' The criminal appeal was filed against the judgment, dated 20-12-1988 passed by the learned Additional Sessions Judge, Bahawalpur whereby the appellant was convicted and sentenced under section 302, P.P.C. To undergo imprisonment for life and a fine of Rs,20,000 in default of payment of fine, three years' R.I. Half of the fine, if recovered was to be paid to the heirs of the deceased as compensation.
2. The appellant whose sentence was suspended by this Court on 5-12-1992 on medical ground has since died and proceedings against him and as well as criminal appeal filed by him are abated.
3. Criminal Revision No,14 of 1989/BWP was filed for enhancement of sentence of the appellant by Roshan, complainant was ordered to be heard alongwith Criminal Appeal No,1 of 1989/BWP but due to the death of the appellant this revision petition has become infructuous which is disposed of.
4. Criminal Revision No,49 of 1989/BWP (Muhammad Roshan v. Muhammad Hanif and Peer Bakhsh) was filed against the acquittal of the respondents by the learned trial Judge vide its impugned judgment, dated 20-12-1988 and it was ordered to be heard alongwith Criminal Appeal No,1 of 1989/BWP.
5. Briefly the prosecution case is that Muhammad Roshan, complainant P.W.3 on 18-2-1987 at Police Station Uch Sharif lodged F.I.R. Exh.P.G. To the effect that he was a Zimindar of Basti Siahlan Mauza Mad-Koura and about one year earlier, one Pannun of the village was murdered and a case was registered at Police Station Kot Smaba against Abdul Ghafoor, father of the complainant, Muhammad Saleem, his brother and three others and the case was still pending. The father of the complainant and his brother was released on bail by the High Court and the case was fixed for hearing for 5-3-1987. Peer Bakhsh, respondent had conspired with Abdul Ghafoor, father of the complainant that they should compromise with each other through Peer Azhar Sian on which father of the complainant agreed and he alongwith Peer Bakhsh, respondent came to Uch Sharif and said Peer Azhar Sian promised to get compromised between the parties. Peer Azhar Sian could not reach according to his promise and Peer Bakhsh, respondent asked Abdul Ghafoor to accompany him to bring said Peer Azhar Sian. On the asking of respondent, Peer Bakhsh, Abdul Ghafoor alongwith Abdur Razzaq P.W.1, brother of the complainant and Feroze P.W.2, maternal- uncle of the complainant and Roshan P.W.3 boarded a bus and alighted at about 12-00 noon in the area of Mori Mohana. The deceased for urination sat in a ditch. Suddenly the complainant heard the firing shot and witnessed that on his deceased father, Hanif, respondent and Khadim Hussain, appellant (since dead) were firing. The ' complainant alongwith P.Ws. While witnessing raised hue and cry and excepting Peer Bakhsh, Syed Auwn Muhammad P.W. (given up) alongwith 3/4 persons were standing who also came running and witnessed that Muhammad Hanif, respondent and Khadim Hussain, appellant (since dead) while brandishing their pistol ran away. Khadim Hussain was saying that he has taken the revenge of his father. It was further stated that Peer Bakhsh, respondent had conspired and at some distance, Khadim Hussain, appellant (since dead) and Muhammad Hanif respondent were apprehended.
6. The respondents alongwith the appellant (since dead) were challaned and sent up for trial. A charge under sections 302/34 and 109, P.P.C. Was framed to which the accused had denied.
7. The prosecution had examined eleven witnesses in all to substantiate its case.
8. The ocular testimony has been furnished on record P.W.1, Abdur Razzaq, P.W.2, Feroze and Roshan P.W.3. P.W.3 is son of the deceased whereas P.W.2 is wife's sister's husband of the deceased and P.W.1 is not related to the deceased. P.Ws.2 and 3 are related to the deceased and also had enmity.
P.W.1, during his statement before the trial Court had also admitted enmity with the accused persons. P.W.3, Roshan, complainant had stated during cross-examination that the place of occurrence is situated at a distance of about 10 miles from their village. P.W.9, Manzoor Ahmad, Head Constable had stated that he had received information at the police station and had informed Roshan and other P.Ws. About the present occurrence and sent them at 2-20 p.m. At the spot and had also recorded Rapat in the Roznamcha. P.W.1 has admitted civil as well as criminal litigation was pending between his father and father of Khadim Hussain, accused.
9. Neither P.Ws. Nor the accused are residents of the locality where the alleged occurrence took place. There was no question of mistaken identity as both the parties were residents of the same village. The parties had longstanding enmity.
10. The motive is a double-edged weapon and both the parties were on inimical terms and the motive can be used both ways. No independent person from the vicinity was produced although they figured in the F.I.R. Exh.P.G. And were also cited as P.Ws. In the calendar of witnesses. Peer Azhar Sian, the important witness has not been produced by the prosecution.
11. There is conflict of medical and oral testimonies. The P.Ws. Have stated that the deceased was fired at when he was sitting in a ditch and the assailants were on upper level. Injury No,1 was downward to upward as stated by Dr. Shabbir Ahmad P.W.4 and the same could not be caused from a higher place when the deceased was sitting at lower place. P.W.1 had stated that three firing shots were fired by the accused persons which hit the deceased whereas the deceased had two entry wounds and one exit wound. The medical evidence is not in consonance with the ocular testimony furnished on record.
12. Muhammad Hanif, respondent was acquitted by the trial Court as carbine P.2 recovered from his possession did not match with any empties secured from the spot by the police which were sent to the Forensic Science Laboratory alongwith carbine P.2. There was allegation of conspiracy against Peer Bakhsh, respondent but no P.W. Specifically had stated about the conspiracy of Peer Bakhsh, respondent.
13. The prosecution had not produced any independent or disinterested! Witnesses witnesses to prove its case and only interested witnesses were produced t establish its case. There was no independent corroboration.
14. In view of the above discussion, I am of the view that the respondents I were rightly acquitted by the trial Court and resultantly the revision fails and the same is accordingly dismissed.