' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,1342 of 2002 and Criminal Revision No,754 of 2002 directed against the judgment, dated 29-5-2002 passed by the learned Addl. Sessions Judge, Mianwali, whereby he convicted the appellant under section 302(b), read with section 34, P.P.C. And sentenced them to undergo life imprisonment with further direction to pay Rs,50,000 as compensation as required under section 544-A, Cr.P.C. With benefit of section 382-B, Cr.P.C.
2. Brief facts of the case as narrated in the F.I.R. By the complainant are that he along with his brother Haji Sawans, Muhammad Nawaz and Atta Rasool were sitting in front of Madina Autos Shop and at about 12 noon a Suzuki car came from Grain Market side which was driven by an unknown person. Malik Surkhru armed Kalashnikov along with two unknown persons out of whom one was armed with a double barrel gun and the other with a repeater gun .12 bore suddenly came down from the car. Malik Surkhru raised as Lalkara that Haji Sawans would not be left alive and simultaneously, he fired a burst of Kalashnikov at Haji Sawans which hit the left side of his chest, left arm, left hand and left thigh. The one unknown person who was armed with repeater gun .12 bore made three fires one after the other at Haji Sawans which hit his belly. The other unknown person armed with gun .12 bore double barrel remained standing pointing his gun towards the complainant and his companions. Haji Sawans succumbed to the injuries and the assailants fled away from the spot. The motive behind the occurrence was the insult of brother of Malik Surkhru namely Khizar Hayat.
3. After getting information about the occurrence the local police completed all the necessary formalities and thereafter Muhammad Qasim S.-I. Along with his subordinates proceeded to the spot. He prepared the injury statement Exh.P.C. And the inquest report Exh.P.D. He then secured the blood-stained earth vide memo. Exh.P.F. He also recorded the supplementary statements of the complainant. He took into possession the last-worn clothes of the deceased vide memo. Exh.P.E. He also arrested Khan Muhammad and Ejaz Hussain accused on 15-2-2001. On 21-2-2001 Khan Muhammad while in police custody got recovered Kalashnikov vide memo. Exh.P.J. On the same day. He also got recovered car No,9676-LHH vide memo. Exh.P.K. Vide recovery memo. Exh.P.L. Ejaz Hussain while in police custody got recovered repeater gun. Thereafter investigation of the instant case was transferred to Khan Amir S.-I. Who apprehended Ghulam Haider alias Pappu with .12 bore gun. Ultimately he prepared the challan and submitted for trial.
4. The prosecution in order to prove its case has produced as many as 13 witnesses including Doctor, I. Os., eyewitnesses and other relevant and formal witnesses. After tendering in evidence a report of Chemical Examiner Exh.P.N., a report of Forensic Science Laboratory Exh.P.Q. And report of Serologist Exh.P.R. Learned APP closed the prosecution evidence. Thereafter statements of the appellants were recorded under section 342, Cr.P.C. In which they pleaded their innocence. After taking into consideration the every aspect of the case and hearing the arguments advanced by the learned counsel for the parties, learned trial Court, convicted and sentenced the appellants as mentioned above. Hence this appeal.
5. Learned counsel for the appellants in support of this appeal submits that the complainant had changed his version before the learned trial Court which he had set up in the FIR., though they were known to the complainant much earlier to the occurrence, that in fact they were falsely implicated in this case and that none of the eye-witnesses was present at the spot. He submits that main accused Malik Surkhru in this case submitted an application under section 265-K, Cr.P.C. And the complainant himself conceded before the learned trial Court. Lastly he submits that the appellants have been made scape goats in this case and that it is a case of no evidence.
6. On the other hand learned State counsel submits that the prosecution has failed to prove its case against the appellants.
7. Learned counsel for the complainant who has also filed a revision petition submits that the F.I.R. Is not the substantive piece of evidence and the same was lodged to set the law in motion, that the supplementary statement of the complainant was recorded on the same day and the same is corroborated by the statement of Muhammad Ali the eyewitness. Mere relationship of the witnesses with the deceased is no criterion to discard their evidence, that there is no earthly reason to falsely implicate the appellants in this case by the eye-witnesses as the substitution is a rare phenomenan. He submits that both the appellants were armed with lethal weapons and that it was broad day-light occurrence. He supports the judgment of the learned trial Court.
8. I have heard the learned counsel for the parties and also have gone through the record available on the file. In the F.I.R. Which was lodged by the real brother of the deceased namely Sher Abbas complainant on the day of occurrence at 12-45 p.m. While the occurrence had taken place at 12 noon in the broadday-light, had named one Malik Surkhru as the main accused and two unknown persons. Before the learned trial Court Malik Surkhru made an application under section 265-K, Cr.P.C. For his acquittal on the ground of his innocence. The complainant Sher Abbas conceded that application before the learned trial Court and then Malik Surkhru was acquitted. The appellants were not named in the F.I.R., no identification parade was held in this case. The argument of the learned counsel for the complainant that the supplementary statement was made on the same day by the complainant has no legs to stand for the reasons that parties were known to each other, even according to the statement of the complainant Sher Abbas much prior to the occurrence. If this was the position then there was no hindrance in the way of the complainant for not disclosing the names of the present appellants, that two eye-witnesses namely Muhammad Nawaz and Atta Rasool are closely related to the complainant. Parties were also involved in Crl. Litigation like murders. As far as Ali Muhammad P.W. Is concerned he had appeared before the police according to his cross-examination and made a statement under section 161, Cr.P.C. Being an eye-witness after one year and two months, so no credibility is attached to his statement.
9. No independent P.W. Was either cited or produced by the prosecution to prove the case. As far as motive is concerned that was also totally changed before the learned trial Court. In the F.I.R.
Motive was attributed to Malik Surkhru while before the learned trial Court motive was attributed to both the appellants. Though the recoveries were effected from the appellants but it was useless because the report of the Fire-arms Expert was only that the fire arms were in working condition.
Even a new name i.e, Ghulam Haider alias Pappu was also introduced by the complainant who has been acquitted by the learned trial Court. From any angle it is a case which the prosecution has not proved against the appellants beyond any shadow of doubt.
10. For the reasons mentioned above, I am inclined to allow benefit of doubt to the present appellants so the appeal filed by them is accepted and both the appellants are acquitted. The appellants are on bail, they shall be discharged from their bail bonds. With these observations this appeal is accepted and the Criminal Revision is dismissed.