Asif Saeed Khan Khosa, J.--Muhammad Mazhar Hussain appellant was convicted for an offence under Section 302(b), P.P.C. vide judgment dated 26.11.1999 handed down by the learned Additional Sesions Judge, Lahore and was sentenced to death and to pay a sum of Rs, 1,00,000./- to the heirs of Muhammad Ashfaq deceased by way of compensation under Section 544-A, Cr.P.C. or in default of payment thereof to undergo simple imprisonment for six months. The appellant has challenged his conviction and sentence before this Court through this appeal which has been heard by us alongwith Murder Reference No, 481 of 1999 seeking confirmation of the sentence of death passed by the learned trial Court against the appellant.
2. The prosecution's case unfolded in the F.I.R. was that Tariq Riaz complainant was a resident of House No, 28, Street No, 21, Pakki Thathi, Samanabad, Lahore and was an Advocate by profession.
The complainant's brother namely Muhammad Ashfaq had set up a factory at Islam Road, Pakki Thathi, Samanabad, Lahore for manufacturing oil-seals. At about 2.00 p.m. on 30.6.1997 the complainant had gone to see his above-mentioned brother at his factory and they were sitting on a cot near the main gate of the said factory when somebody knocked at the main gate of that factory and the complainant's brother namely Muhammad Ashfaq went out to attend the call. The complainant saw that the appellant, who used to reside at a place near the said factory, was present there with a mauzar 30 bore alongwith two unknown persons one of whom was also armed with a pistol whereas the other was empty-handed. At that time Muhammad Bashir and Muhammad Zahid PWs were also available nearby while talking to each other on the roadside. At about 2.30 p.m. the complainant went out of the main gate of the factory and within his view one of the unknown assailants raised a lalkara that Muhammad Ashfaq may be taught a lesson for forbidding the appellant from selling heroin and for insulting him and also that Muhammad Ashfaq may not be spared. Upon that the appellant fired a shot from his mauzer hitting Muhammad Ashfaq at the left side of his chest. Thereafter the appellant fired a second shot hitting Muhammad Ashfaq at the the outer left side of his hip-joint. Upon receipt of those injuries Muhammad Ashfaq fell down and then the armed unknown assailant fired a shot at him hitting at the outer side of his left thigh. When the complainant and the above-mentioned witnesses lunged forward to rescue Muhammad Ashfaq a lalkara was raised by the appellant forbidding them from coming near lest they might also be killed. After that the appellant and his co-accused decamped from the spot while raising lalkaras and firing in the air. The motiveset up in the F.I.R. was that the appellant was not only an addict but he also used to sell heroin which was spoiling the younger generation in the area and one day prior to the present incident Muhammad Ashfaq had forbidden him from indulging in that nefarious activity which incident had also been witnessed by Muhammad Shahbaz and Zafar Iqbal PWs. Muhammad Ashfaq and the appellant had altercated with each other and Muhammad Ashfaq had insulted the appellant. After that incident the appellant had statedly left while abusing Muhammad Ashfaq and threatening him with revenge. The complainant and others took Muhammad Ashfaq in an injured condition to. Sheikh Zayed Hospital.
Lahore but Muhammad Ashfaq succumbed to his injuries on the way and died. Upon receipt of an information regarding the said incident the local police reached Sheikh Zayed Hospital, Lahore and recorded a statement of Tariq Riaz complainant in that regard on the basis of which F.I.R. No, 126 was registered at Police Station Millat Park, Lahore at 4.30 p.m. on the same day, i,e, 30.6.1997 for an offence under Section 302/34, P.P.C.
3. The investigation of this case was conducted by Muhammad Yousaf, S.I. (PW. 11), Muhammad Azam, S.I. (PW. 13) and Khushi Muhammad, S.I/S.H.O. (PW 14) and during the investigation the dead- body of Muhammad Ashfaq was got subjected to post-mortem examination, the appellant was arrested, a pistol was recovered from his possession and, after completion of the investigation, a Challan was submitted against the appellant. Two co-accused of the appellant namely Gul Zarin Khan and Akbar Khan were declared as Proclaimed Offenders and the learned trial Court separated their case from the case of the appellant.
4. At the commencement of the trial the learned trial Court framed a Charge with one head under Section 302/34, P.P.C. against the appellant to which he pleaded not guilty and claimed atrial.
5. During the trial the prosecution produced as many as fifteen witnesses in support of its case against the appellant. Tariq Riaz complainant (PW 1) and Muhammad Bashir (PW 2) furnished the ocular account of the incident in question. Tariq Riaz complainant (PW 1) and Zafar Iqbal (PW 3) deposed about the motive. Sarfraz Ahmad (PW 1) stated about recovery of a pistol from the appellant's possession during the investigation of this case. The medical evidence was provided by Dr. Shakeel Ahmad (PW 12). Muhammad Yousaf, S.I (PW 11), Muhammad Azam, S.I. (PW 13) and.
Khushi Muhammad, S.I./S.H.O. (PW 14) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formed nature.
6. In his statement recorded under Section 342, Cr.P.C. the appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. He, however, opted not to make any statement on oath under Section 340(2), Cr.P.C. and also did not produce any witness in his defence.
7. At the conclusion of the trial the learned trial Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt and, thus, the appellant was convicted and sentenced as mentioned and detailed above. Hence, the present appeal and the connected Murder Reference before this Court.
8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. As against that the learned counsel for the State has maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt and, thus, the appellant's conviction and sentence recorded by the learned trial Court do not warrant any interference by this Court.
9. After hearing the learned counsel for the parties and going through the record we have noticed that Tariq Riaz complainant (PW 1) was a brother of Muhammad Ashfaq deceased and was an Advocate by profession. The day on which the present occurrence had taken place was a working day and the complainant had completely failed to establish his reason for presence with his deceased brother at the latter's factory at the time of the alleged occurrence as he was ordinarily expected to be busy with his professional pursuits at such time of the day. The complainant was surely a chance witness and his failure to establish the reason for his presence at the place of occurrence at the relevant time has straight away put us to caution. It has also been noticed by us that the complainant had claimed to be sitting with his brother at an open place having no shelter from the scorching heat at 2.00/2.30 p.m. in the end of the month of June. This surely was an unusal conduct which has put us to further caution regarding the complainant's claim of his presence at the spot at the relevant time. Muhammad Bashir (PW 2) was also a chance witness who too had utterly failed to provide any explanation for his presence at a roadside outside the factory of Muhammad Ashfaq deceased at the relevant time. The place of occurrence in this case was surrounded by different shops and failure of the prosecution to produce any independent witness from the vicinity has also been looked at by us with suspicion. These doubts entertained by us regarding presence of the eye-witnesses produced by the prosecution have been compounded by the fact that the said witnesses had completely failed to receive any independent corroboration from any independent source.
10. In order to prove the motive set up by it the prosecution had relied upon the statements of Tariq Riaz complainant (PW 1) and Zafar Iqbal (PW. 3). The complainant had admitted before the learned trial Court that he was not present during the incident forming the motive and, thus, his statement in that regard was nothing but hearsay. Zafar Iqbal (PW 3) was a brother of Muhammad Ashfaq deceased and his whole assertion was based upon an allegation that the appellant used to sell heroin which nefarious activity was objected to by the deceased. We have, however, noticed that there is not even an iota of evidence available on the record to establish or even to hint at the appellant being an addict or indulging in sale of narcotics. It is not denied that the alleged incident forming the motive in this case had never been reported to the police. In these circumstances we have entertained no doubt that the motive set, up by the prosecution had remained far from being established.
11. The medical evidence produced by the prosecution had completely shattered the ocular account instead of providing support to the same. In the F.I.R. the complainant had alleged that the first fire-arm injury given by the appellant to Muhammad Ashfaq deceased was received on the latter's left side of the chest but the post-moretm examination of the dead-body of the deceased did not reveal any such injury. It was probably on account of this contradiction that the complainant had made a supplementary statement before the investigating officer changing the locale of the said injury so as to bring his statement in line with the medical evidence. In the F.I.R. as well as in their statements made by Tariq Riaz complainant (PW 1) and. Muhammad Bashir (PW 2) it had repeatedly and emphatically been asserted by them that Muhammad Ashfaq deceased had received only three fire-shots but Dr. Shakeel Ahmad (PW 12) had given them a lie in that regard by categorically maintaining that the deceased had received as many as five effective shots. It may also be relevant to mention here that the occurrence in this case had taken place at 2.30 p.m. on 30.6.1997 and Muhammad Ashfaq deceased had died at 3.30 p.m. on the same day but for some undisclosed reason post-mortem examination of the dead-body of the deceased had been conducted not on the same day but on the next day, i,e, on 1.7:1997 at 9.15 a.m. Such an unexplained delay, in conducting post-mortem examination is generally indicative of a real possibility that the culprits perpetrating the crime had remained unidentified at the spot or the incident was unwitnessed and, therefore, the complainant party needed some time to deliberate or to be procured. The complainant had maintained in the F.I.R. that his brother Muhammad Ashfaq had died on his way to Sheikh Zayed Hospital, Lahore but the statement of Dr. Shakeel Ahmad (PW 12) creates an impression that the deceased had breath his last while being attended to at the said hospital. It may also be added here that in Column No, 10 of the Inquest Report originally only two injuries had been mentioned but subsequently four more injuries were-added in that column.
A closer look at Columns Nos, 4 and 5 as well as Column No, 1.0 of the Inquest Report reveals that interpolations had been made in the said columns in different ink at some subsequent stage. All these factors point to a real possibility that the complainant and the other witnesses were initially not present with the deceased and they had subsequently been procured and planted in this case as eye-witnesses and thereafter the prosecution's case was cooked up or improved upon.
12. The alleged recovery of a pistol from the appellant's possession during the investigation of this case and subsequent matching of the said pistol with four crime empties recovered from the spot have also failed to inspire our confidence. The pistol allegedly recovered at pointing out of the appellant had statedly been recovered from underneath a tree in a graveyard which was an open place accessible to all. Sarfraz Ahmad (PW 4) had been produced by the prosecution as a recovery witness who had claimed that he had joined the recovery proceedings at a time when he was repairing some graves belonging to his elders. This witness had, however, admitted before the learned trial Court that the place of his presence at the relevant time was situated about half a mile away from the place of the alleged recovery. Such a recovery of the weapon of offence in this case has surely failed to inspire our confidence.
13.Muhammad Yousaf, S.I. (PW. 11) had stated before the learned trial Court that after receipt of a wireless message about the incident in question he had reached Sheikh Zayed Hospital, Lahore at 1.45 p.m. on 30.6.1997 and by that time Muhammad Ashfaq deceased had already died. This statement of the investigating officer had completely destroyed the claim of the complainant and the other eye-witness that the deceased had received his injuries at about 2.30 p.m. on that day whereafter he had been taken. to the said hospital in an injured condition. This statement of the investigating officer has further confirmed our suspicion regarding presence of the complainant and the other eye-witness with the deceased at the time of the incident.
14. For what has been discussed above we have found the prosecution's case against the appellant to be replete with serious doubts the benefit of which must be extended to the appellant. This appeal is, therefore, allowed, the conviction and sentence of the appellant recorded by the learned trial Court are set aside and the appellant is acquitted of the Charge. He shall be released from the jail forthwith if not required in any other case.
15. Murder Reference No, 481 of 1999 is answered in the negative and the sentence of death passed by the learned trial Court against Muhammad Mazhar Hussain appellant is not confirmed.