1. ' M.A. ZAFAR, J.---This judgment will dispose of Criminal Appeal No,790 of 2002 filed by Khurram Shahzad appellant, who was convicted and sentenced by learned Addl. Sessions Judge, Bhalwal, District Sargodha vide impugned judgment dated 11-5-2002 as under:--- Under section 302(b), P.P.C.
2. ' Death and to pay Rs,50,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased and in default thereof to undergo six months' S.I.
2. Murder Reference No, 417 of 2002 for confirmation of death sentence or otherwise of the appellant shall also be replied through this single judgment.
3. Brief facts of the case as disclosed by Saleem Akhtar complainant in the F.I.R. Exh.P.L. Are that on 31-7-1999 he went to the house of her sister Mst. Hameeda Begum for some domestic kind of affair and his nephew Zafar Ullah went out of his house, upon a motor cycle to purchase house hold articles and when said Zafar Ullah reached near the house of accused Muhammad Arshad at about 9-30 a.m., accused Muhammad Arshad and Muhammad Imran stopped him and started giving him beating; Meanwhile, accused Muhammad Ashraf armed with .12 bore pump action, Hamad Arshad armed with rifle .7 mm, Khurram Shehzad armed with .12 bore gun came there from their house on hearing Lalkara of Muhammad Arshad. Accused Muhammad Ashraf gave gun .12 bore pump action to accused Muhammad Imran and raised Lalkara to open fire. Hearing the noise, the complainant along with P.Ws. Nasrullah Khan, Nazir Ahmad, Sagheer Ahmad ran towards the place of occurrence. Complainant's nephew Zafar Ullah rescued himself from the accused and ran towards West. Accused Muhammad Ashraf and Muhammad Arshad raised a Lalkara that relatives of Zafar Ullah are coming and fire upon them. Accused Muhammad Imran gave consecutive fire shots with his gun .12 bore pump action upon complainant's nephew Sagheer Ahmad, hitting him upon his chest and neck. Then Khurram Shehzad accused did fire with his gun .12 bore, which also hit Sagheer Ahmad deceased upon his hands, arms and belly and he fell down sustaining the injuries. The P.Ws. Laid down upon the ground due to fear. All the accused went on firing as a result of which one Bilqis Bibi and Nazia a small girl sustained injuries, thereafter, accused went to their house while firing and raising Lakaras. Complainant and P.Ws. Took care of Sagheer Ahmad deceased, who succumbed to the injuries at the spot.
3. ' Motive behind the occurrence was that in 1992, deceased Sagheer Ahmad had injured accused Muhammad Imran (P.O.) and others regarding which a criminal case was registered against the deceased and others and due to this grudge, accused Muhammad Imram and others in furtherance of their common object had committed the murder of Sagheer Ahmad deceased.
4. Occurrence was witnessed by Naseer Ahmad, Zafarullah and Nasrullah besides the complainant and injured P.Ws.
4. After receiving information about the occurrence, Noor Muhammad S.-I. P.W.12, who was A.S-I. At that time, reached at the spot, recorded the statement of complainant, inspected the dead body of Sagheer Ahmad deceased, prepared 'injury statement Exh.P.I. And inquest report Exh.P.J., then, inspected the spot, collected blood-stained earth vide memo. Exh.P.M. On 5-8-1999 prepared injury statement at 10-15 a. m. Mst. Nadia Exh. P.R. Thereafter, the investigation was transferred to Dost Muhammad S.-I. P.W.11, who on 24-10-1999 arrested Hamad Arshad accused and recovered rifle .7 mm Exh.P.3 and live bullets P.4/1-6 from his possession, which was secured through memo. Exh.P.B.
5. On the same day, he arrested Khurram Shahzad accused and recovered gun .12 bore P.5 and live cartridges P.6/1-5 from his possession, which was taken into possession vide recovery memo.
6. Exh.P.C. On the same day, he also arrested accused Muhammad Ashraf and Muhammad Arshad on their appearance before him. After completion of remaining formal investigation, the accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 12 witnesses in all, Mst. Balqis Bibi injured P.W. Was given up as having been won over, thereafter, learned D.D.A. Tendered in evidence report of Chemical Examiner Exh.P.S. And that of Serologist Exh.P.T. And closed the prosecution case, then the statement of accused/appellant was recorded under section 342, Cr.P.C. In which he pleaded innocence. After conclusion of trial, the accused/appellant was convicted and sentenced as stated above by the learned trial Court and by the same judgment Muhammad Arshad, Muhammad Ashraf and Hamad Arshad co-accused of the present appellant were acquitted of the charge.
6. After having read the entire prosecution evidence, statements of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record, learned counsel for the appellant submits that the F.I.R. In this case was recorded after due deliberation and consultation inasmuch as whole family members of appellant had been roped in so that nobody is left behind to pursue the case. Further submits that there is clear conflict between ocular account and the medical evidence. Elaborating his arguments the learned counsel submits that according to the case of the prosecution Khurram Shahzad appellant fired a shot which hit on the abdomen of Sagheer Ahmad, deceased but there is no injury on his abdomen.
7. ' It is maintained that according to case of the prosecution, Muhammad Imran, P.O and Khurram Shehzad present appellant fired at the deceased but no crime empty was recovered from the spot.
8. According to learned counsel, non-collection of any crime empty from the spot makes the prosecution story doubtful.
9. ' So far as, motive is concerned; it Was stated .That in 1992 the deceased had injured Muhammad Imran (P.O.) and others for which a case was registered against Sagheer Ahmad etc. According to complainant because of this grudge, Muhammad Imran, P.O. And others murdered Sagheer Ahmad. Learned counsel submits that firstly, the motive is too fetched far and during all this long period no untoward incident had taken place.
10. ' It is argued that the prosecution witnesses are interested witnesses and their testimony is not corroborated by any other independent evidence. According to the learned counsel the testimony of an interested witness needs strong corroboration, which fact is completely missing in the instant case. To sum up his arguments the learned counsel submits that it was an unwitnessed occurrence; Khurram Shehzad appellant did not take part in the incident. The learned counsel has also pointed out some discrepancies in the statements -f the eyewitnesses.
11. ' In nutshell it is submitted by the learned counsel for the appellant that the prosecution had miserably failed to prove its case against the appellant and he is entitled to acquittal.
12. ' On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant opposes the submissions made by learned counsel for the appellant and submits that the ocular account is fully corroborated by medical evidence. According to learned counsel the discrepancies if any are trivial in nature and could not be made a ground to discard the ocular account, which has come from an unimpeachable source.
13. ' We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. According to the prosecution, Saleem Akhtar complainant went to the house of his sister on 31-7-1999 for some domestic affairs, when his nephew Zafar Ullah went out on a motorcycle to buy some household items. It was stated that when Zafar Ullah reached near the house of Muhammad Arshad accused, the said accused and Muhammad Imran stopped Zafar Ullah and started beating him up. It was alleged that Muhammad Ashraf armed with .12 bore pump action, Hamad Arshad armed with rifle .7 mm, Khurram Shahzad armed with gun .12 bore, on hearing'', Lalkara of Muhammad Arshad also came there and within the view of the complainant Muhammad Ashraf gave his gun .12 bore pump action to Muhammad Imran and all of them raised Lalkara to open fire. Hearing this Saleem Akhtar, the complainant along with P.Ws. Nastullah Khan, Nazir Ahmad and Sagheer Ahmad rushed towards the spot. Zafar Ullah after rescuing him ran towards the West. Muhammad Ashraf and Muhammad Arshad accused raised a Lalkara that relatives of Zafar Ullah deceased are coming and simultaneously started firing. According to F.I.R.
14. Muhammad Imran accused (P.O.) gave consecutive fire shots. Which hit the chest and neck of Sagheer Ahmad deceased. Khurram Shehzad accused also fired, which landed to the hands, arms and abdomen of the deceased, who fell down. The P.Ws. Laid down to save themselves. Continuous firing of the accused also injured one Bilqis Bibi and Nazia a small girl. The accused decamped while firing and raising Lalkaras. The complainant and P.Ws. Attended Sagheer Ahmad, who succumbed to the injuries.
15. ' Motive behind the occurrence is that in 1992 Sagheer Ahmad deceased injured Muhammad Imran P.O. And other regarding, which a criminal case was also registered and due to this grudge Muhammad Imran and others had committed Qatl-e-Amd of Sagheer Ahmad deceased.
16. ' The deceased in this case is Sagheer Ahmad, who is maternal nephew of Saleem Akhtar complainant. The ocular account in this case was furnished by Saleem Akhtar P.W.9 and Nasrullah Khan P.W.10. Both these P.Ws. Deposed before the learned trial Court that the shot fired by Khurram Shehzad hit the hands, arms and abdomen of Sagheer Ahmad deceased. The role attributed to Muhammad Imran (since P.O.) was that he also fired with his .12 bore gun, which landed on the chest and neck of victim. The appellant was also allegedly armed with a .12 bore gun. Dr. Saeed- uzZaman P. W.8 conducted post-mortem examination on the dead body of the deceased. Here we may with advantage reproduce the injuries on the person of the deceased.
(1) A grazing wound of 1 c.m. x 1 c.m. On left side of base of neck acting as wound of entry and exit.
(2) A lacerated wound of 1 c.m. x 1 c.m. Going into deep tissues with inverted edges on front of chest in the centre (wound of entry).
(3) A lacerated wound of 1 c.m. x 1 c.m. With inverted edges on front of left arm (wound of entry).
(4) A lacerated wound of 1-1/2 c.m. x 1-1/2 c.m. With everted edges came out as No,4 (wound of exit).
(5) A lacerated wound of 1 c.m. x 1 c.m. With inverted edges on front of left forearm wound of entry.
(6) A lacerated wound 1-1/2 c.m. x 1-1/2 c.m. Going into deep tissues on front of left forearm about 3 c.m. Above left wrist joint, a probe through injury No,5 came out as injury No,6 (wound of exit).
(7) A grazing wound of 1 c.m. x 1 c.m. Acting as wound of entry and wound of exit in dorsum of left index finger.
(8) A lacerated wound with inverted edges 1 c.m. x 1 c.m. Going into deep tissue on proximal part of left middle finger on web between index and middle finger (wound of entry).
(9) A lacerated wound of 1-1/2 c.m. x 1-12/ c.m. With everted edges on outer side of left middle finger a probe through No,8 came out as No,9 (wound of exit).
(10) A lacerated wound of 1 c.m. x 1 c.m. Going into deep tissue on proximal part of inner side of left ring finger (wound of entry).
(11) A lacerated wound with everted edges 1-1/2 c.m. x 1-1/2 c.m. Deep tissue lying in it a probe through No,10 came out as No,11 (wound of exit).
17. (12)A lacerated wound with inverted edges 1 c.m. x 1 c.m. Going into deep tissue on web between ring and little finger (wound of entry).
18. (13)A lacerated wound with everted edges 1-1/2 c.m. x 1-1/2 c.m. Lying on outer side of proximal part of left little finger a probe through No,12 came out as No,12 (wound of exit).
19. (14)A grazing wound acting as wound of entry and exit on distal phalynx of left little finger."
20. ' A bare perusal of the above reproduced injuries and a view of pictorial diagram at page 127 of the paper book shows that all the injuries on the person of the deceased are towards the left side. It means that the injuries were the result of fire shots made by one accused. According to the case of prosecution, the first shot was fired by Muhammad Imran P.O. Which landed on the chest and neck of the deceased. How it was possible that after receiving a fire shot on the chest and neck the deceased stood hi the same position and thereafter the second shot fired by Khurram Shahzad, the present appellant, also landed on the same parts and side of the body of the deceased. We may also here reproduce few lines from the cross-examination of Dr. Saeed-uz-Zaman P.W.8, who conducted post-mortem examination on the dead body of the deceased.
21. ' "All the injuries on the dead body could be the result of one fire if fired from some distance as all the injuries were on the left side of the dead body".
22. ' There is still another contradiction between the ocular account and medical evidence. According to eye-witnesses the shot fired by present appellant Khuram Shehzad landed on the abdomen of the deceased. There was no injury whatsoever on the abdomen of the deceased.
23. ' All these facts, discrepancies and contradictions detailed above are sufficient to conclude that the ocular account B furnished by the eye-witnesses does not find support from the medical evidence so far as Khuram Shehzad appellant is concerned.
24. ' Now we may advert to motive part of the case as set up by the prosecution. The motive alleged was that in 1992 the deceased had injured Muhammad Imran P.O. And others for which a criminal case was registered against Sagheer Ahmad etc. According to complainant because of this grudge, Muhammad Imran P.O. And others murdered Sagheer Ahmad. A perusal of F.I.R. Exh.P.D. At page 116 of the paper book shows that criminal case was registered against Sagheer etc. On the statement of Muhammad Ashraf but nowhere in the F.I.R. Khuram Shehzad was shown as an accused. Here we may also reproduce two lines of cross-examination of Nasrullah Khan P.W.10.
25. ' "In the incident of 1992 I and Sagheer Ahmad were injured by Imran P.O."
26. ' We are thus of the considered view that no motive laid with the present appellant to commit the murder of the deceased. Due to non-production of Zafar Ullah P.W. The best evidence has been withheld and thus immediate cause of murder has also not been proved by the prosecution.
27. ' Next is the recovery. The appellant while in custody on 24-10-1999 got recovered a .12 bore double barrel gun, which was taken into possession vide memo. Exh.P.C. But the said fire-arm having not been sent to Fire-arm Expert and no crime empty having been taken into possession from the spot, the mere recovery of the fire-arm on the pointation of the appellant does not lend any support to the case of the prosecution.
28. ' After having adjudged the entire prosecution case and tendering to the submissions made by learned .Counsel from both the sides, we are of the considered view that participation of the appellant in the occurrence appears to be doubtful. So while extending the benefit of doubt, we accept the appeal, set aside the conviction E and sentence recorded against the appellant vide impugned judgment of the learned trial Court and acquit him of the charge. The death sentence of Khuram Shehzad appellant is not confirmed and the murder reference is replied in negative.
29. ' Khuram Shahzad appellant is in jail. He shall be released forthwith if not required to be detained in any other case. However, anything said in this judgment would not prejudice the case of either side during the subsequent trial of Muhammad Imran (P.O.) after his arrest.
30. Death sentence is not confirmed.