' ASIF SAEED KHAN KHOSA, J.---Sami Ullah Khan appellant was convicted for an offence under section 302(b), P.P.C. Vide judgment, dated 22-3-1997 passed by the learned Additional Sessions Judge, Mianwali and was sentenced to imprisonment for life and to pay a sum of Rs.5,000 to the heirs of Faiz Ullah Khan deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for six months. The benefit under section 382-B, Cr.P.C. Was extended to the appellant. Through the same judgment the appellant's co-accused and father namely Muhammad Hanif was acquitted by the learned trial Court. The appellant has challenged his conviction and sentence before this Court through Criminal Appeal No.253 of 1997 whereas the complainant has filed Criminal Revision No.128 of 1997 before this Court seeking enhancement of the sentence passed by the learned trial Court against Sami Ullah Khan appellant. I have heard both these matters together and I propose to decide the same together through the present consolidated judgment.
2. According to the prosecution's case unfolded in the F.I.R. At about 8-00 a.m. On 24-8-1995 Sami Ullah Khan complainant was proceeding from his house to his shop in the company of his father namely Faiz Ullah Khan and when they reached a ground where Mela Mandi Maveshian used to be held in Mianwali city suddenly the appellant emerged there with a pistol and fired a shot at the complaniant's father hitting him in the iliac region. Upon receipt of the injuries the complainant's father fell down. The said incident had also been witnessed by Javed Iqbal and Nasrullah Khan P.
Ws. Who were passing from near that spot at the relevant time. The motive set up in the F.I.R. Was that Faiz Ullah Khan deceased had committed an indecent act with the appellant's brother namely Qudrat Ullah some time ago and the appellant had killed the deceased in order to avenge the same. According to the F.I.R. The complainant and the other witnesses then took Faiz Ullah Khan to Civil Hospital, Mianwali in an injured condition but he succumbed to his injuries at the hospital before receiving any treatments. Thereafter the complainant left the above mentioned two eye- witnesses with the dead-body of his father and went to report the matter to the police. Upon a statement made in that regard by Sami Ullah Khan complainant F.I.R. No. 266 was registered at Police Station City, Mianwali at 9-30 a.m. On the same day, i.e. 24-8-1995 for an offence under section 302, P.P.C. Read with section 109, P.P.C. It was maintained by the complainant in the F.I.R.
That the appellant had committed the said murder with the abetment of his father namely Muhammad Hanif.
3. After registration of the F.I.R. Ghulam Murtaza, S.-I. (P.W.11) conducted the investigation of this case during which he inspected the place of occurrence, collected the blood-stained earth therefrom, got the dead body subjected to post-mortem examination, arrested the appellant and his co-accused, recovered a pistol from the appellant's possession and, upon completion of the investigation, prepared a challan against the appellant and his co-accused.
4. At the commencement of the trial the learned trial Court framed a Charge with two heads under sections 302 and 302/109, 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 eleven witnesses in support of its case against the appellant and his co-accused. Sami Ullah Khan complainant (P.W.7), Javed Iqbal (P.W.8) and.
Nasrullah Khan (P.W.9) furnished the ocular account of the incident in question. Sami Ullah Khan complainant (P.W.7) and Javed Iqbal (P.W.8) also deposed about the motive. Recovery of pistol from the appellant's possession during the investigation of this case was proved by Muhammad Aslam Khan (P.W.4) and Ahmad Khan (P.W.5). The medical evidence was provided by Dr. Sher Ai Khan (P.W.10), Javed Iqbal (P.W.8) and Nasrullah Khan (P.W.9) also deposed about overhearing a conspiracy allegedly being hatched by the appellant and his co-accused. Ghulam Murtaza, S.-I.
(P.W.11) 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 record under section 342, Cr.P.C. The appellant and his co-accused denied and controverted all the allegations of fact levelled by the prosecution against them and professed their innocence. They, however, opted not to make any statement on oath under section 340(2), Cr.P.C. And they also 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 Muhammad Hanif but, after having found the prosecution's case against the appellant to have been proved beyond reasonable doubt, convicted and sentenced the appellant as mentioned and detailed above. Hence, the present appeal and the connected revision petition before this Court.
8. I 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, therefore, he is entitled to be acquitted by this Court. As against that the learned counsel for the complainant has maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt and, therefore, his conviction recorded by the learned trial Court does not warrant any interference by this 'Court. He has gone on to maintain that in the circumstances of this case the appellant's sentence warrants enhancement to death. The learned counsel for the State has, however, categorically maintained that after going through the evidence available on the record she has felt confident that the prosecution had remained unsuccessful in proving the charge against the appellant beyond reasonable doubt and, therefore, she does not oppose this appeal.
9. After hearing the learned counsel for the parties and going through the record of this case with their assistance I have noticed that the prosecution had not been able to bring anything on the record to show that the place of occurrence was situated at a place which fell on the complainant's way to his shop from his house so as to establish the credibility of his claim made in that regard in the F.I.R. As well as in his statement made before the learned trial Court. There is nothing available on the record to show as to why the complainant and his father were not traveling on the road nearby and as to why they were present in a mela ground at the relevant time. It was admitted at all hands that no mela was to be held in that ground on the day of occurrence. The complainant had also failed to disclose as to why his father was companying him at the relevant time. Javed Iqbal (P.W.8) and Nasrullah Khan (P.W.9) were admittedly chance witnesses who had utterly failed to mention or to establish any particular purpose for which they were passing near the place of occurrence at the relevant time. According to the F.I.R. The complainant had left the dead-body of his father in the care of these eyewitnesses while leaving for reporting the matter to the police but Ghulam Murtaza, S.-I. (P.W.11), the Investigating Officer, had stated before the learned trial Court in black and white that at time of his inspection of the dead-body and preparation of the inquest report the said two eyewitnesses were not available with the dead-body. Javed Iqbal (P.W.8) happened to be a business partner of the complainant whereas Nasrullah Khan (P.W.9) was a brother-in-law of the complainant. Both these witnesses had also deposed about a conspiracy allegedly hatched by the appellant and his co-accused but that part of their evidence was disbelieved and discarded by the learned trial Court and the appellant's co-accused was acquitted on that score. After going through the statements of the complainant and the other two eye-witnesses made before the learned trial Court I have entertained serious doubts about the A claimed presence of the complainant and the other two eye-witnesses with the deceased at the time of the alleged occurrence and, therefore, I have thought it prudent and advised to look for independent corroboration to their statements before placing reliance upon the same.
10. The motive set up by the prosecution had remained far from being established. It was alleged in the F.I.R. That Faiz Ullah Khan deceased had committed an 'indecent act' with Qudrat Ullah, a minor brother of the appellant, some time in the past but no detail of that indecent act or the date, time or place of commission of such act had been disclosed in the F.I.R. Even before the learned trial Court the complainant had failed to specify the date, time or place of such an act and he had only maintained that the same had been committed about 10/15 days prior to the present occurrence.
Both the witnesses deposing about the said motive, i.e. Sami Ullah Khan complainant (P.W.7) and Javed Iqbal (P.W.8) had never claimed to have themselves witnessed the incident forming the motive. Ghulam Murtaza, S.-I. (P.W.11), the Investigating Officer, had unmincingly stated before the learned trial Court that Qudrat Ullah, around whom the motive set up by the prosecution revolved, had never been associated with the investigation of this case. In these circumstances the motive set up by the prosecution had never been properly proved and, thus, the same could not provide any corroboration to the ocular account furnished in this case.
11. The alleged recovery of a pistol from the appellant's possession during the investigation of this case was legally inconsequential as no crime-empty had been recovered from the place of occurrence and, thus, the recovered pistol had remained unconnected with the alleged offence.
12. The medical evidence produced by the prosecution showed that injury No.1 sustained by Faiz Ullah Khan deceased had its edges burnt and blackened and according to Dr. Sher Ali Khan (P.W.10) the said injury had been caused from a distance of about three feet. However, the statement made by Muhammad Shafiq Khan, Draftsman (P.W.6) showed that according to the site-plan prepared upon the pointing out of the complainant and the other eye-witnesses the distance between the deceased and the assailant was eight feet. In view of this contradiction the ocular account had failed to receive a wholehearted support from the medical evidence.
13. For what has been discussed above it has emerged that a real possibility of the deceased having received his injuries in an witnessed occurrence could not safely be ruled out and the complainant and the other eye-witnesses, on account of their close relationship and connection with the complainant party, could well have been procured and planted at a subsequent stage so as to manufacture and fabricate a case against the appellant had his co-accused. A conclusion is, therefore, inescapable that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. It has, therefore, not surprised me to learn that the State has chosen not to oppose the appeal preferred by the appellant before this Court. For the reasons recorded above Criminal Appeal No.253 of 1997 is 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 by extending the benefit of doubt to him, He shall be released from the jail forthwith if not required in any other case. For the same reasons Criminal Revision No.128 of 1997 filed by the complainant before this Court is hereby dismissed.