' NAZIR AHMAD BHATTI, J.--- Complainant Muhammad Tufail, P.W.2 Bashir Ahmad and deceased Muhammad Asghar, residents of village Attari Karam Singh, were carrying on the business of `Khoya' at bus-stand of village Talvandi. On 6-1-1991 at 7-00 p.m. All the three were going back to their village after the business and when they were about 1-1/2 furlongs from the village they were confronted by three persons. The latter were not known to the former and all the three were clad in Shalwar Qamees, were of medium height and wheat complexioned. Out of the three assailants two were armed with rifles and one was armed with a shot gun. One assailant armed with a rifle carried out search of the pocket of the complainant and took out Rs,1,000 from him and his identity card.
The other assailant with the rifle carried out search of the pocket of Bashir Ahmad and robbed him of Rs,60 and his identity card. When the 3rd assailant armed with the shot gun tried to carry out the search of Muhammad Asghar, the latter resisted whereupon the former fired a shot at him with which he was hit on the neck, fell down and expired at the spot. Thereupon all the three assailants fled away from the spot. The complainant asked Muhammad Bashir to look after the dead body and he went to make report in Police Station Kangan Pur but the Investigating Officer met him in the way and he recorded his report at 9-00 p.m.
2. Autopsy on the dead body of Muhammad Asghar deceased, (the doctor has given the name Muhammad Ashraf, perhaps erroneously) was carried out by P.W.4 Dr. Shahid Salim on 7-1-1991.
The doctor found the following injuries on the dead body:-- "(1) One circular wound 2-1/2 c.m. Diameter. Margins inverted and blackened. Tracia deep in front of neck just above the manuprium sterni. Wound was directed backward and to the right and was chest cavity deep. Right caretid and jugular vessels were ruptured. Right lung was perforated.
Chest cavity of right side was full of blood.
(2) Three lacerated wounds size 1 c.m. x 1-1/2 c.m. Each, margins everted, chest cavity deep on the back of the chest right side upper part 8 c.m. Right of middle line and 1st rib posterior side was fractured. One cardboard was recovered from injury No,2."
3. According to the opinion of the doctor injuries Nos.1 and 2 communicated with each other, so injury No,1 was entry wound and injury No,2 was exit wound. The doctor gave the opinion that death occurred due to shock and haemorrhage on account of injury which was sufficient to cause death in ordinary course of business. The doctor further gave the opinion that the duration between injury and death was few minutes.
4. The appellant Ghulam Mohi-ud-Din and his other co-accused Haji Muhammad and Muhammad Rafique were arrested on 19-1-1991. Their identification parade was held on 30-1-1991. After investigation they were sent up for trial before the Additional Sessions Judge, Chunian who charged all the three under section 20 of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979, and under section 302/34, P.P.C. All the three accused pleaded not guilty to the charges and claimed trial.
5. After the conclusion of the trial the learned Additional Sessions Judge convicted all the three accused under section 302/34, P.P.C. And sentenced each of them to undergo life imprisonment and to pay a fine of Rs,20,000 each or in default to further undergo simple imprisonment for 6 months. The learned Additional Sessions Judge also convicted all the three accused under section 20 of the Hudood Ordinance and sentenced each of them to undergo rigorous imprisonment for 7 years. Convict Ghulam Mohid-ud-Din has challenged his conviction and sentence by the appeal in hand.
6. We have gone through the entire record of the case with the assistance of the learned counsel for the parties and have also heard their arguments.
7. P.W.1 Muhammad Tufail and P.W.2 Bashir Ahmad are eye-witnesses of the occurrence. Both have corroborated the contents of the report which was made by P.W.1 Muhammad Tufail. Appellant Ghulam Mohi-ud-Din, while in police custody, led the police party on 3-2-1991 to a sugarcane field of one Khalid Maqaman Wala within the limits of village Dingah Shah and pointed out rifle Exh.P.3 which he had allegedly buried there which was recovered by P.W.11 Muhammad Ali Inspector in the presence of P.W.6 Muhammad Aslam. The Investigating Officer had also recovered from the spot one empty of .12 bore Exh.P.2 on 6-1-1991 vide recovery memo. Exh.P.C.
8. Neither the names nor any description of features of the appellant were given in the report made by the complainant. The latter and P.W.2 Bashir Ahmad also did not know him previously. The identification parade was held on 30-1-1991 and during the investigation the name of the appellant had been disclosed to the Investigating Officer by some persons of the village in the presence of the complainant and the other eye-witnesses. It had come in evidence that both the eye- witnesses had met the Investigating Officer before they were called upon to identify the appellant and thcre are strong reasons to believe that they were informed of the features of the appellant. As such the identification parade had become very doubtful.
9. The occurrence took place at 7-00 p.m. In the month of January and it was a dark night. The appellant was also not known to the P.Ws. It was, therefore, very doubtful whether they had correctly marked the features of the appellant. This point finds further support from the fact that the features of none of the assailants were disclosed in the F.I.R. Even on this score it was doubtful whether the eye-witnesses had correctly identified the appellant and had noted any particular features about him. It was alleged in the F.I.R. That the complainant had a torch at the time of the occurrence but it was not alleged by any of the eye-witnesses that they had identified the assailants in the torch light. The failure to produce any torch to the Investigating Officer at the time of report also showed that actually there was no torch with any of the P.Ws.
10. The recovery of weapon of the appellant does not advance the case of the prosecution in any way because no shot was fired from the rifle. Only one shot was alleged to have been fired at the time of occurrence and that was of .12 bore shot gun and one empty of 12 bore was recovered from the spot. The 12 bore shot gun was recovered from one of the assailants but no effort was made to connect the said empty with the shot gun.
11. From the aforesaid circumstances we have come to the conclusion that much doubt was created in the matter and the charge could not be proved against the appellant beyond any reasonable doubt. We, therefore, extend the benefit of doubt to the appellant and by accepting his appeal, set aside the conviction and sentences awarded to him by the learned Additional Sessions Judge, Chunian by judgment dated 30-7-1992. He is acquitted of the offence for which he was convicted and sentenced. He shall be set at liberty forthwith if not wanted in any other case.