' This judgment will dispose of Criminal Appeal No,483 of 1997 filed by Shabbir Ahmad appellant, who was convicted and sentenced by learned Sessions Judge, Okara on 6-7-1997 for the murder of Saleem under section 302(b), P.P.C. To undergo life imprisonment with a fine of Rs,20,000 or in default one year's S.I. The fine if recovered was ordered to be paid to the legal heirs of the deceased. Benefit of section 382-B, Cr,P.C. Was also granted to the appellant.
2. It may be noted here, that Criminal Revision No,296 of 1997 was also filed by the complainant Nazir Ahmad for the enhacement of sentence.
3. Briefly stated the facts of the prosecution case as narrated in the F.I.R. Exh.P.F. Got recorded by Nazeer Ahmad P.W. On 15-11-1995 to Ahmad Nawaz Investigating Officer are that he, is resident of Chak No,12/1.A.L. They are three brothers. Saleem deceased was youngest of all and student of Matric. On 14-11-1995 at 10-00 p.m. The Complainant his brother Saleem, Abdur Rehman P.W.7, Shaukat. Ali and Jafar Ali given up P.Ws. Were sitting in his house. Shabeer accused/appellant came there and asked Saleem deceased to accompany him. He took him with him but when deceased did not come back till late in the night, complainant alongwith P.Ws. Went in search of deceased. When they reached near the Haveli of Maqsood Ahmad at 3 a.m. Night they saw in the electric light that Shabbir Ahmad accused was holding pistol in his one hand and was also holding collar of the Saleem deceased with other hand and was saying to him that if he did not obey him he would teach him a lesson. Thereafter, Shabbir accused fired a shot, which hit on the left side of chest of Saleem. The complainant and P.Ws. Raised alarm. The accused fled away with his pistol.
The deceased expired at the spot.
4. Motive according to the F.I.R. Was that Shabbir Ahmad accused wanted to do some unnatural act with deceased and on his refusal he committed his Qatl-e-Amd. The occurrence was seen by complainant and P.Ws. Complainant left the place of occurrence after leaving the dead body under the escort of P.Ws. And proceeded to the police station, where Exh.P.F. Was got recorded by him to the Investigating Officer. He signed Exh.P.F. In token of its correctness.
5. After the registration of case, the Investigating Officer visited the place of occurrence, prepared injury statement Exh.P.H., inquest report Exh.P.I. And sent the dead body to the hospital through Zafar Iqbal and Wajid Ali, Constables. He also prepared rough site plan of the place of occurrence, Exh.P.J. He took into possession blood-stained earth from the spot vide memo. Exh.P.B. He also took into possession crime empty P.1 from the place of occurrence vide recovery memo. Exh.P.C. After the postmortem examination Zafar Iqbal constable produced last-worn clothes of the deceased Shirt P.5, Shalwar P.6 and vest P.7 all blood-stained, which were taken into possession by the Investigating Officer vide memo. Exh.P.G.
' Report of the Chemical Examiner regarding blood-stained earth is Exh.P.K. While that of the Serologist is Exh.P.L. Report of the Forensic Science Laboratory is Exh.P.M.
6. Prosecution in order to prove its case produced 10 witnesses in all. Nazeer Ahmad (P.W.6) and Abdur Rehman (P.W.7) were eye-witnesses. Dr. Muhammad Ashiq, who conducted post-mortem examination on the dead body of deceased was examined as P.W.4.
7. Learned counsel for appellant has read before me the evidence recorded by learned trial Court and submits that occurrence in this case, according to prosecution, took place at 3 a.m. In cold winter season in the month of November, 1995, so presence of both the eye-witnesses at the spot is unnatural. Further submits that presence of Abdur Rehman (P.W.7) who was a chance witness and had no business to be present in the house of complainant and for coming to the place of occurrence is highly doubtful.
' Adds that although case was registered at 5-45 a.m. On 15-11-1995, that is, 2 hours and 45 minutes after the occurrence but the post-mortem examination was conducted on 16-11-1995 with delay of 30 hours. Learned counsel submits that in column No,3 of the inquest report prepared by the Investigating Officer there is no mention of time as to when the death took place. Further submits that Abdur Rehman P.W.7 in cross-examination admitted that Inspector Muhammad Anwar when reached at the spot asked the people present there that who had murdered the deceased.
Learned counsel submits that all these facts lead to the conclusion that occurrence has not taken place as put by prosecution. Lastly, learned counsel for appellant submits that recovery cannot be believed in this case because crime-empty has not been shown in column Nos.23 and 24 of the inquest report and same was sent to Fire-arm Expert after recovery of pistol from appellant which was a licensed pistol of appellant.
7. There is nobody to prosecute the criminal revision although name of learned counsel is sufficiently shown in the cause list. Same was the position yesterday when appeal was partly heard. '
8. Learned counsel for State half-heartedly opposes the submissions made by learned counsel for appellant.
9. I have heard learned counsel for appellant at great length. In the instant case, occurrence took place at 3 a.m. On 15-11-1995. Complainant and Abdur Rehman P.W.7 had no business to be present at the place of occurrence which was away from their house at the relevant time. Even according to prosecution case when deceased left his house at 10-30 p.m., neither complainant nor anybody present there asked why deceased was accompanying appellant at odd hours of night in cold winter season. Abdur Rehman P.W.7 admitted during the cross-examination that Inspector Muhammad Nawaz when reached at the spot, he asked the people present there as to who had murdered the deceased.
10. As far as recovery of weapon is concerned, according to prosecution case, empty cartridge was recovered from the spot on 15-11-1995 but same was not shown in column Nos.23 and 24 of the inquest report. Appellant was arrested on 15-11-1995. Recovery was effected from him on 18-11-1995 and according to report of the Fire-arm Expert crime-empty was sent on 19-11-1995 and pistol .30 bore on 23-11-1995. All these dates show that crime-empty was sent after recovery of pistol, so the recovery of crime-empty is also doubtful. No motive whatsoever is given in the F.I.R. Only a suspicion was made by complainant that deceased might have refused to the lust of appellant and, therefore, he might have committed the murder of deceased. It may also be noted here that according to post-mortem report, in page where the Medical Officer has signed, date mentioned is 18-11-1995, the column of date at first page, it is mentioned as 16-11-1995 but on the last although according to doctor, he conducted post-mortem examination on 16-11-1995.
All the above facts lead to conclusion that prosecution has failed to prove its case against appellant beyond any shadow of doubt. So, given the benefit of doubt, this appeal is accepted and conviction and sentence awarded to appellant is set aside. He in jail. He shall be released forthwith, if not required to be detained in any other case. Criminal revision filed by complainant for enhancement of sentence is dismissed.