SARDAR TARIQ M ASOOD, J. In an unfortunate occurrence one person Kausar Mahmood (deceased) lost his life and Kareem Akhtar alias Karam Ellahi, barber received firearm injuries on 19.09.2011 regarding which FIR No.376 was registered on 20.09.2011 under Sections 302, 324 and 34 of the Pakistan Penal Code (P.P.C.) at Police Station Korai, Islamabad. The appellant namely Sajjad Khan alias Shahzad Khan along with four other co-accused persons were tried by the learned Addl.
Sessions Judge-V, Islamabad-East and after a regular trial, vide judgment dated 30.05.2015, all the four co-accused persons were acquitted and the appellant was convicted under Section 302(b)
P.P.C. through the same judgment and sentenced to life imprisonment with compensation of Rs.2,00,000/- payable to the legal heirs of the deceased, or in default thereof to further undergo six months S.I with benefit of Section 382-8 Cr.P.C. Hence, this appeal by leave of this Court.
2. After hearing the learned counsel for the appellant and learned DPG, we observe that in the FIR, it is specifically mentioned that two persons having muffled faces came at the place of occurrence on a motorcycle and both of them made firing and due to the said firing, Kausar Mahmood (deceased) and Kareem Akhtar alias Karam Ellahi received firearm injuries and Kausar Mahmood (deceased) died at the spot and they were shifted to the hospital by Naseer Ahmad PW-9 and Muhammad Rafique PW-1. The complainant on 27.10.2011 i.e. after one month and eight days of the occurrence, for the first time, nominated the appellant and four other co-accused persons in this case through a supplementary statement but he did not disclose the source through which he came to know about the involvement of the appellant and his co-accused. Admittedly, the complainant is riot an eye-witness. During the trial, Muhammad Rafique PW-1 and Naseer Ahmad PW-9 appeared and Naseer Ahmad PW-9 categorically stated that the assailants were two in number and they were having muffled faces and his stance was same before the trial Court.
Muhammad Rafique PW-1 claimed that he was informed by the Naseer Ahmad PW-9 and they both took the deceased and the injured to the hospital.
Kareem Akhtar alias Karam Ellahi (injured), the most important witness in this case, appeared before the Court and he raised his accusing finger towards the appellant and his co-accused Ali Jan alias Badshah Khan Gul and also involved the other three co-accused persons in this case. He admitted during the cross-examination that he had sworn affidavits Ex.D-2 and Ex.D-3 and he categorically stated that the said affidavits were read over to him and he signed the same and token of their correctness. We have gone through the affidavits Ex. D-2 and Ex.D-3 and in Ex.D-3 according to Kareem Akhtar alias Karam Ellahi, was written on his dictation and was read over to him and he signed the same. In the affidavit Ex.D-3, he had categorically stated that neither the appellant nor his co-accused Ali Jan alias Badshah Khan Gul had fired upon him or the deceased.
Although he nominated the appellant and other co-accused persons during the trial but he categorically admitted that during the investigation, he made statement before the police and he also admitted that in his first statement before the police, he had not nominated any accused person. So, he nominated the accused persons for the first time that too during the trial. The accused persons according to prosecution case were having muffled faces even then no identification parade was arranged for. So, no reliance can be placed over the statement of Kareem Akhtar alias Karam Ellahi that he for the first time, during the trial, nominated the accused persons and the during the pendency of the bail petition, he had sworn an affidavit, Ex.D-3 in which he categorically stated that neither the appellant nor his co-accused fired upon him or the deceased. Although recovery of the pistol was affected from the petitioner but there is no positive report of FSL on the record.
The only remaining piece of evidence is the exculpatory confession of co-accused Waseem Akram (PW-10), which was recorded on 19.12.2011, while he was arrested on 13.12.2011. The said statement ls exculpatory and the same was not believed to the extent of Waseem Akram, co-accused who was acquitted by the trial Court then how the said exculpatory confession can be used against the appellant which has not been taken into consideration for the conviction against its maker i.e. of Waseem Akram, co-accused.
4. All the above-mentioned circumstances create serious doubt regarding the prosecution case and subsequent involvement of the appellant and his co-accused. Admittedly, all the four co- accused persons, on the same evidence, have been acquitted and no appeal against their acquittal has been filed by the complainant or the State and there is no independent corroboration to the extent of the appellant, In that eventuality, this appeal is allowed and the impugned judgment and conviction and sentence of the appellant is set aside and the appellant is acquitted of the charges. He shall be released from the jail forthwith if not required to be detained in connection with any other case.