' This judgment will dispose of Criminal Appeal No,660 of 1996 filed by Maqsood Ahmad and Manzoor Ahmad who were convicted by the learned Additional Sessions Judge, Sheikhupura vide judgment, dated 18-61996 to undergo life imprisonment under section 302, P.P.C. For the murder of Muhammad Ashiq, deceased with a fine of Rs,10,000 and in default of payment of fine to undergo S.I. For one year. They were also convicted and sentenced to 3 years' R.I. Under section 450, P.P.C.
With a fine of Rs,2,000 each and in default of payment of fine to undergo S.I. For six months. Both the appellants were acquitted under section 307/34, P.P.C. For causing injuries on the person of the complainant. Two co-accused, namely, Rashid and Rafique were acquitted by the learned trial Court through the same judgment. Benefit of section 382-B, Cr.P.C. Was given to the appellants and the sentences were ordered to run concurrently.
2. Briefly stated the prosecution story as narrated by Muhammad Ashraf (P.W.6) in Exh.P.B. Was that on 1-3-1990 when he was sleeping alongwith his mother, father and brothers in his house, at 12 midnight someone called the name of his father Muhammad Ashiq and knocked at the door upon which Muhammad Ashiq deceased opened the door. As soon as Muhammad Ashiq deceased opened the door, Manzoor Ahmad accused armed with a carbine while Maqsood Ahmad, accused armed with a Sota alongwith two unknown persons, the descriptions of whom were given in the F.I.R. Were found standing there. One unknown person caught hold of the arm of Ashiq and dragged him into courtyard of the house. On the pointation of Maqsood Ahmad, Manzoor Ahmed fired a shot with carbine which hit on the right side of head of Muhammad Ashiq deceased. He fell down and died there and then. The accused persons ran towards the staircase of the house alongwith their weapons. Muhammad Ashraf, complainant followed them mid caught hold of Muhammad Rafique in his Jhapa while Maqsood Ahmad, appellant inflicted three consecutive Sota blows on the person of complainant and thereafter, all the accused ran away.
3. Motive behind the occurrence was that Muhammad Ashraf, complainant was married to the daughter of Maqsood Ahmad, appellant about 6/7 years back to the present occurrence but later on relations between the spouses became strained. Both Manzoor and Maqsood appellants wanted to get divorce but Muhammad Ashiq deceased was not agreeing upon.
4. The Investigating Officer after registration of the case came at the spot, collected blood-stained earth and took the same into possession vide memo. Exh.P.C. Both the appellants in this case were arrested on 22-3-1990. Two unknown accused namely Rashid and Rafique were also arrested. All the accused were tried. Two were convicted while two were acquitted.
5. Prosecution in order to prove its case produced 10 witnesses in all. Thereafter, Report of the Chemical Examiner Exh.P.J. And that of the Serologist Exh.P.K. Were tendered in evidence by the Public Prosecutor and case of the prosecution was closed. Statements of the appellants alongwith other accused were also recorded. Both the appellants alleged false implication in the occurrence and claimed innocence.
6. Learned counsel for the appellants has read before me the prosecution evidence and submits that in fact it was an unwitnessed occurrence, on the same evidence, two co-accused namely Rafique and Rasheed have been acquitted, no crime-empty was recovered from the spot, during the physical remand no weapon was recovered from either of the accused, and that the two eye- witnesses, namely, Muhammad Ashraf and Muhammad Akram P.W.6 and P.W.7 respectively are sons of Muhammad Ashiq deceased. Learned counsel lastly submits that for 6/7 years no untoward incident took place between the parties and that there was no immediate cause of occurrence. Also submits that Muhammad Ashraf has admitted during the cross-examination that his mother, who is wife of the deceased, namely, Mst. Sharifan had appeared before the S.P. And stated that in fact it was Muhammad Rafique accused who had caused injury with carbine to the person of Muhammad Ashiq, deceased.
7. Leaned counsel for the State opposes the submissions made by learned counsel for the appellants and supports the judgment of the learned trial Court.
8. I have heard learned counsel for the parties and gone through the evidence recorded by the learned trial Court. In the instant case, on the same evidence, two accused, namely, Rashid and Rafique who had also accompanied the present appellants were acquitted by the learned trial Court. According to Muhammad Ashraf, complainant he had admitted during the cross- examination that his mother Mst. Sharifan had appeared before the S.P. During the course of investigating and stated that it was Muhammad Rafique who had caused injury with carbine. It also does not appeal to reasons that a person who had come to commit the murder would knock the door and would also call the name and would come without muffling his face when the parties were known to each other as daughter of one of the appellants was married to the complainant.
No crime-empty was recovered from the spot. During the course of physical remand, no incriminating weapon was recovered on the pointation of both the appellants. Motive is far- fetched one. Mst. Sharifan Bibi, an important witness had been held up and was not produced before the trial Court. Presumption would be that had she been produced by the prosecution, she would not have supported the prosecution case. Both the eye-witnesses produced by the prosecution are sons of the deceased. It may be noted here that the learned trial Court had acquitted both the appellants on the charge under section 307/34, P.P.C. Although it was stated in the F.I.R. That. One of the accused caused injuries with Sota to Muhammad Ashraf, complainant.
' Keeping in view the overall facts and circumstances of the case, benefit of doubt is extended to the appellants. They were arrested on 22-3-1990 but during the trial they were released on bail but since their conviction they are in judicial lock-up. The conviction and sentences of the appellants is set aside and they shall be released forthwith, if not required to be detained in any other case.