' This judgment will dispose of Criminal Appeal No, 134 of 2002 filed by Qasim alias Naeem, appellant who was convicted under section 302(b) read with section 148, P.P.C. And sentenced to imprisonment for life with further direction to pay Rs, 20,000 as compensation, in default one year S.I. By learned Additional Sessions Judge, Jhang vide judgment, dated 10-12-2001.
' Criminal Revision No, 92 of 2002 filed by the complainant for enhancement of sentence of the convict shall also be disposed of through this single judgment.
2. Briefly stated the facts of the case are that on 16-5-1996 at about 4 p.m. Ghulam Muhammad complainant alongwith his sons Falak Sher, Maqbool and Iqbal alighted from a bus at Mahji Sultan Railway Crossing. Falak Sher was going ahead of them on a Pucca road towards the Chak whereas the complainant alongwith his sons Maqbool and Iqbal stopped' for a while to purchase cigarettes and in the meantime Falak Sher had reached in front of garden belonging to Lal son of Bahawal located on the above said Pucca road where Muhammad Iqbal armed with .30 bore pistol, Kameer armed with a rifle 222, Arif armed with .30 bore pistol, Qasim, Azhar, both armed with .30 bore pistols, Riaz armed with rifle 7 mm and two unknown persons who were sitting in an ambush, raised Lalkara that they had come to take the revenge of Mukhtar son of Nawaz.
' At the same time, Muhammad Iqbal fired two pistol shots hitting Falak Slier on his left ear and right cheek. The shot fired by Arif hit on the buttock of Falak Sher and he fell down. Then, Qasim fired a shot on Falak Sher, which hit on his left thigh and similarly the shot of Azhar landed on the left hand of Falak Sher. Kameer and Riaz fired at the P.Ws. Falak Sher succumbed to his injuries at the spot.
The occurrence was witnessed by Maqbool Hussain and Muhammad Iqbal.
' The motive alleged was that one Mumtaz son of Nawaz was murdered seven years prior to the occurrence and Falak Sher alongwith other accused was nominated accused of said murder case.
Falak Sher was acquitted in appeal by the High Court, hence due to this grievance, Muhammad Iqbal etc. Committed the murder of Falak Sher.
3. Investigation of the case was taken over by Abdul Hamid, S.-I. Who died before commencement of the trial. He prepared injury statement and inquest report of Falak Sher deceased. Blood-stained earth was taken into possession vide memo. Exh.P.D. Qasim accused while in custody led to the recovery of .30 bore pistol which was secured vide memo. Exh.P.H. After completion of the formal investigation, all the six accused namely Qasim, Kameer, Muhammad Iqbal, Riaz, Azhar and Muhammad Arif were challaned to face the trial.
4. At trial, prosecution in order to prove its case produced 8 P.Ws. And three C.Ws. The learned D.D.A.
Tendered in evidence report of the Chemical Examiner (Exh.P.L.), report of the Serologist (Exh.P.M.) and closed the case of the prosecution. Statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded false implication. After conclusion of the trial, except Qasim, the present appellant, all the five remaining accused were acquitted by the trial Court.
5. Learned counsel for the appellant submits that it was an unwitnessed occurrence and both the eye-witnesses namely Ghulam Muhammad complainant and Maqbool Hussain (P.Ws. 5 and 6) are real brothers of the deceased and no independent witness has been produced. Further submits that Ghulam Muhammad P.W. Is resident of a place which is 2-1/2 miles away from the place of occurrence while Muhammad Iqbal P.W. Was resident of Muzaffargarh while the occurrence had taken place within the jurisdiction of District Jhang. Adds that previous enmity existed between the parties, so possibility of false implication cannot be ruled out. Further adds that no crime empty having been recovered from the spot, mere recovery of pistol on the pointation of the appellant is of no avail to the prosecution. According to learned counsel, out of six named accused in the F.I.R.
Five were found innocent and out of two unknown, one Safdar was killed in a police encounter while Zulfiqar is proclaimed offender Lastly submits that trial Court having disbelieved the motive, holding conflict between eye-witness account and the medical evidence as also acquitting five accused and there being no other independent corroboration against the appellant, there was no occasion with the trial Court to record conviction against the appellant. Learned counsel has relied upon 1994 SCM R 1148 and 1995 SCM R 599.
6. Learned counsel for the State assisted by learned counsel for the complainant supports the judgment of the trial Court. He submits that both the eye-witnesses are unanimous on the point that it was the appellant who caused an injury on the thigh of the deceased which resulted into his death.
7. I have heard learned counsel for the parties and have gone through the record with their able assistance. Ghulam Muhammad, complainant (P.W.5) is father of the deceased Falak Sher. He named six accused including the present appellant Qasim in the F.I.R. Out of whom five were found innocent while two were unknown. Later on after 22 days, the complainant made a supplementary statement implicating Safdar and Zulfiqar but before the trial Court, he exonerated them because the complainant was related to them. Safdar has been killed in a police encounter while Zulfiqar is at large.
8. Ghulam Muhammad P.W.5 is real brother while Maqbool Hussain P.W.6 (both eye-witnesses) are both real father and brother of the deceased. Ghulam Muhammad P.W. Was resident of a place which is 2-1/2 miles away from the place of occurrence. Similarly, Maqbool Hussain P.W. Is resident of Muzaffargarh, another District. Previous enmity existed between the parties, so the possibility of false implication cannot be ruled out. On the same evidence, five co-accused of the appellant have been acquitted by the trial Court. The three acquitted accused were attributed specific injuries on the person of the deceased inasmuch as according to F.I.R., the shots of Muhammad Iqbal, Arif and Azhar accused (since acquitted) landed on left ear, right cheek, left buttock and left hand of the deceased Falak Sher. The injury attributed to the appellant was on left thigh of the deceased. The case of Qasim appellant is thus at par with his acquitted co-accused. Criminal Appeal No, 136 of 2002 filed by the complainant against the acquittal of five acquitted accused was dismissed by a Division Bench of this Court vide order, dated 8-4-2002. To distinguish the case of the present appellant from his other co-accused, there should have been independent corroboration either in the shape of motive or positive report of the Fire-arms Expert which are lacking in the instant case inasmuch as the motive has been disbelieved by the trial Court while no crime empty was recovered from the spot so there was no question of positive report of the Fire- arms Expert.
' No crime empty was recovered from the spot though a .30 bore pistol was recovered on the pointation of the appellant. There being no crime empty, there was no question of report of the Fire-arms Expert being positive it has come on record during the trial that the deceased was involved in many criminal cases.
' For what has been discussed above, I am of the considered opinion that case of the appellant is at par at least with his three co-accused namely, Muhammad Arif, Muhammad lqbal and Azhar who have been acquitted by the trial Court. Following the law of consistency, appeal filed by the appellant is accepted, conviction and sentence recorded by the trial Court against the appellant is set aside. The appellant is behind the bars. He shall be released forthwith, if not required to be detained in any other case.
' Criminal Revision No, 92 of 2002 filed by the complainant for enhancement of sentence of convict is dismissed.