' This judgment will dispose of Criminal Appeal No,837 of 1996 filed by Ahmad Sher who was convicted and sentenced on 1-10-1996 by the learned Sessions Judge, Mandi Bahauddin, to undergo life imprisonment under section 302(b), P.P.C. With a further direction to pay Rs,50,000 (fifty thousand) as compensation under section 544-A, Cr.P.C. In default six months' R.I. For the murder of Muhammad Ijaz. One other accused Manak father of the present appellant was also named as an a better but he died before commencement of trial.
2. The occurrence in this case took place on 30-1-1994 at Chah Wela within the area of Behak Mawaishian which falls within the jurisdiction of Police Station Miana Gondal, District M.B. Din while the F.I.R. Exh.P.B. Was lodged by Muhammad (P.W.) father of deceased at 10 a.m. In the police station and the same was recorded by Muhammad Ramzan, S.-I.
3. Brief facts of the case are that on 30-1-1994 the complainant along with his real brother Inayat and Shamshair was going towards his cattle shed. Ijaz Hussain deceased son of the complainant accompanied them as well but he was a few steps ahead of them going towards Dera of cattle.
When they reached near cattle shed of Soeni situated in the same village on road side leading Sanda at Chhah Vela, Ahmad Sher accused was seen coming towards village side. He asked Ijaz Hussain deceased to give firm opinion, if compromise in hurt case would be made or not to which Ijaz Hussain replied in negative. Ahmad Sher at that time being offended of the reply brought out a carbine out of Bukkal of his Chadar and then fired straight at Ijaz Hussain causing injury on his left side of the chest and left flank. He fell down and thereafter, he died because of injuries caused to him. Ahmad Sher accused then had left the spot while waiving the carbine in the air. The complainant 'and his companions brought the cot from nearby Dera and put dead body of Ijaz Hussain on it. Inayat and Shamshair P.Ws. Guarded the dead body and Muhammad complainant went to the police station to lodge the F.I.R. The complainant had concluded that Ahmad Sher accused at the instigation of his father Manak had committed murder of ljaz Hussain. In nutshell, it was Ahmad Sher accused who was the actual culprit and who has caused death of Ijaz Hussain by inflicting fire-arm injuries. Manak accused, now deceased, was not present at the spot but he in the background has conspired and instigated his son Ahmad Sher for commission of crime. Motive behind this occurrence-is that on 6-1-1993 Ahmad Sher alias Sheri accused, real nephew of the complainant had inflicted injuries upon his son, Muhammad. Nawaz. Ahmad Sher and his father were challenged in that case which was still pending in the Court of Illaqa Magistrate. Ahmad Sher accused and his father both had been compelling him to effect compromise in that case. The complainant party in that case did not agree to this compromise.
4. The Investigating Officer after registration of F.I.R. Reached the spot and took into possession the blood-stained earth vide memo. Exh.P.C. During the course of investigation he arrested the accused/appellants on 16-2-1994. On 22-2-1994 the appellant led to the recovery of carbine P.1 which was taken into possession vide memo. Exh.P.D.
5. The prosecution in order to prove its case produced 10 witnesses in all. Amongst them there are two eye-witnesses namely Muhammad (P.W.2) and Muhammad Inayat (P.W.3) are the real father and uncle of the deceased respectively.
6. Learned counsel for the appellant has read before me the prosecution evidence and the statement of the appellant recorded under section 342, Cr.P.C. He claimed false implication and innocence. After reading the same he submits that F.I.R. In this case has been lodged after due deliberation and consultation. He also submits that there is an inordinate delay in lodging the F.I.R., although, the police station was at a distance of 6 miles from the place of occurrence. He has also relied on 1995 SCM R 599. He submits that it was a case of unwitnessed murder. Both the eye- witnesses were not present at the spot. Being close relatives of the deceased they have made their statements against the appellant. He also submits that the conduct of both the P.Ws. At the spot was unnatural and improbable, because they never took the deceased to the hospital. He also submits that there is conflict between ocular account and the medical evidence, although, the doctor was not examined in this case being out of country. He submits that recovery in this case was of no consequence to the prosecution because no crime empty was taken into possession from the spot. Lastly he submits that the motive in this case has not been proved either during the course of investigation or before the trial Court. The learned trial Court has totally disbelieved the motive.
7. On the other hand learned counsel for the State assisted by the learned counsel for the complainant submits that he appellant is nephew of the deceased and son of Manak accused (step-brother of the deceased) who had died before the commencement of trial. He submits that when this occurrence had taken place there was a light and it was not a case of mistaken identity.
He also submits that prosecution has proved its case through ocular account coupled with medical evidence and recovery of carbine from the appellant. As far as motive is concerned, learned State Counsel submits that motive is always in the mind of the accused.
8. I have heard the learned counsel for the parties and have also gone through the evidence recorded by the learned trial Court very carefully and minutely. In the instant case the motive was that the appellant along with his father was involved in an hurt case of Muhammad Nawaz son of Muhammad (complainant), that the case was going on in the trial Court and it was alleged in the F.I.R. And also before the trial Court that the present appellant along with his father has been compelling the complainant that he should compromise the matter but on his refusal the present appellant committed the murder of the deceased. I may state here that neither the deceased was did not injure P.W. In the earlier case nor he was P.W. Or complainant. Moreover, there was no allegation in the F.I.R. That the deceased was perusing the case so the motive has rightly been disbelieved by the Investigating Officer and also by the trial Court. I am also not inclined to accept the motive as stated by the complainant and the prosecution. In the instant case there are two eye-witnesses namely Muhammad father of the deceased and Muhammad Anaya who is real brother of Muhammad complainant. According to the F.I.R. And the statements of both these eyewitnesses the deceased after receiving injury fell down on the ground and died there and then.
His post-mortem examination was conducted by doctor Kh. Muhammad Anwar whose evidence has come on record through P.W.9 as he was not available and has gone abroad. P.W.9 Muhammad Jamil Dogar, Dispenser has identified the handwriting of Dr. Kh. Muhammad Anwar and proved the post-mortem report Exh.P.F. And diagram Exh.P.F./1 as prepared by doctor Kh.
Muhammad Anwar and also signed by him. I have gone through the said post-mortem report.
According to the finding of the doctor, the time between the injury and the death is one hour to 1- 1/2 hours. This contradicts the ocular account because according to the eye-witnesses the deceased died soon after receiving the fire-arm injury. Moreover, Muhammad complainant (P.W.) also admitted during the cross-examination that he could not say whether the occurrence had taken place 1/2 hour or one hour after Chha Vela or after one Pehar. He himself is not sure about the time of occurrence. As far Muhammad Inayat (P.W.) is concerned, he has admitted during the cross-examination that appellant had not pressed for compromise to the complainant. As far as recovery of weapon is concerned, it has no value in this case because no crime empty has been recovered from the spot and there is also no report from the Fire-arm Expert whether it was in working condition or not.
9. Keeping in view the circumstances of the case the possibility of false implication cannot be ruled out in this case. While extending the benefit of doubt to the appellant, I accept this appeal and set aside the conviction and sentence awarded to the appellant by the learned trial Court. He shall be released forthwith if he is not required in any other case.