' ASIF SAEED KHAN KHOSA, J.--Zahid Iqbal alias Zahid Khan appellant was convicted by the learned Additional Sessions Judge, Khanewal vide judgment dated 10-7-1997 for an offence under section 302(b),, P.P.C. And was sentenced to death and to pay a sum of Rs,1,00,000 by way of compensation to the heirs of Nisar Khan deceased under section 544-A, Cr.P.C. Failing which he was to suffer R.I. For five years. Zahid lqbal alias Zahid Khan appellant had challenged his conviction and sentence before this Court through Criminal Appeal No,225 of 1997. We have heard his appeal along with Murder Reference No,134 of 1997 seeking confirmation of the sentence of death passed against him. We propose to decide both these matters together through the present consolidated judgment.
2. The prosecution story narrated in the F.I.R. Was that Safdar Khan complainant was 'a resident of Chak No,23/10-R situated within the area of Police Station Kacha Khoh, District Khanewal. After Isha time on 29-3-1995 the complainant, Qaim P.W. And the complainant's maternal uncle Fazal- urRehman were proceeding to the house of the latter. When they reached the Chowk of Dera Javed Khan at about 9-00 p.m. They found the complainant's brother Nisar Khan standing there. The electric light of the Dera of Javed Khan was on at that time. In the meanwhile Haibat Khan and his son Zahid Khan appellant came there riding on a motorcycle Honda CD70. Upon reaching near Nisar Khan they stopped and alighted from their motorcycle. At that time Haibat Khan was armed with a .12 bore gun and Zahid Khan appellant was carrying a pistol. Haibat Khan then told Nisar Khan that he would teach a lesson to Nisar Khan for insulting his son Zahid Khan. Thereafter, within the view of the complainant and his companions, Haibat Khan gave a blow with the butt of his gun at the head of Nisar Khan. Zahid Khan appellant then fired a shot from his pistol hitting Nisar 'Khan below his left armpit. Upon receipt of those injuries Nisar Khan fell down. The complainant and his companions tried to apprehend the culprits but they scared the complainant, and others away by firing 3/4 shots. After that the culprits fled away from the place of occurrence on their motorcycle.
The complainant, and others then took Nisar Khan injured to Civil Hospital, Kacha Khoh but he succumbed to his injuries upon reaching the hospital.
3. Leaving the dead body of his brother Nisar Khan at the hospital in the care of Qaim and Muhammad Ashiq P.Ws. The complainant went .To Police Station Kacha Khoh, District Khanewal and lodged F.I.R. No,76 in that regard at 10-00 p.m. During the same night. The F.I.R. Was recorded by Kamal Uddin, S.I./S.H.O. (P.W.7) for an offence under section 302/34, P.P.C.
4. After recording the F.I.R. Kamal Uddin, S.I./S.H.O. (P.W.7) took up the investigation of this case, went to Civil Hospital, Kacha Khoh, prepared injury statement and inquest report qua the dead body of Nisar Khan and then sent the dead body to the mortuary for autopsy. He also recorded the statements of witnesses at the hospital. Thereafter he went to the place of occurrence and took into possession a pair of chappal of the deceased therefrom.
5. The post-mortem examination of the dead body of Nisar Khan was conducted by Dr. Khalid Rafique (P.W.6) at 10-00 a.m. On 30-3-1995. He had found two injuries on the dead body. Injury No,2 was found by. Him to be sufficient to cause death in the' ordinary course of nature. A bullet was recovered from the heart which had damaged the heart causing severe bleeding dile to which death had resulted. The probable time elapsing between the injuries and death was stated by the doctor to be about 10 to 20 minutes while the duration between the death and post-mortem examination was opined by the doctor to be about 10 to 12 hours.
6. After the post-mortem examination of the dead body Kalim Uddin, S.I./S.H.O. (P.W.7), the investigating officer, took into possession the blood-'stained last-worn clothes of the deceased.
Subsequently he got a site-plan of the place of occurrence prepared by a Draftsman, arrested Haibat Khan accused and Zahid Khan appellant and recovered a motorcycle from them. On 17-4- 1995 he recovered a kcensed gun from Haibat Khan accused and a pistol from Zahid Khan appellant. Thereafter he completed' the other formalities, finalized his investigation and submitted a Challan in respect of this case. Haibat Khan accused died before commencement of the trial.
7. At the commencement of the trial the learned trial Court framed a charge under section 302, P.P.C. Against the appellant to which he pleaded not guilty and claimed a trial.
8. During the trial the prosecution produced as many as ' seven Witnesses in support of its case against the appellant. Safdar Khan complainant (F.W.2) and Qaim Khan (P.W.3) furnished the ocular account of the incident and also stated about the motive. Dr. Khalid Rafique (P.W.6) provided the medical evidence. Nasir Khan (P.W.1) deposed about the recoveries of a motorcycle and the weapons of offence from the appellant and his co-accused. Kamal Uddin, S.I./S.H.O. (P.W.7) stated about various steps taker by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature. The learned trial Court also examined Saeed Ahmad, F.C. And Dr. Syed Ahmad Ali as. C.W.1 and C.W.2 respectively.
9. In his statement recorded under section 342, Cr.P.C. The appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. He maintained that the prosecution witnesses were related inter se and they had deposed against hint due to enmity. While answering a question as to why he had been implicated in this case the appellant had stated that:- "It is a false case. I and my father Haibat Khan since deceased have not committed the murder of Nisar Khan since deceased. In fact on 29-3-1995 after Isha prayer at about 9 p.m. My uncle Hamid ur Rehman along with Juma Khan and. Ijaz Khan was returning from the house of his uncle Shah Jahan and was- going towards his house when they reached in the chowk situated in front of the Dera of Javid Khan, deceased Nisar Khan armed with pistol, Safdar Khan armed With dagger, Mansab Khan and Fazal ur Rehman both empty-handed followed them and assaulted Hamid ur Rehman. Nisar Khan since deceased started firing at Hamid ur Rehman and injured him whereupon Hamid ur Rehman in his self-defence with his licensed pistol fired which hit Nisar Khan since deceased. This attack was launched by Nisar Khan due to the reason that on the day of occurrence an altercation took place between Hamid ur Rehman on one side and Nisar Khan and Safdar Khan on the other side due to fight between the children. At that time Hamid ur Rehman gave abuses to Nisar Khan since deceased and Safdar Khan. In order to avoid legal action in respect of injuries on the person of Hamid ur Rehman in connivance with police this story has been concocted. Hamid ur Rehman was not made accused in the F.I.R. In order to conceal the injuries received by him and expected defence. As we are joint family members of Hamid ur Rehman and closely related inter se, therefore we have been made accused in this case so that we may not persue the case of Hamid ur Rehman."
' The appellant opted not to make any statement on oath under section 340(2), Cr.P.C. And also did not produce any evidence in his defence. However, the learned trial Court had examined C.W.1 and C.W.2 who supported the case of the appellant.
10. At the conclusion of the trial the learned Additional Sessions Judge, Khanewal convicted and sentenced the appellant as noticed and detailed above. Hence, the present appeal and the connected Murder Reference before this Court.
11. We have heard the learned counsel for the appellant as well as the learned counsel for the State and have also gone through the record of this case with their assistance.
12. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. According to him the witnesses produced by the prosecution did not inspire confidence and that they had also failed to find material corroboration from any independent source. He has also maintained that the defence version had received ample support from the evidence available on the record. As against that the learned counsel for the State has argued that the prosecution had successfully proved the guilt of the appellant to the hilt through convincing, cogent and reliable evidence.
13. After hearing the learned counsel for the parties and going through the record we have no hesitation in concluding that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. The ocular account of the incident in question had been furnished by Safdar Khan complainant (P.W.2), and Qaim Khan. (P.W.3). Safdar Khan complainant (P.W.2) was a brother of Nisar Khan deceased and Qaim Khan (P.W.3) belonged to their brotherhood. Qaim Khan (P.W.3)'s brother Mansab Khan was an accused in the cross-case (F.I.R. No,183 of 1995) of this very incident lodged by a paternal uncle of the appellant and, therefore, the interest and motivation of Qaim Khan on the side of the complainant party of this case was quite natural. Both these witnesses were also chance witnesses. Safdar Khan complainant (P.W.2) lived two acres away from the place of occurrence and Qaim Khan (P.W.3) had his house. One Bigha away from the spot.
The occurrence had taken place at about 9-00 p.m. In the month of March. In the normal course of village life both these witnesses were not expected to be present outside their houses at that time of the night in that part of the year. Neither Safdar Khan complainant (P.W.2) in the F.I.R. Lodged by him nor Qaim Khan (P.W.3) in his statement (Exh.DA) made before the police had given any reason whatsoever for going with Fazal-ur-Rehman P.W. To his house at the relevant time when they coincidentally witnessed the occurrence. Even in their examinations-in-chief before the learned trial Court both of them again failed to advance any reason for going with. Fazal-ur-Rehman P.W.
To his house at that time. It was only in their cross-examinations recorded one year after the incident that they had for the first time explained that at the relevant time they were going with Fazal-urRehman P.W. To his house because Fazal-urRehman P.W. Had come to them and had asked them separately to go with him for the purpose of taking the ailing mother of Fazalur- Rehman P.W. To an hospital. We have been surprised to notice that the said Fazalur-Rehman P.W., who was a maternal uncle of the deceased as well as an eyewitness of the occurrence, had not been produced by the prosecution as a witness and was given up as unnecessary! He was the one who could prove the reason for availability of P.W.2 and P.W.3 near the place of occurrence at the relevant time. He was the one who could state about the health of his mother or any medical emergency necessitating her being taken to a hospital. But the prosecution not only failed to produce Fazal-ur-Rehman P.W. As a witness but it also completely failed to produce any evidence worth the name regarding any ailment of his mother. In the complete absence of any proof in that regard the raison deter for the presence of P.W.2 and P.W.3 near the place of occurrence at the relevant time remained completely unsubstantiated. It goes without saying that a chance witness who fails to satisfy the Court regarding the reason for his presence at a place where he was not ordinarily expected to be present in the normal course of things is not worthy of implicit reliance on a capital charge.
14. We have also noticed in this context that Safdar Khan complainant (P.W.2) and Qaim Khan (P.W.3) were not themselves injured during the incident nor there was any evidence available on the record confirming their claim of having taken the deceased to the hospital immediately after the occurrence. Thus, we have failed to find any independent confirmatory circumstance on the record to vouchsafe their presence near the deceased at the time of occurrence. They have, therefore, failed to inspire our confidence.
15. The eye-witnesses produced by the prosecution had also failed to receive any corroboration from any independent source. The evidence about motive was virtually next to nothing. The only hint of motive on the part of the appellant available on the record was in the shape of a Lalkara allegedly raised by the appellant's father Haibat Khan co-accused before the assault to the effect that the insult of the appellant by the deceased would be avenged. Nothing was brought on the record by the prosecution as to when, where and under what circumstances the deceased had insulted the appellant. There was also no evidence available as to what was the nature of the said insult or before whom the same was hurled.
16. The alleged recovery of a pistol from the appellant during the investigation had also remained inconsequential. The bullet recovered from the deceased's heart during his post-mortem examination could not match with the pistol allegedly recovered from the appellant: According to the report of the Forensic Science Laboratory (Exh.PL) the bullet was of .32 bore whereas the pistol recovered was of .30 bore! The same was the case with the motorcycle allegedly recovered from the appellant. The F.I.R. Only mentioned a Honda CD70 motorcycle without specifying its registration number or any other mark of identification. Thus, the motorcycle allegedly recovered from the appellant . Could not be connected with the offence in question.
17. The medical evidence produced by the prosecution was also of not much support to the ocular account. The eye-witnesses had to improve their statements to bring their statements in line with the medical evidence. The medical evidence showed that the solitary shot received by the deceased was from his back whereas this was not the original stand taken by the eye-witnesses.
' The medical evidence further showed the' shot received by the defeased must have been fired from a long distance because the bullet, despite hitting the softer parts of the body of the deceased, had failed to make an exit from the body. As against that the eyewitnesses had claimed that the shot , at the deceased had been fired from a distance of 5 to 6 feet! Apart from that in a witnessed occurrence the medical evidence is nothing but supportive in nature and the same has no value where the eye-witnesses themselves do not inspire confidence and, thus, there is nothing left to be supported.
18. It has also been noticed by us that even the place of occurrence in this case had not been convincingly established by the prosecution. The investigating officer (P.W.7) had admitted that no blood-stained earth had been secured, no crime-empty had been recovered from the spot and even a rough site plan of the alleged place of occurrence had not been prepared by him. It had also been admitted by the draftsma n (P.W.5) and the investigating officer (P.W.7) that the formal site plan (Exh.PG) of the place of occurrence or the notes recorded thereon did not contain the names of the culprits.
19. For the foregoing reasons we have arrived at a confident conclusion that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. The benefit of doubt, thus, must go to the appellant.
20. As the prosecution had failed to prove its case against the appellant beyond reasonable doubt, therefore, we have thought it fit not to bother much about the defence version. It may, however, be observed from the record that there was ample evidence available on the present record showing that the appellant's paternal uncle Hameed-urRehman did in fact receive injuries at about the same time when the present occurrence was alleged to have taken place but, unfortunately, the prosecution had remained completely silent about that. It was also brought on 'the record that the pistol and the motorcycle .Allegedly recovered from the appellant in fact belonged to the said Hameed-ur-Rehman. However, the circumstances in which Hameed-ur-Rehman sustained his injuries have remained far from being proved. The record of the present case also does not clearly show as to what was the fate of the F.I.R. Lodged and a private complaint filed in respect of the injuries sustained by the said Hameed-ur-Rchman.
No further comment on the defence version is called for in the present case.
21. The upshot of the above discussion is that Criminal Appeal No,225 of 1997 is hereby allowed, the impugned judgment passed by the learned Additional Sessions Judge, Khanewal on 10-7-1997 is set aside and Zahid Iqbal alias Zahid Khan appellant is acquitted of the charge against him. He shall be released from jail forthwith if not required in any other case.
22. Murder Reference No,134 of 1997 is hereby answered in the negative.
Death sentence in not confirmed.