'The appellant namely Zulfiqar Ali alias Bhutto was tried for the charge under section 302, P.P.C. By the learned Sessions Judge, Attock in a case F.I.R. No,183, dated 5-8-1993 registered at Police Station Hassan Abdal and upon conviction through judgment, dated 30-8-1994 sentenced him to imprisonment for life with a direction to pay Rs,25,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased. The appellant was, however, allowed benefit of section 382-B, Cr.P.C.
2. The prosecution case precisely as contained in the statement Exh.P.A. Made by Sardar Bahadar father of Mazhar Ali deceased before Rustam Ali, S.-1. P.W.15 at Police Station Hasan Abdal at 9-15 p.m. On 5-8-1993 on the basis of which case was registered through formal F.I.R. Exh.P.A. Was as under:-- "That Zulfiqar son of Sher Bahadar accused had taken an amount of Rs, 1,700 from Mazhar Ali as loan which was not being returned by the deceased and on the fateful day when he demanded the return of said amount, the accused on the pretext of return of amount in question to the deceased took him towards Sultanpur. The first informant alongwith Ilyas son of Muhammad Jhangir and Ghulam Mustafa his co-villager also followed them and about 7-30 p.m. When the deceased in company of accused reached near Basti Terbaila within their sight Zulfiqar accused while picking out 30 bore Pistol from his Dub and raising a Lalkara that he would teach lesson to the deceased for demanding return of money fired successive shots at the deceased as a result of which the deceased sustained the injuries on right and left shoulder on back side and left flank. On the hue and cry of the complainant and his companion, the accused fled away from the place of occurrence and they took the deceased in injured condition to the Civil Hospital, Hassan Abdal from where he was shitted to D.H.Q. Hospital, Attock."
3. Rust= Khan, S.-I. P.W.15 on receipt of information of the occurrence reached at Civil Hospital, Hassan Abdal and recorded the statement Exh.P.A. Made by Sardar Bahadar on the basis of which the case was registered. The Sub-Inspector also recorded the statements of eyewitnesses. The deceased was removed in an injured condition to D.H.Q. Hospital before his arrival in Civil Hospital, Hassan Abdal, fromwhere the deceased was taken to Civil Hospital, Rawalpindi but he having succumbed to the injuries, was brought back to Civil Hospital, Hassan Abdal and the S.-I.
Despatched the dead body to D.H.Q. Hospital, Attock for postmortem examination. He inspected the site on 6-1-1993 and took into possession blood-stained earth and an empty cartridge Exh.P.4 through separate sealed parcel. In addition to taking into possession a pair of Chappal Exh.P.5/1-2 through memo. Exh.P.E. The S.-L also prepared the site plan Exh.P.J. Of the place of occurrence and took into possession blood-stained clothes of the deceased shirt P.1, Salooka P.2 and Shalwar P.3 with a sealed phial containing lead through memo. Exh.P.C. Subsequently, he got prepared site plan Exh.P.D. And Exh.P.D./1 from Patwari Halqa and arrested the accused on 11-8-1993. He effected recovery of pistol Exh.P.6 from Baithak of the accused in Village Gawara at the instance of accused and took the same into possession through a sealed parcel vide memo. Exh.P..F. On the failure of the accused to produce licence of pistol a separate case under section 13 of the Arms Ordinance
(XX) of 1965 was registered against him and challaned the accused to face the trial.
4. The deceased was medically examined in an injured condition by Dr. Shujaat Ali P.W.3 who traced the following injuries on his person:-- "(1) A penetrating wound with blackening in 10th intercostal space in the midst clavicular line 1 c.m. x 1 c.m. x deep into body cavity. There was corresponding hole on the shirt on the left side of the chest.
(2) A penetrating wound with blackening 1 c.m. x 1 c.m, x 4 c.m. (approximately) on the right arm at the junction of upper 1/3rd and lower 2/3rd below the.Exillary fold.
(3) A penetrating wound with corresponding hole on the shirt 1 c.m x 1 c.m. Deep into body cavity on the right side of vertebral column in the middle of back of the chest."
' However, the post-mortem on the dead body was conducted by Doctor Waseem Ahmad, Medical Officer, DHQ Hospital, Attock P.W.12 and found the following injuries on the dead body:--
(1) An entry wound 1 c.m. x 1 c.m., circular in shape on left side of front of chest at level of 10th intercostal space at mid clavicular line.
(2) An exit wound 1-1/2 c.m. x 1-1/2 c.m. Circular shape on right side of the back of chest at the level of 5th intercostal space, 2 c.m. Away from middle of midline of vertebral column.
(3) Any entry wound 1 c.m. x 1 c.m. Circular in shape on right upper arm anteromedially 4 c.m. Below axillary fold.
' The eye-witness account was furnished by Sardar Bahadar P.W.13 father of the deceased and Muhammad Ilyas P.W.14 who was related to the deceased from maternal side. Muhammad Rafique P.W.11 has witnessed the recovery of pistol Exh.P.6, whereas Abdur Razzaq PW.10 was the witness of recovery of empty of .30 bore pistol (Exh.P.4), from the place of occurrence. The evidence of remaining witnesses being of not much significance need not to be discussed in detail. The eye- witnesses while repeating the story of the F.I.R. Have stated that they followed accused and the deceased towards Sultanpur and when they were on a path leading to Haro river near Hazro, the deceased was fired at thrice by the accused within their sight at a distance of about 20/30 paces from them.
5. Learned counsel for the appellant contended that the doctor who initially examined the deceased in an injured condition located three injuries of the nature of penetrating wounds with blackening and correspondence holes on the shirt whereas according to the doctor who conducted postmortem examination, there were two entry wounds and one exit wound which apparently being in conflict to the ocular account would show that it was an unwitnessed occurrence. He next argued that it is not acceptable to mind that Sardar Bahadar, real father of the deceased and Muhammad Ilyas, a close relative of deceased from maternal side would allow the accused to take the deceased with him to a lonely place and fired at him near river Hazro. Learned counsel argued that it is in the evidence of the P.Ws. As well as the Investigating Officer that the deceased was removed to a nearby Basti on a cot from the place of occurrence and later he was taken to Civil Hospital, Hassan Abdal. He concluded that factually the P.Ws. On receipt of information of said incident reached after the occurrence took the deceased in injured condition to the hospital from the Abadi near the place of occurrence and did not witness the actual occurrence. He argued that with exclusion of the evidence of the eye-witness there was no other evidence to connect the appellant with the commission of offence.
6. Learned counsel representing the complainant as well as the State conversely argued that the eye-witnesses having given sufficient explanation of their presence near the place of occurrence were natural witnesses of the occurrence. They added that the eye-witnesses although were related to the deceased but had no entnity with the accused and, therefore, their testimony being confidence inspiring alone was sufficient to sustain the conviction.
7. The fate of the prosecution case being depending on the ocular account of the eye-witnesses, the contradiction and conflict of the medical evidence with ocular account and such other contradiction and discrepancies in the prosecution case as pointed out by the learned counsel for the appellant would not material. The deceased and the witnesses belong to Village Gawaray whereas the occurrence in the present case took place near river Hazro at a distance of more than one mile from their village. Sardar Bahadar P.W.13 father of the deceased has stated that he having felt some mischief on the part of the accused without restraining deceased to go with the accused followed them in company of Muhammad Ilyas. He stated that the deceased was removed in an injured condition from the place of occurrence on a cot to the metalled road at a distance of 150/200 yards and was taken to Hassan Abdal. He denied that Habib-ur-Rehman, Haq Nawaz, Akhtar and Bashir on report of fire-arm reached at the place of occurrence from nearby Abadi and took the deceased to Hujra of Suleman in Maskeenabad on a cot and that later on information given by Ali Khan of Maskeenabad about the occurrence he alongwith his relative reached at the Hujra of Muhammad Suleman, Muhammad Ilyas P. W.14 has deposed that they probably reached at the hospital at about 8/9 p.m. And neither the report was lodged to the police station nor the Doctor has sent any information to the concerned police. He also stated that he alongwith father of the deceased did not restrain the deceased from going with the accused. Rustam Khan P.W.15 who has investigated the case stated that there were 10/15 houses near the place of occurrence and when he reached near the gate of hospital the deceased was already sent to D.H.Q., Hospital, Attock. He stated that Habib-ur-Rehman and Haq Nawaz of Mohalla Latifabad had joined the investigation and according to his investigation the injured was shifted to Hujra of one Suleman of Latifabad by Haq Nawaz, Akhtar, Bashir and Habib-ur-Rehman. He, however, had no knowledge that when Ali Bahadar and Muhammad Ilyas reached at the place of occurrence. The perusal of the statement of the two witnesses and the Investigating Officer would show that the deceased in injured condition was taken to Hujra of Suleman from where he was shifted to Civil Hospital, Hassan Abdal. The claim of the witnesses that they while following the accused and the deceased had witnessed the occurrence is negated by the statement of the Investigating Officer who during the course of investigation found that the deceased was removed in injured condition by the above- named persons to the Hujra of Suleman. This fact is further supported by the statement of Muhammad Bashir son of Muhammad Yaqoob D.W.1 who stated that he alongwith Haq. Nawaz, Akhtar Nawaz and Habibur-Rehman on hearing the first shots from the side of Hazro river reached there and while arranging a cot from the house of Kala Khan removed the injured to the Hujra of Suleman. He stated that a large number of persons from the village Hanifabad and Maskeenabad gathered at the spot and identified Mazhar Ali. He further stated that Ali Bahadar was sent to inform the parents of Mazhar Ali injured and after about half an hour of the occurrence Sardar Bahadar P.W.13 alongwith Mustafa (given up P.W.) and Ilyas P.W.14 reached there. The presence of Muhammad Bashir at the Hujra of Suleman is confirmed by the eye-witnesses namely Sardar Bahadar, Muhammad Ilyas as well as the Investigating Officer of the present case, therefore, the version of the eye-witnesses that the accused fired at the deceased in their presence near Hazro is negated by the version given by the said Muhammad Bashir who admittedly alongwith others was present at the spot and the story given by Muhammad Bashir would be more near to truth. The circumstances of the case suggest that the deceased was injured near River Hazro at Maghrab Wela and on hearing the fire shot the above-named residents of the locality reached at the spot and took the deceased to the Hujra of Suleman and sent information to the father of the deceased who alongwith his companions while reaching there took the dead body to the hospital. It was an unnatural conduct of real father and maternal uncle of the deceased not to interfere in the matter and allowed the accused to take deceased with him despite apprehension of some foul play on the part of the accused and this was also strange that they while watching the accused and deceased from a distance of 20/30 paces did not make even an attempt to apprehend the accused. From the circumstances under which the occurrence took place, it can be visualized that the occurrence having taken place, in a very poor visibility of evening dark was not witnessed by any person and the claim of the witnesses of their presence at the time of occurrence is not supported by the attending circumstances. Therefore, with the exclusion of eye-witness account from consideration it would be a case of no evidence.
8. For the foregoing reasons, the prosecution has failed to prove the charge against the appellant beyond reasonable doubt, I, therefore, allow this appeal and set aside the conviction and sentence awarded to the appellant by the trial Court. The appellant is directed to be released from jail forthwith if not required in any other case.