' This judgment will dispose of Criminal Appeal No,274 of 2002 and Criminal Revision No,168 of 2002 directed against the judgment, dated 26-1-2002 passed by learned Additional Sessions Judge, Kasur, whereby he convicted the appellant under section 302(b), P.P.C. And sentenced him to undergo life imprisonment with further direction to pay Rs,50,000 as compensation required under section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C. Was also granted to the appellant.
2. Brief facts as narrated by the complainant in the F.I.R. Are that he alongwith his brother Jalal Din and nephew Muhammad Sharif was lying in front of Chobara on the roof top of his house at 2 a.m., as they were talking about the marriages of the girls. Complainant's son Abdul Razzaq was asleep on a separate cot. Islam armed with rifle .222 bore, Ismail with pump action gun and Abdul Reitman alias Kullay Khan armed with .222 rifle scaled on the roof in the meanwhile. Ismail raised Lalkara that Abdur Razzaq be given taste for hitting firing shot to Muhammad Aslam. Abdul Rehman fired with his rifle hitting Abdul Razzaq on his head. Ismail continued pointing his pump action gun upon complainant and others and threatened that anyone trying to move shall be dealt likewise.. Abdul Razzaq succumbed to the injuries at the spot and the accused fled away. The 'motive behind the present occurrence was that 3/4 years prior to the instant occurrence Abdul Razzaq deceased had injured Muhammad Aslam son of Abdul Rehman through fire shot.
3. After getting information about the occurrence the local police completed all the necessary formalities and then Manzoor Ahmad, S.-I. Alongwith his subordinates proceeded to the spot. He prepared inquest report Exh.P.J. And injury statement Exh.P.K. Vide memo. Exh.P.G. He also took into possession blood-stained earth. Last-worn clothes were also taken into possession by him vide memo. Exh.P.C. Three crime-empties P.6/1-3 were also taken into possession vide memo. Eih.P.H.
Thereafter investigation of the case was entrusted to Muhammad Sadiq, S.-I. Who arrested the accused on 7-6-2000, he vide recovery memo. Exh.P.A. Got recovered rifle .222 bore from Islam accused on 19-6-2000 and on the same day vide memo. Exh.P.B. Pump action gun was also got recovered from Ismail accused. Ultimately after usual investigation the accused were challaned and were sent to jail to face the trial.
4. Prosecution in order to prove its case has produced as many as 13 witnesses including Investigating Officers, Doctor and other formal and releVant persons. After tendering in evidence report of Chemical Examiner Exh.P.N., report of Serologist Exh.P.O. And report of Forensic Science Laboratory Exh.P.P., learned A.D.A. Closed the prosecution evidence. Thereafter, statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded their innocence. Learned trial Court after taking into consideration all the evidence produced by the parties and hearing the arguments advanced by the parties, convicted and sentenced the appellant as stated above.
Hence this appeal.
5. Learned counsel for the appellant in support of this appeal submits that it was a night occurrence and unwitnessed one that according to the F.I.R. One fire each was attributed to. The appellant and his co-accused Abdul Rehman but before the learned trial Court present appellant was also attributed two injuries, one on the head and the other on the shoulder of the deceased and same was the position against Abdul Rehman, .That three empties recovered from the spot did not match with the rifle recovered on the pointation of the appellant, that the case of the present appellant is on similar footing to that of Abdul Rehman acquitted accused.
6. As far as motive is concerned; the same was between Aslam son of Abdul Rehman and Abdul Razzaq deceased because prior to the present occurrence Aslam had fired at Abdul Razzaq and in this regard a case under section 324, P.P.C. Was pending before the learned trial Court while Abdul Rehman and the present appellant had no motive to commit the murder of the deceased. Lastly he argues that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt.
7. Learned. State Counsel on the other hand submits that appellant was named in the F.I.R. With specific role, that the eye-witnesses were natural witnesses as the occurrence had taken place in their house, that rifle was recovered on the pointation of the appellant, that ocular account is corroborated by medical evidence and that the prosecution has proved its case against the appellant beyond any shadow of doubt.
8. I have heard the learned counsel for the parties and also have gone through the record. In the instant case, the complainant has also filed a Criminal Revision bearing No,168 of 2002 titled as Abdul Majeed v. Islam and others. Learned counsel for the complainant is not present. When the case was called somebody, may be his clerk, submitted before me that he was not well.
Unfortunately, whenever, he is not present, a request is made that he is not well and this was even mentioned by me in an earlier case of learned counsel for the respondent. I may also point out here that against the acquittal of Abdul Rehman and was an Appeal bearing No,266 of 2002 was filed and the same was dismissed by a Division Bench of this Court. As the State Counsel is present to defend State and complainant cause, so I proceed to hear this appeal.
9. In the instant case, according to the prosecution the occurrence had taken place on 16-5-2000 at 2-00 a.m. In the house of the complainant, three persons were mentioned in the F.I.R. As witnesses i,e, Abdul Majeed father of the deceased, Muhammad Sharif nephew of the complainant and one Jalal Din brother of the complainant (given up P.W.) The complaint was lodged at 4-15 a.m. While the formal F.I.R. Was lodged on the same day at 5-30 a.m. According to the F.I.R. At the time of occurrence the appellant alongwith his two co-accused namely Abdul Rehman and Ismail came on the roof top of the Chobara where the deceased was sleeping on a cot. Islam appellant was armed with .222 bore rifle, Ismail with pump action gun, both sons of Abdul Rehman who were armed with .222 bore rifle. They all came on the roof. Ismail raised Lalkara that Abdul Razzaq deceased should be taught a lesson for causing injury on Muhammad Aslam and thereafter Abdul Rehman fired a shot with his rifle hitting the head of Abdul Razzaq, second fire was shot by the appellant with his rifle which also hit on the head of the deceased. As far as allegation against Ismail is concerned, same was that he threatened the eye-witnesses by pointing pump action towards them. The motive behind the present occurrence was that 3/4 years prior to the instant occurrence Abdul Razzaq deceased had injured Muhammad Aslam son of Abdul Rehman and in this regard a case under section 324/34, P.P.C. Was registered vide F.I.R. No,305 of 1997 against Abdul Razzaq deceased which was still pending in the trial Court. According to the post-mortem examination, there were four entry wounds on the person of the deceased, two on his head and two on his shoulder. The two eyewitnesses before the trial Court improved their statements and stated that two fires each were shot by the appellant and Abdul Rehman and they were duly confronted with their statements before the police recorded under section 154, Cr.P.C. And under section 161, Cr.P.C. Respectively. The occurrence had taken place in the dark hours of night at 2 a.m.
Had the eye-witnesses been present at the spot they must have stated the correct number of injuries on the person of the deceased. Three crime-empties were recovered from the spot but none of them matched with the rifle recovered on the pointation of the appellant. This is also a circumstance which goes in favor of the appellant. As far as motive is concerned, the same was that Abdul Razzaq deceased had given injuries to Muhammad Aslam son of Abdul Rehman and brother of the appellant. If anybody had to take revenge then that should be Aslam and not Islam and Abdul Rehman alongwith Ismail. On the same evidence Abdul Rehman has been acquitted by the learned trial Court and appeal against his acquittal as mentioned above has also been dismissed by a Division Bench of this Court in limine. Neither the pillow which was found to be stained with blood nor the cot on which the deceased was lying were taken into possession by the Investigating Officer. Even the doctor during the cross-examination had admitted that injury No,5 could not be caused while lying straight. At the time of post-mortem examination when the papers were produced by the police, the F.I.R. Was also not produced. In the site plan prepared by the draftsman Exh.P.D. The presence of the eyewitnesses has not been mentioned. The report of the Fire Arm Expert is negative which is Exh.P.P.
10. After having heard the learned counsel for the parties and going through the evidence on record, I am of the opinion that the case against the appellant is of highly doubtful nature. In this view of the matter, this appeal is accepted and conviction and sentence awarded to the appellant is set aside. He shall be released forthwith if he is not required in any other case.