' This judgment will dispose of Criminal Appeal No.138 of 2002 filed by Azhar Ahmad etc. And Criminal Appeal No.139 of 2002 filed by Khalid Musa directed against the judgment dated 31-1-2002 passed by the learned Additional Sessions Judge, Chiniot, District Jhang, whereby he convR..Ed the appellants in Criminal Appeal No.138 of 2002 under section 302(b), P.P.C. And sentenced them to undergo life imprisonment with further direction to pay Rs.50,000 as compensation required under section 544-A, Cr.P.C. The appellant Khalid Musa in Criminal Appeal No.139 of 2002 was convicted under section 308, P.P.C. And was sentenced to 10 years' R.I. With compensation of Rs.50,000 payable to the legal heirs of deceased. In default of payment of compensation six months' further R.I. Benefit of section 382-B, Cr.P.C. Was also granted to the appellants.
2. Brief facts of the instant case as narrated by the complainant in the F.I.R. Are that on 26-8-1999 at about Sham Wela the complainant and his maternal nephew Zaheer Ahmad were present in the house of the complainant. Aziz Ahmad deceased came on his car. On hearing the voice of car the complainant and his nephew (Bhanja) Zaheer Ahmad came out and saw Muhammad Aslam (now died), Azhar Ahmad, Muhammad Ashraf and Khalid Musa armed with fire-arm who are already waiting for Aziz Ahmad, as Aziz Ahmad tried to come out of his car the accused Muhammad Aslam fired with .30 bore pistol which hit on right buttock of Aziz Ahmad, second fire on him was made by accused Muhammad Ashraf which also hit on the right buttock of Aziz Ahmad and he became injured. The accused Azhar Ahmad and Khalid Musa also made firing hitting on the glasses of right side windows of the car due to which glasses of the car were broken and also hit on the back of right side of the car. Thereafter, the accused fled away from the spot. The motive behind this occurrence was Lain DaM ( epats ) of Rishtas.
3. After getting information about the occurrence the local police completed all the necessary formalities and then Qalab Abbas, S.-I. Inspected the dead body, prepared its injury statement Exh.P.B. And inquest report Exh.P.C. Thereafter he visited the place of occurrence and took into possession blood-stained seat cover of the car Exh.P.E. And Car No.MNJ-100 vide memo. Exh.P.F. Clothes were also received by him.
On 10-10-1999 he arrested Azhar Ahmad and Khalid Musa and on 21-10-1999 Azhar Ahmad got recovered pistol .30 bore vide memo. Exh.P.H. Ultimately he challaned the accused/appellants on 2-7-2000.
4. Prosecution in order to prove its case has produced as many as 12 witnesses including doctor, eye-witnesses, Investigating Officer and other relevant persons. After tendering in evidence report of Chemical Examiner Exh.P.M. And that of Serologist Exh.P.N. As well as report of Forensic Science Laboratory Exh.P.O., learned D.D.A. Closed the prosecution evidence. Thereafter, statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded that innocence. After taking into consideration all the necessary record and hearing the learned counsel for both the parties, learned trial Court convicted and sentenced the appellants as stated above. Hence this appeal.
5. Learned counsel for the appellants in support of both these appeals submits that there was a delay of 12 to 16 hours in lodging the F.I.R. Without any proper explanation, that there is conflict between the ocular account and the medical evidence because the diagram of the injuries of the post-mortem report four entry wounds have been shown. That prosecution has failed to prove the motive against the appellants, that both the eye-witnesses are father and first cousin of the deceased respectively, that no independent witness has been produced by the prosecution as far as recovery of pistol from Azhar Ahmad appellant is concerned. The recovery witness in this case namely Saeed Ahmad was son of the complainant and brother of the deceased, that no crime empty was recovered from the spot, that during the course of investigation Muhammad Aslam and Muhammad Ashraf accused were found innocent. Learned counsel submits that according to Exh.P.C., Azhar Ahmad had made a call to Muhammad Ashraf and Muhammad Aslam accused who were at Gojra at the time of occurrence, that there are material contradictions between the statements of the two eye-witnesses. Learned counsel further argued that P.W.2 had admitted that the complainant had interviewed with Azhar Ahmad appellant in Jail, that there is no material on the record which could prompt the appellants to commit the murder of the deceased. Learned counsel submits that Chenab Nagar is a small town but police did not get information about this occurrence till the report was lodged by the complainant, that it was an unwitnessed occurrence.
Learned counsel submits that according to the complainant the occurrence had taken place at Sham Wela while according to P.W.3 Zaheer Ahmad it had taken place at 4-00 p.m. Learned counsel submits that according to Dr. Imran Ahmad the time between injury and death was 12 to 20 hours but according to police information death took place at 8/9-00 p.m. Lastly he submits that prosecution has miserably failed to prove its case against the appellants beyond any shadow of doubt.
6. On the other hand learned counsel for the State submits that delay in lodging the F.I.R. Has been explained by the complainant in the F.I.R. Learned counsel submits that both the eye-witnesses are natural witnesses. Learned counsel supports the judgment of the learned trial Court.
7. I have heard the learned counsel for the parties. In all there were four accused. Muhammad Ashraf and Muhammad Aslam who died during the trial, are real brothers. Azhar Ahmad appellant is son of Muhammad Aslam while Khalid Musa is son of Muhammad Ashraf. Two injuries on the buttock of the deceased were attributed to Muhammad Aslam and Muhammad Ashraf, Aslam had already died while Muhammad Ashraf was found to be innocent and his name was placed in Column No.2 of the challan, he was not arrested by the police but was summoned by the learned trial Court. As far as Azhar Ahmad and Khalid Musa were concerned they were alleged to have fired shot which hit on the car of the deceased resulting about breaking of the window panes of the said car. No crime empty was recovered from the spot. Recovery was only effected from Azhar Ahmad appellant on 21-10-1999 while he was arrested on 10-10-1999. The most important point in this case, in my opinion, is that according to the prosecution case occurrence had taken place at Shamwela.
It was month of August, 1999. Shamwela is considered to be at 5/6-00 p.m. And in month of August, Maghrab prayer takes place at about 7-00 p.m. Police Station was at a distance of 2 K.Ms. Four to five eye-witnesses were mentioned in the F.I.R. It is correct that the deceased was seriously injured, he was taken to the Hospital for medical examination and he died. According to the post-mortem examination the time between injury and death was between 45 to 90 minutes. It means that the deceased met his . Death at about 8-00 or 9-00 p.m. Why the complainant and the other eye- witnesses who were closely related to the deceased kept silent till the next morning i.e. 7-30 a.m. Of 27-8-1999. It cast doubt on the veracity of the prosecution case. Had the eye-witnesses been present at the spot and had seen the occurrence with their own eyes, they must have informed the police. During the cross-examination it has come on the record Coat the complainant was a rich man and had so many shops. Naturally there must be a telephone connection at his resident.
Police could have been informed through telephone or by some near relatives of the complainant.
Even none from the locality informed the police about the present occurrence, no crime empty was recovered from the spot. Except Azhar Ahmad no recovery was effected from any of the accused person. Both the eyewitnesses are father and first cousin of the deceased respectively. No independent and unrelated witness has been produced by the prosecution. Recovery from Azhar Ahmad appellant is of no avail to the prosecution because there was no report of matching as no crime empty was recovered from the spot. It has also come on record that both Aslam and Ashraf were sons-in-law of the complainant but they have later on contracted second marriages.
Naturally the complainant had a grudge against this act of the accused. Moreover, the complainant and two appellants Ashraf and Aslam (now died), the real brothers, were Ahmadis, but later on both the accused embraced Islam. Naturally the complainant had grudge against the accused on this score also. Two bullets were recovered from the dead body of the deceased and were handed over by the Doctor after post-mortem examination, to the police but the same were never sent to the Fire-arm Expert. No injury is attributed to Azhar Ahmad and Khalid Musa except that they fired resulting into breaking of window panes of the car. Then there is duration given between the death and post-mortem of the deceased is 12 to 20 hours while the post-mortem took place on 27-8-1999 at 11-00 a.m. The occurrence could also have taken place in dark hours of night and was unwitnessed by anybody. In the Column No.3 of the inquest report no time and date has been written by the Investigating Officer when he received the information about the death.
8. After hearing the learned counsel for the parties and going through the record available on the file, I am of the opinion that prosecution has not been able to prove its case against the appellants beyond any shadow of doubt. In this view of the matter, both the appeals are accepted and the conviction and sentence awarded to the appellants are set aside. Muhammad Ashraf appellant be, released forthwith if not required in any other case. The appellant who is on bail, his bail bonds are discharged.
ORDER revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.