' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,324 of 1996 filed by Safdar Hussain, appellant who was convicted under section 302, P.P.C. And awarded death sentence with further direction to pay Rs,25,000 as compensation and in default thereof to undergo S.I. For six months by learned Additional Sessions Judge, Gujrat vide judgment dated 8-4-1996.
' Murder Reference No,182 of 1996 for confirmation of death sentence or otherwise shall also be replied through this single judgment.
2. Occurrence in this case had taken place at L00 a.m. On 21-6-1996 at a distance of 4 miles from Police Station Sadar, Lala Musa, District Gujrat while the matter was reported to the Police at 11-20 a.m. The same day by. Basharat Ali, complainant and the formal F.I.R. Exh.PG was also recorded on the same day.
3. Briefly stated the facts of the case are that Basharat Ali, the complainant at the time of lodging the F.I.R. Was posted at Police Lines, Gujrat and on the same day that is 8-4-1996 at 7-30- a.m.
Muharrir of the Police Lines deputed him for production of the accused before the Court of Resident Magistrate, Lalamusa. At the time of occurrence, the complainant was accompanied by Khawaar Rashid, Constable, Hamid Imtiaz, Constable, Zafar, Constable, and Tariq Mehmood Constable. Out of the aforesaid Police Officials, Zafar Iqbal was delivered rifle G-3 along with two magazines by the Muharrir of the Police Lines on the asking of the complainant. Thereafter, they took accused Muhammad Anwer, Muqadas, Bashir Ahmad, Mushtaq, Bashir Ahmad son of Muhammad Din and Muhammad Hanif who were involved in different cases from District Jail Gujrat under the supervision of the complainant along with the Police Officials and then while boarding on an official vehicle reached the Court of Resident Magistrate, Lalamusa at about 9.00 a.m. Thereafter, the vehicle left for Kharian in which the other accused were sitting. According to the complainant, after getting himself free on account of adjournments in the cases of the accused when in the meanwhile Muhammad Aslam, Sajjad Haider Shah who were known to the complainant personally at the time when he was posted at Police Station Lalamusa came in the Court and during their presence in the Court they had a conversation with Muhammad Anwer who were forbidden by the complainant and sent out of the Court. It was alleged by the complainant that at that time, it was raining. Accused Muqadas who was in custody told the complainant that the opposite party was roaming around the Court premises and that he (accused) was in danger. The complainant thought that as the vehicle from Kharian shall reach late, he while standing the road stopped a van which was coming from Kharian side and was without any passenger. The complainant asked the driver of said vehicle that he was having dangerous criminals, so he has to transport them to Gujrat. The complainant along with other Police Officials and the accused boarded in the van and when reached near United Bank Limited, Kulawal Syeddan, a brown colour car while over taking their vehicle stopped them and all of a sudden from the said car Muhammad Aslam armed with rifle .7 M.M, Muhammad Akram armed with rifle .7 M.M Safdar Hussain armed with rifle .7 M.M, Abbas Shah armed with a carbine came out of the said car and then Muhammad Anwar accused who was in custody at once took Zafar Iqbal Constable who was carrying rifle G-3, into his Jhappa on account of their pre-planned program. In the meanwhile, other persons debarring from the said car opened the door of the van and entered into the same who were' then dropped by the complainant along with his companions and then the complainant himself de boarded the wagon in order to prevent the abscondance of Muhammad Anwer and other accused while Muhammad Anwar accused was still holding Zafar Iqbal, FC into his Jhappa. In the meanwhile, the accused started firing at the complainant party. One of the fires shot by Abbas Shah at Zafar Iqbal, FC hit on his right thigh and at the time Abbas Shah while coming forward snatched rifle G-3 along with magazine from Zafar Iqbal, FC who was held in a Jhappa by Muhammad Anwer, accused and then started firing with rifle G-3. During the firing one shot fired by Safdar with his .7 M.M rifle hit Jamshed Akhtar, FC on his left flank and pierced through the right flank. According to the complainant, Jamshed Akhtar then fell down and became unconscious. Thereafter, the companions of the complainant in order to save themselves took shelter behind the wagon due to firing by the accused. All the assailants then snatched Muhammad Anwer accused who was in custody from Zafar Iqbal, FC who was in injured condition and entered into the Abadi of the village. The complainant left Khawar Rashid to take care of the remaining accused and along with the other Police Officials chased the accused who could not be found. Khawar Bashir, FC along with other Police Officials then left for Gujrat while taking the injured in the wagon and in the way, Jamshed Akhtar, FC succumbed to his injuries.
4. After registration of the F.I.R., Safdar Ali, S.I. (P.W.12) took over the investigation; proceeded to the place of occurrence; prepared rough site plan Exh.P.M; secured blood-stained earth vide memo.
Exh.PJ; also took into possession the vehicles vide memos. Exh.PK and Exh.PL; in the hospital prepared the injury statement and inquest report Exh.P0 and Exh.PP of the dead body of Jamshed FC; also prepared injury statement Exh.PN of Zafar Iqbal; then the investigation was taken over by Muhammad Younas Inspector (P.W.14) who on 12-10-1992 arrested Muhammad Akram, accused who was PO; this officer also arrested Ghulam Abbas and Safdar Hussain accused on 25-6-1992; similarly Sajjad Shah accused was arrested by him on 30-6-1992; thereafter Farooq Hussain Inspector (P.W.16), he along with D.S.P arrested Safdar Hussain along with a .7 MM rifle P.6 which was secured vide memo. Exh.PW1, Safdar Hussain accused also on the same day, led to the recovery of rifle G-3, P.7 along with live cartridges which was snatched by him during the occurrence which was taken into possession vide memo. Exh.PH and after completion of the remaining formal investigation, Ghulam Abbas, Sajad Hussain, Safdar Hussain and Muhammad Akram were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 17 witnesses in all; then the learned D.D.A. Tendered in evidence report of the Chemical Examiner Exh.P.U1 report of the Serologist Exh.P.N and closed the prosecution case; thereafter statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence. -However, after conclusion of the trial, all the accused were convicted and sentenced, but except the present appellant namely Safdar Hussain Shah, all the remaining three accused became PO.
6. Learned counsel for the appellant after having read the entire prosecution evidence and other material available on record submits that the F.I.R. Cannot be lodged with such promptitude as is alleged by the prosecution; no independent witness has been produced by the prosecution; Muqadas accused who had shown the apprehension of his being attacked by the opposite party was never produced by the prosecution; no blood stains were taken into possession from the van in which the occurrence had taken place; driver of the van was never produced by the prosecution; none of the under trial prisoner was produced by the prosecution; conduct of the complainant was very dubious; he neither informed the Resident Magistrate about the apprehension expressed by Muqadas accused nor established contact with police station which was at a distance of 11/2 kilometers from the Courts nor the jail authorities he under the law had no authority to take the under trial prisoners in a private van; Muqadas who was the first target of the complainant party was never given any injury; there is no sign of any bullet injury on the van; the complainant had admitted that he knew only Abbas and none else. Inspector Muhammad Younas, P.W.14 has shown the arrest of the accused on 25-6-1992 while according to other P.Ws., accused were arrested on 21-6-1992; no crime empty was recovered from the spot although according to the complainant, 10/15 fires were shot, there is conflict between the ocular account and the medical evidence, as far as statement of Zafar Iqbal injured P.W.Is concerned, that is also false and that the case of prosecution is full of doubts. Concluding his submissions, learned counsel submits that the prosecution having failed to prove its case against the appellant, the appellant is entitled to acquittal.
7. On the other hand, learned counsel for the State submits that it was a case of promptly lodged F.I.R.; ocular account is fully corroborated by the medical evidence and specially by the statement of injured P.W. Zafar Iqbal and that the prosecution has been successful in proving its case against the appellant to its hilt. He in toto supports the judgment of the trial Court.
8. We have heard learned counsel for the parties and have gone through the record. In the instant case, according to F.I.R., on 21-6-1992 the complainant Basharat Ali, Head Constable was present in the Court of Resident Magistrate, Lalamusa, two persons namely Muhammad Aslam and Sajjad Haider Shah came in the Court and talked to Muhammad Anwer, under trial prisoner, according to the complainant he reprimanded them, another under trial prisoner namely Muqadas (not produced) complained to the complainant that his opposite party was roaming outside the Court premises and his life was in danger, then on his own, the complainant stopped a van bearing registration No,125-156 Karachi which was coming from Kharian side, told the driver of the said van that he had dangerous under trial prisoners who had to be taken back to Gujrat and then boarded in the van along with under trial prisoners. It is to be noted that Basharat the complainant who was a Head Constable after listening the complaint of Muqadas another under trial prisoner but not produced, did not inform the Resident Magistrate. He nor established any telephonic contact either with the jail authorities or the police station which was at a distance of 11/2 kilometers from the Court of Resident Magistrate. He did nothing in this regard. He was not legally authorized to take the under trial prisoners to jail in a private van. He should have waited for the official vehicle which are used to transport the under trial prisoners. The explanation given by the complainant that the official vehicle had gone to Kharian and might have taken time is far fetched. In the Courts, there must be a Bukshi Khana where the under trial prisoners are detained for appearance before the Courts and thereafter they are taken to jail back. The method adopted by the complainant shows dubiousness of his character and his involvement in the occurrence. According to the complainant, apprehension to the life was shown by Muqadas another under trial prisoner for the safety of which the complainant adopted illegal measures but that Muqadas was never cited or produced by the prosecution. There were also other accused in the van in which the occurrence took place namely Bashir Ahmad, Mushtaq, Bashir Ahmad son of Muhammad Din, and Muhammad Hanif, but none of them was produced to corroborate the statement of the complainant. This act on the part of the prosecution casts doubt on the veracity of the prosecution story.
9. According to complainant, fires were shot from a distance of 10/11 feet which statement is belied by Dr. Muhammad Aslam (P.W.11) who conducted the post-mortem examination on the dead body of Jamshed Akhtar by stating that there was blackening around injury No,l. The blackening according to medical jurisprudence can come if the fire is shot from a distance of 1-3 feet. Same is the position of Zafar Iqbal, injured P.W. He was medically examined by Dr. Allah Bukhsh Ranjha (P.W.5) who also noted blackening/around injury No,l. The doctor in cross-examination admitted that fire was made from a very close range which is in conflict with the ocular account provided by the P.Ws. It was also alleged by the complainant that 15/20 shots were fired by the accused at the spot but not a single empty was recovered from the spot. None of the - under trial prisoners who were travelling in the van, according to the prosecution, was injured. In fact Zafar Iqbal injured P.W.
Had toed the lien of complainant Basharat to save him. Muqadas at whose apprehension the under trial prisoners were being taken to jail in a private vehicle was the most important witness of the prosecution but he was never produced.. Similarly, the driver and conductor of the van in which the under trial prisoners were being taken to Gujrat were never produced. On the other hand, the version given by the appellant in his statement under section 342, Cr.P.C. While replying to Question No,10 which is reproduced below seems to be more plausible and nearer to the truth:- "Muhammad Anwer under trial (since dead) was my real brother whereas Muhammad Aslam and Muhammad Akram sons of Rehmat Khan are my brothers in law. Muhammad Anwer my brother (since dead) was involved in a case for the murder of Mian Muhammad Ashraf resident of Chakori Beelewaal, Basharat Ali, H.0 had very close friendly relations with their heirs 'of Mian Ashraf named above, who are also Gadi Nasheen of a religious shrine. Basharat Ali. P.W. Had conspired with the heirs of Mian Ashraf deceased to stage the drama of fleeing away of Muhammad Anwer (since dead) my brother from police custody by handing over Muhammad Anwer to the legal heirs of Mian Ashraf and in this way to murder him. Police also murdered Muhammad Aslam my brother in law and in order to pressurize me pursue any criminal case for their criminal act, I have been falsely involved in the instant case."
10. On the same set of evidence, Muhammad Akram and Sajjad Hussain, co-accused of the appellant were acquitted by the trial Court.
11. As far as recovery of G-3 rifle at the instance of the appellant is concerned, since no empty was recovered from the spot,/hence mere recovery of rifle is of no avail to the prosecution. Occurrence took place, according to the complainant, at 11.00 a.m.On 21-6-1992 and the F.I.R. Was recorded at 11-20 a.m. With a difference of 20 minutes only when the Police Station was at a distance of 4 miles from the place of occurrence. Within such a short span of time even the F.I.R. Cannot be written. In our view, the F.I.R. Was got recorded after due consultation and deliberation.
12. From the above facts and the circumstances and the critical analysis thereof on the touchstone of judicial precedents, the irresistible conclusion which we have drawn is that the case if pregnant with doubts and the prosecution has miserably failed to prove its case against the appellant.
Resultantly, by accepting this appeal, conviction and sentence recorded against Safdar Hussain Shah appellant by the trial Court is set aside. His death sentence is NOT confirmed. Murder Reference is replied in the NEGATIVE. Appellant in jail. He shall be released forthwith, if not required to be detained in any other case.