' NAZEER AHMED LANGOVE, J.---Instant appeal is directed against the judgment dated 30th June, 2016 passed by the learned Sessions Judge, Pishin whereby the appellant was found guilty under section 324, P.P.C., as such convicted and sentenced to suffer 10 years' RI with fine of Rs, 20,000/- (Rupees Twenty Thousand only). In default of payment of fine the appellant was directed to further undergo two months' SI. Benefit of section 382-B, Cr.P.C., was extended in favour of appellant.
2. Brief facts leading to file instant appeal are that on 15th May, 2013 at 12:00 noon the complainant Shaukat Ali, lodged FIR No,12/2013 with Levis Station, Barshore alleging therein that on the fateful day Barkat Ali, Shaukat, Hazrat Ali and Ameer Jan went to Marjan Mountain when accused Amanullah armed with Kalashinkov, Barged, Ishaque and Bismillah equipped with Kalashinkov came there. Accused Amanullah made firing on Barkat owing to which he received serious injuries and later on died. The accused Barged made firing with Kalashinkov on Hazrat Ali due to which he received injuries on his right arm. Accused Bismillah made firing with Kalashinkov on Amir Jan who received injury on his leg. Accused/appellant Ishaque made firing upon Sarwar Jan but he succeeded to hide himself behind the boulders of mountains and luckily remain unhurt. The motive behind occurrence was stated to be property dispute.
3. On the above written report FIR No, 12/2013 under sections 302, 324, 504, 506 and 34, P.P.C. Was registered and investigation commenced. During course whereof the Levis authorities could not lay hand on rest of the co accused, however, the present appellant was arrested.
4. On 08th July, 2015 charge was read over to the appellant to which he pleaded not guilty and claimed trial. The prosecution in order to substantiate the accusation against the appellant produced 11 PWs. Thereafter the appellant was examined under section 342, Cr.P.C., wherein he denied all the incriminating pieces of evidence and pleaded innocence. The appellant opted to get himself examined as envisaged under section 340(2), Cr.P.C., and also produced two DWs in his defence. The learned trial court after hearing the parties and evaluating the evidence found the appellant guilty, as such; convicted and sentenced him as mentioned hereinabove.
5. Learned counsel for the appellant argued that the appellant is innocent. He has committed no offence whatsoever. No incriminating article has been recovered from the appellant. The learned trial court while convicting the appellant failed to take into consideration the delay in lodging FIR.
The learned counsel stressed that there are contradictions and discrepancies in the statements of PWs, as such their testimony cannot be made basis for recording conviction against the appellant.
During the trial the defence has fully succeeded to create serious dents and doubts in prosecution case but the learned trial court erred in law by not extending the benefit of doubt in favour of appellant. The judgment impugned is result of misreading a rid non-reading of evidence. The PWs have not corroborated each other on important points but this aspect of the case escaped notice of the trial court.
' On the other hand the learned Additional P.G strongly opposed the appeal by submitting that the appellant was nominated in the FIR. The prosecution proved guilt of the appellant beyond any reasonable shadow of doubt. All the PWs have fully supported the prosecution case. No illegality or irregularity could be point out by the learned counsel in the judgment impugned. The trial court after proper appraisal of evidence and taking into consideration all aspects of the case passed the impugned judgment which is not open to any exception.
6. We have considered the arguments advanced by the learned counsel for the parties and perused the record of the case with their assistance. It may be noted that though the appellant has been nominated in the FIR but the same was registered after engaging advocate which is not only above the board but also seems to be lodged after consultation and deliberation and there is no plausible or justifiable explanation in this regard. According to PW-1 the appellant made firing on Sarwar but he remained unhurt. PW-2 stated that appellant made firing at him but he hidden himself and remained saved. PW-3 also deposed that the appellant made firing at Sarwar but he succeeded to hide himself and remained unhurt. PW-5 and PW-6 also reiterated the statement of PW-1, PW-2 and PW-3 to the extent of appellant. Perusal of statements of all the PWs makes it crystal clear that the allegation against the appellant is regarding in effective firing due to which neither any PW received injury nor the deceased Ali Muhammad died on account of firing made by the appellant. Perusal of FIR further reveals that minute details in respect of role of appellant has been incorporated therein which, in our opinion does not appeal to a prudent mind. There is another aspect of the case which cannot be left un-attended i,e, the appellant had not been attributed firing on the person of deceased or any injured witness. There is also no evidence on record to substantiate that the incident was premeditated nor appellant was connected with the motive part of the prosecution story.
' Needless to mention here that during investigation the prosecution failed to recover the Kalashinkov with which the appellant allegedly made firing upon Sarwar Jan. The prosecution was bound to collect all the incriminating evidence during investigation but in the instant case it did not discharge its legal duty. The appellant has allegedly made ineffective firing, therefore, his case is on different footings than that of the rest of accused persons. If we keep the prosecution as well as defence plea in juxta position the plea raised by the defence is more plausible, convincing and near to real facts, as such; we have no hesitation in our mind to hold that the prosecution failed to bring home the charge against the appellant beyond any shadow of doubt and the trial court while convicting the appellant failed to apply its judicial mind.
' For the foregoing reasons, we are of the considered opinion that the prosecution failed to prove guilt of the appellant to the hilt. On the contrary the defence has fully been able to create dents and doubts in the prosecution case, as such, while extending the benefit of doubt we accept the appeal, set aside the judgment dated 30th June, 2016 passed by the Sessions Judge, Pishin and acquit the appellant Muhammad Ishaque son of Gui Baraan in case FIR No, 12/2013 registered under sections 302/324, 504, 506 and 34, P.P.C. With Levis Station Barshore. He be released forthwith if not required in any other offence.
' Before parting with the judgment we feel it necessary to mention here that observations, made here in above, are only to the extent of appellant and the same shall have no impact on merits of main case qua the absconding accused.