' MANZOOR AHMAD MALIK, J.---Muhammad Ashiq (appellant) along with his co-accused namely Abdul Majeed (since acquitted) was tried by the learned Addl. Sessions Judge, Kasur, in case FIR No,491/2007, dated 29-8-2007, offences under sections 302, 324, 109 and 34 P.P.C., registered at Police Station Raiwind Sadar District Kasur for the murder of Muhammad Yaqoob brother of the complainant and causing injuries to Afzaal, minor son of Muhammad Yaqoob. Vide judgment dated 19-11-2009 passed by the learned Addl. Sessions Judge, Kasur, Muhammad Ashiq (appellant) has been convicted under sections 302 (b), 324, 337-F (iii) and 337-F (i), P.P.C. And sentenced as under:-- "16....He is therefore, sentenced to undergo life imprisonment (RI) under section 302(b), P.P.C. He is also directed to pay Rs,50,000 as compensation to the heirs of the deceased and in default to further undergo 6 months' SI. He is further sentenced to undergo (RI) for 10 years with a fine of Rs,50,000 under section 324, P.P.C. And in default of payment of fine to further undergo 6 months' SI.
The convict is further sentenced to undergo 3 years' RI as Tazir under section 337-F (iii) P.P.C. With Daman worth Rs,10,000 payable to the injured Muhammad Afzaal, and in default of same to undergo further 6 months' SI. He is also sentenced to undergo 1 year R.I as Tazir with Daman worth Rs,5000 under section 337-F(i), P.P.C., and in default of payment of Daman the convict shall further undergo 6 months' SI. However, all the sentences shall run concurrently. The convict is extended benefit of section 382-B, Cr.P.C."
2. However, learned trial court through the same judgment acquitted Abdul Majeed co-accused of the appellant by extending him benefit of doubt and no appeal against his acquittal was filed either by the complainant or by the State as confirmed by the learned Deputy District Public Prosecutor as well as the complainant, who is present in person. Assailing the above conviction and sentence, Muhammad Ashiq (appellant) has filed the appeal in hand.
3. Precisely, facts of the case, as contained in FIR (Exh.PD/1) registered on the statement (Exh.PD) of Muhammad Siddique complainant (PW.11) are that he (complainant) was resident of Raokhanwala. On 28-8-2007 complainant along with Salamat Ali son of Ilm-ud-Din, caste Arain, resident of the same village and Muhammad Arshad son of Abdul Aziz, caste Jatt, resident of Marali Hithar had come to village Chheena Ottar in order to participate in the birthday function of paternal grand daughter of Arif Ali. Muhammad Yaqoob brother of the complainant was also called for baking naans. At about 7:00 p.m. Muhammad Yaqoob while lifting his son namely Afzaal was going in the street, Muhammad Ashiq (appellant) on the asking of Abdul Majeed (co-accused since acquitted) made a fire with his pump action gun which landed on the back side of head towards neck of Muhammad Yaqoob. The said fire shot also landed on both the shoulders of Afzaal Ahmad aged about 2-1/2 years. Complainant along with Salamat Ali and Muhammad Arshad witnessed the occurrence and took Muhammad Yaqoob to Kot Radha Kishen, Noor Hospital, in injured condition where he succumbed to the injury. Whereas the child was in injured condition.
Motive behind the occurrence as alleged in the FIR was that Abdul Majeed (accused since acquitted) wanted to get rishta from Muhammad Yaqoob, which was refused. Mst Khalida Bibi wife of the Muhammad Yaqoob (deceased) stated that he had refused to give one rishta, therefore, she will give the rishta of other daughters to them (accused party) and due to this grudge Muhammad Ashiq on the instigation of Abdul Majeed had committed the murder of Muhammad Yaqoob.
4. Muhammad Ashraf S.I. (PW.12) was posted at Police Station Sadar Raiwind District Kasur. On 28- 8-2007, he along with other police officials was present at Chhena Adda where complainant Muhammad Siddique met him and got recorded his statement (Exh.PD). He sent Fard Bayan (Exh.PD) to Police Station for registration of case through Zaheer Abbas. Thereafter, he proceeded to the place of occurrence. He took into possession dead-body of Muhammad Yaqoob (deceased) prepared inquest report (Exh.PG) and injury statement (Exh.PI) of Muhammad Yaqoob (deceased).
He also drafted an application (Exh.PH) for postmortem examination and dispatched the same to District Headquarters Hospital Kasur for autopsy through Iftikhar Ahmad 441/C (PW.8). He inspected the spot and prepared rough site plan (Exh.PJ) of the place of occurrence. He took into possession blood stained earth vide recovery memo (Exh.PF). He collected one empty cartridge (P.5) from the spot which was taken into possession vide recovery memo (Exh.PK). After the postmortem examination Iftikhar Ahmad 441/C produced before him last worn clothes of the deceased shirt (P.2) and trousers (P.3) which were taken into possession vide recovery memo (Exh.PE). On 30-8- 2007 he prepared application for medical examination and injury statement (Exh.PL) of Muhammad Afzaal. On 31-8-2007 after receipt of MLC of Muhammad Afzaal, he added offences under Sections 337-F (iii) and 337-F(i), P.P.C. On 4-9-2007 he got prepared scaled site plan (Exh.A and Exh.PA/1) through Muhammad Nasrullah Draftsman (PW.3). On 25-9-2007 he arrested Muhammad Ashiq (appellant) and obtained his physical remand. On 28-9-2007 Muhammad Ashiq (appellant) allegedly got recovered gun 12 bore (P.1) which was taken into possession vide recovery memo (Exh.PB). Thereafter, report under section 173 Code of Criminal Procedure was prepared and the same was submitted in the court of competent jurisdiction.
5. The appellant and his co-accused namely Abdul Majeed were summoned by the learned Addl Sessions Judge, Kasur, to face the trial. Copies of the documents, as required under section 265-C, Code of Criminal Procedure, were provided to them and formal charge under sections 302, 324, 109 and 34, P.P.C. Was framed against them on 20-6-2008 to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as thirteen witnesses in all.
Ocular account was furnished by. Muhammad Arshad (P.W.10) and Muhammad Saddique complainant (P.W.11). Medical evidence was furnished by Dr Ijaz-ul-Hassan (P.W.5) and Dr Zulfiqar Ahmad (P.W.13). Muhammad Riaz 487-C (P.W.4) witnessed the alleged recovery of 12 bore pump action gun (P.1) at the instance of appellant. Muhammad Ashraf S.I. (PW.12) investigated this case and while appearing in the witness box narrated the various steps taken by him during the course of investigation. Learned DDPP gave up Salamat Ali, Sarfraz and Almaas (PWs) being unnecessary vide statement dated 16-6-2009. He closed the prosecution case on 4-11-2009 after tendering in evidence report of Chemical Examiner (Exh.PN), report of Forensic Science Laboratory (Exh.PO) and report of Serologist (Exh.PP). Statements of the appellant and his co-accused namely Abdul Majeed were recorded under section 342, Code of Criminal Procedure on 4-11-2009 wherein they refuted all the prosecution allegations levelled against them and professed their innocence. To a question as to why the case against him and why the prosecution witnesses had deposed against him, Muhammad Ashiq (appellant) replied as under:- "In fact, it is a dark night occurrence which was not witnessed by any body. Complainant and other P. Ws. Who were not resident of the vicinity hatched a false story regarding the motive and abetment of my co-accused which was not proved. Muhammad Yaqoob had come to the village Chhena in order to attend function of birth day of grand daughter of Rana Muhammad Arif a police officer. Many guests were invited in the function. Muhammad Yaqoob, in the dark night, was going in the street where sons and relatives of said Rana Arif were making firing, I also took gun from the hands of son of Rana Arif and started aerial firing, and during this course a stray bullet hit to Muhammad Yaqoob and his son unfortunately. He was shifted to the hospital for treatment but he succumbed to the injury. It is not intentional murder. I have no previous enmity with the deceased.
Later, when Yaqoob died above said Rana Arif in order to save the skin of his sons and relative booked me and my co-accused in this false case after hatching a false story who was inimical towards me. Complainant P.W.11 and the alleged eyewitnesses were summoned on the next day of the occurrence in the police station and were cited as complainant and witnesses who are inimical towards me and my co-accused. I produced my defence before the I0 and took specific stance that it is an accidental murder. The witnesses are inter se related to each other therefore, they deposed against me and my co-accused. I am innocent."
' The appellant did not appear as his own witness in disproof of the allegations levelled against him as provided under section 340(2), Code of Criminal Procedure. Though initially, the appellant opted to produce defence evidence but subsequently stated that he did not want to produce defence evidence and closed the same vide his statement dated 14-11-2009.
6. After conclusion of the trial, the learned trial court convicted and sentenced the appellant as detailed above. Hence, this appeal.
7. Learned counsel for the appellant, fit support of this appeal, contends that the appellant has falsely been implicated in this case; that according to the contents of the FIR (Exh.PD/1) the occurrence took place on 28-8-2007 at 07.00 p.m. Whereas the matter was reported to the Police on 28-8-2007 at 11:30 p.m. On the same night i,e, with a delay of four hours and thirty minutes; that the reason given by the complainant for the delay in reporting the matter to the Police is that after the occurrence he shifted his brother in injured condition to Noor Hospital at Kot Radha Kishan where he succumbed to the injuries but no doctor from Noor Hospital Kot Radha Kishan appeared before the learned trial court nor any documentary evidence in this respect was brought on the record; that the story of shifting the deceased to the hospital is belied from the other circumstance as Muhammad Arshad (PW.10) who furnished the ocular account stated before the learned trial court that Muhammad Yaqoob died at the spot; that while appearing before the learned trial court the complainant stated that after the death of Muhammad Yaqoob he shifted his dead body in a tractor trolley to the place of occurrence from Noor Hospital Kot Radha Kishan and then reported the matter to the Police which is also highly improbable and does not appeal to a prudent mind; that it is not understandable as to why the complainant instead of. Reporting the matter to the Police preferred shifting dead body of Muhammad Yagoob to the place of occurrence from the hospital; that the circumstances suggest that the occurrence was not reported to the Police even at the time mentioned in the FIR as post mortem examination on the dead body of Muhammad Yaqoob was conducted on 29-8-2007 at 11:30 a.m.; that the occurrence took place at Chhena Ottar whereas the complainant was resident of Rao Khanwala and the other witness of ocular account namely Muhammad Arshad was resident of Muralian Hithar; that Muhammad Arshad stated during his cross examination that the distance between Marali Hithar and Chhena Ottar is about 18-19 kilometers and as such both the witnesses of ocular account are chance witnesses; that they have given a specific reason for going to the place of occurrence which is to the effect that they had gone to attend the function of birthday ceremony of paternal grand daughter of Rana Muhammad Arif but they have not disclosed any relationship with said Rana. Muhammad Arif; that during the cross examination the complainant could not tell the name of the child of whose birthday was allegedly scheduled on the day of occurrence and similarly name of father of the said child also could not be disclosed by the complainant and as such story of going to attend the birthday party by both the witnesses of ocular account could not be proved during the trial; that the pictorial diagram of post mortem report (Exh.PM) of Muhammad Yaqoob (deceased) shows that the entry wound on his person was on the upper side of neck whereas the exit was on the lower side of shoulder which suggests that at the time of firing at Muhammad Yaqoob (deceased) the assailant was at a higher place; that it is also case of the prosecution in the FIR as well as before the learned trial court that Muhammad Afzaal minor son of Muhammad Yaqoob was also injured during the same incident by the firing allegedly made by the appellant but conduct of the both the witnesses of ocular account to the extent of Muhammad Afzaal is highly improbable as in the FIR there is no mention that the said minor injured was also shifted to the hospital for medical treatment and moreover Muhammad Afzaal was medically examined on 30-8-2007 i,e, two days after the occurrence; that motive behind the occurrence was that Abdul Majeed co-accused of the appellant had asked for the hand of daughter of Muhammad Yaqoob (deceased) which was refused and due to said grudge Abdul Majeed abetted the appellant and on the asking of said Abdul Majeed the appellant fired at Muhammad Yaqoob; that name of the boy for whom the hand of Muhammad Yaaoob's daughter was asked by Abdul Majeed was not disclosed by the complainant during the course of cross examination; that name of wife of Muhammad Yaqoob also came in the motive part of the said occurrence but even said widow of Muhammad Yaqoob was not produced during the course of investigation or before the learned trial court; that Muhammad Ashraf SI (PW.12) who investigated this case categorically stated during his cross examination that the dispute regarding giving of hand of daughter of Muhammad Yaqoob was not discussed during course of investigation; that even otherwise motive was alleged exclusively against Abdul Majeed co-accused of the appellant who has since been acquitted by the learned trial court and no appeal against his acquittal was preferred either by the complainant or by the State; that nothing was recovered at the instance of the appellant and recovery of .12 bore gun (P.1) has been planted upon the appellant; that positive report of Forensic Science Laboratory (Exh.PO) is also not free from doubts as the crime empty was received in the office of Forensic Science Laboratory on 10-10-2007 i,e, after the arrest of the appellant on 25-9-2007 and alleged recovery of .12 bore gun from him on 28-9-2007; that there are material contradictions in the statements of the prosecution witnesses as it is the case of the complainant in the FIR as well as before the learned trial court that Muhammad Yaqoob (deceased) was initially injured at the hands of the appellant and in injured condition he was shifted to Noor Hospital at Kot Radha Kishan where he succumbed to the injury whereas the other witness of ocular account namely Muhammad Arshad (PW.10) categorically stated in his examination in chief that Muhammad Yaqoob died at the spot; that Iftikhar Ahmad 441/C (PW.8) who escorted the dead body to DHQ Hospital Kasur stated that at about 1:30 a.m the dead body of the deceased was handed over to him whereas the Investigating Officer (PW,12) stated during his cross examination that he had dispatched the dead body of the deceased to the hospital at Subah Azan-vaila through Iftikhar Ahmad; that viewing from all angles the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right; that version of the appellant disclosed by him while making statement under section 342, Code of Criminal Procedure and put to the witnesses of ocular account during their cross examination is more probable and gets support from prosecution's own case.
8. Notice was issued to the complainant of the case, who is present in person and states that due to financial constraints he is not in a position to engage a learned counsel and would be satisfied with the arguments of learned Deputy District Public Prosecutor for the State.
9. On the other hand, learned Deputy District Public Prosecutor, assisted by the complainant, opposes this appeal on the grounds that the occurrence took place at evening time in a village and if over all circumstances such as time of occurrence, distance between the Police Station and the place of occurrence and social status of the complainant's side are taken into consideration, there was no conscious or deliberate delay in reporting the crime to the Police; that both the witnesses of ocular account though are not residents of the village where the occurrence took place but they have given a specific reason for going to the place of occurrence which is to the effect that they had gone to Chhena Ottar to attend the birthday ceremony of paternal grand daughter of Rana Muhammad Arif and it was never denied by the defence that the birthday party was scheduled on the day of occurrence rather it is the case of defence that the appellant also made firing in the said birthday party; that it is a case of single accused so far as the occurrence of firing at Muhammad Yaqoob (deceased) and Muhammad Afzaal minor (injured) is concerned and substitution in such like cases is a rare phenomenon as kith and kin of the deceased would not implicate an innocent person by letting off the real culprit; that the ocular account is fully supported by the medical evidence; that the prosecution case is also corroborated by the recovery of 12 bore gun (P.1) at the instance of the appellant which was taken into possession vide recovery memo (Exh.PB) and according to the report of Forensic Science Laboratory (Exh.PO) the empty (P.5) collected from the place of occurrence vide recovery memo (Exh.PK) was fired from the .12 bore gun recovered at the instance of the appellant; that version of the appellant disclosed by him while making statement under section 342, Code of Criminal Procedure is just an afterthought; that even otherwise when an accused takes a specific plea, the burden to prove the same lies on him in view of Article 121 of Qanun-e-Shahadat Order, 1984 but in this case the appellant neither appeared as his own witness in disproof of the prosecution allegations as provided under section 340(2)
Code of Criminal Procedure nor did he produce any evidence in his defence; that the prosecution has successfully brought home guilt against the appellant to the hilt and there is no merit in this appeal; that the appellant caused death of Muhammad Yaqoob (deceased) brother of the complainant by firearm injuries and launched a murderous assault upon minor Muhammad Afzaal, therefore, he does not deserve any leniency in the quantum of his sentence.
10. I have heard learned defence counsel of the appellant as well as the learned Deputy District Public. Prosecutor for the State and have also gone through the record.
11. Admittedly, it is a case of two versions. One set out by the prosecution in the FIR (Exh.PD/1) and brought on the record through the statements of Muhammad Arshad (PW.10) and Muhammad Siddique complainant (PW.11) and the second disclosed by the appellant in his statement recorded under section 342, Code of Criminal Procedure, and put to the witnesses of ocular account as well as the Investigating Officer, during their cross examination. In such like situation, the court is required to first analyze the prosecution case in order to ascertain its truthfulness or otherwise. In this respect, I am guided by the judgment of the Hon'ble Supreme Court of Pakistan passed in the case reported as "Ashiq Hussain v. State" (PLD 1994 SC 879) wherein, at page 883, the Hon'ble Supreme Court has been pleased to observe as under:-- "9. ...The proper and the legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eyewitnesses and the probability of the story told by them, and then examine the statement of the accused under section 342, Cr.P.C., statement under section 340(2), Cr.P.C. And the defence evidence. If the Court disbelieves/rejects/ excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, is exculpatory, then he must be acquitted. If the statement under section 342, Cr.P.C. Believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only, In case of counter versions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing in the case at close before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the questions, viz., is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case? If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly."
' The above view of the Hon'ble apex court of the country has been reiterated in another judgment reported as "Amin Ali v. The State" (2011 SCM R 323), therefore, following the principles settled by the hon'ble Supreme Court of Pakistan in such like situation, I will first, examine the case of the prosecution.
12. Case of the prosecution has been discussed in para 3 above. Gist of the same is that on 28-8- 2007 complainant along with Salamat Ali (PW since given up) and Muhammad Arshad (PW.10) had come to village Chheena Ottar in order to participate in the birthday function of paternal grand daughter of Arif Ali. Muhammad Yaqoob brother of the complainant was also called for baking naans. At about 7:00 p.m. Muhammad Yaqoob while lifting his son namely Afzaal was going in the street. Muhammad Ashiq (appellant) on the asking of Abdul Majeed (accused since acquitted) made a fire with his pump action gun which landed on the back side of head towards neck of Muhammad Yaqoob. The said fire shot also landed on both the shoulders of Afzaal Ahmad aged about 2-1/2 years. Complainant along with Salamat Ali and Muhammad Arshad witnessed the occurrence and took Muhammad Yaqoob to Kot Radha Kishen Hospital in injured condition where he succumbed to the injury whereas the child was in injured condition.
13. This incident, wherein Muhammad Yaqoob (deceased) brother of the complainant lost his life whereas minor Muhammad Afzaal was injured took place in village Chhena Ottar on 28-8-2007 at 07.00 p.m. Whereas the matter was reported to the Police on the same night at 11:30 p.m, i,e, with the delay of four hours and thirty minutes and formal FIR was registered on 29-8-2007 at 12:30 a.m.
The complainant has stated in his statement (Exh.PD) that after the occurrence he shifted his brother in injured condition to Noor Hospital at Kot Radha Kishan where he succumbed to the injuries. No doctor from Noor Hospital Kot Radha Kishan appeared before the learned trial court nor any documentary evidence in this respect was brought on the record. The story of shifting the deceased to the hospital is belied from another circumstance as Muhammad Arshad (PW.10) another eyewitness has stated before the learned trial court in his examination in chief that Muhammad Yaqoob died at the spot. While appearing before the learned trial court the complainant stated that after the death of Muhammad Yaqoob he shifted his dead body in a tractor trolley to the place of occurrence from the hospital and then reported the matter to the Police which appears to be highly improbable as it does not appeal to prudent mind why the complainant preferred shifting of dead body of Muhammad Yaqoob from hospital to the place of occurrence instead of reporting the crime to the Police. Moreover post mortem examination on the dead body of Muhammad Yaqboob (deceased) was conducted on 29-8-2007 at 11.30 a.m. i,e, eighteen hours after the occurrence and twelve hours after the registration of FIR and there is nothing on the record as to why the post mortem examination was not earlier conducted, therefore, this delay in reporting the crime to the Police and in C conducting the post mortem examination on the dead body of Muhammad Yaqoob (deceased) casts shadows of doubt upon the veracity of prosecution story and places a question mark upon the presence of both the witnesses of ocular account at the place of occurrence.
14. Ocular account in this case was furnished by Muhammad Arshad (PW.10) and Muhammad Siddique complainant (PW.11). The occurrence took place at Chhena Ottar whereas the complainant was resident of Rao Khanwala and the other witness of ocular account namely Muhammad Arshad was resident of Muralian Hithar. Muhammad Arshad (PW.10) stated during his cross examination that the distance between Marali Hithar and Chhena Ottar is about 18-19 kilometers and as such both the witnesses of ocular account are chance witnesses. They have given a specific reason for going to the place of occurrence which is to the effect that they had gone to attend the function of birthday ceremony of paternal grand daughter of Rana Muhammad Arif but they have not disclosed any relationship with said Rana Muhammad Arif. Rana Muhammad Arif did not appear before the learned trial court. During the cross examination the complainant could not tell the name of the child whose birthday was allegedly scheduled on the day of occurrence and similarly name of father of the said child D also could not be disclosed by the complainant and as such story of prosecution that both the witnesses of ocular account had gone to Chhena Ottar to attend the birthday party also could not be proved during the trial.
15. The pictorial diagram attached with the post mortem examination report (Exh.PM) of Muhammad Yaqoob (deceased) shows that the entry wound on his person was on the upper side of neck whereas the exit was on the lower side shoulder which suggests that at the time of firing at Muhammad Yaqoob (deceased) the assailant was at a higher place but this circumstance was not explained either in the FIR or by the witnesses of ocular account while appearing before the learned trial court rather it is the case of both the witnesses of ocular account that Muhammad Yaqoob was going in the street and he was fired at by Muhammad Ashiq (appellant) from behind.
It is also case of the prosecution in the FIR as well as before the learned trial court that Muhammad Afzaal minor son of Muhammad Yaqoob was also injured by the firing of the appellant. Said Muhammad Afzaal was medically examined by Dr. Ijaz-ul-Hassan (PW.5) on 30-8-2007 occurrence and there is nothing on the at 5.00 p.m. i,e, two days after the record as to why said Muhammad Afzaal was not taken to the hospital for medical treatment/examination prior to 30-8- 2007.
16. Motive behind the occurrence as alleged in the FIR was that Abdul Majeed (accused since acquitted) wanted to get rishta from Muhammad Yaqoob, which was refused. It has been mentioned in the FIR that Mst Khalida Bibi wife of the Muhammad Yaqoob (deceased) stated that he had refused to give one rishta, therefore, she will give the rishta of other daughters to them (accused party) and due to this grudge Muhammad Ashiq on the instigation of Abdul Majeed had committed the murder of Muhammad Yaqoob. While appearing before the learned trial court the complainant was unable to disclose the name of the boy for whom hand of the daughter of deceased was demanded by Abdul Majeed. Moreover name of Khalida Bibi widow of Muhammad Yaqoob also appeared in the motive part of the occurrence but said widow of Muhammad Yaqoob (deceased) was also not produced by the prosecution either during the investigation or before the learned trial court. Muhammad Ashraf SI (PW.12) who investigated this case during his cross examination categorically stated that the matter of giving hand of daughter of the deceased was not discussed during the course of investigation. Moreover, the motive was exclusively alleged against Abdul Majeed co-accused of the appellant who has been acquitted by the learned trial court by extending benefit of doubt and no appeal against his acquittal has been preferred either by the State or the complainant as confirmed by the learned Deputy District Public Prosecutor as well as the complainant present in the court, therefore, the motive which has not been believed against Abdul Majeed co-accused of the appellant since acquitted cannot be used against the appellant for maintaining his conviction.
17. The recovery of .12 bore gun (P.1) allegedly at the instance of Muhammad Ashiq appellant which was taken into possession vide recovery memo (Exh.PB) and positive report of Forensic Science Laboratory (PO) are also not free from doubts as according to the report of Forensic Science Laboratory the crime empty was received there on 10-10-2007. It is pertinent to mention here that prior to the receipt of crime empty in the Forensic Science Laboratory on 10-10-2007 the appellant had already been arrested by Muhammad Ashraf, SI (PW.12) on 25-9-2007 and alleged recovery of .12 bore gun had already been effected from him on 29-9-2007, therefore, chances of padding cannot be ruled out and it is not safe to rely on these pieces of evidence to maintain conviction of the appellant on a capital charge.
18. Now I take up the version of the appellant disclosed by him in his statement recorded under section 342. Code of Criminal Procedure and put to the witnesses of ocular account as well as the Investigating Officer during their cross examination. Since it has already been concluded that the prosecution case is doubtful in nature, therefore, there is no need to discuss the defence version, which even otherwise is exculpatory in nature.
19. In view of the above, this appeal is allowed and the conviction and sentence awarded to the appellant vide judgment dated 19-11-2009 passed by the learned Additional Sessions Judge, Kasur, is set aside. The appellant is acquitted of the charge. He is in jail and be released forthwith if not required to be detained in any other case.