1. This judgment will dispose of Criminal Appeal No. 1852 of 2001 filed by Muhammad Yayha and Muhammad Riaz, appellants who were convicted under section 302(b), P.P.C. And sentenced to undergo imprisonment for life with further direction to pay Rs.50,000 as compensation by learned Additional Sessions Judge, Kasur vide judgment dated 30-10-2001.
2. Brief facts of the case are that at 10-00 p.m. On 12-8-1999, Hassan Muhammad complainant was present in his house alongwith his family. Yayha alias Bagoo and Riaz came and asked for his son Iftikhar alias Papu. The complainant came out. Yayha and Riaz expressed to go to Phoolnagar in connection with an urgent work. Iftikhar alias Papu left with them. On the morning of 13-8-1999, Muhammad Ashraf and Maqbool Ahmad told the complainant that they were returning from village Purnawan during the preceding night when at about 11-00 p.m. Near the sugarcane crop of Muhammad Yaqoob, they saw in the search light that Yayha armed with pistol, Riaz armed with pistol, Manzoor, Arshad and Abdul Ghafoor also armed with fire-arms were having scuffle with Iftikhar alias Papu. Yayha and Riaz were expressing that Iftikhar had murdered their paternal grandfather (Dada) namely Ibrahim, and he had escaped criminal case but would not be spared now. Yayha fired with pistol hitting Iftikhar on his forehead and left shoulder. Riaz also fired at Iftikhar hitting in his belley. Manzoor fired thrice hitting Iftikhar on the left arm and other parts of the body. Iftikhar alias Papu fell down on the ground. Manzoor and Abdul Ghafoor expressed that these persons be captured so that they should not disclose the matter i.e. Ashraf and Maqbool Ahmad.
2. Ashraf and Maqbool hid themselves in the sugarcane field and reached the village in the morning.
3. The complainant alongwith Mehraj Din and Khushi Muhammad went to the spot and found Iftikhar alias Papu dead.
3. Investigation of the case was taken over by Shabbir Ahmad Khan, S.-I. (P.W.14). He after registration of the formal F.I.R. Reached the place of occurrence where the dead body of deceased was lying. He prepared inquest report Exh.P.K. And also the injury statement Exh.P.M., blood-stained earth was taken into possession vide memo. Exh.P.E., four crime empties were also secured vide memo. Exh.P.F., site-plan Exh.P.N. Was also prepared, statements of the witnesses were recorded under section 161, Cr.P.C., last-worn Shalwar of the deceased was secured vide memo. Exh.P.A., on 19-8-1998 Abbass, F.C. Deposited empties and blood-stained earth with the concerned laboratory at Lahore, the five accused were arrested on 30-8-1999, the investigation was conducted by Abdul Hafeez, S.-I. (P.W.13), on 7-9-1999 while in Police custody, Yayha accused got recovered .30 bore pistol which was taken into possession vide memo. Exh.P.B., Riaz accused on the same day also got recovered pistol .30 bore P.3 which was secured vide memo. Exh.P.C., similarly, on 9-9-1999 Arshad accused led to the recovery of .30 bore pistol which was taken into possession vide memo. Exh.P.J.
4. After completion of investigation, all the five accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 15 witnesses in all, then the learned A.D.A. Tendered in evidence repot of the Serologist Exh.P.P., report of F.S.L. Exh.P.Q., report of Chemical Examiner Exh.P.O. And closed case of the prosecution. After that, statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded false implication.
6. Learned counsel for the appellants in support, of this appeal submits that two eye--witnesses were mentioned in the F.I.R. Namely Maqbool Ahmad P.W.9 cousin of the complainant and Ashraf maternal nephew of the complainant (given up). He submits that Maqbool Ahmad P.W. Has been disbelieved by the learned trial Court. Learned counsel submits that as far as Hassan Muhammad P.W.7 is concerned, he is father of the deceased and he is the only witness of last seen when the appellants asked his son Iftikhar alias Pappu deceased to accompany them to Phoolnagar and they took Iftikhar alias Pappu with them. Learned counsel submits that as far as recovery from the appellants is concerned the witnesses of the, recoveries are police officials and not d single witness from public was either cited or produced by the prosecution. Learned counsel submits that on this evidence the learned Court has convicted the two appellants.
7. On the other hand learned counsel for the State assisted by the learned counsel for the complainant submits that appellants were named in the F.I.R., they took the deceased with them and the deceased was murdered mercilessly by the appellants. Recovery was effected. From them, that crime empty recovered from the spot matched with the pistol recovered from the present appellant. He submits that there is not only evidence of last seen but there is also a positive report of Fire-arm Expert and the learned trial Court was wrong in disbelieving the evidence of Maqbool Ahmad P.W.
8. I have heard the learned counsel for the parties and also have gone through the record available on the file. In the instant case, according to the prosecution the motive' behind the present occurrence was that grandfather of Yahya was. Murdered by the deceased. Neither any F.I.R. In this regard was produced before the learned trial Court nor any other documentary evidence was brought on the record to prove the motive that Iftikhar deceased was not one of the accused of murder case of grandfather of Yahya appellant. Even learned trial Court has disbelieved the motive and rightly so. If the foundation of the case has been demolished then the structure built on the said foundation shall also fall down on the ground. Two eye-witnesses were mentioned in the F.I.R namely Maqbool Ahmad who is first cousin of the complainant and Muhammad Ashrat maternal nephew of the complainant (given up) but their conduct at the spot is most unnatural. Had they been present at the spot five accused persons including the two appellants could not have spared these two close related witnesses of the deceased for the reason that they could not depose against them. It was stated by these two eye--witnesses in their statements before the police that they had seen the occurrence in the search light but before the learned trial Court they have stated that they had seen the occurrence in the tortch light. Neither the search light nor tortch light was produced before the police so their presence at the spot is doubtful. After the occurrence they ran from the spot and they kept tortch with them and saw the accused for 15 minutes. This is also most unnatural that they did not inform the complainant just after the occurrence but early in the morning they informed the complainant. On the same evidence three accused have been acquitted by the learned trial Court namely, Manzoor, Arshad and Abdul Ghafoor. The appeal against their acquittal was also filed vide Criminal Appeal 1822 of 2001 which was dismissed by a Division Bench of this Court. As far recovery of pistol is concerned, though the crime empty recovered from the spot matched with the pistol allegedly recovered from the appellant but the recovery witnesses are police officials and not a single witness from the locality was either cited or produced by the prosecution to prove the recovery. Merely on the positive report of Fire-arm Expert conviction and sentence on capital charge cannot be maintained. Both the eye-witnesses are closely related to the deceased i.e. Hassan Muhammad complainant is father of the deceased while Maqbool Ahmad is first cousin of the deceased, so they are interested witnesses. There is no independent corroboration in the instant case. According to the F.I.R. Indiscriminate firing was made by five accused persons, only four crime empties were recovered from the spot. It is a case of capital punishment. Court has to see the quality of evidence and not the quantity of evidence which is lacking in this case. The eye-witness account is not so trustworthy on which conviction can be maintained. Keeping in view the above circumstances, I, while granting benefit of doubt, accept this appeal and set aside the impugned order of conviction and sentence. The appellants shall be released forthwith if they are not required in any other case.