' BASHIR A. MUJAHID, J.---Muhammad Islam has challenged judgment dated 10-2-1999 passed by learned Additional Sessions Judge, Bhalwal whereby he was convicted under section 302(b), P.P.C for murder of Muhammad Hafeez and was sentenced to imprisonment for life and was also ordered to pay compensation of Rs,30,000 to the legal heirs of deceased under section 544-A, Cr.P.C. Or in default to further undergo six months' S.-I. Through the same judgment Muhammad Iqbal co-accused was acquitted.
2. Brief facts of the case F.I.R. No,161 dated 5-6-1993 under section 302, 34, P.P.C., Police Station Bhalwal District Sargodha on the statement of Muhammad Afzal P.W.4 are that Muhammad Hanif who was running a grocery shop in the village after closing the same was going to his house and when he reached in the Chowk, he witnessed the accused person Muhammad Islam and Muhammad Iqbal armed with rifles with an unknown person, empty-handed, going towards "Chhappar" of Jinda where Muhammad Hafeez father of the complainant was sitting. Muhammad Islam appellant fired at Muhammad Hafeez hitting on his right thigh. The accused fled away from the spot. The complainant went to Ada Moggian to hire a vehicle which was not available on which he returned to the place of occurrence and found his father dead. The occurrence was also witnessed by Shams-ud-Din, Abdul Ghafoor and Khalil-ur-Rehman.
2A. Motive for the occurrence is that previous local bodies elections were contested between Muhammad Hafeez and uncle of Muhammad Islam which were won by the former Muhammad Hafeez.
3. Nazar Muhammad S.-I. P.W 9 received the written report Exh.P.B. From the complainant Muhammad Afzal at the spot where he had arrived after receiving information of the occurrence and sent the same to the Police Station for registration of formal F.I.R. With his endorsement and himself undertook the investigation and prepared the injury statement of Muhammad Ha,feez Exh.
P. G., inquest report Exh.P.H. And dispatched the dead body for post-mortem examination. He also took into possession blood-stained earth from the spot vide memo. Exh.P.C. Thereafter investigation was taken over by Abdul Hakeem Inspector/S.H.O., who took into possession 7-MM rifle produced by Muhammad Iqbal accused on 8-6-1993 licensed gun was produced by Muhammad Sharif which was taken into possession vide memo. Exh.P.J. He arrested the appellant, who while in police custody led to the recovery of rifle. Nazar Muhammad was also examined as C.W.3 and he proved the investigation conducted by Abdul Hakeem, Inspector, who had already died and he proved the memos. Of recovery prepared by Abdul Hakeem deceased Inspector. Who after completion of investigation submitted challan under section 173, Cr.P.C. Against the appellant and co-accused.
4. The trial Court framed the charge which was denied by the accused and they claimed trial.
5. During the trial the prosecution examined as many as ten witnesses to, prove the guilt of the accused.
6. The medical evidence was furnished by P.W.9 Dr. Riaz Ahmad, who on 6-6-1993 conducted the post-mortem examination on the dead body of Muhammad Hafeez and found the following injuries on his person:--
(1) A lacerated wound with inverted edges and blackening 9 c.m. x 5 c.m. Going deep x tissues on inner side and back of right knee and lower part of back of right thigh (wound of entry).
(2) A lacerated wound 3 c.m. x 2 c.m. Deep tissue with averted edges on front and outer side of right thigh, middle part (wound of exit).
7. Ocular account was furnished by Muhammad Afzal P.W.4 and Abdul Ghafoor P.W.5, both of them narrated the story of F.I.R. And supported the prosecution version. They also attested recovery memos. Of article which were taken into possession vide memos. Abdul Ghafoor P.W.5 is real brother while complainant is son of Muhammad Hafeez deceased.
8. Muhammad Saleem P.W.1 prepared the site-plan. Muhammad Azam, P. W .2 drafted the formal F.I.R. Exh.P.B./1 on the basis of complaint Exh P.B. Muhammad Nazir P. W.3 delivered the sealed parcels containing blood-stained earth in the office of Chemical Examiner. Muhammad Saghir P.W.6 had identified the dead body at the time of post-mortem examination. Muhammad Ashraf P.W.7 was as shop keeper and he produced rifle 7-MM P.1 licensed rifle of Muhammad Islam which was deposited by the appellant on 5-5-2003 along with its licence for repair which was taken into possession by Abdul Hakeem vide memo. Exh.P.E. Which was attested by Muhammad Ashraf.
Mukhtar Ahmad P.W.10 had escorted the dead body for post-mortem examination. The other P. Ws.
Are of formal nature, need not to be discussed. Prosecution evidence was closed by tendering in evidence the report of Serologist Exh.P.P. And that of Chemical Examiner Exh. P.Q
9. After closing the prosecution evidence statements of the accused were recorded under section 342, Cr.P.C. They denied the allegations and claimed their innocent and false involvement. The appellant in reply to question as to why the case against him and the P.Ws. Deposed against him, stated as under:-- ' "The P.Ws. Have made false statements. In fact, Muhammad Hafeez deceased had enmity with one Muhammad Nawaz of village Khawajianwala Police Station Kunjah, District Gujrat and it was actually Muhammad Nawaz above-said who had murdered Muhammad Hafeez deceased. The said Muhammad Nawaz was murdered on the same day by the complainant party. I have been falsely implicated in this case, as the complainant party wanted to save his skin in the murder case of Muhammad Nawaz above-said."
10. The trial culminated into conviction of the appellant as mentioned above. He has challenged his conviction and sentence through the instant appeal. Complainant has also filed Criminal Revision No,141 of 1999 for enhancement of sentence. Both the matters are outcome of one and the same judgment, so, they are being dealt with/ disposed of vide this judgment.
11. Learned counsel for the appellant at the very outset has argued that complainant has mentioned that the appellant was armed with rifle through which he caused fatal fire-shot at the deceased but from the medical evidence it appears that the injury was caused by gun, as three pellets were recovered from the body of deceased, therefore, there was material contradiction between the ocular account and medical evidence which shows that complainant had not seen the occurrence. He further adds that enmity between the parties is admitted and both the eye- witnesses Muhammad Afzal P.W.4 and Abdul Ghafoor P.W.5 are closely related inter se and to the deceased. Their testimony has not been corroborated from any other independent source. He has further argued that as per statement of Nazar Muhammad S.-I., who investigated the case, he found that it was Muhammad Nawaz accused, who fired at the deceased with gun which he brought from the house of Muhammad Sharif and Muhammad Hafeez was immediately murdered on the same day and house of Muhammad Sharif was also put on fire by the complainant party as Muhammad Sharif had provided gun to Muhammad Nawaz and the appellant has been falsely implicated. Lastly, it is argued that on the same set of evidence Muhammad Iqbal co-accused has been acquitted, therefore, case against the appellant is doubtful.
12. Conversely, learned counsel for the State has opposed the appeal and supported the impugned judgment. Learned counsel for the complainant has also pressed his revision petition.
13. Heard. Record perused.
14. Although the appellant was nominated accused with specific role in promptly recorded F.I.R., but it appears that written statement was received by Nazar Muhammad S.-I. P.W.9 when he arrived at the spot and in statement Exh. P.B. Muhammad Afzal clearly mentioned that appellant was armed with rifle and caused fatal shot on his father Muhammad Hafeez but according to post- mortem examination, the fatal shot was caused by gun as three pellets were recovered from the body of deceased and Muhammad Afzal while examined as P.W.4 made dishonest improvement by stating that deceased was hit by gun by the appellant. According to the complainant Muhammad Din cobbler repairs shoes under the "Chhappar" where the occurrence took place. He was also examined by the first Investigating Officer Nazar Muhammad S.-I./P.W.9 who stated that Muhammad Din had also informed the Investigating Officer that fire made by Muhammad Nawaz hit the deceased. Said Muhammad Din was natural witness and has not been examined by the prosecution and the best evidence with him has been withheld. Both the eye-witnesses i.e, complainant and Abdul Ghafoor P.W.5 are admittedly inimical and interested and their testimony B has not been corroborated from any other independent source and for safer administration, I find that the case against the appellant has not been proved beyond shadow of doubt, so, by extending benefit of doubt in favour of the appellant, the appeal is accepted, conviction and sentence recorded by the learned A.S.J., Bhalwal is set aside and he is acquitted of the charge and it is ordered that the appellant be released forthwith, if not required to be detained in any other case.
15. Criminal Revision No,141 of 1999 is dismissed, being devoid of force for the above-said reasons.