' KHAWAJA MUHAMMAD SHARIF, J---This judgment will dispose of Criminal Appeal No,425 of 2001 filed by Ghulam Shabbir and Criminal Appeal No,508 of 2001 filed by Faiz Bukhsh, appellants who were convicted and sentenced vide judgment dated 16-5-2001 rendered by learned Additional Sessions Judge, Khanewal as under:-- ' Ghulam Shabbir appellant, death and to pay Rs,one lac as compensation to the legal heirs of the deceased or in default six months' S.-I. Under section 302 (b)/34 P.P.C.
' Faiz Bukhsh appellant, imprisonment for life and to payRs, One lac as compensation to the legal heirs of the deceased or in default six months' S.-I. Under section 302 (b)/34 P.P.C.
' Murder Reference No,499 of 2001 for confirmation or otherwise of death sentence of convict appellant and Criminal Revision No,325 of 2001 filed by Falak Sher complainant against Faiz Bukhsh for the enhancement of sentence shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place on the night between 26/27-6-2000 at about 11.30 PM within the revenue estate of Mouza Zore Kot at a distance of six miles away from Police Station Jahanian, District Khanewal while the matter was reported to the police by Falak Sher complainant P.W.3 on 27-6-2000 at 1.45 PM and the formal F.I.R. Exh.PF by Rehmat Ali S.-I./S.H.O. P.W.9 on the same day in Police Station Jahanian.
3. Briefly stated the facts of the case are that on night between 26/27-6-2000 at about 11.30 PM Muhammad Akram had seen two suspected persons near the heap of cotton sticks in the Ihata of Malik Sikandar Hayat and by taking them to be thieves, Muhammad Akram woke up Hafiz Abdul Razzaq, Imam Mosque and asked him to make an announcement on the speaker that thieves are present in the Chak and everyone should remain alert. About 1/2 half hour thereafter, one of the suspected person while climbing over the roof of the house of Muhammad Akram started firing and on hearing the fire shots, Falak Sher complainant alongwith his son went towards the village mosque where aforesaid Muhammad Akram also came. The man, who was making fire from the room, was saying that Muhammad Ramzan @ Bana would be taught a lesson for "Mukhbari". From the voice the complainant and others recognized that person as Ghulam Shabbir. Since the complainant party was empty handed, they did not dare and in the meanwhile, the said person came down from the roof top and stated that now the Hafiz, who had made announcement on the speaker would be given a lesson. Then two persons went towards the house of Hafiz Abdul Razzaq and when they reached near the cattle shed of Malik Sikandar Hayat, where the electric bulb was on, both the accused recognized by Faiz Bukhsh and Ghulam Shabbir. Ghulam Shabbir fired a shot over the wall into the house of Hafiz Abdul Razzaq, which hit Hafiz Ghulam Rasool on the left hand.
In the meanwhile, Zafar Iqbal son of the complainant, who was sleeping in the cattle shed. Of Sikandar Hayat, woke up and raised "lalkara" as to who were there. UpOn this, Faiz Bukhsh asked Ghulam Shabbir to fire 'a short upon Zafar Iqbal and within the view of the .Witnesses, Ghulam Shabbir fired a short, which landed on the chest of Zafar Iqbal and he succumbed to the injuries at the spot, the accused managed their escape.
' The motive alleged was that both the accused were wanted in a criminal case, they were proclaimed offenders, police used to teach the complainant party and the accused had suspicion that the complainant used to give information to the police about their presence.
4. After registration of the formal F.I.R., investigation of the case was taken over by Rehmat Ali S.-I.
(P.W.9). He then, went to the place of occurrence, where the dead body of deceased was lying, prepared inquest report and injury statement, Exh. PC and Exh. PM respectively, from the spot took into possession blood stained earth vide memo. Exh. PG, from the spot a crime empty was also taken into possession vide memo. Exh. PH; a crime empty P.5 was also secured lying near the wall of Hafiz Abdul Razzaq vide memo. Exh. PJ, carried out other formal investigation; also prepared injury statement Exh. PE of Hafiz Ghulam Rasool injured, sent him to Civil Hospital and after hectic efforts on 9-8-2000 arrested Ghulam Shabbir, who while in custody got recovery of rifle P.6, which was taken into possession vide memo. Exh. PL. Thereafter, Faiz Bukhsh accused was also arrested.
After completion of investigation, both the accused were sent to face the trial.
5. At the trial prosecution in order to prove its case produced 10 witnesses in all. The eye-witnesses account was furnished by Falak Sher and Muhammad Akram P.W.4 and P.W.S. The post-mortem examination on the dead body of the deceased Dr. Sharafat Ali P.W.3. Then, the learned Special Public Prosecutor tendered in evidence report of Serologist (Exh.PR), report of Chemical Examiner (Exh.PS), report of Forensic Science Laboratory (Exh. PT) and other copies of F.I.R. And closed the case of prosecution. The accused in their statements recorded under section 342 Cr.P.C. Pleaded false implication.
6. After having read the entire prosecution evidence, statements of the appellants recorded under section 342 Cr.P.C. And other relevant material available on record, learned counsel for Ghulam Shabbir appellant submits that it was an un-witnessed occurrence, having taken place in dark hours of night, so identification of the accused was very difficult. Further submits that it was a case of single shot, that there was no previous background of enmity between the parties, that motive is shrouded in mystery, that Ghulam Rasool injured P.W. Had not appeared before the learned trial Court to corroborate the version of the complainant, even Abdul' Razzaq eye-witness also had not appeared. He lastly, submits that prosecution had failed to prove its case against the appellant beyond any shadow of doubt and he is entitled to acquittal.
7. Learned counsel for Faiz Bukhsh appellant submits that both the places where the deceased was present and from where the shot was fired by Ghulam Shabbir appellant had not been mentioned in the site plansprepared by the I.O. And the draftsman. Further submits that the place from where the eye-witnesses saw the occurrence had also not been mentioned in the site-plans. Also submits that occurrence had taken place in an Ihata, which was encircled by a boundary wall, that Faiz Bakhsh appellant was not armed with any weapon, he had only raised "Lalkara" that he is father of main accused Ghulam Rasool and possibility of his false implication cannot be ruled out.
8. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that it is a case of promptly lodged F.I.R., that both the appellants are named in the F.I.R., that ocular account is fully corroborated by medical evidence, that there was no previous background of enmity between the parties so there was no question of false implication of the appellants. They both support the judgment of the learned trial Court.
9. We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. In the instant case, there are two appellants, namely, Ghulam Shabbir, who has been awarded death sentence and Faiz Bukhsh, who has been awarded imprisonment for life and father of Ghulam Shabir appellant. The deceased in this case is Zafar Iqbal while injured P.W. Is Ghulam Rasool, who has not been produced by the prosecution.
Occurrence in this case had taken place in between the night of 26/27-6-2000 while the matter was reported to the police on 27-6-2000 at 1.45 PM, though the distance between place of occurrence and police station was six miles. Both the parties are resident of the same village and were known to each other so there was no question of mistaken identity, even if had been mentioned in the F.I.R. That from the voice of one of the accused the complainant had recognized him as well as in the light of bulb, which has been mentioned in the F.I.R. Though Ghulam Rasool injured P.W. Had not appeared but the fact remains that Falak Sher and Muhammad Akram (P.Ws.
4 and 5) had no animus against the appellants.
' For the just decision of the case, we would like to mention answer to question No,9 got recorded by Ghulam Shabbir appellant in his statement recorded under section 342 Cr.P.C. As under:-- "This is a false case. I and my co-accused are close relatives of complainant party. Some unknown persons committed the qatil-iamd of deceased Zafar Iqbal during the dark hours of night and due to enmity complainant party falsely booked us in this case while in league with the police. All the private P.Ws. Are related with each other. I am innocent."
' The bare perusal of the above said answer shows that appellantGhulam Shabbir has even admitted his relationship with the complainant party but submitted that he has been falsely implicated due to enmity although there is nothing on record in the shape of oral as well as documentary evidence that what was the enmity between the parties, so we believe both the eye- witnesses account coupled with medical evidence and moreover there is a very big circumstance against Ghulam Shabbir appellant that's that according to the report of firearm expert Exh.PT the crime empty recovered from the spot matched with 7.MM rifle, recovered on his pointation, so as far as, Ghulam Shabbir appellant is concerned, there is no mitigating circumstance in his favour, therefore, the appeal filed by him is dismissed. The conviction and sentence recorded against him by the learned trial is maintained. His death sentence is confirmed and murder reference is replied in affirmative.
So far as, Faiz Bukhsh appellant is concerned, although he was present at the spot, he raised "Lalkara" but being father of Ghulam Rasool appellant, the possibility of his false implication cannot be ruled out, so the appeal filed by him is accepted and he is acquitted from the charge. The conviction and sentence recorded against him by the learned trial Court is set-aside. He is in Jail and he shall be released forthwith if not required to be detained in any other case.
' Criminal Revision No,325 of 2001 filed by Falak Sher complainant against Faiz Bukhsh for the enhancement of sentence is dismissed.