' This judgment will dispose of Criminal Appeal' No,353 of 2002 and Criminal Revision No,343 of 2002, directed against the judgment dated 9-2-2002 passed by the learned Additional Sessions Judge, Jhang whereby he convicted the appellant under section 302(b)/34, P.P.C. And sentenced him to undergo life imprisonment with fine of Rs,25,000 or in default thereof one year's S.I. He was further ordered to pay fine of Rs,50,000 as compensation under section 544-A, Cr.P.C. Or in default one year's S.I.
2. Brief facts of the case as narrated in the F.I.R. By the complainant are that he alongwith his son Suqlain Abbas deceased was busy in milking his buffalos at 7 a.m. In his cattle shed when suddenly Rab Nawaz accused proclaimed offender alongwith two other unknown persons armed with rifles came there. Rab Nawaz raised a Lalkara that he had come to take revenge of the murder of his grandfather. In the meanwhile the unknown person fired a straight shot of rifle at the complainant but he saved himself by lying down on the ground. Then Rab Nawaz co-accused fired a shot with his rifle at Suqlain Abbas hitting him on his left shoulder. Thereafter, the unknown accused fired a straight shot of rifle at Suqlain Abbas hitting him on the upper part of his right arm as a result of which he staggered. Rab Nawaz co-accused again fired a shot at Suqlain Abbas hitting him on the right side of his abdomen as a result of which he fell down. The third unknown co-accused fired in the air. Suqlain Abbas succumbed to the injuries at the spot while the accused fled away from the spot. The motive behind the present occurrence was that grandfather of Rab Nawaz was murdered and the complainant was an accused of the said murder.
3. After getting information about the occurrence the local police completed all the legal formalities and then Muhammad Siddique, A.S.-I. Proceeded to the spot alongwith other subordinates. He prepared the injury statement Exh.P.C. And inquest report Exh.P.B. He secured the blood-stained earth vide memo. Exh.P.G. Last-worn clothes were also received by him vide memo.
Exh.P.E. Both the accused Rab Nawaz and Mohsin Abbas were declared proclaimed offender. Later on Umar Khan, Inspector received an information about the accused Mohsin Abbas who was in police custody in some other case in Police Station Sadar, Sargodha. He also obtained physical remand of Mohsin Abbas. On 30-8-2000 while in police custody he got recovered rifle 7 mm P.1 vide memo. Exh.P.F. Ultimately he completed the investigation and challaned the accused to face.The trial.
4. Prosecution in order to prove its case has produced as many as 9 witnesses including Doctor, Investigating Officers, eye-witnesses and other formal witnesses. After tendering in evidence the reports of Chemical Examiner Exh.P.N. And that of Serologist Exh.P.O. Learned D.D.A. Closed the prosecution evidence. Thereafter, statement of the accused was recorded under section 342, Cr.P.C. In which he pleaded his innocence. After taking into consideration every aspect of the case and hearing the arguments advanced by both the parties, learned trial Court convicted and sentenced the appellant as mentioned above. Hence this appeal.
5. Learned counsel for the appellant in support of this appeal submits that appellant was not named in the F.I.R., no identification parade was held in this case, no crime-empty was recovered from the spot and even no motive is attributed to the appellant. He submits that the injury attributed to the appellant on the right arm of the deceased is a continuation wound of injury No,1- A and 1-B and this fact has been verified by the Doctor Mansoor Ahmad Cheema. Learned counsel submits that case of the appellant is of doubtful nature and he is entitled to acquittal.
6. On the other hand learned State Counsel assisted by the learned counsel for the complainant who has also filed a Criminal Revision bearing No, 343 of 2002 concedes that as far as injury attributed to the appellant caused on the person of the deceased is concerned that is continuation of injury No,1-A and injury No,1-B but submits that he is the person who had opened the attack and first of all he fired at the complainant who saved himself by lying down on the ground. He further submits that complainant and the eye-witnesses had made supplementary statement on the same day implicating and named the present appellant in this case; that rifle was also recovered from him, that there was no enmity between the parties and there was no question of false implication; that his presence at the spot is proved and they both support the judgment of the learned trial Court.
7. I have heard the learned counsel for the parties. F.I.R. Was lodged by Ghulam Asghar father of the deceased. Two eye-witnesses Ghulam Asghar and Mujahid Abbas who are father and real uncle of the deceased were produced by the prosecution. As far as appellant is concerned he was not named in the F.I.R. No identification parade was held in this case. According to the learned counsel for the complainant and the State he was named in the supplementary statement but no source is mentioned by the complainant from where he came to know about the involvement of the appellant. Learned counsel for the complainant has conceded that injury attributed to the appellant on the right arm of the deceased is a continuation wound of injury No,1-A and injury No,1- B which is attributed to Rab Nawaz who was proclaimed offender and now he is being tried. No crime-empty was recovered from the spot so the alleged recovery from the appellant has become inconsequential because there is no positive report of the Fire-arm Expert. Appellant had no motive to join hands. Motive if any was with Rab Nawaz co-accused.
8. After having heard the learned counsel for the parties and going through the record available on the file, I am of the opinion that the case of the present appellant is of doubtful nature. In this view of the matter, this appeal is accepted and the appellant is acquitted while grating benefit of doubt.
Any observation made in this judgment would not prejudice the case of Rab Nawaz co-accused who is being tried by the learned trial Court.