' This judgment will dispose of Criminal Appeal No,777 of 1993 filed by Khalid alias Khala, appellant, who was convicted and sentenced by learned Additional Sessions Judge, Faisalabad . On 18-11- 1993 to undergo Imprisonment for description of 14 years' R.I. As Tazir with the direction to pay "Diyat" amounting to Rs,1,75,000. He was also convicted and sentenced under section 337-F(i), P.P.C.
To undergo one year R.I. As "Tazir" and pay Daman amounting to Rs,5,000 as compensation to Muhammad Ikram alias Achi injured P.W. Both the sentences were ordered to run concurrently.
Benefit of section 382-B, Cr.P.C. Was also granted to the appellant.
2. Brief facts of the case as narrated by the complainant Muhammad Arshad in his statement recorded by Manzoor Hussain, S.-I. On 6-11-1991 at 4-15 p.m. In P.S. Which is Exh.PD. It is alleged in the F.I.R. Exh.PD that Muhammad Yasin deceased aged 17 years was son of Ashiq Hussain brother of complainant Muhammad Arshad. Ashiq Hussain died 13/14 years prior to the occurrence.
Muhammad Arshad complainant got married with Mst. Suryya Bibi mother of Muhammad Yasin deceased. Muhammad Yasin deceased, his brother Muhammad Arif were living with Muhammad Arshad complainant in Mohallah Muradabad, Faisalabad. Muhammad Yasin deceased was having friendship with Muhammad Ikram alias Achi son of Ghulam Nabi caste Arain resident of Noori Chowk, Muhammadabad, Faisalabad. Khalid alias Khala son of Jan Muhammad Ishtiaq son of Abdul Ghafoor and Tariq Shaheen accused person who were of bad character nature had a bad eye on Yasin deceased and used to forbade Muhammad Yasin deceased to be friend of Muhammad Ikram alias Achi.
3. On the eventful day in the morning time, Muhammad Yasin deceased went to the house of Muhammad Ikram alias Achi after being annoyed with complainant. Complainant, Muhammad Arshad along with Nathu son of Muhammad Ibrahim grandfather of Muhammad Yasin deceased from the house of Muhammad Ikram alias Achi but Muhammad Yasin deceased and Muhammad Ikram were not present at the house of Ikram. Muhammad Arshad and Nathu son of Muhammad Ibrahim came to know that Muhammad Yasin and Muhammad Ikram were going towards Inatazar Chowk. Both followed them towards Inatazar Chowk.
4. It was about 3 p.m. When Muhammad Yasin and Muhammad Ikram were standing in Inatazar Chowk. Khalid alias Khala accused armed with Churn, Ishtiaq armed with Churri and Tariq Shaheen accused armed with razor came there raising Lalkaras that they would teach lesson to Yasin for keeping friendship with Muhammad Ikram alias Achi. All the accused attacked Muhammad Yasin deceased. Khalid alias Khala gave a Churri blow which hit Yasin on right thigh. Tariq Shaheen accused gave a razor blow which hit Yasin on left thigh. Muhammad Yasin fell down. Muhammad Ikram alias Achi stepped forward to rescue Yasin. Khalid gave a Churri blow to Ikram which hit him on his right palm while he was trying to stop the blow. Ishtiaq accused gave a Churri blow which hit Muhammad Ikram on back. All the three accused ran away after raising their weapons.
Muhammad Arshad and Nathu took Yasin in a rickshaw to hospital. Muhammad Yasin succumbed to the injuries as soon as he reached hospital. Muhammad Arshad after leaving Nathu with the dead body proceeded towards P.S. Ghulam Muhammadabad, Faisalabad and lodged F.I.R. Exh.PD.
5. Manzoor Hussain, 5.-I. After recording F.I.R. Exh.PD went to DHQ Hospital, Faisalabad and prepared injury statement Exh.P.K and inquest report Exh.P.J, thereafter, he reached at the place of occurrence and procured blood-stained earth through recovery memo. Exh.P.D. He took into possession blood-stained shirt P.8 having cut on it and Bunyan P.9 blood-stained having cut on it through recovery memo. Exh.PI. Appellant was arrested in this case on 25-11-1991 and he led to the recovery of Churri P.6 from beneath the stairs of his house which was taken into possession through recovery memo. Exh.P.G. After completion of investigation the challan was submitted before the trial Court against the appellant Khalid alias Khala, Muhammad Ishtiaq and Tariq Shaheen acquitted co-accused.
6. Prosecution in order to prove its case produced 10 witnesses in all, thereafter, the statements of the appellant, Muhammad Ishtiaq and Tariq Shaheen acquitted co- accused were recorded under section 342, Cr.P.C.
7. After reading the prosecution evidence and statements of the appellant, Muhammad Ishtiaq and Tariq shaheen acquitted co-accused recorded under section 342, Cr.P.C., learned counsel for the appellant Khalid alias Khala submits that F.I.R. In the instant case was lodged after due deliberation and consultation, that there is delay in conducting the post-mortem examination, that dead body was sent to mortuary on the next day at 6/7 a.m. According to the statement of P.W.5 namely Inayat Ullah, F.C. He further submits that witness Muhammad Arshad, P.W.6 stated before the trial Court in his cross-examination that injuries were caused from the front side on the person of the deceased and the injured P.W. But there was injuries on their back which also contradict the prosecution version and so there is conflict between ocular account and medical evidence. He further submits that Muhammad Arshad has also stated that it was stab wound but the doctor who conducted the post-mortem admitted in his cross-examination that injuries were not stab wound but incised wound. He further submits that statement of injured P.W.7 cannot be relied upon because he was also convicted under section (sic) Zina (Enforcement of Hudood) Ordinance and his brother was also in jail. He further submits that one of the P.Ws. Has stated that deceased is student while Muhammad Arshad has stated that he was working in power looms. He also submits that recovery has been disbelieved by the learned trial Court and the motive has been found to be weak in the instant case.
8. On the other hand, learned counsel for the State vehemently supports the judgment of learned trial Court.
9. I have heard the learned counsel for the parties and have also gone through the record with their assistance. In the instant case two persons were convicted i,e, present appellant namely Khalid alias Khala and Muhammad Ishtiaq. Muhammad Ishtiaq has not filed any appeal while the 3rd accused namely Tariq Shaheen was acquitted on the ground that the compromise has been effected between Tariq Shaheen and the complainant party. Although there is no appeal on behalf of Ishtiaq but I will also deal his case while relying on judgment cited by learned counsel for the appellant PLD 1991 SC 447 titled as Waqar Zaheer v. The State. In the instant case, although the occurrence took place on 6-11-1991 at 3-00 p.m. But the post-mortem was conducted on the next day at 11-00 a.m. And the dead body was received in hospital at 6-30 a.m. According to the statement of Inayat Ullah P.W.5, it shows that complainant was not present at the spot and he after consultation with Muhammad Ikram injured P.W. And in connivance with the police after due deliberation and consultation lodged this F.I.R. Against present appellant and his co-accused Muhammad Ishtiaq. It may also be noted here, that recoveries in this case were not believed by the trial Court and the motive was also found to be weak by the trial Court. It may also be noted here, that names of the accused were not mentioned in recovery memo of blood-stained earth which is Exh.P.E and also not in rough site plan prepared by the I.O. Which is Exh.P.L. As far as, Muhammad Ikram, injured P.W. Is concerned, although he is an injured witness but he was convicted under section (sic) Zina (Enforcement of Hudood) Ordinance, 1979 and his brother was also in jail. He seems to be a person of bad character. Then there is a conflict between ocular account and medical evidence because the injuries on both deceased and the injured P.W. Were found on their back while according to the prosecution case the injuries were caused on front side. Occurrence has not taken place in a manner as stated by the. P.Ws. Before the trial Court. Ocular account as such has not come from an unimpeachable source and the same is lacking in the instant case.
10. Taking into consideration the submissions made by learned counsel for the appellant and overall facts and circumstances of the case while extending the benefit of doubt I accept this appeal and set aside the conviction and sentence awarded to the appellant by the learned trial Court. He is on bail and he is discharged from his bail bonds. As far as, Muhammad Ishtiaq co- accused of the appellant is concerned, he is behind the bars till today, he shall be released forthwith if not required in any other case.