2000 PLP 1463 (YLR)

2. The occurrence in this case took place in the shop of the deceased Muhammad Saleem Akhtar situated at Yousaf Abad Mauza Muhammadpur Ganga, 20 k.m. from the Police Station on 6‑3‑1994 at 7‑30 p.m. and report thereof was lodged by Bashir Ahmad father of the complainant on the same day which is Exh.P.M. in the Police Station at 8‑45 p.m. and the same was recorded by Muhammad Ramzan Inspector/S.H.O. (P.W.13).

3. The facts of the case, as narrated by the complainant, in brief in the F.I.R., were that his son had a shop of spare parts and an Agency of Oil at Adda Yousaf Abad while the complainant had a shop of grocery at the same Adda. On the day of occurrence after closing his shop he went to his house in Basti Jam Usman Ganga in order to have his 'Iftaar' and also to send the meal of his son at his shop. At about 7‑45 p.m. Khalil Ahmad who was the real brother of the complainant informed him that his son Muhammad Saleem Akhtar was present at his shop alongwith his servant Ghulam Akbar aged about 10/12 years when all of a sudden light went off and when at about 7‑30 p.m. light came two persons armed with pistols entered in the shop, one of them was wearing white colour Shalwar Qameez while the other was wearing malashia colour clothes. Both of them were of long height and had muffled their faces. First of all one of the accused gave butt blows with his pistol on the forehead of the deceased while the other accused said that today is the last day of the life of Muhammad Saleem Akhtar and then fired with his pistol .12 bore which hit on his chest who became unconscious. Thereafter, the complainant reached his shop, Ghulam Akbar, servant of the shop. and one Muhammad Riaz, who was getting his Tractor repaired, verified the above said fact and told the complainant that after the occurrence both the accused had ran away from the back side of the shop. The complainant alongwith his companions took his son in an injured condition to the Hospital Mianwali Qureshian, in a wagon and when they reached at the gate. of Hospital, Muhammad Saleem Akhtar died there and then. His dead body was brought back by the complainant to his house. During inquiries Maulvi Abdul Ghafoor. Imam Masjid, Adda Yoasaf Abad told the complainant that he was busy in easing himself on the back of the shops and had seen both the accused after committing the occurrence on a motorcycle going towards north while Muhammad Nawaz and Somar residents of the village had also seen them going on the motorcycle and they could identify the accused persons if they were brought before them. After the registration of the case Muhammad Ramzan Bhatti S.H.O. (P.W.13) Investigating Officer came at the spot and collected blood‑stained earth from there which was taken into possession vide memo. P.F. He also took into possession empty cartridge P.1 from the spot which was taken into possession vide memo. Exh.P.G. Both the accused/appellants were arrested on 16‑3‑1994. Jalil accused led to the recovery of .12 bore pistol P.1 alongwith cartridges which are P.2‑3 and bandolier. All these were taken into possession vide memo. Exh.P.B.. Bashir Ahmad appellant got recovered revolver P.6 from the roof . of a room of his co‑accused Jalil Ahmad which was taken into possession vide memo. Exh.P.D. Police also took into possession motorcycle P.4 bearing No.RMS 1069, Registration book P.5 were also taken into possession vide memo. Exh.P.C. The reports of the Chemical Examiner and Serologist regarding blood‑stained earth are. Exhs. P.O. and P.P. report of fire‑arm expert is Exh.P.G.

4. Prosecution in order to prove the guilt of the appellants produced 14 witnesses in all and thereafter, the statements of the appellants under section 342, Cr.Y.C., were recorded in which they did nor opt to appear in their defence as required under section 340(2), Cr.P.C., nor they produced any evidence in their defence.

5. After reading the evidence of the prosecution statements of the appellants recorded under section 342, Cr.P.C., the learned counsel for the appellants submits that it was an un-witnessed occurrence, that according to the F.I.R., both the accused/appellants who committed the murder of Muhammad Saleem Akhtar deceased had muffled their faces at the time of occurrence. Learned counsel further submit that no motive was given by the complainant in the F.I.R., although, same was recorded after inquiry. They add that the complainant Bashir Ahmad had introduced the motive in the Court stating therein that Bashir Ahmad also used to work as driver with the son of the deceased and some days prior to the occurrence Bashir Ahmad appellant alongwith Jalil Ahmad appellant came to the shop of Muhammad Saleem Akhtar in his presence and asked him to give Rs.20,000 as advance loan but the deceased replied that he had purchased a new tractor and he had no money on which an altercation/quarrel took place between the deceased and both the appellants. Learned counsel submit that if this was the motive in the same incident as stated by the complainant the same should have been stated by the complainant in the F.I.R. They submit that although complainant had made a supplementary statement on the next day of occurrence in which he had stated this motive but same cannot be relied upon and it will be treated as a dishonest improvement on the part of the complainant. They further submit that it was the story of the prosecution that both the accused had muffled their faces and in the instant case no identification parade had held. Both the learned counsel submit that story narrated by Jam Massu, P.W.7 that he and Muhammad Sadiq P.W, had seen the accused going on motorcycle and then both the appellants fell on the ground when their motorcycle slipped. They were identified and they both were armed. Both the appellants stated before them that they had killed Muhammad Saleem Akhtar and he had also felt smell of fresh fire coming from the pistol of Jalil Ahmad. Learned counsel submit that this witness is related to deceased and the complainant and he has admitted this fact and that the story put forward by P.W. Jam Massu is most unnatural and unbelievable. This witness had admitted in cross examination that it was not a moon lit night and moreover there was no electricity light at the bridge of Mianwali Qureshian, where both the appellants met them on a motorcycle. Learned counsel for the appellants submit that there is also evidence of Manzoor Ahmad P.W.11 who is witness of extra‑judicial confession. His statement cannot be relied upon because he is related to the complainant and it was not proper and possible for the appellants to approach this witness in order to admit their guilt. Furthermore, Manzoor Ahmad P.W.11 was neither lumberdar, Councillor nor a person in authority. He could not have helped the deceased in any manner so no reliance can be placed on his testimony. Learned counsel further submit that Ghulam Akbar P.W. servant of deceased appeared as P.W.10 and he had stated that both the accused/appellants had muffled their faces, no identification parade was held in the instant case by prosecution in the Jail as required under the law. In cross‑examination he had admitted that he could not identify any of the accused person. They further submit that witnesses had also admitted that the pistols were never reloaded by the accused persons at the time of occurrence. They submit that Ghulam Akbar had never stated either in his statement under section 161, Cr.P.C. or before the trial Court that both the appellants or any of them remained as servant of the deceased alongwith him in the shop or as a truck driver. Learned counsel submit that as far as Abdul Karim P.W.5 is concerned he is the first cousin of the deceased who had stated that 4/5 days prior to the present occurrence an altercation took place between the deceased and the two accused/appellants on the demand of Rs.20,000 as advance. Learned counsel further submit that his statement was recorded by the police 2 days after the occurrence and that cannot be relied upon. Both the learned counsel submit that in fact it is a case of no evidence, that prosecution has failed to prove any case against the appellants. As far as report of fire arm expert regarding matching of crime empty taken from the spot with the pistol P.1 of Jalil appellant is concerned, they submit that no reliance can be placed on it as according to Ghulam Akbar P.W. who was present at the spot, appellants did not reload their pistols so there was no question of falling of any crime empty on the spot. Moreover, the witness of the recovery who was produced by the prosecution namely Allah Bakhsh belonged to the brotherhood of the complainant party. No person either from the locality or from the nearby house of the deceased was associated, so there is clear violation of section 103, Cr.P.C. Learned counsel lastly submit that the prosecution has failed to prove the case against the appellant beyond any shadow of doubt.

6. On the other hand, learned State counsel assisted by the learned counsel for the complainant submits that there was no question of false implication in this case, that ocular account is corroborated by the medical evidence, that there is evidence of recovery of crime empty coupled with the recovery of pistol and matching of said crime empty with the pistol Jalil appellant according to the report of the fire‑arm expert. That motive has also provided corroboration to the ocular testimony. That there was no previous background of enmity between the appellants and the complainant party. So, the question of their false involvement in this case is completely out of question. They both support the judgment of learned trial Court in tooth and nail. 6‑A. We have heard the learned counsel for the parties at a great length and have also gone through the evidence recorded by the trial Court very carefully. In the instant case it was the case of the prosecution that only Ghulam Akbar a minor boy aged about 10/12 years was only present at the shop at the time of occurrence when the deceased was murdered. Complainant was informed by his brother at his house. Neither the complainant nor his brother namely Khalil Ahmad who was real brother of the deceased was an eye witness in this occurrence. It was also the A case of the prosecution that the accused/appellants had muffled their faces at the time of occurrence, so they could not be identified at the spot. Identification parade was‑ also not held in this case. It may also be noted here that Ghulam Akbar P.W. was working at the shop of the deceased for the last six months. Had Bashir and Jalil or any one of them been working as truck driver with the deceased, Ghulam Akbar P.W. could have identified both of them from their voice when one of them also raised 'Lalkara' that today deceased would not be spared. Moreover, Ghulam Akbar had admitted that he could not identify the appellants at the time of occurrence. He further admitted that the appellants did not reload their pistols so there was no question of falling of any crime empty of 12 bore pistol at the spot and further no question of taking the same into possession by the police arises. No motive is given in the F.I.R. According to the complainant he had lodged the F.I.R after inquiries but. despite that no reason for the murder was given in the F.I.R. The complainant in his statement made before the trial Court has stated that he had given the motive i.e. that Bashir Ahmad appellant who was working at truck driver with the deceased ‑came in his presence while Abdul Karim P.W. was also present at the shop of the deceased and demanded Rs.20,000 as loan but the deceased refused to pay the same on B which an altercation took place. The complainant beseached both the appellants not to fight and matter was settled. Had there been any such quarrel or any motive that must have been mentioned by the complainant in the F.I.R., which was lodged after due inquiry. This can be termed as an improvement made by the complainant in order to create false motive in this case against the appellants. Abdul Karim has supported the complainant in this regard. He is first cousin of the complainant and moreover his statement was recorded two days after the occurrence and the same cannot be relied upon. We do not believe the motive in this case. Now comes the statement of extra judicial confession made by Manzoor Ahmad P.W. He belonged to the brotherhood of the complainant. We do not believe that the accused person would come to Manzoor Ahmad to make extra judicial confession knowing fully well that he was from the brotherhood of the complainant party. Moreover, neither he was a lubmerdar nor councillor or a person in authority. So, when he could not give any help to them then why the appellants would come to this witness and would make extra judicial confession. There are also very major discrepancies in the statements of Manzoor Ahmad P. W.11 and that of Muhammad Ramzan Bhatti P.W.13 while appearing in witness‑box: Manzoor Ahmad P.W. stated that he alongwith other P.W. namely Noor Ahmad (not produced) went on tractor to produce these appellants to the police while Muhammad Ramzan, Investigating Officer (P.W.13) stated that both of the accused were going on motorcycle when they were arrested.

7. Both these statements cannot be reconciled. Manzoor Ahmad is not an independent witness in our view. We also do not believe extra judicial confession. Then there is statement of Jam Massu who stated that both the accused were seen by him at night at bridge Mianwali Quereshian, his statement is unnatural and improbable and the submissions made by the learned counsel for the appellants in this behalf as we have noted above appeal to reason. This witness has further stated that the night was not moon lit one. Moreover, there was no light at bridge Mianwali Qureshian. He has also admitted that he also belonged to the same brotherhood that is of complainant and he is closely related to him.

8. In our view, prosecution could not prove its case through ocular account against the appellants. As far as recovery is concerned, we do not believe the same for the reason that Ghulam Akbar P.W. who is sole eye‑witness of the case has stated that the accused who had committed the murder of the deceased did not reload their 12 bore pistols, so there is no question of recovery of crime enmity and of the same taking into possession. Moreover, the recovery witness namely Allah Bakhsh belongs to the same brotherhood that p of the complainant. He is not resident of the place from where the alleged recovery was affected from the appellants which is clear violation of section 103, Cr.P.C. and the most important factor in this case is that if one goes through site plan Exh. P.A. which is at page 154 of the paper book points Nos. 1 and 2 mentioned by the Investigating Officer; dated 19‑3‑1994 were added later on, those are about the recovery of blood‑stained earth and recovery of empty cartridge. After considering the evidence on the record and submissions made by the parties we are of the considered opinion that prosecution has not been able to prove its case against the appellants beyond any shadow of doubt. In E this view of the matter, conviction and sentence awarded to the appellants is hereby set aside. Appeals are accepted and the murder reference is replied in the negative. Death sentence awarded to Jalil Ahmad appellant is not confirmed. Both the appellants are behind the bars, they shall be released forthwith if they are not required in any other case. Death sentence awarded to Jalil Ahmad appellant is not confirmed. N.H.Q./B-4/L Appeal accepted.