' MUHAMMAD FARRUKH MAHMUD, J.---This judgment will dispose of Criminal Appeal No,183 of 2002 filed by Muhammad Amjad and Muhammad Amin-appellants who, along with Murad Ali and Ahmad Khan, faced trial in case F.I.R. No,526, registered at Police Station Sarai Alamgir, District Gujrat, on 6-10-2000, for offences under sections 302/ 109/34, P.P.C., before learned Additional Sessions Judge, Gujrat Camp at Kharian, who after conclusion of trial, vide his judgment dated 16- 1-2002, while acquitting Murad Ali and Ahmad Khan, convicted Muhammad Amjad under sections 302(b)/ 34 P.P.C. And sentenced him to Death with compensation of Rs,50,000 or in default one year's S.-I. And convicted Muhammad Amin under sections 302(b)134, P.P.C. And sentenced him to Imprisonment For Life with compensation of Rs,50,000 or in default one year's S.-I.
2. Murder Reference No,312 of 2002 for confirmation or otherwise of death sentence of Muhammad Amjad appellant shall also be disposed of through this single judgment.
3. Brief facts of the case as mentioned in F.I.R. Exh.P.E. Registered on the statement of Nazir Ahmad/P.W.7 are that on 5-10-2000 at about 9-30 p.m. While he along with Asad Nazir and Naseer Ahmad his sons, and Nadim Ahmad his nephew was going to cattle-shed, Muhammad Amjad, Muhammad Amin and an unknown person, armed with rifles, merged from the millet crop.
Muhammad Amjad raised Lalkara that Asad Nazir should not be spared today. The moment Asad Nazir turned towards the complainant party, Muhammad Amjad fired, which hit Asad Nazir on his right flank. Muhammad Amin also fired which landed on backside of neck of Asad Nazir, who fell down and died at the spot. Thereafter the accused fled away from the spot.
4. The motive behind the .Occurrence was that the relatives of Muhammad Amjad and Muhammad Amin resided in the village of the complainant and the accused used to pass from the street of complainant. They were asked not to pass Through their street. One day prior to the occurrence a quarrel took place on that issue between the accused and the deceased. For that grudge, the accused caused murder of Asad Nazir at the instance of Murad Ali and Ahmad Khan.
5. After registration of formal F.I.R. The investigation of the case was taken over by Muhammad Younas, S.-I./P.W.14: He proceeded to the place of occurrence, took over the dead body, prepared injury statement Exh.P.H. And inquest report Exh.P.J. He secured the blood-stained earth from the spot vide memo. Exh.P.A. He also took into possession four empties of .44 bore rifle P-1-/1-4 vide memo. Exh.P.B. On 10-10-2000 Ghulam Mustafa Gilani , Inspector/P.W. 13 arrested Muhammad Amin and on 16-10-2000 he also arrested Muhammad Amjad. While in custody, on 25-10-2000 Muhammad Amjad led to the recovery of .44 bore rifle P-4, which was taken into possession vide memo. Exh.P.D. After completion of Investigation, the accused were sent up to faced trial.
6. At the trial, the prosecution in order to prove its case produced 15 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.P.K., Serologist Exh.P.L.
And that of Forensic Science Laboratory Exh.P.M. Closed its case. The accused in their statements recorded under section 342 Cr.P.C. Pleaded their innocence and false implication. However, Muhammad Amjad in reply to question No,8 replied as under:- ' "The P.Ws. Are inter se related, who were not present at the scene of crime and at a belated stage they coined themselves as false witnesses in this case. The F.I.R. Was registered after due deliberation, consultation and preliminary investigation. The deceased was having his brothers, sisters and some of his relatives in UK and he used to usurp money on the pretext of immigrating people abroad as he could not immigrate them so a lot of people had started demanding money back. Certain applications were moved to the police in this connection and Punchait of the elders were also held. Murad Ali and Ahmad Khan being the elders of the village used to give a helping hand in the Punchait this was being taken as a disgrace by the complainant party. The complainant being very influential person and belonging to haves class. Some unknown persons in the odd hours of the night due to non-return of the amount had committed the Qatl-iAmd of the deceased. The complainant party found it a golden chance to take the revenge of their insult because of Punchait. In connivance with the police, they concocted a false story and involved me and my relative co-accused falsely in this case. I am innocent."
' They did not appear as witness under section 340(2) Cr.P.C. After conclusion of trial, the learned trial Court while acquitting Murad Ali and Ahmad Khan, convicted and sentenced the appellants as stated above.
7. The learned counsel for the appellant after having read the entire prosecution evidence, statements of the appellants recorded under section 342 Cr.P.C. And other relevant material available on record in support of this appeal has contended that it was a night occurrence; that there was no source of light to identify the assailant; that both the witnesses were chance witnesses, who failed to plausibly prove their presence at the time of occurrence; that the medical evidence shows that the occurrence took place much later than the time shows in the F.I.R. That the motive set by the prosecution in the F.I.R. Was weak; that after realizing that the motive was very weak, the witnesses have made dishonest improvements during trial; that the recovery evidence was not worthy of any credence; that during night it was, not possible for the witnesses to see the occurrence from a distance of 25/30 feet; and that the prosecution case was replete with doubts.
8. On the contrary, the learned Additional Prosecutor General submits that the eyewitnesses were the natural witnesses as the occurrence took place near their house; that the witnesses had no previous enmity or ill will against the appellants so as to rope them in a false case.; that the appellants were previously well known to the eye-witnesses so there identification even in the dark of night was possible; and that the direct evidence is supported by the medical evidence. He supports the judgment passed by the learned trial, Court.
9. The learned counsel appearing on behalf of the complainant adopts the line of arguments advanced by the learned Additional Prosecutor-General.
10. We have heard the learned counsel for the parties at length and scanned the entire evidence.
11. The occurrence took place at 9-30 p.m. On 5-10-2000 when darkness had prevailed. The only source of light was the torches, as it is mentioned in the F.I.R. That the assailants were identified by the complainant and the P.Ws. In the light of torches belonging to Naseer Ahmad and Nadeem Ahmad P.Ws. There is no evidence that the torches were taken into possession by the Investigating Officer. Both the witnesses simply forgot about the torches when their statements were recorded before the learned trial Court. Nadeem Ahmad, who according to F.I.R. Was one of the witnesses who were holding torches, stated that it was a moonlit night. However, he conceded that electric facility was not available in the village. If he had been holding a torch at the time of occurrence he could never miss to State about it before the learned trial Court. It is in evidence that the complainant was a well to do person and had a comfortable house in the Abadi of village. The Haveli, where the cattle were kept, was at a distance of 60/70 Karmas i.e, 300/350 feet from his house, while the place of occurrence was at a distance of 40/45 Karams from his house. He further stated that his Haveli was at a distance of 60/70 Karmas from the place of occurrence. The distance between Haveli and the place of occurrence and the distance between Haveli and the, house of the complainant is the same, which negates the story that the complainant was going towards Haveli in order to sleep there. On the same point Nadeem Ahmad P.W.12 stated that the distance between Haveli and house of the complainant was 100/150 feet i.e, 20/30 Karmas. It, too, supports the above noted view. It also does not appeal to reason as to why the complainant, his son and the P.Ws. Were going to sleep in the Haveli in presence of a comfortable house. Any of the employees of the complainant could sleep and look after the Haveli. On one hand the complainant thought it necessary to sleep in the Haveli where the cattle were kept, on the other hand according to him no regular person was employed to look after Haveli in the daytime. He further stated that he did not remember that on the day of occurrence who had gone to Haveli to look after during daytime. He added that 3/4 days prior to the occurrence it might be Naseer, who was not produced before the trial Court, or ^ Nadeem Ahmad P.W.12 or himself who might had gone to look after the Haveli in the daytime. According to Nadeem Ahmad/P.W. 12, he was at a distance of 20 feet from the deceased, who was going ahead. There is no explanation as to why the deceased was going ahead of the other P.Ws. Especially his father. If all of them had left the house together to sleep in the Haveli then normally they would keep on going together especially when it was a dark night and there was no occasion for Asad Nazir deceased to go ahead of other P.Ws. Muhammad Younas S.-I./P.W.14, who visited the spot soon after registration of the case stated that the deceased was not wearing Qameez or Chappal. It is very significant fact, as in October night it would be more natural to wear shirt and in any case there was no occasion for a well to do person to leave his house without wearing shoes or Chappal. This fact casts doubt on the veracity of the prosecution story that the deceased and the P.Ws. Were together at the time of occurrence.
Nadeem Ahmad/P.W. 12 admitted that he had a separate house. However, according to him, he was accompanying the complainant, who used to sleep in Haveli, being his driver. To justify his statement he stated registration number of the tractor but he was unable to tell whether the tractor was in the name of the complainant or not.
' He was also unable to tell as to from which District his driving licence was issued and finally that he had not appeared before any authority for issuance of any driving licence. Both the P.Ws. Have made dishonest improvements before the learned trial Court, P.W.12 stated that after firing Amjad appellant asked Amin to make fire and he obliged. He was duly confronted by his earlier statement.
Both of them stated that a day earlier to the occurrence both the accused had way laid Asad Nazir and he was separated by the complainant. The witnesses were duly confronted by their earlier statements. In case the appellant had waylaid one day prior to the occurrence then the complainant, being father, must have reported the matter to the police and would not have taken it lightly. Both the witnesses also improved their statements by stating that the accused used to come to their village while having firearms. They were duly confronted with their earlier statements.
P.W.12 conceded that no complaint was ever lodged to the police about the teasing of ladies by the accused. He further admitted that neither he nor any body else ever complained about the conduct of the accused to their family members and no Punchait had taken place on that regard.
It may be noted here that in examination-in-chief this witness had stated that the accused used to tease the ladies of the vicinity. Undeniable there was millet crop on the north of the place of occurrence. According to P.W.12, the accused had ambushed in the crop, in that case the accused could easily fire at the deceased, while remaining in the millet crop and there was no need to expose their identity especially when according to prosecution case the deceased was ahead of the other P.Ws. And was alone. It is also noteworthy that the assailants had chosen dark night for commission of offence in order to hide their identity so normally they would not come out of the millet crop to expose themselves.
12. In addition to above, the matter was reported to the police at 12-30 a.m.After delay of three hours, while the police station situated at 12 miles from the place of occurrence. The complainant being a man of means could easily reach the police station within an hour, as admittedly at least he owned a tractor. According to P.W.12, the complainant left the spot for reporting the matter to the police station after 15 minutes of the occurrence but he did not know what transport was used by him and who accompanied him. The delay remained unexplained.
13. As far as the medical evidence is concerned, it supports the prosecution case to the extent that the deceased lost his life due to fire-arm injury but it casts doubt at the time of occurrence.
According to postmortem report, the stomach of the deceased was empty and so was the large intestine. It means that the occurrence took place late in the night after considerable time after having last meal. The complainant, who is not shy of telling lie, in order to meet with this point, stated before the learned trial Court that on the fateful night all of them had taken their meal. They offered meal to Asad Nazir but he declined it.
14. No recovery was effected at the instance of Muhammad Amin while, the evidence of recovery to the extent of Muhammad Amjad was not worthy of credence, as the empties were kept at the police station till arrest of Muhammad Amjad appellant. No independent witness was produced in support of the recoveries. Allah Ditta/P.W:6, who was produced in order to prove the recovery, conceded that Said Ali P.W. Was his brother-in-law (Behnoi) and that he had gone to inquire about the progress of the case, when the Investigating Officer told him that he needed two witnesses for the recovery, so he and Javed, who was nephew of the complainant, readily agreed. The caliber of the witness can be judged from the fact that after stating distance between his house and the house of Javed about 25/30s feet he could not tell how many feet were in a yard or in a Karam.
15. The upshot of the whole discussion is that in our considered opinion the occurrence took place in the dark night and it was doubtful that the P.Ws. Were present at that time. Hence while extending benefit of doubt in favour of the appellants, we allow this appeal, set aside the impugned judgment and acquit both the appellants of all the charges. They would be released from Jail Forthwith, if not required in any other case.
16. Murder Reference is answered in the negative and the sentence of death awarded to Muhammad Amjad appellant is not confirmed.