' This judgment will dispose of Criminal Appeal No,1312 of 2003 filed by Muhammad Azam, who was convicted under section 302, P.P.C. And sentenced to imprisonment for life with further direction to pay Rs,one lac as compensation, in default six months' S.I. Vide judgment, dated 25-6-2003 rendered by learned Additional Sessions Judge, Mandi Bahauddin.
2. Briefly stated the facts of the case are that at 6-30 a.m. On 26-6-1995, the complainant Muhammad Yousaf along with his brother Muhammad Zareef Khan were standing on head Churand when Umar Khan and Akhtar Shah crossed them on a motorcycle for going to village Bohat. There two unknown persons stopped them, the description of whom is given in the F.I.R. The said two accused were also on a motorcycle. Within the view of the complainant and his brother Muhammad Zareef, one out of two unknown persons fired two shots at Umar Khan with his pistol, which landed on waist towards left, and in front of his chest. On hue and cry of the complainant and other, the accused ran away from the spot. The injured succumbed to his injuries while on his way to hospital.
3. Investigation of the case was taken over by Muhammad Azam, S.-I. (P.W.13). He along with the police party went to village Churand where the dead body of the deceased was lying in the Dera.
He prepared inquest report (Exh.P.H.) and then went to the place of occurrence from where he recovered one empty of rifle 222 and one missed empty of .30 bore pistol which were made into a sealed parcel vide recovery memo. Exh.P.G./1. The investigation was then taken over by Inspector Muhammad Amin (P.W.14) who on 21-8-1995 arrested Mazhar Iqbal accused. Muhammad Azam was arrested on 30-10-1996 under section 54, P.P.C. Similarly, Riaz Ahmad accused was arrested.
One Muhammad Ashraf, who was found guilty by the police was declared P.O. And died later on in a police encounter. Finally, challan was submitted against Mazhar Iqbal, Muhammad Azam and Riaz Ahmad.
4. At the trial, prosecution in order to prove its case produced 13 witnesses in all. Three witnesses were produced as Court witnesses including Safdar Hayat, D.S.P. The learned D.D.A. Tendered in evidence report of the Chemical Examiner (Exh.P.L.), report of the Serologist (Exh.P.M.) and closed the case of the prosecution. The accused in their statements under section 342, Cr.P.C. Denied case of the prosecution and pleaded false implication. After conclusion of the trial, Muhammad Azam was convicted and sentenced as stated above.
5. Learned counsel for the appellant after having read the entire prosecution evidence submits that the appellant was not named in the F.I.R. Two persons were shown to be accused in the F.I.R. While challan was submitted against four persons; the name of the appellant was introduced in the supplementary statement; the eye-witnesses are related inter se and interested; no recovery of weapon was effected from the appellant and that one crime-empty of rifle .222 and one of .30 bore pistol (missed) were taken into possession from the spot.
' Further submits that there is clear conflict between ocular account and the medical evidence inasmuch as according to eye-witness account furnished by Muhammad Yousaf and Zarif Khan (P.Ws.6 and 9) one shot fired by the accused hit on the chest (left side) while the other on the backside. Thus, according to these P.Ws. Two shots were fired by the accused upon the person of the deceased. Dr. Shakeel Ahmad (P.W.1) conducted post-mortem examination on the dead body of Umar Khan deceased on 26-6-1995 at 5-14 p.m. Injury No,2 was outlet of injury No,l. With the above submissions, learned counsel submits that prosecution has failed to prove its case against the appellant and he is entitled to acquittal.
' Conversely, learned counsel for the State submits that appellant was named in the supplementary statement made 15 minutes after the occurrence and that when the firing is being made, it is difficult to say as to whose fire hit whom and where. In nutshell, he supports the judgment of the trial Court.
' I have heard learned counsel for the parties and have gone though the record. The appellant was not named in the F.I.R. Only description of two accused was given in the F.I.R. But no identification parade was held. In the F.I.R., two persons were mentioned as accused while in his statement before the trial Court, the complainant Muhammad Yousaf (P.W.6) named three persons to be accused. No recovery was affected from the appellant. Above all, there is conflict between ocular account and the medical evidence. The ocular account was furnished by Muhammad Yousaf and Zareef Khan (P.Ws.6 and 9). According to these P.Ws., the two shots fired hit on the chest and backside of the deceased. Dr. Shakeel Iqbal (P.W.1) conducted the post-mortem on 26-6-1995 on the dead body of the deceased. The doctor found the following injuries on the person of the deceased:-- "(1) A lacerated wound on back left side below the coastal margins with inverted edges measuring x 1.4 c.m. x going deep (blood coming out through the wound).
(2) A lacerated wound measuring 1.8 x 1.6 c.m. With averted edges going deep on left side of chest below the left clavicle bone.
(3) A bruise on the left knee reddish colour 2 x 1.5 c.m. Anteriorly.
(4) A bruise on the right knee on anterior surface measuring 2.5 x 1.9 c.m. With central skin punctures."
' In cross-examination, the doctor deposed that injury No,2 is the outlet of injury No, 1 .
' In the above background, I am of the considered opinion that case against the appellant is of doubtful nature, so while extending the benefit of doubt, this appeal is accepted, conviction and sentence recorded against the appellant 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 other case.