1. ' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,154 of 1997 filed by Tariq Mahmood, appellant, who was convicted under section 302(b), P.P.C. And sentenced to death with the further direction to pay Rs,2,00,000 as compensation, in default six months' S.I. By the learned Additional Sessions Judge, Rawalpindi vide his judgment, dated 20-5-1996. Murder Reference No,142 of 1996 for confirmation of the death sentence or otherwise of the convict appellant shall also be replied through this single judgment.
2. Occurrence in this case had taken place on 15-9-1994 at 7-15 a.m. At a distance of 5 K.Ms. From Police Station Westridge, District Rawalpindi while the matter was reported by Saeed Ahmed complainant at 8-40 a.m. On the same day and the formal F.I.R., Exh.P.E. Was recorded by Muhammad Sharif, A.S.-I.
3. Briefly stated the facts of the case are that Saeed Ahmad complainant was living along with his family in Mohallah Wasimabad while his elder brother Shakeel Ahmad was putting up in the upper storey of a rented house in Mohallah Chistiabad, while the ground flour was on tenement with Tariq Mahmood who was also living along with his family. Between the wives of Tariq Mahmood and Shakeel Ahmad, brother of the complainant, there had always been quarrel. A few days prior to the occurrence Tariq Mahmood sent his family to his native town and started asking brother of the complainant to vacate the house and go somewhere else. Conversely, the brother of the complainant uttered the same remarks towards Tariq but Tariq was adamant that brother of the complainant should vacate the house. On 4-9-1994, Tariq Mahmood warned brother of the complainant to vacate the house till morning otherwise brother of the complainant would be done to death. On the fateful day, at about 7-00 a.m., the complainant went to see his brother in Mohallah Chistiabad, who had gone to drop her daughter at school. The complainant waited for his brother who came back at 7-15 a.m. After leaving her daughter at school. Tariq Mahmood at that time was present in the courtyard of the house and he called the brother of the complainant and told that Shakeel had not vacated the house and shall be given a taste for that. On hearing this, Mst. Saqlain Bibi and Hassan Akhtar, P. Ws. Came on the stairs after coming out from their house when Tariq Mahmood brought at .12 bore rifle from his room. Immediately, thereafter, he fired a shot at Shakeel Ahmad which hit on his chest towards left side, the second fire made by Tariq also hit on the chest of the brother of the complainant towards the right side. Shakeel succumbed to his injuries at the spot.
2. ' After registration of the formal F.I.R. Exh.P.E., Mushtaq Ahmad, S.-I. P.W.9 went to the place of occurrence, prepared the injury statement Exh.P.K., inquest report Exh.P.L., took into possession blood-stained earth from the spot vide memo. Exh.P.D. And also took into possession .12 bore gun vide memo. Exh.P.B. And the two crime empties from the spot vide memo. Exh.P.C., he arrested the accused on 29-9-1994 and after completion of the formal investigation challaned the accused to face the trial.
3. ' At the trial, prosecution, in order to prove its case produced 11 witnesses in all, then the learned A.P.P., tendered in evidence report of the Chemical Examiner Exh.P.M., report of the Serologist Exh.P.N., report of the Forensic Science Laboratory Exh.P.O. And closed the prosecution case, thereafter, the statement of the accused was recorded under section 342, Cr.P.C. Which he pleaded innocence and claimed false implication'. After conclusion of the trial, the accused was convicted and sentenced as stated above by the learned trial Court.
4. ' Learned counsel for the appellant after having read the entire prosecution evidence before us and other relevant material available on record submits that in the instant case 'two eye-witnesses namely Saeed Ahmad P.W.1 and Mst. Saqlain P.W.2 were produced, inasmuch as P.W.1, real brother of the deceased while P.W.2 is widow of the deceased. As far as, Saeed complainant is concerned, he is a resident of a place two miles away from the place of occurrence, relations between the father and the deceased were not cordial the father disowned the deceased and also disassociated him from his perspective inheritance, occurrence had taken place at 7-15 a.m. When the complainant being an employee of E.M.E., workshop Golra Sharif, his duty hours were 7-45 to 2- 25 a.m., and the distance between the place of his employment and Qasim Abad is three K.M., so he could not have been present at the spot at the time of occurrence and that in this case the natural witness of the occurrence was Mst. Saqlain widow of the deceased who did not support the prosecution case. Further submits that Hassan Akhtar another witness cited by Saeed complainant was given up as having been won over. Adds that the occurrence had taken place in a very thickly populated area but not a single person had been produced from the locality. Also adds, that except the complainant there is no witness of the motive and if there could have been, that would have been widow of the deceased. Lastly submits that the recoveries have been planted upon the appellant. Concluding his submission, learned counsel submits that prosecution has failed to prove its case against the appellant beyond any shadow of doubt.
5. ' On the other hand, learned counsel for the State submits that it was broad day-light occurrence, parties were known to each other, so there was no question off mistaken identity, the appellant fired two shots which proved fatal and the ocular account is corroborated by the medical evidence. He supports the judgment of learned trial Court.
6. ' We have heard learned counsel for the parties at a great length and have also gone through the record with their assistance. In the instant case, occurrence had taken place on 15-9-1994 at 7-15 a.m. Saeed complainant is real brother of the deceased. He is resident of a place two miles away from the place of occurrence, his presence at the spot is doubtful, he was employee of E.M.E., Workshop GoIra, his duty hours were from 7-45 a.m. To 2-25 p.m., distance between the place of his employment and Qasimabad, where occurrence had taken place is three K.Ms. He had not sent any application/intimation about his absence from the duty, he has not produced any document to show that he was on leave on the day of occurrence. During his cross-examination, he admitted hat he remained absent from duty for 15 days after the occurrence and some' of his colleagues made an application for sanction of leave but he Side not remember the name of is colleague. He had mentioned the name of one Hassan Akhtar as another eye-witness, who was resident of a place five miles away from the place of occurrence but was given up having been won over. The statement of Saeed Ahmad complainant is not corroborated by any other piece of evidence.
7. The star witness of the prosecution was Mst. Sacilain P.W.2 widow of the deceased. She was inmate of the house and was a natural witness, she has not supported the prosecution case and though was declared hostile but was cross-examined at length. She had categorically stated that Saeed Ahmad complainant was not present at the time of occurrence. In cross-examination, she admitted that her father-in-law had deprived Shakeel of all the prospective inheritance, terms between deceased on the one hand and Saeed and his father on the other hand were not cordial and that Saeed Ahmad and his father had shouted out her family from their premises in Naseerabad. She admitted it as correct that Tariq came to their rescue and he managed for a residence in upper portion of the house, where she lived till the death of her husband and that because of Tariq having accommodated her family in his place of residence, his in-laws were not happy over the job done by the appellant. This witness also admitted that had she known as to who had murdered her husband she would not have allowed the culprit to go safe at her hands.
8. She also admitted that she kept herself silent for the reasons that she had an idea to collect all the dues of her husband and out of those assets, to manage something for a safe future for herself and for her children. It was also admitted by her that Saeed Ahmad made her to read the statement recorded by the police and insisted that she had to depose in Court on the line proposed by him otherwise her children would be snatched, and that her parents are weaker than those of her in-laws, both economically and through man power, her in-laws extended threats for depriving her of the children and also to get her arrested. She also admitted that having put her appearance in the Court room she wished to disclose the actual story on truth when a friend of Saeed dragged her and his name was Nazar.
9. After going through the statement of Mr. Saqlain P.W.2, it is proved that Saeed complainant P.W.1 was not present at the spot at the time of occurrence. There is no other eye-witness. We have, therefore, no reason to disbelieve Mst. Saqlain P.W.2, who is widow of the deceased. We also disbelieve the statement of Saeed complainant P.W.1 for the reasons mentioned above and believe the sole testimony of Mst. Saqlain.
10. The question of report of the firearms expert being positive is of no avail to the prosecution. The recovery was not effected on the pointation of the appellant rather according to prosecution case the accused had run away after the occurrence by throwing his rifle. When we have disbelieved the presence of Saeed Ahmad complainant P.W.1 at the spot then he being a witness of the recovery is also disbelieved. Even otherwise, the recovery of weapon of offence and crime empty is a corroborative piece of evidence but not a conclusive proof to show involvement of the accused specially when the eye-witness account is disbelieved.
11. Analysing the statements of Saeed Ahmad P.W.1 and Mst. Saqlain Bibi P.W.2 we are of the considered opinion, that Saeed Ahmad complainant is not a truthful witness and we believe the statement of Mst. Saqlain P.W.2 who was widow of the deceased, who is natural and star witness in this case. Resultantly, we accept this appeal, set aside the conviction and sentence recorded against the appellant and acquits him from the charge. 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.