' KHAWAJA MUHAMMAD SHARIF, 1---This judgment will dispose of Criminal Appeal No,387 of 1997 filed by Abdul Rehman and Muhammad Sohail, appellants, who were convicted and sentenced by the learned Additional Sessions Judge, Multan vide his judgment dated 8-12-1997 as under:--
(1) Abdul Rehman, appellant, death with the further direction to pay Rs,30,000 as compensation, in default two years' R.1 under section 302 (B), P.P.C.
(2) Muhammad Sohail, appellant, Imprisonment for life and to pay Rs,20,000 as compensation, in default one year's R.I. With the benefit of section 382-B, Cr.P.C. Under section 302(B), P.P.C.
' Murder Reference No,23 of 1998 for confirmation of the death sentence or otherwise of Abdul Rehman. Appellant shall also be replied through this single judgment.
2. Occurrence in this case has taken place at a distance of two furlongs from Police Station, Dehli Gate, Multan in Mohallah Mahrajah at 8-00 p.m. On 23-8-1995 while the matter was reported to the police by Ghulam Murtaza through complaint Exh.P.0 at 3-15 p.m. At Nishter Hospital, Multan on 26- 8-1995 and the formal F I . R . Exh. P . C/1 was recorded by Rafique Ahmad Headconstable.
3. Briefly stated the facts of the case are that Ghulam Murtaza, complainant (deceased) while admitted in Nishter Hospital, Multan at 3-15 p.m on 26-8-1995 made a statement Exh. P.0 before Muhammad Saeed Anjum, S.I./S.H.O. Stating therein that on 23-8-1995 he went to Mohallah Mahrajah in order to see his friend Sarfraz at about 8-00 p.m. After being free from there he was going back through Gali Hamam Wali, when Abdul Rehman came from the front side on his motor- cycle. The motor-cycle was at high speed and the same struck with the complainant and the motor-cycle stopped. Upon this, grappling took place between the complainant and Abdul Rehman. The later went away on his motor-cycle by exhorting threats that the complainant would be taken to task just now. The complainant when reached at Mohammadi Chowk at 8-15 p.m and there was street-light when two persons came on the motor-cycle which was not earlier with Abdul Rehman. Now the motor-cycle was being driven by Sohail while Abdul Rehman was sitting behind Sohail duly armed with a Carbine. Sooner, the motor-cycle stopped, Sohail raised lalkara, upon which Abdul Rehamn fired at the complainant with his Carbine, the pellets of which hit on his right leg, then Abdul Rehman asked Sohail to catch hold of the complainant, upon which Sohail held the complainant in his arms. After that, Abdul Rehman fired which hit on the back side of left leg of the deceased. Then Abdul Rehman simultaneously fired two shots which hit on the right and left legs of the complainant, later deceased. The motive alleged was that Abdul Rehman was forbade for not driving the motor-cycle rashly in narrow streets which he felt as his insult and to take the revenge of that insult fired at the complainant.
4. After registration of the formal F.I.R. Muhammad Tariq S.I P.W. 8, prepared the injury statement of Ghulam Murtaza Ex. P.F, inquest report Ex.P.E, arrested Sohail and Abdul Rehman on 5-10-1995, on 8- 10-1995 Sohail got recovered motor-cycle P.1 which was taken into possession vide memo Ex. P.A, on the same day, Abdul Rehman led to the recovery of Carbine P.2 which was taken into possession vide memo Ex.P.B, recorded the statements of witnesses and after completion of the investigation, challaned the accused to face the trial.
5. At the trial, prosecution in order to prove its case produced 11 witnesses all, then the learned ADA tendered in evidence report of the Chemical Examiner Exh. P.0, report of the Serologist Exh. P.P and closed the prosecution case, thereafter, statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence and claimed false implication due to enmity. Abdul Rehman, accused also tendered in evidence documents Exh. D.A to Exh. D.Q to support his false implication due to previous enmity. After conclusion of the trial, the accused/appellants were convicted and sentenced as stated above.
6. Learned counsel for the appellants after having gone through the entire prosecution evidence and other relevant material available on record submits that appellants have been falsely involved in this case due to enmity, there is delay of three days in lodging the F.I.R., Nawab Din and Muhammad Akram P.W. 6 & P.W.7 are close relations of the deceased, but did not approach the police to get a case registered, the deceased was a person of bad character having been involved in many criminal cases such like narcotics, murder assault and Arms Ordinance, recovery at the instance of Abdul Rehmann appellant is of no avail to the prosecution as no crime empty was taken into possession from the spot and that the doctor who had given a certificate about fitness of the deceased to make a statement was not Produced at trial by the prosecution. Further submits that position of the deceased at the time of medical examination according to M.L.R. Was as under:- "Patient was in shock, unconscious, B.P. Not recordable, Feeble pulse, severe bleeding from both legs."
' Adds that Sohail was empty-handed, the role attributed to him was that of raising talkara, no recovery was effected from him and he did not even touch the deceased. Lastly, submits that the prosecution has miserably 'failed to prove its case against the appellants.
' On the other hand, learned counsel for the State supports the judgment of learned trial Court by submitting that it was a broad daylight occurrence so there was no question of mistaken identity, ocular account is fully corroborated by medical evidence, recoveries were effected from the appellants and that the prosecution has been successful in proving its case against the appellants.
' We have heard learned counsel for the parties at a great length and have also gone through the record with their assistance. In our view, the deceased was not in a position to make a statement and further more that the doctor, who had given the certificate about the fitness of the injured was not produced by the prosecution so it cannot be also said to be a dying declaration. According to F.I.R., there were two eye-witnesses namely Nawab Din and Muhammad Akram, P.W. 6 & P.W.7 respectively who were closely related to the deceased, in asmuch as, Nawab Din P.W.6 and another Muhammad Akram P.W.5 were cousins of the deceased but none of them bothered to report the matter to police till 26-8-1995 while the occurrence had taken place on 23-8-1995. Even the doctor examined as P.W. 12, who A medically examined Ghulam Murtaza did not inform the police when the injured was taken to the hospital. This fact proves that the two alleged eye-witnesses were not present at the spot at the time of occurrence. The delay of three days in lodging the F.I.R., also lends support to bring us to the conclusion about non-presence of the eye-witnesses. The alleged recovery of Carbine through Exh. P. B is of no avail to the prosecution because no crime empty was recovered from the spot. The deceased was also a person of bad character having been involved in 15 criminal cases in as much as, keeping liquor, under section 337-F, P.P.C., under Article 11 of Ordinance V, 1979, under sections 307/324/ 34, P.P.C., under section 13 of Arms Ordinance, XX of 1965, under sections 14 of the same Ordinance, under section 18 of Ordinance, VII, 1979, under section 382/411, P.P.C., under sections 3/4 of Ordinance V, 1979 for keeping heroin, and also a case again under section 382/411, P.P.C. These cases have been brought on judicial file and are on pages 87 to 144 of the paper book in form of Exh. D.A to Exh. D.Q. Due to involvement of the deceased in so many criminal cases, the possibility of the I B deceased having been murdered by any of his other enemy cannot be ruled out. Even no person from the locality was cited and produced as P.W.
' It is a settled law, that in a case of capital punishment, the evidence must have come through an unimpeachable source and should be of a high quality. In the instant case, the prosecution story is full of doubts as even the defence has been able to create dents and dents in the story put forward by the complainant. So far as, Sohail, appellant is concerned, he was neither armed with any weapon of offence nor any recovery was effected from him and he even did not touch the deceased.
' For all 'that has been stated above, we arc of the considered opinion, that the prosecution has miserably failed to prove the guilt against the appellants. Resultantly, we accept this appeal, set aside the conviction and sentence recorded against the appellants by giving them the benefit of doubt. They shall be released forthwith if not required to he detained in any other case. The death sentence of Abdul Rehman appellant is not confirmed. Murder reference is replied in the negative.
' Death sentence of Abdul Rehnian appellant is not confirmed.