2018 PLP 177 (YLRN)

SHAHID HAMEED DAR, J.

This criminal appeal and connected Criminal Revision No.1272 of 2011 arisen from judgment dated 12.1.2011, whereby learned Additional Sessions Judge, Kharian (Gujrat) convicted Muhammad Zaman (appellant) under section 302(b), P.P.C. and sentenced him to imprisonment for life with the direction to pay a sum of Rs.2,00,000/- to the heirs of the deceased as compensation under section 544-A, Cr.P.C. or in default to undergo simple imprisonment for six months. Benefit of section 382-B, Cr.P.C. was, however, extended to him. His co-accused, Muhammad Sufyan alias Adnan, Muhammad Rashid alias Mithu and Niaz Ali were acquitted of the charge on extension of benefit of doubt. A perpetual warrant of arrest was issued against the absconding co-accused, Muhammad Younas. It all happened on culmination of their trial in case-FIR No.344/07 (Exh.PH/1), dated 3.9.2007, under sections 302, 324, 148, 149, P.P.C., registered at Police Station Saddar Lala Musa, District Gujrat on the complaint of Razzaq Ahmad (P.W.6).

2. The prosecution case as alleged by the complainant (P.W.6) is that he worked in a textile mill at Sheikhupura and was on leave in those days; it was at about 1.15 p.m. on 3.9.2007 that he went to village Khawaspur in connection with some work; his elder brother Basharat Ali (deceased), Sajjad (P.W.5) and Rasib Ali PW (not produced) moved toward Lala Musa on a motorcycle from their village; when they reached near Khawaspur, their motorcycle was overtaken by a Suzuki car RIY-7089, with Muhammad Zaman (appellant) armed with Kalashnikov, Mithu (since acquitted) armed with pistol .30-bore, Adnan (since acquitted) armed with rifle .44-bore and Younas (since PO) armed with Kalashnikov on board, besides, a motorcycle driven by three unknown armed men also overtook Basharat Ali's motorcycle; they stopped their vehicles in front of the said motorcycle; on his own Lalkara that Basharat Ali be not spared, Muhammad Zaman (appellant) fired into the chest of Basharat Ali; Younas (since PO) hit left shoulder of Basharat Ali posteriorly with a shot of his Kalashnikov, due to which he fell onto the ground badly wounded and died instantaneously; Mithu (since acquitted), Adnan (since acquitted) and three unknown accused made indiscriminate firing by means of their arms and kept shouting that they would kill everyone, who drew nearer; their firing floored Muhammad Nadeem PW (not produced) and Muhammad Waseem PW (not produced) with firearm injuries; he and his companions raised alarm, which attracted many a people of the vicinity; the accused abandoned their car and hurriedly fled the spot. The motive behind the occurrence was that a heated debate had taken place between Basharat Ali (deceased) and Muhammad Zaman (appellant) in a panchayat about six months before and it was threatened by the latter that he would teach a lesson to him. The complainant came across Muhammad Akram SI (P.W.11) at village Khawaspur, at 2.30 p.m. on 3.9.2007, who reduced into writing complaint (Exh.PH) on his dictation and sent it to Police Station Saddar Lala Musa through Rizwan Afzal 2142/C for registration of case, on the basis of which formal FIR (Exh.PH/1) was drafted by Muhammad Shafique ASI/DO (P.W.8), at 2.50 p.m., the same day.

3. After registration of the case, Muhammad Akram SI (P.W.11) carried out the investigation, inspected the dead body, prepared inquest report (Exh.PJ), application for postmortem examination (Exh.PK), injury statement (Exh.PL) and despatched it to the mortuary for autopsy under the escort of Muhammad Arshad 1489/C (P.W.3); he inspected venue of crime, took into possession blood stained earth and Suzuki Car bearing No.7089/ RIY (P1), vide memos Exh.PC and Exh.PD, respectively; prepared visual site plan (Exh.PM); he got prepared site plan-in-scale (Exh.PN) qua the place of occurrence by Akhtar Naqqash draftsman (P.W.10); he recorded supplementary statement of the complainant (P.W.6) on 10.9.2007, whereby he nominated Niaz Ali accused (since acquitted); he arrested Niaz Ali on 13.9.2007; he recorded another supplementary statement of the complainant, whereby he corrected the names of Muhammad Sufyan alias Adnan and Muhammad Rashid alias Mithu, when he arrested them on 24.10.2007; Muhammad Sufyan (since acquitted) got recovered rifle (P2) with two live bullets (P3/1-2) on 29.10.2007, which were seized vide memo Exh.PE; Muhammad Rashid alias Mithu (since acquitted) led to the recovery of pistol .30-bore (P5) with two live bullets (P5/1-2) on 6.11.2007, vide memo Exh.PF; he arrested Muhammad Zaman (appellant) on 30.5.2008 and on his personal search, seized a Bren Gun with ten bullets, for which he registered FIR No.193/08, under section 13 of the West Pakistan Arms Ordinance No.XX of 1965; he interrogated the appellant and recovered a Kalashnikov (P6) with ten live bullets (P7/1-10), vide memo Exh.PG. On completion of investigation, he formulated report under section 173, Cr.P.C. and submitted it before the trial court for trial of the accused in accordance with law.

4. On indictment, the appellant Muhammad Zaman, like his acquitted co-accused, Muhammad Sufyan alias Adnan, Muhammad Rashid alias Mithu and Niaz Ali pleaded not guilty and claimed a trial. The prosecution produced eleven witnesses at trial, including Dr.Naeem Akhtar (P.W.1), Muhammad Zafar Iqbal (P.W.2), Muhammad Arshad 622/C (P.W.3), Raheel Ahmad 182/C (P.W.4), Sajjad Akhtar (P.W.5), Razzaq Ahmad (complainant/P.W.6), Amir Mehmood 1000/HC (P.W.7), Muhammad Shafique ASI (P.W.8), Arshad Iqbal, record keeper (P.W.9), Akhtar Naqqash draftsman (P.W.10) and Muhammad Akram SI (P.W.11), to prove the charge against him. Dr. Naeem Akhtar (P.W.1) proved contents of medico-legal reports of Muhammad Nadeem and Muhammad Waseem, the injured PWs (not produced), whereas Arshad Iqbal, record keeper (P.W.9) being conversant with handwriting of Dr. Muhammad Mudassar MO (not produced having gone abroad), who performed autopsy on the dead body of Basharat Ali (deceased), tendered secondary evidence to identify his handwriting and signatures on the postmortem examination report (Exh.PW9/A). Sajjad Akhtar (P.W.5) and Razzaq Ahmad (complainant/P.W.6) furnished ocular account as well as motive part of the occurrence. Sajjad Akhtar (P.W.5) also stated about recovery of Kalashnikov (P6) with ten live bullets (P7/1-10) at the instance of the appellant. Muhammad Akram SI (P.W.11) is the investigating officer, who rendered details of the investigation conducted by him. Rest of the evidence is more or less of formal nature.

5. When examined under section 342, Cr.P.C., the appellant denied all that put to him by the trial court and in reply to the question, as to why this case against him and why the P.Ws. deposed against him, he took consistent stance of his false involvement in the case due to political rivalry with one Muhammad Nawaz, Nazim. His contention was:- "I am innocent. All the PWs are related with the deceased. They have deposed against me due to their relationship with the deceased. They have deposed against me due to their relationship with the deceased being interested witnesses. In fact, I and the complainant along with PWs reside in same union council. One Muhammad Nawaz contested local bodies election and was elected as Nazim. I opposed Muhammad Nawaz Nazim in the local bodies election. Complainant party is strong supporter of said Muhammad Nawaz, Nazim and has deep relations with him. The complainant party has falsely roped us on asking of Muhammad Nawaz, Nazim, in blind murder case. I supported Muhammad Akbar, in local bodies election against Muhammad Nawaz, Nazim, and due to this rivalry I have been made scapegoat in blind murder case. I have no connection with commission of alleged offence. I never remained proclaimed offender. Police has planted false recovery upon me in connivance with complainant party to strengthen the prosecution case. Investigation Officer did not record my first version correctly. I have been falsely challaned in this case." The appellant opted not to appear under section 340(2), Cr.P.C. nor he adduced any evidence in his defence. Learned trial court held the appellant guilty of the charge and sentenced him in the mentioned terms through the impugned judgment.

6. Learned counsel for the appellant has submitted that Basharat Ali had been murdered by some unknown accused for their unknown motives and on finding his dead body, the complainant-party fabricated a false case against the appellant and his acquitted co-accused in the backdrop of political rivalry and dirty politics in the area; the ocular account rendered by Sajjad Akhtar (P.W.5) and Razzaq Ahmad (P.W.6) is loaded with countless discrepancies, which rendered the prosecution case still worse, when it was not supported by any independent circumstance; the motive could not be established through any evidence nor alleged recovery of Kalashnikov at the instance of the appellant was of any consequence being not wedded with any crime empty; the investigation conducted by Muhammad Akram SI (P.W.11) was not up to the mark, as he could not find motorcycle of the deceased at the place of occurrence during spot inspection, which was a devastating circumstance for the prosecution story, but he could not appreciate this fact and submitted challan against the appellant blindfoldedly; the prosecution case is nothing but a mixture of improbabilities, preposterousness and sheer lies, which could not be properly dealt with by the learned trial court, which probably found it too difficult to deal with; the impugned judgment contained no reasoning and logic whatsoever, hence, it may be set aside and the appellant acquitted of the charge.

7. Learned Deputy Prosecutor General Punjab has defended the impugned judgment by contending that Basharat Ali was murdered by the appellant in broad daylight within the view of the eye-witnesses, hence, there is little doubt that he had committed the crime; the impugned judgment is well versed and contained true appreciation and appraisement of the evidence, hence, may be sustained.

8. After hearing the learned counsel for the parties and perusing the record, it is observed that the prosecution case, if summed up in one line, is that three motorcyclists including Sajjad Akhtar (P.W.5), Basharat Ali (deceased) and Rasib Ali PW (not produced), were intercepted by four armed car riders, Muhammad Zaman (appellant), Mithu (since acquitted), Adnan (since acquitted) and Younas (since PO), beside, three unknown armed motorcyclists, near Khawaspur at about 1.15 p.m. on 3.9.2007, who alighted their vehicles to attack the former trio and gunned down Basharat Ali instantaneously and also injured two others, Muhammad Nadeem and Muhammad Waseem PWs (not produced), before they fled the spot leaving their car behind, as people thronged the said place on hearing the noise of witnesses. This crime was committed by the accused in the backdrop of a previous heated-chat between Basharat Ali (deceased) and Muhammad Zaman (appellant) during a panchayat, about six months before. A sense of unnaturalness and improbability floated across the tenor of the prosecution case, as there was no earthly reason for the appellant and his companions to leave their Suzuki car behind as a piece of evidence, while fleeing the spot; the investigating officer could not find motorcycle of the deceased, parked at the venue of the crime, when he visited it and the eye-witnesses (P.W.5 and P.W.6) said nothing in this regard in their testimonies; the injured witnesses did not come forward for their examination and they were given up by the prosecution on 27.8.2009 having been won over; the motive part of the prosecution certainly went unestablished; the evidence of recovery of Kalashnikov (P6) at the instance of the appellant on 8.6.2008 is inconsequential as no crime empty was available to adjudge, if it was wedded therewith or not; the eye-witnesses, Razzaq Ahmad (complainant/P.W.6), Sajjad Akhtar (P.W.5) and the given-up PW, Rasib Ali turned out to be the chance witnesses, who could not establish their presence and purpose of their presence at the spot at the relevant time of the occurrence, being residents of some other places than the one, where Basharat Ali was murdered.

9. In so far as motive part of the prosecution case is concerned, two witnesses, Sajjad Akhtar (P.W.5) and Razzaq Ahmad (P.W.6) spoke about it. Their contention was that some hot words had been exchanged between Basharat Ali (deceased) and the appellant in a panchayat about six months before and a life-threat was thrown by the appellant at Basharat Ali then. According to the complainant (P.W.6), the appellant was a transporter and he fetched fuel for his vehicles from Javed Iqbal dealer/ shopkeeper, but did not pay its price due to which a dispute arose between them and to resolve this issue a panchayat was convened at the dera of Muhammad Nawaz Nazim, where the defaulter (appellant) allegedly extended threats of murder. It cannot be gathered from the record, if Muhammad Nawaz Nazim or Javed Iqbal, the dealer of oil, ever joined the investigation of this case, or they testified qua this fact during the trial of the accused. None of the witnesses of motive said a word, if they were present in the said panchayat or Basharat Ali had participated therein. The disputed amount of money, relating to sale of oil by the said dealer to the appellant is also an unknown fact. Muhammad Nawaz Nazim has been alleged by the appellant and his acquitted co-accused to be the architect of the prosecution case, as they had supported his political rival Muhammad Akbar during local body's elections. It was a vague allegation as regards the motive incident and it went unproved.

10. So far as the ocular account as furnished by Sajjad Akhtar (P.W.5) and Razzaq Ahmad (P.W.6) is concerned, it may be gathered from their testimonies that they hailed from different areas, the former from village Chaukar Kalan, Tehsil Kharian, District Gujrat and the latter from village Chaukar Khurd, Tehsil and District Gujrat. Sajjad Akhtar (P.W.5) was a Mamoonzad and Razzaq Ahmad, real brother of the deceased. The occurrence of murder of Basharat Ali took place at village Khawaspur, a place, the eye-witnesses were not the residents of. They being close relation to the deceased were naturally the interested individuals/ witnesses. They had to show the purpose of their presence at the spot at the crucial hour, but they badly failed to hint at any. Sajjad Akhtar (P.W.5) mentioned in the examination-in-chief about his arrival at Khawaspur at 1.15 p.m. on 3.9.2007, when sharing a ride with Razzaq Ahmad (complainant/P.W.6) and Rasib Ali PW (not produced) on a motorcycle, where they were taken over by a Suzuki car RIY-7089 and a motorcycle. Four persons including the appellant rode the car and three unknown persons, the motorcycle. They brought their vehicles in front of the motorcycle of the witnesses, which halted all the vehicles, immediately whereon the incident of murder of Basharat Ali took place. Sajjad Akhtar's claim was that they three were heading toward Lala Musa from Kamla Band by a motorcycle, this is how they reached village Khawaspur, that fell on the way. In the cross-examination, this witnesses, however, twisted his earlier contention as he made in examination-in-chief and said that he and his companions including Basharat Ali (deceased) and Rasib Ali PW (not produced) had gone to the house of their sister in village Kamla Band and from there they left for Lala Musa at about 12.00 noon and reached Khawaspur at about 1.15 p.m. If his changed stance is admitted as correct, he would certainly eliminate the presence of Razzaq Ahmad (complainant/P.W.6) at the spot at the time of the alleged occurrence. He stated about arrival of the complainant at the spot along with him and Rasib Ali PW (not produced) together and it was the only mode given by him as regards the complainant's position. Razzaq Ahmad, in fact, did not travel with him or Rasib Ali or Basharat Ali (deceased) on their motorcycle to village Khawaspur. Two contentions of Sajjad Akhtar in this context make his presence dubious and hard to believe. Another aspect of his divergent contentions is that his earlier deposition did not include the name of Basharat Ali (deceased) as a co-rider of the same motorcycle, if so, how did he reach village Khawaspur, is a mind-boggling factor. Sajjad Akhtar did not tell the name of the lady, whom they visited in village Kamla Band. It cannot be ascertained from his statement as to whose sister she was, as Sajjad Akhtar and co-riders were not real brothers inter-se. Why did this witness choose to contend about start of their journey from village Kamla Band, which was not residential place of any of these motorcyclists, makes it a mind-itching factor, but not too difficult to understand. It may easily be assessed from the depositions of the eye-witnesses, that village Khawaspur would, most probably, not fall on the way, if journey to Lala Musa was started by them from village Chaukar Kalan or village Chaukar Khurd, their residential villages.

11. Razzaq Ahmad (P.W.6) worked as a labourer in a textile mill at Sheikhupura and according to him, he was on leave on 3.9.2007. He stated in his testimony that being on leave, he came to village Khawaspur at about 11.30 a.m. on 3.9.2007. He said nothing as to why did he visit village Khawaspur and whom he met there. He kept it hidden, where did he stay from 11.30 a.m. to 1.15 p.m. and how did he reach the spot in the nick of the time. His arrival at village Khawaspur is in itself a dubious circumstance. He merely stated that he was present at the place of occurrence, when he saw a car and motorcycle overtaking the motorcycle of his brother Basharat Ali, Rasib Ali PW (not produced) and Sajjad Akhtar (P.W.5) and both the vehicles stopped in front of his brother's motorcycle, due to which all the vehicles came to a standstill, whereafter the alleged occurrence took place. Both the eye-witnesses have contended that the appellant raised a Lalkara and fired straight into the chest of Basharat Ali, due to which he fell down and died at the spot. Let us see if preceding contention of the P.Ws. could be believed or not. Muhammad Akram SI/IO (P.W.11) contended in his statement that he drew visual site-plan of the place of occurrence (Exh.PM) on the pointedness of the complainant and other eye-witnesses. Let us deem it as correct and straightaway consult Exh.PM, which showed that the accused had fired at Basharat Ali from 3-1/2 karams, which is equivalent to about seventeen (17) feet. This distance has, however, been mentioned as forty (40) feet in the site-plain in-scale (Exh.PN) by Akhtar Naqqash draftsman (P.W.10), who categorically stated in his testimony that he prepared Exh.PN and Exh.PN/1 as per tips given by the complainant and other eye-witnesses. It may not be found from the statements of P.W.5 and P.W.6, as to the distance of firing by the appellant into the chest of the deceased, but the distance mentioned in the visual site-plain (Exh.PM) and site-plan in-scale (Exh.PN) may be relevant in ascertaining this particular fact. According to these documents, the crucial distance was about seventeen (17) feet or forty (40) feet, as noted hereinabove. The contents of the postmortem examination report (Exh.PW9/A) revealed that injury No.1(a), which was an entry wound, bore blackening around its margins, which is indicative of a strong probability that it might have been authored maximum from a distance of six feet. The direction of injury No.1(a) as shown in pictorial diagram (Exh.PW9/A-1) is from right to left diagonally, as exit of the entry wound is located below right axilla. From the track of the bullet, connecting injury No.1(a) and injury No.1(b), it may be visualized as to the position of the shooter and that of the person shot at, Basharat Ali, at the crucial time of shooting. The eye-witnesses, however, mentioned their position as if they were in front of each other then. Sajjad Akhtar (P.W.5) could not recall the number of crime empties scattered at the place of occurrence, rather he showed obliviousness about having stated anything before the police in this regard. Razzaq Ahmad (P.W.6) mentioned this number as fifteen/twenty (15/20) that he saw lying at the place of occurrence. The Investigating Officer (P.W.11) did not notice any such thing nor did he collect anyone during spot inspection. The motorcycle registration number of the deceased could not be known by the Investigating Officer, having not been disclosed to him by the complainant and his cronies. The disappearance of the deceased's motorcycle is a surprising element, which would haunt the prosecution case to its end. One of the eye-witnesses, P.W.5 deposed that the villagers were attracted to the hot-spot as they raised hue and cry, which meant that it happened within minutes and on seeing the people coming, the accused ran away without looking at their car. He, however, took a U-turn during his examination and said that the accused remained near the dead body till police arrived there at 2.30 p.m. and it was for this reason that he could not get close to the dead body or take care of fallen Basharat Ali, when he received injuries. Razzaq (P.W.6) categorically stated that the accused decamped from the crime-scene ten minutes after the occurrence. Both the eye-witnesses behaved strangely as they did not get close to the fallen Basharat Ali to take care of him nor did they change his side, though he had fallen facing-ground. Sajjad Akhtar's pretext of failing to take care of fallen Basharat Ali is altogether different from the apathetic conduct of Razzaq Ahmad (P.W.6), who despite being real brother, did not even touch his bleeding brother and merely said that he had not checked the dead body till arrival of the police. This demeanour of the witnesses is against normal human conduct, as they must have attended to their shot-at brother, if they were present there. It is an immensely crucial circumstance that the investigating officer failed to find the deceased's motorcycle at the place of occurrence, despite no one claimed that someone had taken it away after the occurrence. The accused at no stage claimed ownership or custody of the seized car, rather they declined to have any link with it in their statements under section 342, Cr.P.C. The ocular account, as observed precedingly, is a pile of inconsistencies, dissentions and countless discrepancies. The eye-witnesses failed to show-up as truthful persons and their testimonies lacked basic ingredients of believability and trustworthiness. It is liable to be brushed aside, being bereft of any tinge of believability.

12. The most important and independent witnesses, who bore indelible imprint of their presence at the spot at the crucial hour, who were Muhammad Nadeem and Muhammad Waseem, but they were withheld by the prosecution on the pretext that they had been won over by the other side, though they didn't hint at any such proof in this context. By withholding their evidence, the prosecution made a conscious effort to keep the truth hidden. Their non-appearance as PWs may reflect on the veracity of the story narrated by the eye-witnesses. Their medical examination at 1.50 p.m. on 3.9.2007, courtesy the police, may lead to inference that the FIR (Exh.PH/1), shown to have been lodged at 2.50 p.m., had, in fact, been recorded after preliminary investigations. The eye-witnesses contended that the police reached the place of occurrence at 2.30 p.m., where Razzaq Ahmad (complainant/ P.W.6) rendered complaint (Exh.PH) before Muhammad Akram SI (P.W.11), who reduced it into writing and started inspecting the spot. If the injured witnesses had approached the police much earlier, their statements to the effect of their injuries must have been recorded by them, but nothing is available in this regard, which is damaging to the complainant-story, that he narrated in Exh.PH.

13. Now coming to the medical evidence, it can be seen from the postmortem examination report (Exh.PG) that the autopsy conductor (Dr. Muhammad Mudassar, MO) found two firearm injuries on the body of the deceased, when he dissected it at 4.00 p.m. on 3.9.2007, which read as follows:- 1(a) Entry wound of 1 cm x 1 cm on right upper chest. Blackening present. 1(b) Exit wound 3 cm x 2 cm below right axilla. The medical officer recorded his remarks about the cause of death in terms that it occurred due to haemorrhage and shock caused by injury No.1, which was sufficient to cause death in ordinary course of nature. This injury was found ante-mortem and caused by firearm. The doctor mentioned the probable time elapsed between injury and death as "immediate" and that elapsed between death and postmortem examination as "two to six hours". The autopsy conductor could not, however, show up at the trial and in his place Arshad Iqbal, record keeper of Tehsil Headquarter Hospital, Kharian, who claimed to be familiar with his handwriting and signatures, was examined as P.W.9, but he said nothing in his testimony about the then whereabouts of the medical officer. It may be found from paragraph 18 of the impugned judgment that Dr. Muhammad Mudassar had left the country as per report of the process-server and, thus, Arshad Iqbal was summoned and examined as P.W.9 as a matter of secondary evidence. Another medical officer, Dr. Naeem Akhtar MO, RHC Lala Musa appeared as P.W.1 and gave an account of the firearm injuries of Muhammad Nadeem and Muhammad Waseem PWs (not produced). The medico-legal report (Exh.PA) of Muhammad Nadeem injured revealed two firearm injuries, entry and exit, bleeding profusely at the time of his medical examination at about 1.50 p.m. on 3.9.2007. These injuries were kept under observation and remained as such till doctor's examination before the court. The medico-legal report (Exh.PB) of Muhammad Waseem entailed one firearm injury at the locale of his right shoulder. It, too, was found bleeding when he was medically examined at the same time and date. The medical evidence may tell the number of injuries, the weapon used, the damage done by the injuries and the cause of death etc., but it cannot identify the author thereof. It is always corroboratory in nature.

14. Let us have a look at the evidence of recovery of Kalashnikov (P6) and ten live bullets (P7/1-10) at the instance of the appellant on 8.6.2008 vide memo of recovery (Exh.PG) attested by Amanat Ali PW (not produced) and Sajjad Akhtar (P.W.5). The appellant allegedly got recovered the said weapon and ammunition from the dera of Ch.Rasib Ali, resident of Chak Sikandar. This weapon may not be of any consequence, as Muhammad Akram SI/IO (P.W.11) failed to collect any crime empty of Kalashnikov from the place of occurrence, when he firstly visited it on 3.9.2007. Although a Forensic Science Laboratory report (Exh.PT) about Kalashnikov (P6) is available on the record, but it merely showed its being an automatic and in working-order weapon. This report can hardly connect the said weapon with the commission of offence. Its evidentiary value stands certainly set at naught, in absence of the crime empties and a finding that it was wedded therewith.

15. Insofar as the alleged abscondence of the appellant is concerned, Raheel Ahmad 182/C (P.W.4) was produced by the prosecution to establish this fact. He contended in his testimony that he searched for the accused, but failed to find him as he had wilfully gone into a hideout. He executed his non-bailable warrant of arrest (Exh.PW4/B) and made his report (Exh.PW4/B-1) to the said effect on 17.11.2007. He was entrusted with the proclamation (Exh.PW4/D) of the appellant on 22.11.2007 and he tendered a report about its execution (Exh.PW4/D-1) on 24.11.2007. His evidence is nothing, but a laughable material. He received non-bailable warrants of arrest on 17.11.2007 and submitted his report the same day by claiming that he hectically searched for the accused but failed to trace him and he believed that he had intentionally concealed himself to avoid his arrest in this case. Interestingly, he mentioned in his report that proclamation under sections 87/88, Cr.P.C. might be issued against the accused. If we look at the handwriting of the scribe of the warrant and compare it with that of the report made, one may find it an inseparable circumstance, being identical inter-se from all angles, rather, the note, whereby this warrant had been entrusted to this witness is also in the same handwriting. It appears to be the job of a single man, who filled-in blank columns of the warrant of arrest, entrusted it to Raheel Ahmad (P.W.4) and prepared a report thereon about concealment of the accused. The condition of proclamation of the appellant is still worse. It bears the report that "it has been executed". There exists nothing in support of this senseless report. Besides, its handwriting startlingly assimilated the handwriting on non-bailable warrant of arrest (Exh.PW4/B and Exh.PW4/B-1), regarding which detailed comments have been recorded above. The process-server (P.W.4) did not record statement of any of the local inhabitants or the respectable in token of the 'execution' that he carried out on 24.11.2007. It is true that the appellant was shown to have been arrested on 30.5.2008, about six months after the alleged occurrence, but it did not itself mean, in absence of any lawful proceedings thereto, that he remained an absconder in this case. He might have shifted to some other place from the known place of his residence out of fear. The factum of abscondence of the appellant has remained unestablished, thus, a futile exercise on their part.

16. So far as the defence plea of the appellant that he raised in his statement under section 342, Cr.P.C. is concerned, he pointedly contended that one Muhammad Nawaz, who contested the election of Nazim and returned from the same union council, where he and the other side lived, openly opposed him, as he sided with Muhammad Akbar, the other candidate from the same constituency, which caused grudge to him and to satisfy his vengeance, he joined hands with the complainant-side and built-up a false story on the dead body of Basharat Ali deceased against him. This particular plea of the accused, though figured in the testimonies of the eye-witnesses and the investigating officer, yet, its truthfulness is hardly assessable, as nothing existed on the record, which may materially fortify it. The defence plea thus stands rejected, but it does not mean that it would strengthen the prosecution case in any manner, as they had to stand on their own legs so as to bring home the guilt of the accused.

17. All what have been discussed above would lead to suggest that the prosecution has miserably failed to bring home the guilt of the appellant beyond any reasonable shadow of doubt. The impugned judgment appears to have been passed in a blindfolded manner, without taking into account innumerable inconsistencies and discrepancies in the prosecution case. Not a single circumstance went the prosecution way, but the learned trial court grossly overlooked its fragility and handed down the impugned verdict of guilt to the appellant in the most uncalled for manner, which is truly deplorable. Had the appreciation of events been correctly made and flawlessly adjudged, the appellant might have been acquitted of the charge on 12.1.2011 by the learned trial court, when his co-accused were exonerated. The impugned judgment is unsustainable by all means, hence, it is undone. The sentence of the appellant is set aside and he is acquitted of the charge. He is directed to be released forthwith if not required in any other case. This appeal stands accepted.

18. Insofar as Criminal Revision No.1272 of 2011 filed by the complainant for enhancement of sentence of the appellant is concerned, it, being meritless, for the reasons recorded hereinabove, stands dismissed. JK/M-124/L Appeal accepted.