' Nasir appellant was convicted for an offence under section 302(b), P.P.C. Vide judgment dated 19- 12-2000 rendered by the learned Additional Sessions Judge, Faisalabad and was sentenced to imprisonment for life and to pay a sum of Rs,20,000 to the heirs of Noor Samand deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for six months. The benefit under section 382-B, Cr.P.C. Was extended to the appellant. The appellant has challenged his conviction and sentence before this Court through the present appeal.
2. The necessary facts giving rise to the present appeal are that at about 5-30 p.m. On 26-4-1995 Walayat and Noor Samand were done to death and one Nasrullah had received an injury at an open place in Chak No,422/G.B., Police Station Tandlianwala, District Faisalabad. F.I.R. No,316 was lodged by Muhammad Yousaf complainant in respect of the said incident at Police Station Tandlianwala, District Faisalabad at 7-15, p.m. On the same day for offences under sections 302/324/34, P.P.C. According to the said F.I.R. It was the appellant's elder brother namely Amir Hamza co-accused who had launched an aggression against the complainant party and during the progress of the said occurrence the appellant had joined Amir Hamza co-accused in chasing and injuring the complainant party. The role attributed to the appellant in the F.I.R. Was that he had caused a fire-arm injury on the right lower leg of Noor Samand deceased. The motive set up in the F.I.R. Was that the accused party wanted to take possession of some Government land which was already occupied by the complainant party.
3. After investigation of the said criminal case a challan was submitted against the appellant. The appellant's brother namely Amir Hamza co-accused had become a fugitive from law and his case was separated. At the commencement of the trial the learned trial Court framed a charge against the appellant for offences under sections 302/324/34, P.P.C. To which he pleaded not guilty and claimed a trial.
4. During the trial the prosecution produced as many as fourteen witnesses in support of its case against the appellant. Muhammad Yousaf complainant had died before commencement of the trial Muhammad Yasin (P.W.10), Altaf Hussain (P.W.11) and Manzoor Ahmad (P.W.12) furnished the ocular account of the alleged incident and they also deposed about the motive. The medical evidence was provided by Dr. Muhammad Yousaf Mughal (P.W.1), Dr. Abdul Rehman (P.W.7) and Zahoor Ahmad, Dispenser (P.W.8). Mushtaq Jahangir Khan, S.-I. (P.W.13) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
5. In his statement recorded under section 342, Cr.P.C. The appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. He, however, did not make any statement on oath under section 340(2), Cr.P.C. And also did not produce any witness in his defence.
6. At the conclusion of the trial the learned trial Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt and the appellant was, thus, convicted and sentenced as mentioned and detailed above. Hence, the present appeal before this Court.
7. I have heard the learned counsel for the parties and have perused the record with their assistance. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and, thus, the appellant is entitled to be acquitted. As against that the learned counsel for the State has maintained that the guilt of the appellant had been proved by the prosecution to the hilt and, therefore, the conviction and sentence of the appellant do not warrant any interference by this Court.
8. After hearing the learned counsel for the parties and going through the record I have entertained serious doubts about the alleged presence and participation of the appellant in the occurrence in question. Muhammad Yousaf complainant had died before making any statement before the learned trial Court, Muhammad Yasin (P.W.10) was a brother of the complainant and was interested against the appellant. He had admitted before the learned trial Court in so many words that he had not made any statement before the police during the investigation of this case. The statement of Altaf Hussain (P.W.11) does not inspire confidence to the extent of the appellant and Manzoor Ahmad (P.W.12) had said nothing about a fire of the appellant hitting Noor Samand deceased. It is not disputed that the appellant had not caused any injury to Walayat deceased and the injury sustained by Nasrullah P.W. As well as the fatal injury received by Noor Samand deceased were not attributed to the appellant. Nasrullah P.W. Had not even been produced by the prosecution as a witness before the learned trial Court. The prosecution's own case was that it was Atnir Hamza co-accused alone who had launched the initial aggression against the complainant party and the appellant was not even accompanying him when the incident in question had started. According to the prosecution's case the appellant had been attracted to the spot after Walayat deceased had already received his injuries at the hands of Amir Hamza co-accused. It was only during the chase. Of Noor Samand deceased by Amir Hamza co-accused that the appellant had allegedly joined Amir Hamza co-accused and had resorted to firing jointly with Amir Hamza co-accused. It was one of such fires which, had allegedly caused an injury on the right lower leg of Noor Samand deceased and that injury had been attributed to the appellant.
According to the prosecution's case Amir Hamza. Co-accused had kept on firing at Noor Samand deceased. In these circumstances the role attributed to the appellant by the prosecution has appeared to me to be a result of an exaggeration and it has not surprised me to learn from the record that the first Investigating Officer of this case had opined about innocence of the appellant.
9. The learned trial Court had concluded that the prosecution had failed to prove the motive set up by it and I have found no reason to disagree with the said conclusion. No weapon had been recovered from the appellant's possession during the investigation of this case. The doctor who had conducted the post-mortem examination of the dead body of Noor Samand had not been produced by the prosecution before the learned trial Court. In this view of the matter the statements made by the eye-witnesses to the extent of the present appellant had failed to receive any material corroboration or support from any independent source.
10. For what has been discussed above I have arrived at a confident conclusion that the role attributed by the prosecution to the present appellant could well be a result of an exaggeration on the part of the complainant party. In view of this conclusion the appellant is entitled to be extended the benefit of doubt. Thus, without prejudice to the prosecution's case against Amir Hamza co- accused, this appeal is hereby allowed, the conviction and sentence of the appellant recorded by the learned trial Court are set aside and the appellant is acquitted of the charge. He shall be released from the jail forthwith if not required in any other case.