' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,128 of 1998 directed against the judgment, dated 1-4-1998 passed by the learned Sessions Judge, Pakpattan, whereby he convicted the appellant under section 302-B, P.P.C., as Tazir and sentenced him to death penalty with further direction to pay Rs,60,000 as compensation under section 544-A, Cr.P.C.
Or in default six months' R.I. While his co-accused Banaris was convicted under section 337-F(i), P.P.C. And was sentenced to undergo one year with the direction to pay Daman of Rs,1,000 to injured P.W. Muhammad Sharif.
2. The occurrence in this case took place at 3 a.m. On 15-2-1997 in village Chak No,8-E.B situated at a distance of 10 miles towards North-East from Police Station Sadar Arifwala, District Pakpattan.
Matter was reported to the police the same day at 6-20 a.m.
3. The facts in brief as narrated by the complainant, are that at 3 a.m. (after midnight) he along with Muhammad Sharif, Muhammad Yousaf, his sons was watering his fields, when he and Sharif went back to have look of watercourse whereas Muhammad Yousaf remained at the Naka. All of a sudden Sharif heard a noise of Yousaf when he and Sharif rushed to the Nakka and saw that Banaris armed with a 'Dang' and Waris armed with a 12 bore single barrel gun, were present there and that Banaris and Yousaf were scuffling with each other. Banaris when saw Sharif coming towards him, he caused Dang blow to Sharif hitting him on his left arm and left kg, when Muhammad Yousaf was just causing Kassi blow to Banaris, then Waris, who was present at 2 or 3 feet, fired at Muhammad Yousaf with his gun hitting him on his back on left side. Muhammad Yousaf fell injured. Then Waris one after the other fired twice at Muhammad Sharif, when he and Muhammad Sharif saved themselves behind a dune/barrier. The appellant after the occurrence ran away. Muhammad Yousaf succumbed to the injuries. The motive behind this occurrence was a quarrel which had taken place few days prior to the present occurrence between the parties on a common 'watt'
4. After recording F.I.R. And completing all other necessary formalities, the Investigating Officer Muhammad Rafique Inspector (P.W.12) went to the spot. He prepared the injury statement of Muhammad Yousaf, Exh.P.B and inquest report Exh.P.J. He also prepared injury statement of Muhammad Sharif P.W., Exh.P.K. He collected the blood-stained earth from the spot vide memo.
Exh.P.G. And took into possession three empties P.9/1-3 vide memo. Exh.P.F. The Investigating Officer also took into possession Dang P.7, Chaddar P.6 and one Shoe P.8 from the spot vide memo. Exh.P.D.
Last worn-clothes Exh.P.1 to Exh.P.3 all stained with blood and Exh.P.4 vide memo. Exh. P.A. Were also produced before the Investigating Officer by Taj Muhammad constable. Both the accused were arrested by the Investigating Officer on 14-3-1997. Incomplete Challan was submitted to the Court for trial.
5. Prosecution in crier to prove its case has produced as many as 13 witnesses in all including Doctor, Investigating Officer and other relevant witnesses. After tendering in evidence report of Forensic Science Laboratory Exh.P.P, Report of Chemical Examiner Exh.P.Q. And Report of Serologist Exh.P.Q/1 closed the prosecution evidence. Thereafter statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded not guilty.
6. Learned counsel for the appellant in support of this appeal submits that F.I.R. Was lodged after due deliberation and consultation between the complainant and the police, that the complainant had stated that he was owner of six acres of land in Square No,34 in Chak No,8-E. B. But in the Court he denied this fact and was duly confronted. The Investigating Officer also admitted that the complainant had no land in the above said Chak where the occurrence had taken place.
According to the learned counsel said land belonged to Abdullah and he was never joined the investigation. Learned counsel for the appellant further submits that occurrence took place in the dark hours of night and no source of light was mentioned in the F.I.R. Adds that even during the cross-examination all the eye-witnesses had admitted that trackers were summoned to trace out the footprints of the accused, that no independent witness has been produced by the prosecution, that both the witnesses are closely related to the deceased, that the appellant and the complainant party had no land adjacent to each other, that there is also difference of duration about the purchase of buffalo by the appellant party from the complainant party because one P.W.
Has submitted that appellant party purchased the buffalo one year prior to the occurrence while other witness stated that it was purchased six months prior to the occurrence, that the injuries of Muhammad Sharif P.W. Injured are with friendly hand and he is a cooked up witness. He further submits that there is interpolation in the original F.I.R. About the distance from where Waris had fired. He submits that P.W.7 Muhammad Sharif had stated that Muhammad Yousaf deceased had given 'Kassi' blows on the person of Waris appellant but there is no such injury, that ocular account is not corroborated by Medical evidence. Moreover, he submits that gun and the empties recovered from the spot were sent together, that in the F.I.R. It was stated that Waris was armed with single barrel gun but double barrel gun has been recovered from him, that the witnesses had stated that two kassis belonging to the complainant party were taken into possession by the police but the Investigating Officer had denied this fact. Learned counsel for the appellant submits that it is impossible and improbable that the accused person who commits murder would remain at his place of business and at his residence. While elaborating this argument learned counsel for the appellant submits that both the accused were found at their field and residence respectively on the following day of occurrence. He submits that no case is made out against the appellant and he is entitled to acquittal.
7. On the other hand learned counsel for the State assisted by the learned counsel for the complainant who has also filed a Criminal Revision No, 94 of 1998. They submit that appellant is named in the F.I.R. And specific role is attributed to him. There was no question of mistaken identity as the appellant and his co-accused were known to the complainant party that the appellant and his co-accused shared common intention and had murdered the deceased Muhammad Yousaf and had also caused injuries on the person of Muhammad Sharif P.W., that the learned trial Court was wrong in not convicting Banaras under section 302, P.P.C. They both support the judgment of the learned trial Court.
8. We have heard the learned counsel for the parties and also have gone through the evidence recorded by the learned trial Court and the judgment impugned herein with the assistant of the learned counsel for the parties. In the instant case according to the prosecution case, occurrence took place at 3 a.m. On 15-2-1997 and the matter was reported to the police the same day at 6-20 a.m. Prosecution tried to prove teat F.I.R. Was promptly lodged but this is not the position in the instant case. Muhammad Sharif claiming himself to be injured P.W. Has stated before the learned trial Court during cross-examination that after the occurrence he was got medically examined by the police on the same day at 1 p.m. Then Muhammad Rafique Inspector Investigating Officer had accompanied him for medical examination to the Hospital. After obtaining his M.L.R. From the M.O., Muhammad Refique Inspector took him and his father Muhammad Hussain to Police Station Sadar, Arifwala and after going through his M.L.R. In the Police Station registered the F.I.R. On the statement of his father and it was thumb-marked by him as Author of the F.I.R., there. This statement of Muhammad Sharif injured P.W. Creates difference about lodging the F.I.R. Because according to the F.I.R. Itself it was lodged at 6-20 a.m by the complainant while according to him the same was lodged after his medico-legal report which was prepared at 1 p.m. So in our view the same has been registered after due deliberation and consultation and not promptly. We must keep in our mind that it was month of February which is highly winter season and the time of occurrence was 3 a.m. No source of light has been given in the F.I.R. Neither it was moon-lit night and in these circumstances, it was very difficult for the eye-witnesses to identify the accused persons.
Muhammad Sharif P.W. Is the brother of the deceased while the complainant Muhammad Hussain is father of the deceased. No other P.W. Has been produced by the prosecution. Injuries on the person of Muhammad Sharif are very insignificant nature. Doctor had admitted in his statement that page 12 of the paper book that the injuries as such could be caused with friendly hands. The presence of both the eye-witnesses do not appear to be at the spot at the time of occurrence for the reason also that they had stated that they were having two 'Kassis' at the time of occurrence and the police had taken the same in their possession but these Kassis were not there and Muhammad Refique Inspector Investigating Officer categorically admitted this fact. Moreover, Muhammad Sharif P.W. Has admitted that Muhammad Yousaf deceased had given Kassi blow on the back of Waris but Waris had no injury on his person. Had he been present at the spot he must not have stated this fact before the learned trial Court. Muhammad Hussain complainant had admitted another important fact at page 24 of the paper book that: "it is correct that Sher Muhammad Baloch tracker along with Intizar Hussain Baloch, Bashir Ahmad Baloch and other residents of 8-E.B traced out the foot-prints of the real culprits from the place of occurrence up to aforesaid quarters."
It means that services of the tracker were obtained for the reason that the accused were not known, then there is difference of duration about the fact of purchasing buffalo because P.W.6 has stated that the accused persons purchased the buffalo from him about a year prior to the occurrence but Muhammad Sharif P.W. Stated that six months prior to the present occurrence. It was stated that Waris was armed with single barrel gun but double barrel gun was recovered from Waris. Both, the crime empties and the gun were sent together so it has lost its corroborative value and no reliance can be placed on the report of Fire-arm Expert. In the F.I.R. Complainant had stated that he got six acres of land in Square No,34 in Chak No,8-E.B. But he denied this fact before the trial Court and he was duly confronted. The Investigating Officer also took into consideration that the appellant had no land there. He himself admits this fact that he had no land there. It may also be noted here that there is also an interpolation in the original F.I.R. Which we have noted during the course of arguments and also in the inquest report that word 2 yards had been changed into 2 feet and this was done definitely after getting the post-mortem report, as margins were to be burnt on the wound allegedly caused by gun shot. No independent witness from the vicinity where the occurrence had taken place, was produced before the learned trial Court. Even Abdullah in whose land this occurrence has taken place, was never produced by the prosecution. Presence of the eye-witnesses at the spot is highly doubtful. In such-like cases evidence should come from an impeachable source which is not present in the instant case. In our view prosecution has miserably failed to prove its case against the appellant and the learned counsel for the appellant has succeeded in creating sufficient dents in the prosecution case. In this view of the matter, this appeal is accepted and the conviction and sentence awarded to the appellant by the learned trial Court are set aside. Murder Reference is replied in the negative. Appellant is ordered to be released from Jail, if he is not required in any other case.
Death sentence is not confirmed.