1. ' BASHIR A. MUJAHID, J.---Riaz son of Falak Sher, appellant alongwith his acquitted co-accused Bashir was tried by the learned Additional Sessions Judge, Jhang under sections 302/201/34, P.P.C.
2. In case F.I.R. No,325 of 1986, dated 30-9-1986 registered at Police Station Bhowana, for commission of murder of Daulat and was convicted vide the impugned judgment, dated 29-2-1988 under section 302, P.P.C. And sentenced in imprisonment for life and a fine of Rs,10,000 in default of payment of fine, he had to further undergo for two years' R.I. Half of the fine if realized was ordered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C. Was also extended in his favour.
3. ' The brief facts of the prosecution case as narrated in the F.I.R. No,325 Exh.P.8. Authored by Sarfraz P.W.5, recorded by Arshad Javed, A.S.-I. P.W.7 at 1-00 a.m. On 1-10-1986 are that the complainant was residing at his 'Dhaari' in his land in Chak No,247 GB; two months ago, Basara father, Manzoor paternal uncle and Allah Bakhsh, brother'of the complainant had murdered Muhammad Bakhsh son of Raja and son of Mst. Sattan wife of Raja and after arrest they were in jail in the said case.
4. Daulat (deceased) uncle of the complainant on the day of occurrence had gone to the village Abadi in connection with some work but did not return back till evening, whereupon the complainant and Mst. Bibi wife of Allah Bakhsh and Asghar brother of complainant went towards Abadi Deh in search of Daulat. When they covered two squares distance they saw Daulat coming towards them, they stopped, when Daulat arrived in the land of Noor Muhammad son of Mathelo where Bashir son of Muhammad Bakhsh, accused and Falak Sher son of Riaz (appellant) Caste Baral armed with guns emerged out of reeds ( ). Bashir raised Lalkara to the effect that he will take revenge for the murder of his father and caused fire shot hitting at back of Daulat; Riaz accused also fired on the head of Daulat who fell on ground after receiving the injuries; the witnesses tried to intervene but they were extended threats by the accused for dire consequences. Bashir and Riaz accused picked up the dead body and went into the reeds ( ). The prosecution witnesses raised hue and cry which attracted many persons at the spot, they started search of the dead body; after great efforts, they found the dead body of Daulat roped with stick of the pears through the boundary lying in reeds about two squares.
5. ' Arshad Javed, A.S.-I. P.W.7 after registration of the case arrived at the place of occurrence, took the dead body into possession, prepared the inquest report vide memo. Exh.PD and injury statement Exh.P.H. He also took into possession bloodstained loin cloth P.1 and the stick P.2 and pair of shoes P.6/1-2 from the place where the dead body was lying vide memo. Exh.P.C. And also blood-stained earth from the place of occurrence vide memo. Exh.P.D. He despatched the dead body for post- mortem examination, recorded the statements of prosecution witnesses and submitted the challan. The accused denied the allegations and claimed the trial.
6. ' During the trial, the prosecution examined as many as 8 witnesses to prove the wilt of the accused. Dr. Muhammad Arif Shall was examined as P.W.1, who had conducted the postmortem examination on the dead body of Daulat and found the following injuries:- ( I) Five oval to round wounds of entry, each of which 1/4 c.m. In diameter on the back of right middle abdomen.
(2) Approaching to wound No,2 wound of exist about 4 c.m. In diameter on the front of right upper abdomen, 9, 10 and 11 ribs of right side were fractured.
(3) An oval wound of 3 c.m. In diameter on the right side of skull, above the right ear, which was connected with wound No,4, 1 c.m. In diameter on the left side of the skull and upper neck. Brain matter was perforated and damage.
7. ' In his opinion, cause of death was due to haemorrhage, shock and injury to vital organ brain. All the injuries were sufficient to cause the death in ordinary course of nature. Sarfraz son of Basara, complainant was examined as P.W.5, he supported the version of the F.I.R. And narrated the motive for this occurrence. Mst. Bibi wife of Allah Bakhsh was examined as P.W.6, she also supported the prosecution story as an eye-witness of the occurrence. Muhammad Arshad Javed, A.S.I. Was examined as P.W.7, who had investigated the case.
8. ' The prosecution evidence was closed by tendering into evidence report of Chemical Examiner Exh.P.K and that of Serologist Exh.P.L.
9. ' Towards the end of the trial, statement of accused/appellant was recorded under section 342, Cr.P.C. He denied the charge and claimed his innocence.
10. ' The trial culminated into conviction of the appellant as mentioned above while his co-accused was acquitted from the charge. The appellant has challenged his conviction and sentence through Criminal Appeal No,509 of 1988 while the complainant has tiled Criminal Revision No,312 of 1988 for ehancement of the sentence of the appellant. Notices were issued in Criminal Revision, hence the case became a D.B. Matter. Both the matters are being disposed of by this common judgment.
11. ' Learned counsel for the appellant has argued that enmity between the parties is admitted and sufficient material has been brought on record that the deceased had also other enemies to cause his death; the enmity between the parties works both the way for commission of the crime as well as for false implication; the occurrence took place some time during the night and some assailants have committed the murder of Daulat but the appellant has been implicated falsely due to previous enmity; the occurrence was unwitnessed, the presence of the prosecution witnesses is doubtful; that there are material discrepancies in the statements of the prosecution witnesses: that both the P.Ws. Are close relative of the deceased and they are inimical towards the accused, therefore, their testimony cannot be relied upon without independent corroboration which is lacking in the instant case; that there is clear contradiction in medical evidence and the ocular account. Had the prosecution witnesses present at the spot, the accused would not have lifted the dead body from the place of occurrence and thrown in deserved place wherefrom the dead body was found?
12. ' Conversely, the appeal has been opposed by the learned State counsel and learned counsel for the complainant. They have supported the impugned judgment.
13. ' Heard. Record perused.
14. ' Longstanding enmity between the parties has been admitted. Sarfraz P.W.5, complainant is real nephew of the deceased while Mst. Bibi P.W.6 is also niece of the deceased being daughter of Ahmad brother of Daulat, deceased and she is also wife of Allah Bakhsh, real brother of the complainant P.W.5, therefore, both the prosecution eyewitnesses are closely related inter se and to the deceased. Therefore, it was essential that their evidence is to be corroborated from some independent source. Learned State counsel has argued that the ocular account has been corroborated by medical evidence, but the nature and size of injury on the right side of the skull of the deceased which was 3 c.m. Diameter shows that this injury was caused from close range as the pellets did not hit the deceased in scattered form, but according to the site plan and the statement of the prosecution witnesses, the deceased was fired at from a distance of 30 Karams; there is clear contradiction in the ocular account and the medical evidence. We have also noticed discrepancies in the statements of both the eye-witnesses. According to Mst. Bibi P.W.6, the accused fired at the witnesses twice or thrice but no fire hit them, while Sarfraz, complainant P.W.5 has stated that the accused did not aim firing at them when they saw the accused and raised alarm. Mst. Bibi has also stated that Lumbardar was intimated who called the police when Sarfraz P.W.5. Has stated that he went to the police station himself at 12-30 midnight on foot which is at a distance of 20 miles. Sarfraz, complainant has stated that no person had arrived at the spot except the eye-witnesses while 'Mst. Bibi P.W.6 has stated that ten to fifteen persons were attracted at the spot after hearing their hue and cries and thereafter all went in search of the dead body. All these facts lead us to believe that the eye-witnesses had not seen the occurrence. Had they were at the spot then the accused would not have spared them as they were admittedly their enemies. It is also not believable that they would have let the accused wrap the dead body and lifted from the place of occurrence and throw it in the reeds. The conduct of the prosecution witnesses is unnatural and unbelievable. Their statements are not confidence inspiring to be relied upon to maintain the conviction. In our view, the prosecution has failed to prove its case against the appellant beyond shadow of doubt. Benefit of doubt is to be extended in favour of the present appellant. Resultantly, the appeal is accepted, the sentence awarded to the appellant Riaz is set aside. He is ordered to be released forthwith if not required to be detained in any other case.
15. ' The revision petition is dismissed having no force.