By filing this appeal Appellant Ghulam Rasool has challenged his conviction and sentence awarded to him by the learned Additional Sessions Judge, Mian Channun, District Khanewal vide judgment dated 22.10.2012 in case FIR No. 90/2005 dated 14.04.2005 registered under Sections 302, 324, 429, 109, 148, 149, PPC at Po lice Station Tulamba, Mian Channu, District Khanewal, whereby he was convicted and sentenced as under: Under Section 324, PPC awarded imprisonment for five years. He was also directed to pay fine of Rs. 50,000/-, in case of default to further undergo for a period of three months Simple Imprisonment.
Benefit u/S. 382-B, Cr .P.C. was also extended to him. Whereas his co-accused were acquitted of the charge.
2. Brief facts of the case as narrated by the complainant Muhammad Masood in complaint Exh.PC are that on 14.04.2005 at about 04:00 p.m., he along with his nephew Ihsan-ul-Haq were sitting in the house of his another nephew named Safdar Iqbal, when accu sed Ghulam Rasool armed with rifle, Mahi armed with rifle, Muhammad Arif armed with rifle, Pervez armed with .12 bore, Wahid Bakhsh armed with rifle .12 bore and Zahoor armed with pistol .30 bore came there from the four sides of the house, accused Ghulam Sabir raised lalkara that Ihsan-ul-Haq would not let alive and he fired with his rifle which hit upon the right side of the belly of Ihsan-ul-Haq, who fell down and succumbed to injuries, accused Mahi fired with his rifle which hit at the buffalo in the house, which fell down and died. While hearing the firing, his paternal cousins Arshad Moeen and Qasim Sheraz came there, when accused Arif fired with his rifle which hit at left arm of Qasim Shiraz. Similarly , accused Ghulam Rasool fired with his rifle which hit at the legs of Arshad Moeen.
Motive behind the occurrence was that a fight happened with Ramzan at 02:00 p.m. on the same day, in which said Muhammad Ramzan got injuries.
3. After registration of case, matter was investigated and report u/S. 173, Cr.P.C. was submitted before the learned trial Court while declaring the appellant and his co-accused as guilty . Thereafter , formal' charge was framed against them, to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case produced as many as twelve witnesses i.e. Muhamma d Masood complainant as PW.1, Qasim Sheraz injured as PW.2, Bukhtiar Mohay-ud-Din as PW.3, Arshed Moeen Chishti injured as PW.4, Liaqat Hussain as PW.5, Dr. Nazir Ahmad Hiraj as PW.6, Raja Muhammad Iqbal Janjua draftsman as PW.7, Muhammad Ashraf 71/C as PW.8, Sajjad Husain 761/C as PW.9, Zulfiqar All 978/C as PW.10, Qamar Zia SI/IO as PW.11 and Rana Fawad Ahmad Inspector as PW.12 and after producing certain documents closed its evidence. After completion of prosecution evidence, statement of appellant was recorded u/S. 342, Cr.P.C., in which he denied all the allegations leveled against him by the prosecution. He neither opted to appear as his own witness u/S. 340(2), Cr.P.C., nor produced any defence evidence. However , his co-accused Zahoor Ahmad produced certain documents in his defence. After evaluating prosecution evidence available on record, learned trial Court found the prosecution version correct beyond any shadow of doubt, which resulted into conviction and sentence of the appellant in the afore stated terms.
4. In support of the instant appeal, learned counsel for the appellant submits that the prosecution story is inherently flawed, hence, failed to inspire confidence ; that the ocular account in this case is not worth reliance, as the medical evidence squarely contradicts the same; that out of 08 accused persons, 07 had been acquitted from the charge by the learned Trial Court, whereas the appellant too was acquitted from the charge of murder . So, under the circumstances, the conviction and sentence awarded to the appellant cannot be sustained, hence, by accepting the instant appeal, the appellant may be acquitted of the charge.
5. Conversely , learned Deputy Prosecutor General assisted by the learned counsel for the complainant has faithfully defended the impugned judgment, being passed on cogent and valid reasons and prayed that the appeal of the appellant be dismissed.
6. I have heard arguments and perused the record with the assistance of learned counsel for the parties.
7. The record reflects that 08 accused persons were tried by the learned Additional Sessions Judge, Mianchannun, District Khanewal in the case of murder of one Ihsan-ul-Haq, in which two other persons, Arshad Moeen and Qasim Shiraz also sustained injuries- on their persons but on culmination of the trial, the learned Trial Court proceeded to acquit 07 co-accused persons of the appellant from the charge and convicted and sentenced the appellant, as stated above. Complainant Muhammad Masood while lodging the instant crime report and also deposing before the learned Trial Court stated that on 14.04.2005 at about 04:00 p.m., he along with his nephew Ihsan-ul Haq were sitting in the house of his another nephew Safdar Iqbal, when accused persons assaulted on the complainant party .
Accused Ghulam Sabir raised lalkara that Ihsan-ul-Haq would not let alive and he fired with his rifle which hit upon the right side of the belly of Ihsan-ul-Haq, who fell down and succumbed to injuries. Accused Mahi fired with his rifle which hit at the buffalo in the house, which fell down and died. On hearing the firing, his paternal cousins Arshad Moeen and Qasim Sheraz came there, accused Arif fired with his rifle which hit at left arm of Qasim Shiraz.
Similarly , accused Gulam Rasool (appellant) fired with his .12 bore gun which hit at the legs of Arshad Moeen and thereafter all the accused persons managed to flee away . It is noteworthy that the main accused Ghulam Sabir and Muhammad Arif could not be arrested by the police and consequently they were declared as proclaimed offenders.
Muhammad Sabir was the only accused, who has been attributed firing at the person of deceased Ihsan-ul-Haq, whereas admittedly no other accused person had been ascribed the role on the person of the deceased. The role attributed to Ghulam Rasool appellant was that he fired with his .12 bore gun, which hit at the legs of Arshad Moeen (PW .4).
8. In order to bring home the guilt of the accused persons, the prosecution has relied upon ocular account, provided by complainant Muhammad Masood (PW.1) and two injured PWs Arshad Moeen (PW.4), Qasim Shiraz (PW.2) and Bukhtiar Mohi-ud-Din (PW.3). Dr. Nazir Ahmad appeared as PW.6, who verified the factum of injuries sustained by the deceased and the injured persons. Undeniably , appellant Ghula m Rasool has not ascribed any injury either on the person of deceased Ihsan-ul-Haq or Qasim Shiraz injured PW and he was given the role that he had fired a gun shot on Arshad Moeen (PW.4). As far as the role of appellant is concerned, the complainant while lodging the F.I.R. and also deposing before the learned Trial Court stated that he fired at the legs of the deceased, whereas Bukhtiar Mohi-ud-Din (PW.3) took a contrary view and stated before the learned Trial Court that the fire made by the appellant hit at the feet of Arshad Moeen. To resolve this controvercy , I have perused the evidence of Arshad Moeen and in his examination-in-chief, he stated that "Ghulam Rasool fired at my feet without any fault of mine". It is admitted fact that role of firing at the person of Arshad Moeen is ascribed only to Ghulam Rasool appellant and admittedly no other accused person had caused any injury at his person. Dr. Nazir Ahmad while deposing before the learned Trial Court as PW.6 verified the factum that on 14.04. 2005, he conducted the medico- legal examination of injured Arshad Moeen and noted fire-arm injuries having inverted edges, one at right knee and the other at left knee, whereas the medical officer did not note any injury on his feet, meaning thereby that the medical evidence squarely contradicts the evidence of Arshad Moeen (PW.4). The other aspect of the case is that during the trial, the appellant had not been held vicariously liable for the murder of Ihsan-ul-Haq and the main co- accused Sabir Ali is still away from law, as he had been declared as procla imed offender (P.O.) and this observation by the learned Trial Court has not been challenged by the complainant or by the State before this Court. Likewise, as stated above 08 accused persons were tried and except the appellant, 07 co-accused persons including those, who have been attributed injuries at the person of Qasim Shiraz injured, have been acquitted from the charge, meaning thereby that the evidence of the prosecution has been disbelieved to the extent of acquitted co-accused persons and it is trite that the same evidence cannot be relied upon to maintain the conviction of the appellant, without having any independent corroboration, which aspect is lacking in this case. Even otherwise, as stated above, the medical evidence is in conflict with the prosecution case.
10. So, under the circumstances, I am of the view that the impugned judgment is not liable to be sustained, hence, this appeal is allowed and the conviction and sentence awarded to the appellant is set-aside. He is acquitted of the charge(s). He is on bail. His surety stands discharged from the liability of bail bonds.