1. ' KHAWAJA MUHAMMAD SHARIF, J.----This judgment will dispose of Criminal Appeal No,32 of 1996 filed by Mumtaz Khan, appellant, who was convicted and sentenced by learned Additional Sessions Judge, Rawalpindi vide judgment, dated 11-2-1996 to death under section 302, P.P.C. With the further direction to pay Rs,50,000 as compensation to the legal heirs of the deceased, in default six months' R.I. And imprisonment for life under section 460, P.P.C. And a fine of Rs,25,000, in default two years' R.I. Murder Reference No,185 of 1996 filed by the State for confirmation of death sentence of the convict or otherwise shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 3-00 p.m. Within the jurisdiction of P.S R.A., Bazar, Rawalpindi at a distance of three k.Ms. On 25-12-1991 while the matter was reported to the police on the same day at 4-15 p.m. Through complaint Exh.P.A./1 by Mst. Shabana Shafqat and the formal F.I.R. Exh.P.A was recorded by Nazir Ahmad, S.-I. At 4-45 p.m. On the same day.
3. Briefly stated the facts of the case are that on the night of 25-12-1991 the complainant Mst.
2. Shabana Shafqat and her husband Shafqat were sleeping in their house when at 3-00 a.m. (night) her husband raised alarm of "Chor Chor" in the courtyard, thereupon, the complainant went in the courtyard and saw two persons present there. One of them had a knife in his hands, whereas, the second was armed with a pistol. Both of them were committing the theft of clothes etc. By putting those in a bag. The person armed with a pistol had caught hold of her husband and the other started inflicting knife blows to him. The complainant also raised alarm of "Chor Chor" whereupon, Muhammad Afzal and Fazal Karim also came there. Thereafter, the person armed with a knife fled away after throwing the bag while the second fired at Shafaqat, husband of the complainant.
3. During the occurrence both the assailants were calling each other's name as Mumtaz and Jilal Din.
4. The injured was removed to the hospital where he died.
5. ' After registration of the formal F.I.R. Fida Hussain, S.-I. Proceeded to the place of occurrence, prepared' injury statement Exh.P.C. And sent the dead body for post-mortem examination, thereafter, the investigation was taken over by Ijaz Hussain, S.-1. P.W.14. On 8-1-1992, the accused Mumtaz in custody got recovered .32 bore pistol P.24 which was taken into possession vide memo.
6. Exh.P.G. And on 9-1-1992 on the disclosure of the accused recovered stolen. Articles P.1 to P.15 which were taken into possession vide memo. Exh.P.E. Partially, investigation was also carried out by Muhammad Ramzan, S.-[. P.W.9 and after completion of the investigation Mumtaz and Shaukat accused were challaned to face the trial.
7. ' At the trial, prosecution in order to prove its case produced 24 witnesses in all, then the learned D.D.A. Tendered in evidence report of the Chemical Examiner Exh.P.K, report of the Serologist Exh.P.L, report of the Forensic Science Laboratory Exh.PM., and closed the prosecution case, thereafter, statements of the accused were recorded under section 342, Cr.P.C., in which they pleaded innocence. After conclusion of the trial, the accused Shaukat was acquitted while the present appellant was convicted and sentenced by learned trial Court as stated above.
8. ' Learned counsel for the appellant after having gone through the entire prosecution evidence, statement of the accused and other relevant material available on record submits that in the F.I.R.
9. Along with appellant another person by the name of Salah-ud-Din was mentioned in the supplementary statement made on the same day by the complainant Shabana Shafqat she introduced another accused by the name of Zubair but the challan was submitted against Shaukat (since acquitted) and the present appellant. Further submits that after four years and four months another story was introduced by the prosecution that Mumtaz was apprehended at the spot along with pistol and blood-stained clothes but according to the Investigating Officer the appellant was arrested on 29-12-1991 and he got recovered pistol from his house on 8-1-1992. According to learned counsel these two different stances of the prosecution are contradictory to each other.
10. Further submits that the first informant has admitted in her cross-examination that when the accused were causing injuries to the deceased, her husband, nobody had seen them except her.
11. Adds that both the parties were not known to each other and no identification parade was held.
12. Further adds that the F.I.R. Was not recorded in the Police Station but in the hospital. Submits that the occurrence took place on 25-12-1991, accused was arrested according to Investigating Officer on 29-12-1991, pistol was recovered on his pointation on 8-1-1992 but both were sent to the office of fire-arm expert together losing its evidentiary value. Further submits that the accused who had caused five incised wounds on the body of the deceased which became the cause of death, either were not arrested or acquitted by the learned trial Court and that the only injury attributed to the appellant was a lacerated wound of entry 0.5 x 0.5 c.m. With blackening around on actor lateral aspect of upper part of left thigh. Concluding his submissions, learned counsel submits that the prosecution has failed to prove its against the appellant beyond any shadow of doubt.
13. ' On the other hand, learned counsel for the State submits that the eye-witnesses are the natural witnesses and there is no contradiction between their statements as to the place, date and time of occurrence and that the prosecution has been able to prove its case against the appellant.
14. ' We have heard learned counsel for the parties at a great length and have also gone through the record with their assistance. Occurrence in this case had taken place on 25-12-1991 when the winter season was in full swing. The parties were not known to each other. No source of light was given in the F.I.R. And no identification parade was also held. There is no mention of the fact that the appellant was arrested at the spot but after four years and four months of the occurrence, the complainant introduced another story stating that the appellant was arrested at the spot, although it was not her case before the police and even the Investigating Officer has not stated this fact and he has stated otherwise and submitted before the trial Court that the appellant was arrested on 29-12-1991 and the pistol was recovered on 8-1-1992. These two contradictory stands taken by the prosecution demolishes its case. Had the appellant been arrested on the day of occurrence then the recovery must have been effected from him on the same very day. Moreover, according to F.I.R., it was Jilal-ud-Din who caused five injuries with knife but he was never arrested or challaned. On the same day, the complainant introduced another story stating that one Zubair was accompanying the appellant. The said Zubair was never arrested or challaned. The challan against the appellant was submitted along with one Shaukat, who had been acquitted 'by the learned trial Court. In these circumstances, there is no earthly reasons to believe the version of the prosecution as to arrest of the appellant, one given by the complainant and the other having come from the mouth of the Investigating Officer. The injury attributed to the appellant according to the F.I.R. Is on the left flank of the deceased but there is no such injury on his person but in fact the injury was on the upper part of left thigh of the deceased.
15. The occurrence having taken place in dead dark hours of the night and that too in the month of winter, no source of light was mentioned in the F.I.R. But at the time of preparation of site plan Exh.P.W.11/A an electric bulb was shown at point I4o.5 which is padding and improvement.
16. Muhammad Afzal P.W.7 and Fazal Karim P.W.4, who were not resident of the place of occurrence had introduced a different story. Their presence at the time of occurrence was negated by Mst.
17. Shabana Shafqat P.W.3 when she admitted in her cross-examination as under: "At the time when fire-arm injury was inflicted I was alone in the house."
18. Moreover, Muhammad Afzal and Fazal Karim are real brothers inter se. They have stated that they caught hold of the accused, snatched 12 bore pistol from him and tied him with rope with the help of neighbourer. This version too is negated by the statement of Investigating Officer that the accused was arrested who got recovered the pistol on '8-1-1992. Had the appellant been arrested on the same day as alleged by two P. Ws. And fire-arm was snatched then there was no question of effecting recovery from the appellant on 8-1-1992.
19. From the analysis of the prosecution evidence having come from the mouth of the complainant, the eye-witnesses and the Investigating Officer we are fully satisfied that the prosecution case is full of doubts and the defence has been able to create dents in the prosecution case. In a case of capital punishment, the evidence must have come from an unimpeachable source which is missing in the instant case. In this view of the matter, we accept this appeal, conviction and sentence recorded against the appellant by the learned trial Court is set aside. He is in jail, and 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 the negative.