' ABDUL LAT1F KHAN, J.---Through this single judgment, we propose to dispose of Criminal Appeal No,16-D of 2012 (Muhammad Saleem and another v. The State and another), Murder Reference No,3-D of 2012 and Criminal Appeal No,20-D of 2012 (Muhammad Saqib v. Muhammad Saleem and two others) as all the three matters are the outcome of one and the same judgment dated 19-3- 2012 passed by the learned Additional Sessions Judge-VI, D.I. Khan vide which appellant Muhammad Aslam was convicted under section 302, P.P.C. And sentenced to death and on. Further conviction under section 337-F(iii), P.P.C., he was directed to pay Rs,20,000 as Daman to complainant and on conviction under section 13, Arms Ordinance, both the appellants namely Muhammad Saleem and Muhammad Aslam were sentenced to undergo simple imprisonment for three months each whereas both the appellants were acquitted of the charge under sections 324/427, P.P.C. Benefit of section 382-B, Cr.P.C. Was extended to both the appellants. The appellants have filed appeal against their conviction and sentence while complainant Muhammad, Saqib has filed Criminal Appeal No,20-D of 2012 against acquittal of the appellants under sections 324/427, P.P.C.
2. The brief facts giving rise to the appeals are that on 23-3-2011 at 2020 hours, complainant in injured condition reported to the local police that he along with his father went to bazaar for shopping and after purchasing some articles, when they were on their way back near Hanif Town street/road near the house of one Qadir Khan at about 1945 hours, accused Aslam, Safdar, Saleem and Tanvir appeared from a vacant plot and started firing upon them as a result of which, he and his father sustained injuries and fell down. They were being taken to the hospital by their relatives when his father succumbed to the injuries.
3. After completion of usual investigation, challan against the appellants was submitted before the learned trial Court where they were formally charged to which they did not plead guilty and claimed trial. The prosecution in order to prove its case against the appellants, examined eleven witnesses. The appellants were also examined under section 342, Cr.P.C. However, they neither appeared as their own witnesses on oath nor produced any evidence in their defence. After hearing the arguments, the learned trial Court convicted and sentenced the appellants as mentioned above vide impugned judgment dated 19-3-2012.
4. It is pertinent to note that vide order sheet dated 11-12-2013, proceedings against appellant Mohammad Aslam have been abated as he has been killed by terrorists during Jail attack on 29- 7-2013 as per report of Superintendent Central Prison, D.I. Khan. In such circumstances, the Murder Reference No,3-D of 2012 has become infructuous and is answered in the negative.
5. Mr. Ghulam Hur Khan Baloch, learned counsel for appellant Muhammad Saleem contended that it is a case of no evidence. The evidence is full of contradictions and improvements have been made in the prosecution case. The version of F.I.R. Is contrary to evidence and medical evidence also negates the prosecution version. No case has been made out against the appellant and he has been rightly acquitted by the learned trial Court. It was contended that conviction of appellant under section 13, Arms Ordinance was not in line with law, as no legal recovery has been made from the appellant. He contended that fake recovery of two pistols procured, one planted by the local police.
6. As against that, Mr. Sanaullah Shamim Gandapur, learned A.A.G assisted by Mohammad Wahid Anjum, Advocate for the complainant contended that appellant was wrongly acquitted of the charge under sections 302/324/337-F(iii)/427, P.P.C. It was contended that the appellant was directly charged and the witnesses produced by the prosecution are consistent. It was argued that there is ample evidence to connect the appellant with the offence. It is added that presence of the injured complainant on the spot is established, as he was hit by the accused. According to learned counsel, trial Court has not properly evaluated the evidence on record, therefore, acquittal order being contrary to available evidence may be set aside and the appellant be convicted and sentenced under sections 302/324/337-F(iii)/427, P.P.C. They supported the impugned judgment in respect of conviction of the appellant under section 13, Arms Ordinance and argued that trial Court has rightly convicted and sentenced the appellant in accordance with law.
7. We have given our thoughtful consideration to the arguments of learned counsel for the parties and perused the record with their able assistance.
8. The perusal of record reveals that injured complainant, in his report to the local police, reported that at the relevant time, he along with his father (deceased) were on their return from bazaar and when reached near the house of one Qadir Khan, accused Mohammad Saleem along with Muhammad Aslam accused (killed) and absconding accused Safdar and Tanvir opened fire upon them, due to which he and his father received injuries. His father died on the way to hospital. In the F.I.R., the complainant has not named anyone as eye-witness, rather alleged that persons present nearby have witnessed the occurrence. He has not named anyone in Court's statement as eye- witness but P.W.3 examined who deposed as eye-witness and alleged to have seen the occurrence, which runs counter to prosecution version. He also named Abdul Latif and Qadir Khan, who have witnessed the occurrence, as they attracted to the spot, but none of them has been produced in the evidence. The presence of Ghulam Mustafa (P.W.3) on the spot is not shown by the complainant, so, these two eye-witnesses allegedly present on crime venue have contradicted each other.
9. The occurrence took place at 7-45 p.m. In the night on A 23-3-2011. The site plan was prepared on the pointation of Ghulam Mustafa, who has introduced bulb at point "C". The F.I.R. Is silent about 'light or bulb, however, deposed by complainant in his Court statement in order to toe the line set by. Ghulam Mustafa in site plan. His house is shown at point No,7,. No distance shown between point "C" and point No,7. However, the said Ghulam Mustafa remained with the Investigating Officer throughout in the investigation as he has witnessed almost all the recovery memos. The house of Ghulam Mustafa shown in the corner of street also creates doubt, as he has mentioned his address as resident of Thoya Fazil. He has also admitted that his house is situated in Thoya Fazil. He has not disclosed the reason of his presence on the spot. If his house shown in site plan at point No,7 is admitted, even then his abode is at village Thoya Fazil, thus his presence on the spot cannot B be taken as natural, rather seems to be planted, with special reference to relation with deceased, as he is real maternal uncle of complainant. In entire evidence, this relation has been tried to be concealed, which also speaks loudly about malice on the part of complainant. Not a single witness has been examined from the locality. The version of complainant that he along with his father (deceased) were on return from bazaar, where they had gone for purchase of articles which are neither taken into possession nor mentioned anywhere in investigation or evidence. No point shown in site plan, wherefrom empties recovered. The allegation of indiscriminate firing, has been levelled but no mark on any conspicuous place has been shown. There is no circumstantial evidence which could corroborate the ocular account furnished by the prosecution witnesses. No recovery of crime empty has been effected from the crime site by the Investigating Officer. The Investigating Officer has admitted in cross-examination that no specific mark shown in site plan wherefrom empties of .30 bore and .9 mm recovered. Site plan contradicts the ocular C account.
The accused was arrested on 16-5-2011 and joint recovery of separate pistols made at the instance of accused and co-accused (now dead) vide recovery memo on 17-5-2011 from a locked house, which is highly doubtful. The appellant is not charged for firing at any of the victim. The firing was allegedly made through .30 bore pistols and .9 mm. No recovery of crime empties from the place of appellant made by the Investigating Officer. The story of two motorcycles does not stand to reasons, as complainant and deceased (son and father) while going to bazaar for purchase of articles, should normally use one motorcycle, when on return too they were together. The motorcycle also have marks of firing whereas the other motorcycle has been planted as there are no marks on it and in peculiar circumstances of the case, its existence is doubtful. None from the locality has been examined by the Investigating Officer.
10. The medical evidence is not in line with prosecution version, with special reference to the dimension of entry wound which does not commensurate with shot of .30 bore pistol.
11: Quite apart from this, the statement of appellant recorded under section 342, Cr.P.C. Is of vital importance. Answer to question No,15 is reproduced below:- "I am innocent and I have been falsely charged by the complainant. I am very much before the court and I am a handicap person and my right hand is completely damaged since my birth and I cannot walk frequently along with this I am sick person and even I am not able to hold pistol or gun etc. In fact due to previous the complainant has thrown wide net and has been implicated all the male members of our family."
' We have observed the physical condition of the appellant in the light of referred statement and found him in crippled position having gibbus/kyphosis or spinal flexion deformity. His right arm and hand is totally disabled having nono plagia/paralysis of arm. His case is distinguishable from other accused on the ground of his disability also. We have also inquired from the complainant about the physical status of appellant who confirmed it that he was disable by birth, which also casts heavy doubt in performance of role attributed to him in commission of offence.
12. The criterion laid down for treating approach against acquittal is different from that of appeals against conviction. Presumption of innocence of accused becomes double in case of acquittal. The findings of learned trial Court are not open to exception unless has obstinately blundered or reached to such distorted conclusions as to produce a positive miscarriage of justice.
13. The appellant was arrested on 16-5-2011 by the local police. Needless to mention that at the time of arrest, after complete body search and recovery of articles by police, accused are normally admitted to lock up. It does not stand to reason that keys were available in possession of accused who handed over the same to police to open the lock of house on next day of arrest wherefrom joint recovery of pistols was allegedly made. Whether keys were not taken on preceding day when accused arrested. These keys are not taken into custody through recovery memo. The lock is not taken into possession. Who was the owner of house and from which place of house, recovery allegedly made is shrouded in I mystery. No witness of recovery cited from the vicinity/place of recovery. This is sufficient to doubt the recovery of pistol and possibility IG of recovery being planted cannot be ruled out. The trial Court has not taken pain to probe into these points and has wrongly awarded conviction to appellant under section 13, Arms Ordinance, without assigning any plausible reasons.
14. For the reasons mentioned above, we accept Criminal Appeal No,16-D of 2012, set aside the impugned judgment to the extent of conviction of appellant Muhammad Saleem under section 13, Arms Ordinance and acquit him of the charge levelled against him. He is on bail and is discharged from the liability under the bail bond. Since appellant Muhammad Aslam has been killed, therefore, murder reference is answered in the negative whereas Criminal Appeal No,20-D of 2012 against acquittal is hereby dismissed.