' This judgment will dispose of Criminal Appeal No, 420 directed against the judgment dated 3-3- 2001 passed by learned Additional Sessions Judge, Okara, whereby he convicted the appellant under section 302/B/34, P.P.C. And sentenced him to undergo life imprisonment with fine of Rs,1,00,000 (Rupees one lac) payable to the legal heirs of the deceased under section 544/A, Cr.P.C.
Or in default thereof six months' S.I. Benefit of section 382-B, Cr.P.C. Was also given to him. Criminal Revision No,227 of 2001 filed by the complaint shall also be decided through this judgment.
2. The facts in brief as narrated by the complainant Haji Zahoor Ahmad, P.W.1 are that on 9-11-1997 his nephew Fakhar Hayat deceased and Noor Muhammad P.W.2 were going on a motorcycle from Sadar Gogera to bring diesel. On their back on way at 4.00 p.m. Near the Pulli of the street, accused Tahir Nawaz while armed with rifle, Fakhar Hayat armed with .30 bore Pistol, Jaffar and Munnoo armed with guns suddenly came out. Tahir Nawaz raised Lalkara that Fakhar Hayat deceased, be given a lesson for causing injury on his head through bottle on which Fakhar Hayat accused fired with his pistol which landed on the back side of the head of the deceased. The second fire was made by Tahir Nawaz through ' rifle hitting the abdomen of the deceased. Jaffar and Munnpo accused committed firing with their weapons but the same did not hit Fakhar Hayat deceased and Noor Muhammad P.W. Noor Muhammad raised hue and cry on which complainant and Zahoor Ahmad reached there and witnessed the occurrence. The deceased succumbed to the injuries in Hospital. The motive behind the occurrence was that four days prior to the instant occurrence a quarrel had taken place between Tahir Nawaz and Fakhar Hayat accused and Fakhar Hayat deceased on which Fakhar Hayat deceased had given a bottle blow on the head of Tahir Nawaz accused/appellant The matter was reported to the police.
3. The police after completing all the necessary formalities proceeded to the Hospital. Muhammad Iqbal, S.I., P.W.8 prepared the injury statement Exh.P.F, inquest report Exh.P.G. He inspected the place of occurrence, took the blood-stained earth into possession vide memo. Exh.P.B. He also took into possession last worn clothes shirt P.1, Bunian P.2, Shalwar P.3 vide memo. Exh.P.C. All the accused remained absconder and proceedings under section 87, Cr.P.C. Were also initiated against them.
On 29-7-1999 on spy information Fakhar Hayat, Mansha alias Munnoo and Tahir Nawaz were arrested by him. He also arrested. Jafar accused on 3-8-1999. On 5-8-1999 Mansha alias Munnoo accused got recovered gun P.4 vide memo. Exh.P.S. On the same day Tahir Nawaz while in police custody got recovered of rifle .7 mm vide memo. Exh.P.T. On 6-8-1999 Fakhar Hayat accused while in police custody got recovered pistol .30 bore P.6 vide memo. Exh.P.U. On the same day while in police custody Jafar Ali accused got recovered .12 bore gun P.7 vide memo. Exh.P.V. The Investigating Officer after completion of investigation prepared the challan against the accused and submitted for trial.
4. Prosecution in order to prove its case has produced as many as 9 witnesses including Doctor, Investigating Officer, eyewitnesses, and pother relevant persons. After tendering in' iderfee ' report' ''of Chemical Examinei, Exh.P.W and that of Serologist Exh.P.K, learned APP 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 there is conflict between the ocular account and the medical evidence. While explaining this aspect of the case he submits that according to the F.I.R., Fakhar Hayat acquitted accused caused injury with .30 bore pistol on the head of the deceased but there are two injuries and moreover the pellets were recovered from the body of the deceased, according to the Doctor, who conducted the post- mortem examination learned counsel submits that injuries Nos.3 and 4 are abrasion and according to the Doctor these were also with fire-arms but only one injury was attributed to present appellant. He further submits that the main accused Fakhar Hayat has been acquitted, the appeal against his acquittal was filed, but the same was also dismissed by this Court, that no crime empty was recovered from the spot, that as far as motive is concerned, merely on the ground of motive, even if proved, no conviction can be maintained. Learned counsel submits that both the eye-witnesses are real uncle and brother of the deceased and they were not present at the spot and infact it was an unwitnessed occurrence as the same had taken place in the dark hours of night. Learned counsel submits that deceased had number of enemies and in this regard he has submitted so many copies of F.I.Rs, i.e Exh.DD to Exh.DG. Learned counsel for the appellant submits that eye-witnesses were so dishonest,' that in the F.I.R. There were two injuries attributed to Fakhar Hayat and the present appellant but the same were converted into four by the eye- witnesses in their statements recorded by the police. Learned counsel for the appellant adds that as far as abscondence is concerned no corroboration can be sought from the same if the prosecution otherwise fails to prove the case against the appellant and he has relied upon 2000 S.0 (cases) 1041.
6. Learned counsel for the State on the other hand submits that he has gone through the judgment of the trial Court. According to him eye-witnesses were not present at the spot. He further submits that according to the F.I.R. Fakhar Hayat was armed with pistol and he caused one injury on the head of the deceased but according to the Doctor there were two injuries and the pullets were recovered by him. He submits that in this case ocular account is fully contradicted by the medical evidence. Learned State counsel submits that Investigating Officer had stated before the trial Court that injury on the head of the deceased was of .12 bore and not with .30 bore pistol.
7. Learned counsel for the complainant who has filed a Revision No,227 of 2001, submits that it was a promptly lodged F.I.R. And the prosecution has proved the motive against the appellant, that it was a broad daylight occurrence. The eye-witnesses were natural one and there, are minor discrepancies which can be ignored, that the appellant and his co-accused remained absconder for months . In this regard he has also relied upon He 1982 SC 488 and 1977 PCr.LJ 932. Lastly he submits that recovery was also effected on the pointation of the appellant.
8. I have heard the learned counsel for the parties. In the instant case there is conflict between the ocular account and the medical evidence. In this regard I would like to state here that according to the F.I.R. Which was lodged by Haji Zahoor Ahmad, real uncle of the deceased, Tahir Nawaz accused raised Lalkara on which Fakhar Hayat who was armed with .30 bore pistol fired on his person which hit on his head but according to the post-mortem injuries Nos.1 and 2 are two different injuries'and moreover, according to the Doctor pellets were recovered from both these wounds. It means that the eye-witnesses were not present at the spot. Had they been present at the spot they must have stated that the accused who caused the injury on the person of the deceased had fired with .12 bore gun. This is a clear conflict between the ocular account and the medical evidence. Thereafter, it was stated in the F.I.R. That Tahir Nawaz appellant caused injury with rifle which touched the abdomen of the deceased but in fact there are two abbrasions i,e, injuries Nos.3 and 4 but the witnesses after coming to know that the injuries in the postmortem report, they improved their story before the learned trial Court and stated that four injuries in spite of 2 injuries were caused on the person of the deceased. Fakhar Hayat was the main accused who according to the F.I.R. Gave the injury on the head of the deceased but he was acquitted. The appeal filed against his acquittal i,e, Criminal Appeal No,493 of 2001 was also dismissed. It is also important to note that there is no corresponding hole mentioned by the Doctor of 'the shire 'and bunian of the deceased, it also casts doubt on the veracity of the prosecution's case. No crime empty was recovered from the spot. Defence counsel had produced four ..F.I.Rs, i.e Exh.DD to Exh.DG in which 'deceased was involved. Possibility ,of this occurrence having taken place in the dark hours of night after `Maghrab prayer' being unwitnessed by any person, cannot be ruled out. Merely on this ground that motive was attributed to the appellant, conviction on capital charge cannot be maintained or awarded, unless there is any other evidence. The ocular account corroborated by medical evidence or recovery is lacking in the instant case. Even the learned State counsel is not supporting the prosecution case and has clearly stated that it was an unwitnessed occurrence and eye- witnesses were not at the spot. Both the eye-witnesses namely Zahoor Ahmad and Noor Muhammad are real uncle and brother of the deceased. No independent witness has been produced by the prosecutions.
9. After having heard the learned counsel for the parties and going through the evidence recorded by the learned trial Court I am fully convinced that case of the prosecution is full of doubts and when this is the position benefit of doubt is given to the appellant not as a grace but as matter of right. In this view of the matter, this petition is accepted and the conviction and sentence awarded to him is set aside. He shall be released forthwith if he is not required in any dismissed.