Appellants Nasir S/O Atta Muhammad and Mursaleen S/O Manzoor Khan were tried by learned Additional Sessions Judge, Mailsi District Vehari along with their co-accused Irshad and Manzoor Khan (since acquitted) in case FIR No, 292/07 dated 04.11.2007 for offence under Sections 302/324/34 PPC registered at Police Station Karampur Tehsil Mailsi District, Vehari who vide judgment dated 15.10.2008 convicted them under Section 302 (b)/34 PPC for committing murder of.
Mst. Faiz Elahi, deceased, and sentenced them to imprisonment for life each as Tazir with direction to them to pay Rs, 1,00,000/- as compensation under Section 544-A Cr.P.C. to the legal heirs of the deceased Mst. Faiz Elahi which was to be recovered as arrears of land revenue and in default thereof they were also ordered to undergo six months R.I. Benefit of Section 382-B Cr.P.C. was also awarded to them.
2. It is inter alia contended that the allegation against Mursleen appellant is that he fired shot from his rifle, which was infact directed towards Muhammad Anwar DW, but unfortunately hit to Mst. Faiz Elahi, deceased; that the role attributed to Nasir appellant is that he made fire shot from his rifle which incidentally hit to minor child Muhammad Awais on his shoulder; that provisions of Section 302 PPC are not attracted in the present case; that even if the prosecution story is admitted as a gospel truth, without conceding, at the most the provisions of Section 319 PPC would be attracted which is punishable only with Diyat, definition whereof is provided in Section 318 PPC; that it is the case of the prosecution itself that two parties were engaged in cross firing with each other and that the deceased came out, of her house with a view to witness the same and by chance the fire hit to her and she lost her life; that the main witness of the occurrence namely Muhammad Anwar at whom fires were allegedly aimed, has not been produced by the prosecution PW to substantiate its case. Neither there was any motive of the alleged occurrence nor the same was premeditated nor there was intention to kill the deceased Mst. Faiz Elahi; Muhammad Awais allegedly injured PW was neither got medically examined nor cited as PW; that Muhammad Anwar was also not even cited as PW. All these facts suggest that the occurrence took place in different manner from the one as has been described by the prosecution; that the rifle allegedly used by Mursleen appellant was not recovered from him which was allegedly recovered from Nasir appellant; that the alleged recovered rifle was not even sent to the Forensic Science Laboratory alongwith empties for comparison thereof; that Muhammad Anwar, who was not cited as PW by the prosecution, on the contrary was produced by the accused side in their defence as D.W.1, that about Mursleen appellant there was finding that he was not even present at the place of occurrence; that likewise both the acquitted accused were also found to be not present at the place of occurrence; that the story as put forth by the prosecution is not wholly truth and the PWs are not truthful witnesses, therefore, their statement cannot be believed; that as regards the co-accused Manzoor is concerned, even discharge report was prepared, but the learned Ilaqa Magistrate did not agree with the same that the appellant Mursleen and acquitted co-accused namely Irshad (since acquitted) and Mursleen appellant were placed in Column No, 2 of the report under Section 173 Cr.P.C; that in the site plans. prepared by the draftsman as well as the Investigating Officer, indicated that the deceased was fired upon from a distance of 21/2 acres; that neither the presence of the accused have been shown in the said site plans nor .it contains any details regarding shots fired by each of the accused including the appellants; that there is a wall in between the place from where accused allegedly fired shots and the place where the deceased was standing, which makes the prosecution story as highly improbable; that so much so the presence of D.W. 1 Muhammad Anwar, who was allegedly target of the accused party, his presence has not been shown in the site plans; that the place where the, deceased was standing was not visible from the alleged place from where the accused including the appellants made fire shots.
3. Conversely, the learned counsel for the complainant vehemently opposes the submissions made at bar by the learned counsel for the appellants-accused and submits that the appellants are named in the FIR with specific role; Rifle .7-MM used during the course of occurrence has been recovered from the appellant Nasir. Further submits that the ocular account through out despite lengthy cross examination remained un-shaken, which is also fully corroborated by medical evidence as well as of recovery. Since the prosecution has proved its case beyond any shadow of doubt, therefore, the impugned judgment, consequent conviction and sentence awarded to the appellants calls for no interference. Lastly submits that the appellants have already been dealt with leniently, by the learned Trial Court.
4. The learned D.P.G while supporting the arguments advanced by the learned counsel for the complainant vehemently supports the impugned judgment and consequent conviction and sentence awarded to the appellants and submits that it is a day light occurrence, therefore, there is no question of mis-taken identity nor any question of substitution. There is no malafide attributed to the complainant. Further submits that the appellants alongwith his co-accused came at the place of occurrence with an intention to kill Muhammad Anwar, who luckily remained safe and fire hit to the deceased Mst. Faiz Elahi.
5. Arguments heard. Record perused.
The submissions made at bar by the learned counsel for the appellants are borne out from the record. The story as put forth by the prosecution is highly improbable. Perusal of evidence of the prosecution as well as defence, if put in juxta-position makes me to believe that the presence of the eye-witnesses at the place of occurrence is highly doubtful. The manner in which the occurrence is stated to have taken place is also highly improbable and does not appeal to reasoning. In my considered view the prosecution could not at all prove its lease beyond any reasonable shadow of doubt. I also find that the prosecution evidence is full of discrepancies which are substantial in nature and it is not safe to base conviction on such a weak type of evidence. I, therefore, allow this appeal, set aside the impugned judgment and consequent conviction and sentence awarded to the appellants. Consequently, the appellants are acquitted from the charges leveled against them. They shall be released forthwith if not required in any other case.