' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,756 of 1998 filed by Sharafat Ali-appellant who was convicted under section 302, P.P.C. And sentenced to death with further direction to pay Rs,20,000 as compensation and in default six months' S.I. By learned Additional Sessions Judge, Sheikhupura vide judgment dated 29-6-1998.
' Murder Reference No,327 of 1998 for confirmation of death sentence or otherwise shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 7 a.m. On 13-2-1996 within the revenue estate of Mauza Kuthala Virkan at a distance of 8 miles from Police Station Saddar, Muridkey, District, Sheikhupura while the matter was reported to the Police by Allah Ditta through written complaint Exh.P.D. At 8-30 a.m. The same day at Adda Kuthiala Virkan and the formal F.I.R. Exh.P.D./1 was recorded by Zulfiqar Ali, A.S.-/.
3. Briefly stated the facts of the case are that Shahbaz Ahmad is brother of Allah Ditta, the complainant. One Shabbir Hussain, a co-villager of the complainant had close friendship with Shahbaz Ahmad, brother of the complainant. Sharafat Ali son of Muhammad Sharif owed Rs,3,000 to Shabbir Hussain but Sharafat Ali could not pay the same as promised due to which a quarrel took place in between Shahbaz Ahmad and Sharafat but the same was separated. Sharafat Ali had a grudge and on the day of occurrence, that is, 13-2-1996, the complainant, Shahbaz Ahmad, brother of the complainant, Nasir Ahmad of village Dedarpur Virkan and Allah Ditta son of Taj Khan at about 6-30 a.m. Were proceeding on their cycles towards Kuthiala Virkan. When they all reached at a distance of 9/10 acres from village Sudhein at about 7 a.m. And Shahbaz Ahmad was leading while Nasir Ahmad was behind him. Sharafat Ali armed with rifle 7-MM emerged and asked brother of the complainant to mount from the cycle. Shahbaz Ahmad mounted from the cycle but was fired at by Sharafat Ali with rifle 7-MM which hit on his left flank. He fell down on the ground. The second :;hot fired by Sharafat Ali aimed at Nasir missed. Shahbaz succumbed to his injury at the spot. Qaiser and Sabir were made as accused of abetment.
4. Investigation of the case was taken over by Zafar lqbal. Inspector/S.H.O. (P.W.8). He after registration of the formal F.I.R. Went to the place of occurrence, inspected the dead body of Shahbaz Ahmad, prepared injury statement Exh.P.H., inquest report Exh.P.H. And from the spot took into possession the blood-stained earth vide memo. Exh. P.E. He drafted the rough site-plan Exh.P.L.
Of the place of occurrence. On 6-3-1996, Sharafat Ali accused was arrested and he while in custody got recovered rifle 7-MM (P.7) which was secured vide memo. Exh.P.E. The site-plan Exh.P.K.
Was got prepared from the Patwari. After completion of the remaining formal investigation, the accused was challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced nine witnesses in all. Then the learned D.D.A. Tendered in evidence report of the Chemical Examiner Exh.P.M., report of the Forensic Science Laboratory Exh.P.N. And closed the case of the prosecution. After that, statement of the accused was recorded under section 342, C.P.C. In which the appellant pleaded false involvement due to suspicion. However, after conclusion of the trial, the accused was convicted and sentenced as sated above.
6. Learned counsel for the appellant after having read the entire prosecution evidence and other material available on record submits that prosecution has failed to prove the motive and that motive, if any, was against Shabbir Hussain, (not produced) and not Sharafat Ali, appellant. Further submits that two eye-witnesses namely, Allah Ditta (P.W.3) is brother of the deceased while Nasir Ahmad (P.W.4) is friend of the complainant. According to learned counsel, there are material contradictions in the statements of both the alleged eye-witnesses. Elaborating his arguments, learned counsel submits that according to F.1.R., the appellant had fired two shots, one on the person of deceased and second on the person of Nasir and the second missed but before the trial Court, Allah Ditta, the complainant deposed that appellant fired one shot on the person of the deceased and specifically denied the second shot having been fired by the appellant and said portion of his statement was duly confronted. Adds that Nasir Ahmad P.W.4 deposed before the trial Court that the appellant had fired only one shot. Learned counsel submits that above said material contradictions in the statements of the eye-witnesses suggest that both the alleged eye- witnesses were not present at the spot and had they been present at the spot, they must have stated the correct number of shots. Further adds that Nisar Ahmad P.W.4 is a chance witness being not the resident of place of occurrence but being resident of Bedarpur Virkan which is at a distance of 12 acres from village Sudham and 7 acres from the place of occurrence. The said witnesses having no agricultural land near the place of occurrence had no business to be present at the place of occurrence at 7 a.m. In the month of February when the winter season was on its peak.
Also adds that Nasir Ahmad P.W. Was a person of bad character having been involved in cases of dacoity.
' It is further submitted by learned counsel for the appellant that Khadim Hussain Patwari who prepared the site-plan with scale had not mentioned the name of the accused, names of the eye- witnesses and the presence of the eye-witnesses in the said site-plan. According to learned counsel, this being the position, both the alleged witnesses would not be presumed to be present at the spot. In this regard, learned counsel has relied upon 1968 SCM R 161 and 1978 PCr.LJ 24.
' Learned counsel argues that there is conflict between ocular account and the medical evidence.
The diameter of entry wound of injury on the person of deceased is 1 c.m. While the exit is 1.5 c.m. Of diameter so that injury diameter could not have been caused by a 7-MM rifle and it could have been caused with .32 bore pistol.
' Concluding his arguments, learned counsel submits that it being an unwitnessed occurrence having taken place in early hours of the morning the appellant has been made a scapegoat and that the prosecution has miserably failed to prove its case against the appellant specially when the motive stand's not proved.
7. Learned counsel for the complainant submits that appellant is the only accused in this case, the occurrence having taken place in broad daylight, there was no question of mistaken identity, ocular account is fully corroborated by medical evidence, there was no previous background of enmity and that character of a witness is not relevant to determine the guilt or otherwise of an accused.
8. Learned counsel for the State submits that both the eye-witnesses are natural being resident of the place of occurrence and cannot be termed to be chance witnesses because the distance of 12 acres is not far away distance. Further submits that motive having not been proved, it is not a case of lesser punishment. She has relied upon 1999 SCM R 1668 and PLD 2002 SC 77.
9. We have heard learned counsel for the appellant and have gone through the record with their able assistance. The motive for the present occurrence was that one Shabbir Ali owed Rs,3,000 to Sharafat Ali appellant which he could not pay as promise and 2 days prior to occurrence, a quarrel took place between Shahbaz and Sharafat Ali but the matter was patched up. The most important witnesses to prove the motive in this case was Shabbir Hussain but he neither appeared before the Police nor was produced before the trial Court. No application was ever moved under section 540, Cr.P.C. Either by the complainant or the State to summon Shabbir to prove the motive. So, in our considered view, the prosecution has failed to prove the motive.
' Allah Ditta (P.W.3) is real brother of the deceased. The other eye-witness namely Nisar Ahmad was examined as P.W.4. Both these witnesses did not state as to why the complainant and deceased were going to together in the month of February at 6-30 a.m. Allah Ditta is resident of Mauza Sudham while Nisar is resident of Bedarpur Virkan. The instant occurrence had taken place at a distance of 9/10 acres from Mauza Sudham. No explanation for the presence of the eye-witnesses at the spot has come on record. None from the place of occurrence has been cited or produced as a witness. Both the alleged eye-witnesses had no business or agricultural land near the place of occurrence so their presence at the spot at the time as alleged by the prosecution is doubtful and not confidence-inspiring. Moreover, Khadim Hussain Patwari (P.W.7) admitted in cross-examination that he had not mentioned the names of the eye-witnesses and accused in the site-plan prepared by him. It was a glaring omission on the part of the prosecution and learned counsel for the appellant was right on relying upon 1968 SCM R 161 and 1978 PCr.LJ 24.
' The F.I.R. Was not recorded at the Police Station but was recorded at Adda Kuthiala Virkan.
According to the post-mortem report, stomach was containing semi-digested food and faecal matter was also available in the intestine. It shows that the occurrence had taken place in early hours of the morning and was unwitnessed one. According to prosecution, the occurrence had taken place at 7 a.m. The post-mortem of the deceased was conducted at 4 p.m. On the same day, that it, 13-2-1996. The duration between death and post-mortem examination was given to be 6-8 hours by Dr. Iftikhar Ahmad (P.W.6). It also does not fit in with the time of occurrence given by the prosecution. The weapon used in the commission of offence according to prosecution case rifle 7-MM. The diameter of the injury on the person of the deceased was 1 c.m. x 1.5 c.m. The injury with such diameter could not have been caused by a 7-MM rifle.
' As far as recovery is concerned, no crime empty was taken into possession from the spot and the rifle allegedly recovered on the pointation of the appellant was his licensed rifle.
' The motive having not been proved, the presence of the eyewitnesses at the place of occurrence being doubtful, they being chance witnesses, conflict between ocular account and medical evidence and no crime empty having been recovered from the spot, the prosecution has miserably failed to prove its case against' the appellant beyond any shadow of doubt rather the defence has been able to create dents in the prosecution story. On the basis of evidence of the nature as in the instant case, conviction on a capital charge cannot be maintained. Resultantly, we accept the appeal and set aside the conviction and sentence recorded against the appellant by the trial Court. The appellant is acquitted of the charge. He is in jail and shall be released forthwith, if not required to be detained in any other case.
' The death sentence of the appellant Sharafat Ali is not confirmed. Murder reference is replied in the negative.