' JUSTICE SH. MUHAMMAD ZUBAIR (MEMBER).---This appeal is directed against the judgment dated 13-3-1993, whereby the learned Judge, Special Court for Speedy Trials No,II, Lahore, convicted Irfanullah alias Malangi appellant under section 302(b), P.P.C. And sentenced him to death. He was further ordered to pay Rs,50,000 as compensation to the legal heirs of Abdul Sattar deceased. The co-accused of the appellant, namely, Azmatullah, Inamullah, Mahmood Ahmad and Muhammad Hanif were acquitted by the same judgment.
2. The occurrence took place on 26-9-1989 at noon time at Chowk Zafarwal Bypass, Narowal and F.I.R. Exh.PD/1 was recorded the same day at 2-15 p.m.
3. As for the main occurrence, it is alleged by Mst. Khurshid Bibi P.W.3 (complainant) that on 26-9- 1989, at Dopehrwela, she came to Chowk Zafarwal Bypass, Narowal, to make purchases, where her son Abdul Sattar alias Bawa alongwith Muhammad Arshad was present in his jeep. At that time a black colour car arrived there and it stopped close to the jeep of Abdul Sattar deceased. Ali of a sudden, the appellant, Azmatullah (since acquitted), Ehsanullah and Zamanullah absconders came out of the said car armed with Klashnikoves. They opened fire at Abdul Sattar, which hit him and he died at the spot. Muhammad Arshad and Muhammad Nawaz also received fire-arm injuries. The occurrence was witnessed by Mst. Khurshid Bibi P.W.3 (complainant), Muhammad Younus P.W. Noor Din and some other persons.
4. The motive for the occurrence was that some time prior to the present occurrence, Ehsanullah absconder injured Maqsood alias Teddi, a friend of Mukhtar Ahmad son of the complainant, with Chhuri. Mukhtar Ahmad got Maqsood treated and attended him. On account of this, Ehsanullah and others bore grudge against him. About seven years prior to the occurrence, Ehsanullah and others murdered Mukhtar Ahmad. They were challaned but were acquitted. On account of this murder, Abdul Sattar deceased and Ehsanullah etc. Fought with each other in the year 1986. The parties were challaned, but were acquitted. In the year 1988, Ehsanullah fired at the deceased. A case was registered against Ehsanullah which was still pending when the present occurrence took place. It is alleged that the deceased obtained contract from Municipal Committee, Narowal for the parking of vehicles. The accused party who had also a wagon stand, bore grudge against the deceased on account of his contract of parking of vehicles. The abovementioned longstanding enmity between the parties, resulted in the murder of Abdul Sattar deceased.
' It is also alleged that four days prior to the occurrence, Azmatullah, Inamullah, Mahmood Ahmad, Muhammad Hanif and Azmatullah conspired to commit the murder of Abdul Sattar and the conspiracy was overheard by Muhammad Siddique P.W.S.
5. Mushtaq Ahmad, A.S.I. (P.W.11) received information about the occurrence. He reached the spot, recorded the statement Exh.PD of Mst. Khurshid Bibi P.W.3 and sent the same to Police Station City Narowal, where formal F.I.R. Exh.PD/1 was recorded by Muhammad Tahawar Zaman Khan, Moharrir (P.W.12), the same day at 2-15 p.m. Thereafter, Muhammad Tufail, A.S.I. (P.W.14) took over the investigation. He prepared the injury statement Exh.PJ and inquest report Exh.PI and sent the dead body to the mortuary for post-mortem examination, under the escort of Sarfraz and Akhtar F.Cs. He recorded the statements of the witnesses under section 161, Cr.P.C. He recovered 41 empties of Klashnikov P.7/1-41 from the spot, vide memo. Exh.PG. He then reached the hospital and recorded the statements of Arshad and Nawaz injured. He got prepared site-plan Exh. PE and Exh. PE/1 on 5- 6-1990, by Ziaul Hassan, Draftsman (P.W.6). After the post-mortem, he took into possession the blood-stained clothes of the deceased vide memo. Exh.PF. The appellant was arrested by Hanif Hussain, S.I. (P.W.16) on 12-6-1990. On 25-6-1990, he led to the recovery of Klashnikov P.8 and ten bullets P.9/1-10 from his house, which were taken into possession vide memo. Exh.PH. The recovery was testified by Ijaz Ahmad A.S.I. P.W.13 and Muhammad Aslam H.C. (not produced). He completed the investigation and submitted the challan in the Court. Zamanullah and Ehsanullah were declared proclaimed offenders. The case was entrusted to the trial Court vide notification dated 12- 11-1992.
6. The prosecution examined sixteen witnesses in support of its case.
' Dr. Muhammad Farooq Iqbal (P.W.1) medically examined Muhammad Nawaz on 26-9-1989 and found two oval wounds on left knee and on the front of left arm. The injuries were declared simple.
The same doctor also examined Arshad and noticed five oval wounds and two lacerated wounds on his person. The injuries were caused by fire-arm.
' Dr. Saadat Ali (P.W.2) conducted the post-mortem examination on the dead body of Abdul Sattar on 26-9-1989 and found 88 fire-arm injuries on different parts of the dead body. Injury No,4 (reproduced below) was sufficient to cause death in the ordinary course of nature, while the remaining injuries were collectively sufficient to cause death in the ordinary 'course of nature due to shock and haemorrhage:--- "4. A wound 15 x 17 c.m. On right side of neck, underlying structure badly damaged."
' Mst. Khurshid Bibi P.W.3 supported her statement as given in the F.I.R. Her statement was corroborated by Muhammad Younus P.W.4. Mushtaq Ahmad A.S.I. Recorded statement Exh.PD of Mst. Khurshid Bibi, Muhammad Tufail, A.S.I. P.W.14 investigated this case, Hanif Shah S.H.O. (P.W.16) arrested the appellant on 12-6-1990 and after making recovery of incriminating articles, submitted the challan in the Court. The evidence of the remaining witnesses is of formal character.
7. The appellant in his statement under section 342, Cr.P.C. Denied the prosecution allegations and ascribed the case to enmity. He explained the case against as him in the following words:--- "Abdul Sattar was fired at and he lodged F.I.R. In 1988. I was falsely involved in that case and named in the F.I.R. I was present at my shop during that occurrence. On account of the fear of arrest, I went to Karachi. I obtained employment at a Video Shop of my friend in Karachi. I served as a driver with Haji Iqbal of Gujranwala. I went to Haji Iqbal and he produced me before D.I.-G. Gujranwala. D.I.G.
Summoned Inspector Police. The said Inspector informed police at Narowal and S.I. Came there and arrested me."
' The appellant did not adduce any evidence in defence. However, seven defence witnesses appeared in this case on behalf of the acquitted accused. Muhammad Arshad D.W.5, who was with the deceased in the jeep at the relevant time and was injured, deposed that two boys came on motorcycle armed with Klashnikoves. They fired brust from the left side of the jeep. Abdul Sattar received brust in the jeep and died immediately. He also received injuries. He deposed that neither the appellant nor Mst. Khurshid Bibi complainant and Muhammad Younus P.W.4 were present at the spot.
8. The learned trial Judge disbelieved the evidence of conspiracy furnished by Muhammad Siddique P.W.5 and believing the ocular evidence of Mst. Khurshid Bibi P.W. Coupled with the recovery, convicted and sentenced the appellant, as indicated above.
9. The learned defence counsel vigorously contended that Mst. Khurshid Bibi P.W. The sole eye- witness of this, case is the mother of the deceased, in view of the background of enmity, she is an inimical and interested witness whose uncorroborated evidence cannot be accepted on its face value. In addition to that, she is also a chance witness of the occurrence and has failed to give any reasonable and plausible explanation for her presence at the scene. Her evidence is belied by the evidence of Fire-arm Expert, as only two types of weapons were used in the commission of crime, which negates the version given in Exh.PD that four persons opened fire on the deceased. Her statement Exh.PD was recorded after preliminary investigation, which makes the prosecution case further doubtful. Mst. Khurshid Bibi P.W. Is a compulsive liar, as she has denied the proved facts and has made material improvements in her evidence before the Court; hence it would be dangerous to place implicit reliance on her evidence, thus the prosecution has failed to prove its case beyond reasonable doubt. The defence evidence gives support to the defence plea that the occurrence took place, when none of the alleged eye-witnesses was present at the spot.
10. Learned counsel for the State supported the impugned judgment on the same grounds which prevailed with the learned trial Judge while recording the judgment of conviction.
11. We have carefully gone through the record of the case with the able assistance of the learned counsel for the parties and have critically examined their respective submissions, mentioned above.
' There is substantial force in the submission of the learned defence counsel, that the sole eye- witness, namely, Mst. Khurshid Bibi P.W.3, believed by the learned trial Judge is a chances witness of the occurrence, as in the normal routine of her vocation she is not supposed to be there at the time when the occurrence took place, being a house wife, because, the occurrence took place at a distance of two/three squares from her house. She is an interested and inimical witness due to background of enmity, ,which is the motive for the crime. In her statement Exh.PD recorded at the spot by the police, the only explanation given by her for her presence at the spot is that she had gone there to make purchases without explaining the nature of purchases. Before the Court, she deposed that she had gone there to purchase firewood for the marriage of her unmarried daughter Mst. Samina Kausar. She conceded this fact in her evidence that there were many firewood shops and saw machines near her house, from where she could purchase the firewood, but she gave this explanation that firewood available near her house was wet and of inferior quality. It appears, the explanation furnished by Mst. Khurshid Bibi P.W.3 in the Court for her presence at the spot, is afterthought as it was not so mentioned in her statement Exh.PD. Even the explanation per se seems to be unreasonable and not plausible, because as per her own admission, she lives with her other male members in the same house and had servants, who could easily go and bring the firewood from the bazar. The ocular version is also belied by the report Exh.CI of the Forensic Science Laboratory which shows that only two types of weapons were used in the commission of crime, whereas according to statement Exh.PD of Mst. Khurshid Bibi, four persons opened fire with Klashnikoves. She has even denied the proved fact that Nikah of her unmarried daughter Samina Kausar was performed after the Chehlum of Abdul Sattar deceased, but marriage had not so far been consummated, whereas from the certified copy of the birth certificate placed on record it is proved that a child Nida Shahzadi was born to Mst. Samina Kausar on 26-7-1990 and Manzoor was her husband. This fact, by itself, is sufficient to prove that the witness is a compulsive liar and it would not be safe to place reliance on her evidence. There is much weight in the submission of the learned defence counsel that statement Exh.PD of Mst.
Khurshid Bibi P.W. Was recorded after preliminary investigation. She admitted in her statement before the Court that she was not aware of the name and address of Muhammad Nawaz injured person when she made her statement Exh.PD before the police. On the contrary, it is proved that full particulars of both the injured persons were given in her statement Exh.PD, which leads to this inference that this statement was recorded by the police after preliminary investigation and the occurrence took place in the Chowk bypass, which is commercial area, but none from the locality has come forward to support the prosecution case. The irony of the fate is that injured person, Muhammad Arshad, appeared as D.W.5 and supported the defence version, that two unknown boys armed with Klashnikoves came on a motorcycle and committed the crime.
12. The upshot of the above discussion is that in view of the infirmities discussed above, the prosecution case against the appellant is not free from doubt, hence while giving benefit of doubt to the appellant, we accept this E appeal, set aside the conviction and sentences of the appellant and acquit him. He shall be set at liberty forthwith, if not required to be detained in any other case.