' This judgment will dispose of Criminal Appeal No,1057 of 2000 filed by Ashfaq alias Bugga, appellant, who was convicted and sentenced by learned Additional Sessions Judge, Gujranwala vide his Judgment dated 5-7-2000 to undergo imprisonment for life with the further direction to pay Rs,50,000 as compensation to the legal heirs of the deceased in a private complaint filed by Muhammad Sharif respondent No,2, in default thereof six months R I under section 302(b), P.P.C.
With the benefit of section 382-B, Cr.P.C.
2. The facts of the case are that Muhammad Zulfigar (since P.O.) made a statement before the police that on 8-6-1990 at about 2-30 p.m. He along with Muhammad Rafique (deceased) was going to Noshera Virkan by a motorcycle. When they reached within the area of Mangokey, near a Pully, a person who was wearing Shalwar Kameez, and was wheatesh in colour and was smart, of the age of 22/23 years gave signal to stop the motorcycle, whereupon Muhammad Rafique (deceased) stopped the motorcycle. That three other persons were also standing nearby. That a person whose description has been given by Hafiz Muhammad Zulfiqar in his statement, fired at Muhammad Rafique (deceased), which hit him on his neck and that Muhammad Zulfiqar and Rafique fell down. That the above said person fled away on seeking a bus coming from Noshera Virkan. Muhammad Rafique died at the spot. On the above said statement F.I.R. (Exh.P.E) was lodged. Thereafter, on the same day, Hafiz Muhammad Zulfiqar got recorded his supplementary statement, wherein he has nominated Ashfaque, Mithu, Sakhawat and Tariq alias Tari as the accused persons.
3. Initially, the case was registered vide F.I.R.No,103 of 1990 against four unknown persons on the statement of Hafiz Muhammad Zulfiqar, who was first cousin of Muhammad Rafique deceased on 8-6-1990, later on, on 29-6-1994, Muhammad Sharif father of the deceased filed a private complaint against five persons, namely, Hafiz Muhammad Zulfiqar complainant of the F.I.R. (now P.O.), Ashfaque, Mithu, Sakhawat and Tariq alias Tari. In the complaint case, Hafiz Muhammad Zulfiqar and Mithu were declared proclaimed offender, three accused, namely, Tariq alias Tani, Sakhawat and Ashfaque (present appellant) were tried, Tariq alias Tani and Sakhawat were acquitted from the charge while the present appellant, namely, Ashfaque was convicted and sentenced as mentioned above.
4. It may be noted here, that on the last date of hearing when this matter came up for hearing before me it came to my knowledge that appellant had been convicted on a. Complaint filed by Muhammad Sharif respondent No,3. In the interest of justice, I directed the office to issue notice to Muhammad Sharif with the further direction to arrange for his representation before this Court because he was an aggrieved person. Notice was sent to him but neither Muhammad Sharif nor anybody on his behalf has entered appearance today, so I have left with no other option but to proceed with the case.
5. Prosecution in order to prove its case produced 9 witnesses in all, thereafter, learned counsel for the complainant tendered in evidence order sheet of Honourable High Court Exh.P.G then the statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence and claimed false implication.
6. Learned counsel for the appellant submits that there is no eye-witness in this case, that Muhammad Boota P.W.1 is the witness of extra-judicial confession but the same is joint one, that he did not get recorded his statement before the police and also not informed the police about the extra-judicial confession of present appellant and his co-accused, that according to aid witness, the said extra-judicial confession was made three years after the occurrence, that Muhammad Sadiq P.W.2 is also related to Muhammad Sharif complainant/respondent No,2 and according to him, except Ashfaque, the four accused mentioned above came to him and made extra judicial confession, this was also done according to him 3-1/2 years after the occurrence, that Muhammad Sharif P.W.3 is the complainant/father of the deceased, he does not take the name of Ashfaque, that Muhammad Shafiq P.W.4 is real brother of the deceased, he also does not incriminate the appellant in this case except that then he went to the house of Hafiz Muhammad Zulfiqar complainant of the F.I.R., Ashfaque appellant was present there, he says only this much against the present appellant. Learned coursel submits that there is no direct evidence against the appellant which connects the present appellant with the alleged commission of offence, that as far as, Azhar Ali, F.C. P.W.7, is concerned, he was the witness of recovery of 7 MM rifle at the pointation of the appellant and according to him, the said recovery was effected two months after the occurrence, that no public witness was mentioned and the place was accessible to the public, that no crime empty was recovered from the spot, that on 23-8-1990 the Investigating Officer submitted an application to the Magistrate for the recovery of fire-arm from the appellant while the recovery memo. Shows that it was dated 19-8-1990 which falsifies the prosecution case. That no case is made out against the appellant and he is entitled to acquittal.
7. On the other hand, learned State counsel submits that according to him the only evidence against the appellant is recovery of 7 MM rifle. He is unable to support the prosecution case.
8. I have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. In the instant case, there is no direct evidence against the appellant. Initially, a case F.I.R. No .163 dated 18-9-1990 under section 302/34, P.P.C. Was registered in Police Station, Noshera Virkan on the statement of Hafiz Muhammad Zulfiqar son of Miraj Din, who was the first cousin of the deceased against some unknown persons, four years after registration of the F.I.R., Muhammad Sharif, father of the deceased filed the instant complaint against Hafiz Muhammad Zulfiqar complainant of the F.I.R. (now P.O.), Ashfaque, (present appellant) Mithu, (now P.0), Sahhawat and Tariq alias Tari. This is a case in which capital punishment can be awarded to the appellant, though the appellant has been convicted to undergo imprisonment for life but there is no direct evidence except the joint extra-judicial confession before Muhammad Boota P.W.1, that's, 3-1/2 years after the occusrrence. Muhammad Sadiq P.W.2 is also related to the deceased, he does not take the name of Ashfaque appellant as one of the respondent and accused in this case, Muhammad Sharif, P.W.3 complainant/ father of the deceased also does not take the name of appellant as one of the accused, Muhammad Shafique P.W.4, real brother of the deceased only stated this such that when he was present in the house of Hafiz. Muhammad Zulfiqar, P.O. Ashfaque along with accused mentioned above were present in his house, however, he did not incriminate Ashfaque appellant in his statement before the learned trial Court. As far as, recovery is concerned, Asghar Ali, F.C: P.W.7 had appeared as recovery is concerned, Asghar Ali, 1-.0 P.W:7 had appeared as recovery witness, according to him recovery was effected on 19-8-1990 but on 23-8-1990, the Investigating Officer submitted an application before the Illaqa Magistrate for the physical remand of appellant in- order to effect the recovery, I have gone through the said remand paper dated 23-8-1990 which is at page 29 of the judicial file which shows that on the said date Zulfiqar Ahmad, S.H.O. Of concerned police station requested the learned Magistrate that he should be granted physical remand from 23-8-1990 to 9- 8-1990 in order to get the recovery effected on the pointation of the appellant, this shows that bogus recovery was effected on pointation of the appellant four days prior to getting the remand.
9. After' having gone through the evidence recorded by the learned trial Court and the submissions made by learned counsel for the parties I am of the considered' opinion that this is a case in which there are so many douots and the benefit of which always goes in favour of the accused not as a matter of grace but as a matter of right because there is no direct evidence against the appellant except the mentioned above. So, while extending illauladad v. Emperor AIR 1925 the same benefit, I accept this appeal, set Lah. 426; Ghulam Rasool v. State 1988 aside the conviction and sentence recorded SCMR 557 and Mahmood Ahmad v. State against the appellant by the learned trial 1995 SCM R 127 ref. Court. He is in jail and he shall be released forthwith if not required to be detained in any other case.