1. Ch. Mushtaq Ahmad, J.--Through Criminal Appeal No. 605 of 2011 filed under Section 410, Cr.P.C.
2. Iqbal Nisar alias Bala (appellant) has assailed judgment dated 24.06.2011 passed by learned Additional Sessions Judge, Sahiwal in a private complaint titled "Alamgir Sohail vs. Iqbal Nisar alias Bala and four others", whereby he was convicted under Section 302(b), PPC and sentenced to death with payment of Rs. 50,000/- as compensation under Section 544-A, Cr.P.C. and in case of default in payment thereof, to further undergo simple imprisonment for six months. Co-accused Farman alias Rana, Shan, Khan alias Khazan and Sultan were acquitted of the charge vide same judgment, challenging whose acquittal complainant has filed PSLA No. 83 of 2011. Murder Reference No. 86 of 2011 has been sent by learned trial Court for confirmation of death sentence awarded to appellant. All these matters arise out of impugned judgment, therefore, we shall decide the same through this consolidated judgment.
3. 2.Brief facts of the case as disclosed in the private complaint are that on 28.03.2008 at about 09:30 a.m., Alamgir Sohaii complainant (PW-1) and his brother Selman Rohail ,(deceased) were going by foot to Chak No. 174/9-L. Reaching near, land of guhammad Siddique, a tanga crossed them on which were boarding Iqbal Nisar alias Bala (appellant) armed with double barrel, gun, Shan armed with .12-bore gun, Farman alias Rana armed with .222 bore rifle, Khan armed with hatchet and Sultan armed with .30-bore pistol. De-boarding from tanga, accused raised lalkara to teach a lesson to them (complainant and his brother) for litigation and then started firing. Fire shot made, by Shan hit Selman Rohail, brother of complainant, on his head near left ear whereas fire shot made by appellant hit Selman hail on his left shoulder and he fell down in watercourse whereas complainant fled away to save his life. Occurrence was witnessed by complainant, Shafqat (PW-2) and his son Naveed who were coming on village, as well as other people. After commission of offence, sailants fled away on the same tanga. Motive for the occurrence was that some months ago complainant's cousin Mst. Parveen was abducted by Shamoon son of azan. Case was being prosecuted by all of them, due to which grudge assailants had murdered Selman Rohail.
4. 3.Charge was framed against the appellant and his co-accused above mentioned, to which they pleaded not guilty and claimed trial. hereafter; prosecution evidence was recorded; statements of accused were recorded under Section 342, Cr.P.C., in which they pleaded innocence and on conclusion of trial appellant was convicted and sentenced as mentioned above, whereas four co- accused were acquitted f the charge, hence, these matters, 4 We have given consideration to the arguments advanced by learned counsel for the parties and learned DPG and have perused the record with their assistance.
5. Law was set into motion on written application moved by ornplainant PW-1 on the basis of which FIR No. 135/2008 dated 8.03.2008 was registered at Police Station Dere Raheem under Sections 302, 148, 149, PPC. Being dissatisfied from investigation conducted by local police, complainant lodged private complaint. Prosecution case is structured on ocular account furnished by PW-1 Alamgir Sohail and PW-2 Shafqat, medical evidence furnished by PW-4 Dr. Saeed Ahmad, recoveries and motive As per prosecution story, complainant PW-1 and his brother Salman Rohail (deceased) were going to Chak No. 174/9-L on foot when a tangu crossed them and the appellant and his co- accused deboarded from that tanga and made firing. Two shots hit complainant's brother who fell in watercourse. Motive for the occurrence was that complainant's cousin Mat. Parveen Bibi was abducted some months earlier by Shamoon, real brother of Shan, co-accused since acquitted, and that case was being prosecuted by all of them. Admittedly neither complainant nor his brother Salman Rohail (deceased) were witnesses in said abduction case. Shafqat PW-2 and his son Naveed (since given up PW) were witnesses in that case who according to prosecution story were also present at the spot and motive, if any, in the minds of assailants was first of all against Shafqat PW-2 and his son who were witnesses in abduction case and not against complainant and his brother. On prosecution's own showing PW-2 and his son were not assaulted by the accused despite the fact that four out of five assailants were armed with fire-arm weaponis and according to PW-2 they first crossed them when they were following the complainant and his brother for going to Chak No. 174/9-L. Even complainant who was allegedly accompanying his brother (deceased), was not targeted by the assailants. Factum of no assaulting the complainant, PW-2 Shafqat and his son Naveed b assailants makes presence of witnesses at the place of occurrence a relevant time a doubtful affair. This doubt is further strengthened from the contradictions noted in statements of PW-1 and PW-2, alleged eye-witnesses. FIR was registered on the written application presented by complainant PW-I before Nazir Ahmad SI PW-5 whe the latter met the complainant at Adda Naai Wala Bangla. PW-1 belie that factum by stating in cross-examination that he informed the police at police station and after that he returned to spot. However, h showed lack of knowledge as to where said application was written. PW-1 stated that the dead body was firstly shifted to police station an after preparing documents at police station, the same was sent to mortuary. Nevertheless, he expressed unawareness as to when dead body was sent to hospital. He also showed ignorance as to whether eyewitnesses accompanied the dead body to hospital or not Complainant even expressed lack of knowledge as to whether eye-witnesse accompanied the dead body or not when it was brought to police station, however, he volunteered that eye- witnesses were accompanying the dead body at police station. This deposition contradicted by PW-2 who deposed that he did not appear before I.O. at police station. It was stated by PW-1 that statements of witnesses were recorded by I.O. at police station, whereas according to PW-2 it was incorrect that his statement was recorded at police station rather he stated that the same Was recorded at the spot. PW-1 stated that Investigating Officer reached the spot at 10:00 a.m., which time according to PW-2 was 12:00 noon. According to prosecution case, fire shots hit to deceased on road, in such a situation, his falling in watercourse does not sound logical. As per complaint, occurrence was witnessed by PW-2 and his son Naveed who were coming from village. PW-2 in his examination in chief stated that he and his son Naveed were following the complainant and his brother (deceased) at some distance when a tanga crossed them and assailants murdered complainant's brother. As already discussed above, PW-2 was witness in the abduction case of his daughter which was registered against brother of Shan co-accused and others, then main enemy of the sailants were PW-2 and his son but leaving them alive and hitting the deceased by the assailants was not understandable. All the private witnesses produced in this case are closely related to complainant. Evidence of a family member cannot be discarded merely on the ground of his close relationship but the same has to be scrutinized 'th extra care. In the instant case, presence of PWs at the place of accurrence at relevant time was doubtful, as such their testimony could not be made basis of recording, conviction. Medical evidence one is not sufficient for conviction when presence of eye-witnesses is found doubtful. In this backdrop, in our view, charge against appellant as not proved. Shan co-accused was also attributed fatal injury but earned trial Court disbelieved evidence to his extent and convicted the appellant on the same evidence.
5. 6.On re-appraisal of evidence, we have concluded at complainant failed to prove charge against appellant and his v-accused beyond reasonable doubt. Consequently, Criminal Appeal 605 of 2011 is allowed and conviction as well as sentence warded to appellant Iqbal Nisar alias Bala through impugned judgment is set aside. Appellant be released forthwith if not required n any other case.
6. Murder reference No. 86 of 2011 is answered in acative.
7. 7.For the reasons recorded above, PSLA No. 83 of 2010 is dismissed.