' ABDUL HAMEED DOGAR, J.--- This petition is directed against the judgment, dated 19-4-2005 of a learned Division Bench of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby Criminal Appeal No,1729 of 2001 filed by petitioners was partly allowed. Their conviction and sentence under section 302/34, P.P.C. To imprisonment for life was set aside but conviction under section 324/34 and 337-A(i)/337-A(ii), P.P.C. For causing injuries to P.W. Muhammad Nazir were maintained.
2. In this case, petitioners Inam Din and Abdul Manan were sent up to face trial along with acquitted accused Daulat Khan for causing death of deceased Muhammad Aslam and inflicting injuries to P.W.10 Muhammad Nazir. On the conclusion of trial, acquitted accused Daulat Khan was sentenced to death under section 302(b), P.P.C. Whereas petitioners were convicted and sentenced to imprisonment for life with fine of Rs,50,000 each to be paid to the legal heirs of deceased Muhammad Aslam as compensation or in default to further undergo six months' S.I. They were also convicted under section 324/34, P.P.C. And sentenced to ten years with fine of Rs,10,000 each or in default to undergo one year's R.I. They were also convicted under section 337-A(ii), P.P.C.
And sentenced to five years' R.I. And to pay Arsh amounting to Rs,11,500 each. They were also convicted under section 337-A(i), P.P.C. And sentenced to two years' R.I. And to pay Rs,5,000 each as Daman. All the sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C.
3. The case of the prosecution is that on 18-2-2001, Muhammad Hayat complainant P.W.9 along with his brother Muhammad Aslam and one Muhammad Nazir were going to Peer Pehai for their personal work and when they reached near the hill known as "Maldawar" at Peshi Wela three unknown persons who were armed with hatchets waylaid them.One black beard person launched attack and caused injury to Muhammad Aslam with his hatchet on the forehead near the left eye who fell down and died at the spot. Complainant and Muhammad Nazir P.W. Came forward to save him when all of them attacked on them and caused injuries with the blunt side of their hatchets to Muhammad Nazir P.W. On different parts of his body who also fell down. The complainant saved his life while hiding in the hill. Later on during the dark hours complainant with the help of his relatives took the injured persons for medical treatment and got registered the case.
4. The prosecution in order to establish its case examined 14 witnesses in all.
5. On autopsy, P.W.7 Dr. Muhammad Masood Ahmed, Medical Officer, on 19-2-2001 found as many as 5 injuries on the person of deceased Muhammad Aslam. Out of which two injuries were caused by heavy cutting sharp weapon while others were caused by blunt weapons.
' On the same day, he also medically examined injured Muhammad Nazir and found 11 injuries on his person.
6. In their statements recorded under section 342, Cr.P.C., petitioners denied the case of prosecution and claimed innocence. They neither examined themselves on oath as required under section 340(2), Cr.P.C. Nor led any evidence in defence.
7. On conclusion of trial, petitioners and co-convict Daulat Khan were convicted and sentenced as stated above.
8. Being aggrieved, petitioners and Daulat Khan challenged the judgment in appeal before the learned High Court which was dismissed to the extent of petitioners vide impugned judgment whereas during the pendency of appeal before the learned High Court, the matter was patched up between condemned prisoner Daulat Khan and the complainant and it was on the basis of said compromise, he was acquitted vide judgment, dated 6-4-2004.
9. We have heard Mr. Rafaqat Hussain Shah, learned Advocate Supreme Court for the petitioner and Mr. M. Aslam Malik, learned Advocate Supreme Court for the State and have gone through the record and the proceedings of the case in minute particulars.
10.
10. Admittedly, the incident took place on 18-2-2001 at Peshi Wela whereas the matter was reported at police station on 19-2-2001 at 10-00 a.m. And no plausible explanation was furnished for such belated lodging of F.I.R. It is also admitted that none of the culprits was nominated in the F.I.R. It was on the disclosure of P.W.13 Amir Abdullah before the police for the first time on 22-3-2001 about the involvement of petitioners in the commission of the offence. It is pertinent to refer that he was examined by police on 20-2-2001 and it was P.W. Amir Abdullah who told him about the arrest of the petitioners on the next day of the occurrence. He visited him at the hospital. Though he went to the police station after about one week of the occurrence, yet he neither saw the petitioners at police station nor 'it was told to him that they were present there. He also not disclosed about the participation in the commission of offence. Complainant Muhammad Hayat (P.W.9) in his statement at trial has stated that petitioners were residing in village Mehra since their forefather and used to graze their cattle for their livelihood, as such were known to them. In his cross- examination, he has given the location of their houses and the distance to each other houses. He has stated that he came to know about the arrest of the culprits after one month of the incident and was made to witness in identification parade after two months of their arrest. P.W.13 Amir Abdullah the witness before whom it is said that petitioners and acquitted accused Daulat Khan made extrajudicial confession has deposed that it was on 23-3-2001 they came to him and disclosed about committing the murder of Muhammad Aslam and injuring P.W. Muhammad Nazir and asked him to make the matter compromised. In cross-examination, he categorically denied that he had not gone to see injured P.W. Muhammad Nazir in the hospital on the next day of the incident and disclosed about the arrest of petitioners. He also denied that the deceased was a vagabond and was involved in many cases of theft and dacoity. Similarly, the petitioners as well as the acquitted accused Daulat Khan while answering the several questions admitted in their statements under section 342, Cr.P.C. That their village and the village of P. Ws. Are located on opposite side of bank of Nala Khan Jawan and they being the neighbored used to know each other.
Examining the case of prosecution on the touchstone of the statements of petitioners recorded under section 342, Cr.P.C. It becomes an admitted fact that they were known to each other. In such situation, they being not nominated in the F.I.R. Brings the case of prosecution to be doubtful in nature. The benefit of which must be extended in favour of petitioners.
11.Accordingly, while extending the benefit of doubt to the petitioners, the petition is converted into appeal and is allowed. The conviction and sentence recorded against the appellants Inam Din and Abdul Mannan are set aside. They are in custody and shall be released forthwith if not required in any case.