' ALI NAWAZ CHOWHAN, J.- This judgment shall dispose of Criminal Appeal bearing No, 1275 of 1999 as well as Murder Reference No, 19 of 2000.
2. The matter arises on account of the judgment dated 18-12-1999 handed down by Ch. Sajid Mehmood Chattha, learned Additional Sessions Judge, Okara. Whereby he while acquitting Muhammad Akram coaccused, convicted the appellant Mushtaq Ahmad under section 302-B, P.P.C. And sentenced him to death. The appellant was further ordered to pay a sum of Rs, 1,00,000 as compensation to the legal heirs of the deceased.
3. The case emerged from case F.I.R. No,363, dated 9-10-1996 registered at Police Station Chuchak, district Okara, under section 302/34, P.P.C.
4. Briefly the story is that the deceased Riaz Ahmad used to run a grocery shop in the village and he and his father Sarwar Ali (the complainant) also used to sleep in that shop. On the night of the occurrence, according to the complainant, someone at about 3-30 a.m. Knocked at the door of the shop. The deceased opened the door, while the complainant also woke up. He saw two persons having muffled their faces entering the shop. One of whom was armed with .12 bore gun. It appeared that both of them wanted to take away grocery stuff and while they were attempting, the deceased asked them that he had identified them and the deceased attempted to snatch the gun. When the assailants who were armed, fired at him on the left side of his chest above nipple.
That he raised hue and cry, which attracted Wali Zahid and Muhammad Anwar. According to the complainant, a bulb Was lit then in the shop. Riaz Ahmad succumbed to the injuries in a short while that the complainant then went to the police station for lodging of the F.I.R. Before entrusting the dead body of Riaz Ahmad to Wali Zahid and Muhammad Anwar.
5. According to him, the police did not record his statement with promptitude. But delayed it until the Sub-Inspector was available.
6. Muhammad Anwar (P.W.2) made the following statement in examination-in- chief:- ' "About 2-3/4 years ago at about 1-30 a.m. When I along with Wali Zahid P.W. Were passing through the street and heard Riaz Ahmad deceased saying that , I have identified you. I ran towards that shop along with Wali Zahid and saw Riaz Ahmad deceased grappling with someone. There were two muffled faces out of them one was armed with gun .12 bore. At that time Sarwar P.W. Was also present there. There was light of bulb inside and outside the shop. The man armed with gun fired in our view at Riaz Ahmad, who fall on the ground and died there. The fire had hit on the left side of the chest of Riaz Ahmad deceased. Both the persons with muffled faces made good their escape."
He had identified the dead body at the mortuary and attested the memo., whereby the last worn clothes of the deceased were taken into custody.
7. According to him, when he went to the police station about 10 months after the occurrence and the police was interrogating the case, he witnessed the recovery of the rifle which was taken into possession vide memo. Exh.P.E. During his cross- examination, he added that the place from where the recovery was effected did not belong to the accused. He further went on to say that no identification parade was held in this case. He was unable to give any reason of his presence near the shop of the deceased at that early hour of the morning. He did not even try to overpower the accused or chase them. No empty was seen by him at the spot.
8. Muhammad Yasin (P.W.3) is a witness of accused. According to him, at about 3 a.m. That day he along with Ahmad Din was going to his village. When on the way they met Mushtaq and Akram, the accused in this case. Mushtaq was armed with .12 bore gun and when he enquired from them as to where they were going, their reply was that they were going for an urgent piece of work. He lived about 2 miles away from the place of occurrence.
9. Allah Ditta is another eye-witness of Waj Takkar. According to him, at about 4 a.m. That day he was returning from his tube well when he saw the appellant armed and his co-accused Akram empty handed.
10. According to Muhammad Rafique (P.W.7) , he was present in his house along with Ameer P.W., when the appellant- accused came there about 6 a.m. And they wanted him to produce them before the police in connection with the murder of Riaz Ahmad. According to Muhammad Rafique, they narrated the episode in the following words:- ' "Mushtaq accused disclosed that about 3-1/2 months back he along with Akram accused had gone to the shop of Riaz deceased. The accused further disclosed he was an addict and used to commit theft in order to get money for intoxication. Mushtaq further disclosed that he along with Akram had gone to the shop of Riaz deceased 3-1/2 months ago at 3-30 a.m. He further told that he was carrying gun .12 bore, whereas Akram was empty handed and on the way Yaseen and Ahmad X)in had met them. It was also told that outside and inside the shop there was light of bulb.
Anyhow, door was closed. They knocked at the door and Riaz deceased had opened it, whereas his father was sleeping inside. When they entered the shop in order to steal, Riaz deceased proclaimed that he had identified the accused and at that time both of them were muffled faces. Fiaz attempted to snatch the gun' whereupon he fired at Riaz Ahmad deceased and Riaz fell down, and when he came out along with Akram, Wali Zahid and Muhammad Anwar P.Ws. Had identified them.
Mushtaq further told that when they were going back Allah Ditta and Ghulam Rasool who were irrigating their land at that time met them. After the occurrence they concealed themselves.
Mushtaq accused further disclosed that since the police had come to know about their guilt, therefore, they be produced before the police. Akram accused also narrated the same story and confessed their guilt. Both the accused after disclosing this fact went to come back but never turned up. On the same day at 5-30 p.m. I along witlj Ameer went to P.S. And recorded my statement."
11. Muhammad Ameer (P.W.8) also supported the extra judicial version of the prosecution case. He had come to the house of Rafique P.W. But did not live there. He is related to the complainant.
12. Dr. Nazeer Hussain, Medical Officer, had performed the post-mortem examination on the dead body of Riaz Ahmad and found the following injuries on his person:- (1-A) A lacerated wound 4 c.m. x 4 c.m. Deep going on the outer side of upper part of front of left side of chest near anterior axilllary fold, The edges were back and inverted. This was wound of entry.
(1-B) Two lacerated wounds each measuring 1 c.m. x 3/4 c.m. In an area of 5 c.m. x 2 c.m. On the outer side of upper part of right scapular area. The edges were everted. This was wound of exit. His opinion was as follows:- " The death was caused by haemorrhage and shock as result of injury No, 1, which was sufficient . In ordinary course of nature to cause death. The injury was antemortem and was caused by fire-arm weapon. Probable time between injuries and death was immediate and between death and postmortem was within 36 hours. "
' Exh.P.F. Is the carbon copy of the postmortem report, while Exh.P.F./l is the diagram showing the location of injuries.
13. Noor Muhammad, S-I. (P.W.12) is the Investigating Officer in this case. He recorded the F.I.R.
(Exh.P.A.). He proceeded to the place of occurrence. After inspecting the dead body, he prepared the injury statement and the inquest report. He collected blood stained earth from the spot and secured it through ngemo. Exh.P.B. On 10-10-1996 he recorded the supplementary statement of the complainant and other P.Ws. He received the last worn clothes of the deceased. After recording the statement of Muhammad Ameer and Muhammad Rafique, he searched for the appellant- accused. Upon the arrest of Mushtaq, he got recovered a .12 bore gun in the presence of recovery witnesses which was taken into possession vide memo. Exh.P.E.
' He admitted that he had not arranged any identification parade of the appellant- accused. He also did not take into possession the electric bulb.
14. Amongst the formal witnesses, we have Muhammad Rafique, Foot Constable (P.W.5), who took the blood stained earth to the office of the Chemical Examiner. Muhammad Akram, Constable (P.W.6), escorted the dead body to the mortuary and later delivered the last worn clothes of the deceased to the I.O. Qasim Ali (P.W.13) was entrusted with the warrant of arrest of Mushtaq Ahmad for purposes of service and for proclamation.
15. The gun recovered from the appellant was never sent for forensic test. Exh.Fhl. Is the report ' of Chemical Examiner, which is in the positive^
16. In his statement under section 342, Cr.P.C. The case of the appellant Mushtaq was one of denial.
However, he gave the following reply to question No, 17:-- ' "I am innocent. I have been falsely involved in this case. Sarwar Ali P.W. And his family has enmity with many persons in village Mitha Bhatti and surrounding villages on account of criminal cases or murder and other offences. Some other persons were also joined in the investigation as suspect but they were let off with ulterior motive. Later on, I was involved in this case on the basis of fabricated evidence of circumstantial nature by the police in collusion with Sarwar P.W. Because the local police was inimical towards me. Chuchak police had reported against me, on the basis of which the District Magistrate Okara had detained me under M.P.O. (Section 3). My father had filed a writ petition in the Honourable Lahore High Court, which was accepted and I was released from the jail. The police had been pressurizing us to withdraw the said appeal but we refused. On the night of occurrence Riaz Ahmad deceased alone was sleeping in a shop where he was fired at by some unknown culprits. In morning, (he murder came to light, the occurrence did not take place at 3-00 a.m. The complainant lodged the F.I.R. By changing the time of occurrence and for this reason post-mortem examination was conducted late. Since there is no eye-witness of the occurrence so circumstantial evidence was fabricated to involve me in this case on the account of enmity with the police. "
17. The entire case is based on circumstantial evidence. The sleeping of the complainant at that night in the shop of the deceased was not in routine neither it has been so stated. He, anyhow, lived a few houses away from the place of occurrence. Anyway, at the place of occurrence, the appellant and his co-accused were not identified because according to the complainant, they had muffled their faces.
18. The incriminating piece of evidence is the extra judicial confession which is made belatedly before two persons, one of whom is Ameer who is relation of the complainant side. Both of them were not persons in authority or having influence. In a case where the accused were not nominated, it will be unusual to expect of them making extra judicial confessions, moreso when they were not men of high morals actuated with the fear of God. We are told that they were committing lurking house-breaking for collection of money for purposes of their addiction.
19. If their faces were muffled at the time of the occurrence, it is not correct to expect that they would unshroud their faces returning after the occurrence and making themselves vulnerable In fact they would rather further hide themselves to avoid identification, The presence of the witnesses of Waj Takkar at that time of the night at the said place also appears unnatural and unusual.
20. Had any description of the appellant been given in the F.I.R., it would have lent support to the case of the prosecution about the presence of the complainant at the spot. No identification parade having been conducted, the case of the prosecution gets further weakened. Another blow to the prosecution case comes from the statement of Muhammad Anwar (P.W.2) who happened to see the deceased and the appellant in a position of physical altercation. But unnaturally he neither chased them nor tried to stop their assault. Even though as is said by the complainant, he too was present there and one of the accused was empty- handed.
21. There are several infirmities and lacunas in this case where the prosecution has failed to build a res gestae and, therefore, basing a sentence of death on the evidence on the file was not correct.
We; therefore, acquit the appellant accepting his appeal. He be released forthwith if not required in any other case.
22. Consequently, the death sentence is not confirmed and the murder reference is answered in the negative.