' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,537 of 2002 filed by Rashid, Qasim and Muhammad Iqbal and Criminal Appeal No,548 of 2002 filed by Nasir Mahmood and Iftikhar, appellants. The appellants were convicted under section 302(b), P.P.C. And sentenced to imprisonment for life with further direction to pay Rs,50,000 in default six months' S.I.
With the benefit of section 382-B, Cr.P.C. By learned Additional Sessions Judge, Samundri vide judgment, dated 4-3-2002.
' Criminal Revision No,345 of 2002 filed by the complainant for enhancement of sentence of the convicts shall also be disposed of through this single judgment.
2. Briefly stated the facts of the case are that on 20-5-2000 at 2-15 p.m. Rashid, Iftikhar, Javed, Waseem, all armed with revolvers assaulted upon Sarfraz, brother of the complainant Ataullah. The shot fired by Rashid hit Sarfraz on the left side of his chest while that of Iftikhar landed on left flank.
Similarly, the shots fired by Javed and Qaseem hit on the buttock and left arm of the injured who succumbed to the injuries in the hospital.
' The motive alleged was a previous occurrence having taken place 8 months prior to the occurrence in which Nasir Ahmad, a friend and relative of the accused had suffered a arm cut. The role of abetment was attributed to Nasir Mahmood and Irfan.
4. Investigation of the case was taken over by Rajab Ali (P.W.15). He prepared injury statement Exh.P.C., inquest report Exh.P.D., took into possession the blood-stained earth vide memo. Exh.P.E., 12 empties cartridges of .30 bore pistol were secured vide memo. Exh.P.F., Iftikhar and Waseem were arrested on 29-5-2000 from their personal search, only .30 bore pistol was recovered from Iftikhar which was taken into possession vide memo. Exh.P.Q., on 31-5-2000, Waseem also got recovered .30 bore pistol which was secured vide memo. Exh.P.A., Muhammad Iqbal was arrested on 21-6- 2000 and this accused while in custody led to the recovery of .30 bore pistol P.2 which was taken into possession vide memo. Exh.P.G., Nasir Mahmood was arrested on 20-7-2000. Rashid was taken into custody on 31-7-2000 and he on 14-8-2000 led to the recovery of .30 bore pistol which was secured vide memo. Exh.P.H. And after completion of the remaining formal investigation, all the six accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 17 witnesses in all. The learned D.D.A.
Tendered in evidence report of the Chemical Examiner Exh.P.T., report of the Serologist Exh.P.U., report of the Forensic Science Laboratory Exh.P.V. And closed the case of the prosecution.
Statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence and claimed false implication. After conclusion of the trial, Irfan accused was acquitted while the remaining five accused were convicted and sentenced as stated above.
6. Learned counsel for the appellants submits that Irfan co-accused of the appellants was acquitted by the trial Court while Nasir Mahmood who was accused of abetment and motive was also attributed to him, was convicted and sentenced by the trial Court, his sentence was suspended by this Court, has died, so appeal to his extent stands abated.
7. As far as four appellants are concerned, according to learned counsel, they have been falsely involved in this case, in fact it was only one accused who committed the murder of the deceased, all the injuries are on the left side of the deceased with the same dimension, the doctor has also stated that the possibility of one fire-arm having been used cannot be ruled out, none of the present appellants had any motive to commit the murder of the deceased, the motive, if any, was with Nasir Mahmood who has died his natural death and that in all the prosecution has failed to prove its case against the appellants and they are entitled to acquittal.
8. Learned counsel for the complainant who has filed criminal revision for enhancement of sentence of the convicts submits that it was a case of promptly lodged F.I.R., it was a broadday- light occurrence, names of the deceased with the roles are mentioned in the FIR., no previous enmity existed between the parties, so there was no question of false implication and that if there is any conflict between ocular account and the medical evidence, that was for the reason that the complainant is an illiterate person and that recoveries have been effected from Iqbal, Iftikhar and Javed appellants.
9. Learned counsel for the State supports the judgment of the trial Court and adopts the arguments advanced by learned counsel for the complainant.
10. I have heard learned counsel for the parties at length and have gone through the record with their able assistance. The motive, if any, was with Nasir Mahmood and that was that 8 months prior to the instant occurrence, the arm of Nasir who was friend and relative of the accused was fractured. Nasir Mahmood, accused having died, during pendency of the appeal, appeal to his extent stands abated. As to other four appellants, according to F.I.R., Rashid appellant fired which bit on the left side of chest of Sarfraz. This injury according to the postmortem report is present on the person of the deceased being injury No,2. Iftikhar, appellant fired a shot which, hit on the left!
Flank of the deceased. There is no such injury on the person of the deceased. Similarly, Javed appellant fired with his pistol on the person of the deceased hitting on the buttock. This injury is present being injury No,3. According to F.I.R., the shot attributed to Waseem alias Qaseem landed on the left arm of the deceased. This is injury No,4 but according to post-mortem report this injury was on the back of left arm. In fact, according to post-mortem report, there are two entry wounds andj those are on the left shoulder and on the inner side of the left forearm. As far as injury on the front of left forearm is concerned, that has not been attributed to any of the accused.
' The case of the prosecution was that 12 empties of .30 bore pistol were recovered from the spot on the day of occurrence and were taken into possession vide memo. Exh.P.F. Waseem and Iftikhar appellants were arrested on 29-5-2000 while Iqbal and Rashid convicts were taken into custody on 21-6-2000 and 31-7-2000 respectively. According to report of the Fire-arms Expert Exh.P.V., all the crime empties except C6 to C8 matched with the weapons recovered from the appellants except Rashid appellant. The crime empties C1 and C2 matched with the weapon of offence recovered on the pointation of Bakht Bedar appellant. Similarly, crime empties C9 to C12 were found to have been fired from the pistol got recovered by Iftikhar appellant. C3 to C5 matched with the weapon of Iqbal. The result is that none of the crime empties recovered from the spot matched with the weapon got recovered by Rashid, appellant. In order to reach at a just conclusion, it may be noted that according to report of the Fire-arms Expert Exh.P.L,, first parcel" of crime empties was sent to his office on 15-6-2000 though the crime empties were taken into possession on the day of occurrence, that is, 20-5-2000. Iftikhar and Waseem appellants were arrested on 29-5-2000. It is thus clear that the empties were sent to the office of the Fire-arms Expert with a delay of 25 days from the date of occurrence and 16 days after arrest of the appellants. The possibility of these empties having been prepared after recovery of the fire-arms on the pointation of the appellants cannot be ruled out. Man can tell lie but not the document. The weapon of offence recovered on the pointation of the accused nine days after the occurrence and empties taken into possession on the day of occurrence, that is, 20-5-2000 but sent after recovery of weapons, loses its incriminatory value. So, while granting the benefit of doubt, Iftikhar and Waseem appellants are acquitted from the charge. As far as Rashid, appellant is concerned, none of the crime empties recovered from the spot matched with the fire-arm recovered on his pointation. He is also given the benefit of doubt and acquitted of the charge. The conviction and sentence recorded against Iftikhar, Waseem and Rashid by the learned trial Court is set aside. All the three appellants are in jail. They shall be released forthwith, if not required in any other case.
' Now, I take up the case of Iqbal, appellant. He was arrested on 21-6-2000. The crime empties were sent to the office of the Fire-arms Expert on 15-6-2000 six days prior to this arrest. Empties C3 to C5 matched with the pistol recovered on his pointation. The fact that only one person took part in the occurrence is proved from perusal of the post-mortem report as all the injuries are of similar dimension having blackening and are on the left side of the deceased. The doctor has also opined that possibility of one fire-arm having been used in this case cannot be ruled out. The conviction and sentence recorded by the trial Court against Iqbal appellant is maintained in toto. Appeal to his extent is dismissed.
' Before parting with this judgment I may observe that accused have been given different names with different alias. Learned counsel for the complainant while arguing the case had submitted that no reasoning has been given by the trial Court for awarding lesser punishment. No doubt the reasons given by the trial Court for lesser sentence are not properly worded but in my opinion the reason was that there was no motive whatsoever with convicts to commit the murder of the deceased. The motive if any was with Nasir Mahmood who after conviction and grant of bail by this Court, has died.
' Both the appeals filed by the convicts are disposed of in the above terms. Criminal Revision filed by the complainant for enhancement of sentence is dismissed.