' KHAWAJA MUHAMMAD SHARIF J.---This judgment will dispose of Cr1. Appeal No,1013 of 2002 directed against the judgment, dated 13-5-2002 passed by learned Additional Sessions Judge, Gujranwala, whereby he convicted the appellants under sections 302(b)/149, P.P.C. And sentenced them to undergo life imprisonment with further direction to pay Rs,1,00,000 each as compensation to the legal heirs of the deceased or in default six -Months' S.I. Under section 148, P.P.C. They were sentenced three years' R.I. Each and under sections 324/149, P.P.C., all the appellants were sentenced to undergo 10 years' R.I. Each with fine of Rs,10,000 each or in default one year S.I. Each.
2. Brief facts as narrated in the F.I.R. By the complainant Mansoor Azeem-urRehman, are that on the day of occurrence i.e, 9-3-2001 at about 8/9 p.m., he hired the taxi car for going to Sheikhupura and Sarfraz Ahmad came along with the taxi car. As soon as the complainant along with his brother Imran Abbas moved into taxi car and Sarfraz Ahmad started to take the meal while sitting on the rear seat of the car when Khaiid armed with .44 bore, Muhammad Iqbal armed with .12 bore gun, Imran armed with .8 mm, Ajmal armed with .7 mm, Muhammad Ishaq armed with rifle .303, Sabir Hussain armed with .44 bore and Muhammad Abbas armed with .7 mm appeared and started firing with their respective weapons at the complainant party hitting left side of the head, cheek and neck of Sarfraz Ahmad who seriously injured and the car damaged totally by the firing.
All the accused fled away from the spot. Sarfraz Ahmad succumbed to the injuries on the way to the hospital near village Ajnianwala. The motive behind the present occurrence was that the complainant had enmity with accused Muhammad Ishaq in view of the previous murder case.
3. After receiving information about the occurrence the local police completed all the necessary formalities and then Muhammad Azam S.-I./S.H.O. Along with his subordinates proceeded to the spot. He prepared injury statement Exh.P.G. Inquest report Exh.P.H. He also secured blood stained earth from the spot vide memo. Exh.P.K. Last worn clothes were also received by him vide memo.
Exh.P.A. Only Muhammad Zareef accused appeared before him but on the statement of complainant he was declared innocent. Thereafter the investigation of the case was transferred to Shehbaz Ahmad S.-I. On 15-8-2001 he arrested Muhammad Ishaq, Imran Ali and Ajmal Abbas. On 26-8-2001 Imran Abbas got recovered double barrel .12 bore gun vide memo. Exh.P.C. Ultimately all the above said accused were challaned while Khalid, Muhammad Iqbal, Sabir Hussain and Muhammad Abbas were declared P.Os.
4. The prosecution in order to prove its case has produced as many as 11 witnesses including doctor, I.Os. Eyewitnesses and other formal witnesses. After tendering in evidence the report of Chemical Examiner, Exh.P.M. And report of Serologist Exh.P.N., the learned ADA closed the prosecution evidence. Thereafter statements of the accused/appellants 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 both the parties convicted and sentenced the appellants as mentioned above. Hence this appeal.
5. In total, eight accused were named in the F.I.R. One Zareef who was an accused of abetment was acquitted by the learned trial Court while Muhammad Iqbal, Khalid, Sabir Hussain and Muhammad Abbas accused are still absconders. The case of remaining three accused, who are appellants in this case, is being heard by this Court.
6. Learned counsel for the appellants in support of this appeal submits that the eye witnesses produced by the prosecution are inimical towards the appellants and also related inter se, that no independent witness has been produced in this case by the prosecution, that motive, if any, is against the complainant and not against Sarfraz deceased who was a taxi car driver but the complainant did not receive a single scratch on his body. He submits that in order to rely upon the statements of inimical witnesses a very strong and independent corroboration is required which is not available on the record. No crime empty was recoverable from the spot, even the car in which the deceased was alleged to have been murdered was not taken into possession. Learned counsel submits that the doctor who conducted the post-mortem examination had stated that the deceased had taken his meal six hours before the occurrence but according to the complainant the deceased was taking meal at the time of occurrence. No utensils or food was taken into possession by the police. Learned counsel submits that in fact it is a case of one injury but seven persons have been involved in this case, that the appellants never absconded though their four co-accused are still P.O. Ishaq appellant along with his two sons Muhammad Ajmal Abbas and Muhammad Imran appellants, himself appeared before the police voluntarily, that it was a night occurrence and that the identification of the accused was not possible. He submits that all the appellants are entitled to acquittal and except complainant no other eyewitness has appeared to support the prosecution case.
7. On the other hand learned State counsel submits that P.W. 9 Mansoor Azeem-ur-Rehman is a natural witness. He submits that it is a case of promptly lodged F.I.R., that all the accused were mentioned in the F.I.R. With specific role, that all the accused have been found guilty by the police and also by the learned trial Court. He submits that already a lenient view has been taken by the learned trial Court for the reason that it was not clear that with whose shot the deceased has met his death. He submits that Imran Abbas has not appeared as P.W. Because he was murdered while Zaheer Abbas P.W. Was given up.
8. I have heard the learned counsel for the parties. The occurrence in this case had taken place on 9-3-2001 at 8/9 p.m. And the matter was reported to the police at 11-30 (mid night) on 10-3-2001 although distance between the place of occurrence and P.S was 8 miles. Matter was reported to the police through a written complaint. Three eye-witnesses were mentioned in the F.I.R., i.e, complainant himself, Imran Abbas and Zaheer Abbas. Imran Abbas has been murdered and this fact has not been denied by the learned counsel for appellants while Zaheer Abbas was given up by the prosecution. During the cross-examination of Mansoor Aziz-ur-Rehman complainant it has come on record that son of Ishaq appellant was murdered and in that murder case complainant along with his brother Adnan Abbas, father Walayat, Riaz Ahmad his real uncle and Riasat Ali his cousin were accused in that murder case and that was pending for adjudication. Appellant Ishaq had also got a case registered against the complainant and his brothers Imran Abbas and Adnan Abbas along with other accused persons and that case is still pending adjudication. In all 7 accused were named in the F.I.R. Who were armed with sophisticated weapons but there are only two fire-arm injuries on the person of the deceased i.e, injuries Nos.l and 2. No crime empty was recovered from the spot. It was stated by the complainant that the car was destroyed completely but the said car was not taken into possession by the police. According to the complainant while making his statement before the learned trial Court, he has stated that fire was shot from behind the car but the doctor who conducted the post-mortem examination on the dead body of the deceased has stated during his cross- examination that fire was shot from the left side of the deceased which is totally in conflict with the ocular account. Doctor had also stated that the deceased had digested his food and he had taken his meal six hours prior to the occurrence but according to the complainant deceased was taking meal and he had taken only three Luqmas
(JlJ) ) when this occurrence took place. The target of the appellant party should have been the complainant or his witnesses who were closely related to him and were present at the spot but none of them received a single scratch on their bodies. Complainant is resident of a village which is situated 3 miles away from the place of occurrence while the occurrence took place in a thickly populated area but not a single witness was cited or produced from that place by the prosecution in this case, although, in the F.I.R. it was stated that occurrence had taken place in the light of electric bulbs but neither in the rough site plan nor site plan prepared by Patwari Halqa any electric bulb was shown at the spot. It was also the case of the prosecution that F.I.R. Was registered at the P.S. And thereafter the I.O. Came at the spot, prepared the inquest report. If this was the position then he should have mentioned the number of the F.I.R. In the brief facts of the inquest report Exh.P.H. Even in column No,3 of the inquest report, date 10-3-2001 has been altered into 9-3-2001 and time of information received by the I.O. Has been mentioned as 9 p.m., although, he received the information at 12-30 (mid-night) on 10-3-2001. Except the complainant no other eye-witness was produced by the prosecution. Although, Imran Abbas was murdered but Zaheer Abbas the first cousin of the complainant could have been produced by the prosecution. There is emnity of murder cases between the parties. In such like cases independent corroboration is very necessary as a rule of prudence but there is no independent corroboration in the instant case. In view of the above circumstances, I am of the opinion that participation of the appellants in the instant case is doubtful, so while granting benefit of doubt to the appellants, I accept this appeal and set aside their conviction and sentence awarded to them by the learned trial Court. They shall be released forthwith if they are not required in any other case.
9. Any observation made in this judgment shall not prejudice the case of either party as and when the above said absconders will be arrested and tried by the learned trial Court.