' Through this appeal, the appellant has challenged the judgment, dated 11-4-1993 passed by Syed Sakhi Hussain Bukhari, Additional Sessions Judge, Gujranwala whereby while acquitting all the co- accused he convicted Shahnawaz appellant in the following terms:-- "At the time of occurrence, he was student of 8th class. His present age is about 17 years. He is accordingly liable to Diyat under section 308(1) Qisas and Diyat Ordinance (P.P.C.). He shall pay Rs,1,20,000 as Diyat which shall be disbursed among legal heirs of the deceased according to their respective shares in inheritance. He is also sentenced to suffer five years' R.I. By way of ' Tazeer'. He shall pay Diyat in equal by annual installments. The first installment of Rs,20,000 shall be paid on or before 10-10-1993 and the last installment shall be paid on or before 10-4-1996. If convict fails to pay Diyat he shall remain in jail and continue to suffer S.I. Until the payment of Diyat or until he furnishes security equal to amount of Diyat, to the satisfaction of Court. The Diyat shall be recovered from the property of convict and if the convict is not vested with any property then Diyat shall be recovered from the parents and brothers of the convict. The convict is also convicted under section 449, P.P.C. And sentenced to suffer 5 years' R.I. With a fine of Rs,2,000. In default of payment of fine he shall further suffer one year's R.I. Since Inayat, Muhammad Amer, Muhammad Nazir, Sarwar and Shahadat accused have been acquitted Shahnawaz accused cannot be found guilty or punished under section 148, P.P.C. The convict shall get benefit of section 382-B, Cr.P.C. And period of his detention during trial shall be counted towards his sentence."
2. The prosecution story as given in the F.I.R. (Exh.P.D.) lodged by Muzaffar Hussain (P.W.2) briefly stated is that over 12 Marlas of Shamlat Deh land which was attempted to be occupied by Inayat accused he (complainant) preferred an application before the Tehsildar for demarcation. This was taken ill-of by the accused. On 27-6-1991 at about 7-00 p.m. When the complainant along with his father Muhammad Khan, Atta Muhammad, Lumberdar and Falak Sher deceased were sitting in his house, Inayat accused empty-handed, Muhammad Ameer, Muhammad Nazir, Sarwar, Shahadat and Shah Nawaz (appellant) armed with .12 bore gun entered his house. Inayat co-accused raised a Lalkara that Muzaffar shall not be spared and that he should be taught a lesson for giving application for demarcation. Shahadat co-accused fired a shot which hit Falak Sher on the right flank. Muhammad Ameer fired which also hit Falak Sher on the right flank. This was followed by a shot by Sarwar which hit him on the left side of his flank. It was further alleged that Shahnawaz appellant and Muhammad Nazeer co-accused also resorted to indiscriminate firing. Falak Sher fell down and ultimately succumbed to the injuries.
' The case was partly investigated by Mukhtar Ahmad (C.W.1), Inspector Police Lines, Gujranwala. He got prepared the site plan (Exhs.P.H. And P.H./1) and arrested accused Inayat, Nazir, Sarwar, Shahadat and Shahnawaz (appellant) on 17-7-1991. On 26-7-1991, Shah Nawaz appellant led to the recovery of .12 bore gun (P.4) which was taken into possession vide memo. Exh.P.F. On the same day Shahadat accused led to the recovery of a .12 bore gun (P.5) which was also taken into possession vide memo. Exh.P.G.
' Falak Sher (deceased) died on the following day. His post-mortem examination was conducted by Capt. Dr. Khalid Farooq (P.W.1) on 29-6-1991 and found the following injuries on his person;-- ' Fire-arm wound 2 c.m. x 1 c.m. x D.N.P. On right side of head 5 c.m. From right ear and 6 c.m. From forehead hair line edges were irregular.
' Fire-arm wound of entry 1 c.m. x 1 c.m. x D.N.P. On back of right shoulder.
' Fire-arm wound of entry 1 c.m. x 1 c.m. x D.N.P. On right side of back chest 8-1/2 c.m. From mid line at back just at level of inferior margin of right scapula. Edges were inverted.
' Fire-arm wound of entry 1 c.m. x 1 c.m. x D.N.P. On left side of back chest in its lower most part 3 c.m.
From mid line at back. Edges were inverted.
' Fire-arm wound of entry 1 c.m. x 1 c.m. x D.N.P. On left side of back chest in its outer part 6 c.m.
Outer and above injury No,4. Edges were inverted.
' Fire-arm wound 2-1/2 c.m. x 1-1/4 c.m. On back of left side of chest just on inferior angle of left scapula. Edges were irregular."
' According to him the death of Falak Sher deceased was caused on account of excessive hemorrhage and shock as a result of fire-arm injuries to the chest which were sufficient to cause death individually as well as collectively.
3. After due investigation, the police submitted challan against the three accused only, namely, Shahadat, Inayat and Shah Nawaz (appellant). Thereafter, the complainant filed a complaint against all the accused named in the F.I.R. (Exh.P.D.) and the complaint is Exh.P.E. The trial proceeded and a judgment was delivered in the complaint case.
4. The prosecution examined ten witnesses during trial. P.W.1 is Capt. Dr. Khalid Farooq who conducted the post-mortem examination. P.W.2 is Muzaffar Hussain complainant. He narrated the story of the murder of Falak Sher deceased but made certain improvements in the version given in the F.I.R. (Exh.P.D.). As per F.I.R., Falak Sher deceased did not receive any injury on head but in his statement during trial Muzaffar (P.W.2) stated that the fire of Shahadat hit Falak Sher on his head.
Similarly, Shah Nawaz appellant and Muhammad Nazir accused who were attributed firing in the F.I.R. Were saddled with the burden of having caused fire-arm injuries on the back of Falak Sher deceased. The motive of the alleged occurrence, however, as given during trial was consistent with the one given in the F.I.R. P.W.3 is Zafar Hussain. He is a witness of recovery of crime weapons from Shah Nawaz appellant and Shahadat accused which were taken into possession vide Exh. Memos.
Referred to above. Atta Muhammad appeared as P.W.4. He also made a statement similar to that of Muzaffar Hussain (P.W.2) and made improvements in his earlier statement given under section 161, Cr.P.C. With regard to the role attributed to Shahnawaz appellant and co-accused Muhammad Nazir. Masood Ahmad Bhatti, Draftsman, appeared as P.W.S. He prepared site plan (Exhs.P.H. And P.H./1). Muhammad Ehsan, constable appeared as P.W.6. He collected the sealed parcel containing blood-stained earth for onward transmission to Office of the Chemical Examiner but could not deliver the same in the said office as the docket was prepared late and, therefore, he deposited the said parcel with the Muharrir. On 25-8-1991, he received two sealed parcels containing two .12 bore guns which he delivered in the Office of the Forensic Science Laboratory. Dr. Muhammad Zubair appeared as P.W.7. He medically examined injured Falak Sher (deceased) on 28-6-1991 at 5-15 a.m.
Rafaqat Ali appeared as P.W.B. He escorted the dead body of Falak Sher deceased to mortuary.
Ghulam Miran, Constable appeared as P.W.9. He is a formal witness with regard to the blood- stained earth. Muhammad Mansha H.C. Appeared as P.W.10 who received a sealed parcel containing gun and ultimately handed over the same to Muhammad Ehsan, Constable for onward transmission to the Forensic Science Expert. He is also a witness who identified the signatures of Muhammad Ashiq, 5.-I. On recovery memos. Exh.P.B., Exh.P.C. And F.I.R. (Exh.P.D.) as also on rough site plan (Exh.P.J.), inquest report (Exh.P.K.) and injury statement (Exh.P.L.). Mukhtar Ahmad (C.W.1) and Shabbir Hussain Shah (C.W.2) who partly investigated the case were summoned as Court- witnesses and the report of the Chemical Examiner was brought on record as Exh.P.M. And of Serologist Exh.P.N. And that of Forensic Science Expert as Exh.P.O.
' Accused-appellant when examined under section 342, Cr.P.C. Denied the prosecution story and attributed false implication to enmity.
5. Learned counsel for the appellant has assailed the impugned judgment on the ground that the ocular account is in conflict with the medical evidence; that the recovery is delayed and was rightly disbelieved; that the appellant is not connected with the motive part of the prosecution story; that enmity has been established on record; that independent corroboration was imperative to sustain conviction and that the impugned judgment is violative of the established principles of criminal law with regard to appreciation of evidence.
6. Learned State counsel, on the other hand, has frankly conceded that the impugned judgment is not sustainable in law.
7. I have heard learned counsel for the parties and have also gone through the record.
8. There is force in the argument of the learned counsel for the appellant that the ocular account has been contradicted by the medical evidence. Three accused, namely, Shahadat, Ameer and Sarwar were attributed specifically .12 bore gun shots on the person of Falak Sher deceased but surprisingly there were only four injuries on the back side of the deceased and that too at the close range. In the statement made during trial P.W.2 Muzaffar Hussain made further improvements and attributed specific injury to appellant Shahnawaz and Muhammad Nazir on the person of Falak Sher deceased. Thus, if the prosecution story is to be believed that five persons fired at Falak Sher deceased with .12 bore guns, the number of injuries would have been much more than five. As per F.I.R. The complainant Muzaffar Hussain was to be the victim of attack as he gave the application for demarcation but surprisingly neither firing was made at him nor he received any injury. Falak Sher deceased was admittedly a guest and he was not even remotely connected with the motive part of the prosecution story. It is repellent to common sense that the assailants would make him the target of their firing.
To sustain a charge on a capital punishment some independent corroboration is required which in this case is hopelessly lacking. The ocular account is not only interested and related but is inconsistent with their earlier version and is, therefore, not worthy of much credit. These witnesses were rightly disbelieved by the learned trial Court with regard to all the rest of the accused who stand acquitted and there is no material on record to, justify reliance on these witnesses with regard to the role attributed to Shah Nawaz appellant. There has been a delay of more than twenty hours in lodging the F.I.R. And this delay has not been explained which would further reflect on the bona fides of the[ prosecution case.
' The recovery of gun was admittedly made after seven days of the arrest of Shah Nawaz appellant and was rightly disbelieved by the learned trial Court.
' This is in line with the law laid down by the Honourable Supreme Court in a case reported in Muhammad Tasneem v. The State 1985 SCM R 160 wherein it was held as under:-- "Penal Code (XLV of 1860)--- ----Ss. 302/34---Reappraisal of evidence---Hostility between parties admitted---Trial Court relying mainly on testimony of prosecution witnesses whose names had not been mentioned in F.I.R. And holding other eye-witness to be a chance witness who was unable to give a satisfactory explanation as to his presence at place of occurrence---Crime weapon was recovered 5 days after accused's arrest which made recovery doubtful---Recovery evidence was weak inasmuch as recovery witness was himself a very close relative of deceased and as such was an interested witness whose testimony required corroboration---No evidence was available on record which could corroborate testimony of solitary interested and chance witness---Conviction, held, could not be maintained by relying on such witness in circumstances---Accused was, therefore, acquitted.--"
9. For what has been discussed above, the prosecution has failed to prove its case against Shah Nawaz appellant beyond a shadow of doubt to sustain conviction under the capital charge. The impugned judgment, dated 11-4-1993 passed by Syed Sakhi Hussain Bukhari, Additional Sessions Judge, Gujranwala is, therefore, set aside and the appeal is allowed. The appellant Shahnawaz is C acquitted of the charges levelled against him and shall be released forthwith if not required in any other case.