SARDAR TARIQ MASOOD, J.---Through these appeals, with leave of the court, Haleem and Nasir Ali (Appellants in Criminal Appeal No, 192 of 2014), Shajjar Abbas (Appellant in Criminal Appeal No, 193 of 2014), Muhammad Saleem (Appellant in Criminal Appeal No, 194 of 2014) and Farooq alias Malkoo (Appellant in Criminal Appeal No, 110 of 2015) impugn the judgment dated 02.10.2013 passed by a division bench of the Lahore High Court, Lahore through which the conviction under sections 302, 148, 149 and 460, P.P.C. passed by the learned trial court against the appellants was converted into section 396, P.P.C. and sentence of death, awarded to Haleem, Nasir Ali and Muhammad Saleem son of Ali Muhammad, was altered to imprisonment for life.
2. The appellants Haleem, Nasir Ali and Muhammad Saleem son of Ali Muhammad had been tried by the learned Additional Sessions Judge whereby Shajjar Abbas and Farooq alias Malkoo, appellants were tried separately for offence under sections 302, 148, 149 and 460, P.P.C. in case FIR No, 535 registered on 27.09.2008 at Police Station Chuchak, District Okara. After a full-fledged trial, the appellants Haleem, Nasir Ali and Muhammad Saleem vide separate judgments dated 19.07.2011 were convicted under sections 302(b)/149, P.P.C. and sentenced to death as Ta'zir with direction to pay Rs, 100,000/ - each as compensation to the legal heirs of the deceased in terms of section 544-A, Cr.P.C. or in default thereof to further undergo one year's R.I. whereas Shajjar Abbas and Farooq alias. Malkoo were sentenced to imprisonment for life with direction to pay Rs, 50,000/- each to the legal heirs of the deceased or in default thereof to further undergo six months' R.I. All the appellants were further convicted under section 460, P.P.C. and sentenced to imprisonment for life whereas under section 148, P.P.C. they were sentenced to three years' R.I. each with benefit of section 82-B, Cr.P.C. The division bench of the High Court, vide the impugned judgment, converted their conviction and sentence as mentioned above, hence these appeals by leave of the court for reappraisal of the whole evidence.
3. The prosecution version, mentioned in the FIR, is that on the night between 26th/27th September, 2008 at about 11:30 p.m., the complainant, Muhammad Ifraheem (PW-1) along with his brothers namely Muhammad Aslam, Muhammad Ashraf and uncle Muhammad Mansha were sleeping in the courtyard and on hearing the noise of barking of dog, they woke up and in the light of lantern they saw the appellants along with Saleem son of Bakhsha (Proclaimed Offender) were present in the courtyard and on gunpoint demanded the keys and snatched cash, ID card and wrist watch from them whereas Muhammad Aslam deceased caught hold Saleem appellant upon which Nasir appellant fired a shot with his rifle hitting beneath the left eye of Muhammad Aslam who fell down and succumbed to the injury whereas all the accused while firing indiscriminately fled away.
4. We have heard the learned counsel for the appellants as well as the learned Additional Prosecutor General, Punjab and perused the record with their able assistance.
5. According to prosecution's own case, the occurrence took place at odd hours of the night of 26.09.2008 at about 11:30 p.m. No effort was made by the complainant to inform the police and investigating officer, who at his own, arrived at the place of occurrence at about 01:30 a.m. on 27.09.2008 and recorded the statement (Exh.PA) of the complainant, upon which a formal FIR was chalked out but we observe that recording of FIR at the spot at the given time is doubtful because the document .i,e, inquest report etc. were produced before the doctor on 27.09.2008 at about 3:00 p.m. and the postmortem was conducted. There is no plausible explanation as to why the postmortem was riot conducted promptly. The unexplained delayed autopsy indicates that the FIR was drawn up after due deliberation and consultation because according to Doctor (PW-4) as soon as the documents were produced before him at about 3:00 p.m. he immediately conducted the postmortem examination. There is no explanation on the part of prosecution as to why the postmortem was delayed for more than thirteen hours of the registration of the case. The occurrence took place at odd hours of the night and the only source of light mentioned by the witnesses was of a lantern which was allegedly lighting at that time. According to site plan, lantern was available at point "C" which was almost in the center of the courtyard but the witnesses furnishing ocular account claimed that the said lantern was hanging with the door of the house. No other source of light is available at the place of occurrence and during investigation no such lantern was taken into possession by the investigating officer. Due to this reason, the identification of the assailants is also doubtful especially when the complainant, Muhammad Ibraheem (PW-1) admitted that in order to trace out the assailants, foot tracker was also arranged for. Non-recovery of lantern gives rise to the presumption that it was not available at the place of occurrence. The statement of witnesses of the ocular account is also doubtful for the reason that according to site plan, the assailants fired the shot from a distance of about four karams (22 feet) but blackening and burning around the margin of wound indicate that the shot was fired from a very close range and according to doctor, the shot was fired within three feet from the victim. This inconsistency of ocular account with medical evidence, negates the presence of the witnesses at the spot. Both the witnesses made dishonest improvement while making statement in the court regarding the role of each accused qua snatching of articles from the witnesses. They were duly confronted with their previous statement where no such specific role was given. This deliberate and dishonest improvement on their part makes their statements doubtful and unreliable. The deceased received only one fire-shot and at that time, according to prosecution, he had caught hold of one of the assailants. This situation does not appeal to a prudent mind that one companion will fire a shot upon the deceased when his other companion was also within the range of the said fire shot.
According to prosecution, Nasir Ali was armed with a rifle but during investigation, a .12 bore gun allegedly was recovered from him which had not matched with any crime empty. We have observed that according to site plan and investigation, no crime empty was recovered from the place of occurrence however certain weapons of office was allegedly recovered from the appellants. Zulfqar Ali, Muharrar (PW-8) kept the parcel of blood stained earth and the weapons of offence which he handed over to Khadim Hussain, Constable who appeared as PW-3 and he also did not utter a single word regarding dispatch of any parcel of crime empties but the dishonest investigation is exposed from the fact that some crime empties of .12 bore and 303 bore had been received in the office of Forensic Science Laboratory on 18.12.2008 and weapon of offence were deposited in the said office on 03.01.2009. Regarding the recovery of crime empties, the whole prosecution case is silent and only the report of FSL indicates that some crime empties of .12 bore and 303 bore had been received in the said office through Khadim Hussain, Constable (PW-3) but he is silent about it. This padding on behalf of investigating officer makes the whole case doubtful.
Even otherwise, the report of FSL is inconsequential because the alleged empties were received in the said office much after the arrest of the accused. Although certain cash amount was allegedly recovered from some of the appellants but the said recovery is also inconsequential as nobody claimed during trial that it was the same amount which was snatched from the witnesses.
6. From the above discussion, it is quite clear that prosecution had failed to prove the case against the appellants. Consequently, these appeals are allowed. All the appellants, in these appeals, are acquitted of all the charges. Their conviction and sentence on all the charges is set aside. They shall be released forthwith, if not required to be detained in any other case.
7. Foregoing are the reasons of our short order, announced in the open court on 10.10.2016, which is reproduced hereunder: - "For the reasons to be recorded later, these appeals are allowed, the conviction and sentence of the appellants recorded by the Trial Court and partially upheld by the High Court are set aside, and they are acquitted of the charge. They be released forthwith if not required in any other case."