KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.1023 of 2004 filed by Nizam Din and Shaukat Ali who were convicted under section 302(b)134, P.P.C. And sentenced to imprisonment for life as Tazir with fine of Rs.100,000 each, in default whereof six months' S.-I. Each by learned Additional Sessions Judge Kamalia vide his judgment dated 26-5- 2004.
2. Briefly stated the case of prosecution is that on 28-12-2000 at about 10-45 a.m. Sikandar Hayat complainant and his nephew Muhammad Nawaz, Muhammad Ashraf and Muhammad Iqbal son of Falak Sher, Afzal and Ajmal sons of Muhammad Nawaz came out of the village mosque after offering Eid Prayer and when they reached in Chowk, Nizam Din and Shaukat Ali accused both armed with Dangs and Talib Hussain accused (since dead) armed with Bala. Who were already lying in ambush, came there. Nizam Din accused raised Lalkara that Nawaz should be taught a lesson fdr getting road constructed, whereupon Talib Hussain accused (since dead) gave a bala blow on the left side of head of Muhammad Nawaz, Nizam Din accused gave a dang blow on the right side of head of Muhammad Nawaz, Shaukat Ali accused gave dang blow on the right side of head of Muhammad Nawaz. Again Talib Hussain gave bala blow which was sustained by Muhammad Nawaz on his head on the backside. Nizam Din gave dang blow, which landed on the nose of Muhammad Nawaz and Shaukat Ali gave dang blow, which was sustained by Muhammad Nawaz on his right temple.
Muhammad Nawaz nephew of the complainant raised hue and cry whereupon Muhammad Ashraf and Zafar Iqbal sons of Falak Sher, Afzal, and Ajmal sons of Muhammad Nawaz P.Ws. Stepped forward to rescue Muhammad Nawaz, when Nazar Muhammad, Ashfaq, Iqbal, Ghulam Muhammad, Ghulam Abbas, Khalid Abbas, Saeed Akhtar and Abdul Rauf all armed with sotas came there and they caused injuries on the persons of the P.Ws. With their respective sotas. The occurrence was witnessed by Ghulam Hussain and Sardara P.Ws.
3. Motive behind the occurrence was that nephew of complainant Muhammad Nawaz had made an application for construction of road and some land of the accused party came under the area of road which caused annoyance to them and all of them in furtherance of their common intention had inflicted injuries on the person of Muhammad Nawaz.
4. Shaukat Ali A.S.-I. Took over the investigation of this case. On 28-12-2000 he proceeded to RHC Pirmahal, inspected the dead body, prepared injury statement Exh.P.K. And inquest report Exh.PI.
The complainant produced before him MLRs of Ashraf, Zafar Iqbal, Afzal, Ajmal and Abdul Rehman and he recorded the statements of injured P.Ws. In the hospital. On 11-1-2001 he arrested Nizam Din, Talib Hussain, Ghulam, Shaukat Ali, Muhammad Ishfaq, Muhammad Iqbal, Ghulam Abbas, Khalid Hussain and Muhammad Saeed. Then the investigation of this case was entrusted to Aftab Ahmad, S.-I. On 18-1-2001 he arrested Nazar Muhammad accused. On 24-1-2001 Nizam Din, Talib Hussain, Ghulam Muhammad, Nazar Muhammad, Ghulam Abbas, Khalid. Abbas, Muhammad Saeed, Shaukat Ali, Muhammad Ishfaq and Muhammad Iqbal got recovered weapon of offence which were secured vide memo. Exh.P.S., Exh.P .T . , Exh.P .1J, Exh P . V . , Exh. P .W Exh. P . X . , Exh.P. Y . , Exh. P. Z , Exh.P.A.A. And Exh.P.B.B. Respectively. After completion of investigation he sent the accused to face the trial.
5. The prosecution in order to prove its case produced as many as 18 prosecution witnesses in all.
Learned SPP after tendering in evidence reports of Serologist Exh.P.GG. And Exh.P.JJ and reports of Chemical Examiner Exh.DD, Exh.DFF and Exh.DHH closed the case of prosecution. Statements of the accused under section 342, Cr.P.C. Were recorded in which they pleaded their innocence. After conclusion of trial both the appellants/accused were convicted as stated above while remaining 8 accused were acquitted by the learned trial Court vide impugned judgment.
6. Learned counsel for the appellants after having read entire prosecution evidence and going through relevant material available on record submits that on the basis of same evidence 8 accused have been acquitted by learned trial Court and appeal against acquittal has been dismissed by this Court; that one of accused Talib Hussain who was ascribed similar role has already died; that ocular account is not in affirmative with post-mortem report; that according to F.I.R. It was stated that five injuries were given to the deceased Muhammad Nawaz by the present appellant and his co-accused Talib Hussain (since dead) but in the post-mortem report there are seven injuries on his head and one on his nose; that the injured P.Ws. Were not present at the time of causing injuries to Muhammad Nawaz deceased, they came thereafter when they were informed about the occurrence; that their father has been allegedly given beating by the appellants and co- accused Talib Hussain; that eye- witnesses have made dishonest improvement and material concealment; that the eye-witnesses made dishonest improvement by attributing specific injuries while explaining seven injuries on the person of the deceased; that from the side of appellants Ghulam Abbas and Saeed Akhtar were also injured and their injuries have been suppressed by the complainant party; that during trial it was stated that Mst. Hajra and Riaz have also received injuries but they were not produced as eyewitnesses; that these eye-witnesses are not truthful one; that in order to maintain the conviction and sentence against the appellants independent corroboration is very necessary while prosecution is seeking corroboration from recovery of weapon of offence; that occurrence took place on 28th December, 2000 and accused were arrested on 11th of January, 2001 and recoveries were allegedly effected on 24th January, 2001 and it was last day of remand; that from 28-12-2000 to 24-1-2001 the blood stains could not have remained on the "dangs" and "bala" etc.; that during this period the accused could have disposed of their dangs; that independent witnesses were not joined in the recovery proceedings of said dangs; that in view of above situation these dangs could not have been of any corroborative value; that motive has not been proved by prosecution; that according to report under section 173 Cr.P.C., aggression was started by the complainant party and present appellants were not involved in this case; that if both the versions are put in juxtaposition the version put forth by the appellants seems to be more plausible and convincing one; that all the prosecution witnesses are closely related to the deceased and are inimical towards the accused and in this situation they should not be believed; that the injured P.Ws. Had arrived after infliction of injuries to the deceased Muhammad Nawaz so they could not be treated as an eyewitnesses of the occurrence; that as far as complainant is concerned, he was not present at the spot; that in view of above circumstances, both the appellants are entitled to the acquittal.
7. He further submits that in alternative total statement of Nizam Din recorded under section 342, Cr.P.C. Should be believed, the sentence if any can' be awarded under section 302(c), P.P.C. And not under section 302(b) P.P.C. As held by learned trial Court and that the sentence can be from 10 to 14 years' R.I.
8. Learned counsel for the complainant submits that occurrence took place on the day of Eid-ul- Fittar immediately after Eid Prayer and the accused way-laid the complainant party; that all the accused are residents of same house; that according to page 9 of the statement under section 342 Cr.P.C. Of the accused Nizam Din, when he was not present at the spot how could he state that neither P.Ws. Nor accused persons were present at the spot' ; that it was the case of promptly lodged F.I.R.; that Nizam Din appellant is retired Head Constable and due to this reason police favoured the accused party; that both the appellants are attributed specific injuries; that injuries are corroborated by medical evidence and recovery evidence; that already lenient view had been taken by learned trial Court and no case for interference is made out by this Court.
9. Learned APG submits that two acquitted accused Ghulam Abbas and Saeed Akhtar were medically examined on 29-12-2000 on the very next day of the occurrence at 8- 30 a.m., Ghulam Abbas received 4 injuries on his person while Saeed Akhtar received simple injuries and they have relied upon the statement of Nizam Din accused/appellant.
10. Heard. Occurrence in this case took place on 28-12-2000 at 10-45 a.m., matter was reported to the police on the same day at 3-20 p.m. Complainant in this case was Sikandar Hayat. There is one deceased namely Nawaz. Four injured witnesses namely Muhammad Ajmal, Muhammad Afzal, Muhammad Ashraf and Zafar Iqbal are mentioned in the F.I.R. There is another injured eye-witness Abdul Rehman. They all have appeared before the learned trial Court. In all there are 11 accused out of which 8 were acquitted by learned trial Court while Talib Hussain accused had died during the trial. Nizam Din and Shaukat All are appellants before this Court. An appeal against acquittal of 8 accused titled Sikandar Hayat v. Nazar Muhammad etc., bearing Criminal Appeal No.1024 of 2004 was dismissed by a Division Bench of this Court vide order dated 7-9-2006. Prosecution has produced complainant as P.W.1, Zafar Iqbal, Muhammad Ashraf, Abdul Rehman, Muhammad Ajmal and Muhammad Afzal P.W.2 to P.W.6. Both the appellants were arrested on 18-1-2001. Nizam Din appellant got recovered danda on 24-1-2001 and same was the position of Shaukat Ali appellant who got recovered danda. In the F.I.R. There are five injuries on the person of the deceased, one on the head which was attributed to Nizam Din and as far as Shaukat Ali appellant is concerned, he was also attributed two injuries, one on the right side of head of the deceased and other on his temple. Talib Hussain accused (since dead) was also attributed two injuries, one on the head and other on the backside of deceased. He had died during the, trial. Now we are left with Nizam Din and Shaukat Ali appellants. During investigation Nizam Din had been found to be innocent and had been placed in Column No.2 of the Challan on the direction of A Dildar Ahmad Cheema D.S.P. Who could not appear due to his death.
Report under section 173 Cr.P.C. Is on record. Two accused Ghulam Abbas and Saeed Akhtar who are sons of Nizam Din were also injured. Learned trial Court, after appreciating the prosecution evidence came to the conclusion that prosecution has failed to prove the motive against the appellants because no documentary as well as oral evidence whatsoever was produced by the prosecution to prove the motive and this is the reason that the learned trial Court has awarded life imprisonment to both the appellants. Nizam Din appellant while appearing before learned trial Court in reply of questions Nos.4 and 8 has made his own version. In reply of questions Nos.4 and 8, which are detailed one and are not required to be reproduced here but fact remains that he appeared against the complainant party in a suit and deposed against Muhammad Nawaz deceased. Resultantly the said suit of the complainant party was dismissed. An appeal against the said judgment and decree was filed by complainant party, which was also dismissed. Then a case was registered under section 3/4 of Prohibition Order 1979 against Muhammad Ashraf P.W. Who had a suspicion that the present appellant Nizam Din got the said case registered against him.
Further his two sons namely Ghulam Abbas and Saeed Akhar were also injured, . So it is well known that the complainant party always involve innocent persons along with main accused so that nobody should left to pursue the case of prosecution. Not only the appellant Nizam Din but his three sons namely Ghulam Abbas, Muhammad Saeed and Khalid Abbas were also involved who have been acquitted by learned trial B Court. An appeal against their acquittal has also been dismissed, therefore, possibility of false implication of Nizam Din cannot be ruled out, so while granting benefit of doubt, this appeal to his extent is accepted and conviction and sentence recorded against him vide impugned judgment is set aside. He shall be released forthwith if not required to be detained in any other case.
11. As far as Shaukat Ali appellant is concerned, he while armed with dang caused injury on the person of the deceased. Ocular account is fully corroborated by medical evidence. There is no reason for his false implication in this C case. He has been fully implicated by all the prosecution witnesses. Recovery of blood-stained dang was also effected from him. So his conviction and sentence is maintained. This appeal to his extent is dismissed.