FAROOQ HAIDER, J.: Through the above mentioned appeal Muhammad Ashraf (appellant) has assailed the judgment dated 29.06.2012 passed by learned Additional Sessions Judge, Sahiw al, whereby Muhammad Ashraf (appellant) has been convicted and sentenced under Section 302 (b) PPC to imprisonment for life alongwith payment of compensation of Rs.1,00,000/- to the legal heirs of deceased Majid under Section 544-A Cr.P.C. and in default thereof to further undergo six months S.I. with benefit of Section 382-B Cr .P.C.
2. Brief facts, as per written complaint (Ex.P A) submitted by Haji Khalid Mahmood complainant/PW -1, are that on 31.12.2007 Monday at about 7:00 a.m. he was coming to his house at Chak No.178/G.L. from his agricultural land after taking milk, on the way accused Khadim Hussain and Muhammad Ashraf cut a joke to his nephew Majid upon which his nephew Majid also responded to said joke whereupon the said accused gave filthy abuses to his nephew , however , his nephew Majid came at home. After 10/15 minutes, accused Muhammad Idrees armed with hatchet, Khadim Hussain, Muhammad Ashraf armed with hatchet, Muhammad Akram and Muhammad Aslam armed with sotas alongwith two unknown persons forcibly entered into the house of his nephew Majid and dragged him (Majid) out of his house. Khadim Hussain and Muhammad Ashraf gave hatchet blows at his head whereas Muhammad Idrees gave wrong side of hatchet blow at his right leg whereupon his nephew Majid was injured.
Whereas Muhammad Akram and Muhammad Aslam gave sota blows to complainant's brother Muhammad Rafique which landed on his arm and thumb. In the said occurrence one Muhammad Shoukat and complainant's nephew Muhammad Liauqat were also injured. On hue and cry, complainant, Muhammad Ramzan, Shafique and other people attracted to the place of occurrence and accused persons decamped from there. The complainant alongwith injured Majid and Rafique came at Police Station Dera Rahim and after getting dockets, they went to the hospital in the company of Abdul Ghafoor Constable where the doctor, after examining his nephew Majid, referred him to the Civil Hospital, Sahiwal who was admitted in Civil Hospital Sahiwal in unconscious condition and his life was in danger. Later on injured Majid succumbed to the injuries in the hospital, as such, Section 302 PPC was added in the F.I.R.
3. On the conclusion of the investigation, Muhammad Ashraf (present appellant) and his co-accused Khadim Hussain, Muhammad Akram, Muhammad Idrees and Muhammad Aslam (since acquitted) were challaned to the Court. They were formally charged under Sections 302, 148, 149 PPC, to which they pleaded not guilty and claimed trial.
4. Prosecution produced its eleven witnesses and then after tendering reports of experts closed its evidence.
5. Then statements of the accused were recorded under Section 342 Cr.P.C. in which they refuted the allegations levelled against them.
6. PW-6 Dr. Tanveer Ahmad medically examined Majid in injured condition and found following injuries on his body: i) An incised wound 7 x 1 1/2 cm on the middle of head, 8 cm from the right and left ear. Bone was exposed. ii) An incised wound 2 x 1/2 cm muscle deep alongwith injury No.1. iii) Swelling on the 4 x 4 cm right leg lower segment.
After death of Majid, PW-4 Dr. Saeed Ahmad, Medical Officer, DHQ Hospital, Sahiwal has conducted the autopsy on his dead body and found the following injuries: - i) A scar mark (surgical) 15 cm x 1 cm on top left side of head. Antero posteriorly. ii) A scar mark (surgical) 6 cm x 1 cm on top left side of mid of head. iii) A scar mark 7 cm x 1 cm on back left side of head. iv) A scar mark 7 cm x 1/2 cm on frontal right side of head.
7. The learned trial court after conclusion of the trial has convicted and sentenced appellant Muhammad Ashraf as mentioned above while acquitted accused Khadim Hussain, Muhammad Akram, Muhammad Idress and Muhammad Aslam vide impugned judgment dated 29.6.2012.
8. Learned counsel for the appellant has submitted that impugned conviction and sentence recorded through impugned judgment are against the law and facts; that learned trial Court failed to appreciate material available on the record; that impugned judgment is result of misreading and non-reading of evidence; and that impugned judgment containing conviction and sentence awarded to the appellant is liable to be set aside.
9. Conversely learned law officer assisted by the learned counsel for the complainant has supported the impugned judgment.
10. Arguments heard. Record perused.
11. As mentioned above, in this case five accused persons namely Muhammad Ashraf (present appellant), Khadim Hussain, Muhammad Akram, Muhammad Idress and Muhammad Aslam were nominated whereas two were mentioned as unknown, who could not be unsurfaced throughout. Four of the aforementioned nominated accused persons namely Khadim Hussain, Muhammad Akram, Muhammad Idress and Muhammad Aslam were acquitted through the aforementioned judgment whereas present appellant was convicted and sentenced as mentioned above. It is pertinent to mention here that Muhammad Ashraf accused (present appellant) and Khadim Hussain accused (since acquitted) were given the same and identical role without even an iota of difference i.e. they both were given collective role of inflicting hatchet blow on the head of Majid (deceased of the case; Khadim Hussain has been acqui tted as mentioned above and there is no independent corroboration available against Muhammad Ashraf appellant to justify impugned judgment to the extent of convicting him and awarding sentence as mentioned above. In this regard, reliance is placed upon the case of "Mst. Sughra Begum and another versus Qaiser Pervez and others" (2015 SCMR 1142), "Irfan Ali Versus The State" (2015 SCMR 840) and "Muhammad Ali versus The State" (2015 SCMR 137). As much as hatchets were allegedly recovered from both of them i.e. Muhammad Ashraf and Khadim Hussain but neither the same were bloodstained nor sent for expert opinion for determination of availability of blood on the same or otherwise, so, this piece of evidence is also of no help to the prosecution and on this score even there is no difference in the case of both of them. Muhammad Idress was also alleged to have caused wrong side of the hatchet on the right leg of Majid deceased but he has also been acquitted. Muhammad Akram and Muhammad Aslam co-accused were alleged to have caused sota blows on Muhammad Rafique, Muhammad Shoukat and Liaquat Ali but they have also been acquitted. It is also pertinent to mention here that aforementioned three injured witnesses were not produced before the trial Court and their Medico Legal Examination reports were also not produced during the trial, therefore, inference would go against the prosecution in view of Article 129(g) of the Qanoon-e-Shahadat Orde r, 1984. As far as statement of Majid Ex.PS is concerned, even in the said statement both Khadim Hussain and Muhammad Ashraf present appellant were given similar role. It is also important to mention here that said statement was not even attested by the doctor. It has also come on record that Majid after treatment was discharged from the hospital and he came to home and after lapse of about eight months he died. Motive neither detailed nor proved by the prosecution. Prosecution could not bring any material on record to distinguish the role of Muhammad Ashraf present appellant from Khadim Hussain accused (since acquitted). Prosecution also could not prove that injury No.1 was caused by Muhammad Ashraf present appellant, so, case of Muhammad Ashraf (appellant) is at par with Khadim Hussain (since acquitted). FIR was also got recorded with delay. In view of above, prosecution could not prove its case against Muhammad Ashraf appellant beyond shadow of doubt.
As far as attempt of learned Deputy Prosecutor General assisted by the learned counsel for the complainant for relying upon plea of present appellant "that it all happened all of a sudden, spur of moments" contained in his statement under Section 342 Cr.P.C. is concerned, suffice to observe that prosecution has to prove its own case beyond shadow of doubt and when prosecution has otherwise failed to prove its case, then accused cannot be convicted on the basis of any plea advanced by him in his statement under Section 342 Cr.P.C. rather he would deserve acquittal. In this regard, reference can be respectfully placed upon the case of "Azhar Iqbal versus The State" (2013 SCMR 383 ) and its paragraph No.2 is hereby reproduced asunder: - "After hearing the learned counsel for the appellant and the learned Additional Prosecutor-General, Punjab appearing for the State and having gone through the record of the case with their assistance it has straightaway been observed by us that both the learned courts below had rejected the version of the prosecution in its entirety and had then proceeded to convict and sentence the appellant on the sole basis of his statement recorded under section 342, Cr.P.C. wherein he had advanced a plea of grave and sudden provocation. It had not been appreciated by the learned courts below that the law is quite settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased. A reference in this respect may be made to the case of Waqar Ahmad v.
Shaukat Ali and others (2006 SCMR 1139). The law is equally settled that the statement of an accused person recorded under section 342, Cr.P.C. is to be accepted or rejected in its entirety and where the prosecution's evidence is found to be reliable and the exculpatory part of the accused person's statement is established to be false and is to be excluded from consideration then the inculpatory part of the accused person's statement may be read in support of the evidence of the prosecution. This legal position stands amply demonstrated in the cases of Sultan Khan v. Sher Khan and others (PLD 1991 SC 520), Muhammad Tashfeen and others v. the State and others (2006 SCMR 577) and Faqir Muhammad and another v. the State (PLD 2011 SC 796). It is unfortunate that the Lahore High Court, Lahore had failed to apply the said settled law to the facts of the case in hand"
12. For what has been discussed above, instant appeal is allowed, impugned conviction and sentence recorded through the impugned judgment dated 29.6.2012 passed in case arising out of FIR No.5/2008 dated 4.1.2008 under Sections 302, 148, 149 PPC registered at Police Station Dera Rahim, District Sahiwal, is hereby set aside and Muhammad Ashraf appellant is acquitted of the charge. The appellant is on bail, hence, his surety is discharged from all liabilities.