2008 P Cr (PLP)

MIAN MUHAMMAD NAJAM-UZ-ZAMAN, J.

Appellant Abdul Hameed along with 2 other accused namely Muhammad Yousaf and Muhammad Razzaq was tried for the murder of one Amjad in case F.I.R. No.265 of 1998, under section 302/34, P.P.C. registered at Police Station Daska, by the Additional Sessions Judge, Daska who vide judgment, dated 25-7-2002 keeping in view the compromise arrived at between the parties while acquitting them from the charge, directed the appellant and his co-accused Muhammad Razzaq to pay Rs.81,215 each as Diyat to Ali Raza minor son of the deceased and that both of them shall remain in jail till the realization of the said amount. However, trial Court acquitted Muhammad Yousaf accused from the charge.

2. Calling in question the impugned judgment Abdul Hameed appellant filed the instant appeal.

3. In brief the facts of the prosecution case as penned in the F.I.R. lodged upon the statement of Feroze Din P.W.10, are that two months prior to the occurrence a goat of one Abdul Ghani was stolen and son of the complainant namely Amjad told Abdul Ghani that his goat was stolen by Razzaq accused who statedly bore a grudge on the conduct of Amjad and had asked many a times that he .would teach him a lesson for conveying the secret information to Abdul Ghani. On 13-10-1998 at about 7-30 a.m. Amjad Ali (son of complainant) was present near his residential house in the street when suddenly Muhammad Razzaq accused being armed with .12 bore gun, Muhammad Yousaf accused and Abdul Hameed appellant empty-handed came there. Both Muhammad Yousaf and Abdul Hameed while raising Lalkara, instigated their co-accused (Muhammad Razzaq) to teach Amjad Ali a lesson for giving secret information of stealing goat to Abdul Ghani. On this Muhammad Razzaq accused made a straight fire which hit on the left side of abdomen of Amjad Ali who fell down and died at the spot. Statedly complainant along with Zafar Iqbal and Liaquat Ali had witnessed the occurrence and when they came forward to rescue the victim all the accused fled away from the spot.

4. File of this case reveals that during the investigation a supplementary statement of complainant was also recorded wherein complainant had also involved one Zulfiqar (since dead) as one of the assailants along with the said accused person. The role ascribed to Zulfiqar accused was of making direct fire with his rifle.

5. On receiving the information about the occurrence Salah-ud-Din Inspector P.W.14 came at the spot and recorded statement Exh.P.B. of the complainant on the basis of which formal F.I.R. was registered at the police station. The said Police Officer after preparing inquest report Exh. P. E., injury statement Exh. P. F. sent the dead body to mortuary for post-mortem examination. He also collected blood-stained earth as well as two empties i.e. .12 bore gun and .7 mm rifle from the place of occurrence and secured the same vide recovery memo. Exhs. P. H. and P.J. respectively. During the investigation Police Officer got prepared scaled site plan Exhs. P. C. and P. C./1 through draftsman. This case was also investigated by Qamar Islam S.-I. P.W.15. During his investigation Muhammad Yousaf accused and Abdul Hameed appellant were arrested but nothing was recovered from them. On 24-12-1998 Muhammad Razzaq accused led to the recovery of .12 bore gun along with 2 live cartridges. On the same day Zulfiqar (since dead) also led to the recovery of 7 mm rifle along with four bullets which were taken into possession vide memo. Exh.P.K. The Investigating Agency finally after complying with legal formalities submitted challan before the trial Court where prosecution produced fifteen witnesses to prove the charge against the appellant and his co-accused. With regard to ocular account Feroze Din P.W.10 and Liaquat Ali P.W.11 deposed before the trial Court. Post-mortem examination was conducted by Dr. Muhammad Asif Mughal P. W.3 who observed the following injury on the person of Ajmal deceased:-- "There was sticked wound 5 c.m. obliquely on the left lower abdomen 7 c.m. later and below the umbilicus slight blackening were present round the wound." Rest of the witnesses are formal in nature.

7. File of this case reveals that during the trial upon an application of complainant seeking permission to effect compromise with Abdul Hameed appellant and Muhammad Razzaq accused, statements of legal heirs of Amjad deceased were also recorded.

8. Learned counsel for the appellant while challenging the legality of impugned judgment argued that the appellant never opted for a compromise with the complainant party. He during the trial even after the statements of legal heirs of the deceased about the compromise, had cross-examined the prosecution witnesses who had deposed against him. It was argued that the case of the appellant could not be distinguished from the case of his co-accused Muhammad Yousaf who had been acquitted from the charge on merits and in the circumstances, trial Court should have acquitted the appellant on merits as well. Argued that the acquittal of appellant on the basis of compromise only and burdening the appellant with the payment of half of Diyat to the minor child of the deceased was an illegality in the eye of law. Conversely, learned counsel for the State vehemently opposed the arguments raised by the learned counsel for the appellant.

9. Heard. File perused.

10. A careful analysis of the record reveals that appellant never moved an application for a permission to effect compromise with the complainant party. The interim order, dated 18-4-2002 passed by the trial Court reveals that complainant of this case had moved application for a permission to compromise with the accused party and thereafter trial Court after verifying the legal heirs of the deceased recorded statements of Feroze Din (father), Mst. Sardaran (mother) on 18-4-2002 and Mst. Samina (widow) on 14-5-2002. Trial Court did not decide the said application after recording the statements of legal heirs of the deceased but proceeded with the trial and allowed counsel for the accused to cross-examine the witnesses. However, counsel for Muhammad Razzaq accused in view of compromise between the parties did not cross-examine the witnesses. Facts available on the file are sufficient to indicate that though the legal heirs of Amjad Ali deceased had made statement with regard to their compromise with the appellant but appellant contested the case and did cross-examine the witnesses to challenge their credibility. In this view of the matter, stand of learned counsel that appellant never opted for a compromise with the complainant party finds support from the record. The role attributed to the appellant is that at the relevant time he was empty-handed and he along with his co-accused Muhammad Yousaf who was also empty-handed, raised Lalkara instigating his co-accused to fire at Amjad deceased. During the investigation nothing was recovered from the appellant and he was found innocent. Trial Court after appraisal of evidence had acquitted Muhammad Yousaf from the charge on merits Case of appellant is not distinguishable from that of his said co-accused and in the circumstances he is also entitled to get acquittal on merits. In this view of the matter, the impugned judgment to the extent of acquittal of appellant on the basis of compromise is set aside. Abdul Hameed appellant is not liable to pay any Diyat amount as fixed by trial Court in para.12 of the judgment. He stands acquitted from the charge on merits. Appellant is on bail granted by this Court vide order, dated 2-10-2002, his bail bonds stand cancelled and surety discharged from the liability. M.H./A-127-L Appeal allowe