This judgment will dispose of Criminal Appeal No, 1856 of 2001, dated 31-10-2001 passed by the learned Additional Sessions Judge, Sialkot, whereby he convicted the appellant under sections 302/ 148/149, P.P.C. and sentenced him to undergo life imprisonment with further direction to pay Rs,1,00,000 as compensation required under section 544-A, Cr.P.C. or in default six months' S.I.
2. The facts in brief of the present occurrence as narrated by the complainant Muhammad Akbar in the F.I.R. through complaint Exh. P.A., are that on 1-12-1997 at about 2-45 p.m. he was coming to the main gate of Murrey College Sialkot in the company of Ansar Cheema (deceased) student of M:A.
English and short of this main gate, all of a sudden a Toyota Hiace, came there and in that Toyota Hiace, Mehr Abdullah armed with .30 bore pistol, Ali Asim armed with 222 bore rifle, Farrukh Iqbal armed with .30 bore pistol, Azmat Ullah Wairiach armed with 7 mm rifle, Farooq Ghuman armed with .30 bore pistol, Rana Nafees armed with .12 bore pump action and Mian Irfan armed with .12 bore Pump action alongwith three unknown persons also armed with deadly weapons were boarded and they jointly raised Lalkaras and started firing with common intention to murder them.
He hide himself behind the corridor, whereas Ansar Cheema sustained two fire-arm injuries and fell on the ground in injured condition and all accused hearing my noise ran away. The motive behind this occurrence was that both the parties belonged to two different groups of students i,e, ATI and M.S.F. and litigation was poding between them.
3. After getting information about the occurrence the local police completed all the necessary formalities. Thereafter, Zulifqar Ali S.H.O. Inspector rushed to the Hospital, where he met the complainant and recorded' his statement under section 154. Then he rushed to the. spot. He collected the bloodstained earth from the spot vide memo. Exh.P.B. At the spot he received information about the death of Ansar Cheema deceased and he again went to the Hospital and prepared inquest report Exh.P.C. and injury statement Exh.P.D. Last-worn clothes were also received by him. He arrested Raheel Shehzad and Rana Nafees accused on 15-11-1998 and Tahir accused on 10-3-1998. All the remaining accused after getting interim bail joined the investigation. Rana Nafees was declared innocent by him. Mehr Abdullah and Ali Asim accused were arrested by Riaz Ahmad, S.I. Mian Irfan and Farrukh accused were arrested by Masood Khan, A.S.I. and they -both were found guilty by him. Ultimately the challan was prepared against the accused and the same submitted for trial.
4. In order to prove its case the prosecution has produced as many as 15 witnesses in all including I.Os., Doctor, and other relevant and formal witnesses. After tendering in evidence report of Chemical Examiner Exh.P.V. 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.
5. Learned counsel for the appellant in support of this appeal submits that appellant was not named in the F,I.R., no identification parade was held, that no recovery was effected from the appellant, that there is only one injury for which 13 persons have been roped in this case. He submits that no case is made out against the appellant.
6. On the other hand learned State counsel admits that appellant is not named in the F.I.R., that no identification parade was held in this case and no recovery has been effected from him but submits that appellant was member of unlawful assembly and he while armed with fire-arm and with common object committed the murder of the deceased. He supports the judgment of the learned trial Court.
7. I have heard the learned counsel for the parties and also have gone through the record. In the F.I.R. in all 10 persons were named as accused and amongst them Mian Irfan has been acquitted due to compromise between the parties while Farrukh, Rana Nafees, Mehr Abdullah, Ali Asim, Farrukh Iqbal and Farooq Ghumman are still at large and they are P.O. As far as co-accused Azmat Ullah Warraich is concerned he was also declared P.O. but after the present trial he was arrested by the police. As far as appellant is concerned he was not named in the F.I.R., no identification parade was held in this case. It is interesting to note that Muhammad Akbar P.W.5 has stated in 'his examination-in-chief in the last four lines that:-- "Abdul Aziz alias Tahir Gujar, Raheel Shehzad and Ihtisham all these three accused whose names were intimated to me by the police were also told to the police in the same evidence of 1-12-1997 by me."
The said examination-in-chief clearly shows that the complainant did not know the A name of the appellant and he was told the name of the appellant by the police. No recovery was effected from the appellant during the course of physical remand. Postmortem examination in this case was conducted by Doctor Asif Sajjad P.W.15 on 1-12-1997. He found only one entry wound and that wound had got blackening. It means that fire was made from a very close range. In the F.I.R. or before the learned trial Court none of the eye-witnesses who were three in number have specifically attributed the said injury to any of the accused person including the appellant. It has been admitted by the complainant in the F.I.R 'that there was enmity between two students organization known as ATI and MSF. At far deceased was concerned, he belonged to ATI. Litigation was also pending between the parties.
After hearing the learned counsel for the parties and going through the record available on the file, I am of the considered opinion that the participation of the appellant in the present occurrence is doubtful so while granting benefit of doubt. I accept this appeal and set aside the conviction and sentence awarded to the appellant. He shall be released forthwith from Jail if he is not required in any other case.
Note. Any observation made in this judgment would not prejudice the case of prosecution or the accused persons.