' CH. IFTIKHAR HUSSAIN, J.---Appellant Ghulam Farid and Muhammad Rafique along with thirteen others were tried for offence under section 148/324 read with section 149, P.P.C. In Case F.I.R. No,18 registered with, Police Station Chak Bedi, Pakpattan Sharif on 12-1-2000 from on 9-1-2000 at about 10-30 a.m. While armed with .222 bore rifle and .30 bore pistol respectively, in prosecution of the common object of the unlawful assembly formed by them near the house of one Niaz Chowhan in Chak No,46 S-P within the jurisdiction of the aforesaid police station attacking the complainant party and attempting the Qatl-e-Amd of injured Noor Nabi by causing him one fire-arm injury each on his chest.
2. On the conclusion of the trial, they were found guilty of the charge and so vide the judgment delivered on 17-9-2001 by Mr. Muhammad Younas Aziz, learned Civil Judge 1st Class/Magistrate Section 30, Pakpattan were convicted and sentence as follows:-- UNDER SECTION 324 read with section 34. P.P.C.
' To suffer 7 years' R.I. Each and to pay fine of Rs,15,000 each and in default of the same of further suffer one years' R.I.
UNDER SECTION 337-F (iii)
' To suffer 2 years' R.I. Each and to pay Arsh Rs,5000 each to injured Noor Nabi and remain in jail till its payment.
' However, both their sentence were ordered to run concurrently. They were extended the benefit of section 382-B, Cr.P.C.
3. Their aforesaid co-accused, however, were acquitted of the charge given them the benefit of doubt.
4. They feeling themselves aggrieved of the impugned judgment of their conviction and sentence have assailed the same by way of the instant appeal.
5. The brief facts relevant for the disposal of the instant appeal are the said case has been registered on the statement Exh.PA of complainant Muhammad Sharif (P.W.1). He has mentioned therein that on 9-1-2000 at about 10-30 a.m. He along with his brother Ghulam Rasool and nephews Ramzan and Allah Wasaya and son Noor Nabi alias Nizam Din were on their way to the house after offering Eid-ul-Fitr prayer. They when reached near the house of one Niaz Chowhan, there on the roof Ghulam Farid armed with .222 bore rifle, Muhammad Rafiq son of Ali Muhammad with .30 bore pistol, Irshad alias Shada with .12 bore double barrel gun, Muhammad Shafi with .7 MM rifle, Muhammad Tahir with .32 bore revolver, Muhammad Rafique son of Fateh Muhammad with .12 bore single barrel gun, Muhammad Siddiq with .30 bore pistol, Aftab alias Tabi with .30 bore pistol and Muhammad Amin (P.0) with .12 bore carbine were standing and behind the Parda on the roof of house of Abdul Aziz Chowhan, Ghulam Nabi armed with 7 MM rifle, Muhammad Akbar with .12 bore single barrel gun, Muhammad. Munir with .32 bore revolver, and Muhammad Ashraf with .30 bore pistol were present and in the street outside the mosque Muhammad Ahmad with .30 bore pistol, Allah Ditta with hatchet, Zia with hatchet were present under a plan. Ghulam Farid raised lalkara that the murder of Yasin deceased be avenged from them. He with .222 bore rifle fired straight shot at them, which hit on the chest of Noor Nabi. Muhammad Rafique son of Ali Muhammad fired with .30 bore pistol, which hit on the chest of Noor Nabi. They all thereafter, made indiscriminate firing with their respective fire-arms. The people of the village were terrorized. They beseeched the accused and got them alighted down from the roof. They saved their lives by taking shelter of the wall. They carried injured Noor Nabi to Bunga Hayat Hospital, who therefrom was referred to the D.H.Q. Hospital, Pakpattan Sharif. He therefrom was referred to D.H.Q. Hospital Sahiwal due to his precarious condition. He remained busy in attending him there.
6. Muhammad Ali A.S-I. (P.W.8) recorded his said statement and he thereafter read it over to him and he signed the same in token of its correctness. He sent it to the police station through Saeed Ahmad, Constable. Muhammad Aslam, Head-Constable (P.W.5) recorded the formal F . I . R. Exh.
PA/1
7. On the completion of the investigation, Muhammad Akbar son of Khair Din, Muhammad Munir, Allah Ditta, Muhammad Ahmad, Muhammad Zia Akbar and Muhammad Ashraf were found innocent while remaining involved in the matter.
8. The prosecution at their trial had examined its 8 witnesses. They were Muhammad Sharif (P.W.1), Noor Nabi (P.W.2), Nazir Ahmad, Constable (P.W.3), Ghulam Rasool, Constable (P. W .4), Muhammad Aslam, Constable (P.W.5) Dr. Muhammad Akram (P.W.6), Muhammad Ali, A.S-I. (P.W.7) and Muhammad Saeed Constable (P.W.8).
9. The appellant and their acquitted co-accused in their examination under section 342, Cr.P.C.
Have denied the allegation appearing against them in the prosecution evidence. They attributed their involvement in the case to enmity. They pleaded that the assailants were unknown and possibly some on at the occasion of Eid had fired and some astray pellets had hit the injured.
10. Ghulam Farid and Muhammad Rafique appellants have tendered the copy of the report under section 173, Cr.P.C. In Case F.I.R. No,57/98, Police Station Chak Bedi Exh. DC, the order dated 22-12- 1999 and 15-1-2000 in that case Exh.DD, the report No,9, dated 17-11-1998, Police Station Chak Beth Exh.DE, the copy of judgment rendered by Ch. Abdul Qayyum, Additional Sessions Judge, Pakpattan on 14-11-2000 in the said case Exh. DF and the Complaint No,25/A.S.J-99 titled Muhammad Sharif v.
Ghulam Farid Exh. DG.
11. Learned trial Court after hearing the parties came to the conclusion that the case against the appellants stood fully proved on the record while not against their above named co-accused. It has convicted and sentenced them as mentioned above, while acquitted their co-accused by giving them the benefit of doubt.
12. It has been argued on behalf of the appellants that the eye-witnesses were not trustworthy as the medical evidence has not supported their version; that the recovery of crime weapons from them rope them in falsely as they were the eye-witnesses in the murder case of Yasin against the sons of the complainant and the brothers of the injured; and that someone at the occasion of Eid had fired out of jubilation and some astray pellets had hit the injured and so their conviction and sentence is not justified in the facts and circumstances of the case.
13. On the other hand, he learned counsel for the State has supported the impugned judgment saying that the prosecution on the basis of its different pieces of the evidence on the record i.e, ocular account, medical evidence, recovery of the crime weapons and the motive has fully proved the charge against the appellants beyond any shadow of reasonable doubt and so they were rightly convicted and sentenced.
14. I have carefully considered the submissions made by both the sides with the help of the available record.
15. The prosecution in support of its case against the appellant has relied upon its different pieces of the evidence like the ocular testimony, medical evidence, recovery of crime weapons from them and the motive.
16. Its eye-witnesses account has been unfolded by complainant Muhammad Sharif and injured Noor Nabi. According to them on 9-1-2000 at about 10-30 a.m. They after offering Eid-ul-Fitr prayer were on their way to the house. They when reached near the house of Niaz Chowhan, Ghulam Farid armed with .222 bore rifle, Muhammad Rafique with .30 bore pistol, Irshad alias Shada with .12 bore double barrel gun, Muhammad Shafi with .7 MM rifle, Muhammad Tahir with .32 bore revolver, Muhammad Rafique son of Fateh Muhammad with .12 bore single barrel gun, Muhammad Siddiq with .30 bore pistol, Aftab alias Tabi with .30 bore pistol and Muhammad Amin with carbine were standing on the roof and behind the Parda on the roof of Abdul Aziz Chowhan, Ghulam Nabi armed with .7 MM rifle, Muhammad Akbar with .12 bore single barrel gun, Muhammad Munir with .32 bore revolver and Muhammad Ashraf with .30 bore were standing and in the street out-side the mosque Muhammad Ahmad with .30 bore pistol, Allah Ditta with hatchet and Zia with hatchet were present and under the plan Ghulam Farid raised lalkara to take revenge of the murder of Yasin. He with .222 bore rifle fired straight shot at them, which hit Noor Nabi at his chest and Muhammad Rafique son of Ali Muhammad fired with .30 bore pistol, which too hit Noor Nabi at his chest. They all thereafter made indiscriminating firing with their respective weapons.
17. Both these eye-witnesses are related inter se. Muhammad Sharif is the father of Noor Nabi injured. There is background of enmity between them and the appellants' side. It has so been admitted by both of them that Ghulam Farid and Muhammad Rafique were the eyewitnesses in the murder case of Yasin deceased. It was registered vide F.I.R. No,57/98 at the aforesaid police station against the four sons of complainant Muhammad Sharif. He has admitted that his four sons were convicted and sentence to 25 years imprisonment in that case. Noor Nabi has also stated that his father Muhammad Sharif had filed complainant against Ghulam Farid and Muhammad Rafique but they were acquitted in the same.
18. So, they were not only related to each other but inimically disposed towards the appellants' side also. They, thus were the interested witnesses in every sense of the word. The plea of the appellants is that on the date of occurrence due to Eid-ul-Fitr there was great rush at the place of occurrence as about 200/300 persons were passing therefrom after offering Eid-ul-Fitr and someone out of jubilation had fired and some astray pellets had hit the injured and they have falsely been roped in out of enmity.
19. The prosecution had tried to seek corroboration to their testimony from the medical evidence.
The same has not furnished support to the same.
20. Dr. Muhammad Akram (P. W.7) though has found two injuries on the person of the injured he but in the cross-examination has stated that if someone may fire while standing on the roof top at a person on lower in level to him direction of the fire/injury would be from upward to downward. He has also stated that in the case of the injured the position is that as one had fired at him an equal level while standing in front of him.
21. The position in the testimony of the eye-witnesses is that Ghulam Farid and Muhammad Rafique had fired at the injured from roof top while he was passing from the street. The direction of the fire at the injured had not been found to be as has been described by the doctor in his cross- examination. So, the medical evidence is not in inconformity to the testimony of the complainant and the injured himself. So, I have not the least hesitation in saying that the medical evidence is not supportive to B the eye-witness account. It rather, had belied the same. It thus is doubtful that the injured had sustained injuries in the way as narrated by his own self and his father Muhammad Sharif.
22. The recovery of crime weapons from the appellants is not reliable for the reason that as per the F.I.R. Exh.PA appellant Ghulam Farid was armed with .222 bore rifle and Muhammad Rafique with .30 bore pistol. According to the evidence of Altaf Hussain, A.S-I. (P.W.6), appellant Ghulam Farid on 6- 3-2000 had produced .7 MM rifle before him and Muhammad Rafique led to the recovery of .12 bore gun from his room on 17-2-2000. So, this position is inconsistent to the Exh.PA as regards that aspect of the matter.
23. Even otherwise, this recovery was inconsequential. The weapons recovered from the appellants were not sent to the Fire-Arms Export for his opinion and so no matching report was available to the prosecution. The non-availability of matching report is a suspicious circumstance qua the version of the prosecution. Another, C significant aspect of the case is that no empty was found from the spot.
24. The version of the eye-witnesses is that all the accused, who were many in number had fired at them indiscriminately. Had it been so, there must have been found some empties from the spot.
Hence, there seems possibility of the appellants' version being true that someone at the D occasion of the Eid out of jubilation had fired and some astray pellets had hit the injured.
25. The motive set up against the appellants and their co-accused was that they wanted to avenge the murder of Yasin deceased. The background of enmity definitely existed between the parties. Anyway, enmity is a double edged weapon. It if prompts one to cause harm to his E adversary and the same also can be a factor with other to rope in him falsely.
26. It is settled proposition in law that benefit of every doubt is to be resolved in favour of accused.
So, the motive set up by the prosecution in this case is not such thing that it necessarily be viewed alone in its favour. It rather, equally could be with the complainant party to involve them falsely. So, the prosecution could not use the motive part of its story to corroborate it's ocular account.
27. I, therefore, find that the prosecution as per its evidence on the record could not prove the charge against the appellants too beyond any shadow of reasonable doubt.
28. The appeal, therefore, is accepted and the impugned judgment to the extent of their conviction and sentence is set aside and they are acquitted of the charge giving them the benefit of doubt.
29. They are on bail. They are discharged of their bail/surety bonds. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.