' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Murder Reference No,16 of 1999, Criminal Appeal No,49 of 1999 filed by Muhammad Sabir appellant and Criminal Appeal No,50 of 1999 tiled by Muhammad Luqman appellant. They were convicted and sentenced by Judge, Anti- Terrorism Court, Bahawalpur on 19-101999 for the murder of Abdul Jabbar and their sentences were as under:-
(1) Under section 392/34, P.P.C., to undergo ten years R.I., with a fine of Rs,20,000, or in default thereof to undergo 2-1/2 years S.I. Each.
(2) Under section 302/34, P.P.C., Muhammad Luqman appellant to undergo life imprisonment R.I., and a sum of Rs,50,000 as compensation under section 544-A, Cr.P.C., to the legal heirs of the deceased according to their shares, or in default six months S.I.
(3) Under section 302/34, P.P.C., Muhammad Sabir, appellant to undergo death sentence and a sum of Rs,one lac as compensation under section 544-A. Cr.P.C., to me legal heirs of the deceased according to their shares or in default six months S.I.
(4) Under section 411, P.P.C., Muhammad Luqman, appellant to undergo two years R.I., with a fine of Rs,5,000 or in default six months S.I.
' All the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C., was also granted to the appellants.
2. It may be mentioned here, that one of the co-accused of the appellants namely Tauqeer was acquitted by the learned Trial Court.
3. Brief facts of the case are that on 1-5-1999 at 9-40 p.m. Complainant Abdul Basit lodged F.I.R., stating that at 8-45 p.m. He alongw'th his brother Abdul Jabbar was going back to his house from city on motorcycle No,5078/BRG Honda 125 CC Model 1999 and when they were passing from the Western Road of Jamia Mosque Satellite Town, all of a sudden, three armed young persons came before him and asked to stop the motorcycle. Brother of the complainar. Abdul Jabbar was riding the motorcycle who stopped the same. Two young persons tried to snatch the motorcycle and upon the resistance of his brother, one fat young man fired at his brother which hit at the chest of his brother below nipple. His brother fell down and all the three persons fled away while riding on motorcycle. At the noise of the fire and his alarm. Abdul Majid Iqbal and Muhammad Aslam P.Ws.
Attracted the place of occurrence and also saw the accused while fleeing away from the scene, in the light of bulb of mosque. With the help of the P.Ws., he shifted his injured brother to the Tehsil H.Qs. Hospital, Ahmedpur East in a car who succumbed to his injuries reaching at Hospital. Stating further that he can identify the accused persons on their coming before him.
4. The occurrence in this case took place on 1-5-1999 at 9-40 p.m. In Satellite Town, two furlongs away from a mosque of Ahmadpur East. Written complaint was submitted by Abdul Basit P.W.9 real brother of the deceased in hospital before Abdul Hameed Inspector P.W.12, which is Exh.P.H., on which formal F.I.R., Exh.P.A. Was recorded on the same day in Police Station by Muhammad Ashraf M.H.C.
5. After registration of the case, the matter was investigated by the police and after completion of necessary formalities the challan was sent to the Court for trial. It may be noted here that neither any blood-stained earth was taken into possession from the spot nor any crime empty was recovered. Muhammad Sabir appellant was arrested on 8-6-1999 and the identification parade was held on '13-6-1999, thereafter, Mauzer P.5 was recovered from Muhammad Sabir appellant on 20-6-1999 which was taken into possession vide memo. Exh.P.K. On 18-71999. When Muhammad Luqman and Tauqeer acquitted co-accused of the appellants were coming on a motorcycle they were apprehended and motorcycle P.6 was recovered from them which was taken into possession vide memo. Exh.P.M. Identification parade of Muhammad Luqman appellant was held on 28-7- 1999.
6. Prosecution in order to prove its case produced 13 witnesses in all. Two eyewitnesses namely Abdul Basit real brother of the deceased examined as P.W.9 and Muhammad Aslam examined as P.W.11 were produced by the prosecution while Abdul Majid was given up by the prosecution as unnecessary. Dr. Muhammad Iqbal Kamboh, who conducted post-mortem examination on the dead body of the deceased on 1-5-1999 at 11-30 p.m. Was examined as P.W.B. His statement for the just decision of the case is being reproduced below: ' On 1-5-1999 he was posted C.M.O. T.H.Q., Hospital Ahmed Pur East. On the same day the dead body of Abdul Jabbar deceased was brought before him. For conducting post-mortem examination. The dead body was identified by Fida Hussain and Jahangir. He received the dead body and conducted the post-mortem examination which is as follows: Date and Hour.
' Death on 1-5-1999 at 9-20 p.m.
' Examination of body: 1-5-1999 at 11-30 p.m. External appearance.
' The dead body was lying on the mortuary table. Eyes, mouth closed, wearing light brown colour Shalwar and Qameez and a bunyan, both heavily blood-stained. Rigor motris was starting in the limbs. No postmortem staining seen. Blood was coming from the wounds, on right chest.
Injury No,l.
' Two oval shaped lacerated wounds on right side of the chest at about 12-00 p.m. From the right nipple. Size of each wound was 0.75 c.m. x 0.65 c.m. Blind deep.
2.5 c.m. Apart. Margins were inverted, blackening and tattooing present. Bunyan and Qameez bore the corresponding cuts. These were wounds of entry. Injury No,2.
' A slit like lacerated wound on the left lower part of the back of the chest. Size 1 c.m. x 0.35 c.m. x blind deep. Margins everted. This was wound of exit.
' Cranium and Spinal Cord.
' Scalp, skull and vertebrae, memberances, brain, spinal cord were healthy.
' Thorax.
' Two oval shaped lacerated wounds 2.5 c.m. Apart on right side of the chest at 12 c.m. From right nipple. Size of each wound 0.75 c.m. x 0.65 c.m. Margins inverted, blackening and tattooing .Positive.
These were wounds of entry.
' A slit like lacerated wound on the left part of the back of the chest, zie 1 c.m. x .35 c.m. Margins everted, that was wound of exit.
' Pluarae ' Both pluarae were lacerated at the corresponding sites.
' Larynx and trachea were healthy. Right lung lacerated and contained blood. Left lung lacerated and contained blood, Pericardium and heart were healthy. Both chambers were empty. Blood vessels, pulmonary vessels were injured.
' Abdomen.
' Walls, Peritoneum, Mouth, pharyay and oesophagus, Diaphragm, stomach, and Pancreas, Small intestines, large intestines, Liver, Spleen, Kidneys, Bladder, Organs of generations were healthy.
Stomach contained brownish fluid. Small intestine contained digested semi solid food. Large intestine contained focal matter and gases. Bladder contained a few CC urine.
' Muscles, bones, joints.
' Left and right intercostal muscles at the site of exit of entry wound lacerated.
' Remarks.
' After thorough post-mortem of the dead body he was of the opinion that all the injuries were ante-mortem and homicidal and had been caused with fire-arm shot within a range of few meters. Injury No,1 was the wound of entry and injury No,2 was the wound of exit. The shot caused rupture of lungs and pulmonary vessels and haemopnemothorax. This resulted in circulatary shock and respiratory arrest causing death. This type of injury was sufficient in ordinary course of nature to cause death.
' Probable time between injury and death was 30 to 40 minutes and between death to post- mortem about two hours.
' Post-mortem report Exh.P.E. Is the correct carbon copy of the original record which consists of six pages including the diagram Exh.P.E./1 which shows the seat of injury. Post-mortem report Exh.P.E.
And diagram Exh.P.E./I are in his hand and bear his signature. Injury statement prepared by police also bears his signature. Inquest report prepared by police also bears his signature. Injury statement is Exh.P.F. And inquest report is Exh.P.G.
' Cross-examination on behalf of Muhammad Sabir accused/appellant by Rana Sardar Ahmad, Advocate, ' It is correct that original record is not before him. He handed over the postmortem examination report to Faqeer Hussain constable on 2-5-1999. It is incorrect to suggest that he handed over the post-mortem examination report to Police Constable on 5-5-1999. It is incorrect that he retained the record with him till 5-5-1999 just to prepare the report according to the instructions of the police. Most probable the injures were inflicted by the bullet. He cannot determine the volocity of the bullet from the injuries.
5. 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 it was an unwitnessed occurrence, that Abdul Basit, complaint is real brother of the deceased while Muhammad Aslam is also related to the deceased, that no blood-stained earth was taken from the spot, that there is no mention of electric light in rough site plan Exh.P.N. Being present at the spot, at the time of occurrence. Further adds that it was also strange to note that real brother of the deceased Abdul Basit and one of the close relative Muhammad Aslam came at the spot and none else, that no description of the accused was mentioned in the F.I.R. He further submits that during the course of cross-examination it came on record that the person, who fired at the deceased was having a fatty physique but according to identification slip attached with the judicial file appellant Muhammad Sabir was shown as a person having an active physique (URDU TEXT).
6. On the other hand, learned counsel for the complainant submits both the appellants were identified by Abdul Basit and Muhammad Aslam in an identification parade. He supports the judgment of learned Trial Court.
7. We have heard the learned counsel for the parties and have also gone through the evidence recorded by the learned Trial Court with their assistance. In the instant case, many improvements have been made by the eye-witnesses before the Trial Court. No blood-stained earth was taken from the spot and we are of the view that if this occurrence had taken at the place as had been stated by the eye-witnesses before the police and even before the learned Trial Court then why any crime empty and blood was not taken from the spot or was found there. The most important factor which goes in favour of the appellants, according to the F.I.R., and statement of the complainant recorded before the learned Trial Court is that only one fire was shot by the fatty person but according to the post-mortem report there were two separate injuries on the person of the deceased and we have already mentioned the injuries of the deceased while reproducing the statement of Dr. Muhammad lqbal Kamboh P.W.8, who conducted the post-mortem examination in the preceding paragraph. Even no description of the accused has been given in the F.I.R., i.e., height, colour and age or any other particulars through which they could be identified easily. There is no report of firearm expert, as stated above. There is a conflict between ocular account and medical evidence. Had the eye-witnesses seen the occurrence with their own eyes, they must have stated that appellants have fired two shots at the time of occurrence. Defence has been able to create doubt in the prosecution case. After considering the evidence on record and the arguments made by learned counsel for the parties, we are of the considered view that prosecution has not been able to prove its case against the appellant beyond any shadow of doubt. While extending the benefit of doubt we accept these appeals, conviction and sentence awarded to the appellants by the learned Trial Court is set aside Death sentence awarded to Muhammad Sabir appellant is not confirmed. Murder reference is replied in negative. Appellants are in custody, they shall be released forthwith if not required in any other case.
' Death sentence awarded to Muhammad Sabir appellant is not confirmed.