' MIAN MUHAMMAD NAJAM-UZ-ZAMAN, J.---Aggrieved of the judgment passed by the learned Additional Sessions Judge, Sialkot, dated 30-1-2003 whereby he had acquitted Imran Ali alias Chhuri respondent No.2 in case F.I.R. No.236 of 2000 registered on 7-10-2000 in Police Station, Sabaz Pir, District Sialkot under sections 302, 148, 149, P.P.C. Aman Ullah complainant/appellant has filed this appeal under section 417(2A), Cr.P.C.
2. The learned counsel for the appellant has taken us through various portions of the impugned judgment.
3. The occurrence had taken place on 7-10-2000 at 5/6 p.m. In the area of Jamal Jhand, Sialkot and F.I.R. Had been lodged by Aman Ullah complainant who was sitting out of his shop in a throughfare/street, along with his brother Saif Ullah, Muhammad Razzaq alias Hidayat Ullah and Inayat Ullah when Amanat Ali (P.O.) armed with a rifle .222 bore, Akbar Ali (P.O.) armed with a pump action gun and Muhammad Ashraf armed the pistol .30 bore reached there on a motorcycle.
Imran Ali alias Chhuri accused armed with a carbine and Zafar Hussain armed with a pistol .30 bore also reached there on another motorcycle. Akbar Ali accused (P.O.) raised lalkara, exhorting his co-accused to do away with Saif Ullah and then he fired with his pump action gun at Saif Ullah, the brother of the complainant hitting him on the backside of his left leg i.e. The buttock. Then Imran Ali alias Chhuri petitioner fired with carbine and the fire shot by him also hit Saif Ullah on the left buttock. Amanat Ali (P.O.) fired with rifle .222 bore hitting Saif Ullah on the shin of his right leg.
Muhammad Ashraf fired with his pistol hitting the left thigh of Saif Ullah, while Zafar Hussain (P.O.) fired with a pistol hitting the right shin of Saif Ullah and who fell down. Eye-witnesses could not come near him on account of firing and witnessed the occurrence while standing in the veranda of the shop. Thereafter, the accused drove away their motorcycles while firing indiscriminately. The motive for the occurrence is stated to be that Amanat Ali accused had developed illicit relations with the daughter of Noor Hussain, the uncle of the complainant and Saif Ullah deceased had forbidden Amanat Ail accused on many occasions from carrying on his illicit relations with the aforesaid girl and on account of the said grievance and with their common intention, the accused had launched a murderous attack on Saif Ullah.
4. Saif Ullah was shifted to hospital where he succumbed to injuries at 1-00 a.m.
5. On the conclusion of trial, the learned trial Court had acquitted Imran Ali alias Chhuri by extending to him the benefit of doubt while his co-accused Muhammad Ashraf was convicted under section 302, P.P.C. And was sentenced to death and also to payment of compensation of Rs.1,00,000 to the legal heirs of the deceased. As mentioned above, the remaining three accused namely Akbar Ali, Zafar Hussain and Rafaqat Ali alias Manna are absconding.
6. The learned counsel for the appellant has argued that the prosecution had proved its case against Imran Ali alias Chhuri, respondent No.2, beyond any shadow of doubt and the ocular account coupled with the medical evidence and other surrounding circumstances had proved his guilt to the hilt. However, the learned trial Court had not read the prosecution evidence in its true perspective and had drawn a wrong conclusion qua respondent No.2; that non-recovery of weapon of offence from an accused can hardly be a ground for passing an order of acquittal and while 'believing the same evidence as against Muhammad Ashraf accused, the learned trial Court had wrongly proceeded to acquit Imran Ali alias Chhuri accused without any lawful justification and that the order of acquittal passed by the learned trial Court had resulted in grave miscarriage of justice and hence the impugned order/judgment is liable to be set aside to the extent of Imran Ali alias Chhuri respondent No.2 and he is liable to be convicted and awarded normal penalty of death under section 302(b), P.P.C.
7. While passing the impugned order, the learned trial Court had observed that Imran Ali alias Chhuri accused was allegedly present at the time of occurrence armed with a carbine but the injuries attributed to him are not supported by the medical evidence and the injury attributed to him has been, in fact, described as an exit wound and that recovery was also not effected from him during the course investigation.
8. We have perused the Medico-legal report prepared by P.W.1 Dr. Munawar Liaqat who had medically examined Saif Ullah deceased on 7-10-2000 and also the post-mortem report prepared by P.W.2 Dr. Rana Ilyas who on 8-10-2000 had conducted the post-mortem examination on the dead body of the deceased. The Medico-legal report or the post-mortem report do not indicate any entry wound on the left buttock of deceased Saif Ullah. Hence the learned trial Court had rightly extended to respondent No.2 i.e. Imran Ali alias Chhuri accused the benefit of doubt and had correctly acquitted him. There is no force in this appeal and the same is accordingly dismissed in limine.