This judgment will dispose of Criminal Appeal No. 1485 of 2005 filed by Riaz appellant and Criminal Appeal No. 1484 of 2005 filed by Waryam appellant. They were convicted under Section 302 (b)/34 PPC and sentenced to life imprisonment each and to pay Rs. 200,000/- each in default thereof two years S.I. each with benefit of Section 382 (B) Cr.P.C. by learned Sessions Judge, Tandlianwala vide judgment dated 06.07.2005.
Waryam appellant was also convicted under Section 109 PPC read with Section 302 PPC and sentenced to life imprisonment. Both the sentences were ordered to run concurrently.
2. Occurrence in this case had taken place at Sham Wela on 14.1.2005 within the revenue estate of Chak No. 399/GB which is at a distance of 14 kilometers from Police Station Tandlianwala, District Faisalabad while the matter was reported to the Police by Mst Sattan at 7.10 p.m., the same day and the formal FIR Ex. PD/1 was recorded by Zulfiqar Ali 879/.H.C.
3. Briefly stated the facts of the case as disclosed in the FIR Ex.PD/1 are that daughter of complainant Mst. Bakhat alias Nanni was married with Waryam alias Dhoime. Mst. Bakhat alias Nanni had been enticed away with one Jaffar. She had returned after, a few days. On the day of occurrence complainant alongwith Allah Yar and Iqbal PWs had gone to see her daughter in Chak No. 399/GB and all were present in her house. When in the evening the complainant and the PWs were sitting in the house of Mst. Bukhat alias Nanni and were talking with each other, all of a sudden Riaz son of Shandat came there on a motorcycle armed with .12 bore gun and soon after his arrival he fired, with his gun straight at Mst. Bakhat alias Nanni daughter of the complainant which landed on her chest and she died at the spot. This occurrence had taken place on the abetment of Waryam Zaman, Salabat and Mehra accused.
4. Sub-Inspector Nazar Hussain PW-8 took over the investigation. He after sending the complaint to the Police Station for registration of formal FIR, went to the place of occurrence, prepared injury statement and inquest report, secured the blood stained earth vide memo Ex. PI. On 8.2.2005 he arrested Waryam accused. On 14.2.2005 Waryam accused led to the recovery of .12 bore gun which was taken into possession vide memo Ex.PE. On 28.2.2005 he also arrested Zaman accused. Finally, the accused mentioned above were sent to face the trial.
5. At the trial prosecution in order to prove its case produced 9 witnesses in all. The learned SPP closed the case of prosecution. The accused in their statements under Section 342 Cr.P.C. pleaded false implication. After conclusion of the trial, present appellants were convicted and sentenced as stated above.
6. Learned counsel for the appellants submits that in all there are five accused; that according to FIR only appellant Riaz was present at the spot at the time of occurrence; that there was single fire shot on the dead body of the deceased while four accused namely Waryam, Zaman, Salabat and Mehra were named as an abettor; that Zaman and Salabat co-accused were acquitted by learned trial Court while Mehra accused is proclaimed offender; that no crime empty was recovered from the spot; that Riaz appellant was arrested on 28.9.2005 and no recovery was effected from him. He read before me statement of Dr. Shamim Akhtar P.W.1 and submits that there are three independent injuries on the person of the deceased. Had the eye-witnesses present at the spot they must had noticed three fire shots on the person of the deceased; that there is conflict between ocular account and medical evidence; that Mst. Sattan complainant PW-6 real mother of the deceased and other witness namely Iqbal first cousin of deceased PW-7 were not resident of place of occurrence; that the prosecution had miserably failed to prove its case against the appellants. Adds that enmity between the parties has been proved from the record; that in earlier case FIR No. 292 dated 24.4.2002 registered in Police Station Tandlianwala Ex.DB in which two brothers of Mst. Sattan complainant have been awarded death sentence; that Iqbal PW-7 and Allah Yar given up were accused in that case.
7. Learned counsel for the complainant submits that this Court had dismissed application for suspension of sentence of the appellants and the same is sufficient ground for dismissal of appeals of the appellants.
8. Learned APG supports the judgment of learned trial Court.
9. I have heard learned counsel for the parties. Occurrence had taken place on 14.1.2005 at Sham Wela, matter was reported to the police on the same day at 7.10 p.m. Complainant in this case is Mat. Sattan Bibi real mother of the deceased. There are five accused named in the FIR out of which two namely Riaz and Waryam had been convicted and sentenced while Salabat and Zaman were acquitted by learned trial Court. Mehra accused is still at large. Except Riaz appellant none of the accused was present at the spot according to FIR. Deceased is Mst. Bakhat alias Nanni who is real daughter of. Mst. Satan complainant. Mst. Sattan was not resident of place of occurrence.
According to her statement appellant Riaz came on a motorcycle and fired a shot, which hit near the chest of the deceased. I have gone through the statement of Dr. Shamim Akhtar PW-1 who conducted the post-mortem examination on the dead body of the deceased Mst. Bakhat alias Nanni. She had mentioned three independent fire-arm injures on different parts of body of the deceased. Had the eye-witnesses present at the spot they must have not mentioned only one fire shot. There is an other important factor in this case, that two real brothers of Mst Sattan complainant have been awarded death sentence in 'the earlier case. Iqbal PW-7 and Allah Yar given up PW were accused in that case. Before the learned trial Court said FIR was placed on record as Ex.BD. Riaz appellant was complainant in that murder case. Mst Sattan also made dishonest improvement before' the learned trial Court. On the same evidence two accused of abetment Salabat and Zaman have been acquitted by learned trial Court. There is no corroborated and independent evidence against the appellants. Parties were inimical to each other. There is conflict between ocular account and medical evidence.
10. After having heard learned counsel for the parties I am of the considered opinion that eye- witnesses were not present at the spot at the time of occurrence, FIR was lodged after due deliberation and consultation, no recovery was effected from Riaz appellant, two co accused namely Salabat and Zaman had been acquitted by learned trial Court on the-same evidence, both the appeals filed by Riaz and Waryam appellants are accepted and conviction and sentence recorded against them by learned trial. Court vide impugned judgment is set aside. They are behind the bars and they shall be released forthwith if not required to be detained in any other case.