' RANA ZAHID MAHMOOD, J.--- Pervaiz Ahmad appellant has filed this appeal against his conviction and sentence recorded by the learned Sessions Judge, Pakpattan, vide impugned judgment dated 31-3-2003 whereby he has .Been ordered to suffer death under section 302(b), P.P.C. For intentional murder of Muhammad Ishaq deceased, a nephew of Haji Nazir Ahmad, complainant (P.W.2) with Chhuri on 21-42001 at about 6-45 p.m. While the two acquitted co-accused, namely, Wasim Akram and Kashif Hameed had made the deceased hostage in the company of the appellant and Wasim Akram had kept revolver on the temple of Muhammad Ishaq deceased while Kashif Hameed was bringing out Rs,20 from the front-pocket of the deceased and when the deceased saw the complainant, Nasim Ahmad, Muhammad Yasin and Nazar Muhammad, coming on motorcycles near the place of occurrence, he raised alarm upon which appellant gave him Chhuri blows which resulted into the death of the deceased who died while hardly reaching Civil Hospital, Pakpattan.
2. It is important to mention that according to Haji Nazir Ahmad, complainant (P.W.2), who lodged complaint to police vide Exh.PB and formal F.I.R. Which is Exh.PB/1 that when he along with Nasim Ahmad, Muhammad Yasin and Nazar Muhammad, prosecution witnesses, reached at the place of occurrence on motorcycles, he found that three unknown accused persons had made the deceased hostage who was a rickshaw driver and one of the unknown co-accused had kept revolver on the temple of the deceased while the other was snatching money from front pocket of his shirt and when the deceased saw them, the third unknown accused (present appellant) inflicted Chhuri blows on the deceased who was then died as a result of Chhuri blows while reaching the hospital. However, in the later part of the complaint/F.I.R. The complainant mentioned that on running away from the place of occurrence by the unknown three culprits, the complainant and the P. Ws attended the deceased and deceased told them the names of the culprits such as Pervaiz Ahmad, the present appellant, along with the parentage and their complete addresses along with Wasim Akram and Kashif Hameed, the acquitted co-accused, residents of Mohallah Eidgah, Pakpattan, who had hired his rickshaw at Rs,60 and were taking him to Saleem kot when on the way they stopped the rickshaw and committed the offence. After due investigation the appellant and the co-accused were challaned. However, as the two co-accused, namely, Wasim Akram and Kashif Hameed were found minors, therefore, they were separately tried by the learned Sessions. Judge as Court for Juveniles and after due trial Wasim Akram and Kashif Hameed were acquitted while the appellant has been convicted and sentenced, as stated above.
3. Learned counsel for the appellant has submitted that there is direct conflict between the ocular account and medical evidence available in the testimony of Dr. Muhammad Younas Rana (P.W.5) as according to the postmortem report available on record as Exh.PG and Exh.PG/1, in the opinion of doctor injury No,1 which was incised wound 2 c.m. x 1/2 c.m. Going deep on the front of the left chest just below and outer side of the left nipple and caused cardio respiratory failure due to destruction of walls of heart which was sufficient to cause death in the ordinary course of nature and submitted that doctor opined that the probable time between injuries and death was few minutes and submitted that in the cross-examination the doctor deposed that due to injury No,1, the injured could have become unconscious within five minutes period which could be less than five minutes and the blood pressure would have also fallen down and on low blood pressure one could not remain in a position to speak properly. The learned counsel, therefore, submitted that the depositions of Haji Nazir Ahmad, (P.W.2) and Nazey Muhammad (P.W.3) coupled with the complaint Exh.PB and Exh.PB/1, that the deceased narrated the names of the appellant and the co-accused with their parentage, caste and places of residence to the prosecution witnesses is highly doubtful as it was a direct blow by a sharp edged weapon i.e, ^Chhuri on the walls of the heart of the deceased and as such the deceased was not in a position to speak, therefore, could not tell the names of the assailants who were not known to the complainant and the prosecution witnesses and submitted that identification parade was necessary which was not carried out, therefore, the whole case against the appellant being doubtful, he is entitled to acquittal.
4. Learned Deputy Prosecutor-General has supported the impugned judgment and opposed the contentions.
5. We have heard the learned counsel for the parties, perused the record and the impugned judgment with care.
6. The appellant was not known to the complainant and Nazar Muhammad (P.W.3) earlier while the deceased was a nephew of the complainant. The complainant and the prosecutions witnesses did not know any of the unknown culprits who had made the deceased hostage by keeping a pistol on his temple while one out of three was getting money out of the front pocket of the shirt of the deceased and when the deceased saw the complainant and prosecution witnesses, who claimed that they were coming on motorcycles towards the place of occurrence for going back home, the deceased raised alarm upon which the appellant inflicted Chhuri blows on the deceased whereas, according to the postmortem report, there is only one Chhuri blow on the chest of the deceased being injury. No,1 and the other sharp edged injury on the person of the deceased as injury No,6 as noted down by Dr. Muhammad Younas Rana (P.W.5) which is an incised wound 2 c.m. x 1 c.m. On the forehead of the deceased, whereas all the rest of the injuries are abrasions, bruises and lacerations as there are eleven injuries in all on the person of deceased.
7. Haji Nazir Ahmad, complainant, while appearing as P.W.2, stated in the cross-examination that Pervaiz Ahmad appellant inflicted 10-11 Chhuri blows on the person of the deceased while Nazar Muhammad (P.W.3) also stated that Pervaiz Ahmad, appellant, inflicted Chhuri blows on different parts of the body of the deceased. Both the said prosecution witnesses also stated that they and the given up P.Ws. After the occurrence chased the appellant and the two acquitted co-accused but they ran away, whereafter they came back and deceased told them the names and addresses of the appellant and the two co-accused. It is very strange that deceased despite having suffered direct Chhuri blow on the walls of the heart, was still in a position to speak and give details of the names, parentage and addresses of the appellant and the two co-accused to the prosecution witnesses while some time must have been consumed by the prosecution witnesses in the chase of the appellant and the two co-accused while in the opinion of the doctor since the Chhuri blow on the chest had destroyed the walls of the heart B and the deceased then died due to cardio respiratory failure whose blood pressure must have fallen down immediately and as such was not in a position to speak and who also died within about five minutes of the infliction of the injury, therefore, the ocular account being directly in conflict with medical evidence, particularly both the prosecution witnesses/eyewitnesses stated that the appellant inflicted several blows i.e, 10-11 on the person of the deceased on different parts; whereas one Chhuri blow on the left side of the chest and the other is on the forehead while rest are abrasions, bruises and lacerations which are not result of Chhuri blow on the person of the deceased and were result of blunt weapon injuries, therefore, substantial doubt is present in the prosecution case about the presence of the complainant and the prosecutions witnesses at the scene of occurrence when the deceased was done to death by some culprit/culprits, Even if it be assumed for a while that the deceased had disclosed the names of the appellant and the co-accused to them it was still necessary for the holding of identification parade of the appellant and the others for establishment of identity of the appellant and the two others in accordance with law, which was also not done. In this view of the matter, it cannot be said that the prosecution had proved its case against the appellant beyond shadow of any reasonable doubt. The impugned judgment is not sustainable in law. This appeal is therefore accepted, impugned judgment is set aside and appellant is acquittal of the charge. He is ordered to be released forthwith if not required to be detained in any other case. Murder reference is answered in the negative.