' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,615 of 1997 filed by Abid Mumtaz appellant who was convicted under section 302(b), P.P.C. And sentenced to death and to pay Rs,50,000 as compensation, in default six months' R.I.. By learned Additional Sessions Judge, Sargodha vide judgment dated 23.9.1997.
' Murder Reference No,214 of 1997 for confirmation of death sentence or otherwise shall also be replied through this single judgment.
2. Occurrence in this case had taken place at Deegerwela on 26-9-1994 within the revenue estate of Chak No,93 at a distance of 9 kilometers from Police Station Karana District Sargodha while the matter was reported' by Muhammad Aslam at 6.30 p.m. The same day and the formal F.I.R. Exh.PA was recorded by Atta Muhammad, S.I.
3: Briefly stated- the-facts of the case are that on 26-9-1994, Muhammad Aslam, the complainant along with Khalid Javed was present in his field when Sajid son of Mumtaz reached there while armed with a rifle on his tractor. The accused raised Lalkara and resorted to firing at Khalid Javed.
The first shot fired by the accused missed and the second shot hit on left side of fore-head of Khalid 'Javed and he fell down. The complainant ran after the, accused to catch hold of him but he managed to decamp from the place of occurrence. Khalid Javed was removed to hospital where he succumbed to his injury.
4. After registration of the formal F.I.R., Atta Muhammad. S.I.(P.W.7) reached Civil Hospital, Sargodha prepared injury statement Exh.PF; inquest report Exh.PG; recorded supplementary statement of the complainant in the hospital; then went to the place of occurrence; took into possession the blood- stained earth vide memo. Exh.P.B; the investigation was then taken over by Muhammad Aslam, S.H.O. (PW.9) who on 15-12-1994 arrested Abid Mumtaz, got his physical remand and the accused during custody led to the recovery of rifle 222 P.1 which was secured vide memo. Exh.PE and after completion of the formal investigation, the accused was challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 10 witnesses in all; then the learned DDA tendered in evidence report of the Chemical Examiner Exh.PK, report of the Serologist Exh.PL and closed the prosecution case; thereafter, statement of the accused was recorded under section 342, Cr.P.C. In which he claimed inn6cence; however, after conclusion of the trial, the appellant was convicted and sentenced as stated above.
6. Learned counsel for the appellant after having read the entire prosecution evidence and other material available on record submits that initially in the F.I.R., the name of the accused, killer of deceased Khalid Mehmood, was given as Sajid Mumtaz and the name of Sajid was stated 7 times in the F.I.R. But later one the complainant changed the name of the accused and mentioned as Abid Mumtaz, who is real brother of Sajid Mumtaz; in fact Sajid Mumtaz was a heroin addict while Abid Mumtaz appellant was a student and the complainant party wanted to teach a lesson to the accused, changed the name of Abid instead of Sajid, both Sajid, Abid and the complainant are resident of same village, so there was no question of any mistaken identity or mis-description of the names; even in the inquest report, the name of the accused was given as Sajid and not Abid; Exh.DA, the affidavit purported to have been sworn by Muhammad Aslam, the complainant does not bear any date; the complainant had stated in cross-examination that he got written this affidavit from Atta Muhammad, S.I. While Atta Muhammad, S.I. Contradicted this version of the complainant and that the case is full of doubts and that the prosecution has miserably failed to prove its case against the appellant. Concluding, his submissions, learned counsel for the appellant submits that the appellant is. Entitled to clean acquittal.
7. On the other hand, learned, counsel a for the State submits that it was just clerical mistake in mentioning-the name of the actual accused as Abid instead of .Sajid and due to this minor discrepancy, the benefit should not be granted to the appellant when otherwise the case has been proved against the appellant.
8. We have heard learned counsel for the parties and have gone through the record.. In the instant case, at about 7 times, name of the accused is mentioned as Sajid by the complainant Muhammad Aslam. In the column of "it is mentioned that tile contents of F.I.R. Were read over to the complainant and he has signed the same after taking the same to be correct. If there was any doubt in the mind of the complainant about the name of the actual culprit, he should have at once pointed out to the Investigating Officer. Both Sajid, Abid and the complainant are resident of the same village, they were well-known to reach other so there should have been no ambiguity. The complainant himself was not sure as to who was the actual killer/murderer of his sons. Atta Muhammad S.I./Investigating Officer had stated that he never wrote the affidavit Exh.DA although the complainant in the cross-examination stated that the affidavit was got written by Atta Muhammad, S.I./ Investigating Officer. This affidavit of the complainant does not bear any date. In the paper book, there is no stamp of the Oath Commissioner. We have also seen the said affidavit from the original record. There is stamp of the Oath Commissioner but it does not bear any date. It means that version of the complainant and the Investigating Officer that supplementary statement of the complainant was recorded through affidavit Exh.DA within 15 minutes after registration of the F.I.R. Is totally incorrect. We are thus of the considered view that the affidavit was not sworn by the complainant as alleged by the prosecution rather it was some time later on at the sweet-will of the complaint and the Investigating Officer. Further, if the affidavit was obtained by the Investigating Officer from the complainant after 15 minutes of the recording of the F.I.R., then in the brief facts of the inquest report, the name of the accused should have been given as Abid and not as Sajid.
9. Both the eye-witnesses namely Muhammad Aslam P.W.2 is father of the deceased while Safdar Ali, P.W.3 is also related to the complainant party and was co-accused of the deceased in some other. Case. The appellants have placed on record four F.I.Rs, Exh.DD to Exh.DG to prove that the deceased was not a person of good character and was having many enemies. The cases registered against the deceased are under sections 307, 325, 379 and 377 read with Article 12 of Offence of Zina (Enforcement of Hadood) Ordinance, 1979. The possibility of the deceased having been murdered by any of Es enemies cannot be ruled out.
10. From what has been discussed above, it can easily be discerned that the evidence produced by the prosecution in the instant case are shaky in nature and .Cannot be relied upon either to record conviction or maintain conviction 'in a case of capital punishment. The settled law is that in a case of capital punishment, evidence must have come from an unimpechable source which fact is missing in the instant case. Resultantly, while granting the benefit of doubt in favour of the appellant, we accept the appeal and set aside the conviction and sentence recorded against him by the learned trial Court. The death sentence of the appellant is NOT confirmed. The appellant is in jail and shall be released forthwith, if not required to be detained in any other case. Murder Reference is replied in the NEGATIVE.