' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Murder Reference No,183-T of 1999, Criminal Appeal No, 451 of 1999 and Criminal Appeal No,453 of 1999 filed by Muhammad Nadeem and Iftikhar, appellants respectively. They were convicted and sentenced by Judge Special Court No,II, Constituted under Anti-Terrorism Act, 1997 vide his judgment dated 5-5-1999 for the murder of Muhammad Rafique deceased as under:--
(1) Iftikhar appellant Iftikhar appellantdeath, under section 302/34, P.P.C. seven years R.I with a fine of Rs.50,000 or in default 2 years R.I. under section 393/34, P. P.
C.
(2) Muhammad Nadeem, appellantLife imprisonment under section 302/34, P. P. C., and seven years' R.I under section 393/34, P.P.C. and to pay a fine of Rs.50,000 or in default two years R. I.
' Sentence awarded to the appellants were ordered to run concurrently.
2. Occurrence in this case has taken place at 12-45 p.m on 29-8-1998 within the revenue estate of Mohallah Takia Masoom Shah at a distance of two furlong from Police Station, Kotwali, District Gujranwala, while the matter was reported to the police by Musawar Rafique, complainant at 1-00 p.m on the same day and the formal F.I.R. Exh.P.A. Was recorded by S.H.O. P.W.11 on the same day.
3. Briefly stated the facts of the case are that on 29-8-1998, complainant alongwith his father Muhammad Rafique came to see their godown at 12-00 noon when at about 12-45 p.m. Two unknown persons whose ages were 22/23 years, whitish colour, height about six feet and 5/6 inches, stout and thick bodies out of whom one was having a circular shape while the other was of tall came into the godown. One of the accused was wearing Shalwar Kameez of Malasia colour while the other was wearing Shalwar Kameez of Boski colour. Both grappled with the deceased.
Complainant and his father tried to apprehend the accused but they ran towards the outer gate and were followed by father of the complainant. As soon as, father 'of the complainant came out from the gate in the street, the persons wearing Malasia colour it took out a pistol from his fold and fired at father of the complainant which hit on his right side of his chest. The injured fell down when in the meanwhile, Malik Nadeem etc. Came there and witness the occurrence. Father of the complainant succumbed to the injuries at the spot.
4. After the registration of case, Muhammad Azam, S.-I. P.W.11 reached at the spot, prepared inquest report Exh.P.K., injury statement Exh.P.L., took into possession blood from the spot vide memo.
Exh.P.H, recorded the statement of the witnesses under section 161, Cr.P.C., took into possession last worn clothes of the deceased vide memo. Exh.P.E. And thereafter, the investigation was handed over to S.H.O., P.W.12, Who arrested both the appellants on 4-9-1998. Iftikhar appellant while in police custody led to the recovery of pistol P.9, which was taken into possession vide memo. Exh.P.F.
Similarly, Nadeem, appellant got recovered dagger P.11, which was taken into possession vide memo. Exh.P.G. After completion of the investigation both the appellants were challaned to face the trial. Reports of the Chemical Examiner, Serologist and Forensic Science Laboratory are Exh.P.P.
Exh.P.Q and Exh.P.R. Respectively.
5. Prosecution in order to prove its case produced 12 witnesses in all, thereafter, the statements of the appellants were recorded under section 342, Cr P.C, in which, they pleaded not guilty and claimed false implication.
6. Learned counsel for the appellants had read before us, the evidence of the eye-witnesses, evidence of Investigating Officer and evidence of Dr. Shabbir Hussain, P.W.10, who has conducted the post-mortem examination on the dead body of the deceased. Learned counsel for the appellants submits that appellants were not named in the F.I.R., that no identification parade was held in this case, as the appellant was not known previously to the complainant, that three eye- witnesses were produced namely Malik Musawar Rafique, complainant, son of the deceased, Abid Javed P.W.2 was brother in law of the deceased and Muhammad Shafique P.W.3 was also from their brother-hood and no independent witness has been produced. He submits that even Muhammad Shafique, P.W.3 came after the occurrence. Further submits that there is conflict between ocular account and medical evidence. Elaborating his arguments, he submits that according to the doctor, deceased died after receiving the injury and duration on between injury and death was 1/2 hour to one hour. He further submits that according to the post-mortem report, the duration between death and the post-mortem was 6 to 12 hours. He also submits that there are lot of contradictions and confrontations in the statements of the eye-witnesses that F.I.R. Was recorded after due deliberation and consultation, that recovery in the instant case was of no use of the prosecution, as no crime empty was recovered from the spot. He further submits that if it was in the knowledge of Abid Javed and Muhammad Shafique P. Ws. That the names of the appellants are so then both of them could have told the same to complainant when he was leaving for the police station after the occurrence. He submits that in fact appellants were arrested on 1-9-1998 in another case and was confined in police station but their arrest was shown on 4-9-1998. He submits that prosecution has failed to prove its case against the appellants.
7. On the other hand,' learned counsel for the State supports the judgment of learned trial Court and submits that it was not a case of false implication, because there previous background of enmity between the parties, that ocular account is corroborated by medical evidence and the recoveries of pistol and dagger from both the appellants.
8. We have heard the learned counsel for the parties and have also gone through the evidence recorded by the learned trial Court. In the instant case, nobody was named in the F.I.R., only description of the accused/appellants was given but no identification parade was held although the appellants were not known to the complainant prior to the present occurrence. Had the appellant been known to the complainant, he must have named them in the F.I.R. It does not appeal to reason that before leaving the place of occurrence when the complainant went to Police Station to lodge the F.I.R. He could have been informed about the names of the appellants by the other eye-witnesses, who allegedly were present at the spot, when according to their statements they knew the names of the accused persons besides knowing them previously. We do not believe the story of the prosecution that when the complainant after getting registered the case in the Police Station. Came at the spot then he was told about the names of the accused/appellants by the other eye-witnesses.
9. For the just decision of the case, statement of Dr. Shabbir Hussain P.W.10 is reproduced below: ' On 29-8-1998, I conducted the autopsy and dead body of Muhammad Rafique son of Muhammad Sharif External Appearance Injuries:
(1) An area of tiny abrasion due to power sprinkling in area about 2-1/2 c.m. x 2-1/2 c.m. Situated at medical side of right upper arm 6 c.m. Proximal to right elbow.
(2) Fire-arm wound of entry obliquely placed 1-1/2 x 1 c.m. Just below right nipple.
(3) Fire-arm wound of exit 3/4 x 3/4 c.m. At outer part of left chest 11 c.m. From left posterior exillary fold and 18 c.m. From left nipple.
On dissection Opinion After external and internal post-mortem examination I was of the opinion that death in this case had occurred due to haemorrhagic, shock and cardic damage caused by fire-arm injuries Nos.1 and 2 which were sufficient to cause death in ordinary course of life. All mentioned injuries were anti-mortent Probable time between injury and death was about half to one hour and between death and post-mortem was about 6 to 12 hours.
10. Bare perusal of above statement of the doctor would show that duration between injury and death was from half hour to one hour but according to the eye-witnesses and the F.I.R. Deceased died at the spot immediately. This is a clear conflict between statements of eye-witnesses and that of the doctor. Then another conflict between ocular account and medical evidence is that the exit wound which should be bigger in size than the entry wound but in the instant case, this vice versa because according to doctor the exit wound is number three and entry wound is number two. Entry would is bigger in size than the exit wound. Another important factor in the instant case is that according to the statement of doctor mentioned above the time between death and post-mortem as 6 hours to 12 hours. Occurrence in this case according to the prosecution took place on 29-8- 1998 at 12-45 p.m., matter was reported to the police at 1-00 p.m. Post-mortem was conducted at 5-05 p.m. On the same day and the duration given by the doctor as mentioned above is from 6 hours to 12 hours between death and post-mortem. This does not coincide with the time of occurrence. The two other eye-witnesses besides Malik Muhammad Musawar Rafique complainant, amongst them Abid Javed P.W.2 is brother-in-law of the deceased and Muhammad Shafique P.W.3 is also from brother-hood of the deceased. P.W.3 did not see the appellants while causing the injury to the deceased but he saw them running away from the spot after the occurrence. Both the above P.Ws. Are closely related to deceased and no independent witness from the locality has been produced by the prosecution. No empty was recovered from the spot.
Recoveries of pistol from Iftikhar appellant and dagger from Nadeem C appellant cannot advance the case of the prosecution because except the sentence that pistol recovered from Iftikhar appellant was in working order and semi-automatic weapon, nothing more was written in report of Fire-arm Expert. The dagger allegedly recovered from Nadeem appellant was not stained with human blood.
11. It may be mentioned here that according to the prosecution F.I.R. Exh.P.A. Was registered in Police Station, thereafter, Investigating Officer went to the spot alongwith the complainant, he prepared the inquest report at the spot where dead body was lying. If one goes the brief facts of inquest report there is no mention of case F.I.R. Number, this shows that F.I.R. Was recorded later on after due deliberation and consultation, then the appellant Iftikhar while replying to question No,9 in his statement recorded under section 342, Cr.P.C. Has stated that he was taken into custody op 30-8- 1998 and this is also the statement of his co-accused/appellant namely Nadeem.
11-A. Question No,9 and its reply from one of the appellant namely Iftikhar is also reproduced below for the just decision of the case. Q. No,9. Why this case against you and why the P.Ws. Have deposed against you?
A. I am innocent in this case. I have been involved falsely by the police. I was taken in custody by Muhammad Azam, S.-I. On 30-8-1998 as a suspect in another case. He maltreated me to receive money. Muhammad Afzal brother-in-law of co-accused Nadeem alongwith my father and brothers used to protest against the S.H.O. Police Station Kotwali, Rana Shabbir Ahmad fOr involving me falsely in this cage, Rana Shabbir Ahmad Inspector S.H.O. Forced me to confess this murder, on my refusal I was beaten severely. On 3-9-1998 Muhammad Afzal came to police station to give me medicine sent by my father and to serve the food to Muhammad Nadeem my co-accused. He too was beaten by Rana Shabbir Ahmad S.H.O. With the help of subordinates. Muhammad Afzal moved an application before the Illaqa Magistrate against Rana Shabbir Ahmad and requested for medical examination. On 4-9-1998 by the orders of Illaqa Magistrate Muhammad Afzal was medically examined at 11-00 a.m. By the Medical Board. Before initiating any proceedings against Rana Shabbir Ahmad Inspector S.H.O. Showed my arrest in the instant case inclusion with the complainant party. I was never arrested from Railway Station. Recoveries are fake and planted. In order to develop pressure on 10-10-1998 Rana Shabbir Ahmad Inspector S.H.O. No, 176 of 1998, dated 3-4-1998 under section 392, P.P.C. Police Station Kotwali. When firm undertaking was given that no proceedings would be initiated against him. He got me discharged from the above said case as per his commitment, on 16-10-1998, I produced in evidence Exh.D.D. All the P.Ws. Are interse related as well as with the deceased. It was an un-witnessed occurrence. Nobody knew the real culprits."
12. This version of the appellants is supported by documents produced by them in their defence which are Exh.D.D., Exh.D.E. And Exh.D.F.
13. Taking into consideration, the above facts, the evidence having glaring conflicts between medical and ocular account, coupled with the submissions made by learned counsel for the appellants, we are of the considered opinion, the prosecution has not been able to prove its case against the appellants beyond any shadow of doubt.
14. In this view of the matter, we accept this appeal, Conviction and sentence awarded to the appellants by the learned trial Court is set aside. Death sentence of Iftikhar appellant is not confirmed. Murder Reference is replied in negative. Appellants shall be released forthwith if not required in any other case.
Death sentence awarded to Iftikhar appellant is not confirmed.