' ABDUL SAMI KHAN, J.---Through this Appeal under section 410, Cr.P.C. Akbar Ali appellant has called in question the judgment dated 19-12-2005 handed down by the learned Additional Sessions Judge, Shakargarh, District Narowal wherein the appellant was convicted under section 302(b), P.P.C. For causing the death of Shahid deceased and was sentenced to imprisonment for life. He was also ordered to pay compensation of Rs,50,000 to the heirs of the deceased under section 544-A, Cr.P.C. Or in default of payment thereof to further undergo simple imprisonment for six months. Benefit of section 382-B, Cr.P.C. Was extended in favour of the appellant. The appellant has challenged his conviction and sentence through the above mentioned criminal appeal. It is important to mention here that initially this appeal was filed by two convicts but during pendency of the same co-convict namely Jamshaid alias Shahzada had kissed the dust, therefore, now the judgment is confined only to the disposal of appeal of Akbar Ali appellant.
2. According to the prosecution story as narrated in the F.I.R. The complainant was an agriculturist by profession and was residing at village Beri Minhasan. Out of his four sons, three including Shahid Ali were married. On 29-12-1998 at about 7-30 p.m. An unknown boy expressed his wish before Aamir son of the complainant to see Shahid Ali who was a school teacher. Aamir brought the matter into the knowledge of his father/complainant who inquired from him whether he knew the said boy but Aamir showed his inability and stated that he did not belong to their village. The complainant asked Aamir to wait for some time but he ignored and called Shahid Ali from his room and both of them went towards the gate together. Aamir then proceeded to the shop of Hafiz Gulzar situated near the outer gate of the house where Rehmatullah was already present. The complainant also followed his sons and in the light of bulb, lightened on the shop of Muhammad Khan Furniture Works, saw accused Akbar Ali, armed with Kalashnikov, Muhammad Rafique, armed with .30 bore pistol, Liaqat Ali, armed with rifle .244 bore sons of Muhammad Hussain, Jamshaid alias Shahzada son of Bashir Ahmad, armed with 8. MM resident of the village and one unknown man were standing and talking to his son Shahid Ali. Akbar Ali furiously shouted at Shahid Ali that why he managed a police raid upon him for which he should be taught a lesson. On which Akbar Ali fired burst with Kalashnikov and the bullets landed on the right hip and between two legs of Shahid Ali. Thereafter Shahzad made a rifle shot which hit Shahid Ali at his left buttock and upon receiving fire-shots he fell on the ground. After Shahid Ali had fallen down Muhammad Rafique accused gave a pistol fire-shot which landed on left thigh of Shahid Ali. Liaquat Ali fired a rifle shot which landed on the neck of Shahid Ali and passed through the left cheek. Then the assailants in order to create terror started firing towards the complainant's house who luckily escaped and the fires hit nearby shop and the electric pole installed thereat and ran away from the place of occurrence but when the complainant intended to attend his son Shahid Ali the assailant once again turned around and made firing upon which the complainant also returned back. When the accused went far away from the place of occurrence the complainant along with Aamir and Rehmatullah attended Shahid Ali who had succumbed to his injuries and died at the spot. The occurrence was witnessed by the complainant, Aamir, his son and one Rehmatullah. The accused persons fled away towards Dhudham. The complainant made statement to the Station House Officer of Police Station Lessar Kalan whereupon the police registered formal F.I.R. No, 331 of 1998, dated 29-12-1998 registered at Police Station Lessar Kalan, District Narowal in respect of offences under sections 302/324/34, P.P.C. The investigation in this case was conducted by (P.W.12) namely Nabi Ahmad, S.-I./ S.H.O. Who inspected the place of occurrence, prepared rough site-plan of the place of occurrence (Exh.P-M), secured blood-stained earth from the place of occurrence which was taken into possession vide recovery memo Exh.P-C, secured i5 cartridges of Kalashnikov, one cartridge of 8 MM, one cartridge of .30-bore pistol (Exh.P-3/1-15, P-4/1, P-5/1), recorded the statement of witnesses under section 161, Cr.P.C. Thereafter during investigation Khadim Hussain, A.S.-I. (P.W.15) recovered Kalashnikov from the appellant on 10-1-2000 took into possession vide recovery memo Exh.PO. The accused persons were found guilty during investigation and the report under section 173, Cr.P.C. Was submitted by mentioning the name of Ali Akbar in column No, 3 before the learned trial court. Charge was framed against the accused on 22-11-2001.
3. The prosecution in order to prove its case examined as many as 15 witnesses before the learned trial court. The ocular account in this case had been furnished by Abdul Ghafoor complainant (P.W.7) and Rehmatullah (P.W.9). Abdul Ghafoor complainant (P.W.7) also stated about the motive.
Abdul Rauf and Irshad Ahmad were recovery witnesses but they were given up by the prosecution.
The medical evidence in this case was furnished by Dr. Muhammad Rafique, Medical Officer, Rural Health Centre Lessar Kalan (P.W.11). Rest of the prosecution witnesses were almost formal in nature.
4. In his statement recorded under section 342, Cr.P.C. The appellant denied all the allegations levelled against him by the complainant and professed his innocence. He did not opt to make statement on oath under section 340(2), Cr.P.C. But produced Gulzar Hussain (DW-I) in his defence.
In response to a question that why this case against you the appellant replied as under:-- "That on account of party faction I have been involved in this case falsely the real story runs as follows that Azra Bibi d/o Iftikhar is the widow of the deceased; prior to marriage with deceased she was engaged with one person Zulqarnain of Langerkey and she was married forcibly with Shahid deceased and said Zulqarnain had been threatening Shahid to take away Azra Bibi from him, and he with the consent of Mst. Azra Bibi used to send that unknown boy to convey his message to her. On the said date of occurrence that unknown boy sent by the said Zulqarnain of Langerkey had brought him on the road where his men were standing who hit Shahid deceased and went away and after the murder of Shahid she contracted another marriage after 5/6 months and had left the house of deceased seven days after his murder, and she had also filed a suit for recovery of dowry articles which she had recovered through court. .
' Shazia the daughter of P. W. 7 (complainant) was married at village Sathiala whose father-in-law was a retired police officer and an the arrival of said father-in-law of Shazia Exh. PA was dictated to the police on his instructions and consultation after the postmortem of the deceased. We were involved in the case on account of strained relations with the complainant party. P. Ws. Are inter se related. It is a false case against me, and the deposition by the P. Ws. Are also false, against me".
5. Upon completion of the trial the learned trial court found the case against the appellant to have been proved beyond any reasonable doubt and, thus, it convicted and sentenced him as mentioned above. Hence, this appeal before this Court.
6. The learned counsel for the appellant contends that it is an unseen occurrence and all the eye- witnesses were procured as the memo of daily diary was stopped in this respect; there are glaring contradictions between the ocular account and the medical evidence; Abdul Ghafoor, complainant (P.W.7) and Rehmatullah (P.W.9) were not present at the place of occurrence as their names did not figure in the inquest report prepared by the Investigating Officer prepared at the spot. It is a night time occurrence so the identification of the appellant is doubtful; there is no source of light- at the spot which fact is also established from scale site-plan (Exh.PE) prepared by Rana Safdar Khan, Draftsman (P.W.4); the same fact is also not mentioned in the un-scale site- plan- (Exh.PM) prepared by the Investigating Officer; as the eyewitness Rehmatullah (P.W.9) admitted in his cross-examination that he has gone to purchase tooth powder so he is a chance witness; according to Dr. Muhammad Rafique (P.W.11) the injuries on the person of the deceased could be a result of one burst; evidence of Muhammad Khan who was a natural witness, as the occurrence took place near his shop, was never produced by the complainant before the Investigating Officer or during trial before the learned trial court; on the same evidence co- accused Muhammad Rafique and Liaquat Ali have been attributed firearm injuries on the person of the deceased were acquitted so the benefit Of doubt should also be extended to the present appellant; recovery of kalashnikov was planted upon the appellant by the Investigating Officer in connivance with the complainant in order to strengthen the prosecution's case; the recovery was effected after one year of the occurrence that too from a deserted place near the Peter engine, which cannot be believed; report of the Forensic Science Laboratory is negative; no independent recovery witness has been Produced so there is a glaring violation of section 103, Cr.P.C.; no independent witness has been produced by the complainant to substantiate the ocular account; the boy who taken away the deceased Shahid Ali with him was not traced by the Investigating Officer and his statement under section 161, Cr.P.C. Is not on record; he was also not produced before the learned trial court; no independent witness was produced by the complainant to prove motive part of the occurrence as according to the prosecution's story the appellant had suspicion that Shahid Ali deceased has managed raid. By police upon him; during pendency of this appeal the father and mother of the deceased had already Made statements and had forgiven the appellant in this case but unfortunately the wife of the appellant was not traceable, for that reason her statement could not be recorded and compromise could not take place; and the prosecution has miserably failed to prove its case beyond any shadow of reasonable doubt against the appellant, therefore, he deserves acquittal by this Court. The learned counsel for the appellant has relied on 2003 PCr.LJ 773 and 2011 SCMR 321.
7. On the other hand the learned Deputy Frosecutor-General after going through the record states that the ocular account was furnished by natural witnesses, i.e, Abdul Ghafoor, complainant (P.W.7) father of the deceased and Rehmatullah (P.W.9) who remained consistent on all material points; there is absolutely no contradiction in their statements; the parties were known to each other so question of mistaken identity of the appellant is not a question in this case, source of light (bulb) was well described in the F.I.R.. Itself; both the eye-witnesses have amply described about the weapons used during the occurrence as well as the locale of injuries sustained by the deceased in the light of bulb; there was no serious enmity between the complainant and the appellant to falsely implicate the latter in this case; the place of occurrence is not disputed; the appellant remained absconder for a period of more than one year which shows that he was the culprit who perpetrated the offence; co-accused of the appellant were given benefit of doubt who were acquitted of the charge by the learned trial court so the appellant cannot obtain benefit of their acquittal; the appellant is a desperate person involved in other criminal cases; recovery of weapon of offence was effected from the appellant during the investigation of this case which positively connect him with the commission of alleged offence; the medical evidence furnished by Dr. Muhammad Rafique (P.W.11) provide ample support to the ocular account; motive had also been proved in this case; the appellant had already been dealt with by the learned trial court leniently; the prosecution has successfully proved its case beyond any shadow of reasonable dopbt. Thus, the appeal be dismissed.
8. Heard. Record perused.
9. According to the prosecution the occurrence took place at 7-30 p.m. And the F.I.R. Was recorded at 10-00 p.m. Whereas Nabi Ahmad, S.-I./S.H.O. (P.W.12) deposed that after receiving information he reached at the place of occurrence at 8-30 p.m.. Which shows that time has been consumed by the police and the complainant to procure the attendance of the witnesses. By considering this aspect of the matter from another angle and perusal of column No, 4 of the inquest report (Exh.PJ) reveals that the names of the complainant and the eye-witness are not mentioned. Had they been 'present at the place of occurrence their names should have surely been mentioned by the Investigating Officer in the inquest report? All this shows that the F.I.R. In this case had been chalked out by the police after procuring the eye-witnesses who actually were not present at the spot at the relevant time.
10. After scanning the record of this case with all care and caution it has also been observed that the occurrence in this case took place at 7-30 p.m. On 29-12-1998 during winter night and no source of light has been shown in the scale site-plan as well as in the rough site-plan prepared by the Investigating Officer so the identification of the appellant is doubtful. According to the site-plan the eye-witnesses were shown at place 'A' which is 52 feet away' from the deceased and during night the identification of the appellant from such a long distance is highly doubtful.
11. According to the prosecution story set forth in the F.I.R. The deceased was called upon and taken away to the place of occurrence by an unknown boy who was never traced by the police and his whereabouts during the whole episode were kept unknown and he had neither been produced before the police during the investigation of this case nor during the trial before the learned trial court to substantiate the, story set forth in the F.I.R. Another intriguing fact which is also significant to point out here that the prosecution had also withheld the important evidence of Muhammad Khan, shopkeeper in front of whose shop the occurrence had taken place. He had neither been associated with the investigation nor during trial before the' learned trial court. Even his statement under section 161, Cr.P.C. Was also not recorded. So much so, the statement of Aamir son of the complainant under section 161, Cr.P.C. Is also not available on the file.
12. Before proceeding with the discussion I shall deem it appropriate to point out here that at one stage the father and mother of the deceased had effected compromise with the appellant and forgiven him but due to non-availability of widow of the deceased the compromise proceedings could not be finalized which fact also creates an impression in the mind of this Court regarding innocence of the appellant.
13. It has also been noticed by this Court that there are material contradictions between the ocular account and the medical evidence as B Dr. Muhammad Rafique (P. W:11) had opined that track of wound of injury No, 3 which is an entry wound entered the pelvic cavity which was found fill with blood after travelling through Injuries Nos. 4 and 5 then it came out of the body at the side of Injury No, 6 after track pelvic at the side of injury No, 5 which clearly shows that injury No, 4 attributed to the appellant is the result of injury No, 3 which is attributed to co-accused of the appellant. Even otherwise according to the statement of P. Ws. The injury caused by Liaquat Ali hitting neck of the deceased whereas according to the post-mortem examination this injury is an exit wound of injury No, 1 which is on the left ear.
14. According to the prosecution story motive for the occurrence is that the appellant Akbar Ali had shown his suspicion that the deceased had managed police raid upon him but unfortunately the complainant has failed to produce any independent evidence regarding this fact. The complainant had also failed to prove any proceedings regarding the raid conducted upon the appellant Akbar Ali on the behest of Shahid Ali deceased in the shape of any rapat or copy of police proceedings.
So the c motive could not provide support to the ocular account. It 'is settled law that once motive is alleged by the prosecution in the F.I.R. Then it has to ID prove the same, failing which its benefit goes to accused.
15. According to the prosecution's own case the recovery of weapon of offence, i.e, Kalashnikov was effected from the appellant on 10-1-2000 after more than one year of the occurrence that too from the side of peter engine of one Muhammad Anwar uncle of the appellant. It is observed here that this place is not in exclusive possession of the appellant. Further more the empties collected from the place of occurrence were sent to the Office of Forensic Science Laboratory along with the weapon of offence and the report in this regard is in negative. The recovery witnesses have also not been produced to adduce evidence before the learned trial court. So the recovery in this case is of no helpful to the prosecution. Thus, I am of the view that, the eye-witnesses were not present at the spot at the time of occurrence. Two co-accused of the appellant namely Muhammad Rafique and Liaquat Ali who had been attributed firearm injuries on the person of the deceased had already been acquitted by the learned trial court by appreciating the same evidence, thus, the evidence of the eye-witnesses to the extent of the appellant is also doubtful.
16. For what has been discussed above I have come to an irresistible conclusion that the prosecution has miserably failed to prove its case against the appellant beyond, any reasonable doubt. Therefore, Criminal Appeal No, 38 of 2006 filed by Akbar Ali appellant is, therefore allowed and the appellant is acquitted of the charge. He shall be released from the jail forthwith, if not required in any other case.