' This judgment will dispose of Criminal Appeal No,1109 of 2000 directed against the judgment dated 1-6-2000 passed by the learned Additional Sessions Judge, Mianwali, whereby he convicted the appellant under section 302/34, P.P.C. And sentenced him to undergo life imprisonment with fine of Rs,50,000 or in default three years' R.I. With benefit of section 382, Cr.P.C.
2. The facts in brief as narrated by the 'complainant in the F.I.R. Are that on 19-5-1994 at about 7 p.m the complainant was accompanied with Feroze Khan his son, Hamid Ullah and Tariq Khan his nephews, returning to their home from their Deas, 'that Hameed Ullah was ahead of all the persons and when they reached near wandha Sadar Wala, Gul Amir Khan (the acquitted accused) armed with .12 bore gun Akbar Khan (acquitted accused) armed with .12'bore pistol came out of the nearby Khal and fired at Hamid Ullah on his forehead who fell down but stood up and ran towards the house when Khan Amir Khan accused (present appellant) armed with rifle and Noor Muhammad (acquitted accused) armed with 7 M.M rifle emerged when Khan Amir (present appellant) fired on Hamid Ullah hitting on his back side who again fell down and all the accused fled away, while Noor Muhammad (acquitted accused) also fired on Hamid Ullah deceased. The complainant along with the eye-witnesses saw Hamid Ullah deceased in injured condition who expired after ten to fifteen minutes, however, the deceased was shifted in his house in injured condition..
3. The motive stated by the complainant is that one Akram Khan brother of Khan Amir Khan and Gul Hamid (acquitted accused) was murdered by Hamid Ullah deceased but was acquitted in that case, hence the accused having this grudge along with the acquitted accused fired at Hamid Ullah deceased and killed him.
4. After receiving the information about the occurrence, the local police completed all the necessary formalities. Then Sabbir Hussain Shah S.I. Along with other police officials proceeded to the spot. He prepared the injury statement Exh.P.P and inquest Report Exh.P.Q. He also took into possession. Pistol Exh.P.4 and a missed cartridge Exh.P.5 produced by Zaka Ullah were taken into possession vide recovery memo. Exh.P.E. Then he took into possession nine crime empties Exh.P.6/1- 9 and one softy Exh.P.8 vide recovery memo. Exh.P.F. One left foot softy was taken into possession from the spot vide recovery memo. Exh.P.H. He collected five crime empties of Rifle Exh.P.7/1-5 from the spot vide recovery memo. Exh.P.G. Last worn clothes of the deceased Shirt Exh.P.1, Shalwar Exh.P.2, Vest Exh.P.3 produced by Noor Dad Constable before him were secured vide recovery memo. Exh.P.B. During interrogation, Gul Amir accused got recovered pistol Exh.P.9 and he took the same into possession vide recovery memo. Exh.P.K. Ultimately the challan was prepared and was submitted for trial.
5. The prosecution has produced as many as fourteen witnesses including Investigating Officer, doctor, eye-witnesses and other formal witnesses in order to prove its case. After tendering in evidence, Report of Forensic Science Laboratory Exh.P.T., learned DDA closed the prosecution evidence. Thereafter, statement of the accused-appellant was recorded under section 342, Cr.P.0 in which he pleaded not guilty and claimed to be tried.
6. Learned counsel for the appellant in support of this appeal submits that in all there were four accused. Three accused, namely Gul Amir Khan, Akbar Khan and Noor Ahmad were acquitted by the learned trial Court earlier vide his judgment dated 17-2-1998 which is Exh.D.A on the record. The fourth accused i,e, 'appellant in this case was not arrested and was declared P.O. He was arrested on 28-2-1999 by Muhammad Ali S.I.. Adds that two eyewitnesses namely Taj Muhammad and Feroze Khan produced by the prosecution were disbelieved qua the acquitted accused but qua the present appellant they have been believed by the learned trial Court which is not legally correct.
Learned counsel for the appellant submits that there is a conflict between the ocular account and the medical evidence. Learned counsel for the appellant has referred the judgment Exh.D.A through which co-accused of the appellant were acquitted and submits that as the eye-witnesses account qua the three co-accused (acquitted) was disbelieved the same cannot be believed. Learned counsel submits that Feroze Khan eye-witness who had appeared as P. W.11 in the earlier trial of acquitted co-accused and in the trial of the appellant while appearing as P.W.8 he had stated during the cross-examination that the deceased received first shot from the hand of Gul Amir Khan and the brain matter of the deceased had come out of the head of the deceased and he fell down on the ground. The doctor who had conducted the post-mortem examination had stated that after receiving shot from the hand of Gul Amir Khan, the deceased must have become unconscious.
Learned counsel submits that the story of the prosecution that after receiving the first shot the deceased ran away in order to save his life and then the appellant fired second shot hitting on the back of the deceased is not probable. Learned counsel submits that occurrence had taken place on 19-5-1994. Appellant was arrested on 28-2-1999 and the recovery of rifle was made on the same day. He submits that it is not possible for the appellant to keep the said rifle with him for five years. Adds that there is clear violation of section 103, Cr.P.0 and that no case is made out against the appellant.
7. On the other hand learned State counsel submits that the appellant was very much present at the spot and he was attributed a specific injury caused on the person of the deceased. He remained P.O for five years and this corroboration to the ocular account and the motive also connects the appellant.
8. I have heard the learned counsel for the parties and also have gone through the evidence recorded by the learned trial Court. Facts of the case are that the occurrence had taken place on 19-5-1994 and case was registered by Taj Muhammad complainant who was uncle of Hameed Ullah deceased. Three eye-witnesses were mentioned including Taj Muhammad complainant, Feroze Khan who is son of the complainant and Tariq given up P.W. Now Taj Muhammad was examined as P.W.7 and Feroze Khan as P.W.8. On the same evidence three co-accused of the appellant were acquitted by the learned trial Court. Gul Amir Khan who was attributed specific injury, was also acquitted by the learned trial Court. Feroze Khan P.W.8 the eyewitness had stated in the earlier trial that appellant fired second shot while the first fire was shot by Gul Amir Khan on the person of the deceased and receiving the said shot the deceased Hameed Ullah fell on the ground in an injured condition and his brain matter had fallen on the ground while the case of the complainant Taj Muhammad in the F.I.R. And before the learned trial Court was that the deceased after receiving the first shot fell on the ground, then stood up and ran in order to save his life. When the appellant fired on the deceased it hit on the back of the deceased. The two eyewitnesses had given contradictory statements before the learned trial Court. They are father and son and closely related to the deceased. Parties were inimical towards the appellant and his co-accused. No appeal against acquittal has been filed against the acquittal of Gul Amir Khan,Akbar and Noor Ahmad vide judgment dated 17-2-1998 passed by Additional Sessions Judge, Mianwali. I have gone through paragraphs 15, 16 and 17 of judgment dated 17-2-1998 with the assistance of the learned counsel for the parties. The earlier judgment has been placed on the record as Exh.D.A. According to the instructions of the learned counsel for the appellant the judgment dated 17-2-1998 has not been reversed. It is now very difficult to maintain the conviction of the appellant on the same evidence which has been appreciated and used in the judgment of acquittal of the three co- accused of the appellant. Although the appellant remained absconder for 5 years but as it has been held by this Court and the Honourable Supreme Court of Pakistan that some time an accused who is innocent, also abscond for the fear of his arrest and also being tortured by the police 'There is no independent corroboration to the testimonies of interested and inimical eyewitnesses like Taj Muhammad and Feroze Khan. There are so many doubts in the prosecution story.
' The upshot of the above discussion is that this appeal is hereby accepted and the conviction and sentence awarded to the appellant is set aside. Appellant is behind the bars. He is released forthwith if he is not required in any other case.