' KHAWAJA MUHAMMAD SHARIF, J.-- This judgment will dispose of Criminal Appeal No,1040 of 1996, Criminal Revision No,21 of 1997 and Murder Reference No,20 of 1997 directed against the judgment dated 1-12-1996 passed by the learned Sessions Judge, Sheikhupura, whereby he convicted the appellant under section 302, P.P.C. And sentenced him to death with fine of Rs,10,000 or in default five years' R.I. He was also ordered to pay Rs,50,000 (fifty thousand) as compensation required under section 544-A, Cr.P.C. Payable to the legal heirs of the deceased.
2. The occurrence in this case took place on 8-7-1994 at 3-30 p.m. In the area of Jhanduwali situated at a distance of 7 K.Ms. From Police Station Khankah Dogran. Matter was reported to police station the same day at 4-30 p.m.
3. The brief facts of the case as narrated by the complainant Muhammad Rafi in the F.I.R. Are that on 8-7-1994 at about 3-30 p.m. He was sitting at the tubewell owned by Akbar while Muhammad Sarwar his son was taking buffaloes from his own land towards the village. When he reached near the Dera of Muhammad Boota appellant, the appellant while armed with .7 mm rifle started chasing him, that when Muhammad Sarwar deceased reached near the track of the canal Muhammad Boota appellant fired first shot from a distance of 4/5 Karams which missed, that on the report of the firing Muhammad Sarwar deceased took a turn then Muhammad Boota appellant fired a second shot hitting the chest of Muhammad Sarwar deceased who fell down at the Dera of Mushtaq Bajwa, that this occurrence was also witnessed by Muhammad Ajmal and Muhammad Farooq besides him. The deceased died at the spot. The motive behind the present occurrence was a money dispute between the appellant and the deceased.
4. After getting information about the occurrence the local police completed all the necessary formalities. Thereafter Muhammad Ayub, Inspector Police alongwith his subordinates proceeded to the spot. He prepared the inquest report Exh.P.E. And injury statement Exh.P.D. He collected from the spot empties of bullets vide memo. Exh.P.J. He also secured blood-stained earth from the spot vide memo. Exh.P.I. He also received last-worn clothes of the deceased vide memo. Exh.P.A. He arrested Muhammad Boota appellant on 25-7-1994. Thereafter investigation of the case was transferred to Malik Wazir Ali, S.-I. Who on 7-8-1994 got recovery of .7 mm rifle from the appellant vide memo.
Exh.P.G. Ultimately challan of the case was prepared and was submitted for trial.
5. The prosecution in order to prove its case has produced as many as 10 witnesses including Doctor, Investigating Officers, eye-witnesses and formal witnesses. After tendering in evidence report of Chemical Examiner Exh.P.L., report of Serologist Exh.P.M. And report of Forensic Science Laboratory Exh.P.N. Learned D.A. Closed the prosecution evidence. Thereafter statement of the accused/appellant was recorded under section 342, Cr.P.C. In which he pleaded not guilty. And claimed to be tried.
6. Learned counsel for the appellant in support of this appeal submits that in fact F.I.R. Was lodged at the spot after due deliberation and consultation and he has referred to the statement of Muhammad Farooq P.W.8 who had stated that after the occurrence police arrived at the spot and first of all recorded the statement of Muhammad Rafi complainant and Ajmal and then his statement. He submits that dead body was received in the hospital according to the statement of the doctor Ihsan-ul-Haq at 8-30 p.m. On 9-7-1994 i,e, the next day of the occurrence, that for one shot and for one injury 9 accused persons were involved amongst them 8 were named in the F.I.R.
Including two brothers of the present appellant and five accused for abetment while in the supplementary statement made by the complainant one Younas was also named as an accused but none of them either arrested or tried by the learned trial Court. Learned counsel submits that no reliance can be placed on such evidence.
7. As far as motive is concerned, learned counsel for the appellant submits that Investigating Officer had stated that he did not collect any evidence regarding motive. He has referred to page 42 of the paper book. He also submits that there is no evidence regarding motive except the statement of the complainant, that Muhammad Rafi complainant was duly confronted with his earlier statement regarding motive before the learned trial Court and he had also tried to improve his version on motive while making statement Exh.D.C. Being his supplementary statement. Learned counsel for the appellant submits that prosecution has failed to, prove the motive against the appellant. He further submits that in fact the deceased had a quarrel with one Younas a night prior to the day of occurrence. Learned counsel submits that reasons for the false implication of the appellant have been mentioned by him in his statement recorded under section 342, Cr.P.C.
8 . Learned counsel for the appellant submits that as far as eye-witnesses are concerned, prosecution has produced two eye-witnesses namely Muhammad Rafi P.W.7 father of the deceased and Muhammad Farooq P.W. Maternal-nephew of the deceased. Learned counsel submits that he was a chance witness and in fact he was resident of District Gujranwala where all his near relatives i,e, father, mother, sisters and brothers resided, that on the day of occurrence, according to the statement of Muhammad Farooq, he was coming from Khankah Dogran and he reached there per chance, that he had seen the occurrence from 5/6 Kanals. Learned counsel submits that he had given the distance between place of firing and the deceased as 4/5 paces while there is tattooing on the injury of the deceased which only occurs when the shot is fired from a distance of one yard. Learned counsel submits that even the complainant has given the distance between the accused and the deceased as 5 Karams and while according to the doctor Ihsan-ul- Haq, who had conducted the post-mortem examination there was tattooing on the injury of the deceased and the tattooing only becomes evident if the fire is made within one yard. Learned counsel submits that according to the prosecution story the deceased after receiving the fire shot ran for 1 or 1-1/4 acres but according to the position of internal organs of the deceased the damage was of such a nature that he was not in a position to run. He further submits that duration between the injury and the death given by the doctor is one hour which shows that had the eye-witnesses been present there, they must have given first aid to the deceased i,e, water or bandage etc. Learned counsel submits that it was a story of the prosecution that two crime-empties were recovered from the spot which were sent to the Fire-arm Expert. A rifle was also allegedly recovered on the pointation of the appellant which was in fact the licenced rifle of his brother and the report of Fire-arm Expert in this regard is in negative. Learned counsel for the appellant submits that no case is made out against the appellant and the appellant is entitled to acquittal.
9. On the other hand learned counsel for the complainant assisted by the learned counsel for the State submits that it was a daylight occurrence and also a case of promptly lodged F.I.R. There was no question of false implication. Ocular account is corroborated by medical evidence, that this is not a case of substitution and that the prosecution has proved its case against the appellant beyond any shadow of doubt. Learned counsel for the complainant has also referred 1997 SCM R p.89. They both support the judgment of the learned trial Court.
10. We have heard the learned counsel for the parties and have also gone through the record available on the file. In the instant case first of all we will deal with motive. The motive mentioned by the complainant before the learned trial Court is reproduced below:-- "The motive behind the occurrence was that Sarwar had to take the money from Boota. Two days before the occurrence a fight ensued between Sarwar and Boota over money matter. On the following day Sarwar left abroad and returned after 1-1/2 years back and told me that Boota had not returned his money. In the intervening period I, Muhammad Hanif and Muhammad Younas went to the house of Boota to ask for the return of the money upon which Boota accused issued a threat to me in the presence of the said persons mentioned above that on the return of Sarwar he would teach him a lesson and for that reason Boota accused had committed the murder of Sarwar."
' A bare perusal of the motive paragraph would show that there is no witness to the effect in whose presence Sarwar deceased had given money to Muhammad Boota appellant. There was no witness to the effect that a fight had taken place two days before the occurrence between Sarwar and Boota appellant on money matter. There is no corroboration to the statement of Muhammad Rafi, father of the deceased regarding motive. The statement of motive in his examination-in-chief mentioned above was duly confronted by the defence counsel during cross-examination and the same is mentioned at pages 32 and 33 of the paper book. The same is also reproduced below:-- "I had stated before the police that two days before the occurrence a quarrel had taken place between Boota and Sarwar (confronted with Exh.P.H. Where it is not so recorded). I had stated before the police that Boota issued a threat to me, Muhammad Hanif and Younas, that whenever Sarwar would return he would teach him a lesson (confronted with Exh.P.H. Where it is not so recorded but this demand was placed before the relative of Boota accused). I had stated before the police that I, Muhammad Younas and Muhammad Hanif placed the demand for the return of money before Boota accused (confronted with Exh.P.H. Not so recorded) I had not stated before the police that we had demanded money from Abdullah and others but they had threatened to kill Sarwar deceased (confronted with Exh.P.H. Where it is so recorded)".
' It may also be mentioned here that the complainant also made a statement which is Exh.D.C. On mentioned record and that statement was also confronted and the same is mentioned at page 33 of the paper book.
11. Now we deal with ocular account of prosecution. Muhammad Rafi had also admitted that he, Rafique and Boota had installed a tubewell in the land of Boota accused jointly. He further admitted to be correct that 7 days before the fateful day Boota accused had ousted us from the tubewell and thereafter he installed his own tubewell. This can be a very sound reason to falsely implicate Boota appellant because the complainant was thrown out from the said tubewell.
Muhammad Rafi also admitted that he did not cultivate any land near the place of occurrence. He also mentioned during the cross-examination at page 34 of the paper book that the distance between the deceased and the appellant was 3/4 paces and this fact is negated by the statement of Doctor Ihsan-ul-Haq as there was tattooing on the injury of the deceased which according to medical jurisprudence occurs when the fire is shot within the range of one yard while there are 5- 1/2 feet in one Karam ( rf ) and the distance which has been given by the prosecution in the site plan Exh.P.F. Between the accused and the deceased is 4 Karams so this is very significant conflict between the ocular account and the medical evidence. Had the complainant been present at the spot he must have given correct distance between the deceased arid the appellant. Then there is statement of Muhammad Rafi to this effect that the deceased after, receiving fire shot ran towards the brother of the accused but not towards the complainant. This is most unnatural. The natural conduct could have been that the deceased after receiving the shot should have run towards his father and not towards the brother of the accused. Dr. Ihsan-ul-Haq who had conducted the post- mortem examination had appeared as P.W.3 before the learned trial Court stated that it was possible for the deceased to have a run after receiving the injuries but in our opinion it is not possible because internal organs of the deceased were severely damaged as second and third clavical ribs on left side were found fractured. Left scapular bone fractured at major part of upper lobe of the left lung was reputed. Left thorax cavity was full of blood. All the organs were found healthy except plora on left side was reptured and damaged. Upper lobe of the left lung was reputed. Blood vessels were also raptured.
12. We are of the opinion that the complainant was not present at the spot at the time of occurrence. The other witnesses namely Muhammad Farooq is the real maternal-nephew of the deceased who in fact was resident of District Gujranwala where his mother, father, sisters and brothers resided also. He was not present at the spot at the time of occurrence but according to his statement he was coming from Khankah Dogran. His presence at the spot can be treated as per chance. His explanation that he was residing with the deceased since his childhood is not believable, even otherwise his village falls within the jurisdiction of District Gujranwala 30 k.Ms. Away from the place of occurrence and this fact has been admitted by him in his cross-examination. He had also admitted at page 36 of the paper book that police visited the spot at 4-15 p.m. And the police recorded his statement and that of Muhammad Rafiq and Muhammad Ajmal P. Ws. At the spot while the story of the prosecution was that after the occurrence Muhammad Rafiq complainant had gone to the police station and lodged the F.I.R. The statement of Muhammad Farooq to this effect contradicted the story of the prosecution as he has given the distance between the place where the deceased received injury and falling of the deceased as 1 or 1-1/4 acres. Between these two places no trail of blood was found. He also stated that Rafique and Faryad were brothers of Boota appellant and the, deceased had run towards that direction where they were standing. This was also unnatural conduct of the deceased. He should have run towards his father for the help and also towards Farooq P.W. He also admitted at page 36 in third paragraph of the paper book that he had seen the accused for the first time on the day of occurrence. It means that accused was not known to him and even no identification parade was held in this regard. He also stated that deceased was at four paces ahead of the accused when he saw them first time. The evidence of doctor about tattooing on the injury of the deceased falsifies this position. His presence at the spot is also very doubtful. He is chance and related witness. No independent witness has been produced by the prosecution. In our considered view both the eyewitnesses were not present at the spot.
13. Now we deal with the aspect of lodging the F.I.R. In the police. Station. As far as this fact is concerned, the same has been negated by Farooq P.W. While submitting before the learned trial Court during cross-examination that police reached at the spot at 4-15 p.m. And also recorded statement of Muhammad Rafi beside his statement and statement of Muhammad Ajmal P.W.
14. Dead body was received in the hospital on the next day at 8-30 a.m. Which also shows that F.I.R.
Was lodged after due deliberation and consultation because dead body was never received in the hospital on 8-7-1994. Eight persons were mentioned in the F.I.R. As accused for one injury while ninth one Younas was implicated in this case during supplementary statement Exh.D.C. Police never arrested 8 accused persons except the present appellant. There can be no surety that the complainant who had involved 8 accused persons falsely why cannot implicate falsely the present appellant also. It has also come on record that according to Exh.D.C. The deceased had an altercation with one Younas a night prior to the occurrence.
15. As far as recoveries are concerned, two crime-empties were recovered from the spot which were sent to the Fire-arm Expert. A rifle was also recovered from the appellant which in fact was a licensed rifle of the brother of the appellant. According to the report of Fire-arms Expert the crime- empties were never fired from the recovered rifle so the report Exh.P.N. Of Fire-arm Expert is negative. No implicit reliance can be placed on the testimony of these above mentioned P.Ws. If one sees the case of the prosecution from any angle he will come to the conclusion that prosecution has miserably failed to prove its case.
16. It may also be mentioned here that appellant while replyir. To Question No,6 in his statement recorded under section 342, Cr.P.C. Has stated as under:-- "A false case has been made by the complainant against me. Myself, Rafique and Rafi complainant had installed a tubewell in my land and 7/8 days prior to the occurrence I ousted Muhammad Rafi complainant from my tubewell and did not allow him to cultivate his land from the said tubewell over which we quarreled with each other. Some unknown person had killed Sarwar deceased and the complainant due to his grudge over the tubewell substituted me in this case."
' A bare perusal of the abovesaid answer would show that the version taken by the appellant seems to be plausible. The cross-examination of the witnesses and the statement of the appellant recorded under section 342, Cr.P.C. As mentioned above seem to be more plausible and convincing one if the same are put in a juxtaposition with the prosecution version.
17. The nutshell of the above discussion is that the prosecution has miserably failed to prove its case particularly the motive against the appellant. Ocular account is contradicted by medical evidence, report of Fire-arm Expert regarding rifle is negative. In this view of the matter we accept this appeal, set aside the conviction and sentence awarded to the appellant by the learned trial Court. Murder Reference is replied in the negative and death sentence is not confirmed. Criminal revision is dismissed. The appellant is behind the bars. He shall be released forthwith if not required in any other case.
' Death sentence awarded to the appellant by the learned Trial Court is not confirmed.