1. ' M.A. ZAFAR, J.---This judgment will dispose of Criminal Appeal No,1844 of 2006 filed by Shabbir Ahmad appellant, who was convicted and sentenced by learned Additional Sessions Judge/Judge Special Court under the Juvenile Justice System Ordinance-2000, Gujrat vide impugned judgment dated 7-12-2006 as under:- Under section 302(b)/149, P.P.C. Imprisonment for life and to pay Rs,100,000 under section 544-A, Cr.P.C. As compensation to the legal heirs of the deceased and in default thereof to further undergo six months' S.I.
2. Under section 148 P.P.C. Three years' S.I.
3. ' However, both the sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
3. Brief facts of the case as disclosed by Ghulam Rasool complainant (P.W.3) are that on 5-10-2003 he was cutting fodder from his Bajra crop. His younger brother Iftikhar Ahmad was also coming for taking fodder from Bajra crop. At about 8-30 a.m when his brother Iftikhar Ahmad reached near the field of Bajra crop from where the complainant was cutting fodder, then from nearby field of Bajra crop owned by Muhammad Inayat son of Hakim Khan, Muhammad Amjad armed with .44 bore rifle, Muhammad Afzal armed with .44 bore rifle, Mazhar Hussain armed with 8-MM rifle, Khalid Mahmood armed with 30 bore pistol, Saqib armed with .44 bore rifle, Safdar Hussain armed with .44 bore rifle, Bashir Ahmad armed with .30 bore pistol, Rasheed Ahmad armed with .30 bore pistol, Shahid Iqbal armed with 8-MM rifle. Khawar Hussain armed with .44 bore rifle along with four unknown persons armed with firearm emerged, who had already waylaid there. Accused Muhammad Amjad raised lalkara that today Iftikhar Ahmad be taught a lesson for injuring him and then made fire from his rifle, which hit Iftikhar Ahmad on his right flank, who fell down on the ground, then, Muhammad Amjad, Muhammad Afzal, Mazhar Hussain, Khalid Mahmood, Saqib, Safdar, Bashir Ahmad, Rasheed Ahmad, Shahid Iqbal, Khawar Hussain and unknown persons made firing upon Iftikhar Ahmad with their respective weapons, which hit on different parts of his body, thereafter, accused persons also gave butt blows on the body of Iftikhar Ahmad with their respective weapons, which also hit on different parts of his body. Complainant did not come forward due to the fear of the accused persons and raised hue and cry. On hearing the firing and hue and cry of the complainant, Ijaz Ahmad alias Jilal his brother, Muhammad Yousaf, who were near to them, Came at the spot and witnessed the occurrence. Accused persons fled away from the spot after raising Lalkaras and making aerial firing. Iftikhar Ahmad succumbed to the injuries at the spot.
4. ' Motive behind the occurrence was that about 1-1/2 month ago, Iftikhar Ahmad deceased injured Muhammad Amjad accused, for which, a case was registered at Police Station Kunjah and Iftikhar Ahmad was on bail in that case. Due to this grudge, Muhammad Amjad etc. Accused persons after due consultation has committed the murder of Iftikhar Ahmad deceased.
4. After receiving information about the occurrence, Ghulam Jaffar Chhena Inspector/S.H.O.
5. (P.W.13) reached at the spot, recorded the statement of complainant Exh.PC, inspected the dead body of Iftikhar Ahmad deceased, prepared inquest report Exh.PJ and injury statement Exh.PG, then, inspected the site and took into possession blood-stained earth from the spot vide recovery memo Exh.PD, collected 10 crime empties of 8-MM rifle P.3, nineteen crime empties of .44 bore rifle p.4, eight crime empties of 30-bore pistol p.5 vide recovery memo Exh.P.E, recorded the statements of the witnesses under section 161, Cr.P.C. On 22-10-2003 he arrested accused Muhammad Amjad, Khawar Hussain, Safdar Abbas and Khalid Javaid. During the course of investigation on 4-11-2003 accused Muhammad Amjad got recovered rifle .44 bore p.8, which was taken into possession vide recovery memo Exh.P.M, then accused Khalid Javaid got recovered pistol .30-bore P.9, which was taken into possession vide memo Exh.PN, similarly accused Safdar Abbas got recovered rifle .44- bore , P-10, which was taken into possession vide memo Exh.PP. On the same day, Khawar Hussain accused also got recovered rifle .44-bore P.11, which was taken into possession vide recovery memo Exh.PQ. On 5-11-2003 the said accused persons were sent to judicial lock-up. On 12-11-2003 accused Muhammad Asif alias Atti and Shabbir Ahmad were arrested by him and on the same day, Muhammad Asif alias Atti got recovered rifle 7-MM P.7, which was taken into possession, vide recovery memo Exh.PB. On the same day, accused Shabbir Ahmad also got recovered pistol .30- bore, which was taken into possession vide recovery memo Exh.PA. On 13-11-2003 both the accused were sent to judicial lock-up. After completion of remaining formal investigation, all the accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 13 witnesses in all, thereafter, learned D.D.A tendered in evidence report of Chemical Examiner Exh.PS, report of Serologist Exh.PT, report of F.S.L Exh.PU, report under section 173 Cr.P.C. In case F.I.R. No,420 dat ' 13-8-2003 and closed*the prosecution case, then, the statements of the accused/appellant under section 342 Cr.P.C. Was recorded in which he pleaded innocence. After conclusion of trial, the accused/appellant was convicted and sentenced as stated above by the learned trial Court.
6. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C and other relevant material available on record, learned counsel for the appellants submits that F.I.R. Was recorded after due deliberation, consultation and the net was thrown widen inasmuch as whole family of the accused were implicated so that no person is left behind to pursue the case. Adds that the appellant was implicated in the supplementary statement, which shows deliberation and consultation on the part of the complainant. Next submits that complainant P.W.3 and Ijaz P.W.4 were not present at the spot. Learned counsel has also pointed out some discrepancies in the statements of complainant and Ijaz P.W.4.
6. ' It is argued that the prosecution has not been able to prove the motive as alleged in the complaint. It is maintained that there is conflict between ocular account and the medical evidence as the number of the injuries on the person of the deceased do not coincide with number of accused nominated in the F.I.R. Adds that the eyewitnesses are closely related to the deceased and in such a situation, the evidence of the interested witnesses must have been corroborated by independent evidence, which fact is missing in this case.
7. ' Learned counsel argues that the investigator during the course of investigation, found eight accused persons as innocent which fact sufficiently demonstrates that it is a case of false implication.
8. ' The nutshell of arguments of learned counsel for the appellant is that the prosecution has failed to prove its case against the appellant and he is entitled to acquittal.
9. ' Learned Deputy Prosecutor- General assisted by learned counsel for the complainant submits that occurrence having taken place in broadday-light and both the parties known to each other, there was no question of mistaken identity. Further submits that the occurrence has taken place at 8.30 a.m on 5-10-2003, while the matter was reported to the police at 10.00 a.m though distance between the police station and place of occurrence is 11 miles, so according to the learned counsel it is a case of promptly lodged F.I.R. It is maintained that the trial Court by applying the principle of sifting grain from the chaff has acquitted some of the accused and their acquittal cannot adversely affect the prosecution story so far as the convict is concerned. It is added that ocular account furnished by the uninterested witnesses is fully corroborated by medical evidence as also recovery of fire-arms on the pointation of the convict/appellant.
10. ' We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. The deceased in this case is Iftikhar Ahmad, real brother of Ghulam Rasool complainant. The ocular account was furnished by Ghulam Rasool complainant and Ijaz alias Jalal examined as P.W.3 and P.W.4 respectively. Dr. Farooq Ahmad P.W.7 at 3.50 pm on 5-10-2003 conducted the postmortem examination on the dead body of the deceased and found 11 injuries on the person of deceased.
11. ' In the instant case, occurrence had taken place at 8.30 a.m. On 5-10-2003 while the matter was reported to the police at Bhagarianwala by Ghulam Rasool P.W.3 at 10-00 a.m. On the same day through written complaint Exh.PF and the formal F.I.R. Ex.PC/1 was recorded at 11-00 a.m. By Muhammad Riaz, S.I. So it is a case of promptly lodged F.I.R.
12. ' According to the complainant on the day of occurrence, he was cutting fodder while Iftikhar Ahmad his brother was coming to him to take the fodder. It was alleged by him (complainant) that at about 8.30 a.m. When Iftikhar Ahmad reached near the crop where the complainant was cutting the fodder, Muhammad Amjad, Muhammad Afzal, Mazhar Hussain, Rashid Ahmad, Shahid Iqbal and Khawar Hussain all armed with fire arms along with four unknown persons emerged there. The complainant submitted that out of the aforesaid accused Muhammad Amjad raised lalkara by saying that Iftikhar should be taught a lesson for injuring him and simultaneously Bred a shot, which landed on the right flank of Iftikhar, who fell down. It was, further alleged that when Iftikhar Ahmad was lying on the ground, Muhammad Amjad, Muhammad Afzal,( Mazhar Hussain, Khalid Mehmood, Saqib, Safdar, Bashir Ahmad, Rashid Ahmad, Shahid Iqbal, Khawar Hussain and four unknown persons fired at the victim, which hit on different parts of his body. The victim was also alleged to have been given butt blows by the accused. The occurrence was alleged to have been witnessed by Ghulam Rasool complainant, Ejaz Ahmad alias Jalal and Muhammad Yousaf and according to the complainant Iftikhar Ahmad, succumbed to his injuries at the spot.
13. ' The motive alleged was that 1-1/2 months prior to the occurrence Iftikhar Ahmad, now deceased had injured Muhammad Amjad for which a criminal case was registered and Iftikhar Ahmad was on bail in that case, therefore, the accused in order to take revenge committed the murder of the deceased.
14. ' To prove the motive, apart from oral evidence furnished by P.Ws.3 and 4, the prosecution produced Exh.PV (photostat copy of report under section 173, Cr.P.C).
15. ' A perusal of it shows that Muhammad Amjad co-accused of present appellant tried separately was complainant of case F.I.R. No,430 dated 13-8-2003 registered with Police Station Kunjah, District Gujrat and the role scribed in the said case to Iftikhar Ahmad, deceased in this case was that he fired a shot, which landed on the head of Muhammad Amjad, co-accused of the present appellant while the instant occurrence had taken place on 3-10-2003. The appellant is neither the witness nor the accused in the motive case so the prosecution has miserably failed to prove the motive against the appellant.
16. ' The appellant was admittedly a nominated in the supplementary statement recorded on 1-11- 2003 with regard to an occurrence having taken place on 5-10-2003, it means that the supplementary statement implicating the present appellant was recorded after about 26 days of the alleged occurrence. First Information Report is a document, which is entered on B the complaint of the informant into a book, maintained at the police station under section 154, Cr.P.C. First Information Report is signed/thumb-marked by the informant while the supplementary statement is recorded under section 161, Cr.P.C. And is not signed. F.I.R brings the law into motion, the police under section 156, Cr.P.C. Starts investigation of the case, any statement or further statement of the first informant record during the investigation by police would neither by equated with First Information Report nor read as part of it. At the most it can be treated like a statement of the witness recorded under section 161, Cr.P.C. The supplementary statement was recorded after 26 days of the occurrence on account of delay, its veracity becomes doubtful. We may further observe that there is no provision in whole of the Criminal Procedure Code about the supplementary statement. The argument of learned counsel for the appellant that supplementary statement is always recorded in order to till in the lacunas of the prosecution case has a force.
17. ' Here we may, with advantage reproduce few lines from the cross- examination of Ijaz alias Jalal appeared as P.W.4 (eye-witness):- ' "Description of unknown persons was not given to the police by me. I did not join identification parade. I do not know as to how many brothers and sisters Shabbir Ahmad accused has. The name of father of Shabbir accused is Bashir"
18. ' According to F.I.R., Bashir Ahmad father of the present appellant was present at the spot and resorted to firing which landed on different parts of body of the deceased. It means that the complainant was knowing Bashir Ahmad accused (since acquitted by the trial Court). Had the present appellant been present at the spot, he being real son of Bashir Ahmad accused, the complainant must have known him and could not have missed Shabbir Ahmad as assailant while lodging the F.I.R.
19. ' Shabbir appellant is real son of Bashir Ahmad acquitted accused so the possibility of false implication of the present appellant being father and son also cannot be ruled out.
20. ' From the above resume of the facts and the evidence brought on record, we are of the considered opinion that the case as set up by the prosecution against the appellant is of doubtful nature, so while extending the benefit of doubt, we accept the appeal filed by convict appellant, set aside the conviction and sentence recorded against him by the trial Court vide impugned judgment and acquit him of the charge. Shabbir Ahmad appellant is jail and he shall be released forthwith if not required to be detained in any other case.