' This judgment will dispose of Criminal Appeal No,327 of 2001 filed by Arshad Mahmood, appellant who was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life with further direction to pay compensation of Rs,50,000 in default S.I. For six months by learned Additional Sessions Judge, Gu;rat vide judgment, dated 30-1-2001.
2. Briefly stated the facts of the case as disclosed in complaint by Abdul Qayyum are that the complainant had two brothers namely Manzoor Hussain and Abdul Ghafoor who were also residing in City Gujrat and four sisters Mst. Fazlan, Mst. Shahnaz Amin, Mst. Taj Begum and Mst. Rehana Kausar. Mst. Shahnaz Amin was married to Tariq Amin in village Dehr and was residing with her husband in England for the last 27/28 years. Mst. Taj Begum and Mst. Rehana sisters of the complainant were also married and were residing in England while his third sister Mst. Fazlan was also residing in Gujrat alongwith her husband. Nine months before filing of the complaint, Mst.
Shahnaz Amin alongwith her children and husband Tariq Amin came to Pakistan in village Dehr because the engagement of Mst. Ghazala Amin daughter of Mst. Shahnaz Amin was in process.
Tariq Amin, Khalid Mahmood an Arshad Mahmood, brothers-in-law and Mst. Sakina Bibi their mother wanted to marry Ghazala with one boy named Haroon Rashid to which sister at the complainant was-not agreeing as she wanted to marry her daughter with her nephew. Three months prior to the occurrence, Tariq Amin went back to England and then sent his brother Arshad Mahmood who was also residing with him at England to make the arrangement of engagement of Mst. Ghazala with Haroon Rashid. For this purpose, Shahnaz Amin called for the complainant and his brother Manzoor Hussain on 21-7-1998 through telephone to immediately come to village Dehr and they both reached Dehr on 22-7-1998. Abdul Qayyum and Manzoor Hussain when reached village Dehr they came to know that Mst. Shahnaz Amin was available in the house of Arshad Mahmood. Both the brothers reached the house of Arshad. Mahmood at about 10 a.m. Where all the four accused alongwith sister of the complainant were present and the matter of .Engagement of Ghazala was under discussion. All the accused were insisting to give the hands of Ghazala to Haroon Rashid but Shahnaz Amin was desisting to the same whereupon all the four accused unanimously stated that they would marry Ghazala by force and to this Shahnaz Amin stated as to who were they to marry her daughter forcibly. After that, it was alleged, all the three accused namely Mst. Sakina, Khalid Mahmood and Akhtar Mahmood jointly stated to Rashad Mahmood that she would not concede like this so the same act should be done as was directed by Tariq Amin from England. Arshad Mahmood while running went into the room and came back with pistol and on the Lalkara of other accused, tired a shot at Shahnaz Amin which shot hit on her neck below the ear and she fell down and succumbed to the injury at the spot. The abetment was attributed to Tariq Amin. The occurrence was allegedly witnessed by Manzoor Hussain and Mst. Ghazala. The matter was sent to learned Magistrate for recoding statements of the P.Ws. Who did the needful and recommended for trial of the accused in the complaint.
3. With regard to the occurrence stated by Abdul Qayyum, the complainant, F.I.R. No,487 under section 302, P.P.C. Was also registered on the statement of Khalid Mahmood with Police Station Kharian, District Gujrat. Investigation of the case was taken over by Ch. Mushtaq Ahmad, Inspector (C.W.6). He after registration of the case went to the place of occurrence where the dead body of deceased was lying; prepared injury statement Exh.C.W.6/1; inquest report Exh.C.W.6/3 and took into possession the blood-stained earth vide memo. Exh.C.W.6/3. A crime-empty of .30 bore pistol was secured vide memo. Exh.C.W.6/6. On 24-7-1998 Arshad Mahmood accused was arrested and the accused while in custody led to the recovery of .30 bore pistol P.1 which was taken into possession vide memo. Exh.P.F. On 27-7-1998.
4. At the trial, four witnesses were produced as P.Ws. While six witnesses were examined as C.Ws.
The complaint tendered in evidence report of the Serologist Exh.C.3, report of the Serologist Exh.C.2 and closed the case. Thereafter statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded false implication. After conclusion of the trial, except Arshad Mahmood, all the three remaining accused were acquitted.
5. In support of this appeal, learned counsel submits that complaint was filed on 27-10-1999, three months after the occurrence without any proper explanation; both the eye-witnesses Abdul Qayyum.And Manzoor are real brothers of the deceased; they were residents of 40/50 miles away from the place of occurrence; they admitted that they had strained relations with the accused; their presence at the spot is unnatural and doubtful; no person from the village was cited or produced as P.W. To corroborate the version of both the related eye-witnesses; after the occurrence none from the eye-witnesses went to police station to lodge the F.I.R. When the police station was at a distance of 1 kilometre from the place of occurrence; no respectable of the area was informed; story of the complainant in the complaint was that after informing relations at Gujrat he again came back to the village, approached the police and he was told that a case had already been registered on the statement of Khalid Mahmood, brother of the preset appellant, one of the accused in the complaint case which statement of the complainant is contradicted by Asghar, S.-I. Examined as C.W.6 who stated during cross-examination that none from the complainant side approached him; Manzoor Hussain P.W.2 has improved his statement before the trial Court and that Mst. Ghazala Amin daughter of the deceased being star-witness of the prosecution was given up. Further submits that conviction has been based against the appellant on the basis of F.I.R. Exh.P.H. Which is not a substantive piece of evidence.
6. On the other hand, learned A.A.-G. Assisted by State Counsel submits that trial Court was right in convicting the appellant on the basis of the F.I.R. Exh.P.H. Which was lodged by Khalid Mahmood, brother of Arshad Mahmood appellant in which he named the present appellant as an accused to have caused death of the deceased. Further submits that F.I.R. Exh.P.H. Was brought on record by the prosecution through C.W.6 and the same having been exhibited on record, conviction can be maintained.
7. 1 have heard learned counsel for the parties and have gone through the record. Occurrence in the instant case had taken place on 22-7-1998 at 10-30 a.m. While the matter was reported to the police at 11-4S a.m. On the same day. The author of the F.I.R. Was Khalid Mahmood who was later as named as one of the accused in the complaint filed by Abdul Qayyum. According to said F.I.R., it was the present appellant who caused the death of the deceased Mst. Shahnaz Amin by firing a shot. Abdul Qayyum filed the complaint on 27-2-1999 under section 302/34 read with section 109, P.P.C. Not only against the present appellant but also against Khalid Mahmood, Akhtar Mahmood, Arshad Mahmood, Tariq Muhammad, all brothers and Mst. Sakina Bibi their mother. Except the present appellant, all the remaining three accused were acquitted. In the impugned judgment, the trial Court has disbelieved the presence of eye-witnesses namely Abdul Qayyum and Manzoor Hussain. According to contents of the complaint, though Abdul Qayyum complainant was present at the spot and the police station was at a distance of 1 kilometre but he did not report the matter to the police and went to Gujrat to inform his relations and then came back to police station, where he was told that F.I.R. Had already been registered on the statement of Khalid Mahmood. The conduct of both the alleged eyewitnesses was not natural. Both the P.Ws. Namely Abdul Qayyum and Manzoor are resident of 40/50. Miles away from the place of occurrence. Mst. Ghazala Amin who became the cause of death of the deceased and on, whose engagement a quarrel took place between Arshad Mahmood and the deceased apart from being a star-witness of the prosecution was not produced. There is no other eye-witness in this case. Merely on the basis of F.I.R. Exh.P.H., no conviction can be recorded or maintained.
' The presence of the eye-witnesses having been disbelieved by the trial Court and rightly so and the cause of motive. Mst. Ghazala and also the eye-witness having not been produced there is no other option left with this Court except to allow the appeal filed by the appellant. Resultantly, conviction and sentence recorded against the appellant by the trial Court is set aside and he is acquitted of the charge..The appellant is on bail and shall stand discharged from his bail bonds.