' MUHAMMAD FARRUKH MAHMUD, J.-This judgment will dispose of Criminal Appeal No, 189/J of 2002 filed by Mansab Khan, who faced trial in case F.I.R. No, 192, registered at Police Station Mitha Tiwana, District Khushab, on 21-9-2001 for offence under section 302, P.P.C., before learned Additional Sessions Judge, Khushab, who after conclusion of trial, vide his judgment, dated 31-5-2002 convicted the appellant under section 302, P.P.C. And sentenced him to death with compensation of Rs,50,000 or in default six months' S.I.
2. Murder Reference No,394 of 2002 for confirmation or otherwise of death sentence of appellant and Criminal Appeal No, 609 of 2002 filed by Zafar Iqbal/complainant seeking enhancement of compensation shall also be decided through this single judgment.
3. Succinctly, the facts of the case as mentioned in F.I.R. Exh.PA are that on the night of occurrence at 8-30 p.m. Zafar Iqbal/complainant along with Malik Sher Muhammad was going towards Civil Hospital Jabbi having a searchlight with him. When they reached Darbar Jabbi Sharif Mor near the hospital, Muhammad Iqbal, while driving motorcycle and Muhammad Hayat brother of the complainant sitting behind him, came there and stopped near them. Suddenly from the northern side Mansab armed with pistol reached there and after raising Lalkara, within the view of P.Ws., fired at Muhammad Hayat which hit on right side of his chest. The accused fired second shot, which hit on right temple of Muhammad Hayat. After receiving injuries Muhammad Hayat fell down from the motorcycle and died at the spot. Thereafter the accused fled away from the spot.
4. The motive behind the occurrence was that Mansab Khan had suspicion that Muhammad Hayat had an evil eye on his wife.
5. After registration of formal F.I.R., the investigation of the case was taken over by Khurshid Ali, S.I./P.W.7, who conducted thorough investigation, arrested the accused and after effecting recovery of pistol used during the occurrence, sent him to face trial.
6. At the trial, the prosecution in order to prove its case produced 8 witnesses in all. The prosecution after tendering in evidence the reports of Chemical. Examiner Exh.PM and that of Serologist Exh.PN closed its case. The accused in his statement recorded under section 342, Cr.P.C. Pleaded his innocence and false implication. He did not appear as witness under section 340(2), Cr.P.C. Nor produced any witness in defence. After conclusion of trial, the learned trial Court convicted the sentenced the appellant as stated above.
7. The learned counsel for the appellant after having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record in support of this appeal has contended that both the witnesses were related to the deceased; that the ocular account is not supported by the medical evidence, as according to Doctor, the injuries were caused from the front side, it could not be so as according to prosecution case the deceased was sitting on the back seat of the motorcycle which was being driven by Muhammad Iqbal/P.W.2; that though according to the prosecution case the deceased received both the injuries while he was sitting on the motorcycle yet neither the seat of the motorcycle nor clothes of Muhammad Iqbal were stained with blood; that there was no source of light on the night of occurrence and evidence of searchlight was latter on fabricated, which is evident from the fact that the available searchlight was not taken into possession till 30th, similarly Muhammad Iqbal made his statement by stating that he saw the accused in the light of motorcycle, which was against his earlier statement; that both the witnesses were the chance witnesses who failed to explain 'their presence at the time of occurrence; that no independent witness has been produced to prove the motive; and that the evidence of recovery was inconsequential as no empty was recovered from the spot and the weapon was also not sent to the Fire-arm Expert.
8. On the other hand, the learned counsel appearing on behalf of the complainant submits that both the witnesses though related to the deceased were not inimical towards appellant so as to involve him in a false case; that it is a case of single accused, who was known to both the P.Ws.
Being resident of the same village; that the F.I.R. Was promptly lodged, which ruled out the possibility of fabrication; that neither going of P.Ws. Towards hospital nor meeting of deceased and P.Ws. At the time of occurrence was unnatural, as it could happen in the village; that the place of occurrence was not a deserted place; it was near the village Abadi, hence, the presence of the P.Ws. And the deceased at the place of occurrence stood explained; that not taking of searchlight in possession by the Investigating Officer on the date of occurrence reflects the negligence on the part of Investigating Officer and the prosecution would not suffer for the negligence of the Investigating Officer; and that as far as the occurrence is concerned, the eye-witnesses account is consistent, which is supported by the medical evidence and corroborated by the recovery of pistol.
9. The learned Additional Prosecutor General adopts the line of arguments advanced by the learned counsel for the complainant. He supports the judgment oassed by the learned trial Court.
10. We have heard the learned counsel .Or the parties at length and gone through the entire evidence minutely.
11. Undeniably, the occurrence took place when darkness had fallen and there was no source of light around the place of occurrence. According to F.I.R., the complainant, who is brother of the deceased, per chance, was going along with Malik Sher to Civil Hospital, Jabbi, with a searchlight in his hand. At about 8-30 p.m. He was joined by Muhammad Iqbal/P.W.2 and Muhammad Hayat- deceased, who were on a motorcycle. Iqbal and the deceased stopped their motorcycle near the complainant and his companion Sher Muhammad, when Mansab appellant emerged from the northern side and after raising Lalkara caused two fires with his pistol, which hit on the right side of the chest and temple near the right ear of Muhammad Hay at deceased, who was sitting on the rear seat. According to the complainant, the occurrence was seen in the searchlight. Muhammad Iqbal, who was allegedly driving the motorcycle, was also related to the deceased, being Khalazad.
The place of occurrence, which was bed entrance of Hill Torrent, was situated behind Darbar Jabbi Sharif, a little short of Civil Hospital. The complainant in his statement before the learned trial Court firstly stated that the place of occurrence was outside the village Abadi near Darbar Sharif. Then volunteered that it was adjacent to the village Abadi and that Darbar was within the village Abadi and place of occurrence was adjacent to Darbar. He. Added that on the western side of Darbar, there was no Abadi except Civil Hospital. P.W.2 Muhammad Iqbal on the same point stated that the place of occurrence was on rear Side of Darbar arid the place of occurrence was outside the village Abadi, He added that the banks of Hill Torrent were 2/3 feet from its bed. The complainant did not say a word in the F.I.R. As to why he and Malik Sher Muhammad were going towards Civil Hospital, Jabbi. He admitted before the learned trial Court that he did not mention the Purpoe for which he and Sher Muhammad were going towards Civil Hospital. Muhammad Iqbal also claimed that he and Muhammad Hay at deceased were going towards Civil Hospital, Jabbi, when they met complainant and Sher Muhammad. Muhammad Iqbal also did not mention as to why he and the deceased were going towards Civil Hospital, Jabbi. No plausible explanation is available on the record as to why the P.Ws. Were going towards Civil Hospital, Jabbi. As noted above, being conscious of the fact that darkness had fallen, the complainant introduced emergency light in his hand, which he claimed to be. Carrying while he was going towards Civil Hospital^ Jabbi.
According to him, he had purchased the emergency light from Karachi about six months prior to the occurrence and was carrying the searchlight with him when he was going to report the matter to the police and had shown the searchlight to the police officer. He added that he had shown the searchlight to the Investigating Officer when he first visited the spot but the Investigating Officer did not, take it in possession. According to memo: Exh.P.D., the searchlight was taken into possession on 30-9-2001 after nine days of the occurrence and after the arrest of the appellant and the alleged recovery of the pistol at his instance. Perusal of Exh.P.D. Reveals that the date was manipulated. It remains unexplained as to why the Investigating Officer did not take the searchlight in possession on the very first day if it was available. If the Investigating Officer felt that the recovery of searchlight was not necessary on the first day, then he would feel the same afterwards, as well. It is pertinent to mention here that according to the note of learned trial Court, available at page 14 of the paper book, the complainant produced the searchlight before the Court himself and stated that he had taken it on Superdari. However, there is no evidence on record that the complainant had obtained the searchlight on Superdari after due process of law. Similarly, the motorcycle, which was being driven by Muhammad Iqbal, was also recovered on 30-9-2001 despite the fact that according to Iqbal, motorcycle was available on the spot when the Investigating Officer visited it. P.W.7 Khurshid Ali/S.-I. Admitted it to be correct that the said motorcycle was not registered in the name of Muhammad Iqbal-P.W. Or the deceased. Though it was claimed that the deceased received two fire-arm injuries while he was sitting on the rear seat of the motorcycle, yet there was no stain of blood on the seat of the motorcycle. The above noted circumstances cast doubt On the availability of the searchlight and the motorcycle at the time when the Investigating Officer first visited the spot. It may be added here that in his statement before the learned trial Court, Muhammad Iqbal/P.W,2 improved his statement by stating that the occurrence was seen in the light of motorcycle, as well. He was duly confronted with his earlier statement where the light of motorcycle was not mentioned.
12. According to the complainant, Muhammad Iqbal-P.W. And Muhammad Hayat deceased were still on the motorcycle when the accused reached there, who had emerged from the northern side.
The accused fired at Muhammad Hayat who was sitting on the rear seat of motorcycle from his right side. At the time of firing, Muhammad Iqbal was present on the driving seat. He added that the deceased was still in the same position when Mansab accused fired second shot. According to the complainant, the first fire hit on the right side of chest of the deceased, while the second fire hit on the right temple of the deceased. Muhammad Iqbal P.W. On the same point stated that he was on the driving seat when the first fire was shot and remained on the driving seat when the second fire was shot. By narrating the seat of injuries, he claimed that the first fire hit on the right side of the chest of the deceased, while the second fire hit on the temple of the deceased. According to Dr. Ajmal Nadeem/P.W.6, first injury was on right cheek in front of right ear, while the second injury was on the right chest. During cross-examination, he explained that the injuries were caused with the weapon from the front side of the deceased. Diagrams of the injuries available at pages 71 and 72 of the paper book also reveals that injury No,2 was on the front of the right side of chest, while injury No,l was on front of the cheek. The seat of injuries belies the story of the prosecution that deceased received injuries while he was sitting behind Muhammad Iqbal, as, in that case, the injuries could not have been caused on the front side of the deceased. The medical evidence also belies the prosecution story that one of the injuries was on the right temple, as, according to medical evidence, injury No,l was on the right cheek 3 c.m. In front of right ear and the wound was bleeding.
Perhaps, because of the bleeding witnesses thought that the injury was on the right temple. Further more, according to scaled site plan Exh.PF/1, the distance between the deceased and the assailant was half a Karam, i.e, 2-1/2/3 feet. In that case, there would have been blackening and charring around the wound, which was not observed by the doctor. There is no physical evidence of the presence of both the P.Ws. On the spot, as, despite the fact that the deceased and Muhammad Iqbal were sitting on the same motorcycle, neither the clothes of Muhammad Iqbal nor that of the complainant were stained with blood.
13. A .30 bore pistol along with two live bullets was shown to have been recovered at the instance of the appellant from his residential house on 27-9-2001. This piece of evidence cannot be used against the appellant, as no empty was recovered from the spot. In addition to that, the pistol was never sent to any Forensic Expert.
14. The conduct of the Investigating Officer in this case reveals that the investigation was done in a partial manner, as the emergency light and the motorcycle were shown to have been recovered on 30-9-2001 after nine days of the occurrence, and more importantly, in Column No,3 of the inquest report Exh.PJ, the time of death was visibly entered later in a different ink.
15. Now coming to motive; no independent witness was produced in support of motive. 'The motive is always considered to be a double edged sword, as it could be the reason behind the occurrence and it could be reason for implicating the accused. In an unwitnessed occurrence likelihood of implicating adversaries cannot be ruled out.
16. The upshot of the whole discussion is that in our opinion, presence of the P.Ws. At the time of occurrence is not free from doubt. Hence, we allow this appeal; I set aside the judgment passed by the learned trial Court and acquit the appellant of all the charges. The appellant would be released forthwith, if not required in any other case. The death sentence is not confirmed. The murder reference is answered in the negative.
17. With the acquittal of the respondent-convict, no question of compensation arises. The Criminal Revision No,609 of 2002 seeking enhancement of compensation is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.