' MAZHAR IQBAL SIDHU, J.---This judgment will dispose of above captioned criminal appeal, filed by Khursheed alias Dara appellant who was prosecuted to trial to conviction and sentenced by learned Addl: Sessions Judge, Arifwala in case F.I.R. No,217 dated 15-5-2004 under sections 396, 302, - 34, P.P.C. Registered at Police Station City Arifwala, District Pakpattan vide impugned judgment dated 30-8-2006. Infra convictions and sentences were imposed on the appellant:- Khursheed alias Dara ' Under section 302(b), P.P.C. Convicted and sentenced to life imprisonment as tazir along with compensation of Rs,2,00,000 to be paid to the legal heirs of the deceased.
(ii) Under section 396, P.P.C. Sentenced to 10 years with fine of Rs,50,000 or in default thereof further undergo S.I. For six months.
' Both the sentences were ordered to run by pari passu.
' Benefit of section 382-B, Cr.P.C. Was extended.
2. Briefly the prosecution case as narrated by complainant Muhammad Younis (P.W.5) is that he is resident of 329 M, Block Arifwala. His son Muhammad Majid was free after taking matriculation examination. At 8-00 a.m. He was returning after dropping the children at school on a motorcycle applied for without number. When he reached behind the street of Arifwala Public School, a noise raised. The complainant along with Muhammad Aslam son of Siraj Din and Muhammad Ahmad son of Muhammad Hanif along with other residents of the Mohallah who were sitting in the street went towards that place. They saw that a person was snatching motorcycle from his son Muhammad Majid and within their view he fired two pistol shots at Muhammad Majid which hit on the left side of his chest who fell down and succumbed to the injuries. The accused person succeeded in fleeing away on the motorcycle of Muhammad Majid. The complainant and the witnesses could identify him if he comes before them.
' After 10-15, minutes police arrived at the place of occurrence, where he submitted a jotted application Exh.PE/1 for registration of the case, accordingly, the case was registered and investigation was undertaken.
' On 16-11-2004 a motorcycle unbefriendly left was taken into possession through memo Exh. PG by the Investigating Officer on the pointing out of the P.Ws. And the same was identified by the P.Ws.
To be of the deceased and allegedly the appellant on the same day through memo Exh.PG/1 while in police custody made disclosure and got recovered motorcycle, P-5 thrown away in the canal.
3. Rao Shamsher Ali M.0, THQ, Hospital Arifwala conducted the postmortem examination on the dead body of Muhammad Majid on 15-5-2004 at about 10-50 a.m. And he observed the following injuries:-
(i) Fire arm lacerated entrance wound 1 cm x 1 cm on front of left chest, 2.5 cm medial to left axilla.
(ii) A fire arm lacerated entrance wound 1 cm x 1 cm on front of left chest.
2.5 cm medial to injury No,
1. Burning and blackening present on the margins of wounds.
' Corresponding hole in shirt present.
REMARKS: ' According to the opinion of the doctor, cause of death was due to haemorrhage (internal and external) shock, leading to cordiorestiratory failure, which was sufficient to cause death in ordinary course of nature. All the injures were ante-mortem. Time between injury and death almost immediately and between death and post-mortem was about two hours. Exh.PA, post-mortem report and Exh.PA/1 were diagrams showing the locale of injuries, initialed and signed by him. He also endorsed the Exh.PB, the inquest report and an injury statement Exh. PC. Upon the completion of investigation, the matter was placed before the learned trial Court for trial where prosecution produced as many as 11 witnesses to prove the charge against the appellant.
4. Learned D.D.A, ceded P.Ws: namely Muhammad Shafique, Mirza Firdos, Abdul Razzaq, Ashraf, Farhan, Muhammad Din and Muhammad Aslam 400/C being unnecessary and by tendering in evidence report of Chemical Examiner Exh.PN and report of Forensic Science Laboratory Exh.PO closed the prosecution case.
5. The learned trial Court also examined the appellant under section 342, Cr.P.C. While posing innocence gainsaid the charges. However, did not opt to be examined under section 340(2), Cr.P.C.
But produced the defence evidence as Exh. DA to Exh. DS and then closed it down.
Muhammad Khursheed alias Dara appellant while answering to question "why this case was made against you and why the P.Ws. Deposed against you.? Replied as under:-- "It is false case registered against me and my co-accused. I was already in police custody.
Regarding this my brother Ali Sher filed a petition under section 491-A, Cr.P.C. Before the learned Sessions Judge, Pakpattan. On 1-6-2004 I was produced by the police before the Hon'ble Sessions Judge, Pakpattan and the learned Sessions Judge, released me from the police custody. On the direction of the court, I was not medically examined and Ch. Muhammad Rafiq S.H.O. Police Station City, Arifwala arrested me as soon as when I released from the court and involved me in this unseen occurrence. All the proceedings and diaries are ante-dated."
' The learned trial Court vide judgment dated 30-8-2006, convicted and sentenced the appellant as mentioned op.Cit, hence this appeal.
8. Record has been devoured with by the learned D.P.G.
9. It has been noticed that the appellant was not nominated in the F.I.R., thereafter involved along with others and kept him by the police in an unlawful custody and for his recovery an application was filed under section 491, Cr.P.C. In which the report was made by the police that on 1-6-2004 the petitioner-appellant was detained in the police lock up vide Rapat No,07 whereas the plea of the appellant was of his arrest on 25-4-2004, consequently the police involved the appellant in this case. However, after his arrest, no test identification parade has been held to identify him; the report of the Forensic Science Laboratory does not connect the appellant with the commission of crime because it reveals that percussion caps of the spent crime empties of .30-bore caliber were not present; alleged motorcycle was not recovered from the possession of the appellant but it has taken into possession on 16-11-2014 as res nullius and so far as his pointing out of the place is concerned, this piece of evidence is inadmissible and irrelevant by Article 40 of the Qanun-e- Shahadat Order,1984, so in all circumstances; the prosecution case has not been assessed to have been proved against the appellant, beyond shadow of reasonable doubts, therefore, this appeal is allowed, the conviction and sentence of the appellant through the impugned judgment is set aside and he is acquitted of the charges by extending the benefit of doubt. He is on bail. His surety is discharged from the liability owed by him.
10. Office to send the Photostat copy of this judgment on the given address of the appellant of his acquittal.