' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,631 of 1995 filed by Allah Ditta alias Ditta son of Abdul, appellant, who was convicted and sentenced by Judge Special Court, (Suppression of Terrorist Activities) Gujranwala Division, on 4-9-1995 to undergo death sentence under section 302-B, P.P.C. With the further direction to pay Rs, one lac as compensation to the legal heirs of the deceased. In case of default, the same was ordered to be recovered as arrears of Land Revenue. The deceased in this case was Javed Iqbal son of Ghulam Haider P.W. Who is complainant in this case. Two co-accused of the appellant namely Jamil Akhtar and Zulfiqar Ahmad were acquitted by the learned trial Court.
2. The occurrence in this case took place on 28-9-1994 at 8.00 p.m. In the street in front of the house of the complainant situated in Mouza Kalapur, Mohallah Hajipura, Village Jalalpur Jattan, District Gujrat and the matter was reported to Atta Ullah, P.W. 13 at 9.00 p.m. On Shahbazpur Road near Dodhari Chowk, Jalalpur Jattan by Ghulam Haider P.W.3 father of the deceased, which is Exh.
P.A. While the formal F.I.R. Exh. P.A./1 was recorded by Riaz Hussain Shah, P.W.1 on the same day at 9.15 p.m. In Police Station, Sadar Jalalpur Jattan, Gujrat.
3. Brief facts of the case as narrated in the F.I.R. Exh. P.A./1 are that on the day of occurrence at 8.00 p.m. Complainant alongwith his son Shaukat Hayat and one Manzoor Ahmad were standing outside his residential house and were talking with each other, Javed Iqbal his another son came out from the house in order to urinate himself by the side of the road, that in the meanwhile Khalid son of Chirang, caste Bajwa resident of Mohallah Dara Dhero Shah Ward No,11 of Jalalpur Jattan armed with 222 bore rifle came there. He raised Lalkara that today, he would teach them a lesson and thereafter, fired a burst which hit Javed Iqbal on different parts of his body, who after receiving the same fell on the ground and died there and then. Khalid accused ran away from the spot.
4. The motive behind the present occurrence was that Khalid accused was engaged with Mst.
Sadia Bibi niece of the complainant but due to the bad character of Khalid, Javed Iqbal deceased and his other family members got that relationship with Khalid and Mst. Sadia Bibi disengaged.
Prior to the present occurrence many a time Khalid accused had threatened Javed Iqbal deceased.
5. The Investigating Officer namely Atta Ullah, S.I. P.W.13, after recording the F.I.R. Reached at the spot, prepared inquest report Exh. P.I. And also prepared injury statement Exh. P.J. He handed over the dead body to Muhammad Riaz Constable No, 1268 and Rub Nawaz constable No, 625 for postmortem examination. He inspected the spot. He recorded the supplementary statement of Ghulam Haider. He prepared site plan without scale which is Exh. P.K. Which is in his hand. All the marginal notes on it are in his hand and bears his signatures. He took into possession blood- stained earth from the spot vide memo. Exh. P.E. And made into sealed parcel in the presence of Arshid and Muhammad Saleem. He also took into possession 11 crime empties Exh. P.3/1-11 vide memo. Exh. P.F. In the presence of afore said P. Ws. He also recorded the statements of Manzoor, Shaukat Hayat and Muhammad Afzal, Mushtaq etc. He searched for the accused. On 29-9-1994 Muhammad Riaz Constable No, 1262 produced before him the last worn clothes of Javed Iqbal deceased Shilwar Exh. P.1, Shirt Exh. P.2, both blood stained and he seized them vide memo. Exh. P.C.
Attested by the aforesaid constable. He handed over the sealed parcel to the Moharrir. The draftsman prepared site plan with scale under his direction and on the pointation of the P.Ws. And site plans Exhs.P.D. And Exh. P.D./1 bears his signatures. All the marginal notes in red ink are also in his hand. He also recorded the statement of draftsman. Thereafter, he was transferred to Police Station, Saddar, Gujrat. On the transfer of Atta Ullah S.I., Ghulam Sarwar Gondal, S.I. Took over the investigation on 15-10-1994. On 25-10-1994 he recorded the statement of Muhammad Riaz M.H.C.
And Muhammad Daim constable under section 161, Cr.P.C. On 26-10-1994 he also recorded the statements of Muhammad Riaz M.H.C. And Daim constable with regard to the sealed parcel containing crime empties. He arrested Allah Ditta accused and Muhammad Jamil on 29-10-1994.
On 31-11-1994 he obtained the non-bailable arrest warrants again said on 31-10-1994, he obtained the arrest warrant against Zulfiar Ahmad accused and he entrusted the warrants to Irshad Ahmad Constable No, 444 for execution. The constable Irshad Ahmad could not arrest Zulfiqar Ahmad then he made an application for issuance of proclamation against Zulfiqar accused. Application for issuance of non-bailable arrest warrants is Exh. P.W.14/A which is in his hand and signed by him.
Similarly application regarding proclamation is Exh. P.W.14/B which is also in his hand and signed by him. The proclamation was handed over to Irshad Ahmad constable for compliance according to law. He complied with the orders of the Court and the third copy is Exh. P.W.2/A and Exh: P.W.2/A-1 which is in the hand of Irshad Ali constable. He also recorded his statement under section 161, Cr.P.C. On 12-11-1994 at about 12-10 noon, Allah Ditta accused was on physical remand with him, he was subjected to interrogation by him. He made a disclosure in the presence of Arshad Mahmood and Naseer Ahmad P.W. About the retention and concealment of rifle Exh. P.4 in his house. Similarly Jamil accused was also subjected to interrogation and in the course of interrogation he also disclosed about the retention and concealment of file 7. M.M. Exh. P.5 lying in his house. He took the accused alongwith P.Ws. Mentioned above in Hi-lux Wagon to the places of recovery in Mohallah Joggipura. Allah Ditta accused led the police party to his house, Naseer Ahmad and Arshad Mahmood P.Ws. Were also accompanying him. The accused entered in his house and got recovered rifle 222 bore Exh. P.4 from the western room of his house lying on a cot underneath the Chaddar which was taken into possession by him vide memo. Exh. P.G attested by Naseer Ahmad and Arshad Mahmood P.Ws. The same was also made into sealed parcel. He also prepared the rough sketch of the place of recovery Exh. P.G/1 which is also in his hand and signed by him.
Similarly Jamil accused also while in police custody led the police party to his house in Mohallah Joggipura and got recovered rifle 7-MM Exh. P.5 from the southern room of his house which was lying on a corner on the south. The same was taken into possession vide memo. Exh. P.H. Attested by Naseer and Arshad Mahmood P.Ws. He also prepared the rough sketch of the place of recovery Exh. P.H/1 which is in his hand and signed by him. He recorded the statements of Arshad Mahmood and Naseer Ahmad under section 161, Cr.P.C. On 16-11-1994, he recorded the statement of Irshad Ahmad Constable No, 444 who took the sealed parcel of rifle 222 to the office of Director Forensic Science Laboratory, Lahore. He handed over the sealed parcel to the Moharrir for further necessary action. He arrested Zulfiqar accused from Daska. Formally prior to it he was arrested by the police of Sambrial and he put his formal arrest only. He got Allah Ditta and Jamil accused challaned to Court through S.H.O., Police Station, Jalalpur Jattan and also submitted supplementary challan against Zulfiqar accused on 30-1995 through the S.H.O., Police Station, Jalilpur Jattan.
6. Prosecution in order to prove its case produced 14 witnesses in all. Thereafter, the statements of the appellant and his two acquitted co-accused were recorded under section 342, Cr.P.C., in which they pleaded innocence and false implication.
7. Prosecution in order to prove its case produced two eye-witnesses namely Ghulam Haider complainant P.W.3 and Manzoor Ahmad, P.W.4, belonging to brotherhood of the complainant.
Shaukat Hayat, real brother of the deceased was given up as unnecessary, then there is statements of Muhammad Afzal and Mushtaq Hussain, P.Ws.10 and 11, who are Waj-Takar P.Ws. In this case.
8. Learned counsel for the appellant has read before us the prosecution evidence; the statement of the appellant recorded under section 342, Cr.P.C. And makes the following submissions. He submits that petitioner was not named in the F.I.R., that in the F.I.R. One Khalid son of Chiragh with his all particulars was named but neither he was arrested nor he was challaned. He further submits that both the eye-witnesses are close relations of the deceased, that Ghulam Haider is father of the deceased while Manzoor Ahmad P.W.4 is from his brotherhood. He also submits that two witnesses of "WajTaker", i,e, namely Muhammad Afzal and Mushtaq Hussain are also close relation of the deceased. He submits that no independent witness has been produced by the prosecution, that the occurrence had taken place in a very thickly populated area. He also submits that light was not shown mentioned in the F.I.R but later on, prosecution P.Ws. Improved their statements. He submits that recovery of 222 rifle from the appellant was also planted on him and the recovery witnesses namely Naseer Ahmad and Arshad Mahmood are also close relation of the deceased and only Arshad Mahmood was examined as P.W.12. He submits that although it was stated that eleven crime empties were taken from the spot on the day of occurrence i,e, on 29-9-1994 but the same was sent to fire-arms expert on 19-10-1994. He submits that the report of fire-arms expert was procured by the prosecution after firing the bullets from the alleged recovery rifle from the appellant, which was planted on him. He submits that motive given in the F.I.R. Was different what the complainant submitted before the trial Court while making his statement on oath.
9. On the other hand, learned counsel for the State is not in a position to rebut the submissions made by learned counsel for the appellant and very halfheartedly has supported the prosecution case.
10. We have heard the learned counsel for the parties. In the instant case, complainant while lodging the F.I.R. Exh.P.A/1, therein he only gave the name of one Khalid son of Chiragh with complete particulars, as the only assailant of the murder of his son, alongwith the motive mat Khalid accused was engaged with Mst. Sadia Bibi niece of the complainant but due to the bad character of Khalid, Javed Iqbal decease and his other family members got that relations with Khalid and Mst. Sadia Bibi disengaged. Prior to the present occurrence many a times Khalid accused had threatened Javed Iqbal deceased. While complainant being examined by the learned trial Court had given a different motive which is also reproduced below.
"The motive of the incident is that the Phuphi of Allah Ditta accused was the wife of my brother and had three daughters from the wedlock. After the demise of my bother his wife entered into a second marriage. As a result I retained three daughters in my custody at my residence. Allah Ditta accused had been forcing us for the return of daughters and had been threatening in that context.
We did not take any notice and refused to return the girls. For this reason Allah Ditta accused developed grudge against us."
11. These two motives are not reconcilable. According to the statement of the complainant before the learned trial Court, he submitted that he has made a supplementary statement after reaching at the spot and gave the name of three persons as assailants for the murder of his son i,e, the present appellant, Jameel Akhtar and Zulfiqar Ali, who were acquitted by the learned trial Court.
Different story was given in the supplementary statement, his whole F.I.R. Exh. P.A/1 was duly got confronted by the learned defence counsel. He had also stated before the learned trial Court that the occurrence took place in the light of "Bulb" which was also duly confronted with Exh.P.A/1, the F.I.R. For the sake of arguments, if it is believed that the occurrence had taken place in the light of "Bulb" then he should have been sure about the killer of his son but he gave the name of the murderer of his son in the F.I.R., as Khalid but later on changed the whole complextion of the F.I.R.
And of the case. He has improved his statement which cannot be believed. Moreover, his supplementary statement is not admissible in evidence nor there is any clause of section in the whole of Criminal Procedure Code about the supplementary statement. Manzoor Ahmad P.W.4 is also from the brotherhood of the complainant. He is not resident of that street. It is important to note here, that after reaching at the spot Atta Ullah, S.I. Completed inquest report regarding the dead body of the deceased which is Exh. P.I. Had the complainant made a supplementary statement before the completion of inquest report of his son then there should have been the name of the present appellant in the brief facts of inquest report along with two co-accused, who have been acquitted by the learned trial Court. In the said brief facts, there is only name of Khalid accused, who was not arrested and challaned in this case. Complainant did not file any application before the Higher Police Authorities or before any other forum, stating therein that the Investigating Officer. Atta Ullah had recorded the F.I.R. On its own and did not record his version. We are of the considered view that in case where a person can be awarded death sentence or life imprisonment, the evidence should come from an unimpeachable source which is lacking in the instant case. The two witnesses of "WajTaker", namely Muhammad Afzal and Mushtaq Hussain are close relation of the complainant party. No reliance can be placed on their statements. As far as recovery of weapons is concerned, the crime empties were sent with a great delay. Moreover, the witness of recovery namely Arshad Mahmood P.W.12 also belonged to the brotherhood of the complainant. No independent person was joined during the recovery of rifle allegedly got recovered from the appellant from his house. In our view, prosecution has not been able to prove its case through disinterested and independent witnesses. While extending the benefit of doubt, we accept this appeal. The conviction and sentence awarded to the appellant by the learned trial Court is set aside. He shall be released forthwith if not required in any other case.
' Death sentence awarded to the appellant is not confirmed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.