' TANVIR BASHIR ANSARI, J.---This judgment shall decide Criminal Appeal No,199 of 1998 and Criminal Revision No,167 of 1998 as both these cases arise out of the same impugned judgment.
2. F.I.R. Exh.PG/3 was registered upon the complaint Exh.PG/2 made by Haji Jamil Hussain son of Haji Faiz Rasool. The case of the prosecution is that on 31-10-1995 at 7-00 p.m., Imran Jamil son of the complainant was returning home along with three companions namely Ahmad Khan, Arshad Mehmood and Ghulam Hussain and when they reached near the haveli of Muhammad Shafi Bhatti in Gali Bhandari, they were accosted by Bashir Khan, Faisal Bashir and Mubashir (appellants in the present appeal) and Irfan Bashir (appellant in Crl. A. No,175 of 2000). All the accused were armed with pistols who caused indiscriminate firing upon Imran Jamil which hit the victim on the right side of his abdomen, under the left shoulder, on his right knee and right ankle. Imran Jamil succumbed to his injuries at the spot.
' The motive was that Bashir Khan had lodged a criminal complainant against Haji Jamil Hussain and his brothers namely Javed and Pervaiz for forcible abduction of his daughter Mst. Yasmin and grandson Noomi. It was alleged that as the said alleged abductees have not been recovered, the accused suspected Haji Jamil Hussain etc. To have caused their death and that it was for this reason that Imran Jamil was done to death.
3. The complainant Jamil Hussain was not an eye-witness. The ocular account was rendered by Arshad Mehmood P.W.10 and Ghulam Hussain P.W.11. According to the eye-witness account, no fire- arm injury was attributed to Bashir Khan appellant. The role ascribed to this appellant was that he raised Lalkara and resorted to aerial firing. Both Arshad Mehmood P.W.10 and Ghulam Hussain P.W.11 were in unison as regards the role of Bashir Khan appellant is concerned.
4. The learned trial Court, after evaluating the ocular account, medical evidence, the evidence as to recovery and motive, concluded that the prosecution has been able to prove its case beyond all shadow of doubt against all the three appellants. However, as no direct motive is attributable to Mubashir Iqbal appellant, this was considered to be a mitigating ,circumstances in his favour and while convicting him under section 302/34, P.P.C., sentenced him to imprisonment for life along with a sum of Rs,1,00,000 to be paid as compensation or indefault to undergo S.I. For further 6 months.
The benefit of section 382-B, Cr.P.C. Was extended to this appellant.
' A s far as the case of Bashir Khan and Faisal Bashir is concerned, the prosecution case was found to have been fully established against these two accused. As however, it was found that Bashir Khan was a complainant with regard to the abduction of his daughter Mst. Yasmin (also real sister of Faisal Bashir) and his grandson Noomi wherein Haji Jamil Hussain and his two brothers were the accused, this circumstances was considered to be a mitigating factor. Appellants Bashir Khan and Faisal Bashir were thus, convicted under section 302/34 P.P.C. And sentenced to imprisonment for life and were also directed to pay a sum of Rs,1,00,000 each as compensation and to undergo SI for further six months in default of payment. The benefit of section 382-B, Cr.P.C. Was also extended to them.
5. At the very outset, Mr. Shoukat Rafique Bajwa, Advocate for the appellants submits that both Faisal Bashir and Mubashir (appellants Nos.2 and 3) have already served out their sentence and have since been released. It is submitted that in this view of the matter and in the light of the pronouncement of the Honourable Supreme Court in the cases of Amir Khan and others v. The State (2002 SCM R 403) and Bahadur Ali and others v. The State (2002 SCM R 93), he would not press the appeal to their extent.
6. Although, Criminal Revision No,167 of 1998 has been filed by the complainant Haji Jamil Hussain for enhancement of the sentence of all the appellants yet in view of the rule laid down in Amir Khan's case and Bahadur Ali's case (supra), the criminal revision has been rendered infructuous, as these appellants cannot be convicted again for the same offence. Resultantly, the appeal as far as it relates to Faisal Bashir and Mubashir appellants is dismissed as not pressed. The Criminal Revision No,167 of 1998 has also become infructuous and is dismissed as such.
7. Reverting to the case of Bashir Khan appellant, the learned counsel submits that the prosecution has not been able to prove its case against this appellant. It is elaborated that Haji Jamil Hussain complainant was not an eye-witness of the occurrence and thus, his statement was not sufficient to incriminate Bashir Khan appellant. It is submitted that in any event, the F.I.R. Mentions indiscriminate firing by all the four accused without attributing any specific injury to any particular accused. The ocular account rendered by Arshad Mehmood P.W.10 and Ghulam Hussain P.W.11 in respect of Bashir Khan appellant is only to the extent that he raised Lalkara and resorted to aerial firing. Bashir Khan besides recording his statement under section 342, Cr.P.C. also appeared as D.W.1 and deposed that he was present at his home throughout the fateful day as his daughter Mst.
Robina had come from England after a period of 11 years and that his relatives had also come to his house on the said occasion. His statement was supported by Abdul Hamid Khan D.W.2 and Muhammad Shafi D.W.3. It is urged by the learned counsel for the appellant that no case under section 34, P.P.C. Was established as it was not proved that appellant Bashir Khan was guilty of the criminal act in furtherance of the common intention shared with the other co-accused.
8. Conversely, the learned for the State assisted by the learned counsel for the complainant has asserted that although no direct injury upon the person of the deceased was attributed to appellant No,1 yet the prosecution evidence has been able to establish that the acted with the co- accused with the common intention of committing the under of Imran Jamil. He raised Lalkaras and also resorted to aerial firing. According to the learned counsel, the Lalkara was commanding in nature as he was the father of the two co-accused namely Faisal Bashir and Irfan Bashir.
9. We have examined the evidence on the record and are of the firm view that the prosecution has not been able to establish the case against Bashir Khan appellant beyond all shadow of doubt. We see no reason to disbelieve the statements on oath recorded by appellant No,1 as D.W.1 and as supported by D.W.2 and D.W.3. The cross-examination conducted upon these witnesses also does not detract from the efficacy of their affirmative statements. Further eye-witness evidence comprising of P.W.10 and P.W.11 also does not advance the case of the prosecution against appellant No,l.
10. In view of the foregoing, the appeal to the extent of Bashir Khan appellant No,1 is allowed. He shall stand acquitted of the charge against him. Appellant No,1 is directed to be released forthwith if not required to be detained in any other case.