' MUHAMMAD FARRUKH IRFAN KHAN, J.---Through the instant appeal under section 417 of the Cr.P.C.
The appellant has assailed the validity and legality of the impugned judgment dated 21.10.2010 of the learned Additional Sessions Judge, Kharian, District Gujrat whereby he has acquitted respondents Nos.2 and 3 in case FIR No. 300/2009, dated 16.7.2009, under sections 302/449/ 148/149, P.P.C. Registered at Police Station, Dinga, District Gujrat.
2. Briefly, the prosecution story as narrated by Mst. Bashir Begum complainant in the FIR (Ex.PA/1) is that on the day of occurrence i.e. 16.7.2009, at 8.30 p.m., she along with her husband Ghulam Abbas and two others Haji Ghulam Sarwar, brother of her husband and her brother, namely, Liaquat Ali were sitting and chatting with each other in the courtyard of their house. Meanwhile, Muhammad Akram (proclaimed offender), Muhammad Ashraf (respondent No.2 herein) Ghulam Haider (respondent No.3 herein), and two unidentified accused, all armed with firearms emerged at the top roof of the adjoining house belonging to one Muhammad Asghar. The accused, Muhammad Akram, while raising a lalkara that Ghulam Abbas be taught lesson for entangling them in litigation, fired with his kalashnikov, as a result of which shots landed on right and left sides of chest of Ghulam Abbas. Then the accused Muhammad Ashraf made fire with his weapon, which hit Ghulam Abbas on his left leg and left foot, due to which he fell down on the ground. Thereafter all the assailants collectively fired at Ghulam Abbas, hitting on various parts of his body. All the accused made their escape good while resorting to aerial firing. The injured, Ghulam Abbas breathed his last at the spot. Motive behind the occurrence was stated to be involvement of the accused in some other criminal cases in which the deceased was cited as a prosecution witness.
3. The accused, respondents Nos.2 and 3 were arrested while their co-accused, namely, Muhammad Akram was declared Proclaimed Offender. After completion of investigation report under section 173, Cr.P.C. Was submitted against accused/ respondents Nos.2 and 3 before the learned trial Court. In order to prove its case, the prosecution examined 11 witnesses. The learned trial Court, vide its judgment dated 21.10.2010 acquitted both the accused/respondents from the charge, giving them benefit of doubt. Being dissatisfied with the impugned judgment the complainant has filed the instant appeal.
4. Learned counsel for the appellants submits that both the accused respondent are nominated in the FIR with specific role of causing firearm injuries to the deceased; that ocular account furnished by the prosecution qua the allegations against respondents Nos.2 and 3 finds corroboration from postmortem examination report of the deceased; that the prosecution proved its case beyond any shadow of doubt against the respondents by production of convincing and reliable evidence but the same was discarded by the learned trial Court on flimsy grounds; that the impugned judgment is not a true outcome of the evidence available on record; that the complainant being one of the eye-witnesses was a natural witness and her evidence could not be shaken during cross- examination. Learned counsel prays that the impugned judgment be set-aside and the respondents be convicted and sentenced in accordance with law.
5. Arguments heard. Record perused.
6. It has been noticed by us that Muhammad Akram (since P.O.), Muhammad Ashraf, respondent No.2 and Ghulam Haider respondent No.3 were specifically nominated in the FIR. According to prosecution's own case, Ghulam Haider, respondent No.3 was not alleged to. Have caused any specific injury to the deceased. Nothing was recovered from possession of Ghulam Haider, respondent No.3, therefore, there was not a single iota of evidence against Ghulam Haider, respondent No.3 connecting him with the commission of instant occurrence, therefore, he has rightly been acquitted by the learned trial Court.
7. So far as Muhammad Ashraf, respondent No.2 is concerned, it has been alleged that he inflicted two firearm injuries on the person of the deceased one landed on his right leg whereas the other at the heel of left foot. During the post mortem examination of the deceased, no injury on the heel of left foot of the deceased was observed by the doctor, therefore, ocular account furnished by the prosecution against Muhammad Ashraf, respondent No.2 to this extent has been falsified by the post mortem examination report of the deceased. Although injury No.5-A on lateral side of left ankle joint of the deceased, attributed to Muhammad Ashraf, respondent No.2, was observed by the doctor yet the same injury was on non-vital part of the body of the deceased and did not contribute to death of the deceased. According to the opinion of the doctor death of the deceased occurred due to hemorrhage and shock as a result of injuries Nos.l, 2 and 3 which were specifically attributed to Muhammad Akram (since P.O.). Mst. Bashir Begum Complainant took the stance in her complaint that Muhammad Ashraf made fire with his firearm weapon on the person of the deceased but when she appeared before the learned trial Court she changed her stance and stated that Muhammad Ashraf was armed with rifle and inflicted injuries on the person of the deceased with rifle. It is pertinent to mention here that no empty of a rifle was secured by the police from the place of occurrence, therefore, it is highly improbable that Muhammad Ashraf inflicted injuries on the person of the deceased with rifle. During investigation, rifle allegedly used by Muhammad Ashraf, respondent No.2 was not recovered from his possession. According to prosecution witnesses, electric bulb was on in the courtyard but perusal of evidence of Basharat Ahmed, S.I./I.O. (P.W.11) reveals that he did not take into possession any electric bulb from the place of occurrence, therefore, serious question of identification of respondents is involved in the instant case. It has further been noticed by us that prosecution witnesses made improvements in their statements while appearing before the learned trial Court.
8. Another important aspect of this case is that according to prosecution witnesses, accused/respondents made firing on the deceased when they were standing at the roof top of adjacent house of one Asghar Ali. In such situation, the trajectory of the bullet should have been angular moving downwards thus the direction of injuries on the person of deceased should have been from upwards to downwards but perusal of postmortem examination report of the deceased reveals that deceased received straight firearm injuries which are generally inflicted when assailants are standing on the same level as that of the deceased. Surprisingly, said Asghar Ali was not joined by the police during investigation. Neither he was cited as a prosecution witness nor he was arrayed as an accused. According to prosecution witnesses, when fire shots were made by Muhammad Akram and hit the deceased they were still in the courtyard and afterwards they ran towards veranda to save their lives which is a clear indication of the fact that they did not see the fire shots allegedly made by Muhammad Ashraf, respondent No.2 on the person of the deceased.
Although, according to prosecution case, Muhammad Ashraf, respondent No.2 inflicted firearm injury on the right leg of the deceased but complainant/P.W. Stated in her evidence that there was no firearm injury visible on right leg of the deceased, therefore, the allegation leveled by the prosecution against Muhammad Ashraf, respondent No.2 has been negated by the complainant herself.
9. The prosecution's giving up of one of the eye-witnesses, namely, Liaquat Ali also casts a doubt on veracity of the prosecution case. He was an important witness of the alleged occurrence and his non-production by the prosecution, prima facie, leads to a conclusion that the alleged occurrence had not taken place in the manner as alleged by the prosecution. It has also come on the record that P.-W.9/Ghulam Sarwar has been appearing as a prosecution witness in a number of cases in which the accused were facing trial. From this fact it can safely be inferred that the said P.W. Was inimical towards the accused and his evidence could not safely be relied upon in a case carrying capital punishment. All these circumstances cast a strong doubt in respect of presence and participation of the accused/respondents Nos.2 and 3 in the alleged occurrence, benefit of which has rightly been given to them by the learned trial Court. In this view of the matter, we do not find any misreading or non-reading of evidence on record by the learned trial Court. The findings of acquittal of respondents Nos.2 and 3, therefore, do not suffer from any perversity, illegality or jurisdictional, defect.
10. In view of above, we see no force in the instant appeal, which is accordingly dismissed.