' This judgment will dispose of Criminal Appeal No,653 of 2000 filed by Faiz Ahmad, Muhammad Nawaz, Khadim Hussain and Muhammad Hanif, appellants who were convicted and sentenced by learned Additional Sessions Judge, Sialkot vide judgment dated 3-5-2000 as under:-- ' Imprisonment for life and to pay compensation of Rs,40,000 each, in default 3 months' R.I. Under sections 302(b)134, P.P.C. And ' Seven years' R.I. And to pay a fine of Rs,10,000 in default 2 months' R.I. Under section 324/34, P.P.C.
2. Briefly stated the facts of the case are that on 3-3-1995 at 12 noon, Akbar Ali was standing in front of his house, his son Shahbaz Ahmad aged 22/23 years alongwith Shabbir Hussain were going towards Kotli Joian from the house of in-law of Shabbir Hussain, when they reached in the field of Muhammad Sadiq, Faiz Ahmad armed with rifle 7 MM, Muhammad Nawaz armed with rifle, Muhammad Ghani empty-handed, Ghulam Rasool empty-handed, Khadim Hussain empty- handed, Muhammad Hanif armed with .12 bore gun, Muhammad Arshad armed with .12 bore gun and Muhammad Iqbal (PO) armed with rifle 7 MM came there from the Dera of Muhammad Ghani.
Ghulam Rasool and Muhammad Ghani raised Lalkara that Shahbaz etc., be taught a lesson for disgracing them and be killed; upon this, Muhammad Iqbal (PO) fired a shot with his 7 MM rifle which hit on the left side of chest of Shahbaz. Faiz Ahmad fired with his rifle at Shabbir Hussain which landed on the right side of his chest. Shahbaz and Shabbir fell down on the ground after receipt of injuries; Muhammad Nawaz, Khadim Hussain, Muhammad Hanif and Muhammad Arshad fired with their respective weapons in the air, the complainant Akbar Ali, Muhammad Ilyas and Muhammad Bashir rushed towards the place of occurrence but the accused decamped to their village. Both the injured were taken to hospital but Shahbaz succumbed to his injury in the way to hospital.
' The motive alleged was that 15 days prior to the occurrence, Shahbaz had a quarrel with Muhammad Hanif and Nawaz while playing volley ball but the matter was patched up.
Muhammad Hanif etc. Kept a grudge and then committed the murder of Shahbaz and injured Shabbir.
3. Investigation of the case was taken over by Khalid Mehmood S.I. (P.W.13). He, after registration of the formal F.I.R. Exh.P.B., went to the place of occurrence, inspected the spot, prepared inquest report Exh.P.L., injury statement Exh.P.M., took into possession bloodstained earth vide memo.
Exh.P.D. And Exh.P.E. On 12-3-1995 the statement of injured Shabbir Hussain was recorded, Muhammad Ghani, Ghulam Rasool and Khadim were arrested on 13-3-1995 while on 23-3-1995 Muhammad Nawaz accused was arrested, on the same day Khadim accused got recovered rifle 7 MM which was taken into possession vide memo. Exh.P.F.; Muhammad Nawaz also led to the recovery of rifle 7 MM which was seized vide memo. Exh.P.1, on 30-3-1995; Muhammad Hanif accused got recovered .12 bore gun which was taken into possession vide memo. Exh.P.H.; Muhammad Faiz accused was arrested on 3-4-1995 and he while in Police custody got recovered rifle 7 MM which was secured vide memo. Exh.P.G. And that Arshad accused was arrested on 2-3- 1995. However, after completion of the remaining formal investigation, all the accused were challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 14 witnesses in all. Then the learned ADA tendered in evidence report of the Chemical Examiner Exh.P.S., Exh.P.T., reports of the Serologist Exh.P.U, Exh.P.V. And closed the case of prosecution. After that, statements of the accused were recorded under section 342, Cr.P.C. In which they denied the case set up by the prosecution.
5. Learned counsel for Faiz Ahmad, appellant submits that a bare perusal of statements of Muhammad Nawaz, Khadim and Muhammad Hanif would show that in fact these three accused had taken the plea of right of self-defence for causing the death of Shahbaz and injuring Shabbir Hussain. Further submits that Faiz appellant was a Head Constable in Police Department at Sialkot, never visited the village for the last so many years but has been falsely implicated by the complainant party. Adds that no recovery was effected from the spot. Further adds that according to the statement of Akbar Ali P.W.2 all the accused fired at the spot for 5/7 minutes and during cross-examination the said P.W. Did not state that Faiz had caused injury on the person of Shabbir, the injured. According to learned counsel, no case under section 302, P.P.C. Is made out against Faiz and he did not cause any injury to the deceased Shahbaz. In fact the complainant party consists of persons of bad character having record of criminal cases of murder and abduction etc.
6. Learned counsel for Muhammad Nawaz, Khadim Hussain and Muhammad Hanif submits that only aerial firing was attributed to the appellants, they did not cause any injury either to the deceased or the injured P.W. And that no motive was attributed to Khadim Hussain as he was serving in Army and had come to village on leave. Ch. Inayat Ullah Cheema, Advocate for Muhammad Hanif appellant submits that his client has been convicted on the basis of defence taken by defence counsel before the trial Court and not on the allegations levelled by the prosecution and that the fire-arm recovered from the convict was a licensed one.
7. On the other hand, learned counsel for the State supports the judgment of trial Court and .
Submits that all the convicts were named in the F.I.R. With roles and the occurrence being broad daylight, there was no question of false implication and mistaken identity.
8. I have heard learned counsel for the parties and have gone through the record. Eight accused were named in the F.I.R. Muhammad Iqbal who according to F.I.R. Had caused the death of Shahbaz deceased is PO while Ghani, Ghulam Rasool and Arshad have been acquitted by the trial Court.
Appeal bearing No,862 of 2000 against their acquittal was dismissed for non-prosecution. I would not like to comment upon the role of Muhammad Hanif because he is a PO and not appellant before me. Faiz Ahmad appellant caused an injury on the person of Shabbir P.W. With his 7 MM Rifle by choosing most vital part of body. His presence at the spot is proved.. The star witness of the prosecution namely Shabbir injured P.W. Has fully supported the case of prosecution. The injured witness appeared before the trial Court and his ocular testimony having been corroborated by medical evidence, there is no room left for any doubt as to guilt of Faiz Ahmad, appellant.
Resultantly, appeal to his extent is dismissed and the conviction and sentence recorded against him by the trial Court is maintained in toto. However, the sentences under sections 302(b)/34 and 324, P.P.C. Shall run concurrently with the benefit of section 382-B, Cr.P.C.
' Now, I take up the case of Muhammad Nawaz, Khadim Hussain and Muhammad Hanif, appellants.
The case of prosecution against them was that being present at the spot fired in the air but unfortunately, the learned defence counsel admitted their presence at the spot during cross- examination and also in their statements under section 342, Cr.P.C. Specially while replying question No,6. The question now arises whether this Court should believe the version of the prosecution or the defence set up by the accused. The settled law is that the prosecution has to build its own case and not to take the benefit of any weakness of the defence. The Court has to decide the case on the basis of evidence brought on record. In the instant case, the role ascribed to Muhammad Nawaz, Khadim Hussain and Muhammad Hanif appellants was that of aerial firing.
They did not cause any injury either to the deceased or the injured P.W. In the absence of any recovery from the spot, recovery of firearms at the instance of the appellants does not advance the case of prosecution any further. So, while granting the benefit of doubt which the above named three appellants have been able to create in the story of prosecution, I accept the appeal to their extent and set aside the conviction and sentence recorded against them by the trial Court.
Muhammad ivawaz, Khadim Hussain and Muhammad Hanif, appellants are in jail. They shall be released forthwith, if not required to be detained in any other case.