2006 PLP 2646 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This appeal is directed against the judgment dated 30-4-2003 passed by the learned Additional Sessions !) Judge, Depalpur, whereby, they were tried in a complaint case filed under sections 324/302/148/149, P.P.C., Police Station Hujra Shah Maqeem, Depalpur, Okara. Present appellant was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life as tazir with a direction to pay a compensation of Rs.50,000 under section 544-A, Cr.P.C. to the legal heirs of deceased Hakim Ali in default whereof he was further directed to undergo S.I. for six months. Co-accused of the appellant, namely, Abdul Majeed was, however, given the benefit of doubt and was acquitted from the case vide the same judgment referred to above. His acquittal was assailed before this Court by way of filing Cr.P.S.L.A. No.52 of 2003 which was dismissed vide detailed order dated 9-4-2004 passed by a learned Judge in Chamber and the said acquittal was not interfered with.

2. The prosecution story, as unfolded through Private Complaint filed by the complainant Ghulam Rasool (P.W.2) briefly stated is that his brother Hakam Ali (deceased) and nephew Qurban also reside in the vicinity where the complainant lived; that the said Hakam Ali deceased married to Safia Bibi out of which wedlock two sons and one daughter were born who were residing with their mother Safia Bibi; that two and a half years back, due to strained relations, his brother Hakim Ali had divorced Safia Bibi; that the accused persons bore a grudge in their minds against the said Hakim Ali and even extended threats many times; that on the fateful night and time, the complainant along with his said brother Hakim Ali and nephew Qurban were near the land of Abdul Rashid when accused Abdul Rashid, Abdul Majeed and Sarwar armed with .12-bore guns ambushed; that Abdul Rashid raised a Lalkara to teach a lesson for divorcing his sister; that the said Abdul Rashid fired two shots with .12-bore gun which hit on his left arm and buttock; that Abdul Majeed fired a shot which hit Qurban Ali on his left arm; that two unknown persons made indiscriminate firing which landed on left knee and left arm of Qurban; the witnesses witnessed the occurrence while accused decamped from the spot.

3. Both the accused persons were summoned in the said complaint case to face trial before the learned trial Court.

4. The accused, when examined under section 342, Cr. P. C. denied the prosecution case, attributed their involvement in the present case to false implication and claimed trial.

5. Learned counsel for the appellant, in support of this appeal contended that in all three persons were named as accused persons and two were not named; that co-accused Abdul Majeed was acquitted from the case while the present appellant was convicted; that acquittal of the said Abdul Majeed was challenged before this Court through Cr.P.S.L.A. No.52 of 2003 which was dismissed by a learned Judge in Chamber vide detailed order dated 9-4-2004; that the private complaint to the extent of the present appellant Muhammad Sarwar was also dismissed by the learned Additional Sessions Judge but in compliance to a direction of this Court, he was summoned to face trial, tried and convicted accordingly; that neither in the F.I.R. nor in the complaint any specific role was attributed to the present appellant; that the impugned judgment has been passed against the weight of evidence on record; that it is based on surmises and conjectures; that the prosecution has failed to prove its case against the appellants beyond reasonable doubts and that, in the afore-referred circumstances, the appellant is entitled to acquittal from this Court.

6. On the other hand, learned counsel for the State submits that although no specific role is attributed to the appellant yet he remained present at the spot armed with a .12-bore gun, made firing but has not been able to controvert the factum of non-recovery of any crime empty from the spot or non-existence of matching report of the concerned quarter.

7. I have heard learned counsel for the parties, have gone through the impugned judgment and the record with their able assistance and have also given exhaustive consideration to the arguments of the respective parties.

8. As far as case of the present appellant is concerned, no specific role whatsoever was attributed to him either on the person of the deceased or the injured-P.W. He was merely shown to be present at the spot. Abdul Majeed co-accused was attributed firing at the spot; he was acquitted by the learned trial Court and Cr.P.S.L.A. No.52 of 2003 filed against his acquittal was dismissed by a learned Judge in Chamber vide detailed order dated 9-4-2004. Mere recovery of gun from him is of no avail to the prosecution as neither any crime empty was recovered from the spot to connect the same with the alleged commission of the offence nor the same was matched. Even he is not attributed any specific firing at the spot. Even otherwise, his case is on better footings that that of Abdul Majeed acquitted co-accused against whose acquittal P.S.L.A. has also been dismissed by this Court. I see no reason why the said benefit of acquittal should not be extended to the present appellant as well. 9.. After having adjudged the case from every angle, having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that the prosecution has failed to prove its case against the present appellant as well. Resultantly, this appeal is allowed, the impugned judgment is set aside and the appellant is acquitted from the case. B He is on bail and shall be discharged of his bail/surety bonds. N.H.Q./M-1316/L Appeal accepted.