' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No,1507 of 2000 filed by Muhammad Amir, appellant, who was convicted and sentenced by learned Special Judge, S.T.A. Court, Mianwali, vide his judgment dated 13-10-2000 to death under section 302(b), P.P.C. With the further direction to pay Rs,50,000 as compensation to the legal heirs of the deceased or in default six months' R.I.
2. Occurrence in this case had taken place at 6-00 p.m. On 19-7-1999 within the jurisdiction of Police Station Musakhel at a distance of 20 Kms. Away while the matter was reported to the police by Hameed Ullah complainant P.W.7. On 20-7-1999 at 2-30 p.m. And the formal F.I.R. Exh.P.F. Was recorded by Muhammad Yar, S.-I. P.W.10.
3. Brief facts of the case as disclosed by Hameed Ullah complainant are that on 19-7-1999 at 6-00 p.m. He alongwith his father Atta Muhammad, brothers Sardar Khan, Jahan Khan and mother Mst.
Shah Khatoon was cultivating Jawar crop in his land from a distance of 2 Kms. Towards southern side of his Dera. All of a sudden, Muhammad Amir Khan armed with .12 bore gun, Jehangir Khan armed with .7 mm rifle, Qutab Khan armed with .12 bore rifle. Sher Muhammad armed with 303 rifle, Khalas Khan armed with rifle 8 mm and Abdul Sattar armed with 303 rifle came there. Muhammad Amir Khan raised Lalkara that they would give them taste for disgracing his father Qutab Khan.
Simultaneously, Muhammad Amir Khan gave a .12 bore gun shot which landed upon the left flank of Atta Muhammad father of the complainant, who after sustaining injuries fell down.
' Motive behind the occurrence was that about two months ago, a fight took place between the complainant party and the accused on the dispute of land," upon which complainant party had injured Qutab Khan. Due to this grievance, all the accused in furtherance of their common object made indiscriminate firing upon the complainant party.
4. After registration of the formal F.I.R., Muhammad Yar, S.-I. (P.W.10) reached at the spot, inspected the dead body of Atta Muhammad, prepared injury statement Exh.P.H. And inquest report Exh.P.J., inspected the spot, collected blood-stained earth vide memo. Exh.P.G., prepared rough site plan without scale Exh.P.K. After the arrest of the accused and after completion of the remaining investigation, the accused was challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 13 witnesses in all, thereafter, learned A.D.A. Tendered reports of Chemical Examiner Exh.P.L. And that of Serologist Exh.P.M. And closed the prosecution case, then, the statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence.
6. After having read the entire prosecution evidence, statements of the accused recorded under section 342, Cr.P.C. And other relevant material available on record, learned counsel for Muhammad Amir appellant submits that there was no motive on the part of the appellant to have committed the murder of the deceased, that according to the motive given in the F.I.R., Hameed Ullah complainant and Shah Jahan (given up P.W.) had given beating to Qutab Khan father of the appellant, had they been present at the spot, they must have received injuries from the hands of the appellant, that on the same set Of evidence five accused persons have been acquitted by the learned trial Court, that according to the F.I.R. Six accused persons including the present appellant fired at the spot but not a single empty was recovered from the spot, that according to the statement of Dr. Muhammad Khan P.W.3, there was blackening on the wound of the deceased and it was in the shape of group which were six in number, that in fact blackening occurs from a distance of 5 to 6 feet but according to the site plan prepared by the draftsman the point from where Muhammad Amir had allegedly fired at the deceased is at a distance of 10 Karams and that this could not have happened from such a distance. He further submits that as far as recovery of gun from the appellant is concerned, it is of no consequence because no crime-empty was.Recovered from the spot. Adds, that it is a case of delayed F.I.R., occurrence had taken place at 6-00 p.m., matter was reported to the police on the next day at 2-30 p.m. Without any proper and plausible explanation. He lastly, submits that prosecution has failed to prove its case against the appellant by any shadow of doubt.
7. On the other hand, learned counsel for the State submits that appellant was named in the F.I.R., he was the person who caused the fatal injury on the person of the deceased, that there is no conflict between ocular account and medical evidence and in fact is corroborated with each other, that recovery was also effected from the appellant. He supports the judgment of the learned trial Court.
8. We have heard the learned counsel for the parties at a great length and have also gone through the record with their able assistance. According to the prosecution case, the motive behind the present occurrence was that two months prior to the present occurrence a quarrel had taken place between the complainant party and 'the accused party in which Qutab Khan father of the present appellant and one of his acquitted co-accused were injured, the matter was reported to the police and in order to take the revenge Atta Muhammad was murdered. During cross- examination of the P.Ws. It came to light that Atta Muhammad deceased was not an accused in the said F.I.R. Prosecution also did not tender in evidence the said F.I.R. Either during the course of investigation or before the learned trial Court at the time of trial and in the said F.I.R. Injuries were caused by Hameed Ullah complainant and Shah- Jehan (given up P.W.). In our considered opinion, had they been present at the spot then they must have received the injuries from the hands of the appellant and his acquitted co-accused and they could have been the first target of the appellant party, their presence at the spot is doubtful, and in our considered view, prosecution even failed to prove the motive against the appellant.
9. As far as, conflict between ocular account and medical evidence. Is concerned, according to the statement Saif Ullah, Draftsman P.W.5 and site plan prepared by him Exh.P.D., the distance between point 1 and point No,5 has been given as 10 Karams. At point No,1 Atta Muhammad deceased was present while Muhammad Amir appellant was present at point No,5. Had the fire been shot from such a distance, there could not have been wound in shape of group which is six in number and moreover, the blackening could not have been there because blackening only occurs from 5 to 6 feet which also negates the presence of the eye. This conflict cannot be reconciled with any stretch of imagination.
10. Now we take up the recovery in this case, six persons according to the prosecution fired indiscriminately at the spot but not a single empty C was recovered from the spot. Mere recovery of gun on the pointation of the appellant cannot advance the prosecution case, so the recovery in this case is also no consequence.
11. As far as, F.I.R. Is concerned, occurrence had taken place in the month of July, 1999 at 6-00 p.m.
When the Mugharb Prayer takes place at 7-00 p.m. The distance between the police station and the place of occurrence is 20 Kms. But there is delay of 8-1/2 hours in lodging the F.I.R. Which also casts doubts on the prosecution version, it seems that F.I.R. Was recorded after due deliberation and consultation.
12. After having heard the learned counsel for the parties and going through the record, we are not convinced with the presence of the eyewitnesses and the prosecution story. Resultantly, the appeal filed by the appellant is accepted. The conviction and sentence recorded against the appellant by the learned trial Court is set aside. His death sentence is not confirmed. He is in jail and he shall be released forthwith, if not required to be detained in any other case.