Ch. Mushtaq Ahmad, J.--Appellant Muhammad Fazil alongwith 10 others was tried by learned Additional Sessions Judge Mian Channu in case FIR No.289 dated. 7.7.201 1 registered under sections 302, 109, 148, 149 PPC at Police Station Saddar Mian Channu, District Khanewal. Murder Reference No.47 of 2014 for confirmation of death sentence awarded to convict Muhammad Fazil is also before the Court. Complainant Allah Ditta also preferred Criminal Appeal No.297 of 2014 against acquittal of respondents No.2 to 11. We propose to dispose of all these matters through this single judgment.
2. On conclusion of trial appellant was convicted u/s 302(b) PPC and sentenced to Death . He was also held liable to pay Rs. 5,00,000/- as compensation recoverable as arrears of land revenue to the legal heirs of deceased Muhammad Fazil in terms of section 544-A Cr.P.C. vide judgment dated 30.4.2014 passed by learned Additional Sessions Judge, Mian Channu. The remaining accused, namely , Muhammad Sharif, Manzoor , Muhammad Ramzan alias Farooq, Muhammad Yar, Muhammad Ramzan S/o Fareed, Mazhar , Feroze, Muhammad Adil, Sajjad alias Sajid and Sarfraz were acquitted.
3. FIR (Exh.PC) was lodged on written application (Exh.PD) of Allah Ditta (PW-7) mentioning therein that on 7.7.201 1 at 5.30 p.m. he alongwith his brother Hafiz Umer Draz (deceased), Muhammad Zaman and Fateh Sher proceeded to Chak No.127/15L to purcha se Buffaloes; that as soon as they reached near Square No. 121, Killa No.22 owned by Fida, accused Fazil, Sharif, Fareed, Farooq all armed with Rifles, Manzoor and Muhammad Yar both armed with Pistols came out from bushes around water course; on seeing Umer Draz, accused Farooq raised Lalkara that they would teach him a lesson for giving beating to Adil; that within the sight of PWs Fazil (appellant ) made a fire shot with Rifle hitting on right side of chest of Umer Draz, fire shot made by' Manzoor with 30 bore pistol hit Umer Draz on his neck, Ramza n made fire shot with Rifle which hit Umer Draz on his chin whereas fire shot made by Muhammad with 30 bore pistol hit Umer Draz on right side of his wrist, likewise fire shot made by accused Farooq passed over the head of Umer Draz; that on receiving fire shots Umer Draz fell on the ground and succumbed to the injuries whereas accused Farooq and Sharif kept on making aerial firing. According to complainant aforesaid incident took place on the instigation of co-accused Adil, Sajid, Sarfraz, Feroze and Mazhar whose conversation was heard by PWs Muhammad Nawaz and Ahmed on the fateful day at 8.00 a.m. prior to the occurrence.
Motive behind the occurrence was that accused Fazil wanted to marry with Nadia Mai Daughter of Bashir with whom complainant's brother Umer Draz, two month prior to the occurrence, had already been engaged and their marriage was to be solemnized three days prior to Ramzan-ul-Mubarak. In this regard a few days prior to the occurrence a scuffle took place between Fazil and Umer Draz when Fazil extended threats of dire consequences to Umer Draz in case he married with Nadia. Even at early hours of the day of occurrence at 7.00 a.m. some hot words were exchanged between Umer Draz and Adil, as a result of which, Umer Draz gave beating to Adil who was subsequently admitted in the hospital. So, in order to take revenge all accused by making an unlawful assembly duly armed with firearm weapons assaulted on complainant party and thus, cause d death of complainant's brother Umer-Draz.
4. To prove the charge against accused prosecution got examined eleven witnesses. After closing prosecution case on 12.3.2014, statements of accused including present appellant Fazil under sectio n 342 Cr.P.C. were recorded on 16.1.2014 wherein they denied the charge. In answer to a question why this case against him and why the PWs deposed against him, appellant replied as under:-- "Complainant and the PWs are inter se close relatives. Both the PWs named Fateh Shair and Ahmad Yar, are brother -in-law (Behnoi) of the complainant. No independent witness "appears either before the I.O. or before the Court to support the version of the complainant. The deceased Umer Draz was killed during dacoity . The I.O.
Muhammad Iqbal, S.I. while appearing as PW-11 admitted in his deposition before the Court that on search of the dead body nothing was recovered from him at all which shows that dacoits had killed the deceased after looting him. Neither the complainant nor anyone else was present on the venue nor any body saw the happening of this occurrence. When actual culprits were not traced, the complaint and the PWs after consultation, involved us in this case due to suspicion on account of altercation which took place between my father Aadil and Umer Draz, deceased in the early morning. The complainant and the PWs deposed falsely against us. I am innocent."
On conclusion of trial appellant was convicted and sentenced as mentioned in the opening paragraph of this judgment.
5. Learned counsel for the appellant argued that judgment passed by the trial Court was against law and facts of the case; that on the same evidence co-accused having pivotal role were acquitted by disbelieving the ocular account; that it was an unwitnessed occurrence as the prosecution witnesses could not prove their presence at the spot at the relevant time beyond reasonable doubt; that post-mortem of deceased was conducted after considerable delay which indicated that police consumed time to cook up a false story; that there were material contradictions between the statements of both the eye witnesses qua ocular account of the occurrence; that the witnesses made dishonest improvement while appearing before the trial Court which created reasonable doubt in the veracity of prosecution version and that the learned trial Court has not correctly appreciated the evidence produced.
6. Conversely , learned Deputy Prosecutor General assisted by learned counsel for the complainant has opposed the contentions and argued that ocular account of the prosecution was consistent regarding time, place and mode of occurrence; that there was no conflict between medical evidence and ocular account coupled with positive report of FSL and that learned trial Court wrongly acquitted co-accused who were also liable to be convicted.
7. Arguments heard. Record perused.
8. It is not denied that out of eleven accu sed, 10 were acquitted by the trial Court on the same evidence. As per contents of First Information Report (Exh.PC ) role attributed to present appellant was that he made fire shot with Rifle hitting on right side of chest of Umer Draz, (deceased ). Ocular account was furnished by PW-7 Allah Ditta (complainant ) and PW-8 Fateh Sher. While appearing before the Court both the witnesses deviated from their earlier statements recorded u/S. 161 Cr.P.C. qua mode, venue and kind of weapon used by accused during occurrence. It is an admitted fact that this case was investigated twice by two different agencies. Right from the first day of incident (i.e.7.7.201 1) till conclusion of second investigation, prosecution case was that present appellant made fire shot with Rifle on right side of chest of Umer Draz, deceased. Muhamm ad Iqbal, S.I. who was the first Investigating Officer of this case whit appearing before the Court as PW-11 in cross-examination stated that during investigation none of the PWs including complainant got recorded any supplemen tary statement for correction of record regarding accused Fazil (appellant ) being armed with Pistol instead of Rifle. He further stated that except two empties of 30 bore Pistol no empty of any other kind of weapon was collected from the spot. In size and shape of these two weapons Pistol and Rifle there is a lot of difference which cannot be ignored. Both these witnesses improved their version before the Court qua kind of weapon used by the appellant. It is an admitted fact that firearm injuries assigned to co-accused Manzoor and Ramzan (since acquitted) on neck and chin were not found on the person of deceased by PW-10 Dr. Muhammad Akbar who provided medical evidence. Moreover , if size and locale of wounds as mentioned in PMR are taken into consideration it cannot be said with certainty that those were caused with Rifle. So, medical evidence is irreconcilable with ocular account. Admittedly eye witnesses were closely related to the deceased. While appearing before the Court they made dishonest improvements just to make the case compatible with prosecution version contained in the First Information Report.
9. Another important fact which belied presence of eye witnesses at the spot was delayed post-mortem examination of dead body . As per opinion of doctor (PW-10) duration between injuries and death was instantaneous whereas death and post-mortem was within about 10 to 11 hours. It appears that nobody knew about actual culprits and complainant party consumed time and after consulta tion implicated the accused by throwing wide net in respect of an unwitnessed occurrence.
10. Motive for the' occurrence was that present appellant wanted to marry with Mst. Nadia daughter of Bashir who was already engaged with Umer Draz, deceased and their marriage was going to be solemnized three days before Ramzan-ul-Mubarak. In this context three days prior to the occurrence a scuffle also took place between appellant and deceased in which appellant extended threats of dire consequences to the deceased in case he did not desist from marrying with Mst. Nadia. Neither during investigation nor before Court Mst. Nadia or her father Bashir was produced to support prosecution case. So, in absence of their statements who were the most relevant witnesses of motive, it could not be said that prosecution had succeeded to prove motive part of the occurrence beyond reasonable , doubt.
11. 'In this backdrop, the stance taken by the defence during trial seems to be more plausible. The overall analysis of prosecution evidence produced leads us to the conclusion that there are a number of circumstances that create doubt as to the veracity of testimony of prosecution witnesses whereas a single instance of this nature creating reasonable doubt is sufficient to record acquittal by giving benefit thereof to the accused. Reliance may be placed upon " Ghulam Qadir Vs The State" (2008 SCMR 1221 ).
12. For the reasons recorded above, this criminal appeal is allowed . The conviction and sentence of appellant Muhammad Fazil vide impugned judgment dated 30.4.2014 handed down by learned Additional Sessions Judge, Mian Channu is set aside. He is acquitt ed of the charge. Appellant shall be released from jail forthwith, if not required in any other .
13. As a sequel to the above, Murder Reference No.47 of 2014 for confirmation of death sentence awarded to convict Muhammad Fazil is answered in the Negative .
14. Criminal Appeal No.297 of 2014 filed by Allah Ditta, complainant against acquittal of respondents No.2 to 11 in view of findings recorded above is dismissed .