' This judgment will dispose of Criminal Appeal No,1126 of 1998 directed against the judgment, dated 31-10-1998 passed by the learned Additional Sessions Judge, Sheikhupura, whereby he convicted the appellants under section 302(c), P.P.C. And sentenced them to .Ndergo 10 years' R.I.
2. The occurrence in this case took place on 3-1-1997 in the area of Dera Sukhan Ana Manshmoola Warn within the jurisdiction of Police Station Sadar Sheikhupura at 2 p.m., 11 k.m. Towards North from the police station.
3. Brief facts of the case as narrated by the complainant, are that on the day of occurrence he alongwith Koola and Arif Maseeh came to the Dera Sukhan Ana to see a tractor. After having visited the tractor standing in the Haveli all of them went to Haji Rafique and Maqsood Masih, who were cutting fodder in the fields. It was about 10 a.m. They had just sat when Javed son of Muhammad Yousaf called Maqsood Maseeh on the pretext of starting diesel engine. As soon as Maqsood Masih reached near the tube-well, Muhammad Yousaf accused raised Lalkara and asked his son Talib Hussain accused to kill Maqsood Masih on the reason that he visits their house. On which Talib Hussain aimed his rifle towards Maqsood Masih who caught hold of its barrel, but, Talib Hussain shot a fire which hit the left hand of Maqsood Masih and thereafter the bullet passed through his chest. Maqsood Masih fell down and died at the spot. The motive behind this occurrence was that the accused Muhammad Yousaf etc. Doubted illicit relations of the deceased with the wife of Javed. The matter was reported to the police.
4. The police 'after completing necessary formalities visited the spot secured the blood-stained earth vide memo. Exh.P.K., prepared the rough site plan of spot, vide memo. Exh.P.L. Thereafter, they arrested the accused and submitted challan to the Court.
5. Prosecution in order to prove its case has produced as many as 9 witnesses including Doctor, eye-witnesses and Investigating Officer etc. Thereafter, report of Chemical Examiner Exh.P.M. And that of Serologist Exh.P.N. Were also produced by the prosecution. Statements of the accused appellants were recorded under section 342, Cr.P.C. In which they pleaded not guilty. Two C.Ws.
Were also recorded.
6. Learned counsel for the appellants submits that it was an unwitnessed occurrence, even otherwise it was alleged by the eye-witnesses that the same was witnessed by them from the distance of 76 Karms and the same cannot be witnessed because the place of occurrence was surrounded by thickly planted trees which were in sufficient height. Learned counsel submits that both the eye-witnesses P.W.7 and P.W.8 were duly confronted with their previous statements because they had reached the place of occurrence after hearing the gun shots. Learned counsel further submits that Shana Maseeh P.W.7 the complainant in this case in his examination-in-chief has stated that the rifle which was allegedly recovered from Yousaf accused was used by Javaid co-accused of Yousaf and his son was killed by them, that both the witnesses are chance witnesses and there was no reason of their presence at the spot as they are not residents of that place. Learned counsel further submits that though the complainant had reached the police station but his statement was not recorded and in fact F.I.R. Was recorded after due deliberation and considerations. That the statement of the other witnesses were recorded on the next date.
P.W.9 after the post-mortem examination took the investigation in his own hand, that on 4-1-1997 the dead body was despatched from the place of occurrence and was kept in the police station and on the next day the same was sent to the hospital mortuary for postmortem examination, that medical evidence is in conflict with ocular evidence because there was no blackening and burning on the wound of the deceased, that there is no corroborative evidence which can lead to the conclusion that the present appellants are guilty in this case, that the prosecution case was not believed by the Investigating Agency, that appellant Talib Hussain was found innocent during the course of investigation. Learned counsel for the appellants submits the present case is not free from doubt and the appellants are entitled to acquittal as the prosecution has failed to prove its case beyond any shadow of doubt.
7. On the other hand learned counsel for the State assisted by the learned counsel for the complainant who has also filed a Criminal Revision No,50 of 1999, submits that it was a broad day light occurrence, specific role was attributed to Muhammad Yousaf as he has caused fatal injuries to the deceased. There was no previous background of enmity, that ocular account is corroborated by medical evidence. Both the learned counsel submit that appeal should be dismissed as already lesser sentence has been awarded to the appellants.
8. I have heard the learned counsel for the parties. It was story of the prosecution that when Muhammad Yousaf tried to fire at the deceased Maqsood Maseeh, he caught hold of the barrel of the rifle with his hands but the rifle went off and the bullet hit on his hand and chest which also created an exit wound. According to the post-mortem examination which was conducted by Dr. Iftikhar Ahmad P.W.1, there was no blackening or burning on the wound. It means that the prosecution story which was stated in the F.I.R. Is not in line with the post-mortem report. Both the eyewitnesses i.e, P.W.7 and P.W.8 are father and first cousin of the deceased, they were not resident of the place of occurrence no crime-empty was recovered from the spot. During the examination- in-chief of P.W.7 he had stated that the rifle which was recovered on the pointation of Muhammad Yusuf appellant that was fired by Muhammad Javaid, the acquitted co-accused, on his deceased son. It may also be noted here that three witnesses namely Kaloo Rajput and Haji Rafique were not produced by the prosecution and they were given up as being unnecessary. Motive has also been disbelieved by the learned trial Court. Presence of the eye-witnesses seems to be doubtful because they had no business to be present at the spot. Shana Maseeh P.W.7 has stated in his statement that dead body was taken to the mortuary at 4 p.m. First to the police station and then to the hospital while P.W.8 has stated that the dead body was taken to the mortuary at 9 p.m. On 3- 1-1997. Had the dead body been despatched as stated by P.W.7 at 4 p.m. Then the post-mortem examination must have been conducted on the same day. Post-mortem examination was conducted on the next day of occurrence, three persons were named as accused, i.e, the present appellants and Javaid. No injury either to Talib Hussain or Javaid was attributed, Javaid has already been acquitted by the learned trial Court. As far as participation of Talib and Yousaf is concerned, from the abvoesaid circumstances, it seems to be doubtful. There is no corroborative evidence to the ocular account either in the shape of medical evidence or recovery from the appellants because there is no report of Fire-arm Expert as no crime-empty was recovered from the spot. As far as motive is concerned that has been disbelieved by the learned trial Court. It is not necessary that in cases where no enmity exists between the parties the witness would not tell the truth. It seems that the F.I.R. Was lodged after due deliberation and consideration because according to the complainant he went to police station, A.S.-I. Met him, he came to the spot and the S.H.O. Recorded his statement which was read over to him. Keeping in view of the circumstances, submissions made by the learned counsel for the parties, evidence recorded by the learned trial Court, I am of the opinion that the prosecution has not been able to prove its case beyond any shadow of doubt. While extending benefit of doubt, I accept this appeal, set aside the conviction awarded to the appellants and acquit them. Talib Hussain is in jail, he shall be released forthwith, if he is not required in any other case. As far as Muhammad Yousaf is concerned, he is on bail, he shall be discharged from the bail bonds.