' KHAWAJA MUHAMMAD SHARIF, J,---This judgment will dispose of Crl. Appeal No A92-J of 2002 and Cr1. Revision No,611 of 2002 directed against the judgment, dated 11-2-2002 passed by the learned Addl: Sessions Judge, Okara, whereby he convicted the appellants under section 302(b)/34, P.P.C.
And sentenced them to undergo life imprisonment with further direction to pay Rs,2,00,000 each as compensation or in default six months' S.I. More. The appellants were also convicted under section 460/34, P.P.C., they were sentenced to undergo 10 years' R.I. Each. Both the sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C.
2. Brief facts of the instant case as narrated in the F.I.R. Are that on the fateful night at about 11-30 p.m. On the noise of "Kharrak" the complainant came out from his room and saw his brother Wazir Ahmad was opening the door of the house and they both saw the thieves taking their two buffaloes and one ox, two persons armed with deadly weapons i.e, .12 bore pistol and rifle respectively were following them complainant's brother Wazir Ahmad caught hold one thief into Japha, whereupon the other thief fired with his .12 bore pistol which hit on the right flank of complainant's brother Wazir Ahmad. The complainant reached near them. Wazir Ahmad left the thief, whereupon the thief again fired which hit at the, head of Wazir Ahmad who fell down. On reaching the P.Ws. The accused leaving the cattle fled away.
3. After getting information about the occurrence the local police completed all the formalities and thereafter the investigation of the instant case was entrusted to Rana Muhammad Wakeel S-I. Who along with his subordinate proceeded to the spot. He prepared injury statement Exh.P.U. And inquest report Exh.P.V. He took into possession the blood stained earth vide memo. Exh.P.F. Last worn clothes of. The deceased were also received by him vide memo. Exh. P.D. Thereafter investigation of the case was entrusted to different police officers who after thorough investigation of the case challaned six accused.
4. The prosecution in order to prove its case has produced as many as 22 P.Ws. Including eye- witnesses, Doctor, I.Os. And other relevant and formal witnesses. After tendering report of Chemical Examiner, Exh.P.FF., report of Serologist Exh.P .GG. , the reports, Exh.P.HH, P.JJ and Exh.P.LL of Fire Arm Expert-in evidence the learned APP closed the prosecution evidence. Thereafter statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded their innocence. Learned trial Court after taking into consideration the every aspect of the case and hearing the arguments advanced by both the parties convicted and sentenced the appellants as mentioned above.
Hence this appeal and Crl. Revision.
5. Learned counsel for the appellants in support of this appeal submit that it was a night occurrence and there is conflict between ocular account and the medical evidence. In fact no body has seen the occurrence and that a lot of improvements have been made by the eye- witnesses. They submit that case of the present appellants is of doubtful nature.
6. On the other hand learned counsel for the complainant who has also filed a revision submits that ocular account is corroborated by medical evidence. He submits that both the appellants were identified in the identification parade, that at such odd hours the P.Ws. Can commit the genuine mistake which is in the instant case also. He submits that there was no question of false implication. He supports the judgment of the learned trial Court.
7. Learned State counsel on the other hand adopts the arguments sub- mitted by the learned counsel for the complainant.
8. I have heard the learned counsel for the parties. The occurrence had taken place at 11-30 p.m. On the night between 30-1-2000 and 31-1-2000. It means that it was a winter season. Even no source of light has been mentioned in the F.I.R. Five accused were mentioned in the F.I.R. But their names were not given in the F.I.R. The allegations against the appellants were that they caught hold the deceased and one of them fired at the deceased hitting the flanks of the deceased. On hue and cry raised by the deceased, his brother the complainant took the accused in his Japha then the same accused fired again which hit on the head of the deceased. I have gone through the post- mortem examination conducted by Doctor Muhammad Siddique, M.O. Who has given the detail of injuries caused on the person of the deceased which are six in number. There is only one fire-arm injury which is on the flank of the deceased. The other injuries are with blunt weapon. Even injury on the head of the deceased which was specifically attributed to the same accused who had allegedly caused fire-arm injury on the flank of the deceased, is with blunt weapon. So there is clear and glaring conflict between the ocular account and the medical evidence. As far as, recovery of rifle from one of the appellants is concerned, it has no value as there was no injury on the person of the deceased caused by rifle. As far as recovery of country made pistol is concerned, that was of no use to the prosecution because no crime empty has been recovered from the spot.
From all angles in fact it is a case of doubtful nature. Even on the same evidence, the learned trial Court has acquitted three co-accused. So while granting benefit of doubt this appeal is accepted and conviction and sentence awarded to the appellant is set aside. The appellants are behind the bars, they shall be released forthwith if they are not required in any other case.