'IJAZ AHMAD CHAUDHRY, J.---We, through this consolidated judgment, intend to dispose of Murder Reference No,661 of 2003 sent by the learned trial Court under section 374, Cr.P.C. Seeking confirmation of death sentence awarded to Imran alias Mani Butt convict-appellant, Criminal Appeal No,1126 of 2003 filed by Imran alias Mani Butt appellant against his conviction and sentence and Criminal Appeal No,1351 of 2003 filed by Muhammad Jameel appellant/ complainant against the acquittal of Mst. Farah Nazir respondent, jointly as all these matters have arisen from the same judgment dated 5-6-2003 rendered by the learned Additional Sessions Judge, Lahore whereby Imran alias Mani Butt accused-appellant has been convicted under section 302(b), P.P.C. As Taz'ir and sentenced to death for committing `qatl-i-amd' of Muhammad Nadeem deceased with direction to pay a sum of Rs,50,000 to the heirs of the above-said deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to further undergo imprisonment for six months. However, through the same judgment, co-accused namely Mst.
Farah Nazeer was acquitted of the charges by the learned trial Court while extending benefit of doubt to her.
2. Succinctly the facts of the prosecution case setup in the F.I.R. (Exh.PC/1) got lodged by Muhammad Jameel complainant (P.W.9) are that he used to deal in the business of selling milk. On 11-5-2002 at about 10-00 a.m., the complainant along with his brother Muhammad Nadeem deceased, Muhammad Sarwar (P.W.8) and Imran alias Mani Butt deceased reached a PCO situated in St. No,17, New Shalimar Colony, Shera Kot, Lahore, where, Muhammad Nadeem deceased and Imran alias Mani Butt appellant went inside the PCO in order to make a telephone call. Imran Butt appellant made a telephonic call to Mst. Farah Nazeer acquitted accused and started talking to her. Thereafter, Imran alias Mani Butt appellant handed over the receiver of the telephone set to Muhammad Nadeem deceased, who started talking. In the meanwhile, Imran appellant took out a pistol .30 bore from the fold (Naifa) of his Shalwar and made fire shot on the back side of head of Muhammad Nadeem deceased, who fell down in the PCO smeared with blood. The complainant and Muhammad Sarwar tried to apprehend the accused but he pointed out pistol towards them and asked them to take aside, otherwise, he would make fire shot to them and succeeded in fleeing away from the spot. Muhammad Nadeem deceased expired at the spot.
The complainant left Muhammad Sarwar (P.W.8) with the dead body and was going to police station to report the matter when Khadim Hussain, A.S-I confronted him in the ways who recorded his statement.
3. The motive behind the occurrence was alleged to be that about 5/6 years prior to the occurrence, Muhammad Nadeem deceased had contracted marriage with Farah acquitted accused but divorced her after one year of marriage. Then about two years prior to the occurrence, Muhammad Nadeem deceased had contracted second marriage and out of said wedlock he was having a son. It was claimed that Mst. Farah Nazir used to extend threats to the in-laws of Muhammad Nadeem deceased and all the other close relatives of Muhammad Nadeem deceased including the complainant. Some time prior to the occurrence, relations had developed between Imran and Farah. Imran was also friend of Muhammad Nadeem deceased. The complainant claimed that Imran Butt appellant had committed murder of .Nadeem deceased on the asking of Mst. Farah acquitted accused.
4. The investigation of this case was conducted by Munir Ahmad, S.-I. (P.W.13) and during the investigation, the dead body of the deceased was inspected, injury statement and inquest report were prepared, statements of the witnesses under section 161, Cr.P.C. Were recorded, the place of occurrence was inspected, bloodstained earth was secured, rough site-plan of the place of occurrence was prepared, the dead body of the deceased was sent to the mortuary for autopsy, the last-worn clothes of the deceased were received, a formal site-plan of the place of occurrence was got prepared, the appellant was arrested on 15-5-2002 and recovery of pistol (P.1) was effected from his possession, vide recovery memo (Exh.PD), and after completion of the investigation report under section 173, Cr.P.C. Was submitted in the Court.
5. At the commencement of the trial the learned trial Court after supplying the requisite documents required under section 265-C, Cr.P.C. To the appellant and the acquitted accused framed the charge under sections 302/109, P.P.C. Against them on 10-8-2002, to which they pleaded not guilty and claimed to be tried.
6. During the trial the prosecution produced as many as thirteen witnesses in support of its case.
The ocular account of the incident in question was furnished by Muhammad Sarwar (P. W.8) and Muhammad Tamil complainant (P.W.9) who also deposed about the motive while the medical evidence was provided by Dr. Muhammad Shahid Akhtar (P.W.1), who on 12-8-2002 at 9-00 a.m.
Had conducted the post-mortem examination on the dead body of Muhammad Nadeem deceased while P.W.7 Younis Bokhari, Draftsman, on the pointing out of the P.Ws. And on the instructions of the police prepared the scaled site plans. Zaka Ullah Constable (P.W.5) had escorted the dead body of Muhammad Nadeem deceased to mortuary for autopsy while Muhammad Nawaz, S.-I. (P.W.13) 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 formal in nature.
7. In their statements recorded under section 342, Cr.P.C. The appellant and the co-accused had denied and controverted all the allegations of fact levelled against them by the prosecution and also professed their innocence. However, to a question that "why this case against you and why the P.Ws. Deposed against you?, Imran alias Mani Butt appellant replied in the following terms:-- " I am victim of this case. It was blind murder. Nobody from the P.Ws. Was present at the time of occurrence at the place of occurrence nor they had seen the occurrence. Actually this occurrence was reported by one person to the Police on Emergency Phone No,15 vide rapput No,7 in which the Informer stated that some unknown persons shot dead some one at P.C.O, situated at street No,7, near Hamza sweet shop, Gulshan Ravi, Lahore. Later on, the dead body was identified and the relatives of the deceased in collusion with the local police concocted this false story. I am innocent and the complainant and other P.Ws. Are interested witnesses who involved me in this case just to blackmail me. They are closely related to each other."
'In reply to the aforesaid question, acquitted accused also professed her innocence. However, they did not opt to make statements on oath under section 340(2), Cr.P.C., but they produced Mian Muhammad Tariq (D. W.1) in their defence.
8. Upon conclusion of the trial the learned trial Court after 'finding the prosecution's case against the appellant to have been proved beyond reasonable doubt, he was convicted and sentenced as mentioned and detailed above. Hence, all these matters before this Court.
9. The learned counsel for the appellant contends that both the eyewitnesses were chance witnesses and Muhammad Sarwar P.W.8 was resident of Tehsil Ferozewala, who had not shown any reason for his being present at the spot; that postmortem examination on the dead body of Muhammad Nadeem deceased was conducted with the delay of about 22 to 24 hours after the occurrence, which shows that the F.I.R. Was not recorded as claimed by the prosecution; that F.I.R.
Was got registered after consultation and names of the accused were mentioned after manipulation; that the medical evidence is in contradiction with the ocular account; that the report of Forensic Science Laboratory is not believable as the empty had been dispatched to the Forensic Science Laboratory after the arrest of the appellant and even after the alleged recovery of the weapon from the appellant; that there are contradictions on material points in the statements of both the eye-witnesses; that the motive was not proved and as such appeal filed by Imran alias Mani Butt appellant may be accepted.
10. On the other hand, learned counsel for the complainant and the learned Deputy Prosecutor- General have maintained in unison that the eye-witnesses had no enmity or grudge to falsely implicate the appellant in the present case; that the appellant was the single accused and substitution of a single accused is a rare phenomena; that the medical evidence has fully supported the prosecution story; that recovery from the appellant according to the Forensic Science Laboratory was positive; that F.I.R. Was got registered after the incident promptly; that names of these accused were duly mentioned and there was no question of misidentity of the accused and the prosecution had succeeded in proving the case beyond any shadow of doubt not only against Imran alias Mani Butt appellant but also against the acquitted accused, who may be convicted and sentenced in accordance with law as her acquittal has caused serious miscarriage of justice.
11. We have heard the learned counsel for the parties and also perused the record with due care and caution.
12. The occurrence in the present case according to the prosecution had taken place on 11-5-2002 at 10-00 a.m. At.PCO situated in street No,17, New Shalimar Colony, 2-00 km. Away towards East from Police Station Shera Kot, Lahore while statement of Muhammad Jamil complainant (P.W.9) according to the prosecution was recorded at 10-30 a.m. On 11-5-2002 at Pull Ganda Naala 60 feet Road, Shera Kot, Lahore, on the basis of which formal F.I.R. (Exh. PC/1) was recorded on the same day at 10-45 a.m. However, post-mortem examination in the present case was conducted by P.W.1 Dr. Muhammad Shahid Akhtar, on 12-5-2002 at 9-00 a.m. And duration observed by the doctor between death and post-mortem examination was 22 to 24 hours. The delay in A conducting the post-mortem examination is sufficient to draw an inference that F.I.R. Was not recorded with such promptitude and if the F.I.R. was recorded 'at 10-45 a.m. On 11-5-2002 then post-mortem examination could have been conducted much earlier and there is every possibility that the F.I.R.
Was not recorded at the time given by the prosecution. In Atta Muhammad's case 1995 SCM R 599 their lordships observed that the time of recording of F.I.R. Is not always genuine, but the police after learning about the commission of the occurrence kept the space in the daily diary and page in the Registrar F.I.R. Blank for incorporating therein the gist of information, the factum of registration of the case and the detailed report subsequently in the light of the preliminary investigation. Keeping in view the above said facts and circumstances, it can safely be presumed that the F.I.R. Was recorded after the preliminary investigation, which cannot be used as a corroborative piece of evidence to the ocular account, but the same has to be taken into consideration with due care and caution.
13. To prove the ocular account the prosecution produced Muhammad Sarwar P.W.8 and Muhammad Jamil complainant P.W.9. Muhammad Jamil complainant P.W.9 was real brother of Muhammad Nadeem deceased while Muhammad Sarwar was maternal uncle of the deceased. So both the eye-witnesses were related inter se and with the deceased closely. No doubt mere relationship of the eye-witnesses is not sufficient to declare them as interested witnesses and there was no previous enmity between the parties. However, this alone is not sufficient to believe the witnesses straightaway, but they are bound to show that they were present at the spot and the occurrence had taken place in the manner narrated by them. Muhammad Jamil complainant (P.W.9) claimed that he was resident of street No,3, House No,3, Rehmat Park Gulshan Ravi, Lahore while the incident had taken place at a PCO situated in street No,17, New Shalimar Colony. During the cross-examination, he stated that the place of incident was at a distance of one kilo meter from his house. So he was a chance witness as the occurrence had not taken place where he could be present as per his usual routine. He also claimed to have driven the wagon at route No,42 besides he was also dealing in the business of milk along with the deceased and their father, but none of the places of their business were near the place of incident. He failed to give any specific reason for accompanying Muhammad Nadeem deceased and the appellant to the PCO where the deceased had gone to make telephonic call to Mst. Farah Nazir acquitted accused along with Muhammad Imran alias Mani Butt appellant. Similarly, P.W.8 Muhammad Sarwar was resident of village Gham Kay Tehsil Ferozewala District Sheikhupura and was Zamindar by profession. He also failed to disclose any reason for being present at the spot. P.W.9 Muhammad Jamil complainant during the cross-examination explained that the appellant did not use to visit their house. So accompanying of the appellant with the deceased at the time of incident was also doubtful. During the cross-examination they also failed to satisfy that they were present at the spot at the time of incident. They also had not explained any reason for accompanying Muhammad Nadeem deceased to the place of incident in the morning. We are satisfied that P.Ws.8 and 9 had not witnessed the occurrence as their presence at the spot is not supported from the facts and circumstances of the case and the F.I.R. Was not recorded with promptitude as observed above. So the ocular account is not found trustworthy, which cannot be relied upon for recording conviction in a case of capital sentence without independent corroboration.
14. So far as the medical evidence is concerned, according to the P.Ws. Muhammad Nadeem deceased and Muhammad Imran alias Mani Butt appellant had gone inside the PCO and telephonic call was made to Mst. Farah Nazir acquitted accused, ex-wife of Muhammad Nadeem deceased and when the telephone set was handed over to the deceased, the appellant made a fire at the deceased. In such a situation the appellant and the deceased must be standing very near to each other when the firing was made at the deceased by the appellant, but, P.W.1 Dr. Muhammad Shahid Akhtar did not observe blackening or burning on the injuries of the deceased.
Even otherwise, P.W.1 Dr. Muhammad Shahid Akhtar during the cross-examination explained that close range fire usually caused blackening and burning and non-mentioning of burning and blackening on the injuries shows that the deceased was not fired at from such a close distance as claimed by the eye-witnesses. As such the ocular account is not fully supported by the medical evidence and the prosecution failed to show that the occurrence had taken place in the manner narrated by the eye-witnesses.
15. The recovery of weapon from appellant was legally inconsequential as it was the case of prosecution itself that the incident in the present case had taken place on 11-5-2002 at 10-00 a.m.
And empty was recovered from the spot on the same day while the appellant was arrested on 15- 5-2002. The empty was sent to the office of Forensic Science Laboratory on 18-5-2002 while the pistol which was with the appellant at the time of his arrest was sent to the office of Forensic Science Laboratory on 22-5-2002 and as such the empty was sent after the arrest of the accused and after the recovery of weapon from him. The accumulative effect of the above discussion is that even the positive report of Forensic Science Laboratory (Exh.PO) cannot be relied upon and used as corroborative piece of evidence to the ocular account, which has even otherwise been discarded by us in the preceding paras.
17. For what has been discussed above, we have come to an irresistible conclusion that the prosecution had not been able to prove its case against Imran alias Mani Butt appellant beyond any shadow of doubt. Hence, Criminal Appeal No,1126 of 2003 filed by Imran alias Mani Butt appellant is hereby accepted the impugned judgment of conviction and sentence recorded by the learned trial Court against the appellant is set-aside and he is acquitted of the charge by extending him the benefit of doubt, who shall be released from jail forthwith, if not required in any other criminal case.
18. Consequently, the death sentence awarded to Imran alias Mani. Butt, convict-appellant, is not confirmed and Murder Reference No,661 of 2003 is replied in the negative.
19. So far as Criminal Appeal No,1351 of 2003 filed by Muhammad Jameel complainant against the acquittal of Mst. Farah Nazir respondent is concerned, we have already disbelieved the prosecution story and the main accused Imran alias Mani Butt has been acquitted by us. Thus we do not find any illegality committed by the learned trial Court while recording acquittal of the respondent/accused and the appeal having no merit is dismissed.