' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No. 349/J of 2000 filed by Nazir Ahmad appellant through jail who was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life with further direction to pay Rs.50,000 as compensation vide judgment dated 26-9-2000 pronounced by learned Sessions Judge, Sialkot.
' Criminal Revision No.769 of 2000 filed by the complainant shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place at 9-00 p.m. On 9-8-1991 at a distance of 18 kilometers from Police Station Badiana, District Sialkot while the matter was reported by Muhammad Nazir through written complaint Exh.PP at Nakabandi point Badiana at 2-30 a.m., the next morning and the former F.I.R. Exh.PA/1 was recorded by Muhammad Arif, Head Constable.
2A. Briefly stated the facts of the case are that at about 9-00 p.m. On 9-8-1991 the complainant along with Muhammad Bashir and Ghulam Hussain were lying on their cots outside the house when all of a sudden Nazir armed with .12 bore gun (double barrel), Muhammad Akram alias Kala armed with carbine, Pitras armed with Kalashnikov, Waheed armed with rifle 7-MM and Tahir Nadeem armed with Kalashnikov came there. Nazir raised Lalkara upon which Muhammad Anwar, Muhammad Arshad and Abdul Kareem also attracted. Then, Nazir fired a shot, which hit Muhammad .Arshad, and he fell down on the ground. The shot fired by Akram hit Anwar and similarly, the shots fired by Pitras, Waheed and Tahir Nadeem hit Bashir Ahmad who was injured.
The occurrence was also allegedly witnessed by Sabir son of Lal Din. Arshad succumbed to his injuries at the spot while injured Muhammad Anwar and Bashir were shifted to Civil Hospital, Sialkot.
Javed Iqbal was made as accused of abetment.
' The motive alleged was an earlier quarrel between Nazir on the one side and Waris on the other side.
3. Investigation of the case was taken over by Abdul Majid, A.S.-I. (P.W.13). He, after registration of the formal F.I.R., went to the place of occurrence, inspected the spot, took into possession the bloodstained earth vide memo. Exh.PJ; also secured 3 bullets of 7-MM rifle from the spot vide memo. Exh.PK; recorded statements of the witnesses under section 161, Cr.P.C.; the investigation of the case was also partially carried out by Muhammad Iqbal, S.-I. (P.W.14); on 4-9-1991, from Nazeer and Akram accused, crime weapons of instant case were recovered who were arrested in different cases vide F.I.Rs. Nos.90 and 91; from Nazeer accused .12 bore double barrel gun was recovered which was accused also got recovered carbine P.3 which was taken into possession vide memo.
Exh.PB; Muhammad Ashraf, D.S.P. (P.W.16) also carried out the investigation and finally found Akram, Nazeer and Pitras as accused while Sultan, Tahir Nadeem and Javaid accused were declared as innocent. However, all the five accused were sent to face the trial.
4. At the trial, prosecution in order to prove its case produced 18 witnesses in all. Then, the learned PP tendered in evidence report of the Chemical Examiner Exh.PU, report of the Serologist Exh.PV report of the Forensic Science Laboratory Exh.PX and closed the case of the prosecution. The accused in their statements recorded under section 342, P.P.C. Pleaded false implication, after conclusion of the trial, the accused were convicted and sentenced as stated above.
5. During proceedings before trial Court, Muhammad Akram alias Kala died.
6. Learned counsel for the appellant after having read the prosecution evidence submits that presently appellant is aged about 74 years; he had already undergone eight years incarceration; the occurrence had taken place in 1991 while the conviction and sentence was recorded by the trial Court in 2000. Further submits that according to case of the prosecution, the occurrence had taken place at 9-00 p.m. On 9-8-1991 but no source of light has been mentioned in the F.I.R.; dishonest improvements have been made by the eyewitnesses in order to make in line the ocular account with medical evidence inasmuch as according to Fard Bayan, injuries on the person of Muhammad Bashir injured P.W. Were ascribed to Waheed, Tahir Nadeem and Pitras but before the trial Court, only one shot on the person of Muhammad Bashir was ascribed to Nazeer appellant; further according to the complainant, there was only one shot on the person of the deceased Arshad, but according to post-mortem examination, there were four entry wounds on his person; similarly, one fire on the person of Muhammad Anwar P.W. Was ascribed to Akram alias Kala (who died during the trial) but there were six injuries on the person of the said injured P.W.; according to the learned counsel, the occurrence had taken place in dark hours of the night, no source of light was available, so the assailants could not be identified and the F.I.R. Was recorded after due deliberation and consultation.
7. As far as motive is concerned, learned counsel submits that the appellant had. No motive to commit the murder of the deceased. Adds that no crime empty of .12 bore gun was recovered from the spot, so mere recovery on the pointation of the appellant of the fire-arm is of no avail to the prosecution. Further adds that empties of 7-MM rifle were recovered from the spot while the rifle 7- MM was allegedly used by Waheed who has been acquitted by the trial Court. Concluding his submissions, learned counsel submits that the prosecution has failed to prove its case against the appellant, hence he is entitled to acquittal.
8. Learned counsel for the complainant who has filed criminal revision submits that Nazeer appellant fired a shot with double barrel .12 bore gun, the pellets spread and hit on different parts of body of the deceased Arshad. Further submits that Bashir injured P.W. Stated before the trial Court that he had received an injury at the hands of the present appellant. According to learned counsel, even if the motive is not proved, it is no ground to brush aside the entire prosecution case. He has referred to 2004 SCM R 1703.
9. Learned counsel for the State adopts the arguments advanced by learned counsel for the complainant with further submission that in villages people normally do not sleep in the month of August at 9-00 p.m. And more the parties knowing each other before the occurrence, there was no question of mistaken identity.
10. We have heard learned counsel for the parties and have gone through the evidence on record.
In the complaint Exh.PF, five persons were named as accused. It was Nazeer appellant who raised Lalkara, which attracted P. Ws. The first shot was fired with .12 boie gun by Nazeer appellant which hit Arshad, the deceased and he fell down. No seat of injury whatsoever has been given in the complaint as to where the shot fired by Nazeer hit the deceased. Thereafter, according the complaint, Akram alias Kala fired a shot, with carbine, which hit Anwar, the injured P.W. But no seat of injury was mentioned. Thereafter, Pitras, Waheed and Tahir Nadeem accused fired with their respective fire-arms causing injuries on the person of Bashir son of Sian. According to post- mortem report of the deceased Arshad, there are four entry wounds while in the complaint, only one fire-shot hit the deceased. So, there is clear conflict between ocular account and the medical evidence. In the complaint as well as the F.I.R. There was no role of firing any shot on the person of Bashir injured P.W. Attributed to the appellant but it was so introduced while appearing before the trial Court and a fire-shot was attributed to the appellant on the person of Bashir injured P.W.
Similarly, according to F.I.R., Pitras, Waheed and Tahir Nadeem fired at Bashir A but before the trial Court, role of firing a shot on the person of Bashir was also attributed to Nazir appellant and Pitras, Waheed and Tahir Nadeem were exonerated.
11. The occurrence had taken place at 9-00 p.m. On 9-8-1991 Dr. Zafar Iqbal (P.W.7) conducted post-mortem examination on the dead body of the deceased. He has given the probable time between the injuries and death as within 10 to 20 hours while between death and postmortem as within 24 hours. During the cross-examination, the doctor admitted that direction of the injuries depicts that the fire were shot from right side of the deceased and all the injuries were upward down and from right to left and that it cannot be ruled out that the injuries were caused while the deceased was in lying position.
12. No crime empty of .12 bore gun was recovered from the spot so mere recovery of fire-arm on the pointation of Nazeer appellant does not support the case of the prosecution.
13. No source of light was stated in F.I.R. Although it was lodged with a delay of 5 hours and 30 minutes but at point F of the site-plan Exh.PG, two electric bulbs were shown. It is also a dishonest improvement on the part of the prosecution:
14. It is correct that injured P. Ws. Are there in this case who have appeared before the trial Court but the fact remains that whether identification of the accused who fired at the deceased and the injured P.W. D has been proved or not. The answer is NOT for the reason that ocular account is not corroborated by the medical evidence, no positive report of the Fire-arms Expert and no motive rather ocular account does not get any support from motive, recovery or the medical evidence.
15. Having analyzed the entire prosecution evidence and attending to the submissions made by learned counsel for the parties, we are of the view that participation of the appellant in the instant case is of doubtful nature. So while extending the benefit of doubt, we accept the appeal filed by the convict appellant Nazir, set aside the conviction and sentence recorded against him by the trial Court and acquit him of the charge. The appellant is in jail. He shall be released from the jail forthwith, if not required to be detained in any other case.
16. The notice issued to the convict for enhancement of sentence is discharge. Criminal revision filed by the complainant is dismissed.