2002 PLP 682 (YLR)

2. The brief facts of the case as narrated by the Mst. Ameena Rafique complainant are that on 24‑10‑1998 at about 7 a.m. she alongwith her brother Shafiqur Rehman and friends of her brother namely Khalid Hussain, Muhammad Latif and Qamar Shahzad went to the house of Habib Ullah and Naseeb Ullah at village Kolo Tarar and they demanded for return of their money alongwith documents. In the meanwhile, Shafique Rehman brother of complainant, got altercation with Habib Ullah, Naseeb Ullah and in retaliation they both took out carbines from the loin of their Shalwars. Naseeb Ullah fired shot with carbine hitting Shafiqur Rehman at his head while Habib Ullah fired shot with carbine hitting at his right knee. Shafiqur Rehman fell down and he was taken to Civil Hospital, Hafizabad in injured condition, that the doctors after providing first aid referred him to General Hospital, Lahore and in the way to Lahore the injured died. The motive behind the present occurrence was that about 10/11 months prior to the occurrence Rs.2,25,000 alongwith passports were given to the appellant and his co‑accused (P.O.) for sending abroad Shafiqur Rehman and his friends Khalid Hussain, Muhammad Latif and Qamar Shahzad. They demanded their amount with documents to the appellant and his co accused to be returned back on, which an altercation took place which resulted into the present case.

3. The local police after getting information completed all the necessary formalities and then Malik Muhammad Afzal Inspector/S.H.O. alongwith his subordinates proceeded to the hospital where he prepared the injury statement Exh.P.F and inquest report Exh.P.G. Thereafter, he visited the spot and he collected the blood‑stained earth vide memo. Exh. P.M. Last worn‑clothes were also received by him vide memo. Exh.P.B. The arrest of the appellant was made by Ejaz Ahmad, S.I/S.H.O. on 20‑12‑1998 and on the same .day he got recovered .12 bore gun P.3 from him vide memo. Exh.P.L. The co‑accused of the appellant namely Naseeb Ullah was declared proclaimed offender. Ultimately the present appellant was challaned and was sent to judicial lock up to face the trial.

4. Prosecution in order to prove its case has produced as many as 12 witnesses including Doctor, Investigating Officers, eye‑witnesses and other relevant persons. After tendering in evidence report of Chemical Examiner Exh.P.0 and report of Forensic Science Laboratory, Exh.P.Q learned D.A. closed the prosecution evidence. Thereafter, statement of the appellant/accused was recorded under section 342, Cr.P.C. in which he pleaded not guilty and claimed to be tried.

5. Learned counsel for the appellant in support of this appeal submits that there is conflict between the ocular account Ad the medical evidence, that there material contradictions in the statements of the witnesses, that as far as recovery of weapon from the appellant is concerned' it has got no evidentiary value because crime empty was recovered from the s6t, that statement of Muhammad Latif P.W.6 shows that Mst. Ameena Rafique complainant of the case and real sister of the deceased was not present at the spot and she was summoned after giving information to her when the deceased was being taken in the hospital in an injured condition. Learned counsel for the appellant submits that no case is made out against the appellant. Adds that most important witnesses of the prosecution namely Khalid Hussain and Qamar Shahzad who ho taken the deceased to the hospital in an injured condition have not appeared before the trial Court and they were given up by the D.A.

6. On the other hand learned State Counsel submits and concedes' that in fact in the F.I.R. only two .injuries were attributed to the accused, one to, the appellant and one to his co‑accused Naseeb Ullah, but according to the post‑mortem examination which was conducted by the Dr. Nusrat Abbas, DHQ Hospital, Hafizabad, when the deceased was brought to him in injured condition there were five injuries on his person with fire‑arms, three on his head and two on his right knee and so there is conflict between the ocular account and the medical evidence. She also submits that as far as recovery is concerned, it does not advance the prosecution case. She is not in a position to support the prosecution case.

7. I have heard the learned counsel for the parties. In the instant case the occurrence had taken place in the house of the accused/appellant at 7 a.m. matter was reported to the police at 3 p.m. at Chowk Vanikey Tarar while the formal F.I.R. was recorded at 4 p.m. in which four eye witnesses were mentioned including Mst. Ameena Rafique, the real sister of Shafique Rehman deceased, two eye witnesses namely Khalid Hussain and Qamar Shahzad have been given up by the prosecution. Mst. Ameena Rafique while appearing as P.W.7 has stated during cross-examination that the F.I.R. was lodged in, the hospital while the complaint was got registered at Chowk Vanikey Tarar at 2 p.m. and she did not accompany the deceased to the hospital, while Muhammad Latif P.W.6 has admitted in his cross -examination that Mst. Ameena Rafique was called from her house after the death of the deceased and she reached in the hospital. The basic question in this case is that there are five fire‑arm injuries on the person of the deceased while according to the prosecution case two injuries were attributed to two different accused i.e. one to the present appellant and the other to his co‑accused Naseeb Ullah (P.O.). There is clear conflict between the ocular account and the medical evidence. Mst. Ameena Rafique has also admitted in her cross- examination that she was present outside the house and she heard the fire shots and she did not see the occurrence with her own eyes:

8. As far as recovery of gun is concerned, as no crime empty was taken from the spot so that same is of no consequence. In the F.I.R. the appellant was stated to be armed with carbine but gun was got recovered from him. This also goes against the prosecution.

9. After having heard the submissions made by learned counsel for the parties and perusing the record with the assistance of the learned counsel for the parties, I am of the considered view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt. In this view of the matter, this appeal is accepted and the conviction and sentence awarded to the appellant is set aside. He shall be released forthwith if he is not required in any other criminal case.

10. The observation made in this judgment would not prejudice 'the case of either party as far as absconding accused is concerned. H.B.T./H‑101/L Appeal accepted.