1. ' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No, 169 of 1996 filed by Ali Raza appellant, through Jail, who was convicted under section 302, P.P.C. And sentenced to death on two counts for committing the Qatle-e-Amd of Adalat Khan and Muhammad Sarwar with the further direction to pay compensation of Rs, 15,000 to the legal heirs of both the deceased and in default six months' Si-I. On two counts by learned Sessions Judge, Jhelum vide his judgment dated 12-1-1996. Murder Reference No, 94 of 1996 for confirmation or otherwise of the death sentence of Ali Raza convict shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 8-15 p.m. On 19-4-1994 within the Revenue Estate of Mauza Baghanwala at a distance of 10 miles from Police Station Jalalpur Sharif, District Jhelum while the matter was reported to the police through complaint Exh. P.A by Sajid Ali complainant at 10.00 p.m. On the same day at Chak Mujahid and the formal F.I.R. Exh.PA/1 was recorded by Abdul Razzaq, H.C. P.W.
3. According to the F.I.R. The facts of the case are that on the night of 19-4-1994 at 8-15 p.m. The complainant Sajid Ali alongwith his father Adalat Khan and Muhammad Razzaq were returning to their home from the fields after harvesting wheat crop and when they reached on the Katcha road towards north-east of "Kas Bagh", Ali Raza armed with 7-MM rifle fired shot from behind at Adalat Khan hitting him on the back of his neck toward right who as a result thereof fell down and succumbed to the injury at the spot. The accused was identified by the P.Ws. In moon light, thereafter, Ali Raza started running on the Katcha road towards south. The P.Ws. Raised alarm and started running after him in order to apprehend, when in the mean time Muhammad Sarwar who was earlier sitting at the Dera of Raja Ijaz started running and reached on that road near Shahi Gate in front of house of Raja Ijaz and on seeing the accused duly armed he loudly called Raja Ijaz by saying that Ali Raza was escaping after committing the murder upon which Ali Raza fired a shot at Muhammad Sarwar hitting him on the scapula at the back of his right shoulder and Muhammad Sarwar as a result of the shot fell down and expired.
2. ' Motive behind the occurrence alleged was that Mst.Sakina sister of the complainant was married to Muhammad Latif in District Mandi Bahaud Din but due to strained relations, she after leaving her husband was residing in the house of her parents for the last six months. The accused in order to take her back to her husband house had compelled Adalat Khan, her father, two days prior to the occurrence to send her back. Adalat Khan refused to accede to this request of the accused for which the accused felt offended and for that grudge committed the murder.
3. ' After registration of the formal F.I.R. Zulfiqar Ali, Inspector P.W.12 proceeded to the spot, prepared injury statement Exh.P.M., inquest report Exh.P.Q. Of Muhammad Sarwar and then prepared the injury statement of Adalat Khan Exh.P.R and inquest report Exh.P.S. On 20-4-1994, he took into possession blood-stained earth through cotton from the place near the dead body of Muhammad Sarwar and also one empty P.6 vide memos. Exh.P.G. And Exh.P.H. Respectively. Similarly, he took into possession blood-stained earth through cotton from the place where the dead body of Adalat Khan was lying and the crime empty P.5 vide memos. Exh.P.E. And Exh.P.F. Respectively, he then prepared site plan Exh. P.T. On 23-4-1994, he arrested the accused. Along with 7-MM rifle P.7 which was taken into possession vide memo. Exh.P.M. And after completion of the remaining formal investigation, the accused was challaned to face the trial.
4. ' At the trial, prosecution in order to prove its case produced 12 witnesses in all, including Dr.Muhammad Siddique, who was examined as P.W.8, then the learned D.A tendered in evidence report of the Chemical Examiner Exh.P.U., report of the Serologist Exh.P.V., report of the Forensic Science Laboratory Exh.P.X. And closed the prosecution case, thereafter, statement of the accused was recorded under section 342, Cr.P.C, in which he claimed innocence and submitted that he has been involved at the instance of Raja Mumtaz, who was inimical towards him. After conclusion of the trial, the accused was convicted and sentenced as stated above by learned trial Court.
5. ' Learned counsel for the appellant after having read the entire prosecution evidence and other relevant material available on record submits that the occurrence had taken place in dark hours of the night, the source of light mentioned by the complainant and the eye-witness was moon light when on the day of occurrence it was the seventh of the lunar month and the light of the moon was not sufficient 'to identify the assailant, Razzaq the real brother of Sarwar deceased though was alleged to be present at the time of occurrence but was given up by the prosecution at the time of trial, the motive as alleged by the complainant has not been proved because except the statement of the complainant no other evidence has been produced to show that the appellant used to persuade father of the complainant to send her daughter namely Mst. Sakina to the house of her husband Latif, the injury on the person of Muhammad Sarwar deceased was at the back while according to F.I.R. Sarwar deceased came in front of Ali Raza appellant and if the fire was shot by Ali Raza as alleged by the prosecution it should have hit on the front of the deceased and not on the back, and that the recovery of two crime empties from the spot and the 7-M1VI rifle are of no avail to the prosecution because both were sent together to the fire-arm expert and the possibility of plantation cannot be ruled out. Further submits that the complainant was Moeen of Raja Mumtaz whose sister was married with appellant Ali Raza and the said Ali Raza had deserted his wife who was sister of Raja Mumtaz and due to that grudge Ali Raza has been falsely implicated in this case. Adds that the Investigating Officer in connivance with said Raja Mumtaz had planted the recoveries and falsely implicated the appellant in this case. Concluding his submissions, learned counsel submits that prosecution has failed to prove its case against the appellant.
6. ' On the other hand, learned counsel for the State submits that the appellant is named in the F.I.R.
7. For committing the murder of two innocent persons, it was a case of promptly lodged F.I.R. And being a case of single accused there was no question of substitution. In nutshell she supports the judgment of learned trial Court.
8. ' We have heard learned counsel for the parties at a great length and have also gone through the record very minutely. First of all, we would take up the motive part of the case. According to the complainant his daughter Mst. Sakina was married with Muhammad Latif in District Mandi Bahaud Din, who due to strained relations was living with the complainant, her father for the last about six months. Ali Raza wanted to send Mst.Sakina Bibi to her in-laws but the complainant did not agree and the appellant Ali Raza taking it as a insult committed the murder of his father Adalat Khan and Muhammad Sarwar. To prove this motive except the statement of complainant Sajid Ali no other evidence has been produced. In fact, the complainant Sajid Ali was Moeen of Raja Mumtaz and the sister of Raja Mumtaz having been married with Ali Raza appellant had been deserted by the appellant for which the said Raja Mumtaz had a grudge against the appellant and in order to take the revenge he prevailed upon Sajid and got involved the present appellant in this false case.
9. Furthermore, nothing has been brought on record by the prosecution as to why Ali Raza was forcing Adalat Khan deceased to send his daughter Mst. Sakina to the house of her husband in District Mandi Bahaud Din when admittedly, neither Mst. Sakina nor her husband Latif was related to him in any way. In fact, his relation was with Raja Mumtaz being his brother-in-law. The I.O. P.W.
10. 12 in his cross-examination at page 38 of the paper-book admitted that the complainant and Inayat were also accompanied by Raja Mumtaz of Baghanwala when he reached Chak Mujahid and that Baghanwala is at about 7-k.Ms. From Chak Mujahid. This witness further admitted that all the proceedings on spot inspection were completed while sitting at the Dera of Raja Mumtaz, Raja Ijaz was also associated in the investigation and that Raja Ijaz is brother of Raja Mumtaz.
11. ' In these circumstances, we are of the considered view, that the prosecution has not been able to prove the motive as set forth by it. Ali Raza appellant while replying to question No, 8 in his statement recorded under section 342, Cr.P.0 submitted as under: "The complainant being son of Adalat Khan one of the deceased is highly interested witness. I am innocent. The sister of Raja Mumtaz is my 'wife who, however, having fallen out with me for last 3/4 years is leading deserted life alongwith my children and they are putting up in the house of Raja Mumtaz and I have refused to provide maintenance or to bring them back to my house which has led to estrangement of relations between me, my wife and Raja Mumtaz. As a result of this grudge, Raja Mumtaz prevailed upon complainant who is his Saipi and even otherwise the complainant is his domestic servant, thus, Raja Mumtaz falsely got me involved in this case through complainant being under his thumb and influence."
12. ' Analysing the defence version of the appellant having been corroborated rather admitted by the Investigating Officer P.W. 12, the motive set up by the prosecution is held to be a false pretext in order to entangle the appellant. To reach at this conclusion, we are also fortified from the admission made by the Investigating Officer P.W. 12 that complainant and the deceased Adalat Khan were Moeens of the village and they might be having Saipi work. There are also material contradictions in the statement of complainant Sajid P.W.10 and that of the Investigating Officer P.W.12, inasmuch as, the Investigating Officer admitted that the complainant and Inayat P.Ws. Were accompanied Raja Mumtaz at the time of lodging the F.I.R. While the complainant stated otherwise.
13. ' According to the prosecution case, the occurrence in this case had taken place at 8-15 p.m. On 19-4-1994 when it was seventh of the lunar month. In the month of April, there was dead dark and on moonlight of seventh day of the lunar month was not sufficient to identify the assailant, when admittedly there was no other source of light. The occurrence was allegedly witnessed by the complainant Sajid and Razzaq real brother of the deceased Muhammad Sarwar, Razzaq was given up by the prosecution. The only eye-witness now remains in the field is Sajid. According to him, he alongwith his deceased father when reached Katcha road, Ali Raza issued a fire from the back side, which hit his father on the neck towards right. How, the complainant came to know that it was Ali Raza who fired the shot from the back side. Then allegedly appellant ran towards the road from where Muhammad Sarwar seeing the appellant who was armed 7-MM rifle shouted that Ali Raza was running after murdering Adalat Khan. It is not understandable as to how Sarwar came to know about the murder of Adalat Khan. Secondly, the appellant on the noise of Muhammad Sarwar issued a fire with his 7-MM rifle which too hit Muhammad Sarwar on the back of his right shoulder. If the deceased Sarwar as alleged by the prosecution was running behind the appellant how the fire issued by the appellant hit on the back side of Sarwar deceased.
14. ' So far as recoveries are concerned, two crime empties were taken into possession on 19-4-1994, vide memos. Exh.P.F. And Exh.P.H. While the rifle 7-MM was taken into possession vide memo. Exh.
15. P.M. On 23-4-1994 on the day when the appellant was arrested but both were received in the office of fire-arm expert on 27-4-1994. The possibility of plantation of the 7-MM rifle and the empties having been fired from that cannot be ruled out. Moreover, Muhammad Razzaq, the witness of recoveries, was also given by the prosecution.
16. The motive having not been proved and so ,disbelieved by us, the recoveries having been found to be planted, presence of the eye-witnesses having been disbelieved in view of the fact that Sarwar deceased was running behind the appellant when the appellant fired but the same hit on the back side of Sarwar deceased and had the P.Ws. Been present at the spot then they must have stated what actually happened. They have rated so to bring in line the medical evidence with the ocular account, There thus, remains nothing in favour of the prosecution to prove its case against the convict-appellant. The net result would be that the prosecution has badly failed to prove its case beyond any shadow of doubt against the appellant rather the case is full of material contradictions. In a case of capital punishment, the Court has to see that the evidence must have come from an unimpeachable source and the conclusion the Court could draw should be that it was the accused who was responsible for the commission of offence which is lacking in this case.
17. Resultantly, by extending the benefit of doubt, we accept this appeal, set aside the conviction and sentence recorded against the appellant by the learned trial Court and acquit him from the charge. He shall be released forthwith if not required to be detained in any other case. His death sentence is not confirmed. Murder Reference is replied in negative.