The appellant has assailed the vires of the judgment dated 22.11.2001 passed by the learned ASJ, Vehari, in case FIR No, 155/97 dated 23.6.1997 under Sections 302/458 PPC P.S. Saddar Mailsi, whereby he was convicted and sentenced under Section 458, PPC to imprisonment for 14 years R.I. with fine of Rs, 10,000/- and in case of default in payment thereof to undergo S.I. for six months. The benefit under Section 382-B, Cr.P.C. was also extended to him.
2. Briefly stated the prosecution version as embodied in the FIR (Ex.PG) recorded on the statement cf Ghulam Murtaza son of Haji Mian Naimat Ullah, caste Arain, resident of Basti Naimatabad, Dakhli Mauza Gulhari, P.S. Saddar Mailsi, District Vehari, is that on 22.6.1997, he sold sunflower seeds to Sh.
Imran, a businessm an of Grain Market, Multan, who after loading the same on a Truck at about 10.00 p.m. paid him a sum of Rs, 79,500/-. The complainant came to his house alongwith the said amount, put the same beneath the pillow and slept in the Courtyard of the house alongwith other members of his family. At about 3.30 a.m., his wife Mst. Ijaz Mai got up on the. report of noise, who informed the complainant and on this, he and his son Ghulam Mujtaba aged about 13 years also awoke. Mst. Ijaz Mai told him that she had heard the report of noise caused due to scaling over the wall by someone. The complainant slept again after telling his wife that it was only an illusion: In the meanwhile, he heard the shrieks of his son Mujtaba. He got up and saw that someone was standing towards the head side of his cot. The complainant grappled with man and also raised alarm 'thief' 'thief. An unknown person, who was also armed with fire-arm gave a blow on the right wrist of the complainant to rescue his companion and thereafter he made fire but the complainant took shelter behind the person held by him. The fire made by the accomplice of the said accused landed on his abdomen, who fell on the ground. On his alarm his brother Mian Sarfraz and his two sons Wajahat Faraz and Imran Faraz, who live in the adjacent house also arrived there and on seeing them the person, who had made the fire succeeded in fleeing towards back side of the house. Due to darkness, they could not see the face of the said person. The injured culprit died at the spot. Muhammad Ayub and Haji Muhammad Zaman arrived at the spot and identified the dead person as Shabbir son of Burkhurdar, caste Arain, resident of Chah Fattuwala, Dakhli Kot Muzaffar, who was a habitual outlaw and was involved in many cases. Live cartridges of .12 bore Gun were recovered from his pocket and the Gun .12 bore was also lying at the spot. On 28.11.1997 Sher Muhammad son of Muhammad Bakhsh and Zafar Iqbal son of Wazir Ahmad made statements before the I.O. to the effect that on the night between 22/23.6.1997 at about 12.00/1.00 a.m., they had seen the appellant empty handed alongwith Shabbir Ahmad deceased armed with Gun .12 bore while standing on Ashraf Shah Railway Crossing on Pacca Road going to Jala Jeem.
3. After investigation, the appellant was sent up to face the trial. He was charged under Sections 302/458, PPC. He pleaded not guilty and claimed the trial.
4. After conclusion of the trial the learned trial Court proceeded to convict the appellant as stated above.
5. Learned counsel for the appellant has contended that it is a case of no evidence; that the only evidence produced by the prosecution is of Waj Takar' but the same is totally unreliable; that the alleged recovery of Gun, which was out of order does not connect the appellant with the commission of the alleged offence in any manner and that the learned trial Court caused miscarriage of justice in recording the conviction and awarding afore-mentioned sentence to the appellant.
6. Learned Additional Prosecutor General has vehemently controverted the above arguments. It is further urged that although the appellant was not nominated in the FIR yet he was seen about 3/4 hours prior to the occurrence with his co-accused Shabbii . who died at the spot due to fire made by him; that PW-3 had no malice to depose falsely against him and that PWs-5 and 6 have narrated the facts in a straightforward manner without any dishonest padding and have confined only to the events, which had taken place during the occurrence.
7. Admittedly the person, who had made fire, had fled away and was not seen by the complainant and Muhammad Sarfraz (PW-5). It is mentioned in the FIR that his face was not visible. The prosecution case mainly hinges on the statement of Muhammad Sarfraz (PW-5). It is stated by him that he had seen the appellant at about 10.00/11.00 p.m. at a distance of half square from the Ashraf Shah Railway Crossing in village Jala. At that time he and Shabbir Shah were armed with .12 bore Guns. The total evidence available on the file against the appellant is in form of above statement. The witness has not seen the appellant immediately after or before the occurrence. His meeting with the appellant about four hours prior to the occurrence does not prove in any manner that the appellant is connected with the commission of the alleged offence in any manner. He had made the statement before the Police after five months and five days of the occurrence. According to him, he had gone to the house of the complainant on the next day of the occurrence. Had he, in fact, seen the deceased and the appellant together as stated by him in the witness box, he would have disclosed this fact to the complainant on the same day. In his statement under Section 161, Cr.P.C. he had stated that the appellant was empty handed when he saw him with the deceased on the night between 22/23.6.1997 but in the witness box he had made dishonest improvement by stating that he was holding a .12 bore Gun. Even the complainant has not stated that the person, who made fire, was holding .12 bore Gun. The witness had made dishonest improvement only to lend support to the prosecution version. A witness, who keeps quiet for five months in narrating the actual facts to the Police or other concerned persons and makes dishonest improvement cannot be given any credence and is not reliable. The evidence of such witnesses should not be given any weight while administering justice on criminal side. Ghulam Murtaza (PW-4) and Muhammad Sarfraz (PW-5) had not seen the face of the person responsible for making trespass or causing death of Shabbir so their evidence cannot be used against the appellant. The learned Additional Sessions Judge, who decided the case did not appreciate the evidence properly and, in fact, committed material illegality/irregularity in recording conviction and awarding the sentence to the appellant. The impugned judgment is not sustainable in the eyes of law and the same is hereby set aside by accepting the instant appeal. The appellant, is present in the Court on bail and is discharged of the liability of his bail bonds.