' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No,142 of 1997 filed by Fayyaz Ahmad, appellant, who was convicted and sentenced by learned Additional Sessions Judge, Faisalabad, vide his judgment dated 29-3-1997 to death with the further direction to pay Rs,50,000 as compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C. Or in default six months' R.I. Under section 302(b), P.P.C.
' Murder Reference for confirmation of death sentence of the appellant or otherwise and Criminal Revision No,133 of 1997 tiled by Irshad Ahmad complainant for the enhancement of sentence of compensation shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place on 21-8-1995 at 7-00 a.m. Within the jurisdiction of Police Station Lundianwala at a distance of 12 miles away while the matter was reported to the police on the same day by Irshad Ahmad complainant at 7-50 a.m. Through complaint Exh.P.C.
And the formal F.I.R. Exh.P.C. Was recorded by Abdul Jabbar H.C. On the same day at 8-45 a.m.
3. Brief facts of the case as disclosed by Irshad Ahmad complainant are that on 21-8-1995 at 7-50 a.m. He alongwith Muhammad Aslam and Ali Asghar was coming back to Haweli after tethering their buffaloes in Square No,35, Killa No,25; Ishfaq (deceased brother) was going 15/16 Karams ahead of them and as he reached near the house of Anwar Gujjar, Fayyaz Ahmed alias Faaja accused (armed with .12 bore gun), who was already present near the Chowk outside his house, fired at Ishfaq from the back who fell down. Thereafter, the accused fired two more shots, one hitting on the back of right shoulder and the other on the right flank. The witnesses raised alarm and ran towards Fayyaz Ahmed alias Faaja, whereupon the accused held out gun at them and threatened to kill anybody who came near, and then fled away. The alarm attracted many other persons. When taken care of, Ishfaq was found dead. The motive alleged is that a day before, Jaranwala Police had raided Fayyaz Ahmed accused in a dacoity case. The latter suspected that Ishfaq Ahmed had informed the police and in the evening before the occurrence, the accused had hurled threats that he would teach lesson for the spy information to the police, aggrieved whereby the murder has been committed. Formal F.I.R. (Exh.P.C./1) was thereafter registered at Police Station Lundianwala.
4. After registration of the formal F.I.R. Manzoor Ahmad, S.-I. P.W.19 proceeded to the place of occurrence prepared injury statement Exh.P.A./6 and inquest report Exh.P.A./7, took into possession the blood-stained earth from the spot vide memo. Exh.P.H., took into possession three empty cartridges vide memo. Exh.P.J., prepared visual site plan Exh.P.K., recorded the statements of the witnesses under section 161, Cr.P.C. Thereafter investigation was entrusted to Muhammad Arif Ali, S.- I./S.H.O. P.W.18, who on 4-11-1995 arrested Fayyaz Ahmad. On 7-11-1995 accused led to the recovery of .12 bore gun plus three cartridges which were taken into possession vide memo. Exh.P.J. After completion of the investigation, the accused was challaned to face the trial.
5. At the trial the prosecution produced nineteen witnesses in all thereafter learned A.D.A. Tendered in evidence report of Chemical Examiner Exh.P.L., report of Forensic Sciences Laboratory Exh.P.M., report of Serologist Exh.P.N. And closed the prosecution evidence, then the statement of the accused was recorded under section 342, Cr.P.C., in which he pleaded innocence. He also produced in his defence Ahmad Bibi as D.W.1. After conclusion of the trial the accused was convicted and sentenced by the trial Court as mentioned above.
6. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record submits that there is a clear conflict between ocular account and medical evidence, that it was an unwitnessed occurrence, that no eye-witness was present at the spot at the time of occurrence, that two eye-witnesses produced by the prosecution, namely, Irshad Ahmad and Muhammad Aslam P.Ws.16 and 17 are brother and first cousin of the deceased, that no independent witness was produced by the prosecution, although the occurrence took place in a very thickly populated area that appellant has been falsely implicated merely on suspicion.
7. As far as the motive is concerned, there is no evidence of raid produced by the prosecution except the bald statement of the complainant who is real brother of the deceased so the motive was also not proved by the prosecution.
8. So far as the recovery is concerned that has been planted upon the appellant and in this regard report of Fire-arm Expert was manoeuvred one with mala fide intention and that prosecution in fact miserably failed to prove its case against the appellant beyond any shadow of doubt.
9. On other hand learned counsel for the State assisted by learned counsel for the complainant who has also filed the revision petition submits that in the instant case F.I.R. Was lodged promptly, that it is a case of single accused, that there is no question of substitution because substitution is a rare phenomena. Also adds that as far as conflict between ocular account and medical evidence is concerned that it was a guesswo rk because complainant is real brother of the deceased, he was in shock after the occurrence and was not in a position to give correct version about the seat of injuries, that pellets were recovered from the body of the deceased and appellant had used .12 bore gun in this occurrence. He further submits that prosecution has proved its case even through the motive because the motive was that the deceased had informed the police that appellant was involved in a dacoity case, police had raided the house of the appellant and the appellant had suspicion that it was the deceased who had informed the police. As far as the recovery is concerned according to the report of Fire-arm Expert the same is positive in nature. He has relied upon 1995 SCM R 1668, 2001 SCM R 387 and PLD 2001 SC 458.
10. We have heard learned counsel for the parties at a great length and also perused the record very minutely with their assistance. In the instant case F.I.R. Was lodged by Irshad Ahmad complainant, who is real brother of the deceased in the last line of the page 92 of the paper book wherein complaint Exh.P.C. Has been mentioned, stated that first fire was shot by the appellant which hit on the back of the deceased and the same was fired from his back, thereafter Ishfaq deceased fell down on the ground then appellant fired two more shots simultaneously which hit on the back of his right shoulder and other on his right flank. Post-mortem in this case was conducted by Dr. Nasir Mahmood, M.O. P.W.3. Injury No,1 consist of A to I. All these injuries are on the front part of the body of the deceased while on the other hand the case of the prosecution was that all the shots hit the deceased on his back, prosecution also claimed that occurrence had taken place in broad daylight and was witnessed by three eye-witnesses. In our considered opinion had the eye- witnesses been present at the spot, they would not have given wrong seat of injuries on the person of the deceased. Moreover, according to the prosecution, it was a case of single accused so there should not have been any mistake on the part of the eye-witnesses to state the wrong seat of injuries, because had there been more accused then one can commit mistake about the seat of injuries.
11. It may also be stated here that all the injuries which have been stated by the doctor as injury No,1 and on front side of the person of the deceased these have also got blackening but if one goes through the site plan Exh.P.B., the distance between point 1 and point 3 has been given at 20 feet, blackening can only be occurred from the distance within three feet or less than that. It also proves that the eye-witnesses were not present at the spot even the distance between point 4 and point 1 is also about 6 feet. This has been mentioned by the Investigating Officer P.W.19 at page 57 of the paper book. It also falsifies the presence of the eye-witnesses at the spot. Both the eye-witnesses are teal brothers and first cousins of the deceased. Occurrence had taken place in a very thickly populated area but not a single independent eye-witness has been either cited or produced by the prosecution. So we are of the considered view that eye-witnesses were not present at the spot. The law laid down by this Court and by the Honourable Supreme Court is that the prosecution has to stand on his own legs and has to prove its case against the accused beyond any shadow of doubt whereas in the instant case the prosecution has miserably failed to prove its case against the appellant.
12. As far as motive is concerned, motive was that a day prior to the present occurrence a raid was conducted by the police on the house of the appellant and the appellant suspected that it was the deceased who had informed the police but in this regard no documentary evidence, any police official or any independent witness was produced to prove the motive except the bald statement of the complainant. We also do not believe the motive set up by the prosecution.
13. Now we take up the case of the so-called positive report of Firearm Expert which is Exh.P.M. On the record. We may mention here that occurrence took place on 21-8-1995, three crime-empties according to the prosecution were taken into possession on the same day, appellant was arrested on 14-11-1995, gun was recovered on 7-11-1995, for the first time empties were sent to the Fire-arms Expert on 16-11-1995. Those were sent back by the office of Fire-arm Expert after raising an objection and same were received again on 22-11-1995. The above said dates would clearly show that these empties were sent to the Fire-arm Expert three months after its recovery and moreover after the alleged recovery of .12 bore gun from the appellant and this gun was sent to the Fire-arm Expert D on 19-11-1995. This proves that after recovery of gun, shots were fired from the said gun and empties were prepared and then sent to the Firearm Expert for comparison, so in our view this report of the Fire-arm Expert is manoeuvred one and concocted one.
14. After having heard learned counsel for the parties and gone through the evidence recorded by the learned trial Court, we are of the considered opinion, that it is a case in which there are so many doubts and benefit of the same always goes in favor of the accused persons not as a matter of grace but as a matter of right, so while extending the same benefit of doubt, we accept this appeal, set aside the conviction and sentence recorded against the appellant by the learned trial Court. His death sentence is not confirmed. Murder reference is replied in negative. He is in jail and he shall be released forthwith if not required to be detained in any other criminal case.
' Death sentence awarded to the appellant is not confirmed.