' This judgment will dispose of Criminal Appeal No, 373 of 2002 filed by Nasra and Criminal Appeal No, 1002 of 2002 filed by Zafar, appellant. Though the appeal filed by Zafar appellant is not fixed for today but I have asked my Reader to send for the file of said appeal. The same has been received.
Since counsel in both the appeals is same and both the appeals arise outcome of one F.I.R., hence those are being decided today. It may be noted that Zafar appellant was proclaimed offender, he was arrested later and then tried by learned Additional Sessions Judge, Hafizabad vide judgment, dated 9-5-2002 while conviction against Nasra was recorded by the trial Court on 30-1-2002. Both these appellants were convicted and sentenced as under:-- ' Imprisonment for life and to pay compensation to the tune of Rs, One lac each, in default 6 months' S.I. Each under section 302(b), P.P.C.
' Only Zafar appellant was also convicted under section 337-F(iii), P.P.C. And sentenced to 3 years'
R.I. Both the sentences were ordered to run concurrently. Criminal Revision No, 247 of 2002 filed by Jagga against the acquittal of Basra respondent shall also be disposed through this single judgment.
2. Briefly stated the facts of the case are that on 14-1-1998 at about 1 p.m., Abid maternal grandson of the complainant Jagga was coming back from school and when he reached Miani Khooi, Zafra and Nasra, caught hold of Abid and inflicted injuries upon his person. About 3 p.m. On the same day, Jagga, the complainant, his son Muhammad Anwar, Khan, Dosa, Sultan, Riaz, Rani, Nousher and Bhai Khan were present at their. Dera, when suddenly Nasra armed with rifle 7 MM, Basra armed with rifle 7 mm, Zafra armed with Barchha, Allah Ditta armed with hatchet, Noor armed with gun .12 bore, Allah Ditta, armed with rifle 7 mm, Nawaz armed with .12 bore gun, Ameer armed with Sota, Mehndi armed with rifle 7 mm and Bashir armed with hatchet came there, forcibly abducted Rani saying why she had married with Riaz. The complainant and others followed the accused and tried to get Rani released but Allah Ditta raised Lalkara to teach a lesson to the complainant party. ,Upon this, Nasra made fire which hit Muhammad Anwar at his leg. The second fire shot by Basra landed on the left shin of Muhammad Anwar. The fire of Noor hit at the shoulder of Sultan. Bashir gave blow of his hatchet, which landed on the head of Dosa. The hatchet blow of Allah Ditta hit on the head of Khan. Zafar gave a Barchha blow at the hand of Riaz and a butt blow was given on the head of Rani by Nawaz, accused. After that, all the accused caused injuries on the persons of the complainant party and ran away while resorting to aerial firing.
3. Investigation of the case was taken over by Farman Ali, S.-I. (P.W.10). He after registration of the F.I.R., proceeded to Civil Hospital, Pindi Bhattian and took into possession the dead body of Muhammad Anwar deceased and prepared inquest report Exh.P.E. As injury statement Exh.P.D. After that, he went to the place of occurrence, took into possession the blood-stained earth vide memo.
Exh.P.R., prepared site plan Exh.P.T. And on the following day, got medically examined Sultan, Dosa, Khan, Riaz, Mst. Rani and Abid. Both the present appellants alongwith co-accused were arrested by Inspector Farooq. During the course of investigation, Nasra appellant led to the recovery of rifle 8 mm which was taken into possession vide memo. Exh.P.M. On the same day Zafra appellant also got recovered Bharcha which was secured vide memo. Exh.P.N. The other accused also got recovered the weapons of offence. After completion of the investigation, all the accused were sent to face the trial.
4. At the trial, prosecution in order to prove its case produced 10 witnesses in all. Then the learned DDA tendered in evidence report of the Chemical Examiner Exh.P.AA., report of the Serologist Exh.P.BB. And closed the case of the prosecution. Statements of the accused were recorded under section 342, Cr.P.C. And after that both the appellants were convicted and sentenced as stated above.
5. As to appeal of Nasra, appellant, learned counsel submits that on the same evidence, Basra co- accused,of the appellant has, been acquitted. Further submits that in the F.I.R. Nasra appellant was alleged to be armed with rifle 7 mm but his licensed rifle 8 mm was allegedly recovered on his pointation. Adds that no crime-empty was recovered from the spot though according to case of the prosecution, some of the accused .Armed with fire-arms, fired at the spot. Further adds that Nasra appellant has no motive against the deceased and if there was any motive, that was with Riaz only.
6. With regard to Zafar, appellant, it is submitted by learned counsel that according to F.I.R. He was armed with a Barchha which is sharp-edged weapon and caused injury on the person of Riaz son of _ Sultan but according to Dr. Shaukat Ali. (P.W.2) who medically examined said Riaz; the injury on his person was with blunt weapon and that too on tip of left middle finger, so there is clear conflict between ocular account and the medical evidence. Further submits that said Barchha though was recovered on the pointation of the appellant but was not blood-stained.
7. Learned counsel for the State supports the judgment of the trial Court. He submits, that there we're injured eye-witnesses in this case who have fully supported the case of the prosecution and that the ocular account is fully corroborated by the medical evidence.
8. Learned counsel submits that Zafar remained proclaimed offender and it is a big corroborative circumstance to prove his guilt and that so far as alleged conflict between ocular account and medical evidence is concerned, in such a brawl, there can be a mistake on the part of the witnesses with regard to side of the weapon used.
9. I have heard learned counsel for the parties and have gone through the record with their able assistance. Nasra appellant was tried alongwith 8 co-accused. Except Nasra, appellant, all the remaining accused were acquitted. Basra son of Malk, one of the accused was also acquitted by the trial Court. This acquitted accused was ascribed an injury on left leg of the deceased. Similarly, Nasra appellant was attributed injury on the left leg near thigh of the deceased. The case of Nasra appellant was at par with the case of Basra acquitted accused. Appeal against the acquittal of Basra was dismissed by a Division Bench consisting of my. Learned brothers Mian Muhammad Najam-uz-Zaman and M. Naeemullah Khan Sherwani, JJ. By passing a detailed order. According to F.I.R., Nasra appellant was armed with a rifle 7MM but during the course of investigation, 8 mm licensed rifle was recovered from him. While following the rule of consistency, appeal filed by Nasra appellant is accepted. Conviction and sehtence recorded against him by the trial Court is set aside. He is behind the bars and shall be released forthwith, if not required to be detained in any other case.
10. Now, I take up the case of Zafar, appellant. According to FI.R., he while armed with Barchha caused an injury at the hand of Riaz. According to Dr. Shaukat Ali P.W.2 who medically examined Riaz son of Sultan, there was a lacerated wound on the tip of left middle finger and was caused with a blunt weapon. Had the injury been caused with Barchha which is sharp-edged weapon, the injury should have been either incised or punctured wound and mere recovery of Barchha is of no avail to the prosecution. There is conflict between ocular and the medical evidence. This appellant did not cause any injury to the deceased but only caused an injury to Riaz who did not even appear before the trial Court. Merely on the basis of abscondence, conviction cannot be maintained unless there is other sufficient material on record to connect the accused with the commission of offence. Reliance can be placed on 1998 SCMR 198. In these circumstances, while extending the benefit of doubt, the appeal filed by Zafar appellant is accepted. Conviction and sentence recorded against him by the trial Court is set aside. He is in jail and shall be released forthwith, if not required to be detained in any other case. Criminal Revision No 247 of 2002 is dismissed.