This judgment will dispose of Criminal Appeal No, 68 of 2003 tiled by Muhammad Ali, appellant, who was convicted under Section 302-1 PPC and sentenced to imprisonment for life and to pay compensation of Rs, 25,000/- in default six months SI. The conviction and sentence was recorded by learned Additional Sessions Judge Chunian vide judgment dated 21.12.2002.
2. Briefly stated the facts of the case as alleged in the private complaint filed by the complainant are that on 3.11.1999 at about 9 a.m., Muhammad Umar alongwith Abdul Sattar, Haji Muhammad and Muhammad Abdullah was present in his fields to watch the paddy crop while Muhammad Hussain was sitting on a cot at a distance of one killa in his filed of paddy crop. Muhammad Tufail raised noise upon the complainant alongwith others reached, at the spot. According to the complainant, within his view and that of the his companions, Iqbal fired two shots with his double barrel 12 bore gun which landed on the belly of Muhammad Tufail. Sabir also fired a shot hitting on the left arm of Tufail. The injured fell down while the accused fled away by raising lalkara. It was also alleged that the accused also took away the licensed 7-mm rifle of Akbar Ali. The injured succumbed to injures in his way to hospital. The motive alleged was that Muhammad Tufail and Muhammad Iqbal etc. had a dispute regarding partition of the dera and due to this grudge Iqbal etc. committed the murder of Muhammad Tufail. Investigation of the case was carried out by Muhammad Jameel SI who was given up .as after his retirement, he has gone to Karachi to some unknown place. He during the course of investigation took into possession the blood-stained earth vide memo Ex.PG as also 2 cartridge of 12 bore gun vide memo Ex.PH.
3. Being dissatisfied with investigation of the case by the Police, the complainant filed a private complaint u/S. 302 PPC. After inquiry under Section 202 Cr.P.C. the accused were summoned to face the trial in complaint case. Only Muhammad Ali, accused put appearance while Muhammad Iqbal and Sabir were declared as proclaimed offenders. At the trial, the prosecution examined 8 PWs. Chiragh Din and Muhammad Nawaz appeared as DWs. 1 and 2. The accused Muhammad Ali in his statement u/S. 342 Cr.P.C. pleaded false implication. After conclusion of the trial. Muhammad Ali was convicted and sentenced as stated above.
4. Learned counsel for the appellant submits that Muhammad Ali, appellant is closely related to Muhammad Umar, father of the deceased and had he been present at the spot, he must have mentioned the name of the appellant in his written complaint Ex.PA/1. Further submits that in all investigations the appellant was found to be innocent. Further submits that the complainant had filed the complaint on 23.8.2001 while the occurrence had taken place on 4.11.1999, that is, one year and nine months after the occurrence. Adds that deceased was involved in narcotics cases and there is every possibility that he might have been killed by some unknown persons and the complainant party having grudge against the appellant, falsely involved him in the case.
Elaborating his argument, learned counsel submits that Muhammad Iqbal, PO real brother of the present appellant had divorced his wife who was real sister of the complainant. Further adds that no recovery was , affected, from the appellant during the course of investigation. According to learned counsel, one fire shot each was attributed in the complaint to three accused while in the FIR. only one fire shot was alleged. The motive was tried to be improved by the complainant in the complaint and that fact of taking away the licensed rifle of Akbar Ali at the time of occurrence by the accused was also added in the complaint. Concluding his submissions learned counsel for the appellant submits that prosecution and the complainant party has failed to prove its case against the appellant and he is entitled to acquittal.
5. Learned counsel for the State does not support the judgment of the trial Court by stating that the evidence produced by the prosecution is not sufficient to maintain conviction on a capital charge.
6. Heard. The occurrence had taken place at 9.30 PM on 3.11.1999 in dark hours of the night. No source of light has been mentioned in the FIR.
It has not been denied by the complainant that Muhammad Ali, convict appellant is real first cousin of the deceased. Had the complainant Muhammad Umar been present at the spot, he must have named the present appellant to be an assailant specially when apart from being related, both the parties are resident of the same village. In the FIR, it was stated by the complainant that one shot was fired on the person of the deceased while in the complaint one shot each was attributed to all the three accused. No recovery was affected from the appellant during the course of investigation. No specific motive was alleged against the appellant. Learned counsel for the State has also not supported the impugned judgment and rightly so because of the above mentioned facts. The complainant has tried to improve his version in to complaint which speaks of mala fide on his part to implicate the appellant because of previous enmity between the parties.
On the basis of evidence led in this case by the prosecution, conviction on a capital charge cannot be maintained. With this background and the quality of evidence produced by the complainant, I am fully convinced that the complainant has failed to prove the case against the appellant.
Resultantly, appeal filed by the appellant is accepted and he is acquitted of the charge. The conviction and sentence recorded against the appellant by the trial Court is set aside. The appellant is in jail and he shall be released forthwith, if not required to be detained in any other case.