JUDGMENT AHMAD SAEED AWAN, J.- This criminal appeal calls into question the legality and propriety of the judgment dated 30.11.1991 whereby the learned Additional Sessions Judge, Okara, while acquitting Mst. Sabiran, co-accused, by giving her the benefit of doubt, had convicted Ameer, appellant, under section 302 PPC and sentenced him to life imprisonment. Benefit of section 382-B Cr.P.C, was also given to the appellant.
2. The brief facts of the case are that Zulifqar, complainant, lodged FIR (PC) stating that he was laminar and also mentioned the names of his five brothers, It was stated that out of them, Humayun and Suleman reside in Chak No. 125 6-R. Police Station Faqirwali Distt Bhawalnagar, while remaining for brothers including the complainant reside in tubewell Kamokianwala Dakhli Plutlhrwan Kambo Distt. Okara. Further it was stated that they were owners of 20 acres of land at Chah Kamokianwala which they sold to Muhammad Aslant of Okara City and received Rs.
4.05.000/- as earnest money and there after all the brothers shifted to cltak No. 125/6-R. It was alleged that 8.11.1990 was fixed for registration of the sale deed in favour of Muhammad Aslant but due to strike of buses, they could not reach in time and as such on 14.11.1990. The complainant and his three brothers, namely. Muhammad Yar. Ismail and Sarang through bus came from Bahawalnagar and de-boarded at adda Peerwali front where they started for their deni by following Kacha road. According to the complainant when they reached near Chah Urgan Wala Dnklili Pltularwan Kambo, they saw the accused coming from opposite side riding on a bicycle and they got down from the cycle at a distance from the complainant and his brothers. At that time, Mst. Sabiran alias Sahban, accused, was carrying 7 mm rife, which she handed over to his son Ameer, accused, and told him that murderers of his lather were coming and he should take revenge by killing them. Upon this. Ameer accused fired with 7 mm rifle which hit Muhammad Yar, brother of the complainant in the chest and he fell down. The complainant and his two brothers hid themselves b\ running into cotton crop. Amir accused fired other shots with 7 mm rifle on Muhammad Yar who was lying on the ground. The shots hit the deceased on various parts of his body. The occurrence was alleged to be witnessed by complainant. Muhammad Ismail and Sarang. PWs and on their cries, many people gathered at the place of occurrence and on seeing them, both the accused made their escape on the bicycle alongwith the rifle.
3. The motive ascribed is that about nine months ago, Talib Hussan, father of Ameer accused, was murdered by unknown assailants during the night and both the accused suspected that either Muhammad Yar murdered him or got him murdered and due to that grudge, both the accused in furtherance of their common intention, murdered Muhammad Yar.
4. The FIR was recorded by Faqir Muhammad, Sub-Inspector who inspected the spot, prepared injury statement of the deceased (Ex.P-1) and inquest report (Ex.P-J) and handed over the dead body to Munsab Ali and Muhammad Sharif, constables for post-mortem examination. On the same day the Investigating Officer took blood stained earth, sealed it into a parcel and took it into possession vide memo. Ex.PD. Two crime empties P.I and P.2 were also converted into sealed parcel vide memo. Ex.PE. On 30.11.1990, he arrested Ameer accused and on the same day while in police custody, the said accused led to the recovery of 7 mm rifle from his residential Kotha which was sealed into a parcel vide memo. Ex.PF. Ameer accused had also produced bicycle P.4. Mst. Sabiran accused was also arrested by the I.O. On 30.11.1.990. The bicycle was taken into possession vide memo. Ex.PG. After investigation, the I.O. Found only Ameer accused responsible for the murder but challaned both the accused.
5. Ameer and Sahiban accused when confronted with the prosecution case, both of them pleaded innocence and claimed trial. Ameer in his statement under section 342, Cr.P.C, stated that he has been falsely involved due to enmity; the deceased was murdered by unknown persons when he was going all alone to his cotton crop and that it was a blind murder. The accused did not get recorded his statement under section 340(2), Cr.P.C. He, however, in his defence produced two documents Ex.DA, school leaving certificate and Ex.DB birth certificate. According to these documents the accused was born on 10.7.1977.
6. At the trial, the prosecution examined as many as ten witnesses to prove its case and gave up Ramzan. Sarang and Ahmad beside the report of Chemical Examiner, Ex.PL and that of the Serologist, Ex.PM. PW-1 Abdul Hafiz. F.C. On 28.11.1990 took parcel of the crime empty from the moharrir of Police Station Depalpur and handed it over intact to the office of Forensic Laboratory, Lahore on 29.1 I 1990. PW-2, Muhammad Rafique, constable, on 8. 12.1990 received a parcel of 7 mm rifle and delivered it in the office of Forensic Labortory, Lahore. PW-3 Nisar Ahmed. AS1 received two sealed parcels containing blood-stained earth and crime empties of7 mm rifle from the I.O. Which he kept in safe custody. PW-4 Chiragh Din. Patwari, prepared site plan. Ex.PA and Ex.PA/1. PW-5 Dr. Muhammad Afzal Malik conducted the post-mortem examination on the dead body of Muhammad Yar deceased on 15.11.1990 at 10 AM which was brought to him by Mansab Ali Constable and was identified by Manzoor son of Muhammad Khan and Muhammad Ramzan son of Abdur Rehman. According to the doctor it was the dead body of an average built person. He found 27 injuries on the dead body of Muhammad Yar. Deceased. The doctor opined that the death was due to haemorrhage and shock as a result of fire arm injuries. That is, injuries No. 6 to 8, 10 to 13 and 15 to 27 causing extensive damage to the vital organs, namely, lungs, heart and stomach, intestines and lever etc. And fracture of-the ribs and vertebrae which were quite sufficient to cause death in ordinary course of nature. Injury Nos. I to 5, 9 and 14 were held to be caused b\ blunt weapon, it was also opined by the doctor that probable time between death and post-mortem was within 24 hours and death occurred immediately after sustaining the injuries. PW-6 Zulifqar, the complainant, brother of the deceased supported the contents of the FIR and also recoveries of blood-stained earth, crime empty and 7 mm rifle and that of bicycle P.4. He also attested the recovers memos. Rum Ex.PD to Ex.PE. PW-7, Ismail, is the real brother of PW-6, eye-witness, recovery witness of blood-stained earth and crime empty. He also supported contents of the FIR and deposition of PW-6. PW-8 Manzoor identified by the dead body of Muhammad Yar on 15.11.1990 before the doctor and also attested recovery memo Ex.PH. PW-9 Faqir Muhammad, the I.O.
Deposed that he recorded on 14.11.1990, IR. Ex.PC on the statement of the complainant and thereafter conducted the investigation; he found only Ameer accused responsible for the murder but challaned both the accused. PW-10 Muhammad Sharif, constable, took the dead body on M. I 1.1990 fr6m the spot to mortuary for post-mortem examination; on 15.11.1990 alter post-mortem examination, he handed over the last worn clothes of the deceased. P.5: P.6. P.7 and a pair of shoes.
P.8/1 -2 and a sealed phial. P.9 to the Investigating Officer.
7. The learned Addl. Sessions Judge after having gone through the;evidence on record and having taken all the facts and circumstances of the case into consideration, while acquitting his co- accused, had convicted and sentenced the appellant as stated above.
8. Learned counsel for the appellant argued that the prosecution had to discharge the burden of proving its case against the accused as charged beyond reasonable doubt in accordance with the established principles of administration of criminal justice and that the conviction of the appellant in the absence of prosecution having proved its case beyond reasonable doubt simply on the ground that the appellant suspected that his father Talib Hussan was murdered by the deceased some nine months ago; hence out of suspicion named the accused. It was further contended that the prosecution had failed to prove the motive beyond reasonable doubt and that the witnesses were chemical towards the accused and are belated to the deceased being his real brothers.
Further contended that the prosecution failed to produce a single independent witness. The presence of complainant, Zulfiqar, PW-6 and Ismail PW-7 was not established at the spot at the relevant time by the natural and independent witnesses. Learned counsel argued that the ocular evidence is contradictory to the medico-legal report as there were injuries by blunt weapon on the body of the deceased- but no explanation had been given by the prosecution. Further that the prosecution failed to establish that 7 mm rifle was used by Ameer accused for murdering Muhammad Yar. Similarly recovery of crime empty could not be established by the prosecution beyond reasonable doubt.
9. Learned counsel for the State pleaded that the prosecution has fully proved its case beyond any doubt. The occurrence was of day time and FIR was lodged promptly and question of substitution of culprit did not arise.
10. I have heard learned counsel for the parties and have gone through the record and evidence with their able assistance. A perusal of the prosecution evidence has high lighted the fact that the whole prosecution story runs around suspicion. P.W.6. Zulfiqar, the complainant, brother of the deceased deposed that they had no enmity with the accused; Talib Hussan father of Ameer accused was murdered and the accused suspected that Muhammad Yar, the deceased, murdered his father and also suspected that they were responsible for his father's murder. P.W.7.
Ismail brother of the deceased also deposed that Talib Hussan, father of the accused Ameer was murdered during night about 9 months prior to this occurrence and a case was registered against them on the assertion either they had killed him or got him killed. So far as ocular evidence is concerned that is not in conformity with medical evidence. There were 27 injuries out of which injuries 1 to 5 and 14 were held to be caused by blunt weapon and all the rest by firearm. There was no explanation regarding injuries caused by blunt weapon. According to the doctor, the injuries on which there is blackening were fired from the short distance and the injuries which did not have blackening were caused from a longer distance. Both the eye-witnesses, namely. Zulfiqar (PW-6) arid Ismail (PW-7), stated that the accused did not use any weapon except the rifle and did n6t give any injury to the deceased with blunt weapon. The said eye-witnesses further stated that when they alongwith the deceased and Sarang reached near the Adda Urjan Wala. Both the accused riding on bicycle came and A 1st. Sabiran abetted Ameer accused to kill Muhammad Yar as he and his brothers were the murderers of his father and gave him the rifle which she was carrying while sitting behind the bicycle. According to PW-6, Ameer accused fired 14 15 fires while as per PW-7, the accused fired plenty of number. The Investigating Officer (PW-9) disbelieved the version of PWs and declared Mst. Sabiran innocent though challaned and she was acquitted by the learned Additional Sessions Judge on account of failure of the prosecution to prove case against her. The negative report of Examiner of Fire Arms. Forensic Science Labortary (Ex.PW) saying that nothing can be said as to whether or not the crime empties (P.I and P.2) were fired from 7 mm rifle allegedly used by Ameer accused nullified the prosecution story.
11. Taking into consideration the evidence on record specially of the eve- witnesses (PW-6 and PW- 7), negative report of Fire Arm Expert, recovery of only two crime empties by the Investigating Officer and the opinion of the doctor with regard to blackening and non-blackening, the whole prosecution story becomes doubtful It is unbelievable that a mother would have asked her 13 years son to fire upon the deceased and the PWs. Who were inimical towards him and also were bodily stronger than the accused. It is also unbelievable that the Ameer accused committed the cruel murder of the deceased and the PWs. Who are his real brothers did not retaliate at all and witnessed the brutal murder of their brother at a short distance According to PW-8 Manzoor.
Muhammad Yar deceased's children were studying in school at Depalpur which factor established that the deceased was not residing in his village, as claimed, but was permanently residing at Depalpur.
12. As the prosecution story is based upon suspicion, it is well-settled principle that by itself, however, strong it may be is not sufficient to take place of proof and warrant a finding of guilt of the accused, It is also settled principle of criminal jurisprudence that prosecution has to succeed on its own merits and has to prove the case against accused beyond reasonable doubt and every doubt is to. Be resolved' in favour of the accused. Reference may be made to the case of Muhammad \ami: and others v. The State (1994 SCM R 1614).
13. The result of above discussion is that it would be absolutely unsafe to maintain the conviction of Ameer appellant. Therefore, giving him the benefit of doubt. I accept the appeal and set aside the conviction and sentence. The appellant shall be released forthwith, if not required in any other case.