' KHAWAJA MUHAMMAD SHARIF, J.---This judgment dispose of Murder Reference No,4 of 1998 and Criminal Appeal No,13 of 1998 filed by Muhammad Murad and Ghulam Hussain, appellants who were cousins inter se and also one of them is brother-in-law of the other. Both were convicted and sentenced by the learned Additional Sessions Judge, Liaqatpur, District Rahimyar Khan for the murder of Abdul Jabbar deceased vide his judgment dated 4-2-1998 as under:
1. Muhammad Murad, appellant under section 302(b)134 P. P.C . To undergo death with compensation under section 544-A, Cr.P.0 in the sum of Rs,50,000 and in default one year R.I., to be paid to the legal heirs of Abdul Jabbar deceased.
2. Ghulam Hussain, appellant under section 302(b)134, P.P.C. To imprisonment for life, with compensation of Rs,50,000 under section 544-A, Cr.P.C. And in default to undergo further R.I for one year. Benefit of section 382-B, Cr.P.C. Was also extended.
2. Occurrence in this case took place on 23-3-1995 at 7-30 p.m. While the matter was report by Haji Nisar Ahmad, complainant (P.W.2' before Ghulam Sarwar, A.S.-I. (P. W.1), who was present in Chowk Khan Bela on the same day, at 8-30 p.m. And the formal F.I.R., Exh.P.A was recorded in the Police Station, Shadani at 9-00 p.m.
3. Brief facts of the case were that on 23-3-1995, complainant along with his brother namely Haji Abdul Jabbar deceased went to Parara Sharif to look after their field, where Abdul Ghaffar another brother of the complainant and Rana Muhammad Ashraf were also present. At about 7-30 p.m.
Complainant along with his brother Abdul Jabbar and nephew Abdul Manan aged 3 years started for their home on a motorcycle bearing Registration Number 5653/R.N.F, Model 1992. Motorcycle was being driven by Abdul Jabbar, Abdul Manan was sitting in front of him while complainant was sitting behind the deceased. When they reached at the bank of Canal Wah, three persons out of whom two were recognized in the light of motorcycle were Muhammad Murad and Ghulam Hussain while the third could not be recognized because of his muffled face, blocked the way and raised the Lalkara that complainant party would not go alive. Sooner Abdul Jabbar stopped the motorcycle due to blockade of the path, Ghulam Hussain fired with his pistol which hit on the arm of Abdul Jabbar while Muhammad Murad also fired a shot which hit on the chest of Abdul Jabbar.
The third unknown person kept the path blocked and fired in air. Complainant requdted Ghulam Hussain etc. But they also threatened him to be meted out the same treatment, if he said something. In the meanwhile, Abdul Ghaffar and Rana Muhammad Sharif also came at the spot and witnessed the occurrence. On seeing them, Ghulam Hussain cleared the path and went towards K.L.P. Road on their motorcycle. Abdul Jabbar succumbed to the injuries at the spot.
Ghulam Hussain etc. While going openly remarked that if their land is not relieved, other brothers will also be given the same treatment.
' Motive for the occurrence was that about 15 days prior to the occurrence, Abdul Jabbar had purchased 7 Kanals of land from Pir Mohsin in Mauza Parara and also taken the possession thereof.
5/6 days ago, Muhammad Murad etc. Had threatened to return back the land otherwise be ready for the consequences. Muhammad Murad etc. Were requested to return back the amount as the complainant party was ready to relieve the land but the accused replied that they were not responsible to pay back the amount rather 2/3 days prior to the occurrence watered the land in order to take possession. Upon this, the complainant party decided to take legal proceedings which became the cause of anger and accused had been threatening the complainant that if the land is not returned back to them, they would be taught a lesson.
4. After recording formal F.I.R. In the Police Station, Muhammad Afzal Lodhi, A.S.-I. (P.W.12 went to the spot, prepared the inquest report Exh.P.K and took the blood-stained earth into possession vide memo. Exh.PC. He also took into possession Rs,574 and a Casio wristwatch from the possession of the deceased vide memo. 'Exh.P.G. Two months after the occurrence, that is on 16-5-1995, Haji Nisar Ahmad, complainant produced before Muhammad Iqbal, S.-I. (P.W.8) an empty bag stained with blood P.10, handkerchief P.11, registration book of the motorcycle P.12 and key of the motorcycle P.13 which were taken into possession vide Exh.P.F. Muhammad Murad and Ghulam Hussain appellants were arrested on 22-4-1995 by Bashir Ahmed Jamoo, Inspector (P.W.9).
' After completion of the investigation, both the appellants were challaned to face the trial.
5. Prosecution in order to prove its case produced 12 witnesses in all out of whom Haji Nisar Ahmad (P.W.2) and Muhammad Ashraf (P.W.3) were eye-witnesses while Dr.Muhammad Yousaf who examined the dead body of the deceased on 24-3-1995 at 8-30 p.m. Was produced as P.W.11.
Reports of the Serologist are Exh.P.M, Exh.P.N and Exh.P.O while that of the Chemical Examiner are Exh.P.P, Exh.P.Q and Exh.P.R. Similarly, report of the Firearm Expert is Exh.P.S. ' After conclusion of the trial, both the appellants were convicted and sentenced as stated above.
6. Learned counsel for the appellants has read before us the prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. And submits, that the dispute in respect of the land is admitted, witnesses are inimical towards the appellants, two eye-witnesses are also witnesses of the motive and recoveries which cannot be believed and in this regard, learned counsel has relied on 1980 SCM R 225 and 1995 SCM R 599. Further submits that according to prosecution case Muhammad Murad, appellant had extracted Rs,1,50,000 from the complainant party and later on he had also destroyed their garden and this was the reason that Muhammad Murad was falsely implicated in this case although the complainant had not taken any step or lodged any complaint with regard to. Happening of above two incidents and that according to the prosecution, both the appellants came there not with muffled faces but the third accused who was never arrested or challenged had his face muffled. Learned counsel submits thai if the known persons had not muffled their faces then why the third unknown person had muffled his face, which is an unnatural story. Further submits that Haji Nisar Ahmad complainant (P.W.2) is real brother of the deceased while Muhammad Ashraf P.W.3 is first cousion of the deceased and their testimony cannot be relied upon. Also submits that no independent witness has been produced by the prosecution to prove its case and that it is very strange that after two months complainant had produced the bloodstained bag, registration book of the motorcycle and key of the motor-cycle of the deceased before Muhammad Afzal, S.-I., P.W.8 belonging to Range Crime, Bahawalpur without any proper explanation. Learned counsel submits that if these articles were with him at the time of lodging the report, he could have produced the same before the police; during the course of different investigation both the appellants were found innocent; both the appellants remained on physical remand for 14 days but nothing incriminating was recovered from them either in the shape of illicit arms or the motorcycle belonging to the deceased; story of the complainant party is not believable because if' the deceased was driving the motorcycle and the complainant was sitting behind him while the minor Abdul Manan was sitting in front of him on the motorcycle, and the bullets hit on the right arm and chest of the deceased must have also hit the minor; it is the prosecution case that the fires were shot from a distance of 6/7 feet but aeither there is any blackening nor tattooing; Muhammad Ashraf P.W.3 is resident of Saudi Arabia; he had no land at the place or near the place of occurrence; 5/6 fires were shot but no empty was taken into possession from the spot; and that in the site plan Exh.P.L, which was prepared by the Investigating Officer without scale, presence of the eye-witnesses have not been mentioned. Learned counsel submits that F . I . R . Was got registered after due deliberation and consultation and that in column No,3 of the inquest report, no time of the occurrence has been given and that the site plan with scale was never got prepared from a draftsman or a Patwari and no witness in this regard was produced by the prosecution. Further submits that Abdul Rehman D.W.1 was servant of Abdul Jabbar deceased but he had not supported the prosecution story. Learned counsel lastly, submits that prosecution has miserably failed to prove its case against the appellants beyond shadow of doubt.
7. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that time, date and place of occurrence had been admitted by the appellants; presence of minor child of the deceased was also admitted by the appellants and that the medical evidence is corroborated by ocular account. Both the learned counsel submit that conviction and sentence as ordered by the learned trial Court may be maintained.
8. We have heard learned counsel for the parties and have also gone through the prosecution evidence recorded by the learned trial Court specially deposition of the doctor, who conducted post-mortem examination of the dead body of Abdul Jabbar, deceased and the statements of the appellants recorded under section 342, Cr.P.C. In the instant case, prosecution has failed to prove the motive. Motive mentioned in the F.I.R. Was that the appellants had threatened the deceased as to why he had purchased the land as he was interested in the purchase of the same but no witness in this regard was produced by the prosecution. It was further the case of the prosecution that 5/6 days prior to the occurrence appellants had threatened the complainant to return the land and many respectable were asked to approach Muhammad Murad appellant to return the money but none from the respectable was produced by the prosecution. So, the possibility of false implication on the basis of motive set up by the prosecution cannot be ruled out. Now we take up the medical evidence which in the instant case does not corroborate the ocular account because had the minor Abdul Manan been sitting on the tankey of the motorcycle just in front of the body of the deceased, the shot which hit on the right arm and chest of the deceased, must have injured the minor. No recovery of the weapon of offence was effected from both the appellants despite their physical remand for 14 days, Similarly, no crime empty was recovered from the spot although according to the prosecution 5/6 shots were fired. In a case where penalty of death is to be imposed Courts are to see that the material/evidence warranting award of the capital punishment, must have come on record through an unimpeachable source which is lacking in this case.
9. Keeping in view the overall facts and circumstances of the case, we are of the considered opinion, that appellants have been able to create dent in the prosecution case and the prosecution has miserably failed to prove its case against the appellants beyond any shadow of doubt. So, while extending the benefit of doubt both the appellants are acquitted from the charge of murder by setting aside the conviction and sentence awarded by the learned trial Court. Both the appellants are in jail. They shall be released forthwith if not required in any other case. Death sentence of Muhammad Murad appellant is not confirmed. Murder Reference is answered in the negative.
' Death sentence awarded to Muhammad Mural appellant is not confirmed.