' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No, 228 of 1995 directed against the judgment dated 10-12-1995 passed by the learned Additional Sessions Judge, Rawalpindi, whereby he convicted the appellant under section 302, P.P.C. And sentenced him to death with a fine of Rs, 50,000 as compensation under section 544-A, Cr.P.C. Payable to the legal heirs of the deceased, or in default to undergo further six months' R.I.
2. The occurrence took place on 7-7-1991 at 9-15 a.m. In the area of Kohrah Merran, Dakhli Bandot situated at a distance of 6-1/2 miles towards west from Police Station, Kallar Syedan. The matter was reported to the police by Syed Sabir Hussain Shah the same day at 11-45 a.m.
3. Brief facts as narrated by the complainant in the F.I.R. Are that on 7-7-1991 at about 9 a.m he alongwith Syed Ilyas Hussain P.W.8 were going towards Adda Suzuki (Saghri) for leaving Imtiaz Hussain there and to see him off. On the way they stopped for making water whereas Imtiaz Hussain Shah went ahead of them. When he reached on the 'Banns' of the land of one Fazal at 9-15 a.m. Tasawar lqbal appellant suddenly appeared having a pistol in his hand and raised Lalkara to Imtiaz Hussain Shah that he will take revenge of his insult and then started firing at Imtiaz Hussain Shah and he suffered injuries on his back, head and right arm in running condition. He fell on the ground and succumbed to the injuries. The accused/appellant ran away.
4. After receiving information about the occurrence the police headed by Muhammad Akbar, Inspector after completing all the necessary formalities proceeded to the spot. The Inspector prepared injury statement Exh.P.K and inquest report Exh.P.L. He inspected the place of occurrence, took the blood-stained earth from the spot vide recovery memo. Exh.P.B. Three empties of 30 bore pistol were also taken into possession by him vide memo. Exh.P.O. After postmortem last-worn clothes of the deceased i,e, shirt P.3, Shalwar, P.4, Bunian P.5, all stained with blood, blood-stained shoes P.6/1-2, socks P.7/1-2, National Identity Card P.8, purse P.9 and Service Card P.10 etc. Were also taken into possession by him through Muhammad Iqbal, H.C. P.W.6 vide memo. Exhs . P . G .
And P . H . On 14-7-1991 the Inspector arrested the appellant who on 21-7-1991 led the police party to the place of recovery of pistol and he got recovered pistol, P.2 alongwith its licence P.5 on his pointation which were taken into possession vide memo. Ex.P.D. After completing the investigation the Investigating Officer challaned the appellant and sent him for trial.
5. In order to prove its case the prosecution has produced as many as 12 witnesses including Doctor, Investigating Officer and other relevant persons. After tendering in evidence report of Chemical Examiner Exh.P.H. Report of Director, Forensic Science Laboratory Exh.P.O. And report of Serologist Exh.P.P. Learned DDA closed the evidence. Thereafter, statement of the accused was recorded under section 342, Cr.P.C. In which he pleaded not guilty. Two D. Ws. Were also produced by the appellant and in documentary proof written statement under section 265-F(5) Exh.P.D. Was tendered.
6. Learned counsel for the appellant after having gone through the evidence, judgment of the learned trial Court and other relevant record available on the file, submits that it was an unwitnessed occurrence, that presence of both the eye-witnesses who are closely related to the complainant is extremely doubtful, that there is conflict between ocular account and the medical evidence, that lot of improvements have been made by the eye-witnesses to make in line their version with the medical evidence. Adds that medical evidence contradicted the version of the eye-witnesses at every step, that no motive is given in the F.I.R., then why the appellant committed the murder of the deceased; that investigation in this case was dishonest one and the Investigating Officer had also admitted that he had committed several illegalities. While elaborating his arguments learned counsel for the appellant submits that in the F.I.R. The complainant has not furnished the exact time of occurrence and the same was added later on as 9-15 a.m. In the complaint Exh. P.A. At lines 10 and 12 it is a patent interpolation. Adds that in Column No,3 of the inquest report of the deceased no time of death has been mentioned to which he was bound to mention therein. He submits that even post-mortem report does not show the time of death in the relevant column and when the Doctor was cross-examined he submitted before the trial Court that as it was not furnished by the police so he did not write the same. He submits that Ilyas Hussain Shah another eye-witness was also not present at the spot and even at the time of first spot inspection by the Investigating Officer he had inserted his name after completing the said report in the case diaries, and this addition is evident to the nacked eye. He also submits that in the brief facts of the inquest report time of occurrence i,e, 9-15 a.m has not been mentioned. He submits that had the F.I.R. Been registered earlier the same must have been mentioned in the inquest report. He also adds that the time of occurrence has not been mentioned in the statement under section 161, Cr.P.C. Of Ilyas Hussain Shah the eye-witness. He submits that in fact complainant was S.-I. In the Police Department with 20 years' service to his credit having good relations with the local police and he in connivance with the Investigating Officer has committed all these illegalities, addition and interpolations in this regard in order to strengthen the prosecution.
Learned counsel for the appellant submits that as far as report of Forensic Science Laboratory is concerned, that is negative, so there is no independent corroboration of the eye-witnesses account. Learned counsel also criticised the attitude of the learned trial Court during trial and he has read out before this Court different interim orders passed by the said Court. He submits that learned trial Court has not even recorded his contentions at the time of arguments and he was forced to file written arguments, which are Exh.D.D. He also submits that the learned trial Court after recording the prosecution evidence has not bothered to go through the evidence himself and some of the important exhibits have not been written by him and the vindictiveness of the trial Court can be seen that when the learned trial Judge rejected his request for summoning defence witnesses through Court then appellant had to file a revision petition before this Court and the said revision petition was accepted and then on the first date of hearing learned trial Court issued bailable warrants of said D.Ws. He further submits that on the first date of hearing the said D.Ws.
Were not present and one of them was out of country and two others were not served, learned trial Court directed the S.H.O. To serve bailable warrants on them himself and produce them before him.
He submits that said D.Ws were taken to the police station where they were maltreated and harassed not to depose in favour of the appellant. He submits that this all was done by the police on the behest of the complainant so said D.Ws may not divulge the true facts before the trial Court.
He also submits that the deceased was an Army Commando serving in M.G. Who were specially trained for resisting the attack and to launch assault on adversaries. He submits that the appellant is a young man could not have dared to attack on the deceased. Learned counsel further adds that appellant had also produced two D.Ws. Khadim Hussain and Shujaat Khan who were the residents of nearby of the place of occurrence and they have deposed that the complainant was not present at the spot and they after hearing fire shot came out -from their houses at 8 a.m. And saw the deceased who was having fire-arm injuries and way lying dead. Thereafter, Sabir Hussain complainant was informed who came there and asked what was happened to him. He was told that some persons who had muffled their faces have done this act. He submits that there is no reason to discard 'the statement of these two witnesses because from the very day of occurrence they had appeared before the police as they were residents of nearby places. Their presence at the spot is natural and they have no relationship with the appellant and also have no against the complainant party. That there is conflict between ocular account and the medical evidence.
7. On the other hand learned State Counsel assisted by the learned counsel for the complainant submits that it is promptly lodged F.I.R. The appellant is the only accused in this case. There is no question of substitution. Substitution is rare phenomenon, that the eye-witnesses have no direct enmity with the appellant. There was no reason on their part to falsely implicate the appellant in this case. Learned counsel for the complainant adopts the same arguments. They both support the judgment of the learned trial Court.
8. We have heard the learned counsel for the parties at a great length and have also gone through the record available on the record. The occurrence in this case took place at 9-15 a.m. On 7-7-1991.
Matter was reported to the police at Suzuki Adda Kallar Syedan at 11-30 a.m. By the complainant through a written complaint. We have gone through the original complaint Exh.P.A. At line 13 portion A to A figure 9-15 a.m seems to have been added later on. If one goes through the inquest report which is Exh.P.L. Specially Column No,3, no time of death has been mentioned because if the F.I.R.
Had already been written by the S.H.O./I.O. And he went to the place of occurrence having the complaint then he should have mentioned the time of occurrence not only in Column No,3 of the inquest report but also in the brief facts of the inquest report which also proves that the F.I.R. Was registered after due deliberation and consultation. We are also keeping in our mind that the complainant was S.-I. In the police (I.E. Department) and Investigating Officer was bent upon to oblige him. According to Columns Nos.16 and 17, the description of the dead body was given and that was that the deceased was a young fat man having a height 5'-8" and he belonged to special service group (being a commando). It is not believable that the appellant who is young man of 20/22 years of age would attack on him in thickly-populated area having houses around the place of occurrence, alone. The commandos are being trained to repulse the attack of the adversary and being trained to be on offensive side. F.I.R. Was also lodged with a delay because the place of occurrence was connected with a metalled road to the Police Station and all types of modern and fast vehicles were available on the said road. The place of residence of the complainant was at a distance of 1 or 1 1/2 k.m. From the place of occurrence while place of residence of Muhammad Ilyas Shah P.W. Was 15 to 20 k.m. From the place of occurrence. The story of the complainant was that he was accompanying the deceased in order to see him off at Sagari Suzuki Adda. We must keep in our minds that the complainant was the maternal uncle of the deceased and in our society the elders having such relationship are not expected to accompany the youngsters for seeing them otf to a distant place. In fact it should have been vice versa. Moreover, the deceased was a young man and an employee in Pakistan Army, there was no reason on the part of the complainant to accompany him and to see him off at the Suzuki Adda which was 2 to 2-1/2 k.m. From his house because place of occurrence was at a distance of 1-1/2 k.m. From the house of the complainant and Suzuki Adda had yet to come. The witnesses are also guilty of making deliberating dishonest improvements in their statements one after the others specially to bring about drastic changes in their versions in order to reconcile their statements with the medical evidence and also to make their version look reasonable and plausible because according to the F.I.R. Tasawar Iqbal appellant had caused injuries at Imtiaz Hussain deceased maternal nephew of the complainant with pistol which hit him on his back, head and right arm. Even to make in line his statement the complainant had to concoct a supplementary statement in connivance with the Investigating Officer. Same is also not permissible in the eyes of law. According to Doctor Sajjad Hussain Raja, P.W.5, Injury No,1 was on the left side of chest, Injury No,2 was also on the left side of chest, Injury No,3 was on right elbow-joint, Injury No,4 was lacerated wound, Injury No,5 was firearm wound on right temporal region between ear and right eye, a lacerated wound was on the back of head, Injury No,7 was an exit wound, Injury No,8 was also an incised wound and Injury No,9 was near the left ear. A bare perusal of these Injuries would show that Injuries Nos.4 and 6 were caused by blunt weapon which had not been explained by the prosecution and the doctor had admitted in his cross-examination that these injuries i,e, Injury No,4 and Injury No,6 were of direct blows by some blunt weapon which also falsifies the eye-witnesses account and it proves that two weapons have been used in the occurrence by two different accused persons. The Injuries on the chest, eye and the ear have not been explained by the prosecution in the F.I.R. Time of occurrence is neither mentioned in the F.I.R.
Nor in his supplementary statement and also in the brief facts of the inquest report, even in, the statement of Ilyas Hussain P.W. Recorded under section 161, Cr.P.C. According to the prosecution occurrence had taken place at 9 or 9-15 a.m. And post-mortem on the dead body was conducted on 7-7-1991 at 4 p.m. The duration given by the Doctor between the death and the post-mortem examination was 5 to 10 hours. This also leads to the conclusion that occurrence had taken place some where in the early hours of the morning and not at 9 or 9-15 a.m. As stated by the eye- witnesses. It has also been proved on record through Exh. D.C. When Fiqra No, 5 of the said inspection note comes to an end that portion A to A has been added later on: It shows that Ilyas Hussain P.W. Was not present at the time of occurrence. It is proved from the fact that during cross-examination Ilyas Hussain Shah stated before the learned trial Court that from the time of occurrence till to dispatch of the dead body he remained at the spot while according to sentence No,4 of Exh.P.D. i,e, Inquest report, the dead body was already dispatched to the mortuary, it means that Ilyas Hussain Shah P.W. Came at the spot at a belated stage and is a false witness. No independent witness has been produced by the prosecution to prove its case. It may also be mentioned here that the Investigating Officer had admitted during the cross-examination that the statement of the witnesses were recorded on printed forms on 7-7-1991 and they were six in number. He gave their names as Sabir Hussain, Noor Hussain, Ghulam Ali Shah, Muhammad Iqbal, H.C. Malik Mir Afzal and another statement of Ghulam Ali Shah. This proves that name of Ilyas Hussain Shah P.W. Does not any where and the statement of Ilyas Hussain Shah was later on written on the back side of the statement of Ghulam Ali Shah on printed form No,38585. He is a made-up witness. Even no motive has been given in the F.I.R. For the murder of deceased.
9. On the other hand appellant has produced Khadim Hussain D.W.1 and Shujaat Khan D.W.2. They also excluded the presence of both the eye-witnesses. They are independent witnesses as they are living close to the place of occurrence. They have no enmity with the complainant party and have no relationship with the present appellant. There was no question for them to make false statement. They have come and deposed the truth before the Court to reach at a just conclusion. If the evidence produced by the prosecution in the shape of eye-witnesses and the statement of witnesses who appeared as D.Ws. Is compared, the statements of D.Ws. Seem to be more plausible, convincing and nearer to the truth and there is no reason to discard or disbelieve their testimony.
We have disbelieved the motive, eye-witness account and now we left with the recovery of crime empties and that of pistol allegedly recovered from the appellant but the report of the fire-arm expert is in the negative and is of no avail to the prosecution.
10. The upshot of the above discussion is that prosecution has miserably failed to prove its case against the appellant. In this view of the matter this appeal is accepted and the conviction and sentence awarded to the appellant are set aside. Death sentence is not confirmed and Murder Reference is replied in the negative. Appellant shall be released forthwith if not required in any other case.
' Death sentence awarded to the appellant is not confirmed.