' This judgment will dispose of Crininal Appeal No.1112 of 2003 filed by Asghar Ali appellant, who was convicted and sentenced by learned Addl: Sessions Judge, Narowal, vide his judgment dated 28- 5-2003 to imprisonment for life under section 302 (b) P.P.C. With the further direction to pay Rs.100,000 (one lac) as compensation to the legal heirs of the deceased or in default six months' R.I with the benefit of Section 382-B Cr.P.C.
' Criminal Revision No.677 of 2003 filed by Muhammad Saddique against Asghar Ali for the enhancement of sentence shall also be disposed of through this single judgment.
2. Brief facts of the case as disclosed by Muhammad Siddique complainant are that on 17-4-2000 at 10.00 a.m he along with Muhammad Arshad Ali alias Boota deceased were going towards their fields, when they reahed near the Haveli of Mehboob Masih then, all of a sudden Asghar armed with 244 bore, Akram armed with 222 bore, Abdul Majid armed with hatchet, Rasheed armed with hatchet, Shah Muhammad armed with Toka, Zahoor Ahmed armed with Danda, Shabbir Ahmad armed with double barrel gun, Falik Sher armed with pump action attracted at the spot. According to the prosecution, Asghar (appellant), Akram, Nasir, Asif Bodi fired with their respective weapon on the person of Arshad Ali deceased, which hit on the different parts of his body, who fell on the ground, thereafter, Abdul Majid, Abdul Rasheed and Shah Muhammad caused injuries to Muhammad Hassan with their respective weapons and when Irshad Bibi came there in order to rescue them, Shabbir Ahmad and Falak Sher fired upon her with their fire-arms, whereas Zahoor Ahmad gave her severe beating, thereafter, all the accused while firing in the air ran away from the spot. The injured was rushed towards the hospital but Muhammad Arshad alias Boota succumbed to injuries in his way to hospital.
3. After registration of the formal F.I.R. Tariq Mahmood S.-I. P.W.5 reached at the, spot, inspected the dead body of the deceased, prepared inquest report Exh. PG and injury statement Exh. PH, inspected the spot, collected blood-stained eather vide memo. Exh. PD, also collected four empties of 244 bore rifle P.1/1-4 and one crime empty of .12 bore P.5, which wee taken into possession vide memo Exh.PE, recorded the statement of witnesses under section 161 Cr.P.C. After completion of the remaining investigation, on 3-7-2000 incomplete report under section 173 Cr.P.C. Was submitted by placing eight accused out of total ten accused in Column No.3 of the challan. Arrest of two accused, namely, Muhammad Akram and Asghar was not effected at that time, which was arrested subsequently, then on 1-10-2001 another report under section 173 Cr.P.C. Was submitted placing Zahoor Ahmad and Shah Muhammad in Column No.2 of the said report while rest of the accused were placed in Column No.3. Being dissatisfied with the police finding, complainant Muhammad Siddiq filed private complaint under sections 302, 324, 337-A (i) (iii), 337-F (ii) (v), 148, 149 P.P.C. Against all the accused originally nominated in F.I.R. On 22-10-2002.
4. Prosecution in order to prove its case produced five witnesses in all while Dr. Tariq Mahmood M.O., Muhammad Sarwar, Tahir Taslim, Muhammad Ramzan, Dr. Muhammad Sarwar M.O., Imdad Khan, Muhammad Mushtaq, Muhammad Shabbir Inspector, Muhammad Shaukat Hayat DSP, Iqbal Hussain Shah Inspector, Akbar Nawaz Inspector were examined as CW.1 to CW.11, thereafter, learned Assistant District Attorney tendered in evidence report of Chemical Examiner Exh.PR and closed the prosecution case, then, the statements of accused were recorded under section 342 Cr.P.C. In which they pleaded innocence.
5. After having read the entire prosecution evidence, statement of the appellant recorded under section 342 Cr.P.C. And other relevant material available on record, learned counsel for the appellant submits that on the same evidence nine co-accused of the appellant have been acquitted by the learned trial Court, that according to the F.I.R. And statement of the complainant, appellant along with three other accused, namely, Muhammad Asif alias Bodi, Akram and Nasir Mehmood fired directly on the person of Arshad deceased, which hit on the different parts of his body but according to the post-mortem report, there is only one entry wound on the person of the deceased, that case of the appellant is not distinguishable to his three acquitted co-accused, who were attributed injuries on the person of the deceased, that as far as, recovery is concerned, though the police had allegedly recovered 244 rifle on the pointation of the appellant but the fact remains that none of the witness of recovery had appeared before the learned trial Court and the empties recovered from the spot did not match with the rifle recovered on the, pointation of the appellant and moreover, the said recover was never put as an incriminating evidence against the appellant in his statement recorded under section 342 Cr.P.C, that learned trial Court had made the site plan one of the bases of the conviction against the appellant, which is not a substantive piece of evidence and stated that if the face of the deceased was towards western side and appellant was on northern side, then possibility was that it was the fire of the appellant, which hit the deceased, cannot be ruled out, that he was also found innocent during the course of investigation. He lastly submits that co-accused to whom the injuries were attributed to the deceased were also standing on northern side, that no case is made out against the appellant and he is entitled to acquittal.
6. On the other hand, learned counsel for the complainant, who has also filed criminal revision petition against the appellant for the enhancement of sentence, submits that occurrence took place in broad-daylight, that ocular account is fully corroborated by medical evidence, that Mst.
Irshad Bibi wife of the complainant, who was injured and star witness of the prosecution, had appeared before the learned trial Court and supported the prosecution case, that recovery was also effected from the appellant, that litigation was also pending between the parties and moreover, enmity also existed between the parties. .
7. Learned State counsel submits that story of complainant P.W.1 and Mst. Arshad Bibi PW 2 his wife is the same, which is mentioned in the F.I.R., that no conviction and sentence either to the appellant or his three acquitted co-accused for causing injuries to Mst. Arshad Bibi was awarded, as no specific injury was attributed to anybody.
8. I have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. In the instant case, occurrence took place on 17-4-2000 at 10.00 a.m at a distance of three miles away from P.S. Rayya Khas while the matter was reported to the police by Muhamad Siddique complainant through complaint Exh. PA on the same day and the formal F.I.R. Was recorded by Tariq Mehmood S-I/S.H.O. On the same day at 11.15 a.m. Ten accused were named in the F.I.R., nine were acquitted by the learned trial Court and appeal against their acquittal bearing Criminal Appeal No.1229 of 2003 was dismissed in limine by a Division Bench on 18-12-2003. Allegation against the appellant was that he along with three other co-accused, namely, Muhammad Asif alias Bodi, Akram and Nasir Mehmood fired straight on the person of Muhammad Arshad deceased, which hit on the different parts of his body but the doctor, who conducted post-mortem examination on the dead body of the deceased found only one injury on the person of the deceased, so there is a clear conflict between ocular account and medical evidence. As far as, injuries of Mst. Irshad Bibi wife of the complainant, which were attributed to the appellant and his three acquitted co-accused mentioned above, are concerned, neither the appellant nor his three acquitted co-accused were convicted and sentenced by the learned trial Court and moreover appellant along with said three acquitted co-accused having same roles was found innocent by the police. So far as, recovery is concerned, the empties recovered from the spot did not match with 244 rifle recovered on the pointation of the appellant and moreover, the said incriminating evidence was never put to the appellant in his statement recorded under section 342, Cr.P.C. Litigation was also pending between the parties and enmity also existed between the parties and this fact himself had been admitted by learned counsel for the complainant while arguing his case. In such a situation, the law of the land is that there should be independent corroboration of the statements of ocular to account.
9. After having heard learned counsel for the parties, going through the evidence on record and the submissions made by learned counsel for the parties.I am of the considered opinion that prosecution has failed to prove its case against the appellant and it is a case in which there are so many doubts, benefit of the same always goes in favour of the accused, not as a matter of grace but as a matter of right, so while granting the benefit of doubt, I accept this appeal, set aside the conviction and sentence recorded against the appellant by the learned trial Court. He is in jail and he shall be released forthwith if not required to be detained in any other case.##TE# ' As far as, Revision Petition No.677 of 2003 filed by Muhammad Saddique against Asghar Ali respondent-appellant is concerned, that is dismissed for the reasons mentioned above.