' This judgment will dispose of Criminal Appeal No,1572 of 2002 filed by Maqbool son of Bashir Ahmad, who was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life with further direction to pay Rs,20,000 in default six months SI by the learned Additional Sessions Judge. Sheikhupura vide judgment, dated 31-7-2002.
' Criminal Revision No,995 of 2002 filed by the complainant for enhancement of sentence of the convict appellant shall also be disposed of through this single judgment.
2. Briefly stated the facts of the case are that at about 8-30 am on 10-1-2002, Mst. Azra Bibi along with with her sons Imran aged 14 years and Pervaiz Iqbal was going to Sheikhupura city for getting bandage to Pervaiz Iqbal, who was injured from Civil Hospital Sheikhupura. When they reached near the house of Shaukat Kumhar, Maqbool armed with .224 bore rifle, Bashir armed with .222 rifle came there. Maqbool fired a shot, which hit the door of Rafaqat Kumhar. In the meanwhile, Ramzan armed with rifle 7 MM, Akhtar armed with rifle .222 and Zulifqar armed with mausar came there. The accused dragged Pervaiz Iqbal in front of the the Baithak of Mahmood Kumhar where Maqbool fired a shot with rifle which hit on the chest of Pervaiz. The second shot fired by Ramzan with rifle landed on the backside of head of the injured. The shot fired by Akhtar landed on the foot of the injured. Zulifqar and Bashir had been extending threates as also resorted to indiscriminate firing.
Nasrullah was alleged to be an abetter.
' The motive alleged was that 3/4 day prior to the occurrence, a quarrel took place between Pervaiz Iqbal and Maqbool but the matter was patched up.
2. The investigation of the case was initiated by Rana Farooq Ahmad the then S.H.O. Who later on died in a Police encounter. He took into possession the blood-stained earth from the spot as also an empty of rifle 7 MM. Abdul Aziz S.-I. C.W. 6 also investigated the case. Maqool Ahmad while in custody led to the recovery of .244 bore rifle which was taken into possession vide memo. Exh.CW.
3/A. Muhammad Ashraf, S.P. (C.W.8) also conducted investigation of the case. He found Maqbool to be guilty and the remaining accused as innocent. The complainant also filed a private complaint alleging that the accused are influential person inasmuch as one of the accused namely Nasruallh was real maternal uncle of ex-MNA namely Mahmood Akbar Khan. After preliminary inquiry, Zulifqar and Bashir were not summoned and the remaining accused were put to trial. Both the complainant as well as State cases were tried together.
3. At the trial, the prosecution produced five P.Ws. And 8 C.Ws. Statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded false, implication. However, after conclusion of the trial, except Maqbool, the present appellant, all the remaining accused were acquitted.
4. Learned counsel for the appellant submits that it was an un-witnessed occurrence; both the alleged eye-witnesses namely Mst. Azra and Imran, both real mother and brother of the deceased respectively were not present at the spot; there is conflict between ocular account and the medical evidence and that on similar allegations and on the same evidence, co-accused of the appellant have been acquitted. Further submits that injury attributed to Ramzan was the cause of death but said Ramzan has been acquitted by the trial Court and that the injury ascribed to the present appellant was a skin deep and was not the cause of death of the deceased. Adds that according to F.I.R., the appellant was armed with rifle .244 bore but the empty of rifle 7 MM was recovered from the spot. Concluding his submissions, learned counsel submits that the prosecution having failed to prove its case, the appellant is entitled to acquittal.
5. Learned counsel for the State supports the judgment of the trial Court and submits that appellant was named in the promptly lodged F.I.R. With specific role.
6. Learned counsel for the complainant who has filed revision petition for enhancement of sentence of the appellant submits that it was broad-daylight occurrence, F.I.R. Was lodged promptly, specific role was attributed to the appellant, Police during the investigation acted with mala fide so the co-accused of the appellant were acquitted and that the motive was also attributed to the present appellant. He further submits that P.Ws.4 and 5 have no malice to falsely implicate the appellant.
' Learned counsel has relied upon 2000 SCM R 522, 2000 SCM R 1758 and 2004 SCM R 845.
7. I have heard learned counsel for the parties and have gone through the record with their able assistance. In all, six accused were nominated in the F.I.R. Amongst them, Maqbool, the present appellant was armed with file .244 bore, Ramzan armed with rifle .7 MM, Akhtar armed with rifle .222 bore while Zulfiqar and Bashir accused were also armed with refiles. Allegation against the present appellant was that he fired a shot, which hit on the chest of the deceased. Ramzan since acquitted was ascribed the role of firing a shot which landed on the .Backside of head of the deceased.
Akhtar (since acquitted) was alleged to have fired a shot on the foot of the deceased. Dr. Sohail Khizar while appearing as C.W.5 stated that injury attributed to Ramzan accused was an exit wound and that injury ascribed to Akhtar accused did not exist on the foot of the deceased. Both Ramzan and Akhtar were thus rightly acquitted by the trial Court. It was the case of the prosecution that the deceased was dragged by the appellant and his co-accused from point A to point C which distance is more than 200 feet but there are no dragging marks on the body of the deceased which fact also negates the version of the prosecution. There is thus clear conflict between ocular account and the medical evidence. The facts of the cases relied upon by learned counsel for the complainant are totally different and to not fit in with the facts and circumstances of the case in hand. Every case proceeds on its own facts.
'According to case of the prosecution, the occurrence had taken place at 8-30 am. Had the eye- witnesses been present at the spot, they should not have committed such mistakes. Even the eyewitnesses were not the residents of the place of occurrence. According to case of the prosecution, the occurrence had taken place in a congested area but none from the spot was either produced before the Police or cited as a witness before the trial Court. In the given facts and circumstances of this case, no sanctity can be attached to the statement of such a complainant who had falsely involved 5 persons as accused in this case and how it can be gathered that she was telling the truth in respect of the present appellant. Even amongst the accused mentioned in the complaint filed by the complainant, Zulifqar and Bashir were not even summoned by the trial Court.
' During arguments, learned counsel for the complainant submitted that appellant belongs to landlord family while the deceased was a poor person but the record is otherwise. The appellant is Kumhar while the complainant party is Pathan of Jandiala Sher Khan, District Sheikhupura. Only Nasrullah one accused of the case was Pathan and was real uncle of ex-MNA who too had been murdered 6/7 year ago.
' The distance between the place of occurrence and the Police Station is 9 miles. After the occurrence, none of the eye-witnesses went to the P.S. For registration of the case rather according to "Karwai Police" as stated in the FIR the Police itself came at the spot. The Investigating Officer after reducing the complaint into writing sent the same to Police Station for registration of the case but in brief facts of the inquest report, the number of the FIR fids mention. It means that if the complaint was recorded at the spot, then the number of the FIR should not have been mentioned because it was to come to knowledge of the I.O. Who was present at the spot, after the complaint reached the P.S. And the formal F.I.R. Was C drafted. It is obvious that the F.I.R. Was recorded after due deliberation and consultation.
' The case set up by the prosecution was that after fatal shots by the three accused, two accused also resorted to indiscriminate firing but from the spot, except one crime empty of 7 MM rifle nothing was recovered and according to case of the prosecution itself, 7 MM rifle was being carried by Ramzan, since acquitted. The recovery of rifle .224 bore on the pointation of the appellant is of no avail in the absence of any empty of said bore rifle having been recovered from the spot.
' The motive alleged in the F.I.R. Was that 3/4 days prior to the fateful occurrence, a quarrel took place between appellant and the deceased but the matter was patched up. None from the persons who patched up the matter was produced either before the Police or before the trial Court to prove the motive.
' Having seen the case of the prosecution and the evidence brought on record from all angles, I am not satisfied that the prosecution has been successful in proving its case against the appellant beyond any shadow of doubt rather doubts are floating on the surface of the record. Resultantly, the appeal filed by the convict appellant is accepted, conviction and sentence recorded against him by the trial Court is set aside and he is acquitted of the charge. The appellant is in jail and he shall be released forthwith, if not required to be detained in any order case.
' Criminal revision filed by the complainant is dismissed.