' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.1465 of 2002 filed by Nawaz and others Criminal Appeal No.1470 of 2002 filed by Zulifqar and Criminal Revision No. 810 filed by Dosa the complainant directed against the judgment, dated 27-6-2002 passed by the learned Additional Sessions Judge, Jhang whereby he convicted the appellants under section 302(b), P.P.C. And sentenced them to undergo life imprisonment with fine of Rs.20,000 each or in default one year's S.-I. They were also directed to pay Rs.1,00,000 each as compensation under section 544-A, Cr.P.C. Or in default thereof one year S.-I. Benefit of section 382-B, Cr.P.C. Was also granted to them.
2. Brief facts as narrated in the F.I.R. By the complainant are that on 18-5-2001 he along with Muhammad Anwar and Azmat P.Ws. Was present at his Dhari at 6-30 p.m. At that time Mst. Perojan wife of Maja was also present nearby, busy in some work. Maja brother of the complainant was also present in Square No.88, Killa No.12 at some distance when Nawaz, Mumtaz and Zulfiqar accused/appellants all armed with .12 bore guns came there raising lalkara that Maja would not be spared and that he should done to death. At the same time accused Nawaz fired a shot with his .12 bore gun at Maja hitting him underneath his left ear. The shot fired by accused Zulfiqar hit him on his head whereas accused Mumtaz fired a shot with his .12 bore gun and the same hit him on different places on his back. Nawaz appellant again fired a shot, which hit Maja on his back at different places. As a result of the gun shots he fell down on the ground. The complainant raised alarm on which P.Ws. Reached at the spot. Gulzar P.W. And Mst. Nooran Bibi who tried to save Maja injured but at this Nawaz fired a straight shot at them hitting Gulzar P.W. On his head. The accused Zulfiqar also fired at Gulzar with his .12 bore gun hitting him on his right hand. The shot fired by accused Mumtaz attracted a number of men and women from the vicinity, the accused decamped from the place of occurrence brandishing their respective weapons of offences. The motive behind this occurrence was that 7/8 days prior to the occurrence Nawaz had taken a Thela for keeping cartridges from the deceased and when it was demanded back there was an altercation between them on which later on the present incident took place.
3. After getting information about the occurrence the local police completed all the necessary formalities and thereafter Pervaiz Iqbal S.-I. (retired) along with his subordinates proceeded to the spot. He prepared injury statement Exh.PC and inquest reports (Exh.P.D. Last-worn clothes of the deceased were also received by him on the same day. He arrested Nawaz appellant and during interrogation he got recovered gun .12 bore vide memo. Exh.P.J. Thereafter investigation of the instant case was transferred to Muhammad Aslam S.-I. Who arrested Zulfiqar and Mumtaz and during remand on 8-7-2001 Zulfiqar appellant while in police custody got recovered rifle P.5 vide memo. Exh.P.K. Ultimately the challan of the case was prepared and was submitted for trial.
4. The prosecution in order to prove its case has produced as many as 12 witnesses including Doctor, Investigating Officers, eye-witnesses and other formal and relevant witnesses. After tendering in evidence the report of Chemical Examiner Exh.PN and that of Serologist Exh.P.O.
Learned SPP closed the prosecution evidence. Thereafter the 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 evidence produced by both the parties and other record and hearing the arguments advanced by both the parties, convicted and sentenced the appellants as mentioned above. Hence this appeal.
5. Learned counsel for Mumtaz and Nawaz appellants in support of their appeal submits that the motive as described in the F.I.R. Is flimsy one and on that motive this occurrence could not have taken place. Even the trial Court has disbelieved the said motive. In fact it is a case of false implication. He submits that the P.Ws. Are related with the deceased and inter se. He submits that according to the F.I.R. The occurrence had taken place in Square No.88 and Killa No.12 but in site plan Exh.PF the place of occurrence is Killa No.16 and Square No.87 and this has been done intentionally by the complainant party, that in this context a confrontation was also brought on record by the learned defence counsel before the learned trial Court. Learned counsel for the appellants submits that occurrence had not taken place at 6-30 p.m. But in the dark hours of night and it was unwitnessed one and that the complaint was recorded at 11-00 p.m. While the formal F.I.R. Was lodged at 1-55 p.m. Learned counsel submits that there are two routes while going from the place of occurrence to Police Station Chenab Nagar and this distance cannot be covered on foot, learned counsel submits that P. W.11 the Investigating Officer has also admitted this fact that there were two routes leading to Chenab Nagar Police Station from the place of occurrence. He submits that Gulzar P.W. Was medically examined at 6 a.m. On the next day through police.
Learned counsel submits that statement of the police official was that when they reached at the spot both the injured were not there. Learned counsel submits that statement of Gulzar injured P.W.
Was not recorded by the police and according to him he remained unconscious for one month and 18 days. Learned counsel submits that according to the statement of Syed Abid Hussain Sherazi Draftsman P.W.6 the distance between the point 3 and. Point 4 is 208 feet while point No.1 is at a distance of 176 feet from point No.3. Learned counsel submits that point No.4 is a place from where the fire was shot. Lastly he submits that the prosecution has failed to prove its case and that the appellants are entitled to acquittal.
6. Learned counsel for the appellant Zulfiqar submits that Zulfiqar has no relationship with his co- accused nor he had any enmity whatsoever with the deceased. Even no gun was recovered from him but rifle was recovered from him. He submits that prosecution has miserably failed to prove the case against Zulfiqar appellant.
7. Learned counsel for the State on the other hand submits that no doubt motive has been disbelived by the learned trial Court and the recoveries from the appellants are of no avail to the prosecution as no crime empty was recovered from the spot, yet the conviction can be maintained on the basis of ocular account having come from an unimpeachable source. Learned State counsel has relied upon PLD 2004 SC page 371 titled as Aamal Shereen and another v. The State and has read before this Court headnote (c) of this judgment. Learned State counsel submits that there is not a single instance which can prove that the appellants have been falsely implicated in this case by the P. Ws. Learned State counsel submits that it is not in evidence that at what distance Chhanni Khewa is situated from the place of occurrence where the complaint was recorded by the Investigating Officer and also from the Police Station. According to the statement of P.W.7 complainant Chhanni Khewa was at a distance of 10/12 miles away from the place of occurrence. Learned counsel submits that manner of occurrence has been admitted by the appellant Muhammad Nawaz himself while replying question No.8 in his statement recorded under section 342, Cr.P.C. Learned counsel submits that there is no hindrance between the place of occurrence and the place from where the fire was shot. Learned counsel submits that the injured eye-witness and the complainant are the most natural witnesses because they are residents of the place of occurrence. Learned counsel submits that the contention of the learned counsel for the appellant that statement of Gulzar injured P.W. Was not recorded, is totally incorrect because learned defence counsel during trial has brought on record Exh.D.B.. While confronting the same.
Learned counsel submits that time of conducting postmortem examination also substantiate the time of occurrence. Learned counsel also submits that circumstances of the instant case also prove the place of occurrence and the time of occurrence.
' Learned counsel for the complainant who has also filed a Criminal Revision, submits that this is a case in which notice of enhancement of sentence should be issued to the appellants. He submits that on the one hand learned trial Court has believed the ocular account, medical evidence and the motive but in the last paragraph while disbelieving the motive has awarded life imprisonment.
8A. I have heard the learned counsel for the parties and also have gone through the record available on the file. First of all I would give relation between the accused Nawaz and Mumtaz who are real brothers inter se; Zulfiqar is not related to them. The motive if any, was with Nawaz. Zulfiqar had no concern with it, no recovery of .12 bore gun has been effected from Zulfiqar, only rifle was recovered from him. He was also not connected with motive so while granting benefit of doubt and as an abdundant caution I accept the appeal filed by Zulfiqar appellant and equity him of the charge. He shall be released forthwith if he is not required in any other case.
9. As far as Nawaz and Mumtaz appellants are concerned they had been attributed injuries on the person of the deceased and Gulzar and Mst. Nooran Bibi injured. Mst. Nooran Bibi has not been produced before the learned trial Court but Gulzar P.W. Has appeared. Fire has been shot from a far of distance and this is the reason that the pellets have spread and there are so many injuries on the person of the deceased not only on his face but also on his head and same position is with Gulzar injured P.W. There is no enmity whatsoever between the appellants and the P.Ws. There are three P.Ws. In this case, one of them is Gulzar injured. He is the star witness of the prosecution.
Parties reside adjacent to each other. There was no question of mistaken identity. The occurrence had taken place on 18-5-2001 at 6-30 p.m. While Maghrab prayer in those days used.To take place at 7/7-5 p.m. So it was case of broad day light occurrence. Ocular account is fully corroborated by medical evidence even the time of medico-legal report and that of postmortem examination also coincide with the time of occurrence. Police Station was at a far off distance from the place of occurrence. It has come on record that Police Station was 10 to 12 miles from the place of occurrence. The complainant went on foot to lodge the F.I.R. To Police Station Chenab Nagar, the Investigating Offider met him at Chhanni Khewa at 11 p.m. So his complaint was recorded and formal F.I.R. Was recorded at 11-55 p.m. One can say that it was a case of promptly lodged F.I.R. I would like to reproduce the answer to question No.8 of Nawaz appellant given during his statement recorded under section 342, Cr.P.C.
"I am innocent. In fact Talib Hussain son of Mamma had illicit relations with Mst. Shahnaz sister of Gulzar and he was 'forced to leave his house and land by the complainant party. Talib Hussain had also good relations with us. Our house is situated on the southern side of Sq. No.87 killa No. 17, from which side the alleged firing was made. It was night occurrence due to darkness and due to the direction of the fire the complainant party due to suspicion and our good relations with Talib Hussain involved me and my co-accused in the false case and saved Talib Hussain their close relative. In fact Talib Hussain and Gulzar being inimical towards each other had a cross-firing after sunset time and this is why Nooran and Gulzar who remained conscious did not support the case of the prosecution and did not get their statements recorded earlier but later on the pressure of the complainant and his brotherhood, they deposed against us and due to this reason Talib Hussain and his father Mamma dismentalled their house and disposed of their land after the occurrence Which was situated near the place of occurrence."
' The perusal of the above said answer would show that according to him the complainant party while leaving the actual culprit Talib Hussain has implicated the present appellants. I do not believe the same that why the complainant party would leave the real culprit Talib Hussain and would involve present appellants. They could have involved them along with Talib Hussain if they had any bad intention in the instant case. The motive has been disbelived by the learned trial Court for the reason that when complainant was cross-examined by the learned defence counsel, he had admitted that he was not present at the time when the bag was handed over to Nawaz by the deceased, neither he had given the name of any person who had seen this transaction even no witness has been produced by the prosecution to prove the altercation which had taken place between Nawaz and the deceased on this point so the learned trial Court was right in disbelieving the motive. As far as recoveries are concerned, no crime empty was recovered from the spot so the recovery is of no consequence. Learned counsel for the State was right in submitting before this Court that conviction can be made even on the solitary statement of an independent witness whose statements rings true or has come from an unimpeachable source having its intrinsic value.
Keeping in view the above circumstances, I am of the considered view that the prosecution has proved its case against Nawaz and Mumtaz appellants beyond any shadow of doubt so conviction awarded to these two appellants is maintained and their appeal is dismissed.
' However all the sentences are ordered to run concurrently with benefit of section 382-B, Cr.P.C. The Criminal Revision is dismissed. With these observations both the appeals and the Criminal Revision are disposed of.