' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,2050 of 2004 filed by Babar Zaman son of Muhammad Mansha and Imtiaz son of Bashir appellants, who were convicted and sentenced by learned Additional Sessions Judge, Gujranwala vide his judgment dated 30-11-2004 to undergo 14 years' R.I. Each under section 311, P.P.C. And a fine of Rs,25,000 each or in default one year's S.I. Each. They were also directed to pay Rs,1,12,156 as Diyat amount to Meraj Bibi. Benefit of section 382-B, Cr.P.C. Was also extended to the appellants.
2. Brief facts of the case are that one Muhammad Mansha deceased son of Meraj Bibi complainant was murdered in his house on 9-4-2004 by his son Babar Zaman and case F.I.R. No,102 of 2004 was lodged on the same day in Police Station Ferozewala under section 302/34, P.P.C. In the said F.I.R., only Babar Zaman was named as principal accused while the other two accused have been shown as unknown, who made good their escape after the occurrence. The said F.I.R. Was lodged by Muhammad Latif son of the complainant and brother of Muhammad Mansha deceased. According to complainant Mst. Meraj Bibi, Mst. Mehmooda Begum and Imtiaz (son-in-law) of the deceased are also the accused in the above said F.I.R. But the police due to mala fide and in connivance of Muhammad Latif complainant of the F.I.R. Had not incorporated the name of the above two co- accused and did not challan them. According to the complainant, both the above said accused took active part in the commission'of the offence of murder of Muhammad Mansha. The complainant tried to approach the police in this respect but the police officials did not pay heed to her hue and cry. Hence the complainant filed the private complaint asserting that Babar Zaman and Imtiaz committed the Qatl-e-Amad of Muhammad Mansha deceased on the commanding Lalkara of Mst. Mehmooda Begum. The motive as mentioned in the private complaint is that the accused reprimanded Mst. Mehmooda Begum who had developed illicit relations with Imtiaz accused and in this revenge, Babar Zaman and Imtiaz while armed with pistols committed the Qatl-e-Amd of Muhammad Mansha, who was lying on the cot in his courtyard.
3. Formal charge was framed against the said three accused under section 302/34, P.P.C. On 25-9- 2004, to which, they pleaded not guilty and opted to face the trial and then the prosecution evidence was summoned.
4. Prosecution in order to prove its case produced two witnesses in all i.e. Meraj Bibi complainant P.W.1 and Mehmooda Begum P.W.2. Dr. Muhammad Riaz, Masood Ahmad Bhatti, Draftsman, Javed Iqbal F.C, Ramzan Baig F.C., Muhammad Arif F.C, Gulraiz F'.C, Munawar Khan S.-I. And Saif Ullah S.- I./S.H.O. Were examined as C.W.1 to C.W.8 respectively, thereafter, statements of the accused were recorded under section 342, Cr.P.C. Imtiaz Ahmad son of Muhammad Rafique, Muhammad Latif Iqbal and Mst. Razia Bibi wife of Babar Zaman were examined as D.W.1 to D.W.3 respectively.
5. In support of this appeal, learned counsel for both the appellants submits that Imtiaz appellant was not named in the F.I.R., which was lodged by Muhammad Latif brother of Muhammad Mansha deceased and in fact he vas shown as eye-witness in the F.I.R. But later on, mother of the deceased Meraj Bibi on 18-6-2004 filed private complaint in which she had also named Imtiaz son-in-law of the deceased and his wife Mehmooda Begum as accused in this case. He further submits that no recovery was effected from Imtiaz appellant, that even Meraj Bibi complainant in her statement recorded under section 161, Cr.P.C. (Exh.D.A.) did not implicate Imtiaz and his wife Mehmooda Begum as accused persons and she made dishonest improvements before the learned trial Court so he is entitled to acquittal.
6. As far as, Babar Zaman, appellant is concerned, learned counsel submits that according to site- plan Exh.P.C. Empty cartridges were recovered but in the F.I.R. It was stated that Bazar Zaman was armed with pistol, that it was night occurrence, that none of the P.Ws. Stated in the F.I.R. That there was any electric light so benefit of doubt- be also granted to Babar Zaman appellant.
7. Learned A.P.G. Submits that Babar Zaman appellant is not only named in the F.I.R., which was lodged by Muhammad Latif brother of the deceased but also named by Meraj Bibi mother of the deceased in her private complaint, who is most important witness so as far as Babar Zaman is concerned, ocular account is corroborated by medical evidence and the motive furnished in the F.I.R. But illegal view has been taken by the learned trial Court by not convicting him under section 302(b), P.P.C. Rather he has been convicted under section 311, P.P.C. So far as, Imtiaz appellant is concerned, learned A.P.G. Submits that conviction of Imtiaz appellant is not sustainable'in the eyes of law.
8. I have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. Occurrence in this case had taken place on 9-4-2004 at 10-30 p.m. Within the jurisdiction of Police Station, Ferozewala, District Gujranwala at 1-1/2 Kms. Away while the matter was reported to the police by Muhammad Latif brother of Muhammad Mansha deceased on the same day at 11-25 p.m. And the formal F.I.R. Was recorded on the same day at 11- 45 p.m. In the said F.I.R. Only name of Babar Zaman is mentioned but on 18-6-2004 Meraj Bibi mother of Muhammad Mansha deceased filed a private complaint against both the appellants and her daughter-in-law Mehmooda Begum i.e. Wife of Muhammad Mansha deceased in which all the three accused were summoned but after conclusion of trial, Mahmooda Begum was acquitted while both the appellants were convicted and sentenced as mentioned above by the learned trial Court.
As far as, Babar Zaman appellant is concerned, he is real son of Muhammad Mansha deceased, he was armed with pistol, case was got registered against him by Muhammad Latif brother of the deceased, having no animus against him, then, Meraj Bibi being mother of the deceased and grandmother of Babar Zaman fully supported the prosecution case and then, Hamidan Bibi P.W.2 sister of the deceased also supported the prosecution case. After the arrest of Babar Zaman, a pistol was recovered from him. Muhammad Latif complainant of the resiled from his statement before the learned trial Court as before the learned trial Court a partial compromise was effected between the parties but Meraj Bibi mother of the deceased did not agree with the said compromise so learned trial Court convicted and sentenced both the appellants under section 311, P.P.C., which is illegal in the eyes of law because there are so many judgments of this Court and the Apex Court that on the ground of partial compromise no conviction under section 311, P.P.C. Can be awarded in a case of Tazir. He has committed the murder of his father, no appeal against his acquittal under section 302 (b), P.P.C. Was fik.i by the complainant or by the State so I have no other option but to proceed with the case and the sentence, which has been awarded to both the appellants, so as far as, case against Babar Zaman appellant is concerned, that is fully proved by the prosecution through ocular account, which is corroborated by medical C evidence, so this appeal to his extent is dismissed. The conviction and sentence recorded against him by the learned trial Court is maintained in toto.
' Now I take up the case of Imtiaz appellant, he was not named by Muhammad Latif complainant of the F.I.R./real brother of the deceased, he was shown as an eye-witnesses in the F.I.R. But Meraj Bibi had made him as an accused in the private complaint and the statement of Meraj Bibi under section 161, Cr.P.C. Was also recorded by the police on the day of occurrence, she did not name Imtiaz appellant as an accused in her statement, she was duly confronted with her statement before the police, no recovery was effected from him, so while granting the benefit of doubt, this appeal to his extent is accepted. 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.