' This judgment will dispose of Criminal Appeal No,1529 of 2000 filed by Zafar Iqbal, appellant and Criminal Appeal No,299/J of 2000 filed by Haq Nawaz appellant through jail who were convicted under section 302(b)/34, P.P.C. And sentenced to imprisonment for life and to pay compensation of Rs,50,000 each to legal heirs of the deceased by the learned Sessions Judge, Jhang vide judgment, dated 16-9-2000.
' Criminal Revision No,737 of 2000 filed by Amin Ahsan, complainant shall also be disposed of through this judgment.
2. Occurrence in this case had taken place at 7 p.m. On 12-6-1998 at a distance of 13 miles from Police Station Sadar, Chiniot, District Jhang while matter was reported to the police at 11-30 a.m. On 13-6-1998 by Amin Ahsan through written complaint Exh.P.A. And the formal F.I.R. Exh P.V./1 was recorded by Israr Hussain, Head Constable.
3. Briefly stated the facts of the case are that Amin Ahsan, the complainant as well as Saif Ullah were going to their village Chak No,133413 from the Dera of Manzoor Hussain Lali on their motorcycle. Zawar Hussain and Allah Ditta were also going ahead of them on a motorcycle driven by Zawar Hussain. When they reached near the road of Killa No,16 of Square No,9, all of a sudden Zafar Iqbal accused armed with .30 bore pistol and Haq Nawaz accused armed with a Sota came there. Haq Nawaz and Zafar Iqbal accused raised Lalkara exhorting Zawar Hussain that they had come to revenge the flight of pigeons. At this, Zafar Iqbal accused fired at Zawar Hussain which landed on the frontal side of his abdomen who fell down. The accused raised Lalkara that whoever came near would be done to death. Both the accused while firing in the air fled away from the place of occurrence on the motorcycle of Zawar Hussain who had borrowed the same from Umar Hayat. Zawar Hussain was taken to Allied Hospital, Faisalabad but he expired on 26-6-1998 in the said hospital.
4. The investigation of the case was taken over by Muhammad Yaqoob, Inspector (P.W.9). He first of all went to Allied Hospital and submitted an application to Medical Officer for getting his opinion as to whether Zawar Hussain injured was in a position to make his statement or not. The injured was declared fit to make a statement. His statement was recorded under section 161, Cr.P.C. On the same day, the Investigating Officer went to the place of occurrence prepared the rough site plan Exh.P.R.; recorded the statements of the eye-witnesses, registered the case under sections 324/34 and also 392, P.P.C. On 27-6-1998, on receipt of information about the death of the injured Zawar Hussain, section 302, P.P.C. Was added. Then he reached the hospital, prepared the injury statement Exh.P.H./1, inquest report Exh.P.J./1 and got conducted the post-mortem examination. On the same day, last-worn clothes of the deceased produced by the complainant were taken into possession vide memo. Exh.P.B. This witness on 1-7-1998 got the custody of Muhammad Nawaz from District Jail, Faisalabad who was confined there in some other case while Zafar Iqbal accused was arrested on 5-7-1998. The motorcycle P.4 was secured vide memo. Exh.P.C. On 13-7-1998, Haq Nawaz led to the recovery of Sota P.7 which was taken into possession vide memo. Exh.P.E. Similarly Zafar Iqbal accused got recovered pistol P.5 which was secured vide memo. Exh.P.D. After completion of the remaining formal investigation, both the accused were found guilty and challaned to face the trial.
5. At the trial, the prosecution in order to prove its case produced 10 witnesses in all; then the learned A.P.P. Closed the prosecution evidence; thereafter, statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence and claimed false implication.
However, after conclusion of the trial, the accused were convicted and sentenced as stated above.
6. Learned counsel for Zafar lqbal, appellant submits that there is an unexplained delay of 16 hours in lodging the F.1.R., motive in this case has been disbelieved by the trial Court, the trial Court also disbelieved the version of the prosecution that the motorcycle was snatched on pistol-point and so acquitted the appellant from the charge under section 392, P.P.C., the so-called dying declaration too has been disbelieved by the learned trial Court, recovery of pistol on the pointation of the appellant is of no avail to the prosecution because no empty was recovered from the spot; no blood-stained earth was taken into possession, so the place of occurrence could not be determined; the eye-witnesses are chance witnesses and related to the deceased inasmuch as complainant is brother-in-law of the deceased while Saif Ullah P.W. Is real brother of the deceased; case set up in the F.I.R. Was that the deceased was driving the motorcycle, after receipt of fire-arm injury he fell down on the ground but there is no scratch on his body; Allah Ditta allegedly sitting on the pillion seat of the motorcycle being driven by the deceased but he too did not receive any injury; according to learned counsel, this shows that the deceased was alone at the time of occurrence; in the rough site plan prepared by the Investigating Officer on 13-6-1998 Zawar Hussain (deceased) was shown to be deceased when in fact he expired on 26-6-1998, if a witness is found to be a liar on one point the whole prosecution story should be disbelieved; reliance has been placed upon 1995 SCM R 1730; Tehmasip Zubair (P.W.4) who medically examined Zawar Hussain on 12-6-1998 supported the version of the defence during the cross-examination that in the column of name of relative or friend, the name of Ahsan Amin was written by the dispenser; in fact the occurrence had taken place in dark hours of the night and that no one had seen the occurrence. Concluding his submissions, learned counsel submits that the prosecution has tailed to prove its case against Zafar Iqbal appellant and he is entitled to acquittal.
7. Learned counsel for Haq Nawaz, appellant while adopting the arguments advanced by learned counsel for Zafar Iqbal appellant adds that no injury on the person of the deceased has been attributed to the appellant and he has been falsely implicated due to the reasons explained by him in his statement under section 342, Cr.P.C. While giving reply to Question No,6 and that is that he was involved in the instant case because the complainant of this case is fast friend to one Mehmood who had got registered a case under section 302, P.P.C. Against the appellant but he was on bail as the case was doubtful.
8. Learned counsel for the complainant who has filed Criminal Revision No,737 of 2000 for enhancement of sentence of the convicts submits that both the parties are related inter se; it is a case of single fire which is attributed to Zafar Iqbal; ocular account is fully corroborated by the medical evidence, motive has also been proved by the prosecution; both the parties reside in front of each other, so there was no question of false implication. He in nutshell supports the judgment of the trial Court.
9. Learned counsel for the State toes the arguments of learned counsel for the complainant.
10. I have heard learned counsel for the parties and have gone through the record. There is delay of 16 hours in lodging the F.I.R. Without any proper explanation. The police station was though at a distance of 13 miles from the place of occurrence but nobody went to the police station to lodge the F.I.R. Moreover, the injured was taken to Allied Hospital, Faisalabad which is a famous hospital. I am unable to understand as to why the doctor or anybody else from the side of the deceased party did not inform the police even at the telephone To my mind, the F.I.R. Was registered after due deliberation and consultation.
11. No blood-stained earth was taken into possession from the place of occurrence. The reason given by learned counsel for the complainant that since the occurrence had taken place on a busy road, so the recovery of blood-stained earth was not possible, is not tenable and does not appeal to reasons. No crime-empty was taken into possession by the appellant from the place of occurrence. The Investigating Officer had prepared the site plan without scale on 13-6-1998, that is, on the next day of occurrence but he has mentioned Zawar Hussain as deceased in that though, the injured Zawar Hussain died later on 26-6-1998. The motive has been disbelieved by the trial Court and I also hold the same view. I have gone through the dying declaration Exh.P.Q. In which the words "URDU TEXT" have been added later on, so the dying declaration was rightly disbelieved by the trial Court. No conviction under section 392, P.P.C. Was recorded against any of the appellants. The eye-witnesses are the chance witnesses. They were not the resident of place of occurrence. The occurrence had taken place at a distance of 4-1/2 squares from the village Abadi.
The doctor (P.W.4) who medically examined Zawar Hussain injured has admitted that in the column of name of relative or friend was filled by his dispenser while all other entries of the M.L.R.
Are in his handwriting. It shows that this column was intentionally kept blank in order to show favour of the complainant. No injury whatsoever was attributed to Haq Nawaz appellant towards the deceased. He had also motive against the deceased.
After taking into consideration the overall facts and 'circumstances of the case, the arguments advanced by learned counsel for the parties and the entire evidence brought on record from both the sides. I am fully convinced that the prosecution has not been able to prove its case against the appellants to its hilt rather there are doubts and doubts in the prosecution story. Resultantly, both the appeals filed by appellants namely Zafar lqbal and Haq Nawaz are allowed. Conviction and sentence recorded against them by the learned trial Court is set aside. Both are in jail and shall be released forthwith, if not required to be detained in any other case.
' Criminal Revision No,737 of 2000 filed by the complainant for enhancement of sentence of the convicts is dismissed.