This judgment will dispose of Criminal Appeal No, 926 of 2003 filed by Muhammad Akram, appellant and Crl. Appeal No, 1636 of 2003 filed by Hakim Ali, Sarfraz Ahmad and Muhammad Ahmad, appellants, who were convicted and sentenced by learned Addl: Sessions judge, Okara vide his judgment dated 30.4.2003 to undergo Imprisonment for life u/S. 302 (b) PPC each with the further direction to pay Rs, 100,000/- as fine each or in default six months SI. They were also convicted and sentenced u/S. 148 PPC to undergo two years each with a fine of Rs, 10,000/- each or in default two months SI with the benefit of Section 382-B Cr.P.C.
2. Brief facts of the case as narrated by Muhammad Irshad complainant in Ex.P.A. are that he runs a grosery shop in village Pathankot on Baseerpur Road. On 2.3.1997 at about 8.00 p.m. he alongwith Sher Baz, Sabair Ali and Muhammad Yar and Abdul Ghafoor (deceased) were sitting in his shop.
Abdul Ghafoor' deceased was sitting on crate of bottles while they were sitting on a cot. All of a sudden Liaqat Ali accused (since murdered) armed with rifle Muhammad Akram armed with rifle, Muhammad Ahmad, Hakim Ali and Sarfraz alias Raja armed with guns .12 bore and pistol .30 bore came there. Liaqat Ali and Muhammad Akram accused entered into the shop and they fired at Abdul Ghafoor deceased, who fell injured. Muhammad Ahmad, Hakim Ali and Sarfraz alias Raja accused fired in the air while standing out side the shop. All the accused ran away, while Abdul Ghafoor succumbed to the injuries at the spot.
3. Motive behind the occurrence was that 5/6 months prior to the occurrence, their relatives had a quarrel with Ghulam Farid etc and in that quarrel, Muhammad Ameer, Rehmat Ali and Muhammad Din were murdered and the case was registered against their relatives Ghulam Farid etc. In the said case, his brother Abdul Ghafoor alongwith Mumtaz were on ad-interim bail and their bail petition was fixed for 3.3.97. It was further alleged that the decreased used to pursue that case and for the said grudge, the present accused in furtherance of their common intention had committed the Qatl-e-amd of Abdul Ghafoor deceased.
4. After registration of the formal FIR, the investigating of the case was handed over by Muhammad Tufail SI PW. 11, who went to the spot, inspected the dead body of the deceased, prepared injury statement Ex. PK and inquest report Ex. PL, secured blood-stained earth from the spot vide memo Ex. PB, also secured empties P.1/1-2 and P.2/1-6 from the place of occurrence vide memo Ex. PC, prepared rough site-plan Ex. PN, recorded the statements of the PWs u/S. 161 Cr.P.C, thereafter the investigation of the case was entrusted to Abdul Haq Inspector/SHO PW.5, who on 6.6.1997 arrested Hakim Ali and got recovered gun .12 bore P.2 and two live cartridges P.7/1-2, which were taken into possession vide memo Ex. PF, on the same day, he also arrested Sarfraz alias Raja accused and got recovered gun .12 bore P.8 and three live cartridges P.9/1-3, which were taken into possession vide memo Ex.PG, thereafter, Zawar Ahmad SI PW.9 on 22.7.1998 arrested Muhammad Ahmad accused and got recovered gun .12 bore P.10 and one live cartridge P. 11, which were taken into possession vide memo Ex. PJ, on the same day on 23.8.1998 he arrested Muhammad Akram. After completion of the investigation and other legal formalities, the accused-appellants were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 13 witnesses in all, thereafter, learned APP closed the prosecution evidence, then, the statements of the accused-appellants were recorded u/S. 342 Cr.P.C. in which they pleaded innocence and claimed false implication.
6. After having read the entire prosecution evidence, statements of the appellants recorded u/S. 342 Cr.P.C. and other relevant material available on record, learned counsel for the appellants submit that though the appellants were alleged to be armed with .12 bore gun and .30 bore Pistol but they did not cause any injury to the deceased. Further submit that no crime empty of .30 bore pistol was recovered from the spot and that though two crime empties of .12 bore gun were recovered but those were not sent to the office of fire-arm expert. Also submit that Muhammad Ahmad was PW of the case, which was motive of the instant case, in which two brothers and one maternal uncle of Ahmad were murdered. Further submit that there was previous background of enmity between the parties for which they have been falsely implicated in this case.
7. Learned counsel for Muhammad Akram appellant submits that complainant party had specific motive to involve Muhammad Akram in this case because he was an eye-witness in the case which, was the motive of the instant case. No weapon of offence was recovered from the appellant, he was declared innocent during the course of investigation, eye-witnesses have sworn affidavits in bail proceedings exonerating the appellant and that Liaqat, who was also given the same role as of Muhammad Akram, he was murdered before the trial. According to learned counsel Muhammad Akram is entitled to acquittal.
8. On the other hand, learned counsel for the State submits that so far as, Muhammad Ahmad, Sarfraz and Hakam appellants are concerned the prosecution has failed to prove its case against them. He supports the judgment of the learned trial Court qua Muhammad Akram appellant.
9. I have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. In all five accused were named in the FIR, Muhammad Ahmad, Hakam and Sarfraz were attributed the role of ineffective firing. No crime empty of .30-bore pistol carried by Sarfraz appellant was recovered from the spot. Though two crime empties of .12 bore gun were recovered from the spot but those were not sent to fire-arm expert. Even learned counsel for the State has submitted that prosecution has failed to prove its case against Hakam, Sarfraz and Muhammad Ahmad, so the appeal filed by Hakam, Sarfraz Ahmad and Muhammad Ahmad appellants is accepted. The conviction and sentenced recorded against them by the learned trial Court is set-aside and they are acquitted from the charge. They are in jail and they shall be released forthwith if not required to be detained in any other case.
10. Now I would take up the case of Muhammad Akram, appellant. He was armed with .222 rifle, he alongwith Liaqat, murdered before the commencement of trial, fired on the person of Abdul Ghafoor but no specific injury was attributed to him. The doctor. (PW-12) who conducted post- mortem examination on the dead body of the deceased opined that time between death and post-mortem was 24 hours. Occurrence took place at about 8.00 p.m. on 2.3.1997 while the post- mortem was conducted at 10.00 a.m on 3.3.1997, so it was not certain whether the occurrence had taken place at 8.00 p.m. or earlier thereto. The dimension of the injuries on the person of the: deceased shows that those were caused with one and the same weapon. There was no exit wound, all the injuries were entry wounds, the doctor, who conducted the post-mortem examination, recovered neither any bullet nor any pellet from the body of the deceased, many questions were put to doctor, whether injuries were with bullet or pellet but he did not answer intentionally. Six crime empties of .222 rifle were recovered from the spot but those were not sent to the office of fire-arm expert because no weapon, of offence was recovered on pointation of the appellant.
11.Muhammad Akram appellant, in his statement recorded u/S. 342 Cr.P.C. while replying to Question No 7 submitted as under: "I was eye-witness in motive case FIR No, 327 dated 31.7.1996 u/S. 302/324/148/149 PPC, P.S. Baseerpur. The deceased and his family members were accused in that case. The complainant party of this case involved me in this case falsely due to pressurize me by giving my evidence as an eye-witness in that motive case". ,
12. The defence plea of Muhammad Akram appellant is fully I established from Ex., DF, which is copy at FIR No 327 dated 31.7.1996 u/S. 302 etc. PPC, in which he has been mentioned as an eye- witness. The police declared the appellant innocent during the course of investigation. In the bail granting order passed on the petition moved by Muhammad Akram appellant before the learned Addl: Sessions Judge Ex. DH it finds mention that Muhammad Irshad complainant as well as all the three eye-witnesses have sworn affidavits exonerating the present appellant.
13. With the above background, the case against Muhammad Akram appellant, seems to be of doubtful nature, so while granting the benefit of doubt, I accept the appeal of Muhammad Akram, appellant, the conviction and sentence recorded against him by the learned trial Court is set-aside and he is acquitted from the charge. He is in jail and he shall be released forthwith if not required to be detained in any other case.
Criminal Revision No, 548/2003 filed by Muhammad Irshad petitioner against Muhammad Akram etc. respondents for the enhancement of sentence is dismissed.