' This judgment will dispose of Criminal Appeal No,1544 of 2002 filed by Munawar lqbal, appellant who was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life with further direction to pay rupees one lac as compensation, in default six months' R.I. By learned Additional Sessions 'Judge, Faisalabad vide judgment, dated 25-7-2002. The benefit of section 382-B, Cr.P.C.
Was also extended in favor of the appellant.
2. Briefly stated the facts of the case are that in between the night of 16th/17th of October, 1999 at about 11 p.m., appellant along with his co-accused fired with .12 bore a shot which hit into the abdoinen and chest of Ghulam Ali. The second shot fired by Muhammad Ikram, co-accused of the appellant hit on the elbow of Muhammad Yasin, the complainant.
' The motive alleged was that there was a dispute of demarcation of lands between Ghulam Ali, father-in-law of the complainant and Munawar lqbal, the accused and a quarrel had taken place between them two days prior to the occurrence.
3. Investigation was conducted by Sikandar Hayat, S.-I. (P.W.11) who challaned all the three accused namely Munawar lqbal, Muhammad Ikram and Shahbaz. The Investigating Officer during the course of investigation, prepared injury statement (Exh.P.D.), inquest report (Exh.P.E.) took into possession blood-stained earth vide memo. Exh.P.H. As also took into possession six empties vide memo. Exh.P.J. Munawar lqbal accused was arrested on 7-11-1999 who on 10-11-1999 got recovered .12 bore carbine P.7 which was secured vide memo. Exh.P.K. Shahbaz co-accused of the appellant also got recovered carbine which was taken into possession vide memo. Exh.P.F.
4. At the trial, prosecution in order to prove its case produced 11 witnesses in all. Then the learned S.P.P. Tendered in evidence report of the Chemical Examiner Exh.P.M. Report of the Serologist Exh.P.N.
And closed the case of the prosecution. Statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded false implication. After conclusion of the trial, except Munawar lqbal, remaining two co-accused of the appellant were acquitted.
5. Learned counsel for the appellant after having read the prosecution evidence submits that it was an unwitnessed occurrence, that identification of the accused was doubtful, that occurrence took place in the house while Muhammad Yasin was sitting outside the room and it was not possible for the witnesses to see the appellant, that who caused the injuries on the person of the deceased, that on the same evidence two co-accused, namely Ikram and Shahbaz were acquitted by the trial Court and Ikram was also attributed the same role, that presence of Yasin is totally doubtful', that pretext which Yasin concocted for his presence in the house of the deceased is not believable, that cot of the deceased has not been shown in the site plan, so it cannot be established that deceased had died on the cot, that natural witness in this case was Mst. Gullan Bibi wife of the deceased but she was given up by the prosecution that as far as motive is concerned, the learned trial Court had held that there was no evidence of the motive, that according to the prosecution appellant was armed with .12 bore gun at the time of occurrence but recovery of carbine was effected from him, that deceased had number of enmities with number of peoples of the area, that there was also injury on the foot of the deceased but that was not mentioned by the complainant in the F.I.R. And also before the trial Court, that case is full of doubt and appellant is entitled to acquittal.
6. On the other hand, learned counsel for the State submits that appellant is named in the F.I.R.
Specific role is attributed to him, that it was a case of promptly lodged F.I.R., that identification of the appellant had been proved, as both the parties lived in the same village, that ocular account is corroborated by medical evidence, that lengthy cross-examination was conducted oh the P. Ws.
But there are minor discrepancies which can occur in such-like cases. He supports the judgment of the trial Court.
7. I have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. Three accused, namely, Munawar lqbal (present appellant), Muhammad Ikram and Shahbaz were mentioned in the F.I.R. While four accused were shown as unknown. Allegation against Ikram and Munawar (present appellant) was that they fired one shot each simultaneously which hit on the front part of the body of the deceased but on the same evidence, Ikram had been acquitted by the learned trial Court. Another accused Shahbaz was also arrested but the trial Court also acquitted him. Other three unknown accused were never arrested by the police and what happened to them is not known till today to anybody.
8. In all there were three eye-witnesses, namely, Yasin complainant/son-in-law of the deceased, Mst. Gullan widow of the deceased and Walia father of the complainant. Except Yasin, Mst. Gullan and Walia have not been produced. According to the evidence, Yasin was not resident of the place of occurrence, he was married man so he should have been present in his house. According to the F.I.R. Appellant was armed with .12 bore gun while recovery of carbine was effected from him during the course of investigation. According to the narration of the F.I.R. And before the trial Court, Yasin complainant had stated that only one fire was shot by the appellant but only one cartridge was recovered from the spot. If this was the position, then cartridge could not had fallen on the ground, unless there had been allegation that accused had fired another shot, so the recovery of one cartridge from the spot as alleged by the prosecution is also doubtful. Appellant was arrested in this case on 7-11-1999; recovery of carbine was affected on 10-11-1999. Occurrence had taken place in between the night of 16/17-10-1999, parcels were received by the office of fire-arm on 13-12-1999, i,e, together, so the maneuvering of an empty from the said carbine is not impossible. Occurrence in this had taken place in dark hours of night i,e, 11-30 p.m. The pretext which was fabricated by the complainant in the F.I.R. About his presence at the spot that he had come to clean the maize (URDU TEXT) does not appeal to reason and moreover when he had finished his work, then he could have gone to his house and there was no necessity on his part to sleep in the house of the deceased when his wife was sleeping in his house. His presence at the spot is not established. There is no corroboration to the statement of Yasin from any source. Motive has also been disbelieved by the trial Court and rightly so. There was also one injury on the foot of the deceased but the complainant in the F.I.R. Or before the trial Court did not mention the same. Ikram co-accused, who was attributed the same role for causing injury on the person of the deceased had been acquitted by the trail Court and no appeal against his acquittal either by the State or by the complainant was filed before this Court.
' After having heard the learned counsel for the parties and going through the evidence on record, this Court is not satisfied with the prosecution story as has been mentioned in the F.I.R. And also put before the trial Court, it is a case in which there are so many doubts and benefit of the same always goes in favor of the accused not as a matter of grace but as a matter of right, so while granting the same benefit of doubt, I accept this appeal, set aside the conviction and sentence recorded against the appellant by the learned trial Court. Appellant is in jail and he shall be released forthwith if not required to be detained in any other case.