' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.490 of 2002, Criminal Revision 288 of 2002 and P.S.L.A. No.14 of 2002 directed against the judgment, dated 19-2- 2002 passed by learned Additional Sessions Judge, Sheikhupura, whereby he convicted both the appellants under section 302(b), P.P.C. And sentenced them to undergo life imprisonment with further to pay Rs.1,00,000 each as compensation as required under section 544-A, Cr.P.C. Or in default thereof further S.-I. For six months. They were also convicted under sections 364/34, P.P.C: and sentenced to life imprisonment with fine of Rs.5,000 each or in default two moths' S.I. Both the sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C.
2. The facts of the instant case in brief as narrated by the complainant in the F.I.R. Exh.P.O./1 are that on the day of occurrence i.e. 11-4-1999 when he along with his real brother Mushtaq deceased, Abdul Jabbar and Imtiaz Ahmad P.W. Reached near shop of Hayat Machhi in the street after attending a marriage party in village Ghulam Wattuan, Tariq Zia accused raised lalkara that enemy had reached on which Muhammad Siddique armed with gun, Muhammad Riaz armed with .12 bore gun double barrel, Zakria and Muzammal both armed with .12 bore guns, Haroon armed with .7 mm rifle and Muhammad Youasf armed with carbine came there. Muhammad Siddique accused fired with repeater/gun upon Mushtaq Ahmad which landed on his left leg. Thereafter Zakria and Riaz accused fired upon Mushtaq Ahmad which landed on his right and left legs respectively. Mushtaq Ahmad fell down on the ground and Muhammad Saddique gave another fire shot hitting on the head of Mushtaq. The accused resorted to indiscriminate firing resulting in causing injuries to one shopkeeper Abbas Wattu and Tariq Zia co-accused. Muzammal, Haroon and Yousaf accused took Mushtaq deceased in an injured condition in the house of Zakria where all the accused fired upon Mushtaq deceased with their respective weapons of offence hitting on his leg and he breathed his last then and there. The accused fled away from the spot. The motive behind the present occurrence was murder of Dr. Muhammad Ali son of Eesa Wattu which had taken place in 1985 in which Muhammad Saddique etc. Were accused.
3. After getting information about the occurrence the local police completed all the necessary formalities and thereafter Nasir Mahmood Inspector/S.H.O. Along with his subordinates proceeded to the spot. He prepared inquest report Exh.P.J and injury statement Exh.P.K. He also secured blood- stained earth vide memo. Exh.P.A. Last-worn clothes were also secured by him vide memo. Exh.P.C.
On 28-4-1999, he arrested Riaz, Muhammad Saddique, Muhammad Yousaf and Haroon accused after cancellation of their bail before arrest. On 5-5-1999 Saddique while in police custody got recovered of .12 bore repeater gun vide memo. Exh.P.E. On the same day Muhammad yousaf accused got recovered .12 bore carbine vide memo. Exh.PF. While Muhammad Riaz accused in police custody got recovered gun .12 bore vide Memo Exh.P.D., on the same day. The investigation of the instant case was also conducted by Dr. Muhammad Amin Yousafzai, A . S . P. /S. D. P.O.
Ultimately all the accused mentioned in the F.I.R. Were found guilty and were sent to judicial lock- up to face the trial while cross-version was disagreed by the police. Later on Muhammad Zakria and Muzammal accused were also challaned in the report under section 173, Cr.P.C., at the instance of the complainant, when he was examined as P. W .
4. The prosecution in order to prove its case has produced as many as 12 witnesses including Doctor, Investigating Officers, eye-witnesses and other formal witnesses. After tendering in evidence report of Chemical Examiner Exh. PR, report of Serologist Exh.P.J, report of Forensic Science Laboratory Exh.P.T and copy of F.I.R. Exh.PU, learned SPP closed the prosecution evidence. Thereafter statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded their innocence. After taking into considerations every aspect of the case and hearing the arguments advanced by both the parties, learned trial Court convicted and sentenced the appellants as mentioned above.
5. Learned counsel for the appellants in support of this appeal submits that motive is remote in this case and moreover not plausible. The appellant party did not assault the complainant party of the earlier murder case which has been mentioned in the F.I.R. The prosecution story is not corroborated by medical evidence rather stand contradicted by the medical evidence. Abbas Wattu independent witness has not been produced, no blood or crime empty was recovered from the street which belied the prosecution version, that the first part of the occurrence had taken place in the street. The injuries sustained by Tariq Zia co-accused (acquitted) of the appellants was not explained properly by the complainant party in the F.I.R. In fact Tariq Zia acquitted accused was victim of aggression. F.I.R. Was lodged with an unexplained delay. He submits that Tariq Zia the acquitted accused prior to the recording of the F.I.R. Was got medically examined by Arif A.S.-I. At 8-55 p.m. And the number of the F.I.R. Was mentioned on the Medico-legal report which shows that the recording of F.I.R. Was withheld by stopping the `Roznamcha'. Moreover subsequently at 10-20 p.m. F.I.R. Was recorded on the presentation of an application by Riaz complainant which was got drafted by Qamar uz Zarnan brother of Amjad accused of a Hadood case which according to cross-version, was real matter of contention between the parties and for that reason Mushtaq and his companions launched an attack. If both the versions are put in a juxtaposition then version of the appellants seems to be more plausible. He further submits that no case against the appellants is made out and the appellants entitled to acquittal.
6. Learned counsel for the complainant assisted by the learned counsel for the State submits that in fact the deceased was shifted/taken into the house of the appellants and there is murder was committed. He further submits that benefit which can be given i.e. Only to Saddique appellant whose injuries were found to be caused with blunt weapon although he was stated to be armed with fire-arm at the time of occurrence, that P.W.11 has explained that trial of blood was not found in the street, that A.S.P. Who investigated the case came to the conclusion that the appellants are guilty and the cross-version was found to be false, that Tariq Zia's injury was explained in the F.I.R.
They both support the judgment of the learned trial Court.
7. I have heard the learned counsel for the parties and also have gone through the record available on the file. In the instant case 7 accused were named. Five have already been acquitted by the learned trial Court. There is no independent eye-witness in this case. I do not believe the presence of the eye-witnesses at the spot for the following reasons:-- 7A. That the story of the respondents was that deceased was first injured by fire arms in the street but no blood was found in the street. It was also stated by the eyewitnesses that Saddique was armed with fire-arm and he caused injuries on the head of the deceased but the Doctor found the same as blunt weapon injury, that Tariq Zia (acquitted co-accused) was also injured, though a reference was made in the F.I.R. That he was injured by the fire-shot of his co-accused. This is not plausible explanation, that the persons who joined hand with each other with their common intention to commit the murder of a person then why they would cause injuries on the person of their own companion.
8. After having heard the learned counsel for the parties and going through the record available on the file, I am not convinced by the prosecution version. In this view of the matter, this appeal is accepted and the conviction and sentence awarded to the appellants is set aside. They shall be released forthwith if they are not required in any other case. Criminal Revision and the P.S.L.A. Are also dismissed.