' This judgment will dispose of Criminal Appeal No,1047 of 2001 directed against the judgment dated 30-5-2001 passed by the learned Additional Sessions Judge/Judge Special Court, Hafizabad, whereby he convicted Arshad and Ghazanfar appellants under section 302(b), P.P.C. And sentenced them to undergo life imprisonment with further direction to pay Rs,50,000 each as compensation under section 544-A, Cr.P.C. Payable to the legal heirs of the deceased or in default six months' S.I. Benefit of section 382-B, Cr.P.C. Was also given to them. Co-accused namely Zulfiqar, Muhammad Khalid, Nasar, Muhammad Abbas and Muhammad Ali alias Soofi were acquitted by the learned trial Court.
2. Brief facts of the instant case as narrated by the complainant Sarfraz Ahmad to the police through Exh.P.J. On 17-3-1997 at about 8-30 p.m. Are that he alongwith his brother Khalid Hussain deceased was in his house at 5-00 p.m. On the day of occurrence where Muhammad Khalid while armed with 222 bore rifle came and asked Khalid Hussain deceased to accompany him to village Wadahrey where some guests were waiting for him upon which Khalid Hussain went with Khalid accused. After a short while, on having suspicion the complainant, Nasar Ali and Munawar All followed them towards Wadahray, passing through the village. At about 5-45 p.m. When they were at a distance of one acre following Muhammad Khalid accused exclaimed "Oh Zulfiqar come out of the wheat crop as Khalid has reached, teach him a lesson for enmity", on which Zulfiqar Ali, Nasar armed with .12 bore guns, Abbas armed with .7 mm rifle and Muhammad All armed with 244 bore rifle alongwith two unknown persons who were armed with fire-arms and Khalid accused who was armed with .222 bore rifle started firing upon Khalid deceased who fell down on the ground. The accused ran away from the spot. The motive behind the present occurrence was enmity of murders between the parties.
3. After getting information about the occurrence the local police completed all the necessary formalities and then after thorough investigation Ghazanfar alias Ghannoo and Muhammad Arshad accused were placed in Column No,3 while the remaining accused were placed in Column No,2 of the report under section 173, Cr.P.C. In the meanwhile Mst. Amin Bibi filed a complaint Exh.P.H.
In which she alleged a different story that on the fateful day of occurrence she alongwith her husband Khalid Hussain deceased and his brother Sarfraz Ahmad was present in her house when Khalid accused who was friend of her husband and had visiting terms in her house, while armed with .222 rifle came there and said to Khalid Hussain deceased that some of his guests have come in his house and he had come to fetch him and also asked him to accompany him. Khalid Hussain took his licensed rifle and accompanied Khalid accused. Mst. Amin Bibi felt suspicion and asked Sarfraz Ahmad to know as to who were the guests upon which Sarfraz Ahmad followed them and after a short while they heard that. Ghazanfar alias Ghannoo and others had murdered Khalid HussaV in the area of village Wadahray. She reached the spot and found her husband Khalid Hussain dead. It was also alleged that Arshad accused had a suspicion that Khalid Hussain deceased was ' having illicit relations with his sister. After preliminary inquiry report under section 202, Cr.P.C. Was received in the Court which was entrusted to the learned trial Court and then the accused were summoned in this complaint to face the trial.
4. Prosecution in order to prove its case has produced as, many as 8 P.Ws. And 7 C. Ws. Including Doctor, Investigating Officer eye-witnesses and other relevant persons. After tendering in evidence report of Chemical Examiner Exh.P.N. And that of Fire-arm Expert Exh.P.O. Learned D.D.A. Closed the prosecution evidence. Thereafter, statements of the accused were recorded under section 342.
Cr.P.C.
5. Learned counsel for the appellants in support of this appeal submits that both the appellants were not named in the F.1.R. Though the F.I.R. Contained the names of the accused alongwith two unknown persons with further detail of fire-arms with which they were alleged to be armed at the time of occurrence, that the names of the appellants were mentioned later on in the supplementary statement of the complainant which was recorded 15 days after the occurrence, that the complainant had not mentioned the names of the appellants in the F.I.R. Although there was no hindrance in mentioning the names of the appellants, that the private complaint was filed 7 months after the occurrence by Mst. Amin Bibi widow of the deceased although she was not an eye-witness in this occurrence, that the motive given in the F.I.R. Was changed in the complaint by the widow in which the appellants have been convicted and sentenced, that according to the complainant Muhammad Arshad was armed with .7 mm rifle but from the injuries on the neck of the deceased, according to the post-mortem examination pellets were recovered so there is clear conflict between the ocular account and the medical evidence. Learned counsel submits that all the injuries were having tattooing and blackening and the distance given by the complainant between the assailants and the deceased was six Karams which also did not fit in with the prosecution case. He submits that as far as no crime-empty was recovered from the spot so the recovery of weapons cannot advance the prosecution case, that five co-accused of the appellants have been acquitted by the learned trial Court on similar evidence, that there is no independent corroboration against the appellants so the conviction cannot be maintained, that learned counsel has also relied upon 1995 SCM R 1350 tilted as Falak Sher v. The State and PLD 2002 Lah.
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6. On the other hand learned State Counsel concedes the submissions made by the learned counsel for the appellants.
7. I have heard the learned counsel for the parties. In the instant case F.I.R. Was lodged by Sarfraz the real brother of Khalid Hussain deceased against five accused persons namely Zulfiqar Ali, Nasar, Muhammad Abbas, Muhammad Ali, Khalid and two unknown persons against whom general allegation of firing on the person of Khalid Hussain deceased was levelled. The motive given in the F.I.R. By Sarfraz complainant was that three years prior to the present occurrence the brother of complainant was challaned in a murder of brother of Abbas accused and for that reason this murder has been committed. Fifteen days after the occurrence the names of the present appellants were given by the complainant in the supplementary statement although the complainant had admitted before the learned trial Court while being examined that 7 months after the occurrence the wife of the deceased Mst. Amin Bibi filed a complaint against the present two appellants and 5 others who have been acquitted by the learned trial Court namely Muhammad Khalid, Nasar, Zulfiqar Ali, Ghazanfar, Muhammad Arshad, Muhammad Abbas and Muhammad Ali.
Except the present appellants all the accused were acquitted. In this complaint the motive given by the complainant was that Arshad appellant had suspicion that Khalid Hussain deceased had illicit relations with his sister so the motive given in the complaint is totally different to that of F.I.R.
According to the post-mortem report injuries on the person of the deceased were having blackening and tattooing but the statements of two eye-witnesses reveal that distance between the assailants and the deceased at the time of occurrence was six Karams which also do not fit in with the prosecution version and even according to the site plan Exh.P.F. No crime-empty was recovered from the spot so the recovery of weapon on the pointation of the appellants cannot advance the prosecution case. On the same evidence 5 accused have been acquitted by the learned trial Court. There is no independent corroboration against the present appellants on which the conviction and sentence awarded to the appellants by learned trial Court can be sustained or maintained. Learned counsel for the State has also conceded to the submissions made by the learned counsel for the appellants who has done rightly so.
8. After having heard the learned counsel for the parties and going through the record, this appeal is accepted and the conviction and sentence awarded to them is set aside. Appellants are behind the bars, they shall be released forthwith if they are not required in any other case.