' MUHAMMAD NAWAZ ABBASI, J.--- Murad Shah, Bailey Shah sons of Bhinee Shah and Gul Sher son of Akbar All alongwith Bailey Shah son of Pir Shah, Shabbir Shah, Abu-al-Hassan, Ahmad Ali Shah, Arshad Shah, Aslam Shah, Muhammad Shah and Khyzar Shah were tried under sections 302/148/149/307 and 452/149 for the charge of committing the murder of Zafar Shah by the learned Additional Sessions Judge, Faisalabad who vide his judgment, dated 27-3-1991 convicted Murad Shah, Bailey Shah and Gul Sher appellants under section 302/34, P.P.C. And awarded them sentence of death. The appellants were also directed to pay fine of Rs,10,000 each and in default thereof to undergo R.I. For two years each. Half of the fine, if realised, was directed to be paid to the legal heirs of the deceased. The remaining 9 accused tried with the appellants were acquitted of the charge. The trial culminating in the conviction of the appellants, they filed Criminal Appeal No,347 of 1991 against their conviction and sentence which shall be disposed alongwith Murder Reference No,159 of 1991 sent by the learned trial Court under section 374, Cr.P.C. Through this single judgment.
2. Precisely, the facts of the case as contained in the statement Exh.PA. Of Mazhar Shah P.W.14 recorded by Rashid Ahmad, S.I. P.W.16 are as under:-- "That during the preceeding night Mazhar Hussain Shah complainant alongwith Zafar Shah, his brother Nadir Shah and Mst. Zanib, his mother were sleeping in the courtyard in his house when at about 1-30 a.m. (after mid-night) all of a sudden the accused namely Balley Shah son of Pir Shah with rifle, Bashir Shah, Abu-al-Hassan Shah, Ahmad Ali Shah and Amir armed with .12 bore guns by scaling over the western wall entered in the house whereas Arshad Shah, Aslam Shah, Muhammad Shah and Khyzer Shah armed with .12 bore guns climbed over the roof of the house. Balley Shah and his companion raising Lalkaras to take revenge of the murder of Abbas Shah attacked on the complainant party. Bailey Shah and Bashir Shah fired one shot each at Zafar Shah causing injuries fatal to life. Amir Wattu and Ahmad Ali Shah fired one shot each causing injuries to Nadir Shah. The shot fired by Abu-al-Hassan also hit Nadir Shah and the shot fired by Khyzer Shah hit Zafar Shah.
The accused after causing injuries to Zafar Shah and Nadir Shah raising Lalkara and making indiscriminate firing ran away from the spot. The occurrence was witnessed by the complainant and the P.Ws. In the light of lantern and also the electric light coming from the adjoining house of Shah."
' The motive behind the occurrence as stated was that about 6/7 months earlier Abbas Shah real brother of Bailey Shah son of Pir Shah was murdered Zafar Shah was challaned as accused in the case who was on bail. The accused having grievance against Zafar Shah committed his murder.
3. Doctor Mumtaz Ahmad Bajwa P.W.3 examined Nadir Shah on 1-7-1987 and found the following injuries on his person:--
(1) A lacerated gun-shot entrance wound 10 c.m. x 3-1/2 c.m. x probing was not done on left upper posterior part of head. There was no exit, no tattooing, no blackening on or around the wound.
Blood was oozing from the wound.
(2) Four lacerated gun-shot wounds each measuring about 1 c.m. x 1 c.m. x probing was not done on left upper interior chest. There was no exit, no tattooing or blackening on or around the wound.
Blood was oozing from the wound.
(3) Nine gun-shot lacerated entrance wounds:--
(1) 1 c.m. x 1 c.m.
(2) 4 c.m. x 1-1/2 c.m.
(3) 2 c.m. x 1-1/2 c.m.
(4) 1-1/2 c.m. x 1-1/2 c.m.
(5) 1-1/2 c.m. x 1-1/2 c.m.
(6) 1-1/2 c.m. x 1-1/2 c.m.
(7) 2 c.m. x 2 c.m.
(8) 1 c.m. x 1 c.m.
(9) 1-1/2 c.m. x 1-1/2 c.m.
' Each wound was not probed, on interior upper part of chest and shoulder. There was no exit, no tattooing or blackening. Blood was oozing. All the injuries were caused with fire-arm within three hours.
4. Doctor Abdul Khalid P.W.6 conducted post-mortem examination of Zafar Shah deceased on 1-7- 1987 and found the following injuries on his person:--.
(1) A fire-arm wound satellite shape which was highly blackened and margins of the wound were burnt. On the forehead and upper part of the bridge of nose dimension was 7 c.m. x 5 c.m., the bones of forehead (front bones) and nasal bone were fractured, brain matter had come out.
(2) Six fire-arms wound of entrance in an area 6 c.m. x 3 c.m. On the right eyebrow, eye and right cheek (sic) c.m. x 0.6 c.m. With blackening of the margins was found.
(3) A fire-arm wound 0.5 c.m. x 0.5 c.m. x skin deep on front, middle and upper part of left arm.
(4) A fire-arm wound 3 c.m. x 1 c.m. x skin deep on medial side and lower part of left upper arm 7 c.m. Above left elbow.
(5) A fire-arm wound 0.5 c.m. x 0.5 c.m. x skin deep on left axillae.
(6) A fire-arm wound of entrance 1 c.m. x 0.8 c.m. On inner side and middle of left forearm.
(7) A fire-arm wound 0.8 c.m. x 0.8 c.m. x skin deep on inner side of left forearm, 3 c.m. Below injury No,6.
(8) A fire-arm wound of entrance 0.5 c.m. x 0.5 c.m. On back of left hand.
' In the opinion of the doctor death was due to shock and haemorrhage as a result of injuries Nos.1 and 2 caused with fire-arm which were sufficient to cause death in the ordinary course of nature.
5. Rashid Khan, Inspector P.W.16 after registration of the case through F.I.R. Exh.P.A./1 proceeded to the spot. He prepared injury statement and inquest report and took blood-stained earth from the two places through separate memos. He also collected empty cartridges from the place of occurrence. He arrested Gul Sher appellant on 28-8-1987 and Murad Shah and Bailey Shah on 21- 12-1987. The .12 bore gun P.10 with licence belonging to Bailey Shah was taken into possession through memo. Exh.P.L. Murad Shah got recovered .7 mm rifle which was taken into possession through memo. Exh.P.M. The .7 mm rifle P.12 and gun P.13 were sent to Forensic Science Laboratory for Expert opinion. The Inspector after completing the remaining investigation of the formal nature submitted challan against 12 accused.
6. Initially, the case was registered against acquitted accused who were nominated in the F.I.R.
Lodged soon after the occurrence by Mazhar Hussain Shah P.W.14. According to the version of the F.I.R., the accused named therein armed with lethal weapons opened attack causing fire-arm injuries to Nadir Shah and in furtherance of their common intention committed murder of Zafar Shah. According to the contents of the F.I.R., the complainant and the P.Ws. Identified all the accused of the F.I.R. In the lantern light and in the electric light coming from the adjoining house.
7. During the course of investigation, the three appellants namely Murad Shah, Bailey Shah and Gul Sher were arrested on the basis of alleged extra- judicial confession made by them before Munawar Hussain P.W.8 stating that they committed murder of Zafar Shah and caused injuries to Nadir Shah on the fateful day. According to Noor Shah P.W.9, the appellants immediately after the occurrence were seen by him with their respective weapons near the house of the deceased.
8. At the trial, the eye-witnesses of the case namely Mazhar Shah and Mst. Zainab Bibi, his mother with the changed version deposed that Balley Shah armed with shot gun, Murad Shah armed with rifle and Gul Sher with carbine trespassing into the house of deceased fired one shot each at Zafar Shah deceased. Nadir Shah P.W. Received injury at the hands of Gul Sher. Mst. Zainab P.W.13 and Mazhar Hussain P.W.14 have narrated facts of the case with this version introducing the appellants as the real culprits. However, they acknowledged lodging the complaint Exh.PA. And F.I.R. Exh.PA.
And Nadir Shah P.W.14 supported the prosecution story as contained in the F.I.R.
9. Muhammad Rashid Khan, Inspector/Investigating Officer stated that Murad Shah, Bailey Shah and Gul Shah were made accused during the investigation who were not initially named by the complainant as accused in the complaint Exh.PA. He admitted that on the basis of affidavit filed by the complainant and his mother Zainab Bibi injured P.W., he declared nominated accused in the F.I.R. Innocent and placed them in the Column No,2 of the challan.
10. The learned trial Court placing reliance on the evidence of the eyewitnesses convicted the appellants of the charge under section 302/34, P.P.C. And acquitted the nominated accused of the F.I.R.
11. The appellants in their statement under section 342, Cr.P.C. Denied the prosecution allegation and pleaded innocence.
12. The learned counsel for the appellants contends that the appellants were substituted during the investigation on the basis of divergent version of the case given by the eye-witnesses and they being unreliable, their evidence cannot be made basis for the conviction.
13. The learned counsel for the State in the circumstances has not been able to canvass any valid ground to defend the conviction.
14. We have given our careful consideration to the arguments advanced by the learned counsel for the parties and also perused the record with their assistance.
15. The occurrence took place at mid-night, the report of which was lodged at about 6-00 a.m. On the same day. Mazhar Hussain Shah, the first informant has given a detailed account of the occurrence with specific role played by each accused named in the F.I.R. He claimed that he and the witnesses namely Mst. Zainab and Nadir Shah injured, witnessed the occurrence in the lantern and electric light. According to the story of the F.I.R. There were nine accused who trespassing into the house of the complainant caused injuries with fire-arm to the deceased and Nadir Shah.
Admittedly, during the investigation some development took place and the complainant taking a divergent stand substituted the three appellants as culprits exonerating all the accused named in the F.I.R. And the Investigating Officer on the basis of affidavits of complainant and the P.Ws.
Arrested the appellants as accused in the case.
16. The eye-witnesses with no hesitation changing the story of F.I.R. Introduced a new set of accused at the trial. The prosecution further arranged production of Munawar Hussain P.W.8, a witness of extra-judicial confession allegedly made by the appellants before him and similarly P.W.9 was introduced to depose that the appellants were seen by him going with fire-arms immediately after the occurrence.
17. The sole question to be examined in the case is whether the three appellants were guilty of committing the murder of Zafar Abbas deceased, as per prosecution version introduced at the trial or he was done to death by the accused named in the F.I.R. The prosecution having changed its version regarding the commission of offence by the accused named in the F.I.R. Has created a serious doubt in the case and the eye-witnesses who at the first instance leveled allegations against the acquitted accused subsequently on the basis of divergent stand deposed against the appellant have lost their ability. The P.Ws. Have not been able to explain that for what special reasons the case was registered against the acquitted accused and under what circumstances the appellants were not named in the F.I.R. It is also not known that what prevented the first informant and the P.Ws. To bring the correct facts of the case on record at the initial stage. It is also not known that for what special reason the P.Ws. During the investigation changed their version and substituted the appellants as assailants of the case with the accused of the F.I.R. The evidence of the eye-witnesses in the circumstances being not reliable and truthful is bound to be excluded from consideration. There being no evidence against the appellants of their involvement in the case and committing the murder of Zafar Abbas and causing injuries to Nadir Shah, their conviction and sentence under section 302/34, P.P.C. Is not sustainable. We accordingly set aside their conviction and sentence by accepting this appeal and direct their immediately release from jail if not required in any other case.