1. ' MAZHAR HUSSAIN MINHAS, J.---Appellants Noor Muhammad son of Hakim Ali and Falak Sher son of Manda along with their co-appellants Muhammad Hussain and Khalil Hussain, both dead, faced trial in case F.I.R. No,308 dated 11-9-1988 under sections 302/307/379/ 148/149 P.P.C. Registered at police station Sahuka, District Vehari, and vide judgment dated 30-6-1991 passed by learned Additional Sessions Judge, Burewala, were convicted under sections 302/149 P.P.C. And sentenced to life imprisonment each with fine of Rs,10,000 each and in default to pay the amount of fine to further undergo two years' R.I. Each. They were convicted under section 148 P.P.C. Also and sentenced to two years' R.I. With fine of Rs,1000 each and in default to pay the amount of fine, to further undergo three months' R.I. Each. Both these sentences were ordered to run concurrently and benefit under section 382-B, Cr.P.C. Was extended to them. Aggrieved by the conviction and sentence, they along with their co-appellants Muhammad Hussain and Khalil Hussain filed appeal challenging their conviction and sentence. However, during the pendency of this appeal Muhammad Hussain and Khalil Hussain have died due to which their appeal has abated. State has also filed criminal revision for enhancement of their sentence from life imprisonment to death punishment under section 302, P.P.C.
2. Prosecution version, in brief, contained in F.I.R. (Exh.PA) lodged by P.W.1 Sakhi Muhammad, is that 5/6 months prior to the occurrence a fight ensued between Ashfaq Ahmad (deceased) and.
2. Muhammad Amin cobbler in which latter's leg was fractured and case was registered against Ashfaq Ahmad on the report of appellant Muhammad Hussain (since dead). On 11-9-1988 complainant, Ashfaq Ahmad (deceased), Ghulam Haider, Abdul Rehman and Muhammad Abbas (P.W.2), came to Bus Stop of Chak No,321/EB for going to Burewala to attend Court in the said case.
3. They were informed by Iqbal Hussain son of Zaka ud Din that Courts were closed due to holiday upon which they sent Ghulam Haider to Burewala to confirm this fact and themselves kept waiting on the bus stop. At about 8-15 a.m. a Suzuki car without number plate being driven by appellant Khalil Ahmad (since dead), passed from there. Muhammad Hussain (since dead) was sitting on front seat while Noor Muhammad and Falak Sher along with an unknown person with beard, were sitting on the rear seat of the car. From a distance of about one furlong the car turned back towards the complainant party. Falak Sher fired a shot at Ashfaq Ahmad while sitting in the car.
4. Meanwhile Khalil Ahmad hit the car to Ashfaq Ahmad who fell down. Front windscreen of the car was also broken, The appellants alighted from the car and raised lalkara not to spare Ashfaq Ahmad. Muhammad Hussain deceased fired a .7 mm rifle shot hitting on his chin. Noor Ahmad fired a .12 bore gunshot which hit Ashfaq Ahmad on his right leg. The unknown accused fired a rifle shot at P.W.2 Muhammad Abbas and Abdul Rehman but they luckily escaped. Abdul Rehman P.W. Was also carrying his licensed .12 bore gun which fell down and was picked up by Muhammad Husain (deceased). Thereafter the appellants and their co-accused fled away towards Burewala along with their weapons. As a result of injuries sustained during the occurrence, Ashfaq Ahmad died at the spot. After registration of case, P.W.10 Aftab Ullah Khan, S.-I., carried out the necessary investigation and challaned the appellants to face trial.
3. Learned trial Court framed formal charge against the appellants to which they pleaded not guilty and claimed their trial. In order to prove its case, the prosecution examined as many as ten witnesses. P.W.1 Sakhi Muhammad and P.W.2 Muhammad Abbas are the eye-witnesses of occurrence, P.W.3 Iqbal Hussain attested different recoveries. P.W.9 Ata Muhammad, MO, RHC, Sakhua, conducted the autopsy of death body of Ashfaq Ahmad (deceased) and P.W.10 Aftab Ullah Khan, S.-I., is the Investigating Officer. All the remaining P. Ws are of formal nature. As per postmortem report prepared by P. W.9 following injuries were found on the dead body:--1. (a)
5. Wound of entry ' An oval lacerated wound on left mandibular area below the left lower lip measuring 0.7 c.m. x 0.7 c.m. x through and through blackening and scorching around the wound was present.
(b) Wound of exit ' An oval lacerated wound on right lateral aspect of neck measuring 4 c.m. x 2 1/2 c.m. x through and through. There was slight burning and scorching around the wound.
6. On Dissection of Neck ' On left side damage to skin S/C tissues multiple pieces of ramous of left mandible were seen.
7. Damage to the structures at the floor of mouth, oesphagus, trachea, right carotid .Artery was present. There was also damages- to right jugular vein muscles and nerves on right side of neck and there was also damage to other blood vessels also S/C tissues along with skin also.
(2) Around shot wound on right maxillary region measuring 0.7 c.m. x skin deep. There was burning, blackening and scorching around the wall.
(3) Sixteen rounded shot wounds on anterior Rt chest measuring 0.5 c.m. x 0.5 c.m. x skin deep were seen. There was blackening and scorching around the wounds 2/3 wound were crossing the mid- line.
(4) A reddish blue bruise on the anterior of right shoulder joint measuring l2 c.m. x 7 c.m. Was seen.
(5) 2-3 abrasions on lateral aspect of right thigh each measuring about 6 c.m. x 2 c.m. Were seen.
(6) Swelling of whole right thigh.
8. ' On dissection.
9. ' There was complete fracture of right femur which was 14 c.m. Away from right knee joint.
(7) (a) Wound of entry.
10. 'Ten shot wounds on medial aspect of right knee joint each measuring 1 c.m. x 0.5 c.m. x through and through. Burning and scorching around the wound was present.
(b) Wound of Exit.
11. ' An oval lacerated wound on posterrio lateral aspect of right knee joint was seen, which was measuring 6 c.m. x 5 c.m. x through and through.
12. On dissection.
13. ' There was complete destruction of right knee joint destroying patella, lower and of right femur and upper and of right tibia and fibula.
14. ' According to P.W.9, injury No,l was dangerous to life, injuries Nos.6 and 7 were grievous and rest of the injuries were simple. Injuries Nos.4 and 5 were caused by falling on the ground while injury No,6 was caused with blunt-weapon, remaining injuries were caused by fire-arm. According to doctor, death occurred due to injury No,l which caused damage of major vessels on the right side of the neck, haemorrhage, shock, cardio-respiratory arrest. After recording prosecution evidence, appellants were examined under section 342, Cr.P.C. They all denied the commission of occurrence by them and pleaded their innocence. According to them, none of the P.Ws, was present at the spot at the relevant time and Ashfaq Ahmad was done to death by some unknown assailants who could not be identified. The complainant party falsely implicated them due to the grudge of Amin cobbler's case against Ashfaq Ahmad (deceased) etc. The appellants neither produced any defence evidence nor made statements on oath under section 340(2), Cr.P.C. After concluding the trial, learned trial Court convicted and sentenced the appellants as mentioned above. Hence, the appeal and criminal revision.
4. I have heard learned counsel for the appellants, learned D.P.G, for the State and have gone through the record with their assistance. The prosecution has brought on record three pronged evidence, against the present appellant to prove its case. P.W.1 Sakhi Muhammad complainant and P.W.2 Muhammad Abbas have furnished the ocular account as well as motive for the occurrence, while P.W.9 Dr. Ata Muhammad has provided medical evidence. P.W.2 and P.W.3 have overall supported the prosecution version contained in the F.I.R, with regard to the occurrence as well as the motive. According to their version, 5/6 months prior to the present occurrence, in a fight with Muhammad Amin cobbler, Ashfaq Ahmad deceased fractured his leg. That case was got registered by Muhammad Hussain (since dead) and Falak Sher was a P.W.*in that case. Apart from Ashfaq Ahmad, Riaz Ahmad, brother of P.W.2 Muhammad Abbas, was also an accused in that case.
15. Appellants were not having any direct enmity or motive against. Ashfaq Ahmad deceased rather Ashfaq Ahmad deceased and P.W.2 whose brother Riaz was also involved in that case, were having grudge against the appellants for pursuing the case of Muhammad Amin cobbler against them. It does not appeal to the reason that the appellants would kill Ashfaq Ahmad who was already facing trial in a criminal case, for the sake of Amin cobbler. Besides the above, there are material discrepancies and improvements in the statements of P.W.1 Sakhi Muhammad and P.W.2 Muhammad Abbas. While lodging the report with police, P.W.1 alleged that appellants Falak Sher fired a gunshot at Ashfaq Ahmad from inside the car but he did not mention as to whether that fire-shot hit the deceased or not. While appearing in Court he has made dishonest improvements and has attributed a chest injury to said appellant. Similarly, in F.I.R. Noor Ahmad was alleged to have caused fire-arm injury on right knee of the deceased, but in evidence before Court P.W.1 has attributed fire-arm injury on right knee of the deceased to Muhammad Hussain (deceased) also. In view of these dishonest improvements, the evidence of P.W.1 cannot be safely relied upon without strong corroboration through some other evidence which is not available on record. P.W.2 Muhammad Abbas as mentioned earlier, was having grudge against Muhammad Hussain (deceased) and appellant Falak Sher who were P.Ws, in the case of Amin cobbler against his brother Riaz and Ashfaq Ahmad (deceased). The evidence of P.W.1 and P.W.2 has been found discrepant with the medical evidence qua the injuries of different accused also. Both the appellants were allegedly armed with .12 bore guns at the time of occurrence, but any weapon has not been recovered from them during interrogation. Thus, I am of the view that the prosecution has not successfully proved its case against the appellants Noor Ahmad and Falak Sher beyond reasonable doubt and their conviction recorded by the learned trial Court is not warranted by law.
16. Hence, the appeal is allowed, conviction and sentence awarded to both the appellants is set aside and they are acquitted of the charge giving them benefit of doubt. They are discharged of their bail bonds. Criminal Revision filed by the State is also disposed of accordingly.