' ASIF SAEED KHAN KHOSA, J.-- Ghulam Murtaza appellant was convicted for an offence under section 302(b), P.P.C. Vide judgment, dated 23-7-2002 rendered by the learned Additional Sessions Judge, Kasur and was sentenced to imprisonment for life and to pay a sum of Rs,1,00,000 to the heirs of Muhammad Yaseen deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months. The benefit under section 382-B, Cr.P.C. Was disallowed to the appellant Ghulam Murtaza appellant has challenged his conviction and sentence before this Court through Criminal Appeal No,1351 of 2002 and Farmaish Ali complainant hds preferred Criminal Revision No, 900 of 2002 before this, Court seeking enhancement of the sentence passed by the learned trial Court against Ghulam Murtaza appellant. I have heard both these matters together and I propose to decide the same together through the present consolidated judgment.
2. The necessary facts giving rise to the present appeal and the connected revision petition are that at about 6-00 p.m. On 25-5-1999 Muhammad Yaseen deceased was done to death on a roadside in Chak Dhingriwala situated within the area of Police Station Raiwind Sadar, District Kasur and it is alleged by the prosecution that Ghulam Murtaza appellant had caused the said murder through a firearm injury on the back of Muhammad Yaseen deceased. The motive set up by the prosecution was that Farmaish Ali complainant and his brother Muhammad Yaseen deceased used to inform the other villagers about the thefts and other offences allegedly committed by the appellant and others which had caused annoyance to the appellant. According to the prosecution's case the alleged incident of Muhammad Yaseen's murder had been witnessed by Farmaish Ali complainant (P.W.4), Hidayat Ali (P.W.5) and one Vakil Ahmad P.W. Upon a statement made by Farmaish Ali complainant before a police officer at 10-30 p.m. On 25-5-1999 formal F.I.R.
No, 282 was registered at Police Station Raiwing Sadar, District Kasur at 10-50 p.m. On 25-5-1999 for offences under sections 302/ 324/34, P.P.C. The investigation of this case was conducted by Muhammad Sharif, Inspector (P.W.7) but the complainant felt dissatisfied with such investigation and, thus, on 13-10-2001 he instituted a private complaint against the 'appellant and three others in respect of the same incident. The learned trial Court, however, summoned only the appellant to face a trial in that regard. The appellant pleaded not guilty to the charge framed by the learned trial Court against him and claimed a trial. During the trial the prosecution produced eight witnesses in support of its case against the appellant. In his statement recorded under section 342, Cr.P.C. The appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. He, however, opted not to make a statement on oath under section 340(2), Cr.P.C. But produced two police officials in his defence who had found the appellant to be innocent during the investigation of this case conducted by them. At the 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, the appellant was convicted and sentenced by it as mentioned and detailed above. Hence, the present appeal and the connected revision petition before this Court.
3. I have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that the prosecution had miserably failed to prove its case against the appellant beyond reasonable doubt and, therefore, the appellant ought to be acquitted by this Court. As against that the learned counsel for the State as well as the learned counsel for the complainant have maintained that the guilt of the appellant had been fully established before the learned trial Court and, therefore, the appellant's conviction recorded by the learned trial Court does not warrant any interference by this Court. The learned counsel for the complainant has gone on to argue that in the peculiar circumstances of this case the sentence of the appellant ought to be enhanced to death.
4. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has straightaway been observed by me that the motive set up by the prosecution had remained far from being established. According to the private complaint instituted by the complainant the appellant had suspected that Muhammad Yaseen deceased and Farmaish Ali complainant used to inform the other villagers about the thefts and other offences allegedly committed by the appellant and others and the appellant had felt annoyed on that score. The said motive set up in the private complaint had been changed by the complainant in his examination-in-chief before the learned trial Court wherein he had maintained that a particular theft had been committed by the appellant and Muhammad Yaseen deceased had required the appellant to return the stolen property and on account of that demand of the deceased the appellant bore a grudge against him and he had committed the murder of the deceased on that score. The said changed motive had further been changed by the complainant during his 'cross-examination wherein the complainant had maintained that the appellant bore a grudge against the deceased and the complainant over a previous murder of one Atta Muhammad. Farmaish Ali complainant (P.W.4) was the only witness who had deposed before the learned trial Court about the motive but he had failed to produce any independent evidence before the learned trial Court to substantiate or establish any of the above mentioned three motives alleged by him. The complainant's brother namely Hidayat Ali (P.W.5) had said nothing about the motive and had in fact given a lie to the complainant by maintaining that there was no animosity between the appellant and the deceased and also that the complainant party was on visiting terms with the appellants. In this state of the evidence produced by the prosecution regarding the motive it has not surprised me to find that even the learned trial Court had disbelieved and discarded the motive set up by the prosecution.
5. Admittedly nothing had been recovered from the appellant's possession during the investigation of this case and, thus, no corroboration of the ocular account was forthcoming in this case from any recovery.
6. Instead of providing support to the ocular account the medical evidence produced by the prosecution had gone a c long way in creating serious doubts about the veracity and truthfulness of the ocular account. According to the private complaint instituted by the complainant Muhammad Yaseen deceased had urinated just before he was fired at and this was also stated to be so by the complainant before the learned trial Court but Dr. Rasheed Ahmad Bhullar (P.W.1) had stated before the learned trial Court that the deceased's bladder was found by him to be full of urine. Apart from that the duration between the death and the postmortem examination stated by this witness showed that the death of Muhammad Yaseen deceased had taken place around midnight and not at 6-00 p.m. On 25-5- 1999 as maintained by the complainant and the other eye-witness. The medical evidence produced in this case, thus, clearly hinted at a real possibility that Muhammad Yaseen deceased had been murdered during the night between 25/26-5-1999 and the alleged occurrence could well have been an unwitnessed occurrence.
7. The investigation of this case conducted by Muhammad Sharif, Inspector (P.W.7) had been found by the learned trial Court to be unreliable. The police officials produced by the appellant in his defence as D.W.1 and D.W.2 had found the appellant D to be innocent during their investigation of this case. In these circumstances even this aspect of the case reflects adversely upon the veracity of the ocular account.
8. The discussion made above leaves me only with the ocular account furnished in this case by the prosecution which account, as discussed above, had not found any corroboration or support from any independent quarter. The ocular account in this case was furnished by Farmaish Ali complainant (P.W.4) and Hidayat Ali (P.W.5) who were very closely related to Muhammad Yaseen deceased inasmuch as Farmaish Ali complainant (P.W.4) happened to be the father of the deceased whereas Hidayat Ali (P.W.5) was a brother of the complainant and a paternal uncle of the deceased. Both these witnesses were chance witnesses and it had nowhere been established on the record that they lived anywhere close to the place of occurrence. Farmaish Ali complainant (P.W.4) had never claimed to be doing business together with Muhammad Yaseen deceased and had not advanced any reason whatsoever for accompanying the deceased to the spot at ' the relevant time. Likewise, Hidayat Ali (P.W.5) had also failed to disclose any reason whatsoever for his presence at the spot at the time of the alleged occurrence. Thus, both these closely related eyewitnesses had failed to bring anything on the record to establish, any reason for their presence at the scene of the crime at the E relevant time. I have found it to be rather curious that in his private complaint Farmaish Ali complainant (P.W.4) had maintained that the appellant had also fired at him but he had saved himself by taking shelter whereas the complainant had maintained before the learned trial Court in so many words that the appellant could not see him at the time of the occurrence. It is also pertinent to mention here that the alleged occurrence had taken place outside the haveli of one Farzand but the prosecution .Had failed to produce either the said- Farzand or anybody else residing at or around the said spot. It is also of critical importance to mention here that according to both the eye-witnesses produced before the learned trial Court the incident in question had also been witnessed by one Vakil Ahmad but the said Vakil Ahmad had been given up by the prosecution as having F been won over. This clearly showed that the said eye-witness was not ready to support the prosecution's case against the appellant. It has already been observed above that the medical evidence produced in this case by the prosecution itself clearly contradicted the eye-witnesses on two critical aspects of this case, i.e, urinating by the deceased just before his death and the time of the alleged incident. In view of all these factors, coupled with the fact that the ocular account had failed to receive any independent corroboration or support from F any factor or circumstances, I have entertained serious doubts about the present of the above-mentioned eye-witnesses near the deceased at the time of the alleged occurrence.
9. For what has been discussed above a conclusion is irresistible and incapable that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. Criminal Appeal No,1351 of 2002 is, therefore, allowed, the conviction and sentence of Ghulam Murtaza appellant G recorded by the learned trial Court are set aside and he is acquitted of the charge. He shall be released from the jail forthwith if not required in any other case.
10. For the reason recorded above Criminal Revision No,900 of 2002 is hereby dismissed.