' SARDAR MUHAMMAD SHAMIM KHAN, J.---This common judgment will dispose of:--
(i) Criminal 'Appeal No.132 of 2002 filed by Ghulam Shabbir convict.
(ii) Criminal Appeal No.410 of 2002 filed by Ghulam Abbas, complainant against acquittal of respondents Nos.2 Mirza and respondent No.3 Zahoor Ahmad.
(iii) Criminal Revision No.69 of 2002 filed by Ghulam Abbas, complainant for awarding capital punishment to respondent No.1 Ghulam Shabbir.
2. Mirza Ghulam Shabbir and Zahoor Ahmad were tried in case F.I.R. No.39 of 1997 dated 25-3-1997, registered at Police Station Shah Kot, for the offences under sections 302, 34 and 109 of P.P.C., at the instance of Ghulam Abbas, complainant (P.W.5) for causing Qatl-e-Amd of Qalb-eAbbas. Learned Addl. Sessions Judge, Chichawatni vide his judgment dated 31-1-2002 acquitted Mirza and Zahoor Ahmad and convicted Ghulam Shabbir, appellant under section 302(b), P.P.C. And sentenced to Life Imprisonment. He was also held liable to pay Rs.50,000 as compensation to the legal heirs of the deceased under section 544-A of Cr.P.C. And in case of default to further undergo six months'
S.I.
3. Ghulam Shabbir, appellant through Criminal Appeal No.132 of 2002 has challenged his conviction and sentence, as mentioned above, while Ghulam Abbas, appellant/complainant through Criminal Appeal No.410 of 2002 has challenged the acquittal of respondents Nos.2 and 3 and through Criminal Revision No.69 of 2002, petitioner/complainant has also prayed for modifying the judgment, dated 31-1-2002 to the extent of Ghulam Shabbir, respondent No.1 and to award him capital punishment.
4. The brief facts of the prosecution story as set out in the F.I.R. Exh.PD/1, recorded on the basis of complaint Exh.PD is that complainant Ghulam Abbas was resident of Chak No.52/12.L and he was cultivator. His son Qalb-e-Abbas was a student of 7th Class in Higher Secondary School Akanwala Bangla. On 21-3-1997 at about 8-00 a.m., the complainant along with Muhammad Latif son of Mumtaz Khan caste Baloch resident of the said Chak was going towards Akanwala Bangla in order to get diesel for tractor. He further mentioned that his son Qalb-e-Abbas along with Qamer ul Zaman a student of 9th Class were going to the school on foot at Akanwala Bangla. They were about two acres ahead of the complainant. Qamer ul Zaman was behind Qalb-e-Abbas. When Qalb-e-Abbas and Qamer Zaman were about on acre away from the Patrol Pump of Ghulam Abbas, Imtiaz and Ghulam Shabbir armed with .12-bore gun and Zahoor Ahmad armed with a carbine came over there from the side of Bangla Akanwala. They were on a motorcycle. He further mentioned that Imtiaz raised Lalkara that he would take revenge of his brother and he fired a shot with his .12-bore gun hitting the left leg of Qalb-e-Abbas. Thereafter, Ghulam Shabbir fired a shot with his .12-bore gun hitting the right leg of Qalb-e-Abbas at his knee in consequence of which Qalb-e-Abbas fell down. Thereafter Zahoor accused fired with his carbine over Qalb-e-Abbas which hit his left leg. Then Imtiaz accused again fired a shot with his .12-bore gun hitting Qalb- eAbbas at his right knee on the outer side. The complainant further stated that they due to fear did not step forward and witnessed the occurrence. The complainant further mentioned that the accused committed this occurrence at the behest of Mirza Accused. Thereafter, all the three accused, after having committed the occurrence, fled away along with their respective weapons of offence. The complainant further mentioned that they took care of his son Qalb-e-Abbas and took him to 96/121 Hospital and the M.O. Of the hospital referred Qalb-e-Abbas to Bahawal Victoria Hospital, Bahawalpur. On 19-7-1997, his son succumbed to the injuries in Bahawal Victoria Hospital, Pahawalpur.
5. The motive behind the occurrence was stated that the brother of Imtiaz accused was injured by some unknown persons and the accused had suspicion that he was injured by the complainant party and due to that grudge, the accused had injured the son of the complainant. He further mentioned that he could not report the matter to police earlier because his daughter had died on the date of occurrence.
6. After completion of investigation, challan was prepared and submitted before the learned trial Court for trial. Charge against the accused was framed to which, they pleaded not guilty and claimed to be. Tried. In order to prove its case, the prosecution examined as many as sixteen (16)
P.Ws.
' P.W.1 Ghulam Rasool Patwari Halqa was a formal witness who on 25-8-1997 prepared site plans of the place of occurrence Exh.PA and Exh.PA/1 on the pointation of the P.Ws. And on the directions of the I.O.
' P.W.2 Dr. Syed Zamir-ul-Hassan, Medical Officer on 21-3-1997 medically examined Qalb-e-Abbas and found the following injuries on his person.
(i) A punctured wound 3-1/4 cm x 3-1/4 cm x deep going on outer aspect of right knee. Edges were inverted blackening and tattooing was present. This was wound of entrance.
(ii) Multiple punctured wound in an area of 10 x 5 cm each measuring 1/2 cm x 1/2 cm deep going on inner aspect of right knee. Edges were everted. This was wound of exit.
(iii) A Punctured wound 5-1/4 cm x 5 1/4 cm x deep going on front of right knee. Blackening and tattooing was present. It was mound of entry.
(iv) A punctured wound 3-1/4 cm x 3-1/2 cm x deep going on back of right knee. Edges were everted. It was a wound of exit.
(v) Multiple punctured wound in an area of 11 cm x 5 cm on inner aspect of left leg each measuring 1 cm x 1/2 cm x deep going. Edges were inverted. These were wounds of entry and were 15 cm above left knee.
(vi) Multiple punctured wound in an area of 8 cm x 3 cm on outer aspect of left leg. Edges were everted, measuring 1/2 cm x 1/2 cm x deep going 15cm above left ankle. It was a wound of exit.
(vii) A punctured wound 3 1/2 cm x 3-1/2 cm x deep going on outer aspect of left leg. Blackening present 5 cm below left knee. This was wound of entrance.
(viii)Multiple punctured wound in an area of 4 1/2 cm 3 1/2 cm x deep going on inner aspect of left leg 4cm below left knee. Each measuring 1/2 x 1/2 cm x deep going. Edges were everted. It was wound of exit.
' P.W.3 Muhammad Ayub, 1068/C is the witness of recovery proceedings and witness of recovery memo Exh.PC.
' P. W.4 Muhammad Iqbal 127/C was handed over the sealed parcel of blood-stained earth, which he delivered in the office of the Forensic Science Laboratory, Lahore, intact.
' P.W.5 Ghulam Abbas is the complainant of this case, who supported the prosecution version.
' P.W.6 Qamer ul Zaman is the eyewitness of the occurrence, who supported the version taken by the complainant.
' P. W. 7 Muhammad Akhtar HC/952 is the formal witness of the prosecution. The 10 handed over him sealed parcel said to contain blood-stained earth for safe custody in Malkhana. Afterwards he handed over the same to Safdar lqbal, Constable/1147 for its onward transmission to the office of the Chemical Examiner, Lahore.
' P. W.8 Ghulam Mahay ul Din, A.S.-I. Was handed over the sealed parcel of .12-bore gun, for safe custody. Afterwards he handed over the same to Muhammad Iqbal, Constable on 22-10-1997 for its onward transmission to the office of the Forensic Science Laboratory, Lahore. P. W.9 P.W.10 Ashiq Ali and Muhammad Rafique were the witnesses of abetment.
' P.W.11 Safdar Iqbal, 1147/C transmitted the sealed parcel said to contain blood-stained earth to the Chemical 'Examiner, Lahore.
' P. W.12 Muhammad Raees, S.-I. And P.W.13 Muhammad Aslam A.S.-I. Conducted the investigation of the case and deposed regarding the steps of investigation conducted by them.
' P.W.14 Mukhtar Ahmad A.S.-I. Was a formal witness who on 25-3-1997 on receipt of the complaint Exh.PD drafted formal F. I . R. Exh.PD/1.
' P.W.15 Dr. Altaf Hussain Malik deposed that as per record of the hospital, Qalib Abbas son of Ghularn Abbas r/o Chak No.52/12.L, Tehsil Chichawatni, District Sahiwal was admitted in Orthopedic Unit BV Hospital, on 3-7-1997 as a case of Reflex Sympathetic Dystrophy of both lower limps after history of firearm injury three months ago. Later on in consequence of this injury due to prolonged bed ridden, he died due to pulmonary embolism vide indoor Register No.3362/ 20332. He expired on 19-7-1997 in that hospital. Exh.PJ is the original death certificate issued by him. It was duly signed by him. Exh.PJ/1 was the attested copy of the hospital record in this respect.
' P.W.16 Noor Muhammad, Inspector recorded the statements of P.Ws. Namely Muhammad Akhtar, Moharrar and Safdar Iqbal 1147/C under section 161 of Cr.P.C.
7. The Deputy District Attorney gave up Ghulam Muhammad Constable No.897, Muhammad Latif, Karam Din, Mulazim Hussain and Muhammad Hussain 1197/C P.Ws. Being unnecessary and tendered in evidence the report of Chemical Examiner Exh.PK, that of Serologist Exh.PL and the report of Forensic Science Laboratory, Lahore Exh.PM and closed the prosecution case.
8. After recording the prosecution evidence, the accused persons were examined under section 342 of Cr.P.C. Wherein they stated that they do not want to appear and depose on oath as 'required under section 340(2) of Cr.P.C. In reply to the question that why this case is against you and why the P.Ws. Have deposed against you, the appellant Ghulam Shabbir replied as under:-- "I have been falsely implicated in this case due to enmity. It was an unwitnessed occurrence. P.
Ws. Being interested and inimical towards me, they have made false statement."
9. Mirza, accused while replying to this question replied as under:-- "I have been involved in this false case due to enmity. The P. Ws. Are interested and inimical towards me and for this reason they have deposed against me falsely."
10. Zahoor Ahmad, accused while replying to this question replied as under:- "It is a false case. It was an un- witnessed occurrence. The prosecution has falsely involved me and my co-accused in this case due to enmity. The P. Ws. Are interested and inimical towards us."
11. After conclusion of the trial above mentioned conviction and sentence was passed against the appellants/accused persons.
12. Learned counsel appearing on behalf of the appellant submits that there is extra ordinary delay of four days in lodging the F.I.R. Which makes the whole prosecution story as doubtful; that in fact Imtiaz got a case F.I.R. No.208 of 1996 registered for the offence under sections 324 and 34 of P.P.C.
Against the complainant Ghulam Abbas for causing injuries to his brother so, in order to take revenge of his brother, Imtiaz only has committed this occurrence; that appellant is not connected with motive part of 'prosecution story and appellant is also not related with said Imtiaz so, there was no reason for appellant to commit this occurrence; that in order to prove ocular account Ghulam Abbas P.W.5, father of the deceased, Qamar ul Zaman P.W.6., a relative of the deceased were produced and no independent person has been produced by the prosecution to prove their case; that the allegation against the appellant is that he fired wit'. His gun at the right knee of the deceased hich is non-vital part of the body and had the appellant's intention to commit the murder of the deceased, he must had fired at some vital part of body of the deceased; that deceased died in the hospital on 19-7-1997 after about four months of the occurrence, in the meanwhile the injured came to his house and again he was admitted in the hospital due to some complication; that no post mortem examination was conducted on the dead body of the deceased Qalb-e-Abbas and complainant himself refused to get the post mortem examination done on his deceased son, so, no cause of death is available on the record, therefore, no offence under section 302 of P.P.C. Is made out against the appellant; that although gun was recovered at the pointation of the appellant but as no empty was secured from the place of occurrence so the recovery of gun is not a corroborative piece of evidence against the appellant. Learned counsel for the appellant further contends that the allegation against acquitted co-accused Zahoor Ahmad was that he fired with his Carbine which hit on the left leg of Qalb-eAbbas. Case of the appellant is similar with the case of Zahoor Ahmad, acquitted co-accused and the learned trial Court, while acquitting Zahoor Ahmad co-accused clearly opined that the complainant party had dragged maximum persons in this case and that there was no motive against acquitted co-accused Zahoor Ahmad, so, the appellant also merits acquittal. Learned counsel for the appellant has also contended that Criminal Revision No.69 of 2003 filed by the complainant for enhancement of sentence of the appellant is also baseless as prosecution could not prove the case against the appellant beyond reasonable doubt and even prosecution could not establish the offence under section 302 of P.P.C. In this case. So far as Criminal Appeal No.410 of 2002 filed by the complainant against the acquittal of Mirza and Zahoor Ahmad is concerned, it has been contended that there is no mention of evidence of abetment against Mirza, acquitted co-accused in the F.I.R. And prosecution concocted evidence of abetment after about one month of the occurrence which is not believable. It has further been contended that the prosecution also did not prove the case against Zahoor Ahmad, acquitted co-accused. He was also not connected with the motive part of prosecution story so learned counsel for respondents Nos.2 and 3 have requested for dismissal of the appeal against acquittal.
13. On the other hand learned Law Officer assisted by learned counsel appearing on behalf of the complainant submits that delay in lodging F.I.R. Has been explained by the complainant as on the same evening daughter of the complainant namely Mst. Musarrat Bibi died and due to that reason the complainant could not- lodge the report; that the prosecution has proved motive that Imtiaz lodged a case against the complainant Ghulam Abbas under section 324 of P.P.C. And due to that reason Imtiaz has taken revenge from son of the complainant so, prosecution has proved motive of the occurrence against Imtiaz; that the appellant is nominated in the F.I.R. With specific role that he was armed with gun .12-bore and he fired at Qalb-e-Abbas which landed on right knee of the deceased; that the appellant led to the recovery of gun and according to the report of Forensic Science Laboratory, Lahore, the gun was in working condition so, the recovery of gun is a corroborative piece of evidence against the appellant. The learned counsel for the complainant stated that as Dr. Altaf Hussain Malik P.W.9 has given the cause of death of the deceased, so the offence under section 302 of P.P.C. Has been proved against the appellant whereas learned Law Officer has frankly conceded that as post mortem examination was not conducted on the body of the deceased and complainant is himself responsible for that so no offence under section 302 of P.P.C. Is made out against the appellant.
14. Learned counsel for the complainant/petitioner contends that prosecution has proved the case against Ghulam Shabbir, respondent/accused beyond reasonable doubt so by accepting Criminal Revision No.69 of 2002, filed by the complainant, the sentence of Ghulam Shabbir be enhanced from Life Imprisonment to Death. It has further been contended by learned counsel for the complainant/appellant that Criminal Appeal No.410 of 2002 filed by the complainant, against the acquittal of Zahoor Ahmad and Mirza, accused/respondents Nos.2 and 3 be accepted as there is ample evidence against both the acquitted accused persons to connect them with the commission of offence and learned trial Court has acquitted them on flimsy grounds which has resulted into grave miscarriage of justice.
15. We have heard the learned counsel for the parties and gone through the record.
16. This occurrence took place on 21-3-1997 at 8-00 a.m., whereas the complainant lodged report Exh.PD on 25-3-1997 at about 8-30 a.m. With the delay of four days. The reason for delay in lodging F.I.R. Given by the complainant is that he could not report the matter on the day of occurrence as his daughter Mst. Musarrat Bibi died on the same evening after hearing the death of her brother, with the shock and that he was busy in the treatment of his son and could not approach the police.
17. The appellant produced a copy of death certificate (Exh.DE) which reveals that Mst. Musarrat Bibi died on 25-3-1997 so, the reason of the delay in lodging F.I.R. Given by the complainant is falsified by the record as according to the complainant she died on the day of occurrence. It is pertinent to mention here that as per version of the complainant her daughter Mst. Musarrat Bibi died on the day of occurrence, after hearing the death of his brother but in this case Qalb-e-Abbas received injuries on the day. Of occurrence and he died on 19-7-1997 after about four months of the occurrence. So, this extra ordinary delay in lodging F.I.R. Shows that A it was lodged after deliberations and consultations. The appellant and acquitted co-accused Zahoor Ahmad and Mirza have also been involved in this case who are related to the appellant Imtiaz and no motive has been alleged by the complainant against them. The prosecution is silent as why appellant fired at the deceased when he was not inimical towards the complainant party. In our view the appellant has falsely been involved in this case by the complainant due to the reason best known to him after due consultations and deliberations.
18. Now coming to the motive part of the prosecution story, about four months prior to this occurrence somebody injured brother of Imtiaz and Imtiaz had suspicion that complainant party was involved in that occurrence and due to this grudge, instant occurrence took place.
19. To prove motive, prosecution produced Ghulam Abbas P.W.5. Perusal of his statement reveals that a case F.I.R. No.208 of 1996 was registered against him(complainant) and he was nominated in said F.I.R. And allegation against him was that he caused injuries to Murtaza, brother of Imtiaz. The perusal of record also reveals that Murtaza, brother of Imtiaz was given injuries on his leg by the complainant and the doctor had to cut his leg in order to save his life. In the present case Qalb- eAbbas, the son of the complainant received all injuries on his legs which reveals that in order to take revenge of Mutraza, who was injured by the complainant, Imtiaz gave injuries on the legs of Qalb-e-Abbas son of the complainant: Although prosecution proved motive to the extent of Imtiaz but failed to prove motive of the occurrence against the appellant. Ghulam Shabbir, appellant and acquitted co-accused Mirza and Zahoor Ahmad are neither related with Imtiaz nor he is inimical towards the complainant. The complainant did not give any reason that why the appellant fired at his son Qalb-e-Abbas. 'The prosecution did not prove motive to the extent of the appellant and acquitted co-accused.
20. The ocular account in this case has been furnished by P.W.5 Ghulam Abbas and Qamar ul Zaman P.W.6. P.W.5 is father of the deceased. According to his evidence, he along with Muhammad Lateef, who is his maternal nephew, were proceeding on a Tractor towards Bangla Akan Wala in order to purchase diesel and that he saw the 'occurrence from a distance of two acres. During investigation P.W.5 Ghulam Abbas did not produce the Tractor on which they were proceeding at the time of occurrence. Ghulam Abbas, father of the deceased is a chance witness and he has created a false reason that he along with Muhammad Latif were proceeding two acres behind his son and Qamar ul Zaman. Keeping in view the extraordinary delay in lodging F.I.R. We are of the considered view that Ghulam Abbas P.W.5 was not present at the spot at the time of occurrence.
Had he been available at the time of occurrence he must have reported the matter to the police, immediately. The extraordinary delay of four days in lodging F.I.R. Is also suggestive of the fact that the complainant was not present at the time of occurrence rather the injured was shifted to the hospital and he was informed thereafter, so, the evidence of Ghulam Abbas, father of the deceased is not reliable.
21. So far as the evidence of Qamar ul Zaman P.W.6 is concerned, he was proceeding to school along with Qalb-eAbbas, deceased at the time of occurrence and Qamar-ul-Zaman P.W.6 has also stated that he along with Qalb-e-Abbas, deceased, was going to school in order to sit in examination as the examination had commenced. Qamar-ul-Zaman P.W.6 is natural witness as he was also studying in the same school in which Qalb-e-Abbas, deceased was studying. Both were proceeding to school, when occurrence took place so the evidence of Qamar ul Zeman P.W.6 is reliable and he is natural witness of the occurrence. He has categorically stated that when he along with Qalb-eAbbas were proceeding towards school, Imtiaz armed with .12-bore gun along with his co-accused reached there and raised Lalkara that he was going to take revenge of his brother and fired with his gun on Qalb-e-Abbas hitting him on his left leg whereas second fire of Imtiaz hit on the right knee of Qalb-e-Abbas. Qamar-ulZaman P.W.6 remained constant on each and every material point during his cross-examination. His evidence is reliable and confidence inspiring to the extent of co-accused Imtiaz. Although Qamar-ul-Zaman P.W.6 has stated that the appellant also fired on the right knee of the deceased but to the extent of appellant his evidence can not be believed as it has already been observed that the appellant is neither related with co- accused Imtiaz nor motive is attributed to -the appellant. It seems that Qamar-ul-Zaman P.W.6 has involved the appellant at the instance of complainant party. It has also been noticed that the allegation against Zahoor Ahmad acquitted co-accused was that he fired with his Carbine which hit Qalb-e-Abbas on his left leg. Learned trial Court, while acquitting Zahoor Ahmad opined that the complainant has dragged Zahoor Ahmad in this case in order to pressurize the other party or to hinder the persons of other party from pursuing the case. There was no motive against Zahoor Ahmad acquitted co-accused also. Case of appellant Ghulam Shabbir is also at par with acquitted co-accused Zahoor Ahmad. So, in our view the prosecution has failed to prove this case beyond reasonable doubt against Ghulam Shabbir, appellant and he has been falsely involved in this case due to the reason best known to the complainant.
22. The Medico-legal Report. Exh.PB of Qalb-e-Abbas, deceased, in injured condition, reveals that no injury of the Qatl-e-Abbas was declared to be dangerous to life by the doctor as all the injuries were on legs, the non-vital parts of the body. The perusal of the record reveals that Qalb- e-Abbas was admitted in Bahawal Victoria Hospital, Bahawalpur and he was discharged from the said hospital and he came to his house. He was again admitted in Bahawal Victoria Hospital, Bahawalpur for the second time on 6-5-1997. He was again discharged and he came back to his house. Thereafter, he was admitted in Bahawal Victoria Hospital, Bahawalpur for the 3rd time on 3- 7-1997 and ultimately he succumbed to his injuries on 19-7-1997. Perusal of record reveals that during this period he remained conscious but during this period his dying declaration was not recorded by the I.O. After the death of Qalb-e-Abbas, no post mortem examination was conducted upon his dead body. The perusal of statement of Muhammad Aslam A.S.-I. P.W.13 reveals that he wanted to get the deceased Qalb-e-Abbas examined through autopsy but complainant party hurriedly buried the deceased and complainant party was not inclined that post mortem examination should be conducted on the dead body of Qalb-e-Abbas, deceased. It is also pertinent to mention here that District Magistrate Sahiwal vide his order dated 10-9-1997 ordered that post mortem examination on the dead body of Qalb-e-Abbas, deceased be conducted.
Complainant Ghulam Abbas filed Revision Petition against the order dated 10-9-1997 of the District Magistrate before learned Addl. Sessions Judge, Sahiwal. In this Revision Petition, the 'complainant sought that order of the learned District Magistrate dated 10-9-1997 whereby he ordered for disinterment of the grave of Qalb-e-Abbas for the purpose of its post mortem examination, be declared illegal. On 22-10-1997 the Criminal Revision of the complainant Ghulam Abbas was dismissed and order of the District Magistrate for conducting post mortem examination on the dead body was upheld. Learned counsel for 'the complainant has conceded that after the dismissal of Revision Petition, the complainant approached the Hon'ble High Court in Writ Jurisdiction so that the post mortem examination should not be conducted on the dead body of Qalb-eAbbas, deceased and ultimately autopsy was not conducted on the dead body of Qalb-e- Abbas, deceased due to the effort of the complainant himself.
23. Prosecution has produced Dr. Altaf Hussain Malik (P.W.15), who has deposed that as per record of the Bahawal Victoria Hospital, 13ahawalpur, Qalb-e-Abbas, died due to pulmonary ambulizm and basic cause to pulmonary ambulizm was first injury received on the person of Qalb-e-Abbas.
Doctor has admitted that Qalb-e-Abbas never remained under his personal treatment and his opinion was based on the record of the hospital. The evidence of this P.W. Is secondary evidence.
The record is silent that why the doctor under whose treatment Qalb-e-Abbas remained, till his death, was not produced. This doctor simply issued death certificate after going through the record. However, according to the opinion of this doctor the deceased expired due to complication of the injury. As doctor has no direct knowledge of the treatment of Qalb-e-Abbas so his opinion regarding the cause of death cannot be given much weight. As no post mortem examination was conducted on the dead body of Qalb-e-Abbas, so, the cause of death of Qalb-e-Abbas, deceased cannot be ascertained with certainty. Learned Law Officer has frankly conceded that as prosecution did not prove the cause of death in this case, so, no offence under section 302 of P.P.C.
Is made out. Learned counsel for the complainant was also unable to controvert the contention raised by the learned Law Officer as he also could not satisfy this court regarding the cause o death of the deceased.
24. So far as the recovery of gun from the appellant is concerned, he led to the recovery of .12-bore gun. Perusal of the record reveals that no empty was secured from the place of occurrence so in the absence of report of Forensic Science Laboratory in this regard the recovery of gun from the possession of the appellant is inconsequential and cannot be used against him.
25. As we have already discussed that there is no motive against Ghulam Shabbir, appellant and prosecution has failed to prove its case beyond reasonable doubt against Ghulam Shabbir, appellant and that no offence under section 302 of P.P.C. Is made out as there is no cause of death available on the record, so we accept Criminal Appeal No.132 of 2002 filed by Ghulam Shabbir, appellant, by setting aside the judgment dated 31-1-2002 passed by learned Addl. Sessions Judge, Chichawatni. Ghulam Shabbir, appellant is acquitted of the charge and he be released forthwith, if not required in any case.
26. As we have acquitted Ghulam Shabbir, appellant, so the Criminal Revision No.69 of 2002 filed by the complainant for enhancement of sentence of Ghulam Shabbir is dismissed.
27. So-far as Criminal Appeal No.410 of 2002 filed by the complainant against the acquittal of Mirza and Zahoor Ahmad, respondents Nos.2 and 3, is concerned, it has been noticed that there is no evidence in the F.I.R. Regarding abetment against the acquitted co-accused/respondents No.2 Mirza. The perusal of the record reveals that on 16-4-1997 after about one month of registration of F.I.R., the prosecution produced Ashiq Ali P.W.9 and Muhammad Rafique P.W.10, whose statements under section 161 of Cr.P.C. Were recorded regarding the abetment. Perusal of their statements reveals that Mirza, acquitted co-accused directed other co-accused to commit the murder of son of Ghulam Abbas, complainant, when he was sitting in a hotel. It is quite unnatural that a, person would instigate his co-accused for committing murder, while sitting in a hotel, which is a public place and as the statements regarding abetment have been recorded after the delay of about one month so, no reliance can be placed on such statements and it is clear that these statements were procured after consultations and deliberations by the prosecution. So far as acquittal of Zahoor Ahmad, acquitted co-accused/respondent, is concerned, he is not connected with the motive part of the prosecution story. The prosecution did not prove the offence under section 302 of P.P.C. In this case as post mortem examination on the dead body of the deceased was not conducted and there is no opinion of the doctor regarding the cause of death of the deceased. Mirza and Zahoor Ahmad, respondents Nos.2 and 3 were acquitted by the learned trial Court on cogent reasons, after discussing the evidence available on the record. No infirmity, legal or otherwise, was found in the impugned judgment of acquitted passed by the learned trial Court, calling for interference of this court. So, Criminal Appeal NO.410 of 2002 filed by the complainant against acquittal of respondents Nos.2 and 3 (Mirza and Zahoor Ahmad) is also dismissed.