CH. MUSHTAO AHMAD, J. Appellant Muhammad Yar alias Mami has challenged his conviction and sentence through this Criminal Appeal. He was tried by learned Additional Sessions Judge, Vehari in case FIR No.646 dated 06.10.2005 under section 302, 34 PPC registered at Police Station Saddar, District Vehari. He was convicted by learned Additional Sessions Judge, Vehari vide judgment dated 28.11.2006 under Section 322 PPC and sentenced to pay amount of Diyat Rs.6,55,482/- in three equal instalments. Feeling aggrieved, he has preferred this appeal.
2. Briefly, facts of the case are that Shamshad Ali complainant got recorded his statement Ex.PA on 06.10.2005 alleging therein that on 05.10.2005 Abdul Jabar, his brother and Intizar Hussain, his partner, after purchasing buffalo and calf from Chak No.198/EB were going to Chak No.188/EB to their house. Calf was small and was not in a position to walk, hence, his brother sent Intizar Hussain for fetching cart from house. Said Intizar Hussain went to Chak No.188/EB on motorcycle for fetching cart. Meanwhile, Muhammad Ashraf told him that he was coming from Vehari. When he reached on metalled road leading to Chak No.198/EB near Dera of Nazar Muhammad, he saw in the light of motorcycle that Sher Muhamad, Mami and two other unknown persons were inflicting blows to Abdul Jabbar with Butt of gun and sotas. Abdul Jabbar fell there and accused fled away on motorcycle. He further told that after receiving said information he alongwith Intizar Hussain, Fareed, Sarfraz reached the place of occurrence on car and saw that his brother was lying on road side. Blood was oozing from his nose and mouth and there was swelling on his face. They shifted him to the Civil Hospital, Vehari then, he was referred to Nishter Hospital and on next day at about 10.00 a.m, he succumbed to injuries. Motive behind the occurrence was that accused were going on motorcycle and said motorcycle struck against buffalo. Due to that reason, hot words were exchanged between them. Accused got angry and injured his brother who later on succumbed to injuries.
3. After submission of challan, charge was framed against the appellant, to which he denied and claimed trial. Thereafter, prosecution evidence was recorded. Case was firstly investigated by Haq Nawaz SI (PW-06) who prepared injury statement, inspected place of occurrence, recorded the statements of PWs and prepared rough site plan as well as recovery memo of motorcycle, then investigation was entrusted to Muhammad Jameel SI who arrested the appellant. PW-4 Dr. Muhammad Aslam, M.O, conducted autopsy on the deadbody of deceased Abdul Jabbar and noted two injuries on his deadbody. In his opinion, injury No.1 was ante-mortem caused by blunt weapon and was sufficient to cause death in ordinary course of nature. After recording prosecution evidence, statement of appellant was recorded under Section 342 Cr. P.C and at conclusion of trial, appellant was convicted and sentenced as mentioned above, hence, this criminal appeal.
4. Contention of learned counsel for the appellant is that prosecution version in this case was not confidence inspiring and the same was also disbelieved by learned trial court but inspite of that present appellant was convicted on the ground that he himself had admitted that it was an accident case, therefore, he was liable to be punished under section 322 PPC and that conviction recorded by the trial court in this case was unwarranted and not sustainable.
5. Conversely learned Deputy Prosecutor General assisted by learned counsel for the complainant has supported the impugned judgment.
6. Arguments heard. Record perused.
7. In the present case ocular account was furnished by PW-1 Shamshad Ali, PW-2 Intizar Hussain and PW-3 Qurban Ali. The case was got registered by PW-1 Shamshad Ali who is brother of the deceased Abdul Jabbar. He alleged that at the time of occurrence he alongwith Abdul Jabbar (deceased) and Intizar Hussain PW-2 went to purchase a buffalo. After purchasing buffalo they were coming to Chak No.188-EB. Intizar Hussain was sent to fetch bull-cart in order to shift calf of buffalo. According to his version, accused Muhammad Yar alias Mami (appellant) alongwith unknown persons caused injuries with butt of the gun and sotas to Abdul Jabbar and then fled away. Abdul Jabbar was found lying on metalled road and blood was oozing from his mouth and ear. They took him to Civil Hospital, Vehari but the doctor referred him to District Hospital where he died on the following day.
8. According to his version motive for the occurrence was that motorcycle of the accused struck against buffalo, on which an altercation took place between Abdul Jabbar deceased and accused persons due to which they murdered him.
9. PW-2 Intizar Hussain deposed on the same lines before the court. Qurban Ali PW-3 stated that on 05.10.2005 at 7.00 p.m. he was going to Chak No.188-EB on motorcycle. When he reached near sugarcane field of one Nazar Hussain he saw Abdul Jabbar lying in injured condition who informed him that Sher Muhammad alias Mulazim Hussain and Yar Muhammad alias Mami alongwith unknown accused person had caused injuries to him. According to him Muhammad Ashraf PW came and informed them that accused were giving beating to Abdul Jabbar. On receiving this information they went at the spot and found Abdul Jabbar lying in injured condition.
10. Learned trial court while considering ocular account furnished by the PWs concluded that PW Qurban Ali did not disclose the fact of causing injuries to deceased Abdul Jabbar by the accused.
The other witnesses were not present at the spot which is evident from their statements, therefore, the version as put-forth by the prosecution witnesses, was not correct; rather Abdul Jabbar, deceased had received injuries during an accident. At the time of occurrence appellant Muhammad Yar alias Mami was driving motorcycle whereas his co-accused were sitting on his back side who were going with him on the same motorcycle. After concluding that version of the witnesses was false, learned trial court acquitted appellant under section 302 PPC and held him responsible to pay Diyat to legal heirs of the deceased as provided under section 322 PPC.
11. The discussion made above shows that prosecution evidence was disbelieved by learned trial court and present appellant was convicted on his own statement recorded under section 342 Cr.P.C. The question that arises for consideration is whether after dis-believing prosecution version accused could be convicted on the basis of his statement recorded under section 342 Cr.P.C. To determine liability of the appellant his statement has to be looked into. Record shows that appellant in answer to Question No.4 "Why this case against him and why the PWs deposed against him" stated that "complainant got the case registered with malafide intention. In fact it was just a road accident. The buffalo purchased by Abdul Jabbar deceased got scared due to light of motorcycle and ran over the motorcycle. Resultantly, all the accused as well as Abdul Jabbar, deceased sustained serious injuries. His version was supported by Doctor who medically examined Abdul Jabbar when he was brought to the hospital in injured condition as he had also medically examined him at the same time". He further stated that during all investigations same conclusion was reached by the investigating officers.
12. Above referred statement of appellant reveals that he has not admitted his guilt rather his statement was exculpatory in nature. Law is well settled that it is duty of the prosecution to prove charge against the accused beyond reasonable doubt. It is also well settled that where prosecution version is dis-believed, statement of the accused is to be considered as a whole and not in piece meal. The conviction recorded in this case by the trial court, for the reasons given above, is not sustainable.
13. Consequently, this appeal is allowed. The impugned conviction and sentence is set aside.
Appellant Muhammad Yar alias Mami is acquitted of the charge. Presently, he is on bail. His bail bonds are discharged.