' MUHAMMAD FARRUKH MAHMUD, J.---The appellant Tariq was tried by Jam Manzoor Ahmad, learned Additional Sessions Judge, Shakargarh, District Narowal, in case F.I.R. No,365 registered at P.S. Shakargarh on 29-8-2001 for offence under section 302, P.P.C. Vide judgment dated 21-6-2002, the learned trial Court convicted the appellant for offence under section 302(b), P.P.C. And sentenced him to death plus payment of Rs,1,00,000, which, in the event of recovery/realization, was to be paid to the legal heirs of the deceased. However, in default in payment of fine, the convict was to undergo S.I. For six months.
2. Aggrieved by his above noted conviction and sentence, the convict/ appellant has filed the instant appeal. Murder Reference No,459 of 2002 seeking confirmation or otherwise of death sentence imposed upon the appellant has also been placed before us. We propose to decide both these matters through this judgment.
3. Succinctly, the facts of the case per complaint Exh.PF, recorded by Muhammad Iqbal, S.-I./P.W.12, at the instance of Talib Hussain, complainant/ P.W.6, which based the registration of formal F.I.R.
Exh.PF/1, are that 8/9 years earlier to the occurrence Mst. Kaneez Fatima, sister of Tariq-appellant, was married with Rafaqat Ali-deceased, the complainant's brother. Due to domestic dispute the deceased divorced Mst. Kaneez Fatima. Tariq used to extend threats on account of divorce to his sister. On 29-1-2007 at 8-00 a.m. The complainant, his deceased brother Rafaqat Ali, Muhammad Rafiq/P.W.7 and Liaqat Ali had gone to Shakargarh in connection with some personal errand. After getting free from the same at about 10-00 a.m. They were going towards Car Stand. Rafaqat Ali was ahead of them a few paces, while the complainant and the P.Ws. Were some paces behind him. When they reached near the college canteen, Tariq-appellant armed with .30 bore pistol came across them and fired a straight shot upon Rafaqat Ali, which hit him on the back of his left flank, as a result whereof he fell on the ground. Tariq while brandishing his pistol decamped from the scene of occurrence. The complainant and his companions took Tariq to Civil Hospital, Shakargarh for treatment. On reaching the hospital, Tariq succumbed to the injury.
4. On 29-8-2001 on receipt of information about the murder of the deceased at 11-00 a.m.
Muhammad Iqbal, S.-I./P.W.12, proceeded to THQ Hospital, Shakargarh. On outer gate of the hospital, the complainant met him and got recorded his statement Exh.PF, which was sent to the police station for registration of F.I.R. Then the Investigating Officer/1.0. Prepared inquest report Exh.PH and injury statement Exh.PH/1 of the deceased and sent the dead body for post-mortem* examination. Then the I.O. Proceeded to the spot; collected blood stained earth and took the same into a parcel vide memo Exh.PG. He prepared rough site plan of the place of occurrence Exh.PK. The appellant was arrested on 25-9-2001 and on 30-9-2001 he led to the recovery of .30 bore pistol P.5 which was taken into possession through memo Exh.PE. After completion of investigation, the appellant was sent up to face trial.
5. In order to substantiate its version at the trial, prosecution produced as many as twelve witnesses. Ocular account was furnished by Talib Hussain/P.W.6 and Muhammad Rafiq/P.W.7. In addition to that, they also stated about the motive. Muhammad Rafiq/P.W.7 also stated about the recoveries effected from the spot. Fazal Ahmad/P.W.5 stated about the recovery of pistol effected at the instance of the appellant. Dr. Javed Iqbal/P.W.3, who conducted autopsy on the dead body of the deceased, while observing one oval lacerated wound 3/4 x 1/2 cm at back outer upper part of left buttock, opined that the injury was ante-mortem caused by fire-arm weapon. According to him, the cause of death was haemorrhage shock (bleeding). The duration between injury and death was within twenty minutes, while between death and post-mortem it was within four hours.
Muhammad Iqbal, S.-L/P.W.12, stated about the drafting of complaint, its dispatch to the police station and the investigation thereafter. The rest of the evidence, being formal in nature, need not be discussed.
6. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false involvement by stating as under:-- "The deceased had illicit relations with a woman/girl at Sialkot. My sister was married to the deceased. I took ill bad relations of the accused and on my instance and demand my sister got her divorce from the deceased for these reasons. The family of the deceased had against me for this reason. They involved me in this case, while some body unknown from Sialkot had murdered him.
P.Ws. Being relatives of the deceased and inter se related have falsely deposed against me at the behest of complainant and his family. No P.W. Was present at the time of occurrence and no. P.W.
Had witnessed this occurrence."
' The appellant neither appeared as his own witness as contemplated by section 340(2), Cr.P.C. Nor did he produce any witness in his defence.
7. Learned counsel for the appellant submits that the witnesses were hostile towards the appellant and related to the deceased; that the witnesses were chance witnesses and could not explain their presence at the time of occurrence; that the statements of both the eye-witnesses are mutually destructive and suffer from material contradictions; that the appellant was roped in this case merely on suspicions; that the evidence of recovery of pistol was of no consequence, as no empty was recovered from the spot and .,no independent person was associated with the recovery proceedings.
8. Conversely, the learned Deputy Prosecutor General for the State submits that it was a broad- daylight occurrence, so identification of the appellant was not in question; that it was a case of single accused; that the eye-witness account is supported by the medical evidence and corroborated by the evidence of recovery; that the prosecution has successfully proved the motive against the appellant.
9. We have heard the learned counsel for the parties at a great length and have also gone through the record.
10. According to of facts, Mst. Kaneez Fatima, sister of the appellant, was married with the deceased 8/9 months prior to the occurrence. The deceased divorced his wife one month earlier to the unfortunate incident. After the divorce, hostility existed between the parties. The occurrence took place in front of the canteen of Degree College, Shakargarh, on road side. The place of occurrence was a very busy place. There were number of shops, National Bank and college around the place of occurrence. The road where the occurrence took place was also the main road with lot of traffic going on. In spite of that, not a single witness of the locality was either cited or produced before the learned trial Court. In support of its case, the prosecution produced Talib Hussain/P.W.6, real brother of the deceased, and Muhammad Rafiq/P.W.7, cousin of the deceased. Liaqat Ali, who also his cousin and mentioned as witness in the F.I.R., was, however, not produced. Both the eyewitnesses were residents of Pagala Morr B which was at a distance of 3-4 Kilometers from the place of occurrence. In F.I.R. It was stated that the deceased and the P. Ws. Had gone to Shakargarh for some personal errand and the instant occurrence took place at about 10-00 a.m, while they were on their way back and at the time of incident the deceased was going ahead of them. During trial, the witnesses were cross-examined on the point of their presence at the relevant time. Talib Hussain stated that he and his companions had gone to Shakargarh for buying wood but the same was not bought. He was unable to tell the name of the owner of Tall (merchant). According to him, he needed the wood to make Balas for the roof. However, he was unable to tell whether the Tall only had furnished wood or not. As against him, P.W.7 Muhammad Rafiq stated that he had gone to Shakargarh to meet Thekedar Maqsood and he went to the shop of Maqsood. But he did not know where the shop of Maqsood was situated because there were thousands of shops. The complainant stated that they had gone to Shakargarh from Pagala by wagon, while P.W.7 stated that they had gone to Shakargarh on a bus. Muhammad Rafiq P.W.7 stated that after recording of the statement, the complainant accompanied the Investigating Officer (I.0.) to the spot, while the complainant stated that.It was Rafiq who took the I.O. At the place of occurrence and he did not accompany the I.O. To the spot. Muhammad Rafiq P.W. Stated that the deceased received fire on his thigh, while the complainant stated in his examination in chief that the deceased received fire on his left flank (Wakhi/ribs). During cross-examination, the complainant stated that the deceased fell after receiving two fires and could not run. (We have checked the Urdu version of the statement of the witness and found that "two fires" have been mentioned therein, as well). The statement of both the witnesses is against the medical evidence, according to which the deceased received C one injury which was at back outer upper part of left buttock. The deceased was bleeding even at the time of examination. Most importantly, according to complainant, the accused came from canteen, fired at the deceased and fled away, while according to P.W.7, the accused tired at the deceased from the National Bank, Shakargarh, and fled away. Admittedly, National Bank is situated on the opposite side of the canteen. All the above noted contradictions are very material and cannot be reconciled. The statements of both the eye-witnesses are mutually destructive.
Undeniably, the police station was at a distance of two furlongs from the place of occurrence and the matter could be reported within ten minutes. As against this, the matter was not reported to the police by any of the P.Ws. According to Muhammad Iqbal, S.-I./P.W.12, he received information about the incident through some private person and met the complainant at the gate of Civil Hospital, Shakargarh. The distance between police post where P. W.12 received information and the hospital was about a furlong in the opposite direction. The deceased was accompanied by three persons and any one of them could easily go and report the matter to the police but the same was not done. There is no explanation for not reporting the matter promptly. The complainant conceded that no body from the complainant's side went to the police station. According to P.W.11 Bashir Ahmad/Constable, Muhammad Iqbal, 1.0./P.W.12, handed over the dead body to him at 10-15 a.m. In the presence of Abdul Ghafoor, Muhammad Riaz/HC and the presence of the I.O., the dead body was handed over to the doctor. The post-mortem report reveals that the same was conducted at 1-00 p.m. After receipt of police papers. The complainant claimed that he had taken the deceased in injured condition to the hospital by lifting him. In the same breath, he stated that neither his clothes nor that of the witnesses were stained with blood. The statement of the complainant is belied by the medical evidence, according to which the deceased was bleeding even at the time of post-mortem examination. As noted above, according to P.W.11, the dead body was handed over to him for the purposes of post-mortem examination at 10-15 a.m., so the story of recording the statement of the complainant at 11-15 a.m. And registration of case at 11-30 a.m. Does not fit in. The non-registration of the case at the police station, prima facie, leads to the presumption that the story of the fire was prepared at the spot after due deliberations.
11. The medical evidence supports the prosecution case to the extent that the deceased lost his life due to fire-arm injury but it does not lead to the assailant.
12. The alleged recovery of pistol at the instance of the appellant is of no consequence and cannot be used against the appellant, for the reason that no empty was recovered from the spot and both the witnesses were not the residents of the locality wherefrom the recovery was effected. The I.O.
Admitted that the appellant was arrested five days prior to the recovery and the door of the Haveli was open.
13. It was alleged in the F.I.R. That after divorce of his sister, the appellant used to issue threats to the deceased but no independent witness was produced in proof of the motive nor specific date or place was mentioned when the threat was issued. The I.O. Stated that no witness about the threats was produced before him. He also conceded that the P.Ws. Did not disclose their purpose of visit to Shakargarh on the fateful day.
14. The upshot of the whole discussion is that it is doubtful that the P.Ws. Were H present at the time of occurrence. It appears that they were summoned from their village after the discovery of murder and the appellant was roped in this case merely on H the suspicion, as the unfortunate incident of divorce had taken place a month earlier. It is settled law that presumption or suspicion how strong it may be cannot take the shape of proof. While extending benefit of doubt to the appellant, we allow this appeal and set aside the judgment passed by the learned trial Court. The appellant is acquitted of all the charges and shall be released forthwith if not required in any other case. The death sentence is not confirmed. The murder reference is answered in the negative.