' This judgment will dispose of Criminal Appeal No,1652 of 2001 filed by Rafaqat Ali, appellant who was convicted under section 302, P.P.C. And sentenced to imprisonment for lift with further direction to pay Rs,2,60,000 as Diyat with the benefit of section 382-B, Cr.P.C. By learned Sessions Judge, Hafizabad vide judgment dated 2-10-2001.
' Criminal Revision No,789 of 2001 filed by the complainant for enhancement of sentence of convict appellant shall also be disposed of through this single judgment.
2. Briefly stated the facts of the case are that Muhammad Bashir complainant levelled the land of Rafaqat Ali and Ghulam Sarwar sons of Munir Ahmad through tractor blade and on 12-6-1999 his son Sajjad Ahmad demanded the amount of said labour from Rafaqat Ali and Ghulam Sarwar whereupon a quarrel took place between son of the complainant and aforesaid two persons. The matter was patched up by respectable of the village but Rafaqat and Ghulam Sarwar threatened Sajjad Ahmad to teach him a lesson for their disgrace. On 12-6-1999 at 4-30 p.m. Sajjad Ahmad was sitting in the field of watermelon when the complainant alongwith Haq Nawaz and Shah Nawaz was also present there when in the meanwhile Rafaqat Ali armed with .12 bore gun and Ghulam Sarwar armed with a hatchet came there. Ghulam Sarwar raised Lalkara that Sajjad Ahmad be taught a lesson for their disgrace. At this, Rafaqat Ali fired a shot with his gun hitting Sajjad Ahmad at his left thigh who fell down. The complainant and his companions tried to catch hold of the accused whereupon Rafaqat Ali started firing in the air and fled away. Sajjad was taken to Rural Health Centre, Vanike Tarrar where he was given first aid by the doctor and was referred to Civil Hospital, Hafizabad but he died as soon as he reached Civil Hospital.
' The motive alleged was previous quarrel between the deceased and the accused.
3. Investigation of the case was taken over by Ejaz Ahmad, S.-I. (P.W.10). He went to Civil Hospital, Hafizabad where he inspected the dead body of Sajjad deceased; prepared inquest report Exh.P.F., injury statement Exh.P.G. And from the place of occurrence took into possession the blood-stained earth vide memo. Exh.P.J. On 18-6-1999 both Rafaqat and Ghulam Sarwar accused were arrested.
Rafaqat Ali accused while in custody on 27-6-'999 led to the recovery of .12 bore gun P.4 which was taken into possession vide memo. Exh.P.K. After completions of the remaining formal investigation, both the accused were challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 11 witnesses in all; then the learned D.A. Tendered in evidence report of the Chemical Examiner Exh.P.M., report of the Serologist Exh.P.N., report of the Forensic Science Laboratory Exh.P.O. And closed the prosecution case. After that statements of the accused were recorded under section 342. Cr.P.C. In which they pleaded false implication. After conclusion of the trial, both the accused were convicted and sentenced as stated above.
5. Learned counsel for the appellants after having read the entire prosecution evidence and other material available on record submits that though the distance between the place of occurrence and the police station is 2-1/2 miles but the matter was reported to the police after 10 hours without any proper explanation. Further submits that both the eyewitnesses namely Muhammad Bashir and Haq Nawaz are father and first cousin of the deceased and no independent witness has been produced by the prosecution. Adds that occurrence having taken place at dark hours of the night, it was an unwitnesses occurrence and further the deceased in his lifetime was medically examined by Dr. Muhammad Mumtaz, P:W.3 and the duration given by the doctor was fresh one while on the other hand the complainant who is father of the deceased stated that the deceased was never medically examined before his death. According to the learned counsel the said examination was got conducted by the police and this fact finds mention in the M.L.R. Further adds that so far as recovery of gun is concerned, the report of the Fire-arms Expert was that it was in working order.
Concluding his submissions, learned counsel submits that the prosecution has miserably failed to prove its case against the appellants.
6. Learned counsel for the State supports the judgment of trial Court by submitting that ocular account is fully corroborated by the medical evidence, names of the appellants with roles are mentioned in the F.1.R., the defence failed to prove any motive to falsely implicate the appellants and that the P.Ws. Had no animosity against the appellants.
7. I have heard learned counsel for the parties and have gone through the record with their able assistance. In the instant case, the occurrence had taken place at 4-30 p.m. On 12-6-1999. Even at that time, the Asar prayer does not take place. Rural Health Centre, Vanikey Tarrar is at a distance of 1 or 1-1/2 kilometres from the place of occurrence. The deceased- was got medically examined by the police on the same day and the same fact finds mention the relevant column of M.L.R.
Exh.P.C. In the column of "name of relative or friend" the word mentioned is police. Had Bashir and Haq Nawaz eye-witnesses been present at the spot, they must have taken the injured to the hospital and their names must have been mentioned in the relevant column. Muhammad Bashir complainant father of the deceased in cross-examination in clear terms stated that Sajjad deceased was never medically examined before his death which statement is against Exh.P.C.
' The deceased was medically examined at 8-35 p.m. On 12-6-1999 and the duration of injury was given as fresh, so it means that the occurrence had not taken place at 4-30 p.m. As alleged by the prosecution. It was a case of delayed F.I.R. The distance between the place of occurrence and Rural Health Centre is one acre. The matter was not reported to the police even after admission of the deceased in the said centre.
' Both the alleged eye-witnesses are closely related to the deceased inasmuch as Muhammad Bashir is father of the deceased while Haq Nawaz is first paternal-cousin of the deceased. No independent witness has been produced by the prosecution.
' No crime-empty was recovered from the spot. According to report of the Fire-arms Expert, the gun allegedly recovered on the pointation of Rafaqat Ali appellant was in working order. Mere recovery of gun will not advance the prosecution case any further. The story of motive was improved by the complainant before the trial Court and he was duly confronted with his statement Exh.P.H. Merely on the ground that the complainant and the P.Ws. Had no motive to falsely implicate the appellants, conviction cannot be based or maintained if the Court comes to the definite conclusion that the eye-witnesses were not present at the spot and the occurrence was un witnessed one.
' After having analyzed the entire case, I am of the considered view that it was an un witnessed occurrence and the alleged eye-witnesses namely Muhammad Bashir and Haq Nawaz were not present at the spot at the time of occurrence. In nutshell, the case of prosecution is doubtful, so I while extending the benefit of doubt accept this appeal, set aside the conviction and sentence recorded against the appellants by the trial Court and acquit him of the charge. Appellant is in jail and he shall be released forthwith, if not required to be detained in any other case.