' MUHAMMAD FARRUKH MAHMUD, J.---This judgment will dispose of Criminal Appeal No,2009 of 2000 filed by Muhammad Boota, who was convicted and sentenced by the learned Additional Sessions Judge, Faisalabad, in case F.I.R. No,368, registered at Police Station Jaranwala, on 3-4-1998, for offence under section 302, P.P.C., vide his judgment dated 8-12-2000 as under:--- Death with compensation of Rs,1,00,000 or in default six months' S.-I. Under section 302(b), P.P.C .
' Murder Reference No, 134 of 2001 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.
2. Brief facts of the case as narrated in F.I.R. Exh,P.C./l are that the complainant was resident of Mohallah Raza Abad, Jaranwala. His son Allah Ditta alias Abid Hussain was living with Mst. Rani daughter of Noor Muhammad Zargar resident of Street No, 2, Islampura, Jaranwala, for the last 1- 1/2 years. On 1-4-1998 Allah Ditta had come back to his house on account of being annoyed.
Muhammad Boota son of Muhammad Saleem Zargar resident of Street No,2 Mohallah Islampura, Jaranwala, came to the house of complainant at 8-00 p.m. And took his son Allah Ditta along with him. The complainant suspected, so he along with Manzoor son of Ghulam and Sarwar son of Bashir (both Ansari by caste) residents of Mohallah Raza Abad, Jaranwala, followed them. When the complainant and P.Ws. Reached in Street No,2 Mohallah Islampura, at the door of Noor Muhammad Zargar's house, they saw that Muhammad Boota was grappling with Allah Ditta son of the complainant. The complainant party raised Lalkara, thereupon Muhammad Boota pulled out a .30 bore pistol from the folder of his Shalwar and fired, which hit Allah Ditta on his forehead. They tried to apprehend the accused, who ran away after brandishing his pistol. Allah Ditta was taken to the Civil Hospital, Jaranwala, in injured condition but due to his serious condition the doctor referred him to Allied Hospital, Faisalabad. Allah Ditta succumbed to the injuries immediately after reaching the Hospital.
' The motive behind the occurrence was that Muhammad Boota had a suspicion that Allah Ditta had illicit relations with his cousin Mst. Humera daughter of Naeem.
3. After registration of formal F.I.R., the investigation of the case was taken over by Sher Muhammad, S.-I./P.W.7. He proceeded to the Hospital, took over the dead body, prepared injury statement Exh.P.G. And inquest report Exh.P.F. Thereafter he proceeded to the place of occurrence and took into possession bloodstained earth and empty of .30 bore pistol from the spot vide memo. Exh.P.D. On 26-4-1998 he arrested Muhammad Boota accused. While in custody, on 28-4- 1998 the accused led to the recovery of 30 bore pistol, which was taken into possession vide memo.
Exh.P.E. After completion of investigation, the accused was sent up to face trial.
4. At the trial, the prosecution in order to prove its case produced 12 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.P.M. And that of Serologist Exh.P.L. Closed its case. The accused in his statement recorded under section 342 Cr.P.C.
Pleaded his innocence. He did not appear as witness under section 340(2) Cr.P.C. After conclusion of trial the appellant was convicted and sentenced as stated above.
5. 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, the learned counsel for the appellant in support of this appeal submits that both the witnesses were related to the deceased and were chance witnesses, who could not plausibly explain their presence at the time of occurrence; that their statements were not corroborated by any independent reliable evidence; that in the existence of motive as set down in the F.I.R. a father would not allow his son to accompany the .Appellant; and that the appellant has been roped in this case merely on suspicion.
6. The learned counsel appearing on behalf of the State submits that both the witnesses had no previous enmity or ill-will against the appellant, so as to involve him in .a false case, and that their statements were consistent and reliable, which were supported by the medical evidence and corroborated by the recovery of .30 bore pistol and motive. They support the judgment passed by the learned trial Court.
7. We have heard the learned counsel for the parties and gone through the record. The ocular account is furnished by Noor Muhammad/P.W.3 father of the deceased and his nephew Sarwar/P.W.4, cousin of the deceased. Both lived in Mohallah Raza Abad, Jaranwala. The house of Noor Muhammad was at distance of four Acres from the spot, while the house of Sarwar was at distance of 7/8 furlongs. Both of them reached the place of occurrence per chance. Since they are also related to the deceased their evidence needs deeper scrutiny.
8. According to F.I.R., the deceased accompanied Muhammad Boota-appellant at about 8-00 p.m.
To Mohallah Islampura, Jaranwala. The complainant and P.Ws. Followed the two on the basis of suspicibn. The fact remains that the complainant, who already knew about the motive would not allow his son to accompany Muhammad Boota and once the deceased was allowed to go along with the appellant then there was no reason to follow them soon after their departure. The Police Station was situated at distance of 1-1/2 Km, while the matter was reported to the police at Civil Hospital, Jaranwala at 11-30 p.m. After about 3-1/2 hours. The distance between Police Station and Hospital could be covered within five minutes, as the case was registered at 11-35 p.m. The explanation of delay offered by the P.Ws. Was that first Allah Ditta, who was seriously injured, was taken to Civil Hospital, Jaranwala. The Medical Officer referred Allah Ditta to Allied Hospital, Faisalabad. However, Allah Ditta lost his life before the P.Ws. Could reach the Allied Hospital, Faisalabad, and his dead body was brought back to Civil Hospital, Jaranwala, where Sher Muhammad. S.-I, was present, who recorded the statement of the complainant. Allah Ditta while he was in injured condition was taken to Civil Hospital, Jaranwala, by one Manzoor Ahmad son of Ghulam Muhammad At 9-30 p.m. On 3-4-1998. Though it has been mentioned in the Medico-Legal Report Exh.P.L. That Manzoor Ahmad was uncle of Allah Ditta but the facts do not support, as Noor Muhammad father of Allah Ditta was son of Muhammad Ibrahim and was Ansari by caste, while the person who took Allah Ditta to the Hospital was Chauhan by caste. He was not produced during trial. Neither in Medico-Legal Report Exh.P.L. Nor in his statement Dr. Anwar Saood Saqib mentioned that injured was referred to Allied Hospital, Faisalabad. Allah Ditta died on the same night and his post-mortem was conducted on the next day at 12-40 p.m. By Dr. Pervez Akhtar Anjum/P.W.Ll. In post-mortem report Exh.P.K. The caste of Allah Ditta has been correctly mentioned as Ansari. Dr. Pervez'Akhtar Anjum P.W.l has also nowhere mentioned that Allah Ditta was referred to Allied Hospital, Faisalabad and brought back to Civil Hospital, Jaranwala rather post-mortem report reveals that body was brought by Abdul Sattar, Constable/P.W.2. In his statement Abdul Sattar- Constable stated that body was handed over to him on 4-4-1998 at 8/9-00 a.m. By the Investigating Officer. In his statement recorded by the learned t trial Court Noor Muhammad complainant stated that Allah Ditta was taken to Allied Hospital, Faisalabad, where he breathed his last and his body was brought back to Civil Hospital, Jaranwala. However, during cross- examination he admitted that the deceased was not attended to by any Medical Officer working at Allied Hospital, Faisalabad. To support his stance no Wagon/Ambulance driver was produced during trial or cited as witness. In the above noted circumstances the delay in reporting the matter at Police Station, which was at, distance of 1-1/2 Km and 37 Karams from the Hospital remained unexplained" and leads to irresistible conclusion that P.Ws. Were not present at the time of occurrence.
9. As far as medical evidence is concerned, it supports the prosecution case to the extent that the deceased received a fire-arm shot, which proved fatal, but does not lead to the killer.
10. It was alleged in the F.I.R. That the appellant suspected illicit relationship between his cousin Mst.
Humera and the deceased but no independent evidence was produced during trial to support the motive and the learned trial Court for cogent reasons disbelieved the evidence qua motive. Even otherwise, as noted above, in the background of motive a father would not allow his son to accompany the appellant.
11. The alleged recovery of .30 bore pistol at the instance of appellant is of no consequence for the reasons that neither the empty from the spot nor pistol was sent to Forensic Science Laboratory.
During recovery provisions of section 103 Cr.P.C. Were not followed. Muhammad Ashiq, Constable/P.W.5 and Muhammad Saleem, A.S.-I./P.W.6 were produced before the learned trial Court in support of recovery. Both of them stated that while in custody on 29-4-1998 the appellant led to the recovery of .30 bore pistol, which was lying on a cot. None of them stated about the bullets, while according to recovery memo, pistol containing five live bullets was recovered.
12. After coming to the conclusion that it was an unwitnessed occurrence, there is no need to go into the defence plea taken by the appellant. The prosecution has failed to prove its case against the appellant beyond doubt. Hence this appeal is allowed. The judgment passed by the learned trial Court is set aside. The appellant is acquitted of all the charges and he would be released from Jail forthwith, if not required in any other case.
13. Murder Reference is answered in the negative. Death sentence is not confirmed. 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.