' This judgment will dispose of Criminal Appeal No,1794 of 2000, Criminal Revision No,914 of 2000 directed against the judgment dated 1-12-2000 passed by the learned Additional Sessions Judge, Sialkot whereby he convicted the appellant under section 302(b), P.P.C. And sentenced him to undergo life imprisonment with further direction to pay Rs,50,000 as compensation as required under section 544-A, Cr.P.C. Or in default six months R.I. Benefit of section 382-B, Cr.P.C. Was also granted to him.
2. Brief facts of the case as narrated by the complainant Muhammad Anwar P.W.12 are that on the night of occurrence his son Munawar Ahmad deceased closed his shop as usual but did not turn up in the house and this fact was told to him early in the morning by Mst. Salma Bibi wife of the deceased Munawar Ahmad. Thereafter the complainant alongwith Muhammad Asghar and Muhammad Amjad went in search of Munawar Ahmad and during search they found the dead body of Munawar Ahmad lying near the tubewell of Asmat Ullah, having fire shot injuries on his abdomen and back. Some unknown assailants had committed the murder of Munawar Ahmad.
Matter was reported to the police.
3. After getting information about the occurrence the local police completed all the necessary formalities and thereafter Muhammad Bashir, S.-I. Proceeded to the spot. He prepared the inquest report Exh.P.G., injury statement Exh.P.H. He secured blood-stained earth from the spot vide memo.
Exh.P.K. Last-worn clothes of the deceased were also received by him vide memo. Exh.P.C. On 19-8- 1998 he arrested Muhammad Ayub alias Boota, Muhammad Afzal alias Sain and Amar Raza and sent them to judicial lock-up. Proceedings under sections 87/88, Cr.P.C. Were initiated against the appellant Muhammad Ashfaq alias Malooki who later on was arrested on 30-9-1998 and he got recovered pistol .30 bore vide memo. Exh.P.D. Ultimately challan was prepared against the accused.
4. Prosecution in order to prove its case has produced as many as 14 witnesses including Doctor, Investigating Officer, and other relevant and formal witnesses. Thereafter statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded their innocence. Learned trial Court after taking into consideration every aspect of the case and hearing both the parties convicted and sentenced the appellant as mentioned above. Hence this appeal.
5. Learned counsel for the appellant in support of this appeal submits that it was an unwitnessed occurrence, that there is no eye-witness in this case, that the evidence of last seen consisting of Hadayat Ullah P.W.4 and Abdul Rehman P.W.5 has been disbelieved by the Division Bench of this Court in an appeal against acquittal of co-accused of the present appellant bearing No,1917 of 2000, decided on 5-6-2003, that as far as recovery of pistol is concerned, it has got no evidentiary value because no crime empty was recovered from the spot. Only F.C. Is a witness of recovery.
According to P.W.1 who is witness recovery of blood-stained earth, he reached at the spot. Hadayat Ullah P.W.4 was present at the spot. Learned counsel submits that had he been present there, he should have informed the complainant and other witnesses about his seeing the deceased in the company of the present appellant and his acquitted co-accused. Learned counsel further argued that as far as abscondence of the appellant is concerned, the occurrence took place on 11-7-1998, appellant was arrested on 30-9-1998, proclamation was issued on 9-9-1998, before the lapse of 30 days the appellant was taken into custody by the police, so the appellant cannot be declared as P.O. Moreover, the P.W. Who had got issued proclamation, was not produced by the prosecution. He submits that the prosecution has failed to prove its, case against the appellant and he is entitled to be acquitted.
6. Learned counsel for the complainant on the other hand who has also filed a revision petition submits that P.W.4 and P.W.5 who were witnesses of last seen, got their statements recorded on the same day. They have got no enmity against the appellant and there is no question on their part to falsely implicate the appellant, that the pistol recovered on the pointation of the appellant was in working condition according to the report of Fire-arm Expert. Both the learned counsel for the complainant and the learned State counsel support the judgment of the learned trial Court.
7. I have heard the learned counsel for the parties. According to Master Muhammad Anwar the deceased Munawar Ahmad who was his son left his house on 10-7-1998 in the night. He did not return back till morning. Thereafter he and other witnesses started for his search. The dead body of Munawar Ahmad was found having fire-arm injuries so the F.I.R. Was lodged. Nobody was named in the F.I.R. as an accused, neither any suspicion or motive was mentioned in the F.I.R. The only allegation against the appellant is of last seen evidence and P.W.4 Hidayat Ullah and P.W.5 Abdul Rehman are witnesses of last seen but according to the statement of P.W.1 who is witness of recovery of bloodstained earth during his cross-examination he has stated that when he reached the spot at 7-30 a.m. Hadayat U110 P.W.4 was also present there. According to Muhammad Anwar complainant and other witnesses if this was the position then he could have told the complainant father of the deceased that he had seen the deceased in the company of the appellant and his acquitted co-accused and also heard the fire shot but he did not tell the same so the result is that had he seen the deceased and the appellant alongwith his co-accused together and told the complainant then the situation would be different. As far as recovery of pistol on the pointation of the appellant is concerned, as no crime empty was recovered from the spot so it has got no evidentiary value. As far as declaration of the appellant as P.O., is concerned, the prosecution has failed to prove the same because the F.C. Who got issued proclamation, did not appear before the learned trial Court. Appellant was arrested on 30-9-1998 while the proclamation was issued on 9- 9-1998. Thirty days were not completed when the appellant was arrested in this case. I may also point here that Master Muhammad Anwar had improved his version before the learned trial Court trying to give a motive for the murder of the deceased by the appellant, he made the same in the supplementary statement which has no value in the eye of law because there is no provision in whole of the Criminal Procedure Code in this regard. Three co-accused who were acquitted by the learned trial Court and the appeal against their Acquittal bearing No,1917 of 2000 was filed which was dismissed by a Division Bench of this Court while disbelieving the last seen evidence. There is no special circumstance in favour of the prosecution which can connect the present appellant with the murder of Munawar Ahmad deceased.
' After having heard the learned counsel for the parties and going through the record, I am of the opinion that the prosecution has miserably failed to prove its case against the appellant. In this view of the matter, this appeal is accepted, conviction and sentence awarded to the appellant is set aside. Appellant is behind the bars, he shall be released forthwith if not required in any other case.