MANZOOR AHMAD MALIK, J.---On the written application of complainant Muhammad Ahmad regarding an incident in which, according to him, the appellant killed his brother Muhammad Tayyab with a fire shot of pistol, case FIR No. 640 dated 18.09.2008 was registered at Police Station City Depalpur , District Okara, for offence under sections 302, 34, P.P.C. Thereafter , the complainant Muhammad Ahmad instituted a private complaint under sections 302, 364, 201, 34, P.P.C. because he was not satisfied with the investig ation conducted by police. The appellant and his co-accused Zeshan alias Shanay Khan were summoned to face trial and subsequently charged for offences under sections 364, 302/34 and 201/34, P.P.C. On conclusion of trial, the learned trial court, vide its judgment dated 04.05.2010, acquitted co-accused Zeshan of the charge, whereas while acquitting the appellant of the charge under sections 364 and 201, P.P.C., convicted him under section 302(b), P.P.C. and sentenced him to death. He was also directed to pay compe nsation of Rs.100,000/- to the legal heirs of deceased, in default whereof to undergo SI for six months. Aggrieved of his conviction and sentence, the appellant filed a criminal appeal before the Lahore High Court, Lahore. A murder reference was also sent by the trial court for confirmation of sentence of death of appellant or otherwise. Throug h the impugned judgment, the learned appellate court dismissed the criminal appeal and while converting sentence of death of appellant into imprisonment for life, answered the murder reference in the negative. Benefit of section 382-B, Code of Criminal Procedure was extended to the appellant.
Thereafter , the appellant filed a jail petition, wherein leave was granted by this Court on 15.01.2020. The criminal petition filed by the complainant for enhancement of sentence of convict-appellant was ordered to be heard along with instant Criminal appeal.
2. After hearing the learned counsel for the convict-appellant, learned counsel for the complainant (petitioner in connected petition) and learned Additional Prosecutor General Punjab and perusal of available record with their assistance, it has been observed by us that the occurrence, as per contents of FIR and private complaint (Ex.P A), took place on the night of 18.09.2008 at 09.00 p.m. The matter was reported to police on the same night at 09.45 p.m. whefeafter FIR was registered at 10.30 p.m. Surprisingly , post-mortem examination on the dead body of Muhammad Tayyab was conducted on 19.09.2008 at 6.30 a.m. Dr. Muhammad Sharif (PW6) who conducted autopsy stated in his cross-examination that at THQ Hospital Depalpur , the arrangements for conducting post- mortem examination are available at night; that he was on duty in the hospital on that night; that his duty started from 8.00 p.m. on 18.09.2008 till 8.00 a.m. on 19.09.2008; that he received the police papers at 6.30 a.m. on 19.09.2008. There is no explanation on record A why the autopsy on the dead body of Muhammad Tayyab was conducted with delay of more than nine hours.
3 The complainant Muhammad Ahmad (PW1) in his cross-examination admitted that the appellant and deceased Muhammad Tayyab were fast friends and used to go to the houses of each other. He further admitted that after court time, the appellant had been helping deceased Muhammad Tayyab in his official duties. If this claim of complainant regarding friendship of deceased and appellant is correct, it is not understandable why he after some time went out of his house to search Muhammad Tayyab (deceased) who as per his claim was taken by B appellant on the pretext of returning the amount, which the appellant had taken as a loan. The other eye-witness Inam ul Haque (PW2) stated in his cross -examination that he was resident of Rata Khana Road, Depalpur which was at a distance of one kilometre from the house of complainant Muhammad Ahmad (PW1). He claimed in his examination in chief that after Aftari time he was standing in Bazar when the appellant and deceased Muhammad Tayyab passed by him. He did not give any reason for his standing in the Bazar after Aftari time. Ghulam Sarwar (PW3) appeared before the trial Court and stated that he was passing near the house of appellant before Aftari time, when he heard that the appellant and his acquitted co-accused Zeshan were planning to do away with Muhammad Tayyab. According to him, after hearing this, he went to his house and next day went to Lahore for a business trip; that on the next day when he returned and heard about the murder of Muhammad Tayyab, he informed the complainant Muhammad Ahmad what he had heard while passing by the house of appellant. He admitted in his cross-examination that his residence is half a kilometre away from the house of appellant and none of his relatives lived near the house of appellant. He further admitted that deceased Muhammad Tayyab, complainant Muhammad Ahmad (PW1) and Inam ul Haque (PW2) had mobiles with them and they were always in contact with each other on mobile phone. If that is so, the question arises why Ghulam Sarwar (PW3) did not inform the complainant Muhammad Ahmad (PW 1) regarding ill intention of appellant and his co-accused Zeshan.
In the C circumstances, the conduct of complainant Muhammad Ahmad (PW1), Inam ul Haque (PW2) and Ghulam Sarwar (PW3) as well as the story put forth in the FIR and in the private complaint does not appeal to common sense. Besides, the learned trial court acquitted the appellant of the charge under sections 364 and 201, P.P.C. and no appeal against said acquittal has been filed by the complainant or the State. The recovery of pistol (P9) and positive report of FSL is of no legal consequence because the constable Khalid Mehmood 519/C who transmitted the empty allegedly secured from the spot was not produced by the prosecution. The motive behind the occurrence has not been believed by the learned appellate court by assigning cogent reasons in Para 13 of the impugned judgment. All these circumstances lead us to a definite conclusion that prosecution case against the appellant is doubtful in nature.
4. For the foregoing, the instant criminal appeal is allowed. The conviction and sentence of appellant Muhammad Adnan is set aside. He is acquitted of the charge framed against him. He is behin d the bars and is ordered to be released forthwith, if not required to be detained in any other case.
Criminal Petition No. 92-L of 2014
5. After acquittal of respondent No. 1 in the preceding paragraphs, the instant criminal petition for enhancement of his sentence has lost relevance, which is dismissed accordingly . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.