KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,806 of 1997 tiled by Zulifgar Ali, appellant who was convicted under section 302(B), P.P.C. and sentenced to death by the learned Additional Sessions Judge, Lahore vide judgment dated 9-12-1997.
Murder Reference No,31 of 1998 for confirmation of death sentence or otherwise shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 9-45 p.m. on 22-9-1995 at a distance of 1-1/2 kilometers from Police Station Hanjarwal District Lahore while the matter was reported to the police through complaint Exh.P.A at 12-15 (mid-night) on 23-9-1995 at Mohallah Nambardaran by Mian Khan and the formal F.I.R. Exh.P.A/1 was recorded by Muhammad Anwer. A.S.I.
3. Brietly stated the facts of the case are that on 22-9-1995 at about 9-45 p.m. Sadaqat Hussain.
Faqeer Muhammad. Azhar Hussain and Mian Khah complainant were present in the Bhaitak when Zulfiqatr Ali @ Jhapoo armed with .222 ritle came there and started abusing Sadaqat Hussain and tired a shot at Sadaqat Hussain which hit in his abdomen towards left side. He tell down in an injured condition. The complainant' aiongwith companions tried to catch hold of Zulliqar but Faqir Muhammad succeeded in snatching the rifle from Zulfiqar Ali. The co-accused of Zulfiqar Ali, namely, Iftikhar Ali armed with Mouzar and Shahamand Ali armed -with .12 bore gun were standing outside the Bhaitak. They also fired at the complainant and other but they saved themselves by taking a shelter of wall. All the accused succeeded to run away. The injured was removed to Sheikh Zaid Hospital, where he succumbed to his injury.
4. Investigation of the case was taken over by Haji' Muhammad, A.S.I. P.W.9. After registration of the formal F.I.R., he inspected the spot, prepared rough site plan Exh.P.L, took into possession two empties of .222 rifle vide memo. Exh.P.C. blood-stained earth was taken into possession vide memo.
EXh.P.D. on the same night at 1-30 a.m. went to hospital, inspected the dead body of Sadaqat Hussain, prepared inquest report Exh.P.M, thereafter, went to the place of occurrence, to trace the accused and on 11-10-1995, arrested Zulfiqar Ali and Shahamand. On 18-10-1995 Shahamand accused got recovered .12 bore gun PA which was taken into possession vide memo. Exh.P.E. Iftikhar accused was arrested on 19-10-1995. He too on 1-11-1995 got recovered '.30 bore mousar P.5 which was secured vide memo. Exh.P.F. After completion of the investigation, the accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 11 witnesses in all. thereafter. learned D.D.A. tendered in evidence report of the Chemical Examiner Exh.P.P. report of the Forensic Science Laboratory Exh.P.Q and closed the prosecution case then the statements of the accused were recorded under section 342. Cr.P.C. in which they pleaded innocence and in their defence produced two D.Ws. Two C. Ws were also examined. After conclusion of the trial, the appellant was convicted and sentenced as stated above.
6. Learned counsel for the parties in support of this appeal submits that it is an un-witnessed occurrence which took place in the dark hours of the night, that both the eye-witnesses produced by the prosecution are uncle and brother-in-law of the deceased respectively, namely Mian Khan and Faqir Muhammad, that number of criminal cases were registered against the complainant party and they are persons of bad character and they had earned animosity with different people. that in fact the deceased used to run a gambling den while Zulfiqar appellant reprimanded him many a time not to do so, that case F.I.R. No, 157 was registered against the deceased by one A.S.I.
Police Station Hanjarwal, that no person from adjoining houses came forward to depose against the appellant and neither they were cited nor produced by the prosecution. That the motive witnesses mentioned in the F.I.R. were never cited or produced by the prosecution to prove the case, that Haji Ahmad A.S.I. Investigating Officer had admitted that he never examined those two witnesses namely Khan Bashir and Khalil Hussain. that although. occurrence had taken place on 22-9-1995 at 9-45 p.m. but both the eye-witnesses had given the date of occurrence as 23-9-1995, that even in the charge-sheet and the statement recorded under section 342, Cr.P.C. of the appellant it has been given as 23-9-1995. Although according to the F.I.R. occurrence had taken place on 22-9-1995. Adds that according to the case of prosecution which was initially set up was that the rifle allegedly snatched from the appellant was sent to Fire Arm Expert but there is no evidence on the record that the same rifle was sent or any positive result was received from Forensic Science Laboratory about the said rifle.
7. At this stage learned counsel has referred to the report of Forensic Science Laboratory Exh.P.Q which is at page 28 of the paper book and he has read the following sentence:- "One rifle, of .222 bore, Pak made new butt and body signed no number visible safety catch not present, spring rod broken and welded. Test empties marked `T' prepared, test bullets marked BT prepared. Two crime empties of .222 bore marked C.I, C.2."
Although; Haji Muhammad, A.S.I. P.W.9 the Investigating Officer had stated at page 54 of the paper book while being examined as P.W.9. The relevant portion of his statement is reproduced below:- "At this stage rifle P.1 has been brought out of the parcel. The number of the weapon is clearly visible and the same is correct according to that mentioned in the recovery memo. Exh.P.B. The spring liver of the rifle. .222 is not welded."
8. While elaborating his arguments learned counsel for the appellant submits that the rifle which was taken into possession was having number but the rifle which was sent to the Fire-arms Expert his number was not visible as mentioned in report Exh.P.Q. Learned counsel has also referred to the statement of Muhammad Sarwar, A.S.I.; examined as P.W.6 and specifically at page 47 he has referred the following answer:- "It is correct that in the arrival' report No,35 dated 24-9-1995 recorded in daily diary of Police Station Hanjarwal by Haji Muhammad, A.S.I./1.O the rifle is not mentioned as one of the articles handed over to me. There is no other report about the handing over of a rifle to me".
9. Learned counsel for the appellant submits that after going through the statement it stands proved that the rifle was never handed over to Moharrer and was not sent to the Fire Arm Expert according to the daily diary of the Police Station Hanjarwal. Learned counsel submits that prosecution case is-that one tire was shot by the appellant and thereafter the rifle was snatched from Zulfiqar but according to the recovery memo. of the empty cartridges which is Exh.P.0 at page 106 of the paper book. Two crime empties were taken into possession from the spot and the same piece of evidence is also mentioned in the-site plan Exh.P.G. at point 'B". Learned counsel for the appellant submits that story of the prosecution in the F.I.R. is that when the rifle was snatched from Zulfiqar Ali appellant the other two co-accused Iftikhar and Shahmand fired but neither the eye- witnesses nor Zulfiqar was, injured by their fires. He submits that the prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt.
10.On the other hand learned State counsel submits that appellant is the only accused who had caused fatal injury on the person of the deceased. Ocular account is corroborated by medical evidence. He submits that rifle was snatched from the appellant at the spot and the report of Fire Arms Expert is positive in nature. Both the eye-witnesses are though related to the complainant party but they have no enmity whatsoever with the appellant. He supports the judgment of the learned trial Court.
11.We have heard the learned counsel for the parties and also have gone through the record available on the file. In the instant case we must state here that appellant has been misled in his defence. According to the prosecution case as set up in the F.I.R. occurrence had taken place on 22-9-1995 at 9-45 p.m. while according to the charge-sheet which is on the tile of the paper book at page 22 the date of occurrence has been mentioned as 23-9-1995 instead of 22-9-1995. Even both the eye-witnesses who are closely related to the deceased i,e, Mian Khan is real uncle of the deceased while Faqir Muhammad is brother-in-law (Behnoi) of the deceased have specifically mentioned the date of occurrence as 23-9-1995 and not 22-9-1995 at 9-45 p.m. It may also be mentioned here that Dr. Muhammad Maqsood had conducted the post-mortem examination on the dead body of the deceased on 23-9-1995 at 12-30 a.m. .(noon) and the duration between the death and the post-mortem examination as given by him is 24 to 48 hours which also does not coincide with the time of occurrence. According to both the P.Ws. who were examined by the learned trial Court had given the distance of firing between the deceased and appellant 2 to 21/2 feet but there was neither blackening nor burning. The appellant according to the prosecution was having a rifle whose length including barrel was 3-4 feet. It means that the fire was made from very close range. So, this fact also contradicted the prosecution case which shows that eye-witnesses were not present at the spot. Had they been present at the time of occurrence they must have given the correct distance.The two witnesses namely Khan Bashir and Khalil Hussain about motive Were neither cited nor produced by the prosecution. Haji Muhammad, A.S.I. had stated before the learned trial Court that they were never produced before him about the motive. According to the prosecution case only one fire was shot by the appellant Zulfiqar Ali but according to the recovery memo. Exh.P.0 two crime empties were taken into possession from the spot. This also does not fit in with the prosecution case. Another example of fabrication in this case is that according to the report of Fire Arm Expert Exh.P.Q. which has already been referred by the learned counsel for the appellant the number of the rifle was not visible, spring rod was welded, number was not visible, safety catch was not present, spring rod was broken and welded, while Haji Muhammad, A.S.I. in his cross-examination at page 54 of the paper book has stated that after the Court order the parcel was opened and said rifle was brought out of the parcel. The number of the weapon was clearly risible and the same was correct according to recovery memo. Exh.P.B. The spring liver of the rifle .222 was not welded. Muhammad Sarwar, A.S.-1. was examined as P.W.6 who was posted as Moharrer on the day of occurrence i,e, 22-9-1995. He had stated before the learned trial Court that it was correct that in the arrival Report No,35 dated 24-9-1995 recorded in daily diary of Police Station Hanjarwal by Haji Muhammad, A.S.I./Investigating Officer the rifle was not mentioned as one of the articles handed over to him. There was no other report about the handing over a rifle to him. The perusal of above said statement would show that as far as snatching of rifle from the appellant Zulfiqar Ali and handing over the same to the A.S.I. Haji Muhammad and then being given to Muhammad Sarwar A.S.I. is all fabrication and concoction.
12. After having heard the submissions made by the learned counsel for the parties and going through the record we are of the considered opinion that there are sufficient doubts in the prosecution case and the prosecution has miserably failed to prove its case against the appellant.
In this view of the matter, this appeal is accepted and the conviction and sentence awarded to the appellant is set aside. Murder Reference is replied in the negative. The appellant is ordered to be released forthwith if he is not required in any other case.
Death sentence awarded to the appellant by the Learned Trial Court is not confirmed.