' ASIF SAEED KHAN KHOSA, J.---Mukhtar Ahmad appellant in Criminal Appeal No. 2215 of 2002 was convicted for an offence under section 319, P.P.C. Vide judgment, dated 25-11-2002 handed down by the learned Additional Sessions Judge, Sheikhupura and was sentenced to rigorous imprisonment for five years as Ta'zir and to pay a sum of Rs.2,91,000 as Diyat to the heirs of Fazal Elahi deceased or in default of payment thereof to remain in jail till realization of the amount of Diyat. The benefit under section 382-B, Cr.P.C. Was extended to him. Through the same judgment the learned trial Court had acquitted Muhammad Siddiq and Abdul Ghafoor accused. Mukhtar Ahmad appellant has challenged his conviction and sentence before this Court through Criminal Appeal No.2215 of 2002. Muhammad Ilyas complainant has preferred Criminal 'Revision No.1223 of 2002 before this Court seeking enhancement of the sentence passed against Mukhtar Ahmad appellant. Muhammad Ilyas complainant has also filed Criminal Appeal No. 2219 of 2002 before this Court seeking setting aside of the acquittal of Muhammad Siddiq and Abdul Ghafoor accused.
The said appeal had been dismissed by this Court on 6-3-2003 to the extent of Abdul Ghafoor accused whereas the same was admitted to regular hearing to the extent of Muhammad Siddiq accused who has been impleaded as respondent No.1 therein. We have heard all these matters together and we propose to decide the same together through the present consolidated judgment.
2. According to the allegations contained in F.I.R. No.92 lodged by Muhammad Ilyas complainant at Police Station Sadar, Farooqabad, District Sheikhupura on 27-3-2000 for offences under sections 302/324/34, P.P.C. Mukhtar Ahmad appellant and his acquitted co-accused namely Muhammad Siddiq and Abdul Ghafoor had committed the murder of the complainant's son namely Fazal Elahi and had caused an injury to Aqeel Ahmad (P.W.8) on 27-3-2000 at about 7-00 a.m. In the Baithak of one Muhammad Boota situated in Dera Kundan Singh within the area of Police Station Sadar, Farooqabad, District Sheikhupura. The role attributed to the accused persons in the F.I.R. Was that Mukhtar Ahmad appellant had caused a fire-arm injury on the right side of the chest of Fazal Elahi deceased, Muhammad Siddiq accused had caused of fire-arm injury on the right flank of Aqeel Ahmad (P.W.8) and Abdul Ghafoor accused had warded off the witnesses and had stopped them from intervening. The motive set up in the F.I.R. Was that some time prior to the present occurrence slight altercation had taken place between Mukhtar Ahmad appellant, etc. And Fazal Elahi deceased and it was to avenge the same that Fazal Elahi deceased had been done to death and Aqeel Ahmad (P.W.8) had been injured by the accused party. After registration of the F.I.R. Detailed investigation of the case had been undertaken by as many as three Investigating Officers but they had all concurred in their opinion that the injury allegedly sustained by Aqeel Ahmad (P.W.8) was a self-suffered injury and the fire-arm injuries received by Fazal Elahi deceased were an outcome of an accident when Mukthar Ahmad appellant and Fazal Elahi deceased were jointly trying to take a bullet out of a pistol wherein it had been stuck. After submission of the challan a full-dressed trial was held by the learned trial Court and ultimately the learned trial Court also reached the same conclusion as was arrived at by the Investigating Officers and, thus, Mukhtar Ahmad appellant was convicted and sentenced for an offence under section 319, P.P.C. And his two co-accused were acquitted of the charge. Hence, the present appeals and the connected revision petition before this Court.
3. We have heard the learned counsel for the parties at some length and have gone through the record of this case with their assistance.
4. After arguing the matter at some length the learned counsel fork Mukhtar Ahmad appellant in Criminal Appeal No.2215 of 2002 had stated that he does not press the said appeal and wishes to withdraw the same. Criminal appeal No.2215 of 2002 is, therefore, dismissed as having been withdrawn.
5. Through Criminal Revision No.1223 of 2002 Muhammad Ilyas complainant has sought enhancement of the sentence passed by the learned trial Court against Mukhtar Ahmad convict.
We have found the said revision petition to be misconceived inasmuch as Mukhtar Ahmad convict was convicted by the learned trial Court for an offence under section 319, P.P.C. After holding that the charge against him for an offence under section 302, P.P.C. Had not been established. The sentence passed by the learned trial Court against Mukhtar Ahmad convict was the maximum sentence that could have been passed for an offence under section 319, P.P.C. And, thus, there is no possibility of its enhancement by this Court any further. It may be pertinent to mention here that neither the State nor Muhammad Ilyas complainant has filed any appeal before this Court seeking setting aside of Mukhtar Ahmad convict's acquittal from the charge under section 302, P.P.C.
Criminal Revision No.1223 of 2002 is, therefore, dismissed.
6. As regards Criminal Appeal No.2219 of 2002 filed by Muhammad Ilyas complainant seeking setting aside of the acquittal of Muhammad Siddiq accused from the charge under section 324, P.P.C. We have straightaway observed that Muhammad Siddiq accused had not caused any injury to Fazal Elahi deceased and he had allegedly caused a fire-arm injury on the right flank of Aqeel Ahmad (P.W.8). The charge under section 302, P.P.C. Essentially pertained to Mukhtar Ahmad convict and he was acquitted of the said charge by the learned trial Court and his acquittal from the charge under section 302, P.P.C. Has not been challenged by the State or by the complainant and, thus, the question of vicarious liability of Muhammad Siddiq accused on the said charge under section 302, P.P.C. Has paled into irrelevance at this stage. As far as the charge under section 324, P.P.C. Pertaining to the injury sustained by Aqeel Ahmad (P.W.8) is concerned we have observed that the learned trial Court had undertaken an exhaustive analysis and assessment of the evidence available on the record and had found that Muhammad Siddiq accused had not caused the said injury to Aqeel Ahmad (P.W.8). In that regard the learned trial Court had found the claimed presence of the eyewitnesses at the place of occurrence to be doubtful. It had also been found by the learned trial Court that the medical evidence did not provide support to the ocular account. Aqeel Ahmad (P.W.8) had made his first statement before the Investigating Officer after a significant delay and the explanation advanced by him for such delay was that he had remained unconscious during the period. However, the medical evidence did not confirm his assertion regarding remaining unconscious during the said period. No motive had been alleged against Muhammad Siddiq accused and no weapon had been recovered from his possession during the investigation of this case. The finding of the learned trial Court regarding accidental receipt of injury by Fazal Elahi deceased at the hands of Mukhtar Ahmad convict has not been challenged by the State or the complainant before this Court as no appeal against the said convict's acquittal on the charge under section 302, P.P.C. Has been filed before this Court. In that backdrop the allegation regarding intentional firing by Muhammad Siddiq accused upon the person of Aqeel Ahmad (P.W.8) appears to be incompatible with the finding of accidental firing upon Fazal Elahi deceased recorded by the learned trial Court which finding has not been challenged by any party.
Apart from that in the circumstances of this case there was a real possibility that the bullet accidentally fired from the pistol of Mukhtar Ahmad convict could well have struck Aqeel Ahmad (P.W.8) after making an exit from the body of Fazal Elahi deceased. The post-mortem examination of Fazal Elahi deceased's dead body confirms the presence of an exit wound on the dead body of Fazal Elahi deceased. In these circumstances the conclusion arrived at by the learned trial Court regarding the prosecution's case against Muhammad Siddiq accused being not free from doubt has appeared to us to be a conclusion which was neither arbitrary nor perverse. Apart from that the occurrence in this case had taken place in the year, 2000 and Muhammad Siddiq accused had earned his acquittal on the merits of the case in the year, 2002. About a year and eight months have already gone by since recording of the said acquittal. In view of the above mentioned peculiarities of this case regarding Muhammad Siddiq accused we have not felt persuaded to interfere with his acquittal recorded by the learned trial Court and Criminal Appeal No. 2219 of 2002 is, therefore, dismissed. The bail bond and surety of Muhammad Siddiq accused shall stand discharged.