Muhammad Abbas appellant and another were tried for the murder of Muhammad Latif, brother of the complainant (Muhammad Rafique, P.W.3), the matter was reported vide F.I.R.No.353 of 1998, dated 15-5-1998, under sections 302/34, P.P.C., Police Station, Factory Area, District Sheikhupura, not satisfied with the police investigation the complainant filed a private complaint (Exh. P.C. On 11-12- 1999). Both the cases were tried together and the learned trial Judge vide the impugned judgment dated 26-6-2001 convicted the appellant under section 302(b), P.P.C. And sentenced him to life imprisonment. He was also directed to pay Rs.30,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Failing which he was to undergo R.I. For six months: (The co- accused Muhammad Hanif accused was declared proclaimed offender during trial and his, case was separated).
2. The prosecution story as given in the afore-referred complaint briefly stated is that the complainant's brother Muhammad Latif was servant of Amir Ali Mughal, father of Muhammad Abbas that Amir Ali had enmity with Dost Muhammad; that the said Amir Ali wanted to involve the said Dost Muhammad in some false murder case; that on 14-5-1998 he and Ansar Javaid P.W.4 went to see Muhammad Latif, deceased at Mauza Kalar; that the latter was present at the tubewell of Amir Ali, they stayed for night, at midnight Abbas appellant armed with .30 bore mauser and Hanif co-accused with carbine .12 bore came there. Abbas appellant allegedly asked his co- accused Hanif to kill Muhammad Latif whereupon he fired at him which hit him on his belly which proved fatal and he died at the spot.
3. During trial the prosecution examined eight witnesses including the doctor and the Investigating Officer, P.W.1 is Muhammad Amin, Patwari who prepared the site plan in police challan case. He admitted in his cross-examination that none of the public witnesses were present and that he had "prepared the site plan on the instructions of the police". P.W.2 is Dr. Farooq Ahmad Kisana, Medical Officer who conducted the post-mortem examination on the dead body of Muhammad Latif, deceased and found the following injury:-- "(i)Fire-arm wounds in area of about 11 c.m. x 11 c.m. On mid front left abdomen eight in number about 1 c.m. x 1 c. m. x D. N. P. Edges inverted."
This injury, according to him, was sufficient to cause death of a person in ordinary course of nature.
P.W.3 is complainant who made statement consistent with the private complaint. He stated that when the charge had already been framed in the police challan case complainant decided to file private complaint. P.W. 4 is Ansar Javed. He claimed to be an eye-witness. He is real cousin of the deceased. P.W.5 is Muhammad Yaqoob, Constable. He is witness of recovery of Mauser.30 bore P.4 from the appellant. P.W.6 is Muhammad Ashraf Constable who was given two sealed parcels one was blood-stained. Earth and other .30 bore mauser which were kept by him in Malkhana in custody. P.W.7 is Akmal Shahzad who escorted the dead body of Muhammad Latif to the mortuary for post--mortem examination. P.W.8 is Karamat Ali. He deposited sealed parcels containing blood--stained earth and .30 bore mauser and .12 bore carbine in the Office of Chemical Examiner.
Muhammad Nawaz Cheema, Sub-- Inspector appeared as C. W.1.
4. The accused when examined under section 342, Cr.P.C. Denied the prosecution story and attributed false implication to enmity.
5. Learned counsel for the appellant in support of this appeal made the following submissions:-- (1)That it was a blind murder and no one had seen the occurrence: (2)That there is no independent witness to support the prosecution case.
(3)That no role except that of asking co-- accused Muhammad Hanif to fire at Muhammad Latif; deceased, is attributed to the appellant.
(4)That both the eye-witnesses are not the residents of the locality and they cannot be relied upon.
6. Learned State Counsel on the other hand, defended the impugned judgment by submitting that both the eye-witnesses have explained their presence at the spot, that there is no reason why the appellant should be falsely implicated and that the appellant is connected with the motive part of the prosecution story and no case for acquittal is made out.
7. Heard.
8. The complainant's story in the F.I.R. Was that his brother Muhammad Latif had left his parental house two years prior to the occurrence on account of some anger, that 10/15 days prior to the occurrence he was told by Mushtaq Ahmad that the said brother .Was working as domestic servant of Amir Ali; that on 15-5-1998 he alongwith his cousin Ansar Javaid went to the concerned Mauza to see Muhammad Latif, deceased where he was told by the people that his brother had been killed at the tube well of Amir Ali on the preceding night and that there was a rumour that he had been killed by Muhammad Hanif and Abbas on account of Amir Ali's enmity with Dost Muhammad. Amir Ali wanted to involve the said Dost Muhammad in some false case, killed Muhammad Latif, deceased so that murder case can be planted on Dost Muhammad. The police after due investigation submitted report under section 173, Cr.P.C. In the Court concerned. The trial commenced and when the charge was framed the complainant decided to file a private complaint Exh.P.C. In which for the first time he claimed to be an eye-witness alongwith Ansar Javaid P.W.4. 'The glaring discrepancies in the F.I.R. And the complaint would indicate that the appellants --involvement in the occurrence in question is not free from doubt. This private complaint was filed after one and half year of the occurrence. It is repellant to common sense that Abbas appellant would ask co-accused Muhammad Hanif to murder Muhammad Latif deceased in the presence of his real A brother Muhammad Rafique, P.W.3 and his cousin Ansar Javaid P.W.4. It is further not believable that if the police had not correctly recorded the F.I.R. And had not properly investigated the case the complainant should have remained mum for 1-1/2 years and even after the commencement of trial should have waited for framing of the charge to file a private complaint. P.W.4 made material improvements in his statement during trial. For instance this witness did not state before the police that they had arrived in village Kalar on 14-5-1998. Similarly, he did not state that it was moon light night and they had seen the occurrence in the said light and further that they had left the place of occurrence to save their lives. Both these witnesses tried to disown F.I.R.'s story by submitting that the police had got their thumb-impressions on a plain paper and they recorded the story of their own. It is against normal human conduct that if a person's brother is killed he should content himself by putting his thumb-impression on a plain paper and then to sleep over the matter. Even otherwise both these witnesses are not the residents of locality and there was no tenable reason for their being present at the spot.
9. So far as the motive part of the prosecution story is concerned both the F.I.Rs. And the private complaint do not explain as to how Amir Ali should have planted the case against Dost Muhammad (his alleged enemy) for the murder of Muhammad Latif, deceased. Even if this motive is believed then why Amir Ali did not involve Dost Muhammad in the instant case. The motive could not be proved even during investigation as according to C.W.1 Muhammad Nawaz Cheema, S.-I.
Who investigated the case "no evidence was E produced by the complainant".
10. For what has been discussed above the prosecution case against the appellant is not free from doubt. Resultantly, this appeal is allowed and the impugned judgment of conviction insofar as it convicts the appellant is set aside. The appellant Abbas shall be released for with unless detained in any other case.