This judgment will dispose of Criminal Appeal No,1524 of 2000 directed against the judgment dated 26-9-2000 passed by learned Additional Sessions Judge, Sargodha whereby he convicted the appellants under section 302(b j, P.P.C. and sentenced them to undergo life imprisonment with direction to pay Rs,40,000 each as compensation or in default six months' S.I.
2. The facts in brief as narrated in the F.I.R., dated 1-10-1998 registered at Police Station Sadar Sargodha on the statement of Khizar Hayat complainant are that he was putting up at Ajnala but had built his Dera near Naseerabad Jhal; that on the' fateful day i,e, 1-10-1998 at about 1 p.m. he a1ongwith Gehna deceased, his father, after cutting fodder were proceeding towards their Dera and were at a distance of 4/5 killas from their Dera when Massan armed with .12 bore gun, Allah Yar with 7 mm rifle, Qasim, Arif and Muhammad Ramzan with hatchets suddenly emerged there by raising lalkaras that they had come there to teach a lesson for having made firing upon Bati their brother; that Massan accused fired from his gun hitting below the left knee joint of Gehna and thereafter accused Allah Yar fired by his rifle hitting on the left leg of Gehna deceased who fell down, that Qasim accused gave two hatchet blows which landed on the right forearm of Gehna deceased and thereafter Arif accused gave hatchet blow hitting Gehna deceased near his left shoulder, that Ramzan accused also gave two hatchet blows, one hitting near left wrist and the other on the right palm, that the accused persons thereafter by raising lalkaras started reiterating, that on his hue and cry as well as Gehna deceased Muhammad Iqbal and Muhammad Nawaz attracted to the spot and witnessed the occurrence. The motive behind the present occurrence was previous enmity.
3. After getting information about the occurrence, the local police completed all the necessary formalities and then Muhammad Ashraf ASI alongwith his subordinates proceeded to the spot. He took blood-stained earth through recovery Exh. P.G. He prepared injury statement Exh.P.F/1 and inquest report Exh.P.F. Thereafter investigation of the case was entrusted to Baz Gul, S.I., who on 29- 10-1998 arrested Qasim, Arif and Muhammad Ramzan accused. He also joined Allah Yar and Massan accused in the investigation and found them innocent. On 11-11-1998 Qasim accused while in his custody got recovered rifle P.3 alongwith four live cartridges P.4/i4 vide memo. Exh.P.H.
Muhammad Arif accused on the same day got recovered hatchet P.5 vide memo. Exh.P.J. Ramzan accused also on the same, day got recovered hatchet P.6 vide memo. Exh.P.K. Ultimately challan of the case was prepared by the S.H.O. and was submitted for trial.
4. The prosecution in order to prove its case has produced as many as 9 witnesses including Investigating Officers, Doctor, eyewitnesses and other formal witnesses. After tendering in evidence report of Chemical Examiner Exh.P.M. and that of Serologist Exh.P.M/1 and copy of birth certificate, of Qasim accused Exh.P.N closed the prosecution evidence. Thereafter statements of the accused were recorded under section 342 Criminal Procedure Code in which they pleaded not guilty and claimed to be tried. Qasim accused in his defence has also produced Exh.D.B, Exh.D.C, Exh.D.D, Exh.D.E, Exh.D.F, Exh.D.G and Exh.D.H.
5. Learned counsel for the appellants in support of this appeal submits that two eye-witnesses produced by the prosecution namely Khizar Hayat and Muhammad Iqbal are real brothers inter se and also sons of the deceased Gehna, that both the eye-witnesses are chance witnesses, that their presence at the spot is totally doubtful, that there is conflict between ocular account and the medical evidence and for that reason Massan, Allah Yar and Arif were acquitted by the learned trial Court and on the same evidence conviction and sentence of Qasim and Muhammad Ramzan cannot be maintained, that two eye-witnesses produced by the prosecution have made dishonest improvement in order to make in line their case with the medical evidence, that from Qasim rifle was got recovered, although, according to the F.I.R. he was armed with hatchet and he gave injuries with hatchet on the person of the deceased, that the hatchet recovered from Ramzan was stained with blood and that both the appellants were minors at the time of occurrence and they were students. Learned counsel for the appellants submits that the complainant had got many enmities with many persons and anybody could have murdered the deceased, that the story of cutting fodder has not been proved, that the motive laid with the complainant party and the appellants have been falsely implicated in this case. Learned counsel for the appellants has relied upon PLJ 1999 YLR 1478, 1997 PCr.LJ 2034, 1999 SCM R 1220, 1999 SCM R 697 and 1998 PCr.LJ 1192.
6. On the other hand learned State counsel assisted by the learned counsel for the complainant submits that it was a case of promptly lodged F.I.R. with specific roles attributed to the appellants, that recovery of weapon of offence was made from Ramzan appellant, that motive laid with the complainant because earlier the complainant party had injured the real brother of Massan and the case was pending. It was broad-day light occurrence, that only on minor discrepancies in the statements of the P.Ws. case of the prosecution cannot be termed weightless They both support the judgment it of the learned trial Court.
7. I have heard the learned counsel for the parties and also have gone through the record available on the file. In the instant case five accused persons were named in the F.I.R. namely Massan, Allah Yar who were real brothers inter se, Arif nephew, Qasim son of Massan and Muhammad Ramzan near relative of the accused. Massan was armed with .12 bore gun, Allah Yar was armed with 7 mm rifle and Arif with hatchet. They all were acquitted by the learned trial Court. They were attributed specific injuries in the F.I.R. on the person of deceased. Complainant had filed an appeal against the acquittal of Massan but the same was dismissed by this Court. As far as acquittal of Allah Yar and Arif is concerned, that was never challenged. Even during the course of investigation Massan and Allah Yar 'were found to be innocent. Qasim and Muhammad Ramzan were armed with hatchet and according to the F.I.R. two fires were made on the person of the deceased i,e, one by Massan with .12 bore gun and the other by Allah Yar with rifle but during the investigation rifle was recovered from Qasim who was a student of 17 years age. There is clear conflict between the ocular account and the medical evidence. The motive behind the present occurrence was that 1-1/2 months prior to the present occurrence one Batti real brother of Allah Yar was injured and in that case brother of Nazra son of the deceased was an accused and in those days was confined in judicial lock up. Allah Yar whose brother was injured was acquitted. Qasim and Ramzan used to live at Sargodha and they were students at that time. It has also come on the record that Khizar Hayat complainant and the deceased had enmities with so many people and appellants had produced many F.I.Rs about the enmity of the complainant with other persons and the involvement of the complainant party in cases which are Exh.D.B to Exh.D.H. and for this reason possibility of false involvement of the appellants in this case cannot be ruled out. The eye-witnesses who had involved in this cage five accused and out of them three have been acquitted by the learned trial Court how their testimony can be believed regarding the appellants. In my considered view the eye-witnesses were not present at the spot, they are cooked up witnesses and they were made witnesses later on in the present case. Even the place from where the grass was cut by the complainant was not pointed out by the eye-witnesses. No P.W. from the surrounding place either was cited or produced by the prosecution. This case is of full of doubts, and the golden principle is that benefit of doubt always granted in favour of the accused as a matter of right and not as a grace. In this view of the matter this appeal is accepted and the conviction and sentence is set aside. Appellants are ordered to be released forthwith if they are not required in any other criminal case.