1. ' BASHIR A. MUJAHID, J.---Muhammad Nazir appellant has challenged judgment, dated 14-3-2002 passed by the learned Additional Sessions Judge, Bhalwal whereby he was convicted under section 302/34, P.P.C. For murder of Zulfiqar and sentenced to imprisonment for life. He was also ordered to pay compensation of Rs,50,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. In default thereof to further undergo six months' S.I. With benefit of section 382-B," Cr. P . C .
2. ' Through the same judgment Muhammad Sibtain, Sardar Bakhsh and Raja were acquitted of the charge.
3. ' The brief facts of the case are that F.I.R. No,316 under sections 302/34/109 was got registered at P.S. Bhalwal at the instance of Ghulam Hussain, P.W.9 alleging therein that on the day of occurrence i.e, 5-8-2000 at 6 p.m. He along with Zulfiqar son of Muhammad Sattar, P.W.8 and Muhammad Amir son of Karam Ali were going to the Khokha of Barhana Kasab. When they reached near the house of Nazir Jaspal, the present appellant along with co-accused Mazhar Iqbal (P.O.) came from behind riding motorcycle. Muhammad Nazir, appellant was driving the motorcycle while Mazhar Iqbal was sitting on the rear seat who was armed with .12 bore gun double barrel. Zulfiqar, real brother of the complainant was sitting on a cot in front of Khokha of Barhana Butcher. He was fired at by Mazhar Iqbal from his gun .12 bore hitting on his left eye. The P.Ws. Took care of him but he was found succumbed to the injuries at the spot. The accused fled away from the spot on motorcycle toward west.
4. ' On 18-7-2000 Muhammad Bakhsh son of Lala, Muhammad Hayat son of Atta Muhammad residents of Mitha Tiwana were purchasing cigarettes from Khokha at Chowk Old Bhalwal when accused Muhammad Sibtain, Sardar Bakhsh and Raja residents of Nabi Shah were hatching conspiracy standing near the Khokha and saying Mazhar Iqbal (P.O.) to murder Zulfiqar Ali and they would manage the situation.
5. ' The motive for the occurrence was previous enmity between the complainant and Sibtain. Sibtain and other accused were afraid of complainant's brother Zulfiqar deceased.
6. ' After registration of the case Dost Muhammad, S-I. P.W.11 arrived at the spot and took the dead body of Zulfiqar Ali deceased and prepared the injuries statement through memo. Exh.P.E. And inquest report Exh.P.F. And dispatched the dead body for post-mortem examination. He took into possession blood stained cot through memo. Exh.P.K. And recorded the statements of the P. Ws.
7. Under section 161, Cr.P.C. On 6-8-2000 he also took into possession last worn clothes of the deceased produced before him. Muhammad Nazir, appellant was arrested by him on 13-9-2000 who led to the recovery of motorcycle No,1318/SGC P.5 which was taken into possession through memo. Exh.P.C. He arrested Muhammad Sibtain on 13-9-2000 and Sardar and Raja on 7-9-2000. He obtained warrants of Mazhar Iqbal and after due formalities got him declared as proclaimed offender. After completion of the investigation challan against the accused was submitted. The trial Court framed the charge which was denied by the accused and they claimed trial.
8. ' During the trial the prosecution examined as many as 11 witnesses to prove the guilt of the accused.
9. ' The medical evidence was furnished by Dr. Nasar Iqbal, P.W.5 who on 5-8-2000 at 10 p.m. Found the following injuries on the dead body of Zulfiqar Ali:---
(1) A fire-arm wound extending from left side of the forehead, 2 c.m. Above the left eye brow upto occipital region (about 12 c.m. In length and 5 c.m. In width) underlying bone along with the skin, muscle and scalp were found damaged. Edges of the interior part of the wound were rugged. Brain matters were coming out of the wound.
(2) A fire-arm wound of entry 1 x 1-1/2 c.m. With inverted margins on the medial side of the left eye probe coming through injury No,2 into injury No,l. No blackening was present.
(3) A fire-arm wound of entry 1 x 1-1/2 c.m. Into the left eye with inverted margins, no blackening was present. Left eye was damaged. Probe passes through injury No,3 into injury No,l.
(4) An injury of fire-arm wound of entry 1 x 2 c.m. With everted margins on the left side of face 2 c.m.
10. Lateral to the lateral end of left eye underlying bone was found damaged and probe passes through injury No,4 into injury No,l.
11. ' The ocular account was furnished by Ghulam Hussain P.W.9 who is complainant of the case. He supported the version of the F.I.R. And narrated the motive for the occurrence. Zulfiqar son of Muhammad Sattar was examined as P.W.B. He was eye-witness of occurrence. He supported the prosecution story as narrated by the complainant. Muhammad Bakhsh, P.W.7 was witness of abetment between Muhammad Sibtain, Sardar Bakhsh and Raja Ghulam Hussain, FC P.W.1 produced the last worn clothes of the deceased before the I.
0. Muhammad Khan, P. W.2 identified the dead body of Zulfiqar deceased at the time of post- mortem examination. Faiz Muhammad Patwari, P.W.3 prepared the site plan of the place of occurrence. The remaining witnesses are of formal in nature and need not be discussed.
12. ' The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.P.Q. And that of Serologist Exh. P.R.
13. ' The trial culminated into conviction and sentence of the appellant, as mentioned above. Hence this appeal.
14. ' Learned counsel for the appellant has argued that both the witnesses are not residents of the locality where the occurrence took place and they are, therefore, chance witnesses. It is further argued that Zulfiqar P.W.8 at the very first instance of his cross-examination admitted that he did not know Muhammad Nazir, appellant before the said occurrence, but Muhammad Nazir, appellant was not put to the identification parade and without identification parade it was not possible for Zulfiqar, P.W.8 to identify the accused. It is further argued that injury is of only one fire shot which is attributed to the co-accused Mazhar Iqbal and as per prosecution story the appellant was driving the motorcycle but no number of motorcycle has been given either in the F.I.R. Or in the statements of the P.Ws. Recorded under section 161, Cr.P.C. The motorcycle is also not registered in the name of appellant, therefore, recovery of the motorcycle has been planted. Even if the recovery is proved correct, it will not connect the motorcycle having been used in commission of the instant crime by the appellant. The motive is also not against the appellant rather it was against Sibtain and others.
15. Both the eye-witnesses have been disbelieved to the extent of acquitted co-accused, therefore, it is not safe to maintain the conviction of the appellant on the same evidence.
16. ' The appeal has been opposed by learned counsel for the State who has supported the impugned judgment.
17. ' I have heard the learned counsel for the parties and examined the record.
18. ' Admittedly, Zulfiqar Ali, P.W.8 is not resident of the locality and he had come from Sultanpur which is 15 miles from the place of occurrence and he also did not know Muhammad Nazir, appellant before the said occurrence. According to his statement, on his inquiry, he was informed by the complainant Ghulam Hussain that the person who was driving the motorcycle was Muhammad Nazir son of Muhammad Khan and sitting at the back seat was Mazhar Iqbal and the appellant was not identified by Zulfiqar Ali, P.W.8 even in the Court did not point out that he was the person who was driving the motorcycle. It is also admitted fact that the appellant was not put to the identification parade and mere disclosure of name of the accused driving the motorcycle along with his proclaimed offender accused who fired at the deceased as Muhammad Nazir son of Muhammad Khan does not connect the appellant with the commission of crime and it cannot be considered that Zulfiqar Ali, P.W.8 had identified the accused/appellant. The enmity between the complainant and the appellant and his relatives is also admitted as the same is the motive of the occurrence, therefore, testimony of the complainant who can be termed as interested witness is not corroborated from any independent source, cannot be taken into consideration to maintain the conviction of the appellant. The motorcycle allegedly recovered from his possession does not connect it with the commission of crime as no registration number was mentioned in the F.I.R. And the motorcycle is also not registered in the name of the appellant, therefore, it is also of no help to the prosecution that the motorcycle recovered from his possession was the same which was used by the accused in commission of crime: He has also not been attributed any injury and role of the appellant is only that he escorted his co-accused, therefore, whether he shared common intention with his co-accused who is proclaimed offender and fired at the deceased or not also creates doubt in the prosecution story. Keeping in view the circumstances of the case, I find that the prosecution case has not been established against the appellant beyond shadow of doubt and on the basis of same evidence co-accused Muhammad Sibtain, Sardar Bakhsh and Raja have already been acquitted by the trial Court, therefore, extending the benefit of doubt in his favour also, the appeal is allowed. The conviction and sentence of the appellant is set aside and he is acquitted of the charge. He is ordered to be released forthwith if not required to be detained in any other case.