not admit to have had associated themselves with the draftsman who prepared the site plan.
9. The real purpose being that of dacoity, it does not appeal to reason that the dacoits would do everything but would not commit dacoity. It is not the case of the prosecution that they had committed dacoity as well.
10. It is also not probable that any conversation between the assailants and the victim party would be heard by the neighbourers. When, in the light of the site plan, the complainant got confronted with the circumstance that the courtyard was not visible from his rooftop, he totally changed his stance and made an improvement to the effect that from his rooftop he descended or climbed to the roof of the kitchen of the deceased. This improvement is not to be ignored or forgiven.
11. Quite untrained and ill-organized appear to be the dacoits who for no rhyme and reason and not having been engaged in a hazardous situation, left a pair of moccasin on the spot. This was a clear padding in the case and the shoes were planted subsequently, after having known the size of one of the accused. It is not believed by both the Courts.
12. The Investigating Officer has categorically admitted that with regard to the parentage, caste and the village of the accused, he had left numerous spaces as blank. This also fortifies our previous observation that the F.I.R. Was recorded much after substantial investigation. The same manipulation and alteration has admittedly been done by the doctor who changed the time of the victim's arrival at the hospital as well as the duration between injury and examination or injury and death.
13. Dhoke Subedaran, Rajar and Beega are different villages located apart from each other but still a house wife like Mst. Sanjeeda Begum (P.W.8) knows the culprits by name as well as by caste. It may be remarked at this stage that despite being natural witness and inmate of the house, the name and the presence of Mst. Sanjeeda Begum is not mentioned in the F.I.R.
14. The dacoits while committing such offence are themselves confronted with considerable danger and at times their own lives are at stake. It cannot be visualized that a dacoit would dare to commit dacoity inside the house of someone without being armed. Still Nazir and Abid are shown to be empty-handed.
15. It is categorically alleged that one of the accused had resorted to firing only one shot. It is a known fact that a shotgun does not eject an empty when only one shot is fired therefrom. Still one empty was recovered which matched with the gun of the accused recovered at the time of arrest.
It is also anybody's guess as to how a criminal minded person would keep on displaying a gun which he had used 17 days ago in a crime where he killed a person as well.
16. All these and many more mentioned by the High Court, are the circumstances which render the case highly doubtful. The presence of the eye-witnesses and the identity of the accused are highly doubtful. The F.I.R. Was recorded after considerable investigation and, not the Investigating Officer, but even the doctor had made various manipulations. No exception can be taken to the well- reasoned judgment of the learned High Court. The accused respondents were rightly acquitted, which acquittal is maintained and the appeal in hand is hereby dismissed.