' KHAWAJA MUHAMMAD SHARIF, J.---This appeal is directed against the judgment, dated 1-11-2004 passed by the learned Additional Sessions Judge, Gujrat, whereby, after having tried the appellants, they were convicted under sections 302(b)/149, P.P.C. And sentenced to imprisonment for life each with a further direction to pay an amount of Rs,1,00,000 each as compensation to the legal heirs of the deceased in default whereof to further undergo S.-I. For six months each as provided under section 544-A, Cr.P.C., they were further convicted under sections 324/149, P.P.C.
And sentenced to ten years' R.I. And to pay fine of Rs,10,000 each in default whereof to further undergo S.-I. For two months, they were also convicted under section 148 P.P.C. Andsentenced to two years' R.I. Each, appellant No,2 Zafar Iqbal was convicted under section 337-A(2), P.P.C. And sentenced to five years' R.I. With a fine of Rs,10,000 as Arsh while appellant Mian Khan was convicted under section 337-L(2), P.P.C. And sentenced to two years' R.I. And benefit of section 382- B, Cr.P.C. Was extended to the appellants coupled with a direction qua concurrence of the sentences.
2. Brief facts of the case, as given by the complainant in the F.I.R. (Exh.PF/1) are that on 27-4-1999 complainant along with Aamar etc. Were standing near the house of one Asghar Dehdar, in the meanwhile Yasir and Raza Mustafa reached there, asked them as to why they were standing there and went away after having extended threats, after about half an hour Raza Mustafa armed with a rifle, Zia Mustafa armed with .30 bore pistal, Walayat Khan armed with a sota, Mian Khan (appellant) armed with a danda, Ghulam Muhammad armed with a hatchet Muhammad Ali armed with .7 mm rifle, Zafar Iqbal (appellant) armed with Danda, Khan Muhammad armed with sota, Yasir Iqbal armed with .222 bore rifle, Muhammad Latif armed with a Danda, Allah Ditta armed with sword, Zaman armed with .8 mm rifle, Qamar with .7 mm rifle, Manzoor Hussain with a sota, Mian Khan son of Muhammad Aslam armed with a .12 bore gun and Javed empty-handed reached in front of the house of Haji Muhammad Abdullah while raising Lalkaras, on hearing noise complainant and the said Haji Abdullah came out of their houses, when the complainant reached near them Zafar Iqbal gave a Danda blow on his head, Zia Mustafa hit with the butt of his pistol on his right shoulder, Qamar Zaman inflicted a butt blow on the right hand of Abdullah, Yasir inflicted a butt blow on the right thumb, Latif gave a Danda blow on his left hand's finger, Manzoor Hussain gave a sota blow on the head of Asghar Ali who fell down, Mian Khan son of Taj Din gave a butt blow on his left thigh, Raza Mustafa fired a shot on the right eye of Dilawar Khan deceased who fell down. According to the complainant, the occurrence was witnessed by Muhammad Khan and Muhammad Waris apart from him. The motive was stated to be a dispute qua Shamlat Deh.
Dilawar Khan succumbed to the injury in the General Hospital Lahore where he was shifted due to his precarious condition while injured Asghar Ali and Abdullah were shifted to Tanda Hospital for their treatment.
3. After having completed legal formalities, challan was submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where, the prosecution, in order to prove its case against the accused, produced thirteen prosecution witnesses during the trial.
4. Learned counsel for the appellants in support of this appeal submits that only one injury each is attributed to both the appellants quatwo injured P. Ws; that injured Abdullah was not produced while Asghar appeared as P.W.5; that both the appellants did not touch the body of the deceased, therefore, provisions of section 302(b), P.P.C. Would not be attracted in the facts and circumstances of this case; that no recovery was effected from appellant Mian Khan; that a sota of "Keeker" tree was planted on appellant Zafar Iqbai which was not blood-stained, that there is a delay of more than 24 hours in lodging the F.I.R., so, the story set up by the prosecution in the F.I.R. Is full of concoctions, deliberations and consultations; that D.W.3 Dr. Iftikhar Ahmad found ten injuries on the person of Khan Muhammad, three on Walayat, three, on Zafar Iqbal (appellant), eight on Ghulam Muhammad but those were not explained in the F.I.R. And were suppressed by the prosecution; that in all there are eight injuries on the side of the complainant while the appellants party received twenty four injuries which are greater in number; that the appellants party filed a cross-version, challan was submitted but the accused of the cross version were acquitted by the learned trial Court, appeal against the said acquittal failed in this Court while their petition for Special Leave to Appeal against the said acquittal is pending before the august Supreme Court of Pakistan; that the prosecution has failed to prove its case against the appellants and that the appellants are entitled to acquittal by this Court.
5. On the other hand, Mr. Naseeruddin Khan Nayyar, the learned Additional Prosecutor General, while appearing on behalf of the State, has supported the impugned judgment of conviction.
6. I have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.
7. It is a case of two versions. Four persons from the appellants party received twenty four injuries during the occurrence i,e, ten injuries on the person of Khan Muhammad, three injuries on the person of Walayat, three on Zafar Iqbal (appellant) and eight injuries on the person of Ghulam Muhammad. The said factum of injuries was supported by the statement of D.W.3 Dr. Iftikhar Ahmad who appeared before the learned trial Court. Both the appellants were attributed one injury each on the persons of injured. Abdullah injured did not appear while and Asghar appeared before the learned trial Court as P.W.5. No recovery was effected from appellant Mian Khan while the sota allegedly recovered from Zafar Iqbal appellant was not blood-stained. As has been mentioned above, the complainant party received eight injuries in all while the numbers of injuries received by the accused party were twenty four which injuries are bigger than that of the complainant party.
So, while granting benefit of doubt to the appellants, this appeal is allowed, conviction andsentence awarded to the appellants is set aside and they are acquitted from the case. Mian Khan appellant is on bail and shall be discharged of his bail/surety bonds while Zafar Iqbal appellant is behind the bars and shall be released forthwith if not required to be detained in any other case. It is observed that any observation made in this judgment shall not affect case of the absconding accused in case they are arrested and tried.