Kh. Muhammad Sharif, C.J.--This judgment will dispose of Criminal Appeal No, 463/2004 filed by Nazar Hussain Shah and Criminal Appeal No, 290/2004 Sajid Hussain Shah filed by appellants, who were convicted and sentenced by learned Addl. Sessions Judge, Chakwal vide impugned judgment dated 17.5.2004 as under:- Nazar Hussain Shah Under Section 302(b) IPC, Death and to pay compensation of Rs, 200,000/- (two lacs or in default six months S.I.
Sajid Hussain Shah.
Under Section 302(b) PPC to undergo imprisonment for life and to pay compensation Rs, 200,000/- (two lacs) to the legal heirs of the deceased or in default thereof six months S.I.
Murder Reference No, 393 of 2004 for confirmation or otherwise of death sentence of Nazar Hussain Shah appellant and Criminal Revision No, 233 of 2004 filed by the complainant shall also be disposed of through this single judgment.
2. Brief facts of the case as disclosed by Ausaf Hussain Shah complainant in his statement Ex. PA are that he is resident of Manakpur and is owner of Vehicle No, PRG/5369, which is drawn by his son Shahid Hussain Shah from Miani to Chakwal and as usual today i,e, 30.6.1999 early in the morning he went on Miani stop with the vehicle and after sometime the complainant along with Ulfat Hussain Shah and Samar Hussain Shah arrived at Sardhi Turn Stop in connection with going to Chakwal and sat there, awaiting his vehicle whereas Nazar Hussain Shah and Taajab Hussain Shah also followed them, arrived there and sat at a little distance from the complainant towards Miani at the side of the road, behind the trees. At about 7.15 a.m. son of the complainant arrived on the vehicle of the complainant along with passenger from the side of Miani and as soon as he reached near Sardhi Turn, within the area of Kalar Kahar, Nazar Hussain Shah and Taajab Hussain Shah signaled him to stop the vehicle and both of them took out .30-bore pistols from their respective folds and Nazar Hussain Shah accused in a loud voice directed him to come down, on which son of the complainant de-boarded from the vehicle, on which both of the above said accused started indiscriminate firing with their pistols on the son of the complainant, which hit on different parts of his body and also hit Muhammad Nishan who was sitting in the vehicle and also hit on the right side of the vehicle upon which son of the complainant fell down in an injured condition whereas the occurrence was witnessed by Ulfat Hussain Shah and Samar Hussain Shah who along with the complainant ran towards the place of occurrence but both the accused ran towards the village.
The motive behind the occurrence was that the was criminal complainant between the complainant and the accused.
3. The investigation of this case was taken over by Muhammad Sarfraz SI PW.8. On the receipt of information regarding the occurrence, he reached at the place of occurrence and recorded statement of complainant and sent the same to the police station for registration of formal FIR, inspected the place of occurrence and secured blood-stained earth vide memo. Ex.PB. He took into possession ten empties vide memo. Ex.PE and also took into possession Wagon No, 5369-PRG vide memo. Ex.PF, prepared injury statement of Shahid Hussain deceased Ex.PK and Muhammad Nishan Ex.PL and sent both of them to the hospital for medical examination whereas Shahid Hussain succumbed to the injuries in the way to the hospital. He prepared inquest report EX.PM and sent the dead body to the mortuary for post-mortem examination. He tried to arrest both the accused but could not succeed and got issued warrant of arrest and proclamation. The investigation of this case was then entrusted to Ghulam Ali ASI/PW-7, who on 09.06.2002 arrested Nazar Hussain and Sajid Hussain accused. On 20.6.2002 Nazar Hussain Shah accused got recovered pistol P.1 while Sajid Hussain accused also got recovered pistol P.6 which were taken in possession vide memo. Ex.
PC and Ex. PG respectively. He prepared site-plan Ex. PH and Ex.PJ of the place of recoveries of pistols and after completion of formal investigation the accused were sent to face the trial.
4. At the trial, the prosecution in order to prove its case produced nine prosecution witnesses in all, thereafter, learned SPP after tendering in evidence report of Chemical Examiner Ex.PBB and that of Serologist Ex.PCC closed the prosecution case, then, the statements, of the accused were recorded u/S. 343 Cr.P.C. in which they pleaded false implication. However, after conclusion of trial, the appellants were convicted and sentenced as mentioned above by the learned trial Court.
5. After having read the entire prosecution evidence, statements of the appellants recorded u/S. 342 Cr.P.C. and other relevant material available on record, learned counsel for Nazar Hussain Shah appellant submits that he had no motive against the deceased, if there was any motive on his part to commit the murder that was against the eyewitnesses. Had they been present at the spot, Nazar Hussain Shah must have attacked them, that eye-witnesses have not given any reason for their presence at the spot, it is also unnatural when the deceased had left the house at 6.15 a.m. while driving his wagon there was no necessity on the part of the eye-witnesses to follow him from their house on foot to the place of occurrence, that case of prosecution was that the deceased Was asked by the accused to come out from the vehicle who came out on his asking and thereafter accused fired at him then there could not have been any injury on the injured PW at that time. Learned counsel submits that there was no occasion on the part of the accused to fire at the PW who was sitting in the vehicle, that Muhammad Nishan injured was not produced by the prosecution, that in the site-plan there was distance of 52 feet from point 1 and point 2 but there was no trail of blood between these two places, that there is no report of Forensic Science Laboratory on the record. Learned counsel has drawn our attention to the recovery memos. Ex.PD and Ex.PE of crime empties recovered from the spot where offences u/S. 302, 324/34 PPC have been mentioned. Learned counsel has referred to the statement Ex.DA of. Ulfat Hussain Shah PW-4 where offences u/Ss. 302, 324/34 PPC have been mentioned and so is the statement of Samar Hussain Shah. Learned counsel submits that this shows that these statements were recorded after the death of the deceased otherwise there should not have been mentioned Section 302 PPC. He submits that distance of Point 1 and point 5 i,e, place of receiving the injuries of the deceased and place from where the accused fired, is 10 feet while fire-arm injuries received by the deceased bears burning and scotching, that ocular account is not confidence inspiring, that there was deep routed between the parties.
6. Learned counsel for Sajid Hussain shah appellant submits that the name of appellant is not mentioned in the FIR but in fact name of Taajab Hussain Shah is mentioned there, that appellant had no motive to take part in this occurrence, that there was no previous background of the enmity between the appellant and the complainant party, that appellants was found to be innocent during course of investigation, that prosecution has failed to prove the case against the appellant and he is entitled to acquittal.
7. On the other learned DPG assisted by learned counsel for complainant submits that it was a broad day light occurrence, that both the appellants are named in the FIR with specific roles, that ten crime empties were recovered from the spot which proves that both the appellants were armed with pistols and participated in the occurrence, that ocular account is corroborated by the medical evidence, that both the appellants remained absconder for about long three years, that mere non-prove of motive does not give license to the accused for acquittal, that mere non- production of injured PW does not render the case of the prosecution doubtful, that non-recovery of trail of blood from Point 1 to 5 also does not render the case of prosecution doubtful because after the occurrence people gathered the spot, that non-mentioning of specific injury also does not make the case of prosecution doubtful. Reliance is placed upon 2003 SCM R 567 and 2008 SCM R 1228. He further submits that villagers can't give the correct distance between assailants and the deceased and in this regard reliance is placed upon PLD 2002 SC 786. Adds that the empties could not have been matched with the pistols recovered on the pointation of appellants because weapons of. offence were recovered from them three years after the occurrence. Reliance is placed on PLD 2004 SCM R 872. Further submits that prosecution has proved its case against the appellants beyond any shadow of doubt and the appeals filed by them are liable to be dismissed.
8. We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. Occurrence had been taken place on 30.6.1999 at 7.15 a.m. while the complaint Ex.PA was recorded at the spot on the same day at 8.00 a.m. The complainant in this case is Ausaf Hussain Shah PW-2 father of Shahid Hussain Shah deceased. Ulfat Hussain Shah PW- 3 is an eyewitness/nephew of the deceased. Ten empty crimes were recovered from the spot vide memo. Ex.PE on 30.6.1999. Both the appellants were arrested on 9.6.2002 and they got recovered pistols on 20.6.2002, which were taken into possession vide memo. Ex.PC and Ex.PG. Doctor Khalid Mahmood Azadar PW-10 conducted medical examination on the person of Shahid Hussain in an injured condition on 30.6.1999, he found ten fresh injuries, Injuries Nos, 1, 4, 5, 6 and 10 were found with fire-arm while about the rest of the injuries, he does not disclosed with which weapon those were caused, neither the prosecution clarified the same. Muhammad Nishan injured also received three injuries on his person, Injury No, 2 was caused with fire-arm while Injuries Nos, 1 and 3 were accused by blunt weapon. The doctor also conducted post-mortem examination on the dead body of Shahid Hussain Shah deceased on the same date at about 8.00 p.m. The probable time between injuries and death was less than or equal to 6 to 8 hours and between death and postmortem was less than 6 to 8 hours.
After having heard learned counsel for the parties and going through the evidence available on record, we are of the view that as for as Sajid Hussain Shah is concerned, his name figures no where in whole of the FIR. Along with Nazar Hussain Shah, name of one Taajab Hussain Shah was mentioned as an accused in the FIR who fired along with Nazar Hussain Shah at the deceased but while making dishonest improvements by the witnesses before the learned trial Court, name of Sajjad Hussain Shah was given alias Taajab Hussain Shah. Moreover he was also found innocent by the police. We have gone through original MLR of Shahid Hussain Shah deceased where time of medical examination 9.00 a.m. has been altered to 10.00 a.m. or 11.00 a.m. Complainant who is father of the deceased, had he been present at the spot, his first anxiety could have been that he should take his injured son to hospital for medical treatment but he remained at the spot unless the I.O. conies at the spot, recorded his statement, prepared injury statement, then prepared recovery memo. of blood-stained earth and recovery memo. of ten crime empties from the spot but the deceased died after 6 to 8 hours and at the face of these recovery memos. Section 302 PPC was also mentioned, it means that these were prepared after the death of the deceased. Moreover these recovery memos. were never signed by the witnesses. When the deceased had taken his vehicle from his house at 6.15 a.m. what was the about the anxiety of the eyewitnesses to follow him on foot but no plausible explanation has come on record in this regard. As far as Sajid Hussain Shah appellant is concerned, he had no motive to attack on the person of the deceased. Ulfat Hussain Shah PW-4 stated in his cross-examination that he lodged FIR against Nazar Hussain Shah for disgracing the modesty of his sister and then he had to file a complaint for the reason that police had declared Nazar Hussain Shah innocent in that case so in order to take the revenge of that case possibility of false implication of Nazar Hussain Shah cannot be ruled out. Merely on the ground that appellants remained absconder for three long years, conviction on a capital charge neither can be awarded nor can be maintained unless the Court is satisfied with the prosecution evidence which could come from an impeachable source having intrinsic value which is not available in this case. Then Injuries No, 2. 3, 8, and 9 on the person of deceased were neither mentioned by the doctor whether these were caused with fire-. arm or with blunt weapon nor any body from prosecution side tried to explain in this regard. We have gone through MLR of Shahid Hussain deceased, these are lacerated wounds but no burning, no scotching or any blackening is available there. It was not the case of prosecution that Muhammad Nishan injured while sitting in the vehicle also received blunt weapon injury. We have tried our level best to see the prosecution case from all the angles but we are of the view that the prosecution has miserably failed to prove its case against the appellants beyond any shadow of doubt. Resultantly, the appeals filed by the appellants are accepted. The conviction and sentence recorded against them by the learned trial Court vide impugned judgment is set aside and they are acquitted of the charge. The death sentence of Nazar Hussain Shah is not confirmed and murder reference is replied in negative. Both the appellants are in jail and shall be released forthwith if not required to be detained in any other case.
The revision petition filed by Ausaf Hussain complainant against Nazar Hussain Shah etc. is dismissed for the reasons mentioned above.