1. F.I.R. Exh.P.A. Was registered at Police Station City Sialkot under section 302/34/109, P.P.C. By Muhammad Iqbal Moharrir, Head Constable P.W.3 on 31-7-1983, on receipt of statement Exh.P.A./1 of Muhammad Ehsan P.W.8 son of Muhammad Iqbal (deceased), recorded by Muhammad Saleem, A.S.I. P.W.11, at the District Headquarters Hospital, Sialkot at 9 a. m. On the same day.
2. The occurrence had taken place on the same day at 8 a.m. At the chambers of Muhammad Aslam Butt, Advocate in the premises of District Courts, Sialkot.
3. According to the F.I.R. Complainant alongwith his father Muhammad Iqbal, and his uncle Muhammad Nawaz P.W.7, was sitting in the chambers of Muhammad Aslam Butt, Advocate, where they had gone td attend a case, Yaqub v. Muhammad Iqbal etc. Muhammad Amin Clerk of the Advocate was also present. Muhammad Iqbal (deceased) was reading newspaper. In the meantime, Manzur alias Bhola alias 302 riding a motor-cycle. On the rear seat of the motorcycle amount person of slim stature, wheatish colour, wearing light coloured Shalwar and Kameez, was sitting. Manzur alias Bhola yellow fired a shot from his carbine at Muhammad Iqbal, as a result of which fell down. On the noise raised by Munshi Muhammad Amin, the assailants ran away, riding the motor-cycle.
4. Muhammad Yaqub and the deceased were litigating against each other. On the night preceding the day of occurrence, Muhammad Sarwar brother of the complainant had quarrelled with Muhammad Yaqub, when the latter had threatened him that in a day or two, he will know something.
5. Manzur alias Bhola is real brother of Muhammad Yaqub. According to the complainant, he had murdered the deceased at the instance and instigation of Muhammad Yaqub.
6. The deceased was taken to hospital, where Muhammad Ehsan P.W.8 made statement Exh.P.A./1 to Muhammad Saleem, A,S.I. P.W.11.
7. Muhammad Saleem A.S.I. P.W .11 after having recorded the statement, prepared the inquest report and the injury statement, and thereafter entrusted the dead body, to Allah Ditta and Ali Akbar Constables, for autopsy.
8. Autopsy was performed on the same day by Dr. Tajammal Hussain P.W.4 at 3-45 p.m. The doctor noted multiple (8 in number) oval shaped wounds on back of chest, left side measuring about 0.3 c.m. x 0.2 c. m.
9. According to the opinion of the doctor, the deceased had died as a result of excessive haemorrhage leading to shock and cardio respiratory failure.
10. The A.S.I. On spot inspection, collected blood-stained earth, on the same day.
11. Arshad son of Muhammad Ibrahim was arrested by Altaf Ahmad, Inspector P.W.10 on 14-8-1983 while Muhammad Yaqub was arrested by him on 20-7-1983. After completion of necessary investigation, the challan was put to Court.
12. Manzur alias Bhola, the accused named in the F.I.R. To have fired the fatal shot, could not be arrested, and so he was not put on trial.
13. The trial was conducted by Additional Sessions Judge, Sialkot. Learned trial Judge, vide order, dated 8-10-1984 convicted Muhammad Arshad under section 302, P.P.C. And sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000 in default whereof to undergo further R.I.
14. For 2 years. Half of the fine, on realisation, was ordered to be paid as compensation to the heirs of the deceased. Muhammad Yaqub, co-accused was acquitted, vide same order. The convict has filed appeal.
15. At the trial, prosecution in all, examined eleven witnesses.
16. The gist of medical evidence and the resume of the investigation, has been noted above. The eye- witness account was deposed at the trial by Muhammad Nawaz P.W.7, real brother of the deceased and Muhammad Ehsan P.W.8, son of the deceased.
17. Muhammad Ehsan while appearing as P.W.8 renarrated the fats given by him in the F.I.R. He, however, made two significant changes, in that, he named Muhammad Arshad, to be the person who was sitting on the rear seat of the motor-cycle of Manzur alias Bhola and also stated that Muhammad Arshad had concealed something under his clothes, which might be a revolver or a carbine. While naming Arshad, he stated that he had learnt his name later on, but did not give the source of his information.
18. Muhammad Nawaz P.W.7 corroborated the statement mane by Muhammad Ehsan P.W.8. However, while giving the source of his knowledge about the name of Arshad, he stated that it was his nephew Razzaq who had told him, after the occurrence, and he knew him only by features.
19. The appellant during his statement under section 342, of the Code of Criminal Procedure, denied the prosecution allegations and took up the plea that he has been involved falsely in this case, for being nephew of Muhammad Yaqub, co-accused.
20. The contention of learned counsel for the appellant that identification parade was held in this case, is correct, as there is nothing on record in this regard. Toe main argument of learned counsel that the prosecution had not produced sufficient evidence about identification of the appellant, also bears some weight In view of the fact that the complainant while giving name of the appellant at the trial, did not disclose the source of his information about the name the appellant. About the marks of identification given by him in the --F.I.R. He admits that there might be 50,000 other persons bearing the marks given by him in the F.I.R. The source of information about the identification of the appellant, by name, disclosed by P.W.7 does not advance the case of the prosecution of the reason that Razzaq, nephew of Nawaz P.W.7, who had informed him, was not examined at the trial.
21. Manzur alias Bhola against whom allegation of having caused the fatal shot has been levelled in the F.I.R., had died prior to trial. It is, so stated, by Muhammad Nawaz P.W.7 in cross-examination.
22. The contention of learned counsel for the appellant that even if the prosecution case is believed, that the appellant was sitting on rear seat of the motor-cycle at the time of occurrence, no presumption can be drawn that he was a party or privy to the act of Manzur alias A Bhola having fired at the deceased, in view of no part assigned to him and no allegation levelled against him, although bears some weight but need not be attended to, for the reason that positive proof of his identification at the spot, has not been led in evidence.
23. No identification parade was held and the eye-witnesses even during their depositions at the trial while giving name of the appellant had not specifically stated that it was the appellant, whom they had seen at the spot in the company of Manzur alias Bhola.
24. Learned counsel for the State, although tried to defend the judgment of the trial Court, but has not been able to controvert any of the arguments advanced by learned counsel for the appellant on the factual side.