' MUHAMMAD FARRUKH MAHMUD, J.--- Muhammad Akram son of Maham Ali, Muhammad Safdar son of Moeen Hassan, Bashir Ahmad son of Ismail/appellant, Sardar Khan alias Shada son of Atta Muhammad, Muhammad Asif son of Irshad Khan, Muhammad Safdar son of Yaqoob and Shoaib alias Shoaibi were booked in case F.I.R. No,228 registered at Police Station Mcleodganj, District Bahawalnagar on 23-11-2002 for offences under sections 324/148/ 149/109, P.P.C. On the statement of Muhammad Hanif alias Bhutto. Muhammad Hanif alias Bhutto lost his life on the same night after registration of the case; hence, offence under section 302, P.P.C. Was added.
2. Shoaib alias Shoaibi/co-accused absconded and could not be tried, while Muhammad Safdar son of Yagoob, who was a juvenile, was tried separately. The rest Of the accused including the appellant Bashir Ahmad were tried by Mr. Shahid Mahmood, learned Additional Sessions Judge, Bahawalnagar. Vide judgment, dated 30-3-2004 handed down by the learned trial Court, Muhammad Asif son of Irshad Khan and Sardar Khan alias Shada, co-accused, were acquitted.
Through the same judgment, Muhammad Akram son of Maham Ali was convicted for offence under section 302(b), P.P.C. And sentenced to death. He was also directed to pay compensation rupees one lac to the legal heirs of the deceased under section 544-A, Cr.P.C. Bashir Ahmad and Muhammad Safdar were also convicted for offence under section 302(b), P.P.C. And each of them was sentenced to life imprisonment. Benefit of section 382-B, Cr.P.C. Was given to the convicts.
However, no order under section 544-A, Cr.P.C. Was passed.
3. Muhammad Akram challenged his conviction and sentence through Criminal Appeal No,116 of 2004, while Muhammad Safdar and Bashir Ahmad challenged their conviction and sentence through instant appeal (Criminal Appeal No,122 of 2004). During pendency of the appeals, Muhammad Akram who was sentenced to death and Muhammad Safdar son of Moeen Hassan who was sentenced to life imprisonment were acquitted on the basis of compromise effected between them and legal heirs of the deceased. After acquittal of Muhammad Akram, the learned Division Bench, vide order, dated 7-7-2005, directed the office to place this appeal to the extent of Bashir Ahmad appellant before learned Single Bench.
4. Mazhar Hussain, S.-I. Police Station Mcleodganj/P.W.11, met Muhammad Hanif alias Bhutto(who died later) in Mauza Ahmad Gadhoka while he was on his way to police station at 11-30 p.m. On 22- 11-2002. Mazhar Hussain recorded statement of Muhammad Hanif (Exh.P.D.) and sent the same for registration of the case. Hence, formal F.I.R. Exh.P.D./1 was registered.
5. According to prosecution case, Muhammad Hanif was sitting at the Dera of Abdul Hameed Gujjar along with Abdul Majeed and Muhammad Suleman. They were having Gup-Shup.
Muhammad Safdar son of Yaqoob, accused, reached there and sat with the complainant party.
Meanwhile, Shada armed with .12 bore gun, Muhammad Akram armed with rifle, Shuaib alias Shoaibi armed with .12 bore gun, Bashir Ahmad appellant and Safdar armed with fire-arms reached there. After raising Lalkara that they would teach a lesson to Muhammad Hanif for getting Asif Gadhoka arrested, all the accused started firing at Muhammad Hanif alias Bhutto.
' The motive behind the occurrence was that a few days prior to this incident, Muhammad Saleem brother of. Muhammad Hanif and Abdul Hameed maternal-uncle of Muhammad Hanif got cases registered against Muhammad Asif Gadhoka which caused grievance to the accused.
6. After drafting the complaint, Mazhar Hussain, S.-I. Sent the same to the police station for registration of case. He prepared injury statement of Muhammad Hanif alias Bhutto Exh.P.B./3 and sent him to the hospital where he lost his life at 2-30 a.m. During night on 23-11-2002. On 23-11-2002, Mazhar Hussain collected blood-stained earth from the spot and secured the same vide memo.
Exh.P.A. Attested by Abdul Majeed/P.W.8 and Muhammad Suleman/P.W.9. He also recovered four empties of pellets of rifle .303 P.8/1-4 and two empties of .12 bore cartridges P.9/1-2 from the spot and secured the same vide memo. Exh.P.I. Prepared by him and attested by the witnesses mentioned above. During investigation rifle was recovered at the instance of Safdar son of Yaqoob, juvenile accused, and .12 bore pistol at the instance of Muhammad Akram. However, no recovery was effected from Safdar son of Moeen, Sardar Khan alias Shada and the appellant.
7. During trial, prosecution produced thirteen witnesses to support its case. Abdul Majeed/P.W.8 and Muhammad Suleman/P.W.9 furnished the ocular account. They also stated about the motive and the recoveries effected from the spot. Their statements are according to the story narrated in the F.I.R. Dr. Pervaiz Malik/P.W.2 stated that he examined Muhammad Hanif on 23-11-2002 at 12-30 mid night and found nine injuries on his person which were caused by, fire-arms. Muhammad Hanif succumbed to the injuries on the same night at 2-30 a.m. And his post-mortem examination was conducted at 11-30 a.m. According to his opinion, the deceased lost his life within 2 to 4 hours after receiving firearm injuries, each of which was ante-mortem and sufficient to cause death. The post- mortem was conducted within nine hours after the death. Mazhar Hussain, S.-I3P.W.11, stated about the drafting of complaint and initial investigation. Muhammad Iqbal, Inspector/S.H.O. (P.W.12), stated about the partial investigation of the case. He also stated about the arrest of Safdar son of Muhammad Yaqoob (juvenile), Muhammad Akram and recoveries of weapons effected at their instance. Rehmat Ullah, D.S.P./P.W.13, also stated about partial investigation of the case. The rest of the witnesses are formal in nature and need not be discussed. The prosecution closed its case after placing on record the reports of Chemical Examiner, Serologist and that of Forensic Science Laboratory.
8. In his statement recorded under section 342, Cr.P.C. Bashir Ahmad pleaded innocence and stated that he had no motive to murder Muhammad Hanif and that he was found innocent during investigation. The appellant neither appeared in his defence under section 340(2), Cr.P.C. Nor did he produce any defence witness.
9. Learned counsel for the appellant submits that only general allegation was levelled against the appellant; that motive could not be proved against the appellant; that the case of the appellant was at par with that of Sardar Khan alias Shada who was acquitted by the learned trial Court; that in initial investigation the appellant was found to be innocent and challan was sent up against him on the instructions of D.S.P.
10. Conversely, the learned counsel appearing on behalf of the State has argued that the appellant is named in the F.I.R. Which is to be treated as "dying declaration" under Article 46 of the Qanun-e- Shahadat Order, 1984; that the ocular account to the extent of appellant is supported by the medical evidence; that the learned trial Court has already shown leniency to the appellant by not inflicting normal penalty of death upon him. He supports the judgment passed by the learned trial Court.
11. I have heard the learned counsel for the parties and have also gone through the relevant record of the case.
12. The prosecution case rests on the statement of Muhammad Hanif alias Bhutto deceased which is to be treated as "dying declaration" and statements of Abdul Majeed/P.W.8 and Muhammad Suleman/P.W.9. Both of them related to the deceased. According to the prosecution case, Sardar Khan alias Shada, Muhammad Akram, Shoaib alias Shoaibi, Bashir Ahmad appellant and Safdar, all armed with firearms, fired at Muhammad Hanif deceased. The weapons of Shada, Muhammad Akram and Shoaib alias Shoaibi were described but no specification of weapons was given which allegedly Bashir Ahmad and Safdar son of Moeen were holding. During trial P.Ws. Stated according to the version given in the F.I.R. The statements of the P.Ws. And the "dying declaration" were disbelieved by the learned trial Court to the extent of Sardar Khan alias Shada whose case was at par with rest of the accused who had allegedly fired, rather the allegation against him was stronger, as his weapon was described. The learned trial Court convicted Muhammad Akram/co- accused and sentenced him to death mainly for the reason that the empties recovered from the spot tallied with the weapon recovered at the instance of Muhammad Akram, otherwise his case was not distinguishable from the rest of the accused. However, he was later on acquitted on the basis of compromise effected between the parties. The learned trial Court acquitted Sardar Khan alias Shada mainly for the reason that the gun allegedly used by him during the occurrence was not recovered but on the same hand convicted Bashir Ahmad appellant and Safdar despite the fact that no recovery was effected from their possession and their weapons were not described in the F.I.R. The learned trial Court has not given a single reason as to how the case of the appellant was distinguishable from that of Sardar Khan alias Shada acquitted accused, against whose acquittal no appeal was filed. In these circumstances the judgment passed by the learned trial Court is not sustainable against Bashir Ahmad appellant. I am fortified in my view by placing reliance on the case of Tariq Khan v. The State 1997 SCM R 254, wherein in somewhat similar circumstances, it was observed as follows:-- "We do not find any distinction between the case of prosecution set up against accused Azizullah and the appellant. The case set up by the prosecution against appellant and Azizullah being at par the acquittal of the accused Azizullah in the case which has not been challenged either by the State or by the complainant through any appeal no rationale was available before the High Court for maintaining the conviction and sentence of the appellant.
' A similar view was expressed by the apex Court in the case of Rahmat v. The State 1995 SCM R 733.
13. For the foregoing reasons, I allow this appeal and set aside the judgment passed by the learned trial Court to the extent of Bashir Ahmad appellant. He is acquitted of all the charges and would be released forthwith, if not required in any other case.