Sadaqat Ali Khan, J.--Appellant (Muhammad Imran) has been tried by learned trial Court in case FIR No. 196 Dated 25.08.2001 under Section 302/34, PPC at P.S Ahmad Nagar District Gujranwala and was convicted and sentenced vide judgment dated 26.07.2017 as under: Muhammad Imran (Appellant U/S. 302 (b), P .C Sentenced to DEATH for the murder of Muhammad Safdar (deceased) alongw ith compensation Rs. 500,000/- under Section 544-A, Cr.P.C., to be paid by him to the legal heirs of the deceased and in default thereof to further undergo 6-months S.I.
Appellant has filed appeal against his conviction whereas learned trial Court has sent Murder Reference for confirmation of his death sentence or otherwise which are being decided through this single judgment.
2. The facts of the case have been stated by Muhammad Nawaz complainant (PW-8) in his statement before the learned trial Court, which is hereby reproduced for narration of the facts: "Stated that on 25-08-2001 at about 08:30 p.m, I alongwith Muhammad Asif, Muhammad Safdar deceased and Muhammad Afzal was present in my house, we heard the abusive voice from nearby the dera. We attracted towards the "Daara". Meanwhile in the way Nasir my son met us and he stated that a quarrel is taken place between him and Imran accused present in Court and they after extending threats and by using abusive language and went away . I along with Asif, Afzal and Safdar went to the house of accused in order to complain against them whereas Nasir was sent to my house. When we entered into the house of Tanvir accused, bulb was lighting.
Accused Tanvir raised lalkara, upon which Imran accused armed with a rifle .8mm made fire shorts which hit to the deceased Muhammad Sardar . We shifted Muhammad Sardar in injured condition to RHC Ahmad Nagar whereupon he was referred from RHC, to DHQ Gujranwala and while shifting in the way the injured was succumbed to the injuries. The occurrence was witnessed by me, Asif and Afzal PWs. Police recorded my statement Ex.PE which bears my thumb impression Ex.PE/.2."
3. After hearing learned counsel for the parties as well as learned DPG and on perusal of record with their able assistance, we have observed as under: i. Muhammad Safdar sustained firearm injuries at {{URDU TEXT}} of the house of Tanveer Ahmad accused (exonerated during investigation by the complainant and was not summoned to face trial) On 25.08.2001 at 8.30p.m. whereafter succumbed to the injuries on the way from Ahmad Nagar hospital to Gujranwala hospital, FIR was lodged on the statement of his father Muhammad Nawaz (complainant PW-8) on 25.08.2001 at 10.50 p.m. against Muhammad Imran (appellant) and Tanveer Ahmad accused (since exonerated discussed above). ii. It is mentioned in the FIR that Muhammad Nawaz (complainant PW-8) along with his witness Muhammad Afzal (PW-9) on the death of his son Muhamma d Safdar (deceased) brought his dead body in his house without taking it to hospital or police station, after leaving it in his house, went to the police station for lodging of the instant FIR, where his statement was recorded at 10.30 p.m. and subsequently FIR was lodged at 10.50 p.m. on 25.08.2001, contrary to this, both the eye-'witnesses (Muhammad Nawaz PW-8 and Muhamm ad Afzal PW-9) stated in their cross-examination before the trial Court that they shifted Muhammad Safdar (dece ased), the then injured, to RHC Ahmad Nagar at 10.00 p.m. on, tractor Trolley , remained there for about 10/15 minutes, from where shifted him to Gujranwala, near Gondlanwala he succumbed to the injuries at about 10.45 p.m., when they reached house of complainant, it was 12.00 night, after '15/20 minutes later, police also arrived at the house of complainant. This all shows that FIR was got lodged at. 10.50 p.m. prior to the statement of complainant as it itself proves from his own statement referred above that he brought the dead body of his son Muhammad Safdar in his house at 12.00 am.
(night) whereafter he went to the police station for registration of FIR. In these circumstances consultation and deliberation in lodging of FIR by the complainant party involving the appellant cannot be ruled out. iii. It is mentioned in the FIR that Muhammad Nawaz (complainant PW-8) and his witness (Muhammad Afzal PW-9) after the occurrence brought Muhammad Safdar (deceased), the then injured, in Ahmad Nagar hospital for treatment, from where medical officer after giving him first-aid referred him to Gujranwala hospital but neither medical officer nor any document in this respect has been produced by the prosecution to establish this fact creating doubt in the prosecution story . iv. Tanveer Ahmad accused (since exonerated discussed above) is the person, in whose house, allegedly Muhammad Safdar (deceased), the then injured sustained injuries at the hands of appellant but he has been exonerated during the investigation. Muhammad Nawaz (complainant PW-8) admitted in this cross-examination that they had pardoned Tanveer Ahmad accused (since exonerated discussed above) being bratheri, he appeared before ASP Wazirabad and stated that Tanveer Ahmad accused (since exonerate d discussed above) be declared innocent as they are satisfied, he did not make any statement in the Court regarding compromise with Tanveer Ahmad accused (since exonerated discussed above), he did not file any application for summoning Tanveer Ahmad accused (since exonerated discussed above). v. As occurrence took place on 25.08.20 01 at 8.30 p.m.(night time) but source of light has not been disclosed in the FIR, Muhammad Nawaz (complainant) PW8 made dishonest improvement in this regard before the trial Court stating therein that when they reached in the house of Tanveer Ahmad accused (since exonerated discussed above), bulb was litting, who confronted with his statement Exh.PE where it was not so recorded which shatters his credibility . vi. It is mentioned in the FIR that Nasir Mehmood s/o Muhammad Nawaz (complainant PW-8) had exchanged hot words with Muhammad Imran (appellant) but he has not been produced to establish "{{URDU TEXT}}" rather Muhammad Nawaz (complainant PW8) made dishonest improvement in his state ment before the trial Court that when they came out from house towards "Daara", Nasir Mehmood, his son met them on the way who was confronted with his statement Exh.PE where it was not so recorded. vii. Rough site-plan Exh.PG and scaled site-plan Exh.PL do not show the houses of both the eye-witnesses around the place of occurrence. They were the chance witnesses, but have failed to establish their presence at the time of occurrence at the place of occurrence with their stated reasons. Reliance is placed on cases titled "Muhammad Rafique v . The State" (2014 SCMR 1698 ) and "Arshad Khan vs. The State" (2017 SCMR 564 ). viii. Recovery of rifle .8-MM on pointing out of the appellant in absence of positive report of PFSA qua matching of crime empties with the weapon of of fence is inconsequential in the present case. ix. In view of above prosecution has failed to prove its case beyond shadow of doubt against the appellant. x. The argument of learned counsel for the complainant that Muhammad Imran (appellant) has admitted his presence at the time of occurrence at the place of occurrence in his defence plea while stating in answer to question No. 11 of his statement recorded under Section 342, Cr.P.C. that Nasir , Ijaz Sheikh, Muhsan Butt, Anayat, Kala Butt, Muhammad Asif (not PWS) and Muhammad Safdar (deceased) had attacked while armed with firearms and made firing, he saved himself behind Muhammad Safdar (deceased) who sustained injuries on his person at the hands of his companions which is, sufficient proof of his guilt has no substance as the law is settled by now that if the prosecution fails to prove its case against an accused person as in present case then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased. The law is equally settled that the statement of an accused person recorded under Section 342, Cr.P.C. is to be accepted or rejected in its entirety Reliance is placed on case titled "Azhar Iqbal vs. The State" (2013 SCMR 383 ).
4. For the foregoing reasons, appeal filed by the appellant is allowed, conviction and sentence of appellant (Muhammad Imran) awarded by the learned Trial Court through impugned judgment are hereby set-aside and he is acquitted of the charge. He is directed to be released forthwith, if not required in any other case. Murder Reference is answered in NEGA TIVE and death sentence of appellant (Muhammad Imran) is NOT CONFIRMED.