JUDGMENT SHAIKH ABDUR RAZZAQ, J. Instant appeal is directed against judgment dated 14.12.1991 passed by Mr. Hafiz Khalil Ahmad, Additional Sessions Judge, Sheikhupura, whereby he convicted the appellant Shaukat Ali under Section 302, PPC and sentenced him to imprisonment for life and to pay a fine of Rs.20,000/- or in default thereof to undergo R.I. For one year. He further directed him to pay compensation of Rs.20,000/- under Section 544-A, Cr.P.C, to the heirs of the deceased and in case of non-payment to further undergo R.I. For six months. He convicted appellant Uaqat Ali under Section 307, PPC and sentenced him to R.I. For six years and fine of Rs.10,000/- and in default thereof to further undergo R.I. For six months. He further directed him to pay compensation of Rs.10,000/- under Section 544-A of the Code of Criminal Procedure to the injured Sarwar and in default thereof to further undergo R.I. For three months.
2. Briefly stated the facts are that on 5.3.1989 at evening time complainant Shaman alongwith Sarwar, Younas, Zafar Iqbal and one Ubaidullah were going towards their village. When they reached near Dhari Khichian at about 7.30 p.m., accused Ghulam Muhammad armed with a 7 mm rifle, Hussain son of Kamal armed with a 12 bore gun, Sakhi, Yaqoob, Shera and Khan armed with Sotas while Liaqat, Riasat and Shaukat armed with hatchets emerged. Ghulam Muhammad and Hussain raised Lalkara while all other accused launched an attack upon them. Sarwar and Younas as well as Zafar Iqbal fell on the ground on receipt of injuries while the other accused continued giving them blows. The motive behind the occurrence was that 1-1/2 year prior to the occurrence, the complainant and Zafar Iqbal deceased had a dispute about the joint water course with Ghulam son of Mathaila and Muhammad Hussain. The complainant party was supporting Zafar Iqbal deceased on account of this dispute. While Ghulam Hussain and Ghulam accused used to.
Ask them not to support Zafar Iqbal. The injured were shifted to hospital where they were got medically examined and consequently the complainant lodged F.I.R. Ex.PM. Initially the case was registered under Sections 324, 307, 326, 148 and 149, PPG. But as later oil Zafar Iqbal succumbed to the injuries, so offence under Section 302, PPC was added. After usual investigation, the case was sent up for trial. A charge under Sections 302, 307, 148 and 149 of the Pakistan Penal Code was framed against the accused to which they pleaded not guilty and claimed trial.
4. In order to bring home guilt to the accused, prosecution examined PW- 1 Muhammad Ishaque, PW-2 Khadim Hussain, PW-3 Bashir Ahmad, PW-4 Taj Din, PW-5 Mansha, PW-7 Dr. Khalid Mehmood Akhtar, PW-7 Dr. Amjad Shahbaz Khan Durrani, PW-8 Muhammad Arshad, PW-9 Irshad Husain, PW- 10 Shama, PW-11 Sarwar, PW-12 Younas, PW-13 Allah Rakha, ASI, PW-14 Barkat Ali, PW-15 Muhammad Ashraf, SI and PW-16 Dr. Abdul Jabbar. The learned DDA produced report of Chemical Examiner Ex.PX and that of Serologist Ex.PY and closed the case for prosecution on 27.11.1991.
5. When examined under Section 342, Cr.P.C., the accused Liaqat, Shaukat Ali, Khan, Muhammad Yaqoob, Muhammad Hussain, Sakhi, Riasat, Shera and Ghulam Muhammad denied the prosecution version and stated that they have been implicated in this case falsely.
6. After going through the evidence produced by the parties, the learned Trial Court acquitted Yaqoob, Khan, Ghulam Muhammad, Muhammad Hussain, Sakhi, Riasat and Shera whereas convicted Liaqat and Shaukat vide judgment under appeal.
7. Arguments have been heard and record perused.
8. It is contended by learned counsel for the appellants that as per prosecution version contained in F.I.R. Ex.PM, injuries on the person of the . Deceased Zafar Iqbal as well as injured PW-11 Sarwar are said to have been caused by sharp-edged weapons whereas this contention stands rebutted and belied by the Medical Officer" who has found the said injuries to be of blunt weapon, that complainant Shama (PW-10) has deposed that Shaukat appellant had caused fatal blow to the deceased and Liaqat appellant has inflicted injuries to Sarwar PW-11, that PW-10 stands belied by Sarwar PW-11 who has deposed that all the assailants had caused injuries to them, that Liaqat, Riasat and Shaukat have been shown to be armed with hatchets but it is not evident from F.I.R.
Ex.PM as to who caused the injuries to the deceased as well as to the injured, that Younas PW-13 deposed that injuries were caused with wrong side of hatchet whereas F.I.R, is silent on that point, that the statement of PW-12 is replete with imprisonments, that there is a delay of about 14 hours in lodging the F.I.R, as the occurrence took place on 5.3.1989 at 7.00 p.m. Whereas F.I.R, has been lodged on 6.3.1989 at 9.00 p.m., . That though Liaqat, Riasat and Shaukat have been assigned the role of inflicting injuries with hatchets, yet out of them, only two i.e. Liaqat and Shaukat have been convicted and sentenced whereas the third i.e. Riasat has been acquitted on the basis of same evidence and which fact further makes the case of the present appellants doubtful, that out of 9 accused involved in this case, seven have been acquitted, that acquittal of the majority of the accused makes the conviction of appellants highly doubtful, that motive attributed to the accused is also not proved from record, that evidence of recovery is of no u^e as none of the weapons was found stained with blood, that appellant Liaqat has served out the sentence awarded to him, that as per statement of Dr. Amjad Shahbaz Khan Durrani PW-7, cause of death is cardio pulmonary arrest due to injuries Nos. 4, 5 and 6 whereas only one injury is attributed to the appellant Shaukat, that even if it is assumed that appellant Shaukat inflicted one injury on the person of the deceased, he cannot be held liable for his death and can at the most be held responsible for causing a grievous injury with blunt weapon, that as such his part shall at the most constitute an offence under Section 325, PPC, that the appellant Shaukat has been in jail for more than six years and as such has undergone a considerable period of the sentence prescribed for an offence under Section 325, PPC. He thus submitted that appeal may be accepted and appellants be acquitted and in the alternate, the sentence awarded to Shaukat appellant be modified to one which he has already undergone.
9. Conversely, the impugned judgment has been supported by the learned counsel for the State.
10. Now let us analyse the prosecution evidence and see if prosecution has succeeded in proving its case against the appellants. As per F.I.R. Ex.PM, as many as 9 accused have been roped in for the murder of Zafar Iqbal and causing injuries to Younas PW-12. Out of nine accused, Ghulam Muhammad and Hussain accused have been shown to be armed with a rifle and 12 bore gun respectively. Out of remaining accused, Sakhi, Yaqoob, Shera and Khan have been shown to be armed with Sotas, whereas accused Liaqat, Riasat and Shaukat are shown to be armed with hatchets. According to the prosecution version, injured Younas PW-12 and deceased Zafar Iqbal are said to have received injuries at the hands of Liaqat, Riasat and Shaukat. It is thus clear that they have received injuries with hatchets and that too with its sharp side as it is not specifically mentioned in the F.I.R, that injuries were caused with its blunt side. The contention of prosecution that injuries were caused with the sharp side of hatchet also stands belied by the statement of Dr. Amjad Shahbaz Khan Durrani PW-7 who conducted the post-mortem examination of Zafar Iqbal and found injuries Nos.4 to 6 on his person. This prosecution contention further stands belied by PW-6 Dr. Khalid Mehmood Akhtar who examined Younas. Prosecution version further stands belied by PW-16 Dr. Abdul Jabbar who initially examined Zafar Iqbal deceased while he was alive. It is evident from his statement (PW-16) that he did not observe any obvious injury on the head of the deceased Zafar Iqbal. It is very strange that PW-16 Dr. Abdul Jabbar examined the injured on 5.3.1989 but did not find any injury on the head of the deceased but later on as many as for injuries were detected on his skull by PW-7 Dr. Amjad Shahbaz Khan Durrani who conducted his post- mortem examination. Even if it is assumed that injuries were on the skull of the deceased, yet it is not proved from the record as to how the said injuries had been caused and who was responsible for causing the said injuries. According to the prosecution version, Liaqat, Riasat and Shaukat were armed with hatchets and they had caused the said injuries. Out of these accused, Riasat has already been acquitted by the learned Trial Court. Liaqat and Shaukat appellants have been convicted and sentenced under Sections 307 and 302, PPC respectively. Again out of appellants Liaqat and Shaukat, Liaqat has undergone his sentence and stands released. Now the appellant Shaukat is undergoing the sentence awarded to him. As discussed above, as many as nine accused have been involved in this case, out of whom seven have already been acquitted by giving them benefit of doubt. Thus a very heavy duty was on the prosecution to prove the guilt of appellants beyond any doubt. The prosecution has failed to discharge this onerous burden, as no independent evidence has come on record. On the other hand, ocular evidence stands contradicted by medical evidence as discussed above. Even evidence of recovery is lacking in this case. Thus, the accumulative effect of this dissection of prosecution evidence is that prosecution has failed to prove its case against the accused/appellants. Accordingly, appeal is accepted and conviction and sentence awarded to the appellants is set aside. The appellant Liaqat has already undergone the sentence awarded to him and is out. Appellant Shaukat is ordered to be released forthwith if not required in any other case.