' This judgment will dispose of Criminal Appeal No, 86-J of 2001 and Criminal Revision No, 230 of 2001 directed against the judgment dated 27-2-2001 passed by the learned Additional Sessions Judge, Faisalabad, whereby he convicted the appellant under section 302-B, P.P.C. And sentenced him to undergo life imprisonment with further direction to pay Rs, 50,000 (Rupees fifty thousand) payable to the legal heirs of the deceased as required under section 544-A, Cr.P.C. Or in default six months' R.I. Benefit of section 382-B Cr.P.C. Was also granted to him, while his co-accused Tahir Mehmood and Rajab Ali were acquitted.
2. The occurrence took place on 2-11-1998 at 3/4 .p.m. In the area of Chak No, 545-G.B situated at a distance of 10 K.Ms. Towards west from Police Station Garh. Matter was reported to the Police same day at 6-05 p.m.
3. The facts in brief as narrated by the complainant in the F.I.R. Are that the complainant on the day of occurrence at 3/4 p.m. Along with his sons and daughter was present at Dhari of cattle when suddenly Ahmad Yar accused armed with gun came to their Dhari and fired at Noor Samand hitting his urinary bladder who fell down. While he was lying, Ahmad Yar accused fired second shot hitting on his neck. They due to fear did not go near but witnessed the occurrence. Motive behind the present occurrence was that few days ago a quarrel had taken place between Noor Samand deceased and Ahmad Yar accused which resulted into the present occurrence. Later on the supplementary statement of complainant Exh.D.A, Tahir Mehmood and Rajab Ali acquitted co- accused were implicated in this case also.
4. After receipt of information about the occurrence the police completed all the necessary formalities and then headed by Manzoor Ahmad, S.I. Police party inspected the spot. The S.I.
Prepared the inquest report &ch. P C , injury statement Exh . P.B. And collected the blood-stained earth from the place of occurrence vide memo. Exh.P.H. He also received last worn clothes i,e, Shalwar P.
2. Kameez P.1 vide memo. Exh.P.D. He arrested the appellant Ahmad Yar and Tahir Mehmood. On 25-11-1998 Ahmad Yar while in police custody got recovered .12 bore gun P.3 with two cartridges P.
4/1-2 vide memo. Exh.P.E. On 1-12-1998 he arrested Rajab Ali accused and prepared the challan against them and submitted the same for trial.
5. Prosecution in order to prove its case has produced as many as 8 witnesses including eye- witnesses, Doctor, Investigation Officer and other relevant persons. After tendering in evidence report of Chemical Examiner Exh.P.K. And that of Serologist Exh.P.L, learned A.D.A. Closed the prosecution evidence. Thereafter statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded not guilty and claimed to be tried.. Khasra Girdawari of Chak No, 545/G.B, Exh.D.G. And Exh.D.C. /1 were also produced in defence by Ahmad Yar appellant.
6. Learned counsel for the appellant in support of this appeal submits that it was an unwitnessed occurrence as none of eyewitness was present at the spot, that there is conflict between ocular account and the medical evidence, that F.I.R. Is totally contradicted by Exh.D.A and Exh.D.B. The supplementary statements of Nek Muhammad complainant and Mst. Manzooran recorded under section 161, Cr.P.C. Respectively, Learned counsel for the appellant submits that had the eye- witnesses were present at the spot, they must have given proper and actual role which the appellant had played at the time of occurrence. She submits that two accused namely Tahir Mehmood and Rajab Ali were implicated in this case later on in the supplementary statement of complainant Exh.D.A and also in the statement of Mst. Manzooran Exh.D,B recorded under section 161, Cr.P.C. And they both were acquitted by the learned trial Court. She submits that no case against the appellant is made out.
7. On the other hand learned State counsel assisted by the learned counsel for the complainant who has also filed a revision petition against Ahmad Yar and his acquitted co-accused vide No, 230 of 2001, submits that appellant is named in the F.I.R. With a specific role. They submit that it is a case of promptly lodged F.I.R, ocular account is corroborated by medical evidence, that there was no previous background of enmity between the parties so there was no question of false implication. They support the judgment of the learned trial Court.
8. I have heard the learned counsel for the parties. In the , instant case motive as mentioned in the F.I.R. Was that few days prior to the present occurrence a quarrel had taken place between the deceased and the present appellant but no independent person in this regard has been produced by the prosecution and this is the reason that learned trial Court disbelieved the motive and awarded lesser sentence to the appellant. As far as merit of the case is concerned, in the F.I.R. Only appellant was named as the actual culprit in this case and he was attributed two fire-arm injuries on the person of deceased, one on the urinary bladder and the other one on his neck. Later on in the supplementary statement i,e,, Exh.D.A the complainant stated that first fire which was A made by the appellant hit the urinary bladder of the deceased and the second shot on the neck of the deceased was specifically attributed to Tahir Mehmood who has been acquitted by the learned trial Court. This is major contradiction in the statement of the complainant i,e,, the statement given in the. F.I.R. Totally contradicts his statenfent given by him in his supplementary statement Exh.D.A. It may also be referred here that in the Court to make in line his ocular statement with the medical evidence the complainant P.W.0 made an improvement and stated in his examination-in-chief that shot fired by put the barrel of gun at the neck of the deceased. During the cross-examination this part of his evidence was duly confronted with Exh.P.G., the F.I.R., where it was not so recorded. It seems that the complainant was not present at the spot. Had he been present at the spot he would not have changed his version. As far as Mst. Manzooran P.W. Is concerned, she is daughter of the complainant and real sister of the deceased. Her statement Exh.D.B is on the record in which she has also attributed an injury to Tahir Mehmood the acquitted accused caused on the neck of the deceased although, Tahir Mehmood was not named in the F.I.R. In Court Mst. Manzooran had attributed both the injuries on the person of the deceased to Ahmad Yar appellant. She was duly confronted with her statement Exh.D.B. Recorded under section 161, Cr.P.C., where it was not so recorded. No crime empty was recovered from the spot and it is of no use to the prosecution. In my considered opinion had any eye-witness been present at the spot, they must have given the role which in fact was played by the appellant. It is o case in which capital punishment could have been awarded to the appellant. Both the eye-witnesses, in my opinion, were not present at the spot. In fact it was an unwitnessed occurrence. Both the eye-witnesses are closely related to the deceased as the complainant is father and Mst. Manzooran the real sister of the deceased. No case for conviction is made out. There are so many doubts and dents in this case. Golden principle is that benefit of doubt always goes in favour of the accused. While extending benefit of doubt, I accept this appeal and set aside the conviction and sentence awarded to the appellant by the learned trial Court. He shall be released from the jail forthwith if not required in any other case.
Criminal revision is also dismissed.