KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No. 696 of 1996 filed by Ch. Muhammad Saleem, appellant against the judgment dated 14-9-1996 rendered by learned Sessions Judge, Khushab whereby Hanif Bilal, respondent was acquitted the charge under section 302, P.P.C.
2. Briefly stated the facts of the case are that Mst. Shaista Saleem (deceased) was daughter of Muhammad Saleem, complainant. Habib ur Rehman's father of Hanif Bilal (accused) demanded hands of Mst. Shaista for marriage with his son Hanif Bilal. Muhammad Saleem accepted this offer and agreed to marry Shaista with Hanif. However, Muhammad Saleem refused to marry Shaista with Hanif Bilal and because of this refusal, Hanif Bilal stared having ill--will and grudge against complainant Muhammad Saleem and Shaista (deceased). On 28-5-1995, Muhammad Ishaque,a relative of the complainant had arranged a dinner at his house in Mohallah Budhanwala, Khushab Town. Mst. Mukhtaran Bibi, sister--in-law of the complainant Muhammad Saleem was staying at his house. Muhammad Saleem alongwith Shaista, his daughter, Mst. Mukhtaran Bibi, his sister-in- law and Haif Muhammad Khurshid, his brother went to the house of Muhammad Ishaque to attend dinner. At about 9-30 p.m. All of them were returning from the house of Muhammad Ishaque and were going towards the house of Muhammad Saleem. When they reached near Primary School No.2, Hanif Bilal approached them while armed with a pistol and fired shot which hit on the breast of Mst. Shaista. The occurrence was witnessed by Muhammad Saleem, his brother Khurshid, Mukhtaran Bibi and one Tallat Mahmood.
The motive alleged was refusal of Muhammad Saleem, the complainant to marry Mst. Shaista with Hanif Bilal.
4. Investigation of the case was taken over by Ghulam Qasim, S.-I. (P.W.10). He after registration of formal F.I.R., he rushed to hospital where Mst. Shaista was lying, prepared injury statement Exh.P.G., inquest report Exh.P.I. And then proceeded to the place of occurrence, prepared the site-plan without scale Exh.P.L., took into possession blood-stained earth vide memo. Exh.P.K. And on 10-6- 1995 the accused was arrested. The accused while in custody got recovered pistol P.8 which was taken into possession vide memo. Exh.P.C. After completion of the investigation, the accused was challaned to face the trial.
5. At trial, prosecution in order to its case produced 10 witnesses in all the learned. Then the D.D.A.
Tendered in Chemical Examiner, Exh.P.M., report of the Serologist Exh.P.N report of the Forensic Science Laboratory Exh.P.O., closed the case of prosecution. After that statement of the accused was recorded under section 342, Cr..P.C. In which he pleaded false implication. He in his defence also produced Muhammad Ramzan as D.W.1. After conclusion of the trial, the accused was acquitted of the charge.
6. Learned counsel for tire appellant in support of this appeal submits that it was a case of promptly lodged F.I.R.; account is fully corroborated evidence: both the independent eye-witnesses have fully supported the case of prosecution; motive stood proved and it was so held by the Court and that positive report of the Fire-Arms Expert lends full support to the case of prosecution, Further submits that Muhammad Ramzan produced as D.W.1 appeared for the first time before the trial Court and was never interrogated by the Police. Adds that respondent and mother of the appellant are first cousins inter se, so there was no question of false implication. Concluding his submissions, learned counsel that prosecution has been successful in proving its case against the respondent and the trial Court was not justified in acquitting him.
Learned counsel for the State supports the judgment of trial Court and submits that blood-stained earth and crime empty were taken into possession on 29-5-1995 but digit 9 has been altered and that according to Investigating Officer, the accused was arrested on 10-6-1995 but according to Abdur Rahim, F.C. (P.W.4) who took the crime empty and blood-stained earth to the office of Chemical Examiner on 4-6-1995 during cross-examination stated that accused was already in custody of the police. Further submits that D.W.1 was never produced before the police.
Learned counsel for respondent submits that the conclusions drawn by the trial Court are in accordance with the evidence produced on record; when there are two views of an occurrence, that cannot be made a ground to interfere with the well --reasoned judgment of acquittal of the respondent; Muhammad Saleem (P.W.8) father of the deceased had stated in F.I.R. That his brother Hafiz Khurshid was with him but during cross-examination, he deposed that he could not say that at the time of occurrence in this case, cinema show was going on and his brothers Muhammad Khurshid and Muhammad Hanif were in the cinema house; the complainant before the trial Court had stated that his daughter told him that the accused used to tease her on her way to college although this fact was never stated in the F.I.R., nor it was brought to the notice of Investigating Officer; Mst. Mukhtaran P.W. Was resident of Jhang, 100 miles away from the place of occurrence and the story put by her to be present at the spot that she had come s to inquire about the health of Khalida does not inspire confidence; Muhammad Ishaque who had allegedly invited family of the complainant at dinner was never produced by the prosecution; Mukhtaran Bibi P.W. Had visited the place of occurrence alongwith her daughter Nusrat but she did not accompany her mother at the dinner, which was unnatural; neither were of Muhammad Saleem complainant nor of Khurshid were invited at the dinner; occurrence admittedly took place in a thickly-populated area but none from the locality was joined in the investigation or cited as a witness; according to case of the prosecution, Muhammad Saleem complainant was 15 feet ahead from the other eye--witnesses, accused had come from the behind, took turn and then fired at the deceased from the front side, if this was the position how the complainant could have seen the occurrence; learned counsel has also taken us to the statements of Mst. Mukhtaran P.W. And Muhammad Saleem, complainant; according to statement of Muhammad Saleem, draftsman, the draftsman in cross-examination stated that the electric poll was 80 feet away from Point No. 1 while the other electric pole was in other street and was 57 feet away from Point No. 1 Abdul Hayee whose house was in front of the place of occurrence was never cited as a witness either as eye-witness or the witness of recovery; the Investigating Officer P.W.10 did not mention the number of the F.I.R. In the inquest report; the Investigating Officer did not visit the place on the day of occurrence; this was the reason that digit 9 was changed as 8 in the recovery memo. Of crime empty and blood-stained earth; finding of the trial Court in this regard is based on evidence; the Investigating Officer had not given the name of the constable through whom he had sent the crime empty; name of the accused in the recovery memo. Exh.P.K., is not mentioned but in the memo. Exh.P.C. With regard to recovery of .30 bore pistol, the name of the accused is given, all these facts if taken together make the case of the prosecution doubtful, hence the learned trial Court was right and justified in acquitting the respondent. In support of this submission, learned counsel for the respondent has relied upon Abdul Majeed v. Superintendent .LL 1964 SC 422 and Ghulam Muhammad v. Muhammad Sharif and others PLD 1969 SC 398. It is argued that unless the finding of the trial Court is fanciful, against the record or perverse, the same ought not to be interfered with ordinarily and due weight should be given to such a finding of acquittal.
We have heard learned counsel for the parties and have gone through the evidence on record. In the instant case, the occurrence had taken place at 9-30 p.m. On 28-5-1995 while the matter was reported to the police in the police station at 10-20 p.m. On the same night by Muhammad Saleem and the formal F.I.R. Exh.P.H. Was recorded on the same night though the distance from the place of occurrence to the police station was kilometres. After the occurrence, the complainant Muhammad Saleem had taken Mst. Shaista to hospital and she was medically examined at 10-00 p.m. By Dr. Muhammad Sarfraz Khan (P.W.7). In the Column "Name of friend or relative" of MLR Exh.P.D., the name of Muhammad Saleem, complainant finds mention, so the presence of complainant at the spot is admitted and cannot be doubted by any stretch of imagination. Ocular account is fully corroborated by medical evidence. After few minutes of the medical examination, Mst. Shaista expired. The same doctor who conducted medical' examination of the deceased held post-mortem and according to him, the stomach of deceased was having undigested food which shows that meal was taken 1 or 2 hours, before the occurrence, so the time of occurrence is fully corroborated by medical evidence. There is not an iota of evidence on record to show that there was previous background of enmity between the parties. It is not a case of substitution because substitution is a rare phenomena. Both the eye-witnesses namely Ch. Muhammad Saleem and Mst. Mukhtaran (P.Ws.9 and 10 respectively) though related to the deceased have no reason to falsely implicate the respondent accused. Moreso, mere relationship of a witness with the deceased or the complainant is no criteria to discard their evidence if it is otherwise trusty worthy and had come from an unimpeachable source. The crime empty was taken into possession on the day of occurrence and was sent to the Office of the Fire-Arms Expert on 4-6-1995 through Abdur Rahim P .W .4 'and were received in the office at Lahore on 5-6-1995. The pistol .30 bore pistol taken into possession vide memo. Exh.P.C. Was recovered on the pointation or the appellant on 12-6-1995 and was sent to the Office of the Fire-Arms Expert on 19-6-1995. The report of the Fire-Arms Expert Exh.P.O. Is positive in nature, so there cannot be any plantation qua the weapon of offence and the crime empty. The contention of learned counsel for the State as well as the respondent that Abdur Rehim P.W. Who had taken the parcels of, blood--stained earth and the crime empty stated that accused was already in custody of the Investigating Officer is of no avail because it has been ruled by the Honourable Apex Court that draftsman and F.Cs. Ordinarily give concessions and no credit should be given to their such statements/concessions.
Muhammad Ramzan examined as D.W.1 was never produced before the Police but he appeared in defence for the first time before the trial Court.
The contention of learned counsel for the respondent that neither the daughter of Mukhtaran namely Nusrat nor were of the complainant had gone to attend the dinner hosted by Muhammad Ishaque does not advance the case of defence any further because Mst. Mukhtaran P.W.9 in cross --examination had stated that she had pain in her ears.
According to site-plan Exh.P.B., there was an electric pole. A specific note has been given by draftsman Muhammad Saleem which reads as under:---- On the western side of this note, it was also I mentioned that there was electric pole. Moreover, the parties were known to each other, so there was no question of mistaken identity. The non-mention of name of the accused on Exhs.P.A., P.J. And P.K. Can be mere an irregularity on the part of the Investigating Officer and cannot be made a ground to dislodge the story of prosecution. No doubt the name of Khurshid brother of the complainant was mentioned in the F.I.R. And was not produced before the trial Court but it is not necessary that all the persons mentioned in the F.I.R. Must be produced before the trial Court but the settled law is that Court has to see the quality of evidence and its intrinsic value and not the quantity of evidence.
The motive set up by the prosecution has already been believed by the trial Court.
After having taken into consideration the evidence brought on record in the shape of ocular account furnished by Muhammad Saleem (P.W.8), Mst. Mukhtaran (P.W.9) supported by medical evidence and positive report of the Fire-Arms Expert and the motive, we are of the considered opinion that the finding of the trial Court is based on surmises and conjectures and against the evidence on record. The prosecution has been successful in proving its case against the respondent. Resultantly, we accept this appeal and set aside the judgment dated 14-9-1996 passed by learned Sessions Judge, Khushab. The respondent Hanif Bilal is convicted under section 302(b), P.P.C and sentenced to imprisonment for life an offence under section 302(b), P.P.C. Is proved, the only sentence provided under the law is either 'death or imprisonment' for life. The respondent is-being sentenced to undergo imprisonment for life for the reason that the case was registered on 28-5-1995 and the judgment of acquittal was passed on 14-9-1996 and now we are going in 2003 ant it is also a case of single shot. The respondent shall be taken into custody to undergo the sentence.