' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,369 of 1999 filed by Muhammad Ghias alias Ghiasa, appellant, who was convicted under section 302, (b), P.P.C.
And sentenced to death with the further direction to pay compensation of Rs,one lac and in default thereof, six months' R,I. By the learned Judge (STA), Multan Division, Multan vide his judgment, dated 14-10-1999.
2. Occurrence in this case had taken place at 8-30 p.m. On 20-7-1996 at a distance of 15 K.Ms. From Police Station Burjwala, District Sahiwal while the matter was reported to the police at 12-30 p.m. On 21-7,1996 through complaint Exh.P.A. By Waheed Ullah Zafar and the formal F.I.R. Exh.P.A./1. Was recorded by Shafat Ali, MHC.
3. Brief facts of the ease are that on 20-7-1996, at about 8-30 a.m. The complainant alongwith Muhammad Zafar, Muhammad Asad and Muhammad Nawaz Dastgir went to their land in Square No,34 in order to have a round of garden situated in Killa No,17 of the said square. Zafar and Asad sat on a Dhari in the corner of a garden whereas, the complainant and Muhammad Nawaz deceased went to the graves of their parents in order to pray "Fateha" and when they reached near the grave soddenly Muhammad Aslam armed with Rine 7-MM, Muhammad Amin armed with Rifle 7-MM, Kali Matchi armed with Carbine and one person by the name of Niazi armed with Mauser came out from the Jawar crop. Muhammad Aslam raised Lalkara that the complainant and his brother should not go alive and Muhammad Nawaz be taught a lesson for restraining people from purchasing their land and in the meanwhile, Muhammad Aslam fired at Muhammad Nawaz which hit him on his left side. Muhammad Ghias fired with his rifle which hit him on his right thigh. The deceased fell down and the complainant took the shelter behind the mango tree and in the meanwhile, all the five accused started firing with their respective weapons and thereafter, decamped from the place of occurrence.
' The motive behind the occurrence was that all the accused had suspicion that the deceased used to refrain people from purchasing the land of the accused.
4. After registration of the formal F.I.R., Abdul Rauf, Inspector P.W.10, proceeded to the place of occurrence, took into possession blood-stained earth vide memo. Exh.P.B., 14 empty cartridges were also taken into possession vide memo. Exh.P.E, prepared site plan Exh.P.K, recorded supplementary statement of the complainant, Mian Khan, S.-I., recorded the statement of injured in the hospital at Lahore, on 5-8-1996, the injured expired, offence was amended, inquest report of the Exh.P.L. Of the deceased was prepared, on 28-8-1996, Ghias, and Riaz were arrested apart from Kali, Kali got recovered .12 bore Carbine, which was taken into possession vide memo. Exh.P.C., Rifle 8- MM P.1 was taken into possession vide memo. Exh.P.B. Got recovered by Ghias, . On 4-9-1996, Amin accused was arrested and after completion of the investigation, all the accused were challaned to face the trial.
' Prosecution in order to prove its case, produced 11 witnesses in all, then the learned D.D.A., tendered in evidence reports of the Chemical Examiner Exh.P.P. And Exh. P.0, report of the Forensic Science Laboratory Exh.P.Q. And photo copies of the reports of Serologist Mark-A and Mark-B and closed the prosecution, thereafter, statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence and false implication. After conclusion of the trial, the appellants were convicted and sentenced as stated above.
' Learned counsel for the appellant in support of this appeal submits that the is an unexplained delay of more than one day in lodging the F.I.R., the complainant was an Advocate, beside the two eye-witnesses produced by the prosecution including the complainant none of the other eye- witness went to lodge the F.I.R., though the Police Station was at a distance of 15 K.Ms. From the place of occurrence, both the eyewitnesses namely Waheed Zafar and Muhammad Zafar are brother and first cousin of the deceased Saeed son of Yaqoob, witness of the recovery from the appellants was also first cousin of the deceased, on the same evidence Amin and Nazir have been acquitted while Aslam and Niazi are still absconder, no specific motive was attributed to the appellant, the motive if any, according to the F.I.R., was attributed to Aslam etc., the injury attributed to the appellant was on the right, thigh of the deceased while injury attributed to Muhammad Aslam P.O., real brother of the present appellant was on the left thigh of the deceased and that the recovery witnesses are closely related to the deceased and there is violation of section 103, Cr. P . C ' On the other hand, learned counsel for the State supports the judgment of learned trial Court by submitting that the appellant is named in the F.I.R. With specific role of having fired at the deceased, it was a broad daylight occurrence, so there was no question of mistaken identity, ocular account is corroborated by medical evidence. He lastly, submits that prosecution has been able to prove the motive against the appellant beyond any shadow of doubt.
' We have heard learned counsel for the parties at a great length and have also gone through the record very minutely. In the instant case, Waheed Ullah Zafar complainant was an Advocate and Vice-President of District Bar Association, Sahiwal at the time of occurrence, occurrence in this case had taken place at 8-30 a.m. On 20-7-1996 and the matter was reported to the police at 12- 30 p.m. On 21-7-1997. The complainant was not the only eye-witness mentioned in the F.I.R. But there are 3/4 other eye-witnesses and nobody went to Police Station which is directly connected with a Pacca Road to lodge the F.I.R. All the witnesses are closely related to the deceased, some of them could have gone to lodge the F.I.R. According to M.L.R. Of Muhammad Nawaz deceased, who was brother of the complainant, the person who brought the injured into hospital was one Asad, who was given up by the prosecution. Neither the name of the complainant nor any other eyewitness was mentioned in the M.L.R. Of the deceased. The delay in lodging the F.I.R. And non- mentioning the name of either the complainant or any other eyewitness in the M.L.R. Having brought the injured to the hospital leads us to the conclusion that the eye-witnesses were not present at the spot at the time of occurrence. So, we disbelieve the presence of the eye-witnesses at the spot.
According to prosecution, an empty was recovered from the spot on 21-7-1996, the appellant was arrested on 28-8-1996, the empty was received in the office of fire-arm expert on 29-8-1996, it proves that after the arrest of the appellant the fire-arm was planted and then by firing a shot from that fire-arm both empty and the fire-arm were sent to the fire-arm expert. We, therefore, do not believe the recovery of weapon of offence and the empty recovered from the spot and hold it to be planted one. It is noteworthy that according to prosecution 36 crime empties were recovered from the spot but there are only two injuries on the person of the deceased which speaks volume on the validity of the prosecution story because it was not the case of the prosecution that all the accused who were at least five in number resorted to indiscriminate firing.
The motive as alleged by the prosecution seems to be a far-fetched idea in order to strengthen the prosecution case because none of the persons who were stopped by the accused to purchase the land of the complainant were produced either before the police during investigation or before the learned trial Court at the time of trial. The motive is therefore, shrouded in mystery.
' Taking into consideration, the motive being remained shrouded in mystery, the fact of disbelieving the presence of the eye-witnesses and the recovery on the pointation of the appellant, to be planted one, we have no doubt in our mind, to hold that the case of the prosecution suffers from material defect and the defence has been able to create dents in the prosecution version. The settled law is that when the doubts are there, the benefit of same has to be extended to the accused not as a matter of grace but as a matter of right. Resultantly, we accept this appeal, set aside the conviction and sentence recorded against the appellant and acquit him from the charge. The appellant is in jail and he shall be released forthwith if not required to be detained in any other case. Death sentence is not confirmed ' Before parting with this judgment, we are at pain to observe that during our tour of two weeks at this Bench, we have disposed of 52 murder references and about 10 appeals involving death sentence arising out of Suppression of Terrost Activities Act, 1975 but what we have gathered is that in most of the cases investigations have been conducted in a very poor/faulty manner, specially with regard to recovery of fire-arm/weapon of offence and the recovery of crime empties from the spot and the delay in sending the same to the Office of Frensic Science Laboratory. Normally, the crime empties allegedly are recovered from the spot on the day of occurrence, they are kept in the Police Station for sufficient long period until the accused is arrested, and only then the empties are sent to the fire-arm expert with a delay of months which in our view loses its significance. The other important factor is that a lot of help can be sought while deciding criminal cases from the case diaries and the case property but we have noticed that neither the case diaries nor the case properties are sent to the office of this Court. On our direction to the Additional Registrar of this Court case properties in some cases were produced but the case diaries were not produced. The necessity of case diaries is that in order to reach at a just conclusion the Court has to see the version/stand of the complainant and the witnesses on the very first day. We, therefore, direct the Additional Registrar of this Court to send the copy of this judgment to D.I.-G., Multan, who will issue necessary direction to Superintendents of the Police in District under him, so that these lapses on the part of the prosecution may not occur in future and the justice is departed to the parties on the basis of true facts and in accordance with law.