CH. MUSHTAQ AHMAD, J.---This judgment will dispose of Criminal Appeal No,1758/2009 filed by Muhammad Irshad appellant as well as Criminal Appeal No,1916/2009 filed by complainant along with Murder Reference No,342/2009. Appellant was convicted by learned Additional Sessions Judge, Pakpattan Sharif, in private complaint filed under sections 302/109/148/149, P.P.C. Police Station Malka Hans vide impugned judgment dated 22.10.2009 and sentenced as under:- Appellant Muhammad Irshad:- Death as Ta'zir under section 302(b), P.P.C. And to pay Rs, 1,00,000/- as compensation to the legal heirs of deceased as required under section 544-A, Cr.P.C. And in default of payment, to further undergo S.I for six months.
We propose to decide all the matters through this consolidated judgment.
2. Muhammad Ramzan was gunned down at 01.30 a.m. On 28.07.2005 in the area of village Bonga Shams at a distance of 6 kilometers from Police Station Malka Hans District Pakpattan. His father Muhammad Yaqoob (PW-1) reported the incident to Muhammad Asghar SI/SHO (CW-9) at 05.20 a.m. Nominating five accused namely Irshad (appellant), Zulfiqar, Abdul Ghaffar, Sufi Nazir Ahmad and Maqbool Ahmad who were variously armed. Arshad with .44 bore rifle fired at Muhammad Ramzan hitting at his abdomen. Similarly, Zulfiqar fired with rifle and the shot hit at abdomen. Then Irshad fired a shot hitting on right-side of chest. Then the accused made firing with their respective weapons. Muhammad Ramzan succumbed to the injuries at the spot.
3. Complainant dissatisfied with the investigation filed private complaint (Ex.PA.) on 20.01.2006 in which 9 accused were nominated. Siddiqqe and Sadiq sons of Nawab, Falaksher and Muhammad Ali sons of Abdul Aziz were added on the allegation of abetment. As per contents of complaint, the police with connivance of accused had not correctly recorded version of complainant in FIR nor detailed the description of injuries to the deceased and attribution to the accused thereof, which compelled him to lodge the private complaint.
4. After registration of FIR, Muhammad Asghar SI(CW-9) visited the place of occurrence, inspected the deadbody, prepared injury statement and inquest report. Apart from rough site plan he also recorded statements of witnesses under section 161, Cr.P.C. He collected blood stained earth from place of occurrence and four crime empties of .44 bore rifle and one missed bullet along with broken butt of gun .12 bore. Muhammad Ayub PW produced before him emergency light which he took into possession vide recovery memo. Ex.PE. He also arrested accused Maqbool Ahmad in this case on 22.09.2005. On his transfer, further investigation was conducted by CW-7 and CW-8.
5. In the private complaint, accused were summoned after recording cursory evidence. Irshad (appellant) did not appear before the court and he was declared P.O along with accused Zulfiqar and Abdul Ghaffar. Charge was framed on 20.01.2007 against six accused persons. On 20.011007, present appellant was however, arrested and was charged along with his co-accused on 17.01.2009. Statements of PW-1 to PW-5 were recorded whereas CW-1 to CW-9 were examined as court witnesses. On conclusion of trial, learned Additional Sessions Judge convicted the present appellant under section 302(b), P.P.C. And sentenced him to death, as Ta'zir with compensation of Rs,1,00,000/- to be paid to the legal heirs of deceased and in default of payment, to further undergo SI for six months whereas co-accused namely Sufi Nazir Ahmad, Maqbool, Siddique, Sadiq, Falaksher and Muhammad Ali were acquitted from the charge vide impugned judgment dated 22.10.2009.
6. Learned counsel for appellant contended that it was an unseen occurrence reported with delay for which no plausible explanation was furnished by prosecution; that the complainant changed his version contained in the FIR by graduating number of accused from 5 to 9 which clearly indicated that he spread wide net in order to involve innocent persons; that while appearing before the court, the witnesses made dishonest improvements rendering their testimony unworthy of credit; that the recovery of weapon in this case was inconsequential as report of Forensic Science Laboratory was negative; that the learned trial court on the same set of evidence had acquitted bulk of accused, hence, the present appellant was wrongly convicted on the same set of evidence; that prosecution has miserably failed to prove charge against appellant beyond reasonable doubt hence, he was entitled to acquittal.
7. Learned counsel for complainant assisted by learned Deputy Prosecutor General argued that delay in reporting the matter was well explained; that presence of witnesses at the place of occurrence was natural and the ocular account was corroborated by medical evidence; that the present appellant remained fugitive from law for a long time which also supported the prosecution case against him; that the complainant had filed appeal against acquittal as the learned trial court has not correctly appreciated evidence in this case; that appeal filed by Muhammad Irshad (appellant) was liable to be dismissed.
8:- We have heard the arguments and gone through the record.
9. Ocular account in this case was furnished by Muhammad Yaqoob (PW-1) father of deceased Muhammad Ramzan and Muhammad Boota (PW-2) brother of deceased. Muhammad Ayub, the third eyewitness was given up by the complainant. As per prosecution, complainant along with his three sons namely Muhammad Ramzan (deceased), Muhammad Boota (PW-2) and Muhammad Ayub, was present in their paddy crop in square No,25, Killa No,9. Complainant, Muhammad Boota and Muhammad Ayub were sitting when Muhammad Ramzan (deceased) went to have a look of crop which was being irrigated at that time. At 01.30 a.m. Accused suddenly emer,ged, Sufi Nazir Ahmad (accused since acquitted) raised lalkara on which appellant, who was carrying rifle .44 bore fired and the shot hit Muhammad Ramzan at abdomen. Fire made by Zulfiqar with rifle also hit at abdomen and the second fire made by Irshad hit on right side of chest of Muhammad Ramzan and the second fire made by Zulfiqar on right arm. Then Sufi Nazir (accused since acquitted) fired with .12 bore gun and the shot hit on chest of Muhammad Ramzan and second fire made by him hit Muhammad Ramzan on left knee. Then Abdul Ghaffar fired with his rifle which hit Muhammad Ramzan on right side of abdomen and second fire made by him hit Muhammad Ramzan on right arm. Maqbool (accused since acquitted) fired with pistol and the shot hit Muhammad Ramzan on left arm. Then all the accused made indiscriminate firing. On the same lines deposed PW-2 Muhammad Boota in his statement before the court. It is pertinent to mention here that co- accused of present appellant namely Zulfiqar and Abdul Ghaffar did not appear before the trial court after being summoned in the private complaint. They were declared P.O. After completing proceedings under section 87, Cr.P.C. They were indicted on 01.04.2011 and after recording prosecution evidence, they were also convicted and sentenced to imprisonment for life each vide judgment dated 30.09.2011 passed by learned Additional Sessions Judge, Pakpattan against which they filed Criminal Appeal No,3044/2011. The above appeal has also been heard and decided today through separate judgment.
10. Place of occurrence was land belonging to the complainant (PW-1) where the deceased was gunned down at 01.30 a.m. Night. Incident was reported in the morning at 05.30 a.m. To CW-9 Muhammad Asghar SI. Complainant appeared before him when he was present at Bonga Shams at 04.50 a.m. Whereafter he proceeded to the place of occurrence and conducted preliminary investigation at the spot. He escorted deadbody to mortuary through Muhammad Hayat 9/C.
Postmortem was conducted by PW-4 Dr. Muhammad Siddique at 01.00 p.m. As per his version as soon as the deadbody reached in the hospital, he conducted autopsy. Admittedly, it was night occurrence. All the eye-witnesses were close relatives of the deceased. Muhammad Asghar SI explained in cross-examination that deadbody was lying east- A west, its face was downwards indicating that at night deadbody remained unattended. It is further to be noticed that as per complainant, he had purchased land measuring 4 acre due to which accused got annoyed against him and filed a pre-emption suit which was pending apart from criminal litigation between the parties which shows that main grievance of the accused was against complainant at the relevant time. According to the witnesses, accused were armed with deadly weapons but complainant and his two sons namely Muhammad Ayub and Boota did not receive a scratch during the incident nor they informed the police at night. Conduct of the complainant and his two sons was unnatural. It is evident from the ocular account that the witneeses did not make any effort to save the life of deceased, their close relative. As per statement of PW-4 Dr. Muhammad Siddique, all entry wounds are blackened and charred and the size of all the wounds was 1.5 x 1 c.m.
He further explained that all the injuries were caused by one weapon from the same distance.
According to him all injuries could be caused by two weapons of same nature. The ocular account in this case, therefore was not in line with medical evidence. The recovery of rifle was also inconsequential for the reason that report of Forensic Science Laboratory (Ex.PK) was negative.
Crime empties secured from the place of occurrence along with missed cartridges of .44 bore were examined and compared with the test empties prepared from the rifle .44 bore allegedly recovered at the instance of Muhammad Irshad (appellant) and it was found that crime empties had not been fired from the rifle sent to Forensic Science Laboratory. If direct evidence is weak and is found unreliable as well as un-trust worthy, conviction against the accused cannot be based on it, even if it is corroborated by supporting evidence. Presence of PW-1 and PW-2 at the place of occurrence at the relevant time was highly doubtful. Both the witnesses not only made improvements in their statements inconsistent to the stance taken by them before the police during investigation but also graduated number of accused by adding four accused persons on the charge of abetment along with two witnesses namely Muhammad Waris son of Adalat and Akbar son of Ali Muhammad. PW-3 Waris Ali made allegation of conspiracy which being unreliable was rejected by trial court. Trial court had acquitted co-accused on the same set of evidence. Sufi Nazir Ahmad co-accused (since acquitted) was also attributed a fire shot which hit on the chest of the deceased and second fire shot made by him on left knee of the deceased as statements of PW-1 Muhammad Yaqoob, father of the deceased and PW-2 Muhammad Boota, brother of the deceased. One fire shot was also attributed to Zulfiqar co-accused (since acquitted) which hit on right arm of the deceased. Eye-witness account qua the acquitted accused was disbelieved by the trial court whereas the present appellant was convicted. Ocular account being indivisible in nature, in the absence of strdng corroboratory evidence coming from independent source, could not be made basis for recording conviction. Presence of main prosecution witnesses at the scene of crime was doubtful. Ocular account in cases of Qatl-i-amd played a decisive and vital role and once its intrinsic worth was accepted and believed, then rest of the evidence, both circumstantial and corroboratory in nature would be required as a matter of caution; to the contrary, once the ocular account was disbelieved, then no other evidence even of a high degree and value, would be sufficient for recording conviction on a capital charge. Probative value of the ocular account had to be seen in the light of facts and circumstances of each case. Keeping in view the above yard stick and the given facts and circumstances of the case in hand, the conclusion we have come to is that prosecution in this case had failed to prove charge against appellant beyond reasonable doubt, benefit whereof will go to him as a matter of right.
11. Consequently, Criminal Appeal No,1758/2009 is allowed, conviction recorded by learned trial court is set aside, appellant is acquitted of the charge from this case, appellant Muhammad Irshad is in jail, he be released forthwith if not required in any case. Murder Reference No,342/2011 is answered in negative. Death sentence of appellant Muhammad Irshad is not confirmed. For above recorded reasons we see no valid ground to interfere in the acquittal recorded by trial court, criminal appeal No,1916/2009 against acquittal of respondents is, therefore, dismissed.