' ASIF SAEED KHAN KHOSA, J.---Qudrat Ullah-appellant was convicted for an offence under section 302(b), P.P.C. Vide judgment, dated 12-1-2001 handed down by the learned Judge, Special Court (Suppression of Terrorist Activities), Mianwali and was sentenced to death and to pay a sum of Rs.2,00,000 to the heirs of Zafar Iqbal deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months. Through the same judgment the learned trial Court had acquitted the appellant's co-accused namely Naimat Ullah and Ramzan alias Munna. The appellant has challenged his conviction and sentence before this Court through the present appellant.
2. The prosecution's case unfolded in the F.I.R. Was that Bahadur Khan complainant was a resident of Wandhy Hashim Shah Wali situated within the area of Police Station City, Mianwali. In the evening of 12-4-1997 the complainant, his two sons namely Zafar Iqbal and Anwar Khan and the complainant's son-in-law namely Said Khan left their house on foot for meeting one Mulazim Hussain Shah for a personal business. At about 7-30 p.m. When they reached opposite a general store of one Muhammad Aslam Baloch in Chowk Balochan suddenly Qudrat Ullah appellant armed with a rifle, Naimat Ullah co-accused armed with a gun .12 bore and Ramzan alias Munna co- accused empty-handed emerged there. A tube-light was alight at that time above the door of the shop of Muhammad Aslam Baloch. Qudrat Ullah appellant fired a shot from his rifle hitting the complainant's son namely Zafar Iqbal on the right side of his chest and upon receipt. Of that fire Zafar Iqbal fell down. Naimat Ullah co-accused, while firing in the air, raised a Lalkara warding off the witnesses and thereafter the appellant and his co-accused decamped from the spot while raising Lalkaras. The complainant and his companions then removed Zafar Iqbal to the civil hospital in an injured condition but Zafar Iqbal breathed his last upon reaching the hospital. The motive set up in the F.I.R. Was that Zafar Iqbal deceased had a scuffle with the appellant and his two co-accused a few days prior to the present occurrence and the appellant and his co-accused had committed his murder on that score. Leaving the dead body of his son at the hospital the complainant proceeded to report the matter to the police but he met Naveed Anwar, Inspector (P.W.10) on the way and made a statement regarding the said incident before him. On the basis of that statement of Bahadur Khan complainant formal F.I.R. No.124 was subsequently registered at Police Station City, Mianwali at 8-30 p.m. On 12-4-1997 for an offence under sections 302/34, P.P.C.
3. After registration of the F.I.R. Naveed Anwar, Inspector (P.W.10) conducted the investigation of this case during which he collected blood-stained earth and a crime-empty from the spot, got the dead body subjected to post-mortem examination, arrested the appellant and his co-accused and recovered a rifle from the appellant's possession. After completion of investigation a challan was submitted before the learned trial Court.
4. At the commencement of the trial the learned trial Court framed charge with one head under section 302/34, P.P.C. Against the appellant and his co-accused to which they pleaded not guilty and claimed a trial.
5._ During the trial the prosecution produced as many as twelve witnesses in support of its case against the appellant and his co-accused. Bahadur Khan complainant (P.W.7) and Said Khan (P.W.8) furnished the ocular account of the incident in question. Bahadur Khan complainant (P.W.7) also deposed about the motive and a recovery of a rifle from the appellant's possession during the investigation of this case. The medical evidence was provided by Dr. Muhammad Rafiq Khan (P.W.9), Naveed Anwar, Inspector (P.W.10) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
6. In their statements recorded under section 342, Cr.P.C. The appellant and his co-accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They, however, opted not to make any statement on oath under section 340(2), Cr.P.C. And did not produce any witness in their defence.
7. At the conclusion of the trial the learned trial Court acquitted the appellant's co-accused namely Naimat Ullah and Ramzan alias Munna but, after finding the prosecution's case against him to have been proved beyond reasonable doubt, convicted and sentenced the appellant as mentioned and detailed above. Hence, the present Appeal before this Court.
8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and, thus, he is entitled to be acquitted by this Court. As against that the learned counsel for the complainant as well as the learned counsel of the State have maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt and, therefore, his conviction and sentence recorded by the learned trial Court do not warrant any interference by this Court.
9. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has been observed by us that the occurrence in this case had taken place after dark and the prosecution had claimed identification of the culprits in the light of a tube-light allegedly affixed on the outer door on the shop of one Muhammad Aslam Baloch. It was claimed by the prosecution that the said shop was open at the time of the alleged incident and that was the reason for the tube-light to be alighten at that time. However, it is admitted at all hands that the said shopkeeper namely Muhammad Aslam Baloch was never associated with the investigation of his case and Naveed Anwar, Inspector (P.W.10), the Investigating Officer, had stated before the learned trial Court in so many words that he had not investigated whether the said shop was open or closed at the time of the alleged occurrence. There is, thus, no denying the fact that the only source of light claimed by the prosecution to be available at the spot had never been established to be in fact available at the relevant time.
10. Both the eye-witnesses produced by the prosecution, i.e., Bahadur Khan complainant (P.W.7) and Said Khan (P.W.8) were not only closely related to Zafar Iqbal deceased but they were also chance witnesses who had utterly failed to substantiate the stated reason for their presence at the place of occurrence at the time of the alleged occurrence. Bahadur Khan complainant (P.W.7) was the father of Zafar Iqbal deceased and Said Khan (P.W.8) was a son-in-law of the complainant and a brother-in-law of Zafar Iqbal deceased. Bahadur Khan complainant (P.W.7) had claimed that he lived at a place situated 60/70 karams away from the place of occurrence whereas Said Khan (P.W.8) had maintained that the complainant's house, was situated 300/350 karams away from the spot. Bahadur Khan complainant (P.W.7) had maintained that Said Khan (P.W.8) used to live about two kilometers away from the place of occurrence whereas Said Khan (P.W.8) had himself stated before the learned trial Court that his house was situated about two and a half to three kilometers away from the spot. It is available on the record that Said Khan (P.W.8) was serving at the relevant time at Bahawalpur. It was claimed by Bahadur Khan complainant (P.W.7) that Said Khan (P.W.8) had arrived from Bahawalpur at the complainant's house at about 1-00 a.m. During the preceding night whereas Said Khan (P.W.8) had himself maintained that he had reached the complainant's house from Bahawalpur at 4-00 p.m. On the day of occurrence. The reason advanced by Bahadur Khan complainant for his presence at the scene of the crime at the relevant time was that he was proceeding at that time towards the house of one Mulazim Hussain Shah in the company of Zafar Iqbal deceased, Said Khan (P.W.8) and Anwar Khan P.W. In order to talk to Mulazim Hussain Shah about an employment for Zafar Iqbal deceased in the Atomic Energy Commission. He had, however, admitted before the learned trial Court that the said Mulazim Hussain Shah had no connection with the Atomic Energy Commission. As against that Said Khan (P.W.8) had conceded before the learned trial Court that he had no business with Mulazim Hussain Shah. According to Bahadur Khan complainant (P.W.7) he and his sons had already left their house for going to the house of Mulazim Hussain Shah when Said Khan (P.W.8) met them near a mosque and had joined them in their journey whereas Said Khan (P.W.8) had stated before the learned trial Court that he had gone along with the complainant and his sons from the house of the complainant and had not joined them from any other place. Apart from their verbal assertion in that regard the eye-witnesses produced by the prosecution had brought nothing on the record to independently establish the reason for their going to the house of Mulazim Hussain Shah or for their presence at the place of occurrence at the relevant time. It is settled law that a chance witness cannot be readily believed by a criminal Court unless the reason for his presence is satisfactorily established before the Court through some independent evidence available on the record. No such independent evidence or circumstance is available on the present record to substantiate the claim of the eye witnesses in this regard in the present case. It may also be relevant to mention here that there are many features of this case which create a serious doubt regarding the presence of these eye-witnesses at the spot at the time of alleged occurrence. Bahadur Khan complainant (P.W.7) had maintained before the learned trial Court that after sustaining of injuries by Zafar Iqbal deceased he was removed to the hospital by the complainant and his companions in a car and the complainant did not know anything about that car. As against that Said Khan (P.W.8) had maintained that Zafar Iqbal deceased was removed to the hospital in a car belonging to the complainant himself as the complainant used to ply that car himself and the said car had been brought by the complainant to the spot from his own house after the alleged incident. We have further noticed that both these eye-witnesses had maintained before the learned trial Court that soon after the incident Zafar Iqbal deceased had been shifted to the hospital in an injured condition whereat he died and the complainant had left the dead body at the hospital while proceeding to report the matter to the police. As against that Ubaid Ullah, FC (P.W..1) had stated before the learned trial Court that he had escorted the dead body of Zafar Iqbal deceased from the place of occurrence to the mortuary. This statement of this witness exposed the hollowness of the claim of the eye-witnesses in that regard and also created serious doubts regarding their presence with the deceased at the relevant time. We have also pertinently observed that Said Khan (P.W.8) had stated before the learned trial Court that he had not made any statement before the Police at the hospital and this was confirmed by Naveed Anwar, Inspector (P.W.10), the Investigating Officer, who had categorically stated that Said Khan (P.W.8) had appeared before him for the first time at the place of occurrence and not at the hospital. It is also significant that the F.I.R. In this case had not been lodged at the Police Station and it is generally understood that in all D likelihood such F.I.Rs. Are recorded after preliminary investigations at the spot. All the above mentioned considerations have put us to caution regarding the claimed presence of Bahadur Khan complainant (P.W.7) and Said Khan (P.W.8) at the place of occurrence at the time of the alleged incident and regarding their claim of being eye-witness of the alleged occurrence and, therefore, we have deemed it prudent and advisable to look for independent corroboration of the ocular account furnished in this case by the prosecution.Far from being established. According to the F.I.R. And the statement
11. The motive set up by the prosecution in this case had remained made by Bahadur Khan complainant (P.W.7) before the learned trial Court a scuffle had taken place between Zafar Iqbal deceased and the appellant and his co-accused a few days prior to the present occurrence over a monetary dispute. However, neither in the F.I.R. Nor before the learned trial Court any detail of such a dispute was divulged by the complainant. Even the place where that incident had allegedly taken place had not been mentioned by the complainant at any stage. Admittedly the said incident forming the motive had never been reported to the police and the complainant had never claimed to be physically present during such an incident. The complainant had admitted before the learned trial Couri that he hau not produced any witness of such an incident before the Investigating Officer during the investigation of this case and the situation in that regard had remained unchanged even before the learned trial Court. In these circumstances the motive set up by the prosecution had failed to provide any corroboration to the ocular account produced before the learned trial Court.
12. The alleged recovery of a rifle .8MM from the appellants possession during the investigation of this case and its subsequent matching with a crime-empty recovered from the place of occurrence were legally inconsequential as the report of the Forensic Science Laboratory (Exh.PN) clearly established that the rifle as well as the crime-empty had been received at the said laboratory on one and the same day, i.e. 10-5-1997. The crime-empty in this case had allegedly been recovered from the place of occurrence on 12-4-1997 whereas the rifle had allegedly been recovered from the appellant's possession on 7-5-1997. There is no explanation available on the record to show as to why the crime-empty had not been sent to the Forensic Science G Laboratory before recovery of the rifle. In these circumstances a possibility cannot safely be ruled out that a crime-empty was manufactured after recovery of the rifle from the appellant's possession and thereafter both the rifle and the crime-empty were sent together to the Forensic Science Laboratory. Apart from that the only witness from the public produced by the prosecution before the learned trial Court regarding the alleged recovery of a rifle from the appellant's possession was none other than Bahadur Khan complainant (P.W.7) himself who had himself stated before the learned trial Court that he had not made any statement before the Investigating Officer regarding the said recovery. Even otherwise the statement made by Naveed Anwar, Inspector (P.W.10), the Investigating Officer, shows that no independent witness was associated with the alleged recovery from the appellant and the alleged recovery had not been effected from an exclusive possession of the appellant. In view of all these considerations the alleged recovery from the appellant had also failed to provide independent corroboration to the ocular account furnished before the learned trial Court.
13. The medical evidence produced by the prosecution had contradicted the ocular account in many ways. In the F.I.R. As well as in the statements made by the eye-witnesses before the learned trial Court it had been maintained by the prosecution that the appellant had fired at Zafar Iqbal deceased from his front whereas the diagram of injuries sustained by the deceased shows that the deceased had received a fire-shot from a side and not from his front. According to the medical evidence the entry wound sustained by the deceased had burnt edges and the doctor had opined that the said injury could be caused from within a distance of six feet. However, the site-plan (Exh.PB) prepared on the instructions of the eye-witnesses showed that the appellant had allegedly fired at Zafar Iqbal deceased from a distance of twenty feet and even the crime-empty had statedly been recovered from a place twenty feet away from the deceased. The eye-witnesses had made improvements in this regard before the learned trial Court and Bahadur Khan complainant (P.W.7) had stated before the learned trial Court that the appellant had fired at the deceased from a distance of eight and a half feet whereas Said Khan (P.W.8) had stated that distance to be ten feet. Such an improvement by the eye witnesses depicted an effort on their part to bring the ocular account in harmony with the medical evidence and we have found this effort on the part of the eye-witnesses to be other than bona fide. Both the eye-witness had also maintained before the learned trial Court that Zafar Iqbal deceased had not died at the spot but had succumbed to his injuries upon reaching the hospital and it had taken about twenty-five minutes to take the deceased to the hospital. As against that Dr. Muhammad Rafiq Khan (P.W.9) had categorically maintained before the learned trial Court that as a result of the injuries received by him the death of the deceased had to be instantaneous. It had also been maintained by Bahadur Khan complainant (P.W.7) that Zafar Iqbal deceased had taken his last meals one and a half hours prior to the alleged occurrence whereas the doctor had found partially digested food in the stomach of the deceased. In the opinion of the doctor the deceased might have taken his last meals about fifteen minutes prior to the occurrence "because the digested food had not started passing in the small intestine". All these factors unmistakably show that the medical evidence squarely contradicted the ocular account regarding various J aspects of this case and, thus, the ocular account did not receive the requisite unqualified support from the medical evidence.
14. It is available on the record that Zafar Iqbal deceased was a desperate person and he had been involved in different cases of causing of hurt and peddling in narcotics. The occurrence in this case had taken place after dark and presence of the eye-witnesses at the scene of the crime at the relevant time has been found by us to be quite doubtful. Thus, a possibility cannot safely be ruled out that Zafar Iqbal deceased had been done to death by any person other than the appellant, especially when apparently the appellant had no established motive to take the deceased's life.
15. For what has been discussed above we have arrived at an inescapable conclusion that the prosecution had failed to prove its case against Qudrat Ullah appellant beyond reasonable doubt and the appellant is entitled to the benefit of doubt in this regard. This appeal is, therefore, allowed, the conviction and sentence of the appellant recorded by the learned trial Court are set aside and the appellant is acquitted of the charge. He shall be released from the jail forthwith if not required in any other case.