2002 PLP 848 (YLR)

Bashir Ahmad S.I. P.W.8 after recording the statement Exh. P. F. sent the same to the police station for registration of formal F.I.R. and he himself arrived at the place of occurrence and inspected the dead body of Muhammad Ishaque and prepared injury statement Exh.P.B and inquest report Exh. P.C. He despatched the dead body for post‑mortem examination through Muhammad Sarwar FC. He recorded the statement of P.Ws. under section 161, Cr.P.C, On the same day last worn clothes of the deceased were produced before him which were taken into possession vide memo. Exh.P.D. On 19‑7‑1995 he arrested Muhammad Amin accused and on 15‑8‑1995 he arrested Muhammad Iqbal appellant, Muhammad Ashraf, Ghulam Hazoor and Farzand Ali. After completion of investigation, the challan of the case was submitted in the trial Court by Abdul Hamid S.H.O. The trial Court framed the charge which was denied by the accused and they claimed trial. During the trial prosecution examined as many as 8 witnesses to prove the guilt of the accused. Dr. Muhammad Khalid P.W.1 conducted the post‑mortem examination on the dead body of Muhammad Ishaque on 2‑7‑1997 at 11‑00 a. m. and found the following injury:‑ "There was an oval shaped wound of fire‑arm entrance 11 x 8 c. m. on the front of right side of chest. 4 c.m. below the right nipple, peace of liver coming out through the wound. A hole was present on the correspondent part of salooka". In his opinion the death was due to hemorrhage and injury to the liver caused by injury No.

1. The ocular account was furnished by Muhammad Iqbal P.W.5 who was complainant of the case. He supported the version of the F.I.R. and narrated the motive for the alleged occurrence as dispute over the property inherited by his father out of the share of Zainab Bibi step mother of the complainant. Javed Athar P.W.6 was another eye‑witness of the occurrence. He supported the complainant. He was son of the deceased and he stated that he alongwith Nazir was coming to their dera and witnessed the occurrence in the light of torch. The accused were identified. Naseer Ahmad Revenue Patwari P.W.4 has prepared the site plan. Khizar Hayat HC P.W.7 had recorded the formal F.I.R. Exh.P.F/1. The remaining witnesses are of formal in nature and need not be discussed. The trial culminated into conviction of the appellant as mentioned above who has challenged his conviction and sentence through Criminal Appeal No.748 of 1997 while the trial Court has sent up Murder Reference No.266 of 1997 for confirmation of death sentence. Both the matters are being decided by this single judgment. Learned counsel for the appellant has argued that it was a dark night, un‑witnessed occurrence. The presence of complainant Muhammad Iqbal and Javed Athar at the spot is not believable. The torch allegedly in possession of Javed Athar was not taken into possession by the Investigating Officer; that litigation been admitted by complainant therefore, they had animosity to falsely implicate the appellant and testimony of both the eye‑witnesses has not been corroborated from any other independent source. The weapon of offence has also not been recovered, therefore, the case against the appellant is doubtful and he be acquitter by extending him the benefit of doubt. Conversely the appeal has been opposed by the learned State counsel. Heard. Record perused. The alleged occurrence took place at 1.00 a.m. during night. The complainant himself admits that it was a dark night and according to the statement of Muhammad Iqbal the fire made by the accused hit the deceased and thereafter the other P. Ws. who were holding torches arrived at the spot. In the meantime the complainant himself has steared into the bushes. The torches were not taken into possession by the Investigating Officer. This fact has also been admitted by the Investigating Officer that he had not f verified source of light at the place of occurrence. According to the statement of Javed Athar he heard the fire shot when he was at a long distance. Only one shot was fired by the accused which hit the deceased, therefore, it was not, possible for Javed Athar P. W.6 to see as who caused the fire shot at the spot. According to Muhammad Iqbal complainant P. W.5 Javed Athar arrived at the spot subsequently. Neither any empty was taken into possession from the spot nor any weapon of offence was recovered by the Investigating Officer from the appellant. Co- accused were acquitted by giving benefit of doubt. Muhammad Iqbal is real brother of the deceased while Javed Athar is son of the deceased and nephew of Muhammad Iqbal complainant. They are closely related inter -se and to the deceased and litigation has also been admitted by them with the accused party. They can be termed as interested and inimical witnesses. Therefore, as per law their statements should have been corroborated from any other independent source which is lacking in the instant case. No reason has been furnished by the complainant as why he accompanied the deceased when he went to supervise the water course. The complainant has also failed to furnish any explanation that hone the accused knew that the deceased or the complainant would come to supervise the water course and they were embushed with their common object. Both the parties reside in the same village and it is not clear that how and why the accused, selected the particular time and place for commission of offence. Muhammad Khalid P.W.1 who conducted post‑mortem examination has also not answered that from what distance fatal shot was made by the assailants but according to the complainant the deceased was hit by the appellant from a distance of karm which means less than 3 feet and if this distance is admitted as correct, then there should have been blackening and charring around the wound which has not been found during the post‑mortem examination. We find that the medical evidence is not in, line with the ocular account furnished by Muhammad Iqbal P. W.5 and Javed Athar P. W.6. The motive is double edged weapon and it could be used for false implication. No weapon of offence has been recovered from the accused. Therefore after deep appraisal of evidence we find that it was dark night un witnessed occurrence and the prosecution has failed to prove its case against the appellant beyond any shadow of doubt. By extending of benefit of doubt we allow Criminal Appeal No. 748 of 1997 filed by the appellant and acquit him of the charge. He is ordered be released forthwith if not required to be detained in any other case. The death sentence of Muhammad Iqbal appellant is not confirmed.

15. The Murder Reference is answered in the negative. N.H.Q./M‑1089/L Appeal allowed.