JUDGMENT KH. MUHAMMAD SHARIF, J.- This judgment shall dispose of Crl. A. No. 1464/2004 filed by Shahbaz appellant and Crl. Appeal No. 1149/2004 filed by Iftiknar alias Basharati and Naazar alias Bitu against their convictions and sentences recorded, vide impugned judgment dated 7-7- 2004 passed by the learned Additional Sessions Judge, Ferozewala, Sheikhupura, whereby appellant Shahbaz was convicted under Section 302(bj/149, P.P.C. And sentenced to imprisonment for life as Tazir with a further direction to pay an amount of Rs. 50,000/- as compensation to the legal heirs of the deceased in default whereof to further undergo S I. For six months as provided under Section 544-A, Cr.P.C., he was further convicted under Section 324/149, P.P.C., and sentenced to five years' R.l. With a fine of Rs.
20,000/- in default whereof to further undergo S.l. For three months' coupled with further conviction under Section 148, P.P.C. ' and sentenced to three years' R.l., Appellants Iftikhar alias Basharati 'and Naazar alias Bitu were convicted under Section 337-A(i)/149, P.P.C. And sentenced to one year's R.l.
Each, under Section 337-L(ii)/149, P.P.C. To one year's R.l. Each, were directed to pay Daman of Rs.
15,000/- each, to the injured Azizur Rehman in default whereof to further undergo S I. For two months, they were also convicted under Section 148, P.P.C. And sentenced to three years' R.l. Each, benefit of Section 382-B, Cr.P.C. Was extended to them and ' their sentences were ordered to run concurrently. However, benefit of doubt was extended to co-accused, namely, Sadiq; who was acquitted from the case against whose acquittal Crl. A. No. 1468/2004 vvas dismissed by a learned Division Bench of'this Court vide order dated 4-10-2004 while Crl. A. No. 1463/2004 was filed against the acquittal of Iftikhar alias Basharati and Naazar alias Bitu from the murder charge and Crl.
Revision No. 848/2004 is for enhancement of sentence of Shahbaz appellant. All these matters are being disposed of through single judgment as they arise out of the same impugned judgment of the learned Additional Sessions Judge mentioned above.
2. Brief facts of the case, as given by PW Abdul Wahid complainant in the F.I.R., are that on 20-2- 2003 at about 04.00 p m. Accused Shahbaz, Iftikhar alias Basharati, Muhammad Ashraf and Muhammad Mushtaq stopped the rainy water at Chowk Sidhanwali by throwing earth at the outlet of official drain resulting.Into damage? Of crops of the complainant party, the complainant alongwith injured Azizur Rehman, Pervaiz Iqbal 'and Ataur Rehman, his deceased son, tried to remove the said earth, in the meanwhile the accused persons while armed with deadly weapons reached therein, Sadiq accused raised a Lalkara upog which Ashraf (P.O.) made a fire on the complainant which went amiss, his second fire hit on the right flank of deceased Attaur Rehman, Shahbaz inflicted an injury with his Mauzar on the left leg of PW Pervaiz Iqbal, Iftikhar alias Basharati, Nazar alias Bitu and Sadiq inflicted injuries with their respective sotas to PW Azizur Rehman* discriminate firing of the accused persons also hit two passers-by, namely, Abdul Hgmeed and Irfan while Attaur Rehman succumbed to the injuries at the spot.
3. After having completed legal formalities, challan was submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where, the prosecution, in order to prove its case against the accused, produced twelve prosecution witnesses during the trial.
4. Learned counsel for the appellant Shahbaz in support of Crl. Appeal No. 1464/2004 submits that all the three eye-witnesses are closely related to the deceased i.e. PW-10 Abdul Wahid is father, PW-8 Azizur Rehman and PW9 Pervaiz Iqbal are first cousins of the deceased, that their evidence cannot be relied upon without further corroboration through some independent evidence; that motive was not proved; that Kassi was not produced with which the complainant party was allegedly removing the earth in question; that both the witnesses of alleged recovery of pistol from appellant Shahbaz are police officials so it can not be relied on; that no body was produced from the vicinity although the place of recovery was surrounded, by houses; that although P.O. Ashraf made two shots but only one crime empty of .222 bore rifle was recovered from the spot and not of .30 bore pistol which falsifies the presence of Shahbaz at the spot; that the investigation was dishonest; that there was background of enmity between the parties because Shahbaz appellant is nephew of Ashraf P.O. Who got a case registered under Section 337, P.P.C, against Pervaiz Iqbal injured PW he was falsely involved; that the F.I.R. Was recorded at the spot and not at the P.S. Which shows concoctions, consultations and deliberations on the part of the prosecution; that the prosecution has failed to prove its case against the appellant and that the appellant is entitled to acquittal by this Court. If this Court is not convinced with the argument of acquittal then it is a case under Section 324, P.P.C., and not under Section 302(b), P.P.C.
Sh. Najamul Hassan, Advocate assisted b.y Mr Tanveer Azam Cheema, Advocate, in support of Crl.
A. No. 1149/2004, while seeking acquittal of both the appellants, namely, Iftikhar alias Basharti and Naazar alias Bitu, in the said appeal, contends that as per allegation they, alongwith acquitted accused Sadiq, caused danda blows on the person of Azizur Rehman PW but according to the MLR, only two injuries are found on his person, on the same evidence Sadiq was acquitted, appellants' case is on similar footing to the said Sadiq, their conviction under Section 148, P.P.C* is not tenable because the number of accused tried are four: that the allegedly recovered sota was not blood- stained; that it was a night time occurrence and identity of the accused was not possible; that the complainant party came first at the spot which shows their conduct; that there was no question of premeditation or common intention of the appellants and to the least it is a case of individual liability and if this Court is not convinced with argument of acquittal then the ends of justice would be met if their conviction and sentences already served is termed to be sufficient.
5. On the other hand, Mr. Naseer-ud-Din Khan Nayyar; the learned Additional Prosecutor General, while appearing on behalf of the State assisted by learned eourise! For the complainant submits that it is a case of promptly lodged F.I.R. , there are two injurpd namely Azizur Rehman and Pervaiz Iqbal who have fully supported the prosecution case, there was no questionj3f false implication, appellants are specifically named with specific roles, ocular account in this case is corroborated by the medical evidence, there is no reason for leaser sentence because alt the accused in furtherance of their common object committed the offence >;whicb"1e3 Iff ppSTnurcter and injuries to the PWsv already a lenient view has been taken; that the prosecution has proved its case against all 4he appellants beyond any shadow of doubt; that they would support the judgment of conviction which is a well-reasoned judgment and that appeals filed by the convicts are liable to be dismissed.
6. I have heard learned counsel for the parties; have gone through the record with the able assistance of the learned counsel for the respective parties and have also given, anxious consideration to the submissions made at.The bar by the learned counsel for the parties.
7. The occurrence in this case had taken place on 20-2-2003, the matter was reported to the police at the spot at 09.45 p.m., the formal F.I.R. Was recorded at the police station at 10.15 p.m. While distance between the place of : occurrence and the police is ten kilometers.
8. In all there were five accused persons Muhammad Ashraf, the main accused, is still absconder while benefit of doubt was extended to co-accused, namely. Sadiq, who was acquitted from the case against whose acquittal .CrL A. No. 1468/2004 was dismissed by a learned Division Bench of this Court vide order dated 4-10-2004.
9. Dr. Muhammad Iqbal (PW-1) medically examined all the injured PWs, namely, Azizur Rehman, Pervaiz Iqbal, Abdul Hameed and Irfan. Abdul Hameed and Irfan were not produced while Azizur Rehman appeared as PW-8 and Pervaiz Iqbal as PW-9. On the person of Azizur Rehman PW, two injuries with blunt weapon were fc^nd while Pervaiz Iqbal PW had one injury on his person with a fire-arm.
10. Motive behind the occurrence was that Shahbaz, Iftikhar alias Basharati, Muhammad Ashraf and Muhammad Mushtaq stopped the rainy water at Chowk Sidhanwali by throwing earth at the outlet of official drain resulting into damage of crops of the complainant party, the complainant alongwith injured Aziziur Rehman, Pervaiz Iqbal and Ataur Rehman, his deceased son, tried to remove the said earth, in the meanwhile the accused persons while armed with deadly weapons reached there, Sadiq accused raised a Lalkara upon which Ashraf (P.O.) made a fire on the complainant which went amiss, his second fire hit on the right flank of deceased Attaur Rehman, Shahbaz inflicted an injury with his Mguzar on the left leg of PW Pervaiz Iqbal, Iftikhar alias Basharati, Nazar alias Bitu and Sadiq inflicted injuries with their respective sotas to PW Azizur Rehman, discriminate firing of the accused persons also hit two passers by, namely, Abdul Hameed and Irfan. It has come on record that there was no rain on the day of occurrence and only the day of occurrence was a cloudy one. The two main injured - independent eye-witnesses, as mentioned above, were not produced by the prosecution. Only Azizur RehfPan appeared as PW-8 and Pervaiz Iqbal as PW-9 who are first cousins of the deceased and nephew of the complainant while PW-10 Abdul Wahid is father of the deceased, so, it can be said that all the eye-witnesses are closely related to the deceased and interested witnesses.
11 Apart from above, F.I.-R,, was recorded at the spot and not at the Police Station which shows concoctions, consultations and deliberation^., on thyeT. Party of the prosecution.
12. Furthermore, it tiafe come on record that the earth was being removed with a Kassi but the same was neither produced before the police nor during the trial which is a dent to the jsrosecutiori case.
13. It was a night time occurrence but surprisingly no source of light was either mentioned in the F:I.R. Or produced during the trial which factor further goes against the prosecution.
13. The main accused in this case is Muhammad1 Ashraf, who is still absconder, who had caused fire-arm injury on the person of the deceased which proved fatal. Although .222 crime empties were recovered from the spot but no crime empty of .30 bore pistol was taken into possession though it was alleged that after two shots were fired by the said Ashraf and one Shahbaz, indiscriminate firing was made by the accused side, so, recovery, if any, from Shahbaz appellant is of no avail to the prosecution. Furthermore, it is correct that there are injured witnesses in this case but it is not necessary that the said injured \yitnesses would tell the whole truth, so, jheir statements have to adjudged with utmost care and cautiori.
15. Now this Court is left with the ocular account which was furnished by the closely related witnesses who are also inimical towards the appellants. Pervaiz 'Iqbal admitted during the course of cross-examination that, prior to the instant occurrence, appellant Shahbaz got a case registered under Section 337, P.P.C. Against them, for causing injuries on his person. Even there was a litigation qua Lumberdari between the complainant party and the appellant party, so, possibility of false- implication of Shahbaz appellant can not be relied out being first cousin of main accused Ashraf because it is very common in our society' that alongwith the main accused, other family members are also involved so that no body should be left to pursue the case. Taking into consideration all these factors I am of the considered opinion that the case of Shahbaz appellant is doubtful in nature, so, while granting him benefit of doubt, he is acquitted from the case, Crl. Appeal No. 1464/2004 is allowed and he shall be released forthwith if not*required to be detained in any other case.
16. Now, I would take up' Crl. Appeal No. 1149/2004 filed by Iftikhar alias Basharati and Naazar alias Malik K.B. Awan V. Rana Muhammad Irshad Cr.C. 253 (Mian Muhammad Ndjam-ui-Zaman, J.)