' This judgment will dispose of Criminal Appeal No,1096 of 1999 filed by Muhammad Aslam, appellant, who was convicted and sentenced by learned Sessions Judge, Faisalabad vide his judgment dated 21-10-1999 to undergo imprisonment for life under section 302(b), P.P.C. With the direction to pay Rs,100,000 as compensation to the legal heirs of the deceased under section 544- A, Cr.P.C. In default six months' S.I. With the benefit of section 382-B, Cr .P. C
2. Occurrence in this case had taken place at 6-00 a.m. On 31-12-1997 within the jurisdiction of Police Station Saddar Samundari, at a distance of 23 miles away while the matter was reported to the police at the same day at 1-15 p.m. Through complaint Ex.P.D. By Wali Muhammad complainant and the formal F.I.R. Ex.P.E was recorded by Zafar Ullah H.C. In the Police Station at 2-30 p.m. On the same day.
3. Brief facts of the case as disclosed by Wali Muhammad complainant are that he is father of two sons and seven daughters. Mst. Rehana is the eldest daughter of the complainant and she was married to accused Aslam 10/12 years before the occurrence. The deceased Muhammad Tariq is son of complainant Wali Muhammad. It is alleged that accused Muhammad Aslam was not of good character and deceased Tariq suspected that the accused Aslam had developed illicit relation with his younger sister and hence, he was not on speaking terms with accused Aslam and he had prohibited the accused Aslam from visiting his house. It is alleged that few days before the occurrence a quarrel had taken place between deceased Tariq and accused Aslam at Adda Muradwala. On 30-12-1997 at night Wali Muhammad , Muhammad Sadiq and deceased Tariq slept in the Baithak.. On 31-12-1997 at about 6-00 a.m. The P.Ws got up on hearing a report of fire and saw accused Aslam running away outside the door of Baithak and the blood was coming out of head of the deceased Tariq and the deceased was rolling on the cot in blood. The complainant Wali Muhammad and Muhammad Sadiq went outside the Baithak and Muhammad Nazir met them and told them that he had seen the accused Aslam running away after coming out of the Baithak.
The P.Ws went over deceased Tariq who succumbed to the injury. According to the F.I.R., the complainant remained silent and did not inform the police as his daughter was married to accused Aslam.
4. After receiving the information about the occurrence Abdul Rashid S.I. P.W.10 went to the place of occurrence where complainant Wali Muhammad recorded his statement Exh.P.D. Then prepared the injury statement Ex.P.B. And inquest report Ex.P.C, inspected the spot, collected blood-stained earth which was taken into possession vide memo. Ex.P.G, then took into possession the mattress P.6, pillow P.7, white cloth P.8 and cot P.9 vide memo. Ex.P.J. On 16-1-1998 he arrested accused Muhammad Aslam, who on 23-1-1998 got recovered pistol P.10 which was taken into possession vide memo., Ex.P.K. And after completion of the investigation the challen was submitted against the accused before the trial Court to face the trial.
5. At the trial, prosecution in order to prove its case produced 10 witnesses in all, thereafter learned DA tendered in evidence reports of Chemical Examiner Exh:P.N. Serologist Exh.P.Q. Forensic Science Laboratory Ex.P.R. And closed the prosecution case then the statement of the appellant was recorded under section 342, Cr.P.C. In which he pleaded innocence and claimed falsely implication.
6. After having gone through the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record, learned counsel for the appellant submits that there is a delay of eight hours in lodging the F.I.R. And is unexplained that in fact, it was an un witnessed occurrence and it was blind murder, that F.I.R. Was lodged at the spot after the inquiry, that material improvements were made by the prosecution witnesses before the learned trial Court in order to term themselves as an eye-witness specially the complainant, that Anwar-ul-Haq acquitted accused was not named in the F.I.R., he Was introduced at the trial stage, that story of the prosecution is not a plausible and convincing one, that wall of the house was 15/16 feet height and nobody could scale over the wall, that Mst. Rehana wife of the complainant has also appeared as D. W.1 who was exonerated the appellant in the instant case and she has also entered into a compromise. With the appellant. He lastly, submits that prosecution has failed .To prove its case against the appellant beyond any, shadow of doubt.
7. On the other hand, learned State counsel candidly concedes that it was an un witnessed occurrence and it was a case of blind murder, that there is a contradictory statements of the complainant one in the 'F.I.R. And the second before the learned trial Court. She submits that she is not in a position to support the judgment of the learned trial Court.
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, occurrence had taken place at 6-00 a.m. On 31-12-1997 when it was dark, police station was at a distance of 23' miles but Police Post as admitted by the Investigating Officer was, at a distance of 1/, k.m. Nobody went to the police amongst the eye-witnesses to lodge the report unless the police reached at the spot at 1-00 p.m.
The Investigating Officer has admitted that F.I.R. Was recorded at the spot after inquiry. According to, the F.I.R., the complainant had stated that after one fire shot he woke up and saw accused/appellant running away outside the door of Baithak but he did not see any weapon in the hands of the appellant. The anxiety of the complainant which can be seen from the fact that he did not mention in the F.I.R. That he saw the appellant firing at the deceased but before the learned trial Court during cross-examination he had stated that he saw the accused-appellant' firing from pistol on the right side of head of the deceased. He has also made other lot of improvements.
Muhammad Sadiq P.W.6 is cousin of the deceased, he is resident of the place which is 16 miles away from the place of occurrence, his preseme at the spot is not acceptable. The other witness Muhammad Nazir P.W.7 is resident of 1 1/2 killa away from the place of occurrence. No person from the adjacent houses has been cited or produced before the learned trial Court. All the witnesses have made material improvements in their statements in order to Make the case forcibly against the appellant to get him conviction. He was son-in-law of the, complainant. Mst. Rehana is his wife.
According to the statement of Mst. Rehana on the night of occurrence, Aslam accused/appellant was in her house and this Court is of the also opinion that why Aslam accused/appellant would go to the house of the complainant when his own wife and children were there. This story of the prosecution is not plausible motive given in the F.I.R. That Aslam had illicit relations with younger sister of Rehana his wife, that has not been proved, that sister of Rehana was never interrogated by the Police. Mst. Rehana D. W.1 wife of the appellant has not supported the motive in this case, she has also stated that deceased was a person of bad character and vagabond. Anwaar-ul-Haq acquitted accused was not mentioned in the F.I.R., he was introduced before the learned trial Court, he was acquitted by the learned trial Court and rightly so. It is also important to note here, that in column No,3 of the inquest report, no time was mentioned by the Investigating Officer when he received information about the death. In column of death of the postmortem report there is also, no mention of any date and time of the occurrence. According to the prosecution, the occurrence had taken place at 6-00 a.m. On 31-12-1997, postmortem examination was conducted at 10-00 a.m.
On 1-1-1998, the duration given by the doctor between death and postmortem within 48 hours. It also does not fit in the prosecution story. There are doubts in the prosecution case. Crime empty according to the Investigating Officer was taken into possession on the day of occurrence.
Appellant according to the prosecution case was arrested on 16-1-1998, recovery of pistol P.10 was effected on 23-1-1998 due to lack of data, there is no positive report of Fire-arms Expert which is Exh.P.R., even both the parcels were sent to the firearm expert on 23-2-1993. The version of the appellant as given by him in reply to question No,9 of his statement recorded under section 342, Cr.P.C. Is reproduced below:- - "Before the occurrence, P.W. Muhammad Sadiq had demanded the hand of daughter of complainant Wali Muhammad for marriage with his brother Wali Muhammad aged about 55 years and I had my wife opposed the proposal and that annoyed P.W.Sadiq and at his instance I have been falsely named in the F.I.R. After the occurrence, the complainant was pressurised by Mst. Asia, Muhammad Hussain father-in-law of complainant and P.W. Sadiq to name me in the F.I.R. It was done to avenge the previous enmity. My wife Rehana had also protested about my involvement in the case. Till 4/5-00 p.m. The Thanedar was not agreeable for incorporating my name in the F.I.R. At 4-00 or 5-00 p.m. I, Babar, Majeed, Maqbool etc. Were taken by the Thanedar to police post and then after accepting the money the Investigating Officer recorded my name in the F.I.R.
' If both the versions one put forward by the prosecution and other put forward by the appellant, the version mentioned above by the appellant seems to be more plausible and convincing-one.
After having heard the learned counsel for the parties, going through the evidence on record and specially the statement of the learned State counsel, which I think she has rightly stated before this Court that prosecution is not in position to prove its case. I accept this appeal, set aside the conviction and sentence recorded against the appellant by the learned trial Court. He is on bail and he shall be discharged from his bail bonds. Disposed of accordingly.