Muhammad Amjad Rafiq, J.--Appellant. Nasir Hussain has assailed the judgment dated 27.9.2016 passed by the learned trial Court in case FIR No. 290 dated 22.06.2013 u/s 449/302/34/109, PPC Police Station Jhal Chakian, District Sargodha; Murder Reference was also sent by the learned trial Court for confirmation of his death sentence or otherwise. Complainant Tariq Mahmood has filed appeal against acquittal of Abdul Rehman, Umar Daraz alias Afridi and Nasir , Mehmood and Crl. Revision for enhancement of compensation amount. The appellant was convicted and sentenced through the impugned judgment as under:
(i) Convicted under Section 302(b)/PPC for committing Qatl-i-Amd of Lal Khan deceased and sentenced to death with payment of compensation of Rs. 500,000/- to the legal heirs of deceased under Section 544-A, Cr.P.C. which shall be recovered as arrears of land revenue and in default thereto undergo simple imprisonment for a further period of six months.
(ii) Convicted under Section 449, PPC and sentenced to rigorous imprisonment for seven years with fine of Rs.
10,000/ and in default thereof to undergo simple imprisonment for a further period of two months. Benefit of Section 382-B, Cr .P.C. was also extended to the appellant.
2. The prosecution case, in the words of complainant is that on 22.06.2013 at about 12:45 p.m. he was sitting along with Malik Lal Khan (deceased), Ahmad Nawaz (not produced) and Farooq Ahmad (PW-5) in the Baithak of Lal Khan. All of a sudden, the appellant along with two unknown persons came there; the appellant raised a lalkara to take the life of Lal Khan and made a fire shot with his pistol which hit on the left side of his forehead, whereas the second shot hit on the right side of his chest. Fires of two unknown accused persons were hit on right elbow , left flank and left armpit of Lal khan who fell to the ground and succumbed to the injuries. The accused persons fled away from the spot. The appellant had a suspicion that his father and uncle were murdered by Zafar Taragar on the instigation of deceased (close friend of Zafar Taragar).
3. The unknown accused were nominated in this case through supplementary statement of the complainant recorded on 23.06.2013 on the basis of information furnished by Muhammad Ameer (PW-10). On the conclusion of trial, three accused persons were acquitted while Nasir Hussain, the appellant was singled out as the sole culprit.
4. Arguments heard; record perused.
5. Presence of PWs at the place of occurrence is highly doubtful at 12.45 pm in the hot weather during the month of June, who have not given any sound justification of their availability at the relevant time; Complainant PW-4 resides 200 meters away from the place of occurrence and PW-5 Farooq Ahmad is resident of a village 100 Kilometers away from place of occurrenc e; though he stated that now a days he is living 35 kilometers away , we are of the considered view that they are chance as well as interested witnesses; their testimony does not ring true.
They cannot be believed unless corrobor ated by some independent evidence. Reliance is placed on case titled Abid Ali vs. The State (2011 SCMR 208). Reliance is also placed on Muhammad Shafi alias Kuddoo v. The State and others (2019 SCMR 1045 ).
6. Dr. Mohsin Ali Raza (PW-09) who conducted autopsy on the dead body of the deceased on 22.06.2013 has observed as many as nine injuries on the corpus. As per site plan Nasir Hussain accused fired at the deceased from a distance of one karam while other accused persons from 1-1/2 Karam who were 8 feet away from the deceased but doctor has observed black ening around the wounds: PW-5 admitte d during cross examination that length of bhaithak was 17 feet and accused after 'entering in to 2/3 feet fired at the deceased which makes the case of prosecution doubtful. Thus, Medi cal 'evidence was in conflict with ocular evidence; therefore, reliance on such ocular testimony is unsafe. Reliance is on judgments reported, as Muhammad Saleem v Muhammad azan (2011 SCMR 474), State through Advocate General Khybar Pakhtunkhwa v. Muhammad Rafiq and others (2019 SCMR 1150), Muhammad Shafi alias Kuddoo v. The State and others (2019 SCMR 1045 ) and Haroon v.
The State ( 2007 SCMR 1612 ).
7. The witnesses of ocular account do not depose about time and mode of dispatching the dead body to the mortuary neither in examination in chief nor during cross examination; the doctor during cross examination admitted that he has not mentioned time of receiving dead body in the hospita l and time for conducting post- mortem in his report; finally admitted that his Post Mortem. report is result of clerical mistake. Complainant PW-4 admitted during cross examination that he does not know when the post-mortem was conducted by the doctor .
Muhammad Mumtaz 520/C who escorted the dead body to the hospital did not utter a single word about time of dispatch of dead body to, or arrival in, the hospital. PW-2 Mahboob Khan who identified the dead body of deceased has deposed during cross examination that he does not know who brought he dead body in the hospital. All these facts lead to only one conclusion that witnesses were not present at the place of occurrence.
8. Complainant has deposed that place of occurrence was a big bhaithak, he was sitting on a sofa 8/9 feet away from the deceased who was on the bed; after the occurrence though bed was blood stained but it was not taken in to possession by the police; neither the bed nor sofa was shown in the site plan; No crime empty was recovered; thus the place of occurrence becomes doubtful particularly when doctor observed no corresponding holes on the clothes of deceased, though the corpse was shown wearing shalwar , Qameez and banyan as per testimony of PW- 9, Dr. Mohsin Raza. Non recovery of crime empty from the place of occurrence despite the fact there was pacca farsh on the place of occurrence as reflected from memo of possession of blood stained earth as well as the statement of Draftsman PW-8; the circumstances warrant that prosecution has not come up with complete truth. In this regard reliance is placed on 'Muhammad Zaman v. Muhammad Afzaal and others (2005 SCMR 1679 ) wherein it has been held: "The non-recovery of empties is indicative of two glaring facts. Firstly , that the eye-witnesses were not present on the spot and secondly that the spot indicated by the complainant was not the place of occurrence.",
9. Appellant was arrested on 13.11.2013 and a pistol 30 bore was recovered on his lead on 26.11.2013 but it was not sent to PFSA for testing because no report of PFSA is available on the record. It is surprising for us that one Muhammad Adnan 8/C Armour in Police lines, Sargodha appeared as PW-7 and deposed about functionality test of recovered pistol. He has not tendered any report in this regard. Evidence of such witness does not conform to the standards required for expert evidence. Recovery in the absence of PFSA report is inconsequential and is not helpful to the prosecution. Guidance is sought from the case of Sajjan Solangi v . The State (2019 SCMR 872 ).
10. During the trial, prosecution story with respect to conspiracy was shattered and trial Court disbelieved all the statement including statement u/s 164 Cr. P.C of Abdul Rehman, co accused about involvement of present appellant. Motive against Lal Khan deceased was also indirect, on whose instigation the father of accused was killed; therefore, was discarded by the trial Court.
11. Motive in the correct sense, is the emotion supposed to have led to the act. The external fact which is sometimes styled the motive, is merely the possible exciting cause of this 'motive' and not identical with the motive itself. PW-4, complainant during cross examination admitted that incident of motive was taken place 7/8 years prior to present occurrence; appellant was living in the same village and he had not attempted to hurt the deceased during these years. Prosecution has failed to prove the motive in this case.
12. From the facts and circumstances narrated above, we are persuaded to hold that prosecution has failed badly to bring home guilt of the appellant to the hilt and the learned trial Court was not justified in convicting him while relying upon untrustworthy/uncorroborated evidence. Resultantly , Criminal Appeal filed by the appellant is allowed, the convictions and sentences recorded by the learned trial Court against the appellant through impugned judgment are set aside and he is acquitte d of the charges. The appellant is in jail, he shall be released forthwith if not required in any other case.
13. In view of the above decision, criminal- appeal filed by the complainant against acquittal of respondents (Abdul Rehman, Umar Draz alias Afridi and Nasir Mehmood) having no merit is dismissed and criminal revision for enhancement of amount of compensation against convict/appellant having become infructuous is disposed of.
14. Murder Reference is answered in the NEGA TIVE and death sentence of appellant (Nasir Hussain is not confirmed.