FAROOQ HAIDER, J.: This Criminal Revision Petition has been filed against impugned judgmen t dated 20.03.2012 passed by learned Additional Sessions Judge, Khanpur/Appellate Court, whereby appeal filed by Bashir Ahmad petitioner against impugned judgment dated 31.01.2012 passed by learned Magistrate Ist Class, Khanpur/trial Court whereby petitioner has been convicted under Section 337-F(vi) PPC and sentenced to three years rigorous imprisonment with payment of daman Rs.50,000/- to complainant/injured Ishfaq Ahmad alongwith benefit of Section 382-B Cr .P.C., has been dismissed.
2. Brief facts, as per Fard Bayan (Ex.P A) got recorded by Ishfaq Ahmad complai nant/PW -1 to Abdul Karim SI in Civil Hospital Khanpur , on the basis of which formal FIR No.479/2003 dated 15.10.2003 under Sections 337-F(vi)
PPC at Police Station Sadder Khanpur (Ex.P A/1) was registered, are that he is resident of Mouza Jam Pur and is farmer by profession; on 13.10.2003 at about 05:30 p.m. he alongwith Irshad Ahmad was cutting fodder for his cattle in his field when accused Noor Ahmad, Manzoor Ahmad, Nazir Ahmad, Bashir Ahmad, Khalil Ahmad, Faiz Bakhsh sons of Muhammad Yousaf armed with sticks (Soties), Kalu, Fida Hussain armed with pistol 12-bore, Ghulam Haider armed with sota sons of Nabi Bakhsh came there and raised lalkara to teach a lesson to Irshad Ahmad for developing illicit relations with wife of Noor Ahmad where-after Noor Ahmad, Faiz Bakhsh and Manzoor gave blows with sticks at left arm, right arm and right arm's elbow of Irshad, respectively whereas accused Noor Ahmad and Khalil Ahmad gave blows with stick at the penis and testicles of Irshad, respectively; complainant tried to rescue Irshad but Bashir Ahm ad gave blow with stick to him hitting at his left knee and Nazir Ahmad gave blow with stick to him hitting at his right knee whereas Haider gave blow with stick which hit him on leg above left ankle, Fida Hussain and Kalu gave butt blows with pistols to him hitting at his head and ribs; complainant' s brother Irshad Ahmad fell on the ground; all the accused persons gave beating to the complainant and his brother on different parts of their bodies; on hue and cry, Siraj Ahmad and Ahmad Din attracted at the spot and witnessed the occurrence, besides them, other inhabitants of the village also arrived at the place of occurrence, who beseeched the accused persons and rescued the complainant and his brother; during this episode, Rs.10,000/- also fell on the ground, which the accused persons took away .
The motive behind the occurrence was that accused persons had suspicion that Irshad Ahmad developed illicit relations with wife of Noor Ahmad.
3. After conclusion of the investigation, firstly after preparing challan report on 10.11.2013, petitioner and his co- accused Faiz Bakhsh, Ghulam Haider and Noor Ahmad, and thereafter preparing another challan report on 24.12.2013, Nazir Ahmad and Kalu were sent to the Court for trial. Charge was framed against them, to which they pleaded not guilty and claimed trial.
It will not be out of place to mention here that during trial of case, Ghulam Haider and Kalu accused absconded and their case was separated from their above said co-accused.
4. Medical evidence has been furnished by Dr. Zahid Iqbal Bhatti, Medical Officer (PW-4), who medically examined complainant Ishfaq Ahmad and Irshad Ahmad.
Prosecution after producing and examining its witnesses closed its evidence.
Then statements of the accused were recorded under Section 342 Cr.P.C. in which they refuted the allegations levelled against them. However , they neither opted to appear on oath under Section 340(2) Cr.P.C., nor produced any evidence in their defence.
5. The learned trial court after conclusion of the trial has convicted and sentenced petitioner Bashir Ahmad as mentioned above while acquitted accused Faiz Bakhsh, Nazir Ahmad and Noor Ahmad vide impugned judgment dated 31.01.2012; said conviction and sentence has been upheld by the appellate Court vide judgment dated 20.3.2012.
6. Learned counsel for the petitioner has submitted that impugned conviction and sentence recorded through impugned judgment by learned trial Court and upheld by learned appellate Court are against the law and facts; that impugned judgments passed by both courts below are result of misreading and non-reading of evidence; therefore, the same are liable to be set aside.
7. Conversely learned law of ficer has supported the impugned judgments.
8. Arguments heard. Record perused.
9. From the perusal of complaint/Fard Biyan Ex.PA and record of the case, it has been found that case of the present petitioner Bashir Ahmad is at par with the case of Nazir Ahmad, mentioned above, and both have been attributed similar role except with difference of locale i.e. Bashir Ahmad gave blow with stick at left knee of Ishfaq Ahmad while Nazir Ahmad gave blow with stick at right knee of Ishfaq Ahmad; difference of locale and magnitude of injury makes no distinction and their case shall be treated similar and at par with each other. Nazir Ahmad has been acquitted as mentioned above and there is no independent and strong corroboration available against present petitioner Bashir Ahmad. Although learned law officer tried to support the impugned judgment but could not controvert that case of Bashir Ahmad present petitioner is at par with Nazir Ahmad mentioned above. In this regard, guidance has been sought from the case of "Imtiaz alias Taj versus The State and others" (2018 SCMR 344), relevant portion whereof is reproduced below: - "3. It is not disputed that four co-accused of the appellant attributed effective firing at and specific injuries to Rustam Ali deceased had been acquitted by the trial court. The law is settled that if the eye witnesses have been disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be believed against another accused person attributed a similar role unless such eye-witnesses receive independent corroboration qua the other accused person and a reference in this respect may be made to the cases of Ghulam Sikandar v. Mumaraz Khan (PLD 1985 SC 11), Sarfraz alias Sappi v. The State (2000 SCMR 1758), Iftikhar Hussain and others v. The State (2004 SCMR 1185) and Akhtar Ali v. The State (2008 SCMR 6)"
In this regard, reliance can also be placed upon the case of "Haroon Shafique versus The State and others" (2018 SCMR 2118), relevant portion whereof is reproduced as under: - "Almost all the co-accused of the appellant, attributed effective roles, had been acquitted by the High Court and, thus, the appellant could not have been convicted and sentenced without independent corroboration"
Guidance, in this respect, has also been sought from the case of "Altaf Hussain versus The State" (2019 SCMR 274), relevant portion whereof is also reproduced as under:- "7. There is another aspect of the case. As stated earlier besides the appellant three other persons were also indicted in this case three of whom namely Nisar Ahmad, Muhammad Aslam and Mst. Amiran were acquitted by the learned trial court. PSLA No.67 of 2013 filed by the complainant against their acquittal was dismissed by the learned appellate court which was not assailed any further either by the complainant or the State and as such their acquittal attained finality. It is well settled by now that if a set of witnesses is disbelieved to the extent of some accused the same cannot be believed to the extent of remaining accused facing the same trial without there being any independent and strong corroboration. Upon scrutiny of the material available on record we have not been able to find any corroboration to maintain conviction and sentence of the appellant on a capital charge"
In these circumstances, it has been noticed that when learned trial Court has acquitted co-accused namely Faiz Bakhsh, Noor Ahmad and particularly Nazir Ahmad, then learned trial Court fell into error while convicting and awarding sentence to Bashir Ahmad on the basis of same evidence without any independent and strong corroboration. Similarly , it has also been noticed that learned appellate Court also fell into legal error while maintaining conviction and sentence awarded to the petitioner .
10. Resultantly , this revision petition is allowed, conviction recorded and sentence awarded to petitioner through the impugned judgment dated 31.1.2012 passed by learned trial Court and upheld by the learned appellate Court vide impugned judgment dated 20.3.2012 are hereby set aside. Petitioner is acquitted of the charge. Petitioner is on bail, as during pendency of this revision petition, his sentence was suspended by this Court, therefore, his surety stands discharged from his all liabilities.
11. Before parting with this judgment, it is clarified that the observations in this judgment are only for the purpose of disposal of instant revision petition.