JUDGMENT KH. MUHAMMAD SHARIF, J.- This judgment will dispose of Criminal Appeal No. 78/J of 2002 filed by Salamat Ali appellant. He was convicted and sentenced by learned Additional Sessions Judge, Faisalabad vide judgment dated 21,12.2001 as under:- Death under Section 302(b), PPC for committing the qatl-e-amd of Mohabbat Ali.
Murder Reference No. 92 of 2001 for confirmation or otherwise of death sentence of convict appellant shall also be replied through this single judgment.
2. Briefly stated the facts of the case are that in between the night of 28th/29th October 1997, Akbar Ali, complainant along, with his brother Mohabbat Ali was sleeping in poultry form! At about 2:30 a.m. (midnight), some one called complainant to come out upon which he came out and found four persons standing outside. According to complainant, all the four accused were having wheatish colour and one of them was wearing a chadder while the remaining three accused were putting shalwars. All the four accused were alleged to be armed with fire arm and one of them was having a carbine. It was further alleged in the FIR that all the four accused had muffled their faces.
It was the case of the complainant that all the four accused caught hold him and on his hue and cry, Mohabbat Ali who was sleeping came out and tried to rescue him when in the meanwhile the accused having a carbine fired straight which landed on the chest of Mohabbat Ali who succumbed to the injury at the spot. The occurrence was allegedly witnessed by Muhammad Anwar and Bagh Ali.
3. Hakim Ali Sub Inspector (PW-11) recorded statement of the complainant Ex.PF transmitted the same to Police Station for registration of formal FIR, then he inspected the spot, took into possession the dead-body of the deceased, prepared injury statement Ex PD., inquest report Ex.PE and the blood-stained earth was taken into possession vide memo. Ex.PL Rough site plan is Ex.PM.
Salamat Ali accused was arrested by Zafar Abbass SI. (PW- 12) on 19.2.1998. The accused on 25.2.1998 led to the recovery of murks (golden small ear ring) which was taken into possession vide memo. Ex.PH. Salamat accused also got recovered a carbine which was secured vide memo. Ex.PK on 6.3.1998. After completion of investigation, Salamat Ali, Bashir Ahmad, Niamat Ali, Mubarak Ali and Murad Ali were sent to face the trial.
4. At the trial, prosecution in order to prove its case produced 12 witnesses in all. Akbar Ali, Muhammad Ashraf and Bagh Ali, PWs 6,7 and 8 respectively furnished the eye-witness account while Dr. A.R. Tahir PW-5 conducted post-mortem examination on the dead-body of the deceased.
The learned DDA tendered in evidence report of the Chemical Examiner Ex.PN, report of the Serologist Ex.PP and closed the case of prosecution. The accused in his statement under Section 342, Cr.P.C. Pleaded false implication. After conclusion of the trial, accused Niamat Ali, Mubarak Ali and Murad Ali were acquitted while Salamat Ali the present appellant and Bashir Ahmad not appellant here were convicted and sentenced.
5. Learned counsel for the appellant, after having read the entire prosecution evidence and other material available on record submits that the occurrence having taken place at pitched dark- hours of the night was in fact an unwitnessed and the alleged eye-witnesses were not present at the spot. Further submits that according to FIR, ali the accused had muffled their faces, but no identification parade was conducted in this case. Next submits that nobody was named as accused in the FIR but in the application (Ex.PJ) which was undated, the complainant had made many improvements.
It is maintained that there is conflict between ocular account and the medical evidence in as much as according to FIR and application moved by the complainant Ex.PJ, the accused fired only one shot with carbine but according to post-mortem report, there were 13 injuries on the person of the deceased. According to learned counsel, this conflict cannot be reconciled with each other.
With regard to evidentiary value of supplementary statement of the complainant, it is submitted that it has no evidentiary value in the eyes of law.
So far as recovery of fire arm on the pointation of the appellant is concerned, it is submitted that no crime empty having been taken into possession from the spot mere recovery of fire arm is of no avail to the prosecution.
Learned counsel submits that the appellant was falsely implicated in this case. According to learned counsel,, in fact the appellant Salamat was already in the custody of ''Police Station Lundianwala and was produced before the High Court on 20.2.1998 in> the proceedings taken in Criminal Miscellaneous No. 196/H of 1997. Learned counsel has drawn our attention to paragraph 2 of the order dated 20.2.1998 passed in the aforesaid habeas petition and submits that there being no record of arrest of Salamat Ali, his confinement was declare to be illegal and he was set at liberty The learned counsel wants this Court to believe that Salamat Ali accused was already in the custody of Police and the Police in order to save its skin and to frustrate the proceedings in the habeas petition,, falsely implicated the appellant in this case.
Concluding his submissions, learned counsel submits that the prosecution has miserably failed to prove its case against Salamat Ali appellant and he is entitled to acquittal.
6. On the other hand, learned Additional Prosecutor General submits that the appellant was identified by the eye-witnesses before the Trial Court and that the PWs had no ill will or enmity against the appellant to falsely depose against him. He fully supports the judgment of the Trial Court.
7. We have heard learned counsel for the parties at length and have gone through the record with their able assistance. In the instant case, occurrence had taken place at 2.30 a.m. (midnight) on 29.10.1997 at a distance of eight miles from Police Station Khurarianwala while the matter was reported to the Police at 08.30 a.m. At Pul Phulai by Akbar Ali through written complaint Ex.PF and the formal FIR Ex.PF/1 was recorded by Maratab Ali, Head Constable.
The complainant Akbar Ali is real brother of Mohabbat Ali deceased. Bashir Ahmad co-accused of the appellant was sentenced to imprisonment for life by the Trial Court but was acquitted by the High Court on the basis of compromise arrived at between the parties.
Prosecution in order to prove its case produced three eye-witnesses namely Akbar Ali, Muhammad Ashraf and Bagh Ali.
The appellant Salamat Ali was arrested on 19.2.1998. During physical remand, he got recovered a carbine no crime empty having been taken into possession from the 1 spot, mere recovery of the fire arm on this pointation is of no avail to the prosecution.
Dr. A.R, Tahir, PW-5 conducted post-mortem examination on the dead-body of the deceased on 29.10.1997 at 4 p.m. The duration given by the doctor between the injury and death was immediate while between death and post-mortem was 13 hours. In all, the doctor found 13 injuries on the person of the deceased. At this juncture, we may reproduce here some portion from the cross- examination of the witness:- "I observed seven fire shot injuries on the dead-body. It is correct to suggest that the possibility cannot be ruled out that these injuries could be caused in consequence of bursted rifled weapon.
As there was no blackening and charring on the injuries, the assailant n light be at a distance of more than six feet from the deceases."
Out of 13 injuries on the person of the deceased, seven were entry wounds while six were exit wounds. These injuries could not have been caused by one fire arm shot.
Nobody was named in the FIR. The accused were alleged to have muffled their faces. No identification parade was held. The accused were identified by the eye-witnesses only before the Trail Court. We have gone through the application Ex.PG made by the complainant to the SHO. In this application, the complainant had made lot of improvements but we need not discuss its merits or demerits, no it has got no evidentiary value in the eyes of law.
It is Thus established that the eye-witnesses were not present at the spot and were introduced later on in the FIR, which too. Was recorded after due deliberation and consultation not at the Police Station but at Pul Phulai.
Mark A, a copy of the order passed by the. High Court on 20.2.1998 in Criminal Misc. No. 196/H of 1998 is also of. Much significance. Here we may also reproduce the said order;- "The report of the bailiff has been received and perused, according to which, the detenu Salamat Ali alias Shamman was found locked-up in Police Station Lundianwala, District Faisalabad, and there was no record of his arrest at the Police Station. Zafar. Abbass SI/SHO P S. Lundianwala, present in Court, states that the detenu is wanted by the police as he is a nominated accused in case FIR No. 618/97, dated 29.10.1997 and before his arrest could be entered in the Daily Diary the bailiff reached the Police Station.
2. As there was no record of the arrest of the detenu, Salamat Ali alias Shaman, at the Police Station, therefore, his confinement at the Police Station is declared to be illegal and he is set at '' liberty."
A perusal of the above quoted order shows that order for production of the alleged detenue must have been passed on 19.2.1998, the date of arrest shown by the Police These facts establish that the appellant was not arrested on the day as the prosecution wants this Court to believe.
Taking into consideration the over all facts and circumstances of the case and attending to the submissions made by learned counsel for the parties, we are of the considered opinion that the prosecution has failed to prove its case against the appellant rather the case is full of doubts, the benefits of which has to be extended ungrudgingly to the convict appellant. So, while extending the benefit of doubt, we accept the appeal filed by convict and set aside the conviction and sentence recorded against him by the Trial Court Vide impugned judgment and acquit him of the charge.
The death sentence of appellant Salamat AN is Not confirmed and Murder Reference is replied in the Negative.
Salamat Ali appellant is in jail. He shall be released forthwith if not required to be detained in any other case.