' KHAWAJA MUHAMMAD SHARIF, J.--- Aziz-ur-Rahman alias Rangu/appellant along with his co- accused Jahanzeb, Javed Akhtar and Waheed Qayyum was booked in case F.I.R. No,214 registered at Police Station R.A. Bazar, Rawalpindi, on 17-6-1991 for offence under sections 302/34/114, P.P.C. The aforesaid co-accused were, acquitted in a separate trial. However, after the arrest of the appellant he was tried by the learned Additional Sessions Judge, Rawalpindi. Vide judgment dated 1-5-2000 the learned trial Court convicted the appellant for offence under section 302(b), P.P.C. And sentenced him to death plus payment of Rs,2,00,000 as compensation, to the legal heirs of the deceased, in default whereof to undergo imprisonment for six months.
2. The appellant has challenged his conviction and sentence through the instant appeal. Javed Khan complainant has also brought Criminal Revision No,77 of 2000 against the appellant for enhancement of amount of compensation. Murder Reference No,170 of 2001 seeking confirmation or otherwise of death sentence imposed upon the appellant has also been placed before us. All these matters are being decided through this consolidated judgment.
3. The brief facts of the prosecution case per complaint Exh.P.D. Recorded by Muhammad Bashir, Inspector/P.W.12, at the instance of Javed Khan, complainant/P.W.5, which based the registration of formal F.I.R. Exh.P.D./1, are that about 2-1/2 years prior to the occurrence, Wali Muhammad- deceased/father of the complainant took a shop, consisting of two portions, known as Qaisar Karyana Store, on rent from Aziz-ur-Rahman/appellant at a monthly rent of Rs,1000 after payment of Rs,65,000 for the articles lying in the shop. Since a month prior to the occurrence, the appellant had been asking the complainant's father to vacate the shop. The deceased asked the appellant to pay the market price of the articles lying in the shop and then to take possession of the shop.
Two days earlier to the occurrence, the appellant threatened the deceased that if he did not vacate the shop, he (appellant) would himself get the same vacated. On 17-6-1991 at about 5,00 a.m. The complainant and his brother Rashid Mahboob as per routine went to the Army Stadium to make exercise and at about 5-45 on their way back to the house they reached in front of the shop of Usman Qureshi situated in Mahboob Street, meanwhile, the appellant Aziz-ur-Rahman armed with pistol carbine, along with his acquitted co-accused Jahanzeb armed with .12 bore gun and Waheed armed with pistol, while emerging out of the house of Javed Mahboob, came towards the aforesaid shop and the appellant fired a shot from his pistol carbine which hit the deceased, who was standing inside the shop, on the back of his head. That time Javed Chaudhry was standing outside the outer .Door of his house. Then all the three accused ran away towards Faisal Colony. On seeing the occurrence, the complainant along with his brother Rashid Mahmood and their other brother Khalid Mahmood/P.W.6 who was standing nearby, rushed to the spot while raising hue and cry. The deceased succumbed to the injuries after a few minutes. The deceased was taken to CMH, Rawalpindi, on the asking of the Mohallandars. Aziz-ur-Rahman alias Rangu, Jahanzeb Qayyum and Waheed in consultation with Javed Chaudhry had committed the murder of the deceased.
4. On 17-6-1991 on receipt of information about the incident, Muhammad Bashir, retired Inspector/P.W.12, reached C.M.H. Where the dead body of Wali Muhammad lying. After recording the complaint Exh.P.D. At the instance of Javed Khan, complainant/P.W.5, and sending the same to the police station for formal registration of the case, the Investigating Officer/I.O. Prepared the inquest report Exh. P. K. And despatched the dead body to the mortuary for post-mortem examination. Then the Investigating Officer went to the place of occurrence; collected blood- stained earth and brain matter from the spot and sealed the same into parcel vide memo. Exh.P.M..
The blood-stained clothes of the deceased and a sealed phial P.4 containing the led bullets were taken into possession vide memo. Exh.P.B.. The appellant was not traceable and was as such got declared proclaimed offender. The appellant was arrested on 21-1-1996, by Muhammad Iqbal, Inspector/P.W.11. While in custody on 28-1-1996 the appellant led to the recovery of carbine P.5 which was taken into possession vide memo. Exh.P.E. After completion of investigation, the appellant was sent up to face trial.
5. To prove its case at the trial, the prosecution produced thirteen witnesses and after tendering in evidence the reports of Chemical Examiner and Serologist Exhs.P.N. And P.O. Respectively closed its side. Thereafter the statement of the appellant under section 342, Cr.P.C. Was recorded, wherein he pleaded his innocence and false implication. However, neither he appeared as his own witness under section 340(2), Cr.P.C. Nor did he produce any witness in his defence.
6. Learned counsel for the appellant in support of this appeal submits that it was an unwitnessed occurrence and the eye-witnesses were not present at the spot; that there is conflict between the ocular account and the medical evidence; that as per F.I.R., one fire of pistol carbine was shot which hit on the backside of the head of the deceased, while according to post-mortem report, there were three injuries on the person of the deceased; one on the head (which has been mentioned in the F.I.R.) and two on the back of the shoulders, which have not been, explained by the prosecution. The learned counsel submits that if Javed Khan, who is complainant and son of the deceased, had been present at the spot, he must have himself taken the deceased to the hospital for post-mortem examination. The learned counsel has drawn our attention to Column Nos.2, 3, 4 and 10 of the post-mortem report. He submits that in column of death of the post- mortem report, there is interpolation. The learned counsel further submits that the complainant stated before the trial Court that carbine and pistol are two different weapons; and that the prosecution failed to prove its case against the appellant beyond doubt, so he is entitled to acquittal.
7. Conversely, the learned Assistant Advocated-General for the State submits that both the eye- witnesses though related to the deceased were natural witnesses; that they have explained their presence at the spot; and that the prosecution has proved its case against the appellant beyond doubt.
8. We have heard the learned counsel for the parties at a great length and have also gone through the record of the case.
9. According to prosecution case, the occurrence took place on 17-6-1991 at 5-45 a.m. The complaint Exh.P.D. Was recorded at C.M.H. On the same day at 7-15 a.m. And the formal F.I.R.
Exh.P.D./1 was recorded at 7-25 a.m. On the same day. There were three eyewitnesses and only two, i.e. Javed Khan and Khalid Mahmood, who are real sons of the deceased, appeared before the trial Court to support the prosecution case. There is no evidence on record that the appellant was declared proclaimed offender, although he remained fugitive from law for about four years and was ultimately arrested on 21-1-1996. His three co-accused namely Jahanzeb, Javed Akhtar and Waheed Qayyum were tried separately and were acquitted by the trial Court. The deceased is Wali Muhammad. His post-mortem examination was conducted on 17-6-1991 at 12-00 noon. The doctor could not be examined in the instant case before the trial Court. However, a certified copy of the postmortem report was placed on record, photostat copy whereof is available at page 39 of the paper book. According to F.I.R., the appellant was armed with pistol carbine. He fired "a" shot which hit on the backside of head of the deceased but according to the post-mortem report; there are three injures on his person. Only one injury has been mentioned in the F.I.R., while the other two injuries do not find mention in the F.I.R. Had the eye-witnesses been present at the spot at the time of occurrence, they would not have committed such a wicked mistake regarding the injuries received by the deceased at the hand of the present appellant. There could have been a mistake if the injuries are 6, 7 or 8-in number and the witness states one or two injuries less or more. The eyewitnesses who are sons of the deceased specifically stated that the appellant fired only one shot, while according to the post-mortem report, there were three injuries on the person of the deceased. So the presence of the eye-witnesses at the spot becomes doubtful. Our this view finds support from the inquest report Exh.P.K., in Column No,3 whereof no time of death is given and in Column No,4 only two witnesses have been mentioned but the third one has been mentioned as Javed Khan son of Wali Muhammad whose name was added later on. In Column No,10 after injury No,1 (which was mentioned in the F.I.R.) on the back of the head of the deceased, two other injuries were added and these, we think, were added after the post-mortem examination so as to make the same in line with the post mortem report. In column of time of death in the postmortem report Exh.P.J., time of death 5-15 a.m. Has been altered to 6-00 a.m. Then there is report Rozenamcha Exh.D.C., which shows that information was received in the police station that one Javed had informed that his father had been murdered and his dead body had been taken to C.M.H. Had he been present in the C.M.H. Along with the dead body, he would have informed the police that he was with the dead body even at C.M.H. Had he been in the C.M.H., he must have accompanied the dead body. Both the witnesses are sons of the deceased. They themselves had stated that they were chance witnesses and were coming back to their house after making exercise. Merely on the point of abscondence conviction and sentence cannot be maintained when otherwise this Court is not satisfied with the presence of the eyewitnesses at the spot due to the abovesaid reason.
10. In this view of the matter, while granting benefit of doubt to the appellant, this appeal is accepted; the conviction and sentence imposed upon the appellant is set aside. He is acquitted of all the charges. He shall be released forthwith if not required in any other case. The death sentence is not confirmed. The murder reference is answered in the negative.
11. For the same reasons Criminal Revision No,77 of 2000 seeking enhancement of amount of compensation is dismissed.