' KHAWAJA MUHAMMAD SHARIF, C.J.---This judgment will dispose of Criminal Appeal No,70 of 2005 filed by Munir Ahmed, appellant, who was convicted by learned Additional Sessions Judge, Talagang District Chakwal vide his judgment dated 22-2-2005 under section 302(b), P.P.C. To death.
"Murder Reference No, 126 of 2005" for confirmation or otherwise of death sentence of Munir Ahmed appellant and Criminal Revision No, 177 of 2005 filed by Sher Muhammad complainant against Munir Ahmed respondent shall also be disposed of through this single judgment.
2. Brief facts of the case as disclosed by Sher Muhammad complainant are that on 10-3-2003 at about 1-00 p.m. Noor Hassan son of Mian Muhammad (deceased) son-in-law of the complainant was standing in the street outside the house of the complainant situated in Mohalla Kamal Lawa, when the accused Munir Ahmed armed with "Tesi", Muhammad Imran armed with "Gaz" and Irfan armed with "Tesi" came there. Soon thereafter, the accused Munir Ahmed inflicted Tesi blow on the head of Noor Muhammad deceased who fell down. In the same condition the accused Muhammad Imran and Muhammad Irfan inflicted injuries. The occurrence was witnessed by Tahir Hussain, Muhammad Riaz and Dost Muhammad besides the complainant. Allegedly on seeing the witnesses, the accused fled away from the spot.
' The motive was stated a dispute of "Rishta" between the complainant and the accused.
3. The investigation of the case was taken over by Abdur Rauf S.-I. P.W.10. He after receiving information about the occurrence reached hospital, examined dead body of the deceased, prepared inquest report Exh.PJ, proceeded to the place of occurrence and recorded the statements of eye-witnesses under section 161, Cr.P.C. At the spot. On 27-4-2003 he arrested Muhammad Munir and Muhammad Irfan accused and on 1-5-2003 both the accused while in custody got recovered "Tesies" P-5 and P-6 which were taken into possession vide memo. Exh.PK and Exh.PL respectively. However after completion of formal investigation, the accused were challaned to face the trial.
4. At the trial, the prosecution in order to prove its case produced ten witnesses in all, thereafter, learned SPP after giving up Muhammad Riaz, Dost Muhammad, Mumtaz Akhtar and Ghulam Murtaza P. Ws. Being unnecessary closed the prosecution evidence. Then the statement of the accused under section 342, Cr.P.C. Was recorded in which he pleaded his innocence. However, after conclusion of the trial, learned trial Court convicted and sentenced the appellant as stated above.
5. After having read the entire prosecution evidence, statement of the accused recorded under section 342, Cr.P.C. And other material available on record, learned counsel for appellant submits that there is a delay of about 23 days in lodging the F.I.R. Without any explanation, that on the same set of evidence two co-accused namely Muhammad Imran and Muhammad lrfan have been acquitted by the learned trial Court, that there is clear conflict between ocular account and medical evidence because it was stated in the F.I.R. By the complainant that the present appellant including co-accused namely Muhammad Imran and Muhammad Irfan caused injuries to the deceased but according to the post-mortem report there is only one injury on his person; that it was an un-witnessed occurrence but later on the complainant with the active connivance of the police got registered a false case against the appellant; that before learned trial Court the place of occurrence has been changed from outside the house of the complainant to the G.T road which was at a distance of 1-1/2 kilometer; that no weapon of offence has been recovered on the pointation of appellant; that no appeal against the acquittal of co-accused has been filed before this court either by the complainant or by the State; that no record from any hospital of Mianwali has been placed in report under section 173, Cr.P.C. During the course of investigation; that no Investigating Officer had recorded the statement of deceased in his life time when he was in an injured condition; that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt and he is entitled to acquittal.
6. On the other hand, learned DPG submits that the delay in lodging the F.I.R. Is natural because the deceased was in a very precarious condition, he was under treatment in the hospital and the complainant remained busy for his treatment, that it was the appellant who got recovered weapon of offence from the house of one Sher Khan; that it was a case of broad-daylight occurrence; that parties were known to each other and there was no reason to falsely implicate the present appellant; that the prosecution has proved its case against the appellant beyond any shadow of doubt and the appeal filed by him is liable to be dismissed.
7. We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. Occurrence in this case had taken place on 10-3-2003 at 11-00 a.m. Within the area of Police Station Lawa District Chakwal while the matter was reported to the police on 3-4-2003 at 11-00 a.m by Sher Muhammad complainant/father in law of Noor Hu3sain deceased vide Rapt No,8 dated 21-3-2003 as mentioned in the F.I.R. Exh.PA. Three accused persons including appellant were named in the F.I.R. According to F.I.R., Munir Ahmed appellant was armed with "Tesi" while Muhammad Imran armed with "Gaz" whereas Muhammad Irfan was armed with "Tesi". The role which was attributed to appellant was also attributed to Muhammad Irfan above said co-accused. There was only one injury on the person of the deceased according to Doctor Nazir Ahmed P.W.4 who conducted post-mortem examination on the dead body of deceased on 10-4-2003, so the ocular account is not corroborated by medical evidence. On the same set of evidence two co-accused namely Muhammad Imran and Muhammad Irfan, who are maternal nephews of the appellant, have been acquitted by learned trial Court and no appeal against their acquittal has been filed either by the complainant or by the State before this court. As far as weapon of offence "Tesi" recovered on the pointation of the appellant is concerned, we may state here that it was got recovered from the house of one Sher Muhammad and even that "Tesi"' was not found to be stained with human blood so there is no corroboration to the ocular account in this regard. We would not like to discuss further this matter as in our considered opinion it is a case of no evidence, so the result of above discussion is that the prosecution has miserably failed to prove its case against appellant beyond any shadow of doubt. Resultantly, the appeal filed by the appellant is accepted and the conviction and sentence recorded against him by the learned trial Court vide impugned judgment is set aside. The death sentence of the appellant is "not confirmed" and the murder reference is answered in negative. The appellant is behind the bars and he shall be released forthwith if not required to be detained in any other case.
' For the reasons recorded above, the revision petition filed by the complainant for grant of compensation is also dismissed.