' This judgment will dispose of Criminal Appeal No,559 of 1992 filed by Abdul Sattar, appellant who was convicted under section 304, P.P.0 and sentenced to 10 years' R.I. With a fine of Rs,10,000, in default six months' R.I. And also 2 years' R.I. With a fine of Rs,1,000 in default 3 months' R.I. Under section 308, P.P.C. By the learned Additional- Sessions Judge, Gujranwala vide judgment, dated 24- 6-1992. Criminal Appeal No,1091 of 1992 filed by the State against the acquittal of respondents Abdul Jabbar, Abdur Rehman, Muhammad Akram, Abdul Sattar, Muhammad Aslam, Bashir, Aish and Liaqat shall also be disposed of through this single judgment as in that appeal, notice had been issued to the respondents.
2. Occurrence in this case had taken place at 8 p.m. On 21-3-1989 at a distance of 12 miles from Police. Station Wandhoo, District Gujranwala while the matter was reported by Abdul Karim through complaint Exh.P.A. At 10-30 p.m. On the same night while the formal F.I.R. Exh.P.A./1 was recorded by Iqbal Ahmad, A.S.-I.
3. Briefly stated the facts of the case are that Abdul Karim reported that he and Haji Manzoor Elahi purchased the disputed land for a consideration of Rs,24,000 jointly from Barkat Ali and Shah Din.
Muhammad Hanif (since dead) was in possession of the suit-land who filed a suit seeking a decree for permanent injunPtion restraining the complainant party' for getting possession of the same and got' the stay order in his favour from Civil Court, Gujranwala which was vacated subsequently. The complainant party filed a suit seeking a decree of possession in respect of the said disputed land in the village Tamboli which was decreed in their favour on 19-3-1989. At 8-15 p.m. On 21-3-1989 Muhammad Yamin son of Muhammad Jamil, Muhammad Yasin, Arif Hussain, Muhammad Yasin son of Muhammad Jamil, Muhammad Yasin son of Zahoor wanted to tether their cattle over the disputed land when Muhammad Hanif (since dead) Muhammad Aslam, Amanat, Abdul Sattar his sons all armed with carbines .12 bore, Abdul Jabbar, Muhammad Akram sons of said Hanif armed with .12 bore gun, Aish son Of Abdul Ghafoor, Liaqat armed with carbine .12 bore and Muhammad Bashir son of Allah Diya armed with .12 bore gun came there while raising Lalkara that the complainant party would be taught a lesson for winning the case in their favour. All the accused started firing. Meanwhile Javed Iqbal, Muhammad Jamil, Muhammad Ismail and Muhammad Siddique also came at the spot. Muhammad Hanif and Aish fired at Muhammad Ismail father of the complainant hitting his both legs. Muhammad Akram fired at the complainant hitting the calf of his right leg. Aslam fired at Arif hitting his right leg. Abdul Sattar fired at Yasin which landed on his abdomen who fell down on the ground. Liaqat fired at Muhammad Siddique hitting his back and other parts of his body. Abdul Jabbar and Amanat fired two shots at Jamil hitting his left thigh and other parts of the body respectively. Akram accused fired hitting Javed and Haji Zahoor Aslam and Aish fired one shot each hitting different parts of body of Arshad. All the said persons were brought to the hospital in an injured condition where they were medically examined. In the hospital, Yaseen succumbed to his injuries.
4. After registration of the formal F.I.R., Muhammad Zulfiqar, S.-I./S.H.O. (P.W.15) proceeded to Civil Hospital, Kamokee, prepared inquest report Exh.P.Q., injury statement Exh.P.E. In respect of dead body of Muhammad Yasin, inspected the place of occurrence on 22-3-1989, took into possession six empty cartridges P.5/1-6 and four empty cartridges of .12 bore gun P.6/1-4 vide memo. Exh.P.D., on 31-3-1989 arrested Abdul Rehman and Abdul Jabbar, on 8-4-1989 Abdul Rehman got recovered pistol P.8 which was secured vide memo. Exh.P.F. Similarly Abdul Jabbar got recovered gun P.7 which was secured vide memo. Exh.P.E., investigation was also carried out by Umar Farooq, D.S.P.
P.W.17, who except Liaqat and Aish found all the accused guilty and challaned them to face the trial.
5. At the trial prosecution in order to prove its case produced 17 witnesses in all, thereafter, learned A.P.P. Tendered in evidence report of the Chemical Examiner Exh.P.Y, and closed the prosecution then the statements of the accused/appellant were recorded under section 342, Cr.P.C. In which they pleaded innocent and claimed false implication, Muhammad Yameen, Constable was also examined as C.W.1, After conclusion of the trial, except the present appellant namely Abdul Sattar all the accused were acquitted.
6. Learned counsel for the appellant in Criminal Appeal No,559 of 1992 and for respondent in Criminal Appeal No,1091 of 1992 after having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record submits that the occurrence had taken place in the dark hours of the night, the possession of the disputed land was with the appellant and the respondents in the appeal filed by the State, empties were recovered from the house of the complainant which shows that the fires were shot from his house, Muhammad Zulfiqar, S.-I./S.H.O. Has admitted that Muhammad Hanif accused since dead and his brother Abdul Rasheed also sustained injuries during the occurrence, a reference was also made, to the statement of Umar Farooq P.W.17, who had stated that it was brought into his notice that three persons namely Hanif, his brother Rasheed and wife Mst. Ghafooran also sustained injuries in the occurrence, the complainant party has suppressed their role, in fact it was the complainant which was the aggressor and fired indiscriminately, there was no light due to load- shading. Liaqat, Aish, Sattar, Bashir, Aslam and Akram were found innocent by the Investigating Officer, Umar Farooq, D.S.P. P.W.17, also found Liaqat and Aish innocent, no recovery was effected from Abdul Sattar appellant but recovery of gun P.7 was only effected from Abdul Jabbar and Abdul Rehman also got recovered carbine P.B. Abdul Sattar appellant was not present at the spot, his plea of alibi was accepted by the Investigating Officer and that the prosecution has miserably failed to prove its case against the convict-appellant. In respect of acquitted respondents, learned counsel submits that the reasoning given by the learned trial Court for acquitting the respondents are based on sound reasons and are not to be interfered with.
' On the other hand, learned counsel for the State supports the judgment qua conviction of Abdul Sattar appellant but in respect of acquitted respondents he submits that the learned trial Court was justified in recording findings of acquittal.
' We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. It has come on record that the complainant had filed a suit on 21- 1-1987. The matter, was decided in favour of Abdul Karim on 19-3-1998 and the occurrence had taken place on 21-3-1989. On that date Abdul Karim without getting any help either from the police or from the Civil Court himself tried to get the possession forcibly while armed with deadly weapons alongwith his accomplices and started firing at the accused party. In that process, not only three persons from the side of the appellant namely Hanif (since dead). Rashid his brother and Mst. Ghafooran widow, of Muhammad Hanif also received injuries and this so was admitted in cross-examination by S.-I./S.H.O. (P.W.15) and Umar Farooq, D.S.P. (P.W.17). It has also come on record. Admittedly, the possession of the land in question was with the accused persons. It is also important to note that according to the recovery memo. Crime-empties were recovered from the courtyard of the complainant which shows that the fires were made by the complainant party. The injuries on the persons of the P.Ws. Are very minor in nature and on non-vital parts of the bodies of the injured. In our view the complainant party did not tell the truth either before the police or before the trial Court. Nothing incriminating was recovered from Abdul Sattar convict-appellant. L.Iaqat, Aish, Sattar, Bashir, Aslam and Akram were found innocent by the one Investigating Officer while Umar Farooq Bhatti, D.S.P. (P.W.17) also found Liaqat and Aish as innocent. Moreover, learned counsel for the State Mr. S.D. Qureshi, Advocate supports the judgment of the learned trial Court as far as it relates to acquittal of the respondents in Criminal Appeal No,1091 of 1992. So the appeal tiled by the State against the acquittal of respondents is dismissed.
' Now we take up the case of Abdul Sattar convict-appellant. It has been held by the learned trial Court that the possession was with the accused. The complainant has not adverted to the due process of law and had come to the place of occurrence to take forcible possession while armed with deadly weapons as a result of which deceased lost his life. The injuries on three persons as mentioned above from the side of the accused were suppressed by the complainant. The defence version put by the appellant appears to be more reasonable and near to the truth in view of the venue of the occurrence and the recovery of the crime-empties. We fail to understand how the trial Court has convicted and sentenced the appellant Abdul Sattar when his case is on similar footing to that of the acquitted accused rather his case in our view is in better footing.
' For all the reasons, we are of the considered view that the prosecution has failed to prove its case against the appellant beyond any reasonable doubt. Resultantly, appeal filed by Abdul Sattar appellant is accepted. Conviction and sentence recorded against him by the learned trial Court is set aside. Appellant is on bail and his bail bond shall stand discharged.