' This appeal is directed against the judgment, dated 29-10-2001 passed by the learned Additional Sessions Judge Narowal, whereby, having tried the appellant in the case registered vide F.I.R. No,131 dated 29-12-1996, under sections 302/148/149, P.P.C., Police Station Noor Kot, District Narowal, the appellant was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life with a direction to pay a sum of Rs,50,000 to the legal heirs of the deceased in default whereof to further undergo six months imprisonment. However, co-accused, Muhammad Ramzan, Muhammad Akmal and Muhammad Yamin were acquitted from the case while Muhammad Azam died before the conclusion of the trial.
2. The prosecution story, as unfolded through F.I.R. Registered on the statement of the Ch. Inayatullah complainant, briefly stated is that on 29-12-1996 at 12-30 p.m., he, his paternal nephew Tariq alias Tani Tiwana and Ghulam Rasul maternal-nephew were present at Chowk Noor Kot in order to go to Shakargarh; that Muhammad Azam armed with rifle .222 bore, Muhammad Yamin armed with rifle, Muhammad Akmal alias Akkal armed with Bugda, Ramzan alias Maqsood Gondal armed with Mausar, Abdul Ghafoor armed with Mausar and Tanvir Ahmad and Guddo (appellant) armed with a rifle were sitting in ambush there; that they attacked upon Tariq alias Tari Tawana at once and raised Lalkara that Tariq should not be spared that day; that Muhammad Azam fired at Tariq Tawana with rifle .222 bore which landed on left side of his back; that second fire was made by the appellant which hit Tariq above left hip area; that on receiving above shots, Tariq fell down; that Akaml gave Bugda blow on his left thigh; that Muhammad Ramzan, Abdul Ghafoor, Muhammad Yamin kept on firing with their respective weapons; that they fled away by making firing; that Tariq Tawana succumbed to the injuries at the spot and that the occurrence was witnessed by Muhammad Azam, Khalid Pervaiz and Ghulam Rasul besides the complainant. The motive, alleged by the complainant in the F.I.R., was that one Muhammad Hussain was murdered at night about 1-3/4 months ago in which Azam etc. Were nominated as accused and deceased Tari used to help the complainant party in the said case due to which the accused party nourished grudge.
3. After having completed usual formalities and investigation of the case, the police submitted challan against the accused persons before the learned Court of competent jurisdiction, where, in order to prove its case, the prosecution examined 10 witnesses.
4. The accused, when examined under section 342, Cr.P.C. Denied the prosecution case, attributed their involvement in the present case to false implication and claimed trial.
5. Learned counsel for the appellant, in support of this appeal contended that the dimension of injuries Nos.1 and 2 is of the same size and the possibility that both these fires were made by one and the same person and more over with the same weapon cannot be ruled out; that the appellant was not party to the motive described in the F.I.R. And the trial Court has also not believed the same; that in the earlier murder case, appellant had no relationship or connection whatsoever with the accused persons mentioned in the said F.I.R.; that no weapon was recovered at the pointation of the appellant; that during all the three investigations appellant was found innocent and he was recommended to be discharged; that the appellant had also produced two witnesses in defence i,e, D.W.1 Munir Ahmad and D.W.2 Ch. Roushan Din, a senior Advocate, that D.W.2 made a statement to the effect that at the time of occurrence, the appellant was present with him at the place of occurrence at a cigarette "Khokha", that the said D.W.2 had no relationship with the appellant or any enmity whatsoever with the complainant party; that the finding of the learned trial Court is that the occurrence had taken place in the same Chowk where the appellant Tanvir was present along with D.W.2; that merely on this ground, the conviction and sentence on a capital charge cannot be awarded to the appellant, that the impugned judgment'has been passed against the weight of evidence on record; that it is based on surmises and conjectures; that the prosecution has failed to prove its case against the appellant beyond reasonable doubts and that, in the afore-referred circumstances, the appellant is entitled to acquittal from this Court.
6. On the other hand, while defending the impugned judgment of conviction, learned counsel for the State submits that the appellant was named in the promptly lodged F.I.R. And a specific injury was attributed to him on the back of the deceased; that the two eye-witnesses have fully implicated the appellant with the offence; that although the eye-witness account was furnished by the closely related persons to the complainant party yet they had no enmity whatsoever with the appellant to falsely implicate in the case; that D.W.2 appeared before the police after one and a half months of the occurrence; that according to the finding of the police, appellant was not present at the spot but this D.W himself stated before the learned trial Court that the appellant was present with him near the place of occurrence that D.W.2 also stated before the learned trial Court that D.W.1 Munir Ahmad, D.S.P. Was closely related to the appellant, so he was declared innocent and that he supports the impugned judgment of conviction.
' Learned counsel for the complainant, in addition to the above submissions made by the learned counsel for the. State, submits that D.W.1 .Munir Ahmad, D.S.P. Neither went to the place of occurrence nor investigated the case; that both the parties have produced equal number of witnesses regarding guilt and innocence of the accused persons; that the D.S.P. Had pre-empted the jurisdiction of the learned trial Court by way of declaring the appellant innocent which finding was not based upon any material on record; that D.W.1 has himself admitted the presence of the appellant near the place of occurrence contrary to the stand that the appellant was not present there; that the story narrated by D.W.2 was unnatural and improbable in fact he wanted to Favour the appellant because actually he was not present at the place of occurrence; that in reply to question No,6 of his statement recorded under section 342, Cr.P.C., appellant has himself admitted enmity with the deceased coupled with proving of motive through the said statement, that it was a broad-daylight occurrence- and no question of false implication or substitution arises; that the ocular account is corroborated by the medical evidence and that since the prosecution has proved its case against the appellant beyond an iota of doubt, therefore, in the afore-referred circumstances the appeal filed by the appellant against the said judgment is liable to be dismissed.
7. I have heard learned counsel for the parties, have gone through the impugned judgment and the record with their able assistance and have also given exhaustive consideration to the arguments of the respective parties.
8. Occurrence in this case took place on 29-12-1996 at 12-30 p.m. Which was reported to the police on the same day at 12-45 p.m. By complainant Ch. Inayatullah who was maternal-uncle of the deceased. In all six accused persons were mentioned in F.I.R. Amongst whom Muhammad Azam had died before the trial. Abdul Ghafoor is still at large. Muhammad Ramzan alias Maqsood, Muhammad Akmal alias Akkal and Muhammad Yamin were acquitted from the case. Criminal Appeal No,1973 of 2001 was filed against their acquittal. Vide order, dated 29-10-2002 passed by a learned Division Bench of this Court the said appeal to the extent of Muhammad Ramzan and Muhammad Yamin was not pressed, so, the same was dismissed as not pressed. The said appeal to the extent of remaining acquitted co-accused Muhammad Akmal was dismissed on merits vide detailed order, dated 15-7-2004 passed by a learned Division Bench.
' The motive in the present case was that one Muhammad Hussain was murdered at night about 1- 3/4 months ago in which Azam etc. Were nominated as accused and deceased Tari used to help the complainant party in the said case due to which the accused party nourished grudge. The present appellant was not party to the said motive. Even the motive has been disbelieved by the learned trial Court. This Court also disbelieved the motive given in the F.I.R. Muhammad Azam accused, who opened the attack and was armed with .222 rifle, hit the deceased on the left side of his back. Thereafter the present appellant was alleged to have fired a shot which hit on the left upper hip region of the deceased. Dimension of injuries shows that it was 1-1/2 c.m. x 1-1/2 c.m. The doctor admitted during the course of cross-examination that the possibility of these two injuries having been caused by one person and with the same weapon cannot be ruled out. Even otherwise, I am of the affirmed view that these injuries could not have been caused by .222 rifle because in the said rifle a bullet is used. Had it been used, it must had caused a greater damage and the dimension of the injury would have been large one? So the medical evidence also does not corroborate the ocular account.
' Both the eye-witnesses are closely related to the deceased. In successive investigations, appellant was found innocent. Neither any recovery of weapon of offence was effected from the appellant nor any crime-empty of rifle alleged used by him was recovered from the spot to connect him with the alleged commission of the offence.
' It was argued that D.S.P. Munir Ahmad was related to the appellant but this suggestion was never put to the said D.W. D.W.2, who is a Senior Advocate with forty years standing, appeared before the learned trial Court as D.W.2. He joined the investigation on 12-2-1997, filed an affidavit on the same date and explained that he could not join the investigation due to his professional engagements.
He had no relationship either with the appellant or any enmity with the complainant party.
However, it has come on record that two close relations of the deceased were Advocates. In the earlier murder case Muhammad Hussain, appellant was neither an accused nor was siding any party.
' Rather complainant of the present case was involved in six criminal cases of heinous nature. His son was murdered and the father of the deceased of the instant case had become complainant.
Now it was his turn to become complainant for the murder of a son of Muhammad Latif mentioned above. It has come on record that there was rivalry between the parties as the near relations of both the parties contested elections. The law of the land is that the prosecution has to prove its case against the accused beyond a shadow of doubt and cannot derive benefit from the defence case. This is in line with the law laid down by the august Supreme Court in Ashiq Hussain v. The State 1993 SCM R 417, wherein at page 427, it was observed by the august Supreme Court of Pakistan as under:-- "... It is needless to repeat that it is bounden duty of the prosecution to prove the case against accused beyond doubt and this duty does not change or vary in the case in which any defence plea is taken. Burden of prosecution to prove its case beyond doubt remains the same...."
' In Abdul Subhan v. Reheem Bakhsh and another PLD 1994 SC 178, wherein, at page 208 of the judgment; the Honourable Supreme Court held as under:-- ".... Accused may take any defence plea or not or may take a false plea but that would not reduce the burden of the prosecution to prove its case beyond doubt..."
' In Javaid v. The State PLD 1994 SC 679 the apex Court of the country at page 687, observed as under:-- ".... Needless to say that even if defence plea is raised, burden on prosecution to prove the case beyond doubt is never lessened or lightened and remains the same and accused is always entitled to benefit of doubt if the -prosecution case is not proved by satisfactory evidence..."
' Even otherwise, the ocular account is not corroborated the medical evidence benefit of which must also go to the appellant.
9. After having adjudged the case from every angle, having sifted grain from the chaff and after having applied independent judicial mind, this Court is the considered view that the prosecution has failed to prove its case beyond an iota of doubt to sustain conviction against the appellant.
Resultantly, this appeal is allowed, the impugned judgment is set aside and the appellant is acquitted from the case. He shall be released forthwith if not required to be detained in any other case.