' Appellant Muhammad Manik alongwith 7 other accused was tried in case F.I.R. No,189 dated 30-8- 1995 registered under sections 148/302/149/109, P.P.C. At Police Station Midh Ranjha, by the Additional Sessions Judge, Sargodha' who vide judgment dated 28-9-2000 while acquitting the co-accused, convicted the appellant under section 302(b), P.P.C. And sentenced him to imprisonment for life and to pay Rs,50,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default whereof to undergo six months' SI' Benefit of section 382-B, Cr.P.C. Was also extended to him.
2. Challenging his conviction and sentence the appellant filed Criminal Appeal No,1449 of 2000 whereas the complainant filed Criminal Revision No,893 of 2000 seeking enhancement of sentence of the resplendent. Both these matters are being disposed of together by this judgment.
3.The story of the prosecution as narrated in the F.I.R. Is that on 30-8-1995 at about' 4-00 p.m.
Complainant along with deceased Sukha, other inmates of the house and one guest Muhammad Bakhsh was sleeping in the verandah of the house of the accused. At Fajjar prayer time his mother Mst. Nizami P.W. Got up to offer prayer, who after having lit a Lantern hung the same against the piller of the verandah. In the meantime, at 4-00 p.m. Accused, Iqbal, Riaz and one unknown person, all armed with .12 bore guns entered into their courtyard, his mother shouted, as to who they were.
On hearing the shouts the complainant himself Muhammad Bakhsh P.W. And Sukha deceased woke up. All the accused went to the cost of Sukha deceased. Riaz raised a Lalkara that they had come to avenge the murder of their uncle `Bati' and caught hold the arms of Sukha the unknown person caught hold the legs of the deceased. Whereas lqbal accused while raising Lalkara that he had come to take the revenge of murder of his uncle fired a shot from his gun at Sukha, which hit Sukha on the upper and right side of the chest going deep into chest cavity from tip of right shoulder. The complainant further alleged that along with the above said accused, three other accused including Manak appellant armed with .7 MM Rifle also came in the compound of the courtyard and Manak appellant also shouted a Lalkara that he had come to take the revenge of murder of his father and nobody should come forward. Statedly the complainant by scaling over the wall of the Haveli saved his life, he identified the accused in the light of Lantern and could also identify the unknown person if produced before him. After the occurrence the accused decamped while firing in the air. The complainant again came back to his Haveli and attended his father Sukha, but he succumbed to the injuries at the spot. The complainant further alleged that two days before the occurrence, P.W. Maula Bakhsh and Muhammad Nawaz came to him after sun set and told him and his father (the deceased) that at about 4-00 p.m. They had heard a conspiracy of murder of Sukha hatched by Muhammad Bakhsh, Nauman, Sarfraz, Iqbat and Muhammad Khan at the Dera of Muhammad Bakhsh.
' The motive for the crime was that about seven years ago Bati father of Iqbal and Manak accused was murdered at the hands of the complainant party and in that murder case Sukha deceased and complainant were challaned but ultimately acquitted by the Honourable High Court. Out of this grudge the accused had committed the murder of his father.
4. The facts of this case show that the complainant also made supplementary statement on 30-8- 1995 in which he stated that he became unconscious due to murder of his father and had come to senses. He further stated that six armed persons entered into the compound of his house.
Muhammad Ali was armed with .7 MM rifles and two unknown persons were also armed with 7 MM rifles. Manak, Riaz, Faiz while armed with .12 bore guns also came there. Riaz accused raised Lalkara that he had come to avenge the murder of his uncle Bati and caught hold arm of Sukha and pressed him on cot. Faiz caught hold his legs. Manak accused fired from his gun at Sukha, due to which he died at the spot. He also alleged that the murder of his father was committed with the abetment of Muhammad Khan.
5. The matter was reported to Walayat Hussain Shah, S.I. P.W.11 who after formal investigation submitted the challan before the trial Court.
6. During the trial prosecution produced 14 witnesses to prove the charge against the appellant and his co-accused.
7. Dr. Akhar Mehmood Chaudhry, P.W.1 conducted the post-mortem examination on the dead body of Sukha deceased and observed the following injuries thereon:-
(1) A fire-arm entrance wound with inverted edges, with shape described on the post mortem report on upper end of right of chest going deep into chest cavity 6 c.m. From tip of right shoulder.
(2) A fire-arm wound of exit with everted edges, 11 c.m. x 7 c.m. x communicated with wound of entrance, flash coming out of the wound.
' In the opinion of doctor death occurred due to shock and haemorrhage caused by injury No,1 which was fatal in the ordinary course of nature.
8. Abdul Ghafoor Patwari P.W.2 prepared site plan Exhs.P.D and PD/1. Massan P.W.3 witnessed the recovery of gun P.1 along with two live cartridges P.2/1-2 at the instance of appellant Manak.
Statedly these articles were taken into custody vide memo. Exh . P. E. Muhammad Akram P. W .4 took the dead body to the mortuary for postmortem examination and after the same produced last worn clothes of the deceased before the Investigating Officer. Anar P.W.5 was present when the spot was inspected by the police officer. In his presence blood, stained earth along with 4 empties of 7 MM rifle P.5/1-4 were taken into possession vide memo. Exh. P. F. Statedly from the spot the police also took into possession blood-stained Khais P.6 and cot (charpai) P.7 vide memo. Exh.PG.
Muhammad Nawaz P.W.6 narrated about the conspiracy hatched by Muhammad Bakhsh, Nauman, Sarfraz, Iqbal and Muhammad Khan accused. Statedly, he informed the deceased about this fact about two day,-; before the occurrence.
9. Muhammad Akbar P.W.7 (son of the deceased), Mst. Nizami (widow of the deceased) P.W.8 and Muhammad Bakhsh P.W.9 narrated about the ocular account and have supported the prosecution case in verbatim. Qarib Ali Shah, Inspector P.W.10 along with Walayat Hussain, S.I. P.W.11 conducted the investigation of this case. Iftikhar Ahmad, F.C.P.W.12 produced the daily diary register of Police Station Midh Raniha for the period from 3-9-1995 to 4-10-1995 showing the entry of report No,9 dated 4-9-1995 with regard to the return of S.I. Walayat Hussain to the police station after investigation of case F.I.R. No,189 Dated 30-9-1995 under sections 148/302/149/109, P.P.C., Police Station Midh Ranjha. The certified copy of the same is also placed on record as Exh.P.W.12/A.
10. Learned trial Court also examined the appellant and his co-accused under section 342. Cr.P.C.
All the accused persons denied the charges and pleaded innocence: None of the accused made any statement under section 340(2), Cr.P.C. However, one Muhammad Nawaz Naib-Moharrar was produced as D.W..1 who produced the list of cases Exh.D.W..1/A registered against Sukha deceased.
11. Learned trial Court after appraisal of evidence available on record convicted and sentenced the appellant as narrated in the earlier part of the judgment.
12. Learned counsel for the appellant submitted that the deceased was done to death during the dark hours of the night when the witnesses were asleep and the appellant was involved in this case due to his previous enmity with the complainant party; that the prosecution evidence had already been disbelieved qua seven co-accused persons and the same evidence cannot be relied upon qua the' appellant in the absence of any corroborative piece of evidence; that the recovery of gun P.1 at the instance of the appellant in the absence of any report from the offence of Forensic Science Laboratory would be of no value and would not render any corroboration to the ocular account; that the medical evidence contradicted the ocular account; that in the circumstances the false involvement of the appellant in this case in lieu of the previous enmity between the parties could not be ruled out. Conversely learned counsel for the complainant as well as the State while supporting . The impugned judgment, vehemently opposed the appeal.
13. Heard. File perused.
14. Admittedly this occurrence took place during the dark hours of the night in the verandah of the house of the deceased. Statedly the deceased along with other inmates of the house and one guest was sleeping at the time of occurrence. At the time of occurrence a Lantern was kindling and the appellant and his co-accused were identified in the light of the same. Not only that the identification of assailants in the light of Lantern, in the circumstances Of this case, is doubtful but also this Lantern was never taken into possession during the investigation by the police nor the presence of this Lantern has been mentioned in the site plan Exh.P.K prepared by the Investigating Officer nor the same is shown in the site plan Exhs.P.D and PD! 1 prepared by the Abdul Ghafoor Patwari P.W.2. During the cross-examination the said Patwari admitted that the witnesses did not point out any place where the Lantern was hanging at the time of occurrence.
15. Initially case of the prosecution as narrated in the F.I.R. Is that lqbal and Riaz accused being armed with .12 bore guns along with Other unknown persons who were also armed with tire-arms entered in the house of the deceased. Riaz accused and unknown persons held the deceased whereas lqbal accused made fire shot hitting the deceased on the right side of neck. In the first statement appellant statedly came at the spot after the fire was made by Iqbal accused but the complainant while making supplementary statement before the police as well as before the trial Court changed the story and narrated that the appellant alongwith other accused entered into the house of deceased and it was the appellant who tired at the deceased. The witness was duly confronted with previous statement on this issue during the cross-examination. The improvement in the statement made by the complainant assigning the main role to the appellant is obviously false and no reliance can be placed thereon. It is well-settled that any statement of the first informant recorded during the investigation by police would neither be equated with first information report nor read as part of it.(Falak Sher alias Shera v The State (1995 SC.M.R 1350)
Because of this improvement, the other eyewitnesses have also ascribed the main role to the appellant, their evidence in respect of the appellant is also not trust worthy.
16. According to the prosecution case during spot inspection certain crime empties were recovered. Similarly during investigation allegedly the appellant also led to the recovery of .12 bore gun P.1. It is interesting to note that crime weapon was never sent to the Forensic Science Laboratory for its comparison with the said crime empties. In this view of the matter, the recovery evidence relied upon by the prosecution is of no value and cannot be taken into consideration as corroborative piece of evidence.
17. According to the prosecution's own case at the time of occurrence the deceased was held from both the ends by two co-accused of the appellant whereas the appellant made fire hitting the deceased on the chest below the right side of neck. Diction of statements of all the eye-witnesses as well as the site plan prepared by Abdul Ghafoor Patwari P.W.2 are sufficient to give an impression that this fire was made from a close range. It has been observed that in the post- mortem report there are no marks of burning or blackening around the wound which usually occurs when the tire is made from a close range. In this view of the matter I see force in the arguments of the learned counsel for the appellant that the medical evidence also contradict the ocular account.
18. The motive for this occurrence as narrated in the F.I.R. As well as narrated during the trial is that father of the appellant was murdered by the deceased and complainant. They were awarded death sentence by the trial Court but in appeal before the High Court they were acquitted. In the light of this enmity between the parties:" and above discussed circumstances of this case the false implication of the appellant in this case cannot be ruled out. Even otherwise the entire prosecution case has already been disbelieved by the trial Court qua seven co-accused of the appellant and to replay the same evidence for convicting appellant on the charge of capital sentence, one must look for strong corroborative piece of evidence but unfortunately in this case no such evidence is available on record in support of the ocular account.
19. In the light of above discussion it would not be safe to uphold the conviction of the appellant and he is entitled to get the benefit of doubt. Accordingly, the instant appeal is accepted, the conviction and sentence of the appellant is set aside and he is acquitted of the charge. He shall be released forthwith, if not required in any other case.
20. In the light of above discussion I see no force in Criminal Revision No,893 of 2000 filed by the complainant seeking enhancement of sentence of the appellant and the same stands dismissed.