' SH. NAJAM UL HASAN, J.---Farman Ali alias Bholi, appellant was tried by the learned Additional Sessions Judge, Gujrawala in case F.I.R. No,601 dated 15-11-2005 registered under section 302/34, P.P.C. At Police Station Nowshera Virkan, Gujranwala. At conclusion of trial the learned trial Court vide judgment dated 25-5-2006 convicted the appellant under section 302(b), P.P.C. And sentenced to death. He was directed to pay compensation of Rs,100,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default thereof to undergo six months' S.I.
2. Feeling aggrieved of the above mentioned conviction and sentence, the appellant has filed Criminal Appeal No, 944 of 2006. The State has approached this Court by way of Murder Reference No, 807 of 2006 seeking confirmation of sentence of death awarded to convict. Lbad Ali, complainant has filed Criminal Revision No, 632 of 2006 for enhancement of compensation. All these interrelated matters are being disposed of together through this single judgment.
3. Occurrence in the present case took place on 15-11-2005 at 1-00 a.m., in the house of Ibad Ali (P.W.6). In the occurrence Abdul Rasheed (deceased) received fire-arm injuries at the hands of the appellant and unknown person and thereafter he died. The matter was reported by the complainant to police through statement (Exh.PD) on the basis of which formal F.I.R. (Exh.PD/1.) was registered on the same day.
4. The prosecution story as narrated in application (Exh.PD) was that on the night between 14/15-11- 2005 at about 8/9-00 p.m. The complainant along with his nephew Muhammad Rashid slept in a residential room of the house and Taj Ali, elder brother, slept in Baithak. Abdul Rasheed, brother of the complainant, slept in Veranda of the house. Wife and children of Abdul Rasheed were sleeping in another room of the house. At about 1-00 a.m. After hearing fire shots the complainant and others came out. The electric bulb was on in the Veranda and in their sight Farman Ali, appellant while armed with .30 bore pistol fired on the chest near the neck of Abdul Rasheed. An unknown person while armed with .30 bore pistol fired on his left upper arm. Farman Ali, fired second shot on left armpit of Abdul Rasheed. Thereafter Farman Ali, appellant fired at the complainant which missed. Then unknown person fired on left upper arm of Abdul Rasheed who fell down on the ground. After seeing the P. Ws. The accused persons ran away from the place of occurrence. They took Abdul Rasheed to Civil Hospital, Sheikhpura from where he was referred to Mayo Hospital, Lahore and on the way he died.
' Motive behind the occurrence was that 2/3 days earlier Abdul Rasheed, deceased had quarrelled with Farman Ali, appellant. Due to this grudge Farman Ali, appellant and one unknown person committed this occurrence.
5. Dr. Sahibzada Farid (P.W.5) conducted postmortem examination on the dead body of Abdul Rasheed and found the following injuries:--
(i) A fire-arm lacerated wound of entry 1 x 1 cm x going deep on the front of the upper chest in the mid line. 3 cm below supra sternal notch. The margins were inverted with abraded collar, around the wound.
(ii) A firearm lacerated wound of exit 1.5 x 1 cm on the back and lateral aspect of the left chest upper part on the posterior axillary line, 3 cm below the posterior axillary fold. The margins were averted and injury corresponded to injury No, 1 .
(iii) A firearm lacerated wound of entry 1.5 x 1.5 cm x going deep in the back of the left upper arm, upper part 4 cm below the axilla, margins were inverted, abraded collar was present around the wound.
(iv) A firearm rounded lacerated wound of exit 2 cm x 1.5 cm on the outer aspect of left upper arm, upper part, 10 cm from the tip of the shoulder, the margins were averted and injury No,4 corresponding to injury No,3.
' In the opinion of the doctor the death occurred due to injury to the vital organ lung, caused by injury No, 1, which was sufficient to cause death in an ordinary course of nature. All the injuries were ante-mortem and caused by fire ann. Probable time between injuries and death was about within 1 to 3 hours whereas between death and post mortem was about within 10 to 15 hours.
6. On 15-11-2005, Ibad Ali complainant submitted application (Exh.PD) to Muhammad Boota, S.I.
(P.W.9) for registration of case, upon which he drafted F.I.R. (Exh.PD/1). After registration of the case, he along with other police officials reached at the place of occurrence and inspected the dead body of Abdul Rasheed, deceased. He prepared injury statement (Exh.PG), inquest report (Exh.PH).
He took into possession blood-stained earth vide recovery memo (Exh.PE). He also took into possession an empty cartridge of pistol .30 bore from the place of occurrence vide recovery memo (Exh.PL). On 18-11-2005 he arrested the appellant. Thereafter he submitted challan in Court.
7. At close of prosecution case the appellant was examined under section 342, Cr.P.C. He denied and dismissed each piece of prosecution case. When question as to why this case against you and why the P.Ws. Have deposed against you?" he replied as under:- "The deceased was murdered by some unknown persons in the dark hours of night and it was a blind murder. The complainant and P. Ws. Came to know about the death of deceased in early morning of the day and after due deliberation and consultation with the Investigating Officer they falsely implicated me in this case as they wanted to snatch the agricultural land owned by my father situated in village Chachoki. All the P. Ws. Are related inter se and Rashid P. W. Deposed against me under the influence of his uncle. All the P. Ws. Deposed falsely against me."
' The appellant did not appear in witness box under section 340(2), Cr.P.C. He produced school leaving certificate of Government High School, Virkan (Exh.DC) and attested copy of the statement, headmaster, SST. Govt. H/S Garmula Virkan (Exh.DD) in his defence. At the conclusion of trial the trial Court convicted the appellant as noted above.
8. Learned counsel for the appellant states that in this case occurrence took place at 1-00 a.m. In the month of November i.e, in the mid of night. Statedly the deceased was done to death while he was sleeping in the veranda while guarding the cattle. Learned counsel states that no cot was taken into possession rather it is the prosecution case that blood stained earth was recovered from the place of occurrence. In this circumstance, the prosecution case remained doubtful. Learned counsel further states that two persons were assigned role of firing at the deceased, one appellant and other unknown person; that in F.I.R and in the statements of witnesses it is clearly mentioned that the fire made by the appellant landed on the chest near neck of the deceased and his second fire hit the deceased on the left armpit. It is contended that injury No,1 on the neck was entry wound whereas injury No,2 i.e, on back of chest was exit of injury No,
1. Learned counsel further states that it was stated that unknown co-accused also fired at the deceased and fire made by him hit on left upper arm. It is contended that there was an entry wound left upper arm which made exit from the outer side. It is contended that in these circumstances one thing is clear that there is contradiction in medical and ocular account which leads to the inference that the witnesses have not seen the occurrence. It is stated that the coaccused/unknown person was never traced and his whereabouts never came to light rather during investigation it was observed that the occurrence was committed by single accused and this fact had duly been admitted by the Investigating Officer. Learned counsel states that in these circumstances it is evident that the witnesses have not seen the occurrence. The accused had taken the stance that the occurrence took place in the mid of night and no one has seen the occurrence and later on suspicion the name of the petitioner was introduced. It is stated that the deceased was found in injured condition and thereafter to cover the delay the story was concocted; that the deceased was taken to Sheikhupura in injured condition and was referred to Mayo Hospital, Lahore and he died on the way and dead body was brought back to the place of occurrence. Learned counsel states that the case was reported at the police station through written application at 4-40 a.m. Whereas the police station was at a distance of 8 KM. It is stated that one crime empty was recovered from the place of occurrence and the same was taken into possession and was sealed; that the pistol was recovered from the appellant on 27-11-2005 but both these things were received at the office of Fire Arm Expert together on 7-12-2005 and no reason for sending them together has been brought on record. It is stated that in these circumstances, one thing is clear that the crime empties and the pistol remained together with Investigating Officer for at least 10 long days and as such there was possibility for the I.O. To prepare the empties and thereafter send the same to Fire Arm Expert so in the circumstances the report has got no legal value. Learned counsel further states that the motive was assigned to the P.W. Rashid Ali and not to the deceased, no reason for the appellant to kill deceased has been brought on record. It is stated that in this situation, the involvement of the appellant in this case is highly doubtful. Learned counsel while discussing the ocular account has pointed out that the complainant and the witnesses woke up after hearing the fire shot so they were not in a position to see the occurrence. Which only leads to one inference that the occurrence remained unseen and later on name of the appellant was introduced. It is contended that at the relevant time the appellant was minor. According to Birth Certificate produced by the prosecution appellant was slightly more than 18 years of age so in these circumstances he is entitled to certain relief.
9. On the other hand the learned law officer assisted by learned counsel for the complainant states that the occurrence took place inside the house of the complainant and the witnesses were present there, so they are the most natural witnesses and their statements cannot be discarded. It is contended that deceased was done to death by fire-arm and it cannot be presumed that no one woke up after hearing the fire shot. It is stated that the appellant fired at the deceased which landed on his chest and such injury was found by the Doctor who got conducted Post Mortem examination. It was verified by the Doctor that time between injury and death was 1 to 3 hours and the time between Post Mortem and death duly coordinates the time of occurrence. Learned counsel further states that the crime empty recovered from the place of occurrence was sent along with the pistol to the Firearm Expert and that the report is positive. Learned counsel further contends that the seal available on the crime empty were found intact by the Expert so in these circumstances even sending the pistol along with crime empty does not go in favour of the appellant. It is contended that the deceased was brother of complainant and Muhammad Rasheed (P.W.7) was his son and there is no reason for them to falsely implicate the appellant in this matter and leave the real culprit who was their biggest enemy; that no reason to falsely implicate the appellant has been brought on record; that the appellant is responsible for causing fatal injury to the deceased so he is not entitled to any leniency. The Birth Certificate produced by the appellant clearly shows that he was more than 18 years of age at the time of occurrence, so he was major, grownup and sensible man and after making plan, entered the house of the deceased and committed the occurrence so he is not entitled to any leniency even in the matter of sentence.
10. The occurrence of this case took place in the house of the deceased,.The complainant and P.W.7. The complainant was brother of the deceased whereas P.W.7 was son of the deceased. It is the prosecution case that the deceased was sleeping in the veranda near cattle shed whereas the complainant and son of the deceased i.e, P.W.7 were sleeping in the room. The other brother of the deceased, namely, Taj Ali was sleeping in the Bhaitak. The wife and children of Abdul. Rasheed deceased were in the other room. The occurrence statedly took place at 1-00 a.m. In the month of November and after hearing report of fire shot the complainant and the P. Ws. Woke up, came out of their rooms and saw the occurrence. It was alleged in the that the complainant and the P.W. Saw two persons, the present appellant and one unknown person while armed with .30 bore pistol and in their sight the appellant fired a shot which landed on the chest near neck of the deceased. The second shot landed on his left armpit. The appellant made third shot on the complainant but the same missed. It is mentioned in the F.I.R. That unknown person fired a shot which landed on left armpit of the deceased and the second shot hit his upper left arm. The deceased was taken to the hospital and while he was shifted to Mayo Hospital, he breathed his last and was brought back home and the complainant went to the police station which was eight miles away from the house.
The complainant while appearing in Court has admitted that after reaching the police station he got dictated his statement to Muhammad Boota S.I. Who recorded the same on a blank paper and thereafter on the basis of same the F.I.R. Was registered. It is strange that when the complainant was present in the police station then why his statement was not got recorded under section 154, Cr.P.C. On the register of F.I.Rs and why the same was recorded on separate paper and later on incorporated on the register of F.I.Rs, Once the complainant had reached the police station there was no occasion for him to get his statement reduced into writing on a separate blank paper and then to incorporate the same into F.I.R. Under section 154, Cr.P.C. Neither such was requirement of law. Such a circumstance makes the whole story of F.I.R. Highly doubtful. The complainant did not opt to explain as to why he adopted this novel procedure. The complainant while appearing in Court as'P.W.6 during cross-examination has admitted that contents of the F.I.R. Are not in accordance with his statement which he got recorded to Muhammad Boota, S.I. PW.9. So this is a case in which the complainant does not own contents of the F.I.R. The post mortem examiner observed two firearm wounds; one on the chest of the deceased which made its exit on the left armpit and the other on the left upper arm which made its exit on outer side of left arm. So this is a material contradiction in the medical and ocular account. In the F.I.R. It was stated that the deceased received four shots whereas post mortem report indicates existence of two shots and the remaining two clearly described in the F.I.R. Were found to be exit wounds. Such a circumstance only leads to infer that after seeing injuries on the specific part of dead body F.I.R. Was concocted and specific injuries to both the accused were attributed. There is another circumstance that while appearing in Court the complainant and the P.Ws. Have rather changed their version and tried to improve their statements to bring the same in line with medical evidence. In the court they assigned both entry wounds to the appellant whereas in F.I.R. One entry wound to the appellant and the other to the unknown person was attributed. So this is a case in which prosecution witnesses have tried to improve their statements to bring the same in line with the medical evidence. It is well-settled that when the witnesses while appearing in Court change their version to bring the case in line with the medical evidence which was not in their knowledge When they made earlier statement to the police such a circumstance leads to inference that they are not worth reliance and their statement need corroboration from independent source for relying the same and such witness cannot be and should not accepted without having corroboration from other unimpeachable source.
' As far as motive part is concerned it is the prosecution case that the appellant and P.W.7 son of the deceased had a quarrel regarding a C.D. Cassette a few days prior to the present occurrence.
Said son of the deceased was present at the time of occurrence and appeared as P.W.7 as eye- witness of the occurrence but statedly the appellant killed his father D but P.W.7 did not receive any injury in the occurrence. As stated above, motive was directed against P.W.7 and had nothing to do with the deceased. Motive for an occurrence provides corroboration to the ocular account only if the same is of such a nature which coordinates or corresponds actus reus. If motive as brought on record by the prosecution is accepted, the prime target of the appellant was Muhammad Rashid (P.W.7) who was available at the time of occurrence but as stated above no damage was caused to him rather unconcerned person was done to death. This circumstance negates claim/motive advanced by the prosecution that the occurrence was result of quarrel of the appellant with Rashid P.W. And as such same cannot be considered as a corroborative evidence for the prosecution in the present case. The appellant and P.W.7 were young persons of 18/19 years of age and as per prosecution motive only relates to them which was even otherwise of no such gravity which could have led the appellant to kill father of P.W.7. So killing the deceased for such a trivial motive especially when the prime target was also present does not appeal to mind and cannot be accepted. In the given circumstances the motive alleged in the F.I.R. Was not of that gravity which could have led the appellant to kill father of P.W.7 with whom he had earlier quarrelled.
' It is the prosecution case that the Investigating Officer took into possession one crime empty of .30 bore from the place of occurrence during spot inspection on the very same day of occurrence i.e, 15-11-2005 but it is available on record that he kept the same in police station and did not bother to send the same- to Firearm Expert. The appellant was statedly arrested on 18-11-2005 and during investigation he got recovered .30 bore pistol from his residential room on 27-11-2005. The same was taken into possession through recovery memo and was sealed into parcel and was kept in maalkhana. After ten days both these articles i.e, the crime empty recovered on 15-11-2005 and the pistol recovered on 27-11-2005 were sent together to the Firearm Expert and the report is positive.
No reason for keeping both these articles together in the police station for ten long days and for sending them together has been brought on record. So report of Firearm Expert in such circumstance loses its value as possibility of the empties being fired from the recovered weapon and thereafter sent to Firearm Expert to procure positive report cannot be ruled out. In a similar situation it has been held by the apex court that such recoveries and the report of Firearm Expert loses its value because possibility of preparing an empty from the pistol already recovered and sending both these articles together to the Firearm Expert to obtain such positive report cannot be ruled out. Reference may be made ALI SHER AND OTHERS v. THE STATE (2008 SCM R 707). So this is a matter in which the motive, the recovery and even the medical evidence do not provide any support to the prosecution.
' The occurrence statedly took place in the house of the deceased where the complainant and P.W.
Son of the deceased along with other family members were residing. The deceased was sleeping outside the rooms in the veranda whereas the witnesses were sleeping inside the rooms and the occurrence took place at 1-00 a.m. In the mid of night in winter season i.e, in the month of November. It is prosecution case that after hearing the fire shot the witnesses woke up and came out of the rooms and in their sight the appellant and the unknown person fired at the deceased.
Naturally in completing this process some time must have been spent and till then the appellant and his companion were still present near the deceased after making first shot after hearing which the complainant and the witnesses had woken up and came out and in their sight the appellant fired two shots at the deceased whereas his unknown companion also made two fires. It is the prosecution case that at least six fire shots were made in the occurrence but only one crime empty was recovered by the police although the occurrence took place inside the house. As discussed above, while appearing in Court the witnesses changed their version and have assigned both the entry wounds to the appellant and they were duly confronted in this respect. So keeping in view all these circumstances possibility of the occurrence having gone unseen cannot be ruled out. During investigation at one stage it transpired that the occurrence was committed only by one person.
The unknown person mentioned in the F.I.R. Was never traced out and while appearing in court two entry wounds assigned to him were also later on assigned to the appellant and even this circumstance indicates that the occurrence was unseen and on suspicion name of the appellant was introduced. So keeping in view all these circumstances and while considering the time of occurrence and the contradictions_ in the statements of witnesses we think that statements of the witnesses cannot be relied upon without having corroboration from independent source which is lacking in this case. So we think that the prosecution remained unable to prove the case against the appellant beyond reasonable doubt and we hold accordingly and in such circumstance the appellant is entitled to benefit of doubt. So while extending the same Criminal Appeal No,944 of 2006 is accepted and conviction and sentence awarded to the appellant a're set aside. He is acquitted of the charge and be set at liberty if not required to be detained in any other case.
13. Since the appellant has been acquitted of the charge as such Murder Reference No, 807 of 2006 is answered in negative. Sentence of death is not confirmed.
14. Likewise Criminal Revision No, 632 of 2006 also fails and is hereby dismissed.