JUDGMENT JUDGMENT TASSADUQ HUSSAIN JILANI, J. - Through this appeal appellant Safdar Ali has challenged the judgment dated 26.5.1993 passed by the learned Sessions Judge, Faisalabad in case FIR No.97/91, under sections 302/109/34 PPC, Police Station Nishatabad, District Faisalabad, whereby while acquitting Nasir Ahmad and Aftab Alam convicted the appellant Safdar Ali under section 302/34 PPC for the murder of Kamal Haq deceased and sentenced him to undergo imprisonment for life and a fine of Rs.50,000/- which if recovered half of it was directed to be paid to the legal heirs of the deceased. Fie was also directed to pay compensation of Rs. 1.00,000/- to the legal heirs of the deceased under section 544-A, Cr.P.C, in default whereof he was to undergo R.I. For six months. He was also given the benefit of the provisions of section 382-B Cr.P.C.
2. The prosecution story as given in the FIR briefly stated is that on 14.3.1991, Nazir Ahmad arid Ashiq Hussain (Proclaimed Offender) hatched a conspiracy to murder Kamal Haq, Advocate. It is further alleged that on 16.3.1991 at 7.45 a.m. When complainant Khalid Mehmood alongwith his father Kamal Haq, Advocate and his brother Shamsul Haq PW were going to the Courts and as they reached Rajbah in Chak No.4/JB, Ashiq Hussain (Absconder accused) armed with l2 bore gun and Safdar Ali appellant armed with .7 MM rifle emerged from Sarkanda bushes. Ashiq Hussain (P.O.) fired at Kamal Haq deceased which hit him on his back as a result of which he fell down. Thereafter Safdar Ali appellant also fired at Kamal Haq but the same did not hit him. On the alarm raised by the complainant and his brother, Muhammad Shaft and Bashir Ahmad PWs were attracted to the spot and the accused ran away.
The motive for the alleged crime as given in the FIR was that the complainant had a long dispute with Nazir Ahmad accused. This Nazir Ahmad is the paternal uncle of Aftab Alam accused.
3. After recording statement of the complainant vide memo. Exh.PE, Muhammad Naseem, SI went to the spot, prepared the injury statement, inspected the spot, collected the blood, stained earth {vide memo. Eh. P-I4/A), took into possession bicycle and the small articles belonging to the deceased. The investigation of the case was subsequently transferred to Muhammad Amin, Inspector (PW8) who arrested Nazir Ahmad, Aftab Alam and Safdar (appellant) on 20.4.1991. On 26.4.1991, the investigation of the case was handed over to Muhammad Bakhsh, SI. Safdar Ali appellant while in custody led to the recovery of 7 MM rifle which was taken into possession vide memo. Exh.PJ. This was witnessed by Muhammad Anwar and Rashid Ahmad but they were not produced in Court and the only witness produced to prove the recovery of the afore-referred rifle was Muhammad Bakhsh, SI (PW-7).
4. During trial, the prosecution examined fourteen witnesses including the doctor and the Investigating Officer. PW-9 Haji Noor Ahmad is a witness of conspiracy. He stated that three days prior to murder he over-heard Ashiq and Safdar Ali planning about the murder of Kamal Haq deceased. He heard Nazir Ahmad and Aftab telling Ashiq and Safdar to murder Kama) Haq deceased. Ali Ahmad (PW-10) is also a witness of conspiracy and he corroborated PW-9. Khalid Mehmood is PW-12 who is a son of the deceased is an eye-witness of the occurrence. On his statement the FIR was recorded. During trial, he made statement supporting the prosecution story as given in the FIR. PW-13 Shamsul H aq who is brother of PW-12 also corroborated the statement of PW -12.
5. The accused when examined under section 342 Cr.P.C, denied the prosecution story and attributed false implication to his close relationship with the absconding accused Ashiq Hussain.
6. The learned counsel for the appellant has raised the following pleas in support of his appeal :-
(i) That the evidence of consipiracy furnished by PW-9 and PW-10 is weak and does not inspire confidence. According to these witnesses they over-heard the accused planning the murder of Kamal Haq deceased three days prior to the alleged occurrence but they did not inform the police about this alleged consipiracy. This by itself would make their testimony not worthy of credit;
(ii) That if the appellant had shared common intention there was nothing to stop him to fire effectively at Kamal Haq deceased particularly when he was, as per the prosecution story, was at very close range and the deceased had fallen down after receiving the gun shot from Ashiq Hussain co-accused. The fire attributed to him amissed and according to the prosecution's own story, he did not repeat the firing;
(iii) That the appellant is not connected with the motive part of the Prosecution story as admittedly he had no civil or criminal litigation with Kamal Haq deceased;
(iv) That all the witnesses are closely related to the deceased and there is no independent corroboration to lend credence to their statements to warrant punishment on a capital charge; and
(v) That the recovery of rifle could not be proved and in any case the rifle in question has not been connected with the alleged offence.
7. The learned State counsel, on the other hand, has supported the impugned judgment by submitting that the appellant Safdar Ali was a close relative of Ashiq and therefore indirectly connected with the prosecution story. He, however conceded that the appellant had no direct motive to lire at Kamal Haq deceased.
8. I have heard the learned counsel for the parties and have also gone through the record.
9. The evidence of conspiracy or abetment does not inspire confidence. Haji Noor Muhammad (PW-1) is a brother of Kamal Haq deceased. It is repellent to common sense that having come to know about the conspiracy three days prior to the alleged occurrence he would not report' it to the police. Even otherwise the statements of PW-9 and PW-10 not only contradict each other but are inconsistent with their earlier statements made before the police under section 161 Cr.P.C. I here is not an iota of evidence connecting Safdar Ali appellant with "the motive alleged by the prosecution story. There is no reason why he should have gone to the spot with rifle and even if he had gone, as alleged, why did he content himself by making an ineffective firing at Kamal Haq deceased if he had the intention to kill him. The recovery' of rifle (P-8) has not been proved by any witness of the locality and even otherwise there is nothing in evidence to connect the said rifle with the ;alleged role attributed to the appellant.
10. The investigation of the case had changed many hands, It is in evidence that at one point of time the investigation was entrusted to SP Range Crimes. Faisalabad who appeared as CW-1. In his cross-examination he slated that in his opinion, the murder had taken place due to damage of crop of Kamal Haq deceased bv Ashiq Hussain (absconder-accused). This further lends support to the defence plea that the appellant had no motive to share common intention with Ashiq Hussain co-accused who fired the fatal shot.
11. For what has been discussed above, the prosecution has failed to prove its ease against the appellant Safdar Ali beyond a shadow of doubt to sustain the convication on a charge of capital punishment. By giving the appellant the benefit ol doubt, this appeal is allowed, the judgment dated 26.5.1993 passed by the learned Sessions Judge, Faisalabad is set aside and the appellant Safdar Ali is acquitted. He shall be released forthwith unless detained in any other case.