' This judgment will dispose of Criminal Appeal No,797 of 1998 filed by Abdul Rauf, appellant, who was convicted and sentenced by learned Additional Session Judge, Mianwali vide his judgment dated 30-7-1998 to undergo R.I. For 25 years with the further direction of pay Rs, 2,00,000 to the legal heirs of Ghulam Sarwar deceased with the benefit of section 382-B,Cr.P.C.
2. Brief facts of the case as disclosed by Muhammad Anwar Khan P.W.6 are that his brother Ghulam Sarwar along with Muhammad Akbar and Muhammad Khan were proceeding towards Mianwali City and they were carrying licensed.12 bore gun and also a gun which had been snatched by Ghulam Sarwar from Amir Nawaz accused. As soon as the P.Ws. Along with Ghulam Sarwar reached near the deserted Dera of Shah Jehan Wala the accused Abdul Rauf, Amir Nawaz and Mehr Gul, suddenly emerged from the Sakrandas. The accused Amir Nawaz raised lalkara and shot fire which hit the deceased Ghulam Sarwar on the right side of his neck, who fell down with his face downward and accused Abdul Rauf fired with his gun hitting Ghulam Sarwar on his back. The accused Mehr Gul fired two shots at Ghulam Sarwar which hit him on his right hand and right knee.
The accused also shot fire on the P.Ws. Who concealed them in the Sarkandas and the accused in the night concerned searching the P.Ws. Who in the morning reached to the Dera of complainant Muhammad Anwar Khan and narrated the whole story. On hearing about the death of his brother, the complainant immediately went to the place of occurrence where the dead body was not lying and there was a trail of blood and dragging marks and first informant and the P.Ws. Followed it and found the dead body in the Naala.
' Motive behind the present occurrence was that three months prior to this occurrence Ghulam Sarwar deceased had quarrelled with Amir Nawaz and he had given beating to accused Amir Khan. The complainant Muhammad Anwar Khan had gone to Ghulam Haider futher Nawaz for patching up the matter but Ghulam Haider instigated Amir Nawaz to murder Ghulam Sarwar. It was also stated in the F.I.R. That a day prior to this occurrence, Amir Nawaz accused was hiding in the Sarkandas near the Dera of complainant with a loaded gun which was snatched by the deceased Ghulam Sarwar and he along with P.Ws. Was proceeding to Mianwali to present the snatched gun to the police.
3. In order to bring home the guilt to the accused the prosecution examined as many as 11 witnesses. The accused in their statements under section 342, Cr.P.C. Pleaded innocence. Besides this the defence got examined Abubakr Khuda Bakhsh, S.P. As D.W.1 beside producing few documents from Exh.D.A to Exh.F/l.
4. In support of this appeal, learned counsel for the appellant submits that there were discrepancies in the statements of the eye-witnesses, that they have been disbelieved by the learned Trial Court, that there is a conflict between ocular account and medical evidence, that there is a clear violation of mandatory provision of section.103, Cr.P.C.That there is delay of 18 hours in lodging the F.I.R, that main accused have already been acquitted by the learned Trial Court and that appellant has only been convicted on the opinion of the police.
5. On the other hand learned counsel for the complainant does not deny the fact that Mehr Gul.
Ghulam Haider and Amir Nawaz co-accused of the present appellant were acquitted by the learned Trial Court, that though does not concede but admits with half-heartlessness that case of the present appellant is on similar footing to that of his co-accused mentioned above.
6. Learned State council also concedes the submissions made by learned counsel for the complainant.
7. I have heard learned counsel for the parties. A Division Bench consisting Off myself and my learned brother M. Naeemullah Khan Sherwani, J. Had dismissed the Appeal No, 631 of 1998 against the acquittal of abovementioned co-accused of the present appellant titled as Muhammad Anwar v. Mehr Gul and others, on 11-2-2000 and case of the present appellant is on similar footing to that of his co-accused mentioned above, therefore, following the law of consistency. I also accept this appeal. The conviction and sentence recorded against the appellant by the learned Trial Court is set aside. He is in jail and he shall be released forthwith if not required to be detained in any other case.