' This judgment will dispose of Criminal Appeal No,721 of 1998 filed by Muhammad Arif etc., Criminal Appeal No,1576 of 2000 filed by Muhammad Arshad and Criminal Revision No,358 of 1998 filed by Muhammad Yaqub against Muhammad Arif etc., directed against the judgment dated 29-6-1998 passed by Judge Special Court, Gujrat, whereby he convicted the appellants under section 302/34, P.P.C. And sentenced them to undergo life imprisonment as Ta'zir with further direction to pay Rs,30,000 each as compensation or in default six months S.1. Each with benefit of section 382-B.
Cr.P.C.
2. Facts of the instant case in brief as narrated by Muhammad Yaqub complainant through F.I.R.
Exh.P.A./1, are that on 7-1-1997 at 6 p.m. He alongwith Feroz Ali and Tariq Javaid was sitting at the milk shop of Muhammad Yousaf Dar when Muhammad Arif armed with .7-MM rifle Muhammad Ashfaq and Muhammad Shafique armed with .30 bore pistol and Muhammad Arshad armed with Kalashnikov came there. Muhammad Arif accused raised Lalkara that Muhammad Yousaf Dar be taught a lesson for getting Shaukat alias Shauka murdered on which all the four accused started firing with their respective weapons hitting Muhammad Yousaf Dar on the front of his chest left side of his body who died at the spot, The motive behind this occurrence was that 2-1/2 years ago Shaukat alias Shauka son of Muhammad Arif was murdered. The accused persons had suspicion that Muhammad Yousaf Dar had got him murdered. The matter was reported to the police.
3. After getting information about the occurrence the local police completed all the necessary proceedings and thereafter Muhammad Younas, S.-I. Alongwith his subordinates proceeded to place of occurrence. He prepared the injury statement. Exh.P.H. And inquest report Exh.P.J. He took into possession the-blood-stained earth vide memo. Exh.P.C. And five empty cartridges P.1 to P.5 vide memo. Exh.P.B. Last-worn clothes were also received by him on 8-1-1997 vide memo. Exh.P.E.
Except Muhammad Arshad, who was declared P.O., all the accused were arrested by him on 17-2- 1997. Ultimately, after thorough investigation and verification thereof by the DSP/SDPO. Challan against all the accused were prepared and submitted for trial.
4. Prosecution in order to prove its case has produced as many as 12 witnesses, including doctor.
Investigating Officer, eye-witnesses and other relevant persons. After tendering in evidence report of Chemical Examiner Exh.P.H. And report of Serologist Exh.P.J., 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 appellants in support of both the appeals submits that Arif appellant is father of Shafique and Ashfaq appellants in the instant appeal and Muhammad Arshad appellant in Criminal Appeal No,1576 of 2000. That both the eye-witnesses produced by the prosecution namely Muhammad Yaqub and Feroz are related and inimical witnesses, that no independent witness has been produced by the prosecution. That Muhammad Arif was armed with .7-MM rifle while Shafique and Ashfaq were armed with .30 bore pistol but no empty either of .30 bore pistol or .7-MM rifle was recovered from the spot. As far as recovery of empties is concerned, five empties of Kalashnikov were recovered from the spot and the Kalashnikov was allegedly stated to be in the hands of Muhammad Arshad. Learned counsel submits that Arif. Shafique and Ashfaq were found innocent by the police, that the injuries on the person of the deceased are on his left side. Learned counsel submits that according to the site plan prepared by the Investigating Officer and by the Patwari, the distance given between the three appellants namely Arif, Ashfaq and Shafique was 17 feet and the injuries found by the Doctor had blackened edges which means that these injuries cannot be caused from 17 feet. Learned counsel submits that the distance given by the draftsman and the Investigating Officer about the injuries allegedly caused by Muhammad Arshad is 11 feet and that they have been falsely implicated in this case. He submits that there was previous background of the enmity between the parties. He submits that all the appellants in both the appeals are entitled to acquittal.
6. On the other hand learned counsel for the complainant submits that all the accused were named in the F.I.R. With specific roles. Occurrence had taken place at the shop of the deceased and the F.I.R. Was lodged promptly in this case, that as far as Muhammad Arshad is concerned, he remained P.O. In the instant case. He supports the judgment of the learned trial Court in both the appeals.
7. Learned State Counsel on the other hand in a very straightway manner submits that case of Muhammad Arshad appellant is totally different from other appellants in Criminal Appeal No,721 of 1998. While elaborating his arguments he submits that five crime empties of Kalashnikov were recovered from the spot and Kalashnikov was with Muhammad Arshad appellant who also remained absconder for two years and 3 month. He submits that as far as Criminal Appeal No,721 of 1998 is concerned, no case whatsoever against the appellants is made out and they are entitled to acquittal.
8. I have heard the learned counsel for the parties and also have gone through the record. In the instant case Arif is father and Shafique and Ashfaq appellants in Criminal Appeal No,721 of 1998 and Arshad appellant in Criminal Appeal No,1576 of 2000 are his sons. As far as Arif, Shafique and Ashfaq appellants are concerned, they were armed with .7-MM rifle and .30 bore pistol respectively.
No empty either of the 7MM rifle or .30 bore pistol was recovered from the spot. They were arrested soon after the occurrence. They are father and sons. According to the site plan prepared by the Investigating Officer and the Patwari the distance given between the deceased and the place of firing allegedly made by the appellants in Criminal Appeal No,721 of 1998 is 17 feet while according to Doctor Ghulam Abbas Zafar who conducted the postmortem examination on the dead body of the deceased on 8-1-1997 at 9-35 a.m., the edges of the injuries of the deceased were found to be blackened so there is clear conflict between the ocular account and the medical evidence. No empty of .7-MM rifle or .30 pistol bore was recovered from the spot. No weapon of offence was also recovered during the course of investigation. Even these three accused were also found to be innocent by the police. After hearing the learned counsel for the parties and going through the record, I am of the view that as far as Criminal Appeal No,721 of 1998 is concerned, the same is accepted and the conviction and sentence awarded to the appellants in this appeal is set aside.
Appellants are behind the bars. They shall be released forthwith if they are not required in any other case.
9. As far as Muhammad Arshad appellant in Criminal Appeal No,1576 of 2000 is concerned, he was armed with Kalashnikov, 5 crime empties of Kalashnikov were recovered from the spot. All the injuries on the person of the deceased are on his left side and it was the result of burst fired by Muhammad Arshad appellant on the person of the deceased. Ocular account in this regard is corroborated by medical evidence, recovery of weapon and also crime empties. Moreover, Arshad appellant remained absconder for about 2 years and 3 months because occurrence had taken place on 7-1-1997 while he was arrested on 17-5-1999 i,e, 2 years and 4 months after the occurrence. This also finds corroboration against Arshad appellant. He was also found guilty by the Investigating Officer. Ocular account is corroborated by medical evidence, recovery of weapon of offence, crime empties and also being found guilty by the police. So keeping in view the above circumstances the appeal bearing No,1576 of 2000 filed by Arshad appellant is dismissed. Criminal Revision No,358 of 1998 filed by Muhammad Yaqub is also dismissed as the same was not filed against Muhammad Arshad appellant who was awarded life imprisonment.