2013 PLP 2789 (YLR)

MALIK SHAHZAD AHMAD KHAN, J.

This judgment shall, dispose of Criminal Appeal No. 1192 of 2008 filed by Amanat Ali alias Manoo appellant against his conviction and sentence and Murder Reference No. 1 of 2009, sent by the learned trial Court under section 374, Cr.P.C., for confirmation or otherwise, of the sentence of death awarded to Amanat Ali alias Manoo appellant, as both these matters have arisen out of the same judgment dated 16-10-2008, handed down by the learned Additional Sessions Judge, Nankana Sahib, in case F.I.R. No. 20 dated 31-1-2005, registered under sections 302/34, P.P.C., Police Station Syedwala Tehsil and District Nankana Sahib, whereby, Amanat Ali alias Manoo appellant was convicted and sentenced as under:-- Under Section 302 (b) P.P.C., Death Sentence as Taz'ir for committing the murder of Muhammad Sharif deceased with a direction to pay the compensation amount of Rs.1,00,000 (Rupees one hundred thousand only) to the legal heirs of the deceased as envisaged under section 544-A, Cr.P.C. and in default, thereof, he was directed to suffer imprisonment for six months' S.I. Under Section 404 P.P.C., Three years' R.I. for dishonestly mis-appropriating the-pistol belonging to Muhammad Sharif deceased with a direction to pay Rs.10,000 (Rupees ten thousand only) as fine and in default, thereof to further undergo S.I. for a term of one month. Through the same judgment the learned trial Court has, however, acquitted Ramzan alias Janoo and Khalil Ahmed, co-accused while giving benefit of doubt to them. It is relevant to mention here that no charge under section 404 P.P.C. was framed but the learned trial Court, convicted and sentenced the appellant under section 404, P.P.C.

2. Brief facts of the case as given by the complainant Muhammad Hussain (P.W.3) in the 'Fard Bayan' Exh.PB, on the basis whereof the formal F.I.R. Exh.PB/1 was chalked out, are that on 30-1-2005 at about 12-00 p.m. (noon), Muhammad Hussain complainant (P.W.2) along with his brother Muhammad Sharif (deceased), who was posted as Excise Inspector at Nankana Sahib, was proceeding back to his village Guddan from Syedwala while riding on their Motorcycle bearing Registration No. 8915/LRX. Muhammad Hussain complainant (P.W.2) was driving the motorcycle, whereas, Muhammad Sharif (deceased) was sitting on the rear seat of motorcycle. They, when reached near the Bridge Pipplan, four persons while riding on two motorcycles, Amanat Ali (appellant) armed with pump action gun, Yar Muhammad accused (since murdered) armed with rifle, two unknown persons, out of them one accused person was armed with pistol .30 bore and the other accused person was armed with rifle who can be identified on confrontation, emerged there. Suddenly, Amanat Ali (appellant) and Yar Muhammad, accused (since murdered in police encounter) started firing with their respective weapons, which landed on the backside of neck and shoulders of Muhammad Sharif (deceased). The complainant Muhammad Hussain (P.W.2) stopped the motorcycle, whereas, Muhammad Sharif (deceased) fell down on the ground. The complainant Muhammad Hussain (P.W.2) while concealing himself in the nearby standing crop of sugarcane, made firing with his pump action gun in exercise of his right of self-defence. The accused persons entered in a Rajbah, and started indiscriminate firing. Yar Muhammad accused also fired with his weapon which landed near the left ear of Muhammad Sharif (deceased). Amanat Ali (appellant) also fired with his weapon which hit on the right side of forehead of Muhammad Sharif (deceased). The complainant Muhammad Hussain (P.W.2) took shelter in the nearby sugarcane crop. In the meanwhile, Muhammad Amin (P.W.3) and Abdul Jabbar (given up P.W.) brothers of the complainant, who were coming to Syedwala from Bridge Piplan, also reached there and witnessed the occurrence. Muhammad Sharif (deceased) succumbed to the injuries at the spot. Muhammad Amin (P.W.3) informed the police through telephone whereupon the police as well as the residents of the nearby area came at the spot. The motive behind the occurrence as set forth in the F.I.R. was that Shaukat Ali, brother of Amanat Ali (appellant) and Yar Muhammad co-accused (since murdered), was murdered, whereupon F.I.R. No.174 of 2003, under sections 302/ 324/148/149/109, P.P.C. was registered at Police Station Syedwala against the brothers of the complainant and in order to get revenge of said murder, the accused persons committed the murder of Muhammad Sharif (deceased). The accused persons while leaving the spot also took with them, the motorcycle of the complainant and licensed pistol .30 bore of the deceased which was tied around the waist of the deceased.

3. The appellant Amanat Ali alias Manoo was arrested in this case on 27-8-2005 by Mohabbat Ali, S.-I (P.W.12). On 2-9-2005, the appellant led to the recovery of pump action .12 bore gun (P-5) along with live cartridges (P-6/1-5), which was taken into possession vide recovery memo Exh. PF. After completion of investigation, the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing all legal formalities, as envisaged under the Code of Criminal Procedure, 1898, framed charge against the appellant Amanat Ali alias Manoo and co-accused Ramzan alias Janoo (since acquitted) and Khalil Ahmed (since acquitted) under sections 302/34 P.P.C. on 21-6-2007, to which they pleaded not guilty and claimed trial.

4. In order to prove its case, the prosecution produced twelve witnesses, during the trial. Muhammad Hussain complainant (P.W.2) and Muhammad Amin (P.W.3) are the witnesses of ocular account while Muhammad Amin (P.W.3) is also the witness of recovery of pump action .12 bore gun (P-5) from the possession of Amanat Ali alias Manoo appellant. The medical evidence was furnished by Dr. Khalid Mehmood (P.W.4), who on 30-1-2005 at 8-00 p.m. conducted the postmortem examination on the dead body of Muhammad Sharif deceased while Ishtiaq Khan, Inspector (P.W.9), Riaz-ud-Din, Inspector (P.W.10), Mohabbat Ali, S.-I (P.W.12) and Muhammad Akram, Inspector (CW1) are the Investigating Officers of this case. Abid Hussain Shah, Patwari (P.W.1), Mansab Ali 242/HC (P.W.5), Muhammad Aslam 117/C (P.W.6), Muhammad Ashraf 537/C (P.W.7), Muhammad Anwar 617/C (P.W.8) and Syed Imdad Hussain S.-I. (P.W.11) were the formal witnesses. The prosecution has also produced documentary evidence in the shape of scaled site plan of the place of occurrence in duplicate (Exh. PA) & (Exh.PA/1), Fard Bayan of Muhammad Hussain complainant (P.W.2) (Exh.PB), copy of F.I.R. (Exh. PB/1), recovery memo of pistol .30 bore (P.1) of the deceased from the possession of Amanat Ali alias Manoo appellant (Exh.PC), rough site plan of the place of recovery of pistol .30 bore (P.1) (Exh.PC/1), memo of possession of blood-stained earth (Exh.PD), memo of possession of empty bullets etc. (Exh.PE), memo of possession of pump action12 bore gun along with five cartridges (Exh.PF), copy of rough site plan of the place of recovery of .12 bore pump action gun (Exh.PF/l), copy of postmortem report of the deceased (Exh.PG), pictorial diagram (Exh.PG/1), inquest report of the deceased (Exh.PH), injury statement of the deceased, memo of possession of rifle 7-MM from the possession of Khalil Ahmad (acquitted accused), memo of possession of last worn clothes of the deceased, all were exhibited as (Exh.PJ), copy of rough site plan of the place of recovery of rifle along with five cartridges from the possession of Khalil Ahmad (acquitted accused) (Exh.PJ/1), copy of application for conducting postmortem examination on the dead body of Muhammad Sharif deceased (Exh.PK), injury statement of Muhammad Sharif (deceased) exhibited as (Exh.PL), copy of site plan of the place of occurrence without scale (Exh.PM), report of Serologist (Exh.PN), report of Chemical Examiner (Exh.PO), report of Forensic Science Laboratory (Exh.PQ), and closed its evidence.

5. The statement of the appellant under section 342, Cr.P.C. and his co-accused were recorded by the learned trial Court on 18-7-2008. The appellant refuted all the allegations levelled against him and professed his innocence. While answering to a question that "Why this case registered against you and why the P.Ws. have deposed against you?" Amanat Ali alias Manoo appellant replied as under:-- "Due to enmity and only pressurizing me for compromising the case F.I.R. bearing No. 174 of 2003 dated 30-6-2003 as I am complainant of that case in which my brother was murdered by the complainant party of this case." The appellant did not opt to make his statement on oath, under section 340(2), Cr.P.C, nor he produced any evidence in his defence. However, the learned trial Court in order to reach at a just conclusion of the case examined Muhammad Akram, Inspector as (CW-1).

6. The learned trial Court vide judgment dated 16-10-2008, while acquitting co-accused Ramzan alias Janoo and Khalil Ahmed found Amanat Ali alias Manoo appellant guilty and convicted and sentenced him as mentioned and detailed above.

7. Learned counsel for the appellant, in support of this appeal, contends that presence of the complainant and the other eye-witness at the spot is highly improbable; that the complainant in the F.I.R. stated that when he was going on the motorbike along with his brother Muhammad Sharif (deceased), who was sitting on the rear seat, they were fired at from the backside by the appellant and his co-accused Yar Muhammad and the fire shots hit Muhammad Sharif at the backside of his neck and shoulders whereas the complainant in cross-examination has admitted that he identified the accused when they crossed them after firing hence, in that situation when he was driving motorcycle, it was not possible to see as to who was behind him and fired at his brother; that in the F.I.R. the complainant stated that the appellant Amanat Ali who was armed with pump action gun and Yar Muhammad (co-accused since murdered) who was armed with rifle fired which hit on the back of the neck and shoulder of his brother and thereafter his brother fell down and then Yar Muhammad fired which hit him on the left side of his ear and then Amanat Ali appellant fired which hit at the right side of forehead of deceased but while appearing before the learned trial Court, he did not describe injury which was allegedly caused by the appellant on the forehead of the deceased because of the simple reason that it was an exit wound; that in the F.I.R. it was the case of the complainant that the appellant was armed with a pump action gun whereas before the learned trial Court he categorically stated that the appellant was armed with rifle; that motive alleged in the F.I.R. was to the effect that brother of the appellant Amanat Ali and his co-accused Yar Muhammad, namely, Shaukat Ali was murdered and an F.I.R. No.174/03 under sections 302/324/148/149/ 109, P.P.C. at, Police Station Syedwala was registered against the brothers of the complainant and in order to take revenge of that murder, accused persons have committed the murder of Muhammad Sharif but while recording his statement before the Court, complainant did not state anything regarding motive; that recovery of pump action at the instance of the appellant is inconsequential as there was no report of the Forensic Science Laboratory despite the fact that as per police investigation 40 empties were recovered from the spot; that motive is always a double edged weapon and if it is the reason for crime, at the same time it could be the reason for false implication of the accused; that in the F.I.R. it was the case of the complainant that after the incident, the appellant and his co-accused took along with them licensed pistol of the deceased and motorcycle of the complainant on which the complainant and the deceased were riding but no motorcycle was recovered and number of the pistol was not mentioned in the F.I.R.; that the complainant stated in the F.I.R. that pistol of the deceased was licensed one but no licence was produced by the prosecution; that it was the case of the complainant that he too resorted to firing with his licensed pump action gun but no pump action gun was produced by the complainant during the course of investigation; that abscondence of the appellant has not been proved in accordance with law as no warrants of arrest or proclamation against the appellant is available on record and no witness deposed that any warrant or proclamation in respect of the appellant was obtained; that recovery of pistol of Muhammad Sharif deceased (P-1) from the appellant is not material as the licence of the said pistol was never produced either before the police or before the learned trial Court to establish that the same belonged to the deceased; that prosecution case from all angles is of highly doubtful in nature; that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt; Thus, this appeal be accepted and the appellant may be acquitted from the charge.

8. Conversely, the learned Deputy Prosecutor-General, for the State, assisted by learned counsel for the complainant opposes this appeal on the grounds that this incident took place on 30-1-2005 at 12-00 p.m. and the matter was reported to the police at 1-00 p.m. wherein all the necessary details of the incident such like the time and place of occurrence, the role played by the appellant and his co-accused, were clearly mentioned. Moreover, witnesses of ocular account has assigned very plausible reasons for their presence at the spot; that during his cross-examination, the complainant stated that he accompanied his brother who had gone home to spend his week end and was checking rice shellers being Excise Inspector and he also told the names of the owners of the rice shellers checked by the deceased. Similarly the other eye-witness, namely, Muhammad Amin (P.W.3) stated that his land is close to the place of occurrence; that statements of the witnesses of ocular account were recorded immediately after the occurrence, after recording the statement of the complainant. So far as motive is concerned, learned counsel for the complainant contends that the complainant stated motive behind the occurrence in the F.I.R. and although it is true that it was not mentioned in the examination-in-chief but in cross-examination, motive was put to the witness that Muhammad Sharif (deceased of this case) Muhammad Tufail, Ahmad Ali, Amin, brothers of the complainant and others were accused for the murder of brother of the appellant which clearly established the motive and even it has not been denied by the defence and it has been admitted in the statement of the appellant recorded under section 342 Cr.P.C. So far as the medical evidenced is concerned, learned counsel for the complainant contends that there is specific allegation against the appellant that he along with his co-accused fired which hit on the backside of neck and shoulder of the deceased and injury No.3 is on the back of neck of deceased and a pellet was also recovered from the dead body of the deceased which strengthened the prosecution case to the extent of the appellant as he was armed with a pump action gun; that it was a broad-daylight occurrence therefore, no question of mistaken identity arises; that there is no conflict between the ocular account and the medical evidence; that prosecution case is further corroborated by the recovery of pump action gun at the instance of the appellant and recovery of pistol of the deceased from him which was snatched after the incident and taken into possession through recovery memo (Exh.PC); that the appellant remained fugitive from law for a period of about 8 months; that investigation in this case was conducted with mala fide and for that reason Muhammad Akram, Inspector was given up by the prosecution as being won over and thereafter he was summoned as CW-1; that there is nothing on the record to suggest that the complainant and the deceased had enmity with anybody else; that substitution in such like cases is a rare phenomenon; that there is no mitigating circumstance in this case; that the sentence of death was rightly awarded to the appellant and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative.

9. We have heard the arguments of learned counsel for the parties and have also gone through the evidence available on the record with their able assistance.

10. The detail of the prosecution case has already been given in paragraph No.2 of this judgment therefore, there is no need to repeat the same however, gist of the prosecution case is that on 30-1-2005 at about 12-00 p.m. (noon), Muhammad Hussain complainant (P.W.2) along with his brother Muhammad Sharif (deceased), who was posted as Excise Inspector at Nankana Sahib, was proceeding back to his village Guddan from Syedwala while riding on their Motorcycle bearing Registration No. 8915/LRX. Muhammad Hussain complainant (P.W.2) was driving the motorcycle, whereas, Muhammad Sharif (deceased) was sitting on the rear seat of motorcycle. They, when reached near the Bridge Pipplan, four persons while riding on two motorcycles, Amanat Ali (appellant) armed with pump action gun, Yar Muhammad accused (since murdered) armed with rifle, two unknown persons, out of them one accused person was armed with pistol .30 bore and the other accused person was armed with rifle who can be identified on confrontation, emerged there. Suddenly, Amanat Ali (appellant) and Yar Muhammad, accused (since murdered in police encounter) started firing with their respective weapons, which landed on the backside of neck and shoulders of Muhammad Sharif (deceased). The complainant Muhammad Hussain (P.W.2) stopped the motorcycle, whereas, Muhammad Sharif (deceased) fell down on the ground. The complainant Muhammad Hussain (P.W.2) while concealing himself in the nearby standing crop of sugarcane, made firing with his pump action gun in exercise of his right of self-defence. The accused persons entered in a Rajbah, and started indiscriminate firing. Yar Muhammad accused also fired with his weapon which landed near the left ear of Muhammad Sharif (deceased). Amanat Ali (appellant) also fired with his weapon which hit on the right side of forehead of Muhammad Sharif (deceased). The complainant Muhammad Hussain (P.W.2) took shelter in the nearby sugarcane crop. In the meanwhile Muhammad Amin (P.W.3) and Abdul Jabbar (given up P.W.) brothers of the complainant, who were coming to Syedwala from Bridge Piplan, also reached there and witnessed the occurrence. Muhammad Sharif (deceased) succumbed to the injuries at the spot. Muhammad Amin (P.W.3) informed the police through telephone whereupon the police as well as the residents of the nearby area came at the spot. The motive behind the occurrence was alleged that Shaukat Ali, brother of Amanat Ali (appellant) and Yar Muhammad, was murdered, whereupon case F.I.R. No.174/2003, under sections 302/324/148/149/109, P.P.C. was registered at Police Station Syedwala against the brothers of the complainant and according to the complainant, in order to get revenge of said murder, the accused persons murdered Muhammad Sharif (deceased), brother of the complainant, in the daylight. The accused persons while going took motorcycle of the complainant and pistol .30 bore of the deceased which was tied around the waist of the deceased, along with them.

11. The role assigned to the appellant Amanat Ali and Yar Muhammad co-accused (since murdered) in the F.I.R. (Exh.PB/1) was to the effect that on the day of occurrence when the complainant Muhammad Hussain (P.W.2) along with his brother Muhammad Sharif (deceased) was going towards his village on motorcycle, Amanat Ali appellant and Yar Muhammad co-accused (since murdered), both made firing at Muhammad Sharif deceased with their respective weapons which landed on the back side of his neck and shoulders. Apart from the above mentioned joint role, Amanat Ali appellant was also assigned the role of making a fire shot which landed on the right side of forehead of Muhammad Sharif deceased whereas Yar Muhammad co-accused (since murdered) was attributed the role of making a fire shot which landed on the left ear of Muhammad Sharif (deceased). The role attributed to Amanat Ali appellant in the F.I.R. (Exh.PB/1) was in conflict with the medical evidence because apart from one injury on the back of the neck of Muhammad Sharif deceased (injury No.3), which was jointly attributed to the appellant Amanat Ali and Yar Muhammad co-accused (since murdered), other two injuries attributed to the appellant were not available on the person of the deceased as there was no injury on the back of shoulders of Muhammad Sharif deceased, which was jointly attributed to the appellant Amanat Ali and Yar Muhammad co-accused (since acquitted) whereas the other injury which was specifically attributed to the appellant on the right side of forehead of Muhammad Sharif deceased was an exit wound according to the medical evidence furnished by Dr. Khalid Mehmood (P.W.4). As the injury on the right side of forehead of Muhammad Sharif deceased was an exit wound therefore, Muhammad Hussain complainant (P.W.2) while making his statement before the learned trial Court did not state anything about the said injury. However, the joint role attributed to the appellant Amanat Ali and Yar Muhammad co-accused (since murdered) of inflicting fire arm injuries on the back side of neck and back of the deceased was assigned by Muhammad Hussain complainant (P.W.2) during his statement recorded by the learned trial Court. The said role was in conflict with the medical evidence to the extent of injury on the back of Muhammad Sharif deceased. Insofar as injury on the back of neck of Muhammad Sharif deceased, which is jointly attributed to the appellant and Yar Muhammad co-accused (since murdered) is concerned, we have noted that in the F.I.R. (Exh.PB/1), the complainant has stated that he was driving the motorcycle whereas Muhammad Sharif deceased was sitting behind him and the appellant Amanat Ali and Yar Muhammad co-accused (since murdered) jointly started firing from the backside which landed on the back of neck and shoulders of Muhammad Sharif (deceased). Muhammad Hussain complainant (P.W.2) has also conceded during his cross-examination that he saw the accused persons when they over-took him after making fire shots at Muhammad Sharif deceased. Relevant part of the statement of Muhammad Hussain (P.W.2) at page Nos. 32 & 33 of the paper book reads as under:-- "I sighted the accused persons when they overtook me after resorting fire to Muhammad Sharif (since deceased)." In the given circumstances, it was not possible for the complainant to attribute the above mentioned injuries on the back side of the neck and shoulders of Muhammad Sharif deceased to the appellant because he (complainant) was driving the motorcycle whereas, accused persons were present on his backside. The evidence of other eye-witness namely Muhammad Amin (P.W.3), brother of Muhammad-Sharif deceased, is in contradiction with the evidence of the complainant Muhammad Hussain (P.W.2). As mentioned earlier the complainant in the F.I.R. (Exh.PB/1), as well as, in his statement before the learned trial Court has jointly attributed injuries on the backside of the neck and shoulders of the deceased to the appellant Amanat Ali and Yar Muhammad co-accused (since murdered) but Muhammad Amin (P.W.3) has attributed the above mentioned injuries only to the appellant while making his statement before the learned trial Court. We have noted that Muhammad Amin (P.W.3) while making his statement before the learned trial Court has not attributed any injury on the right side of forehead of Muhammad Sharif deceased to the appellant and he concealed the said injury in his statement recorded by the learned trial Court because the said injury was an exit wound. He was duly confronted with his previous statement (Exh.DA) and his dishonest concealment was brought on the record. Relevant part of his statement at page No. 43 of the paper book reads as under:-- "I had not recorded before the police that Amanat Ali accused resorted a fire which landed upon the forehead of Muhammad Sharif on his right side. (Confronted with Exh.DA) where it is so recorded but not in its minute detail." It is evident from the perusal of statement of Muhammad Amin (P.W.3) that he deliberately made dishonest improvement in his statement by stating that he did not record in his statement before the police that a fire shot made by the appellant landed on the right side of the forehead of the deceased in order to bring his evidence in line with the medical evidence. As mentioned earlier, in his statement before the learned trial Court, the complainant Muhammad Hussain (P.W.2) has also concealed the above mentioned injury on the forehead of the deceased which he attributed to the appellant in F.I.R. Exh. PB/1. It is by now well-settled law that a witness who makes dishonest improvements/concealments in his statement is not worthy of reliance. In the case of 'Akhtar Ali and others v. The State' (2008 SCMR 6) while discussing the evidence of a witness who made dishonest improvements in his statement the Hon'ble Supreme Court of Pakistan observed as under:-- "It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness has improved his statement dishonestly, therefore, his credibility becomes doubtful on the well known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness. See Hadi Bakhsh's case PLD 1963 Kar.805." Similar view was taken by the Hon'ble Supreme Court of Pakistan in the case of 'Muhammad Rafique and others v. The State and others' (2010 SCMR 385) wherein it was held that a witness who makes improvements on material aspects of the case is not worthy of reliance. It is, therefore, not safe to rely upon the evidence of the above mentioned eye-witnesses who made dishonest concealment/ improvements in their statements before the learned trial Court in order to overcome the weaknesses in the prosecution case and in order to bring their evidence in line with the medical evidence. We have also noted that the above mentioned eye-witnesses namely Muhammad Hussain (P.W.2) and his brother Muhammad Amin (P.W.3) were chance witnesses. The occurrence in this case took place near Bridge Pipplanwala. Both the above mentioned witnesses admitted during their cross-examination that the place of occurrence (bridge Pipplanwala) was at a distance of 12/13 kilometers from their residences. They have not given any plausible or convincing reason for their presence at the spot at the relevant time. It is noteworthy that post mortem on the dead body of Muhammad Sharif deceased was conducted on 30-1-2005 at 8-00 p.m. whereas the occurrence took place on the said day at 12-00 p.m. (noon) and as such there is delay of eight hours in conducting the post mortem examination without there being any plausible explanation for the said delay. The above mentioned delay in post mortem examination is suggestive of the fact that the eye-witnesses were not present at the spot, at the time of occurrence and the said delay was consumed in procuring the attendance of the eye-witnesses and preparation of police papers, necessary for the post mortem examination. We may refer here the case of 'Irshad Ahmad v. The State' (2011 SCMR 1190) wherein it was observed that the post mortem examination of the dead body had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post mortem examination of the dead body conducted. Similar view was taken by the Hon'ble Supreme Court of Pakistan in the case of 'Muhammad Ashraf v. The State' (2012 SCMR 419). Similarly in the case of 'Khalid alias Khalidi and 2 others v. The State' (2012 SCMR 327), the Hon'ble Supreme Court of Pakistan considered the delay of 13 hours in conducting the post mortem examination on the dead body of deceased, to be an adverse effect against the prosecution case and it was held that it shows that the F.I.R. was not lodged at the given time.

12. Prosecution evidence qua recovery of pump action .12 bore gun (P-5) on the pointation of the appellant is inconsequen-tial because report of Forensic Science Laboratory (Exh.PQ) is only about the working order of said gun. We have also noted that a pellet was recovered from the dead body of Muhammad Sharif deceased at the time of his post mortem examination which was handed over by the doctor to Muhammad Anwar 617/C after post mortem examination but said pellet was not sent to the Forensic Science Laboratory for its comparison and matching with the pump action .12 bore gun (P-5) thus, in absence of matching report of any empty or pellet with pump action .12 bore gun (P-5), the alleged recovery of gun (P-5) on the pointation of the appellant is of no avail to the prosecution.

13. We have also noted that it was alleged in the F.I.R. as well as in the statements of the prosecution witnesses that accused persons took away the motorcycle and licensed pistol of Muhammad Sharif deceased after committing his murder. No motorcycle was recovered from the possession of the appellant during the investigation of this case. Although it has been alleged that the licensed pistol of the deceased (P-1) was recovered from the possession of the appellant vide memo (Exh.PC) but licence of the deceased was never produced in evidence by the prosecution to establish that the said pistol was licensed pistol of Muhammad Sharif deceased. No number of pistol or the number of licence was mentioned in the F.I.R. (Exh.PB/1) or in any supplementary statement of the complainant or in the statements of the complainant Muhammad Hussain (P.W.2) and his brother Muhammad Amin (P.W.3), recorded by the learned trial Court. We are, therefore, of the view that alleged recovery of pistol (P-1) from the possession of appellant is inconsequential.

14. Insofar as alleged abscondence of the appellant is concerned, we have noted that neither any warrant of arrest nor any proclamation to prove the alleged abscondence of the appellant was brought on the record by the prosecution. We are therefore, of the view that the alleged abscondence of the appellant has not been proved by the prosecution in this case.

15. Insofar as prosecution evidence qua motive is concerned, it is by now well-settled law that motive is a double edged weapon. If it could be a reason for commission of the offence, at the same time it may be a ground for false implication of the accused in the case. Even otherwise, in absence of other convincing and reliable evidence, the appellant cannot be convicted merely on the basis of motive evidence furnished by the prosecution. Therefore, there is no need to discuss the prosecution evidence qua motive because there is no other reliable and trustworthy evidence to maintain the conviction and sentence of the appellant.

16. After considering all the aspects of this case, we have come to this conclusion that the prosecution could not prove its case against the appellant beyond the shadow of doubt. Resultantly, Criminal Appeal No. 1192 of 2008 filed by the appellant Amanat Ali alias Manoo is hereby accepted and he is acquitted of the charge while extending him the benefit of doubt. He is in custody, he be released from jail forthwith if not required in any other case. Murder Reference No.1 of 2009 is answered in negative and death sentence awarded to the appellant is not confirmed. HBT/M-85/L Appeal accepted.