' This judgment will dispose of Criminal Appeal No,2016 of 2001 against the judgment dated 27-11- 2001 passed by the learned Additional Sessions Judge, Hafiz Abad, whereby, he convicted the appellant under section 302, P.P.C. And sentenced him to undergo life imprisonment and under section 452, P.P.C. He was sentenced seven years' R.I. With benefit of section 382-B, Cr.P.C.
2. Brief facts of the case as narrated by the complainant, Maqsood Ahmad, in the F.I.R. Exh.P.Z. Are that he was present with his father Manzoor Ahmad, mother Anwar Bibi and wife Naseem Akhtar, in his house. Suddenly the accused Rafique armed with gun .12 bore, Faqeer Hussain armed with gun .12 bore, Muhammad Sharif armed with gun .12 bore, Rasheed Ahmad armed with .12 bore gun, Muhammad Amjad son of Nazir Ahmad armed with rifle, Majeed Ahmad armed with rifle, Muhammad Hanif armed with gun .12 bore, Muhammad Abbas armed with rifle, Sajjad Ahmad alongwith gun .12 bore, Shehbaz Ahmad armed with rifle, Ghulam Mohiyuddin armed with gun .12 bore, Ali Akbar armed with rifle, Allah Ditta armed with rifle, Muhammad Amjad son of Ali Akbar armed with rifle, Munawar Hussain accused entered into his house. Finding them in anger, his father entered into a residential room and bolted the door from inside. His mother and wife and he hidden themselves in a bath room and witnessed the whole occurrence through the holes of the bath room. Ismail accused raised Lalkara to murder the deceased, Manzoor, from the back of the aforesaid accused. Thereon the accused started firing on the wall and door. They also started to break the door but in vain. Thereon Ismail accused commanded the aforesaid accused to set the room on fire, through the roof. The accused Majeed Ahmad and Muhammad Hanif brought oil and tyre and Ali Akbar and Ghulam Muhammad brought Kussian, without wasting any time. Thereafter the accused Mujeed Ahmad, Muhammad Hanif, Shehbaz, Ali Akbar, Ghulam Mohiyuddin, Allah Ditta, Faqeer Hussain and Muhammad Ismail climbed up the roof and started dismantling the roof.
Burning tyre was also thrown into the room and due to that complainant's father Manzoor Ahmad, came out of the room with a hand bag containing Rs,1,10,000 therein. Then Muhammad Abbas with his rifle hit Manzoor on its right side of the head. Munawar Hussain, with his gun hit at his back.
Resultantly his father Manzoor Ahmad fell down on the ground. Thereafter Muhammad Rafique, with his respective gun fired near the left eye. Amjad with his rifle hit his left arm, Besides this all the other accused kept on firing and dancing at the place of occurrence. His father succumbed to the injuries. At the time of leaving the place of occurrence the accused took with them the hand bag containing the aforesaid cash with them. The whole occurrence was witnessed by his mother, uncle Hameed and by himself.
3. After getting information about the occurrence the local police completed all the formalities and thereafter, Javid Malhi, S.H.O. Alongwith his subordinates preceded to the spot. He prepared the injury statement Exh.P.N. And inquest report Exh.P.O. He took into possession blood-stained earth from the place of occurrence vide memo. Exh.P.I. He took into possession 15 empty cartridges of .12 bore gun. Exh.P.3/1-15 and 10 empties of rifle Exh.P.4/1-10 vide memo. Exh.P.3. He also took into possession the other burnt articles etc. Vide memo. Exh.P.C. He also took into possession blood- stained last-worn clothes of the deceased vide memo. Exh.P.A. He arrested all the accused on 27- 10-1998. On 10-11-1998, he took into possession rifle 7 mm at the pointation of Amjid Ali which he took into possession vide memo. Exh.P.D. On the same day Muhammad Hanif accused got recovered gun .12 bore vide memo. Exh.P.E., on the same day Ghulam Mohiyuddin led to recover gun .12 bore gun vide memo. Exh.P.F. Sajid Ali, accused also got recovered gun .12 bore through memo. Exh.P.G. And Muhammad Sharif accused got recovered gun .12 bore through memo. Exh.P.H.
On the same date. Muhammad Ali got recovered Kassi, and Galon vide memo. Exh.P.I. On 11-11-1998 Ali Akbar accused led to the recovery of gun .12 bore vide memo. Exh.P.K. On 31-10-1998 accused Amjid Ali got recovered rifle vide memo. Exh.P.Q. On the same date Abdul Majeed accused led to the recovery of rifle 7 mm vide memo. Exh.P.R. And Muhammad Rafique accused got recovered .12 bore gun vide memo. Exh.P.S. On 3-11-1998 accused Muhammad Abbas got recovered rifle 7 mm vide memo. Exh.P.T. The Investigating Officer got recovered .12 bore gun at the pointation of accused Faqeer Hussain vide memo. Exh.P.U. On 3-11-1998 he got recovered rifle from the Allah Ditta vide memo. Exh.P.B. Ultimately after thorough investigation he prepared the challan of the accused.
On 20-11-1998, and submitted the same for trial.
4. Prosecution in order to prove its case produced as many as 14 witnesses including Investigating Officer, Doctor, eye-witnesses and other formal witnesses. After tendering in evidence report of Chemical Examiner Exh.P.BB., report of Serologist .Exh.P.CC. And report of Forensic Science Laboratory Exh.P.DD. Learned A.D.A. Closed the prosecution evidence. Thereafter, statements of the accused were recorded under section 342, Cr.P.C.
5. Learned counsel for the appellant in support of this appeal submits that on the same evidence 13 accused persons have been acquitted by the learned trial Court, that two co-accused of the appellant namely Munawar and Abbas are still P.O., that there was previous enmity of murders between the parties, that the last case was registered between the parties in 1994. Learned counsel submits that there is no independent corroboration to the statements of the witnesses against the present appellants on which the conviction and sentence awarded to the appellant by the learned trial Court cannot be maintained. He further submits that Amjad the brother of the appellant has been acquitted by the learned trial Court although he was also attributed an injury caused on the person of the deceased. Learned counsel submits that empties were recovered from the spot according to the prosecution case but they were not sent to the Fire-arm Expert for comparison, that there was no pellet or bullets mark on the outer wall and the gate of the house of the deceased as alleged by the complainant in the F.I.R., that no recovery of any amount was made from the appellant and his co-accused during the course of investigation although there was allegation that deceased was having Rs,1,10,000 in a bag at the time of occurrence. He submits that no case is made out against the appellant.
6. On the other hand learned counsel for the State submits that appellant is named in the F.I.R., that specific role is attributed to him, that it was a broad daylight occurrence and the matter was reported to the police very promptly, that ocular account is corroborated by the medical evidence supports the judgment of the learned trial Court.
' I have heard the learned counsel for the parties and also have gone through the record available on the file. In all sixteen accused were mentioned in the F.I.R. Who according to the complainant while armed with fire-arms criminally trespassed into the house of the complainant and they also demolished the roof of the house of the deceased with Kassi and thereafter set the house on fire before firing indiscriminately on the outer walls and doors of the house of the deceased. The Investigating Officer and the Draftsman had admitted that there was no sign of pellets or bullets on the outer wall of the house of the deceased. On the same evidence 13 accused have been acquitted while Munawar and Muhammad Abbas co-accused are still at large. Amjad the real brother of the appellants has already been acquitted by the learned trial Court although a specific role was attributed to him. Fifteen crime-empties of .12 bore gun and 10 crime-empties of .7 mm rifle were recovered from the spot but the reason best known to the Investigating Officer same were not sent to the Fire-Arm Expert though a gun was recovered on the pointation of the appellant but according to the report of Fire-Arm Expert which is Exh.P.DD. It was not in working condition. Had the Investigating Officer sent the crime-empty to the Fire-Arm Expert and if any crime-empty had matched with the gun of the appellant then one can say that there is an independent corroboration against the appellant. On the same set of evidence Amjad the brother of the present appellant was acquitted as mentioned above. He was also attributed a specific injury. Appeal against acquittal of 13 accused was filed by Mst. Anwar Bibi before this Court which was dismissed for non-prosecution on 17-4-2002. As there is no independent corroboration against the appellant so conviction and sentence cannot be maintained on the same evidence which has been used for the acquittal of 13 accused persons including the brother of the appellant namely Amjad. Keeping in view the above circumstances of the case, I while accepting this appeal set aside the conviction and sentence awarded to the appellant. He shall be released forthwith if he is not required in any other case. As far as case of Munawar and Abbas P.Os. Is concerned, their case would be decided in accordance with law after their arrest. Any observation made in this case would not prejudice the case of the prosecution.