' This judgment will dispose of Criminal Appeal No,370 of 2001 filed by Muhammad Ashraf, appellant and Criminal Appeal No,311 of 2001 filed by Abdul Aziz, appellants, who were convicted , and sentenced by learned Additional Sessions Judge, Bhakkar vide his judgment dated 27-1-2001 to undergo imprisonment for life under section 302(b)/34, P.P.C. With the further direction to pay Rs,1,50,000 each as compensation to the legal heirs of deceased as required under section 544-A, Cr.P.C. Or in default six months' R.I.
' Criminal Revision No,217 of 2001 filed by Abdul Jabbar complainant against Muhammad Ashraf etc., for the enhancement of sentence shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place at 1-30 a.m. On the night between 28/29-4-2000 within the jurisdiction of Police Station Sarai Mohajir, District Bhakkar at a distance of one furlong while the matter was reported to the police on the same day at 4-30 a.m. By Abdul Jabbar complainant and the formal F.I.R. Exh.P.11 was recorded by Muhammad Razzaq, A.S.-I.
3. Brief facts of the case as disclosed by Abdul Jabbar complainant are that he, his brother Muhammad Ishaque and his nephew Muhammad Aslam run a barbar shop/Hamam at Chowk Sarai Mohajir and they had taken a house on rent from one Muhammad Raman Sial. They were sleeping in their house on the night of 28/29-4-2000 at 1-30 a.m., they woke up on hearing the hue and cry of his brother Muhammad Ishaque. He and Muhammad Aslam went to his bed and found that acid had been thrown upon him. He was crying and was also telling that he had lost his eyesight. After some time he lost senses. He lodged the report with the Police Officer that one Muhammad Aslam son of unknown, caste Nai had thrown acid upon him and has burnt him.
' Motive behind the present occurrence was that two years ago brother of the complainant, namely, Muhammad Ishaque had thrown acid upon the brother of Muhammad Aslam but he survived. Aggrieved by it, the above mentioned Muhammad Aslam had thrown acid upon on the brother of the complainant and had burnt him.
4. Investigation of the case was taken over by Ejaz Hussain. A.S.-1. P.W.9. He proceeded to hospital and recorded the statement of Muhammad Ishaque under section 161, Cr.P.C.. Inspected the place of occurrence. Prepared rought site plan, took into possession from the spot the cot, Tullai p.13.
Khais P.14 and pillow P.15 all burnt with acid through recovery memo. Exh.P.16, also recovered a bowl P.17 vide memo. Ehx.P.19, after the death of Muhammad Ishaq he prepared injury statement and inquest report Exh.P.23 and Exh.P.24 respectively, thereafter, the investigation of th case was taken over by Ghulam Muhammad, S.-1. P.W.
10. Who on 5-5-2000 arrested Muhammad Aslam, Muhammad Ashraf, Abdul Aziz and Muhammad Ratique accused. Accused Ashraf, Abdul Aziz and Muhammad Rafiq got recovered the empty can which was taken into possession vide memo. Exh.P.18. After completions of the investigation, the accused were challaned to face the trial.
5. At the trial, prosecution in order to prose its case produced 10 witnesses in all, thereafter, learned A.D.A. Closed the prosecution case then the statements of the accused were recorded under section 342. Cr.P.C. In which they pleaded innocence.
6. After having read the entire prosecution evidence, statements of the appeilants recorded under section 342. Cr.P.C. And other relevant, material available on record, learned counsel for Muhammad Ashraf appellant submits that only eye-witness, namely, Abdul Jabbar had appeared before the learned trial Court as P.W.8 and his statement had been disbelieved by the learned trail Court, that in the F.1.R. Muhammad Alam was named by Abdul Jabbar being the person who had sprinkled the acid on the person of the deceased, that Dr. Ikram Ullah Khan who had medically examined and also conducted post-mortem examination on the dead body of Muhammad lshaque had appeared. As P.W.2 and according to him 60% body of the deceased was burnt. Adds that said doctor had admitted in his cross-examination that after MLC no Police Officer visited the hospital till three hours and the duty hours of the said doctor was from 2-00 a.m. To 8-00 p.m.
Further adds on the other hand, Ejaz Hussain, A.S.-I./Investigating Officer P.W.9 had stated before the learned trial Court that he reached at hospital at 5-50 a.m., he recorded the statement of the deceased at 6-45 p.m. And thereafter he left the spot, that Ejaz Hussain, A.S.-I./ Investigating Officer never asked the said doctor by submitting an application whether the deceased was fit to make a statement or not, that no case is made out against Muhammad Ashraf appellant while as far as counsel for Abdul Aziz appellant submitssthat there is no evidence on record except the bald statement of the deceased under section 161, Cr.P.C. That Abdul Aziz was accused of abetment.
7. On the other hand, learned counsel for the complainant submits that in the instant case, police officers were irresponsible and even the doctor, that due to negligence, the Investigating Officer did not submit any application but adds that statement of the deceased Exh.P.21 was recorded by the Investigating Officer, that ocular account is corroborated by medical evidence.
8. Learned State Counsel submits that according to law no case is made out against the appellants.
9. I have heard learned counsel for the parties at a great length and have also gone through the record with their able 'assistance. In the instant case, Abdul Jabbar is a complainant, he had named Muhammad Aslam accused being the person who had sprinkled or thrown the acid on the person of Muhammad Ishaq deceased. I have gone through the medico-legal report of Muhammad Ishaq deceased, in the column of name of relative or friend, the name of Abdul Jabbar is not mentioned, he was not the person who had taken the deceased to the hospital. This also shows that Abdul Jabbar was not present at the spot and learned trial Court was right in disbelieving him. Motive in this case was also attributed to Muhammad Aslam, who had already been acquitted by the learned trial Cour( and appeal against his acquittal was dismissed by a Division Bench of this Court.. The star witness in this case was Dr. Ikram Ullah Khan. He had stated that he was on duty from 2-00 a.m. To 8-00 a.m. He had also categorically stated that neither any Police Officer visited the hospital nor any application was submitted before him about the fitness of the deceased to make a statement. The said doctor in whole of his statement had never stated that any statement was made by the deceased before him that acid was sprinkled or thrown by the present appellants. Ejaz Hussain, A.S.-I./ Investigating Officer P.W.9 had stated that he reached the hospital at 5-50 a.m. And recorded the statement of Muhammad Ishaq deceased Exh.P.21 at 6- 45 a.m. The statement of the doctor is only believable one. Learned State Counsel was right in submitting before this Court that according to law no case is made out against the appellants and my opinion is also the same, so while accepting these appeals, I set aside the conviction and sentence recorded against the appellants by the learned trial Court. Abdul Aziz appellant is on bail and he shall be discharged from his bail bonds while Muhammad Ashraf appellant is in jail and he shall be released forthwith if not required to be detained in any other case.