' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.1007 of 2002 directed against the judgment, dated 20-5-2002 passed by the learned Addl. Sessions Judge, Kharian, District Gujrat, whereby he convicted the appellants under section 302(b), P.P.C. And sentenced them to undergo life imprisonment each with further direction to pay Rs.25,000 each as compensation as required under section 544-A, Cr.P.C. Or in default thereof six months' further S.I.
Benefit of section 382-B, Cr.P.C. Was also granted to the appellants.
2. Brief facts of the case as narrated in the F.I.R. By the complainant are that in the early hours of the day of occurrence, he (complainant) along with Nadir Khan, Aftab Ahmad was going to purchase the cattle while Muhammad Nawaz nephew of the complainant Ahmad Khan was going ahead in order to get the fodder for the cattle and at about 6-30 a.m. When they reached near the graveyard of the village all of a sudden Nasir armed with .222 rifle, Amjad Ali armed with .12 bore gun (pump action), Arshad Ali armed with .222 rifle, Riaz Ahmad armed with .8 mm rifle, Yasir Hussain armed with .12 bore gun and two unknown persons armed with fire-arm emerged from the sugar cane crop and all the accused raised lalkara that they have come to take the revenge of the murder of Khan Muhammad and thereafter Arshad Ali, Riaz, Nasir and Yasir caught hold Nawaz from his legs and arms and put him down on the ground and then Amjad Ali fired with .12 bore gun (pump action) hitting the temporal bone of the deceased on which the complainant raised hue and cry and then the accused also fired at the complainant party and they escaped themselves by laying on the ground. All the accused after the occurrence fled away from the spot. The motive behind the present occurrence was the murder of Khan Muhammad brother of Amjad Ali accused who is still at large.
3. After getting information about the occurrence the local police completed all the necessary formalities and thereafter Farooq Hussain S.H.O/Inspector along with his subordinates proceeded to the spot. He prepared injury statement Exh. P. E. And inquest report Exh. P. F. He also took into possession the blood stained earth vide memo. Exh.PB. He arrested Arshad Ali, Riaz Hussain and Yasir Imran and declared rest of the accused P.O. Ultimately he prepared the challan against the appellants.
4. The prosecution in order to prove its case has produced as many as 9 witnesses including Doctor, I.O., eye-witnesses and other formal and relevant witnesses. After tendering in evidence report of Chemical Examiner Exh.PK and that of report of Serologist Exh.P.L.,, learned DDA closed the prosecution evidence. Thereafter 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 considerations every aspect of the case and hearing the arguments advanced by the learned counsel for the parties convicted and sentenced the appellants as mentioned above. Hence, this appeal.
5. Learned counsel for the appellants in support of this appeal submits that the F.I.R. Was recorded after due deliberation and consultation, that in all five accused were named in the F.I.R., two of them namely Nasir and Amjad All are P.O. That there was only one injury on the person of the deceased which was attributed to Amjad All who is still at large, that as far as present appellants are concerned though, they were armed with fire arms but no injury is attributed to them. They were also declared innocent by the police, even no recovery whatsoever, was effected from them, that the complainant did not file any application against the declaration of innocence of the present appellants, that no case against the appellants is made out and so they are entitled to acquittal.
6. Learned State counsel on the other hand submits that although the appellants were armed with fire-arms but no specific injury is attributed, to them, that though, it was stated by the complainant that the fire was made by putting the fire-arm on the temporal region of the deceased but there is no powder burning. Learned State counsel does not support the prosecution version.
7. I have heard the learned counsel for the parties. Five accused were named in the F.I.R. While only injury was caused on the person of the deceased and that is attributed specifically to Amjad Ali P.O. Another co-accused namely Nasir is also still at large, that though the appellants were armed with fire-arms but no injury or overt act with those fire-arms is attributed to them, that the allegations against the appellants were that they along with Nasir caught hold the deceased from his legs and arms and fall him on the ground but neither there is any abrasion or contusion on the dead body of the deceased according to the postmortem examination report which also does not support the eyewitness account. No recovery of any fire-arm was effected from the appellants. The appellants were also declared innocent by the police which declaration was never challenged by the complainant through any complaint case or giving an application before the higher police officer for the transfer of investigation. Even the learned State counsel; has not supported the prosecution version and rightly so. After having heard the learned counsel for the parties and going through the record available on the file I am of the opinion that the case of the appellants is of doubtful nature. In this view of the matter this appeal is accepted and the conviction and sentence awarded to the appellants by the learned trial Court is set aside. The appellants are on bail, they are discharged from their bail bonds. Any observations made in this judgment would not prejudice the case of the prosecution as far as Nasir and Amjad Ali accused (P.O.) are concerned. With these observations this appeal stands disposed of.