1. ' BASHIR A. MUJAHID, J.---Appellants Umar Hayat, Muhammad Aslam sons of Noor Muhammad, Nasrullah son of Bakhsha, Yousaf Ali son of Noor Muhammad, Muhammad Ali son of Ghulam Qadir and Ansar son of Muhammad Ali, after having been tried under sections 302/ 324/148/149, P.P.C. By the learned Addl. Sessions Judge, Faisalabad in case F.I.R. No,39/1995, dated 3-2-1995 registered at Police Station, Dijkot, were convicted vide the impugned judgment, dated 23-11-2002 and sentenced as under:---
(1) Muhammad Ali and Ansar Imprisonment for life each and to pay Rs,50,000 each as compensation under section 544-A, Cr.P.C. To be paid to the legal heirs of deceased in default thereof to undergo six months' S.I. Each.
2. ' They were also sentenced to eight years each under section 324, P.P.C. And to pay fine of Rs,2000 in default thereof to undergo S.I. For six months.
(2) Nasrullah and Yousaf Ali, sentenced to eight years' R.I. Each and a fine of Rs,20,000 each, in default thereof to undergo S.I. For six months.
3. ' They were also sentenced to four years' R.I. And to pay Rs,5000 each as Daman.
(3) Umar Hayat and Muhammad Aslam sentenced to five years' R.I. Each under section 324, P.P.C.
4. And to pay Rs,10,000 each as fine and in default thereof to undergo S.I. For six months each.
5. ' All of them were, however, given benefit of section 382-B, Cr.P.C. And their sentences were ordered to run concurrently.
6. ' The brief facts of the case are that F.I.R. Exh.P.U./1 was got recorded by Muhammad Ishaque (since dead) on the basis of statement Exh.P.U. Recorded with Sher Muhammad, S-I. At Adda Dijkot on 3- 2-1995 at 3-30 p.m. Stating therein that the complainant along with his nephew Muhammad Saeed Iqbal, Nasir son of Nosher and Nouta son of Noor Muhammad were busy in conversation while standing in Chowk of village Chak No,249/RB near the house of Jalla son of Salat when accused Umar Hayat alias Umri son of Ghulam Qadir armed with rifle 303, Muhammad All armed with gun .12 bore, Mustafa alias Musti empty handed, Ansar armed with rifle .222 and Muhammad Hayat armed with pistol .30 bore emerged there from the house of Muhammad Ali son of Ghulam Qadir accused which was situated near the Chowk. Umar Hayat alias Umri raised Lalkara that they have come to take revenge of their father. Muhammad All fired at Nasir hitting on backside of his shoulder. Ansar made a fire from rifle hitting Nasir on his right thigh near the buttock. Muhammad Hayat made a fire which missed. Muhammad Ali son of Noor who was residing as guest came on the roof of Jalla hearing the noise of firing where Mustafa alias Musti raised Lalkara that Muhammad Ali who is his brother be shot dead. On which Umar Hayat alias Umri fired a shot from his rifle .303 which hit on head of Muhammad Ali, who fell on the roof. Thereafter, Muhammad Saeed Iqbal, Nouta, Nasir and the complainant Muhammad Ishaque escaped from the spot towards Dera situated in Square No,65 Killa No,3 near the village. When they reached at the Dera, Nasrullah, Yousaf Ehsan, Aslam all armed with guns .12 bore, Ahmad Ali armed with pistol .30 bore and Umar Hayat son of Noor Muhammad armed with pistol .30 bore came there making aerial firing. Nasrullah made a fire shot at Muhammad Mansha hitting on his left back rib. Muhammad Yousaf fired at Muhammad Mansha hitting on his left rib near the waist. Ehsanullah alias Ehsani fired at Muhammad Ali hitting on his right upper arm. Ahmad Ali, Umar Hayat, Muhammad Aslam continued aerial firing on the complainant party. The complainant party also fired at the accused party, on which, the accused fled away from the spot. The complainant and the others returned to the house of Jalla and took care of Muhammad Ali son of Noor but he had succumbed to the injuries.
7. ' The motive for the occurrence was that Ghulam Qadir, father of Umar Hayat alias Umri (since dead) was murdered at the hands of the relatives of the complainant party. So, Umar Hayat alias Umri and to take revenge of that murder Muhammad Ali guest of Jalla was done to death. The accused also injured Nasir, Mansha and Ali Muhammad making murderous assault on them.
8. ' Sher Muhammad S-I., P.W.13 after recording the statement Exh. P. U. Sent the same to the police station for registration of formal F.I.R. Exh.P.U./1 and he himself arrived at the place of occurrence, took the dead body of Muhammad Ali into possession, prepared the injury statement through memo. Exh.P.E., inquest report Exh.P.D. And despatched the dead body for post-mortem examination. He collected blood-stained earth through memo. Exh.P.W. Thereafter, he recorded the supplementary statement of Muhammad Ishaque in which he stated that Ansar accused fired which hit him on his right ankle on the roof top. He recorded the statements of the P.Ws. Under section 161, Cr.P.C. He also took last-worn clothes of the deceased into possession. He moved application to the doctor for recording statements' of the injured P. Ws. Which were recorded by him. He arrested Umar Hayat son of Noor Muhammad, Nasra alias Nasar Ullah son of Bakhsha, Muhammad Ali son of Ghulam Qadir, Yousaf, Ansar and Muhammad Aslam on 16-4-1995. On . 26- 3-1995 he submitted application to District Magistrate, Faisalabad for constituting Special Medical Board in consequence of the direction of the Honourable Lahore High Court Lahore. There was no cross-version in the investigation from the accused side and it was not found that the complainant party also fired at the accused during the occurrence. He investigated the case till 11-4-1995 and during his investigation Muhammad Hayat and Ahmad Ali accused were found innocent. The investigation of the case was also conducted by Mushtaq Hussain, S-I. P.W.14, who arrested Ahsan Ullah accused in the instant case and after obtaining his physical remand he was sent in judicial lock-up and during the investigation he led to the recovery of gun .12 bore which was taken into possession through recovery memo. Muhammad Akram S-I., P. W.12 also investigated the case and Muhammad Ali accused got recovered gun .12 bore P.5 which was taken into possession through recovery memo. Exh.P.X. Nasrullah accused also got recovered gun P.6 which was taken into- possession through memo. Exh.P.Y. On 28-4-1995 Yousaf accused also led to the recovery of gun .12 bore which was taken into possession through memo. Exh.P.Z.
9. ' On 30-4-1995 Umar Hayat son of Noor produced pistol .30 bore P.8 and licence P.9 which was taken into possession through memo. Exh.P.A.A. After completion of investigation challan against the accused was submitted in Court.
10. ' The trial Court framed the charge which was denied by the accused and he claimed trial.
11. ' The prosecution examined as many as 14 witnesses to prove the guilt of the accused.
12. ' The medical evidence was furnished by Dr. Muhammad Latif, P.W.3 who on 3-2-1995 conducted the postmorteni examination on the dead body of Muhammad Ali and found the following injuries on his body:---
(1) A wound of 1/2 c.m. x 1/2 c.m. On the forehead 1 c.m. Above the right eye entrance wound.
(2) An exit wound 8 x 8 c.m. Behind the right ear 3 c.m. Above from the midline.
(3) 3 1/2 c.m. 1 c.m. Lacerated wound below the right malleolus.
(4) There was fracture of skull, frontal bones occipital bone, damage to the membranes and brain matter.
13. ' The ocular account was furnished by Muhammad Saeed Iqbal, P.W.7 and Nouta, P.W.8 and Muhammad Hussain, P.W.11. They supported the prosecution story as narrated by Muhammad Ishaque complainant (since dead) and motive for the occurrence. The remaining witnesses are of formal nature and need not to be discussed.
14. ' After close of the prosecution evidence the statements of the accused/appellants were recorded under section 342, Cr.P.C. They denied the allegations, claimed their innocence and false involvement. In reply to questions as to why the case against them and the P.Ws. Deposed against them, they stated as under:--- ' "There was cross-firing between Saeed Iqbal and his party men on one side and Umar Hayat alias Umri son of Ghulam Qadir on the others over the dispute of a plot where Umar Hayat wanted to construct a shop and Saeed Iqbal resisted. In this cross-firing, Muhammad Ali deceased who was party man of Saeed Iqbal was injured and he died. Saeed Iqbal being Lumberdar in the village, managed to concoct this false case against us in collusion with the police. The P.Ws. Are his relatives and party men. Therefore, they have deposed against me.
15. ' The trial Court culminated into conviction and sentence of the appellants as mentioned above.
16. Hence this appeal.
17. ' Learned counsel for the appellants has argued that the case of the prosecution has not been established beyond shadow of doubt as none of the injured witnesses have been examined by the prosecution; that there was dispute between Umar Hayat with Saeed Iqbal, Lumberdar of the village. Muhammad Ali was hired assassin and there was exchange of firing and fire made by Umar Hayat hit Muhammad Ali. Umar Hayat son of Ghulam Qadir had motive because his father was murdered by the accused party; that there is clear contradiction in the medical evidence and the ocular account. According to the medical evidence the injuries on Nasir injured are self- inflicted. Saeed Iqbal is nephew of Muhammad Ishaque complainant and there is no independent witness to support the prosecution story. Injured Nasir, Mansha and Ali Muhammad have not been produced which creates serious doubt about the version of the prosecution story.
18. ' The appeal has been opposed by learned counsel for the State who has supported the impugned judgment.
19. ' I have heard the learned counsel fort the parties and examined the record, and find that during the investigation Mustafa alias Musti, Muhammad Hayat and Ahmad Ali were found innocent and they were not challaned. Umar Hayat alias Umri died during the trial. Muhammad Ishaque complainant also died and was not examined during the trial. Muhammad Saeed Iqbal was his nephew while Nouta, brother-in-law. Muhammad Hussain, P.W.11 is real brother and no independent witness was examined by the prosecution. The motive was against Umar Hayat alias Umri and the fatal shot caused to Muhammad Ali was also attributed to him. The injuries attributed to the appellants have not been corroborated by the injured prosecution witnesses or by the medical evidence. The cross-version was also got recorded by the appellants vide F.I.R. No,34/1995 under section 324/34, .P.C. The injury having been caused by Pthe appellants to Muhammad All and Ansar had not been corroborated by medical evidence. Muhammad Hayat and Muhammad Aslam were attributed only ineffective firing, therefore, by placing prosecution case and defence plea in juxta position, I find that the prosecution case has not been established against the appellants beyond shadow of doubt, so by extending the benefit of doubt their appeal is allowed.
20. ' The conviction and sentence of the appellants is set aside and they are acquitted of the charge.
21. Umar Hayat and Muhammad Aslam are on bail, their sureties are discharged.
22. ' The remaining appellants are directed to be released forthwith if not required to be detained in any other case.