2004 P Cr (PLP)

Date of hearing: 25th June, 2003. This judgment will dispose of Criminal Appeal No.595 of 2002 directed against the judgment dated 18-3-2002 passed by learned Additional Sessions Judge, Mianwali, whereby he convicted the appellant under section 302(b); P.P.C. and sentenced him to undergo life imprisonment with benefit of section 382-B, Cr.P.C.

2. The brief facts of the case as narrated by the complainant in the F.I.R. are that complainant party was going to Chikrala Police Station in connection with some inquiry of case F.I.R. No.35 of 2001 and when they arrived at a place on the Western side of Ban Bhudhey Wali Graveyard, the accused Hakim Khan, Tariq Mehmood (absconders) and Muhammad Aslam all armed with rifles emerged out of nearby Kundar bushes. Hakim Khan raised Lalkara addressing to Abdul Rauf that they would teach him a lesson for getting. criminal cases registered against them and he immediately fired a shot with his rifle hitting on the upper border of right buttock of Abdul Rauf. Tariq Mehmood also fired a shot with his rifle hitting on the left thumb of Abdul Rauf who fell on the ground. All the accused fled away from the spot. No other injury was received by `the injured Abdul Rauf. On hearing the firing reports Dost Muhammad, S.-I. proceeded to the spot where he found Abdul Rauf in injured condition lying on the ground while Abdul Basit, Muhammad Afzal and Muhammad P.Ws. were present there. The said S.-I. recorded the statement of the injured Abdul Rauf. He also prepared the injury statement vide memo. Exh.P.C. On 17-7-2001 Abdul Rauf injured made a supplementary statement before Dost Muhammad, S.-I. stating that Zahid Mehmood also fired at him with his gun .12 bore. Muhammad Aslam and Zahid Mehmood accused were arrested by Dost Muhammad who after investigation found them guilty while Hakim Khan and Tariq Mehmood accused were declared P.O. After the death of injured Abdul Rauf on 23-7-2001 section 324, P.P.C. was substituted with section 302, P.P.C. The Investigating Officer prepared injury statement Exh.P.F. inquest report Exh.P.G. Ultimately incomplete challan was submitted for trial of Muhammad Aslam and Zahid Mehmood accused.

3. The prosecution in order to prove its case has produced as many as 10 witnesses including doctor, Investigating Officer and other relevant and formal witnesses. After tendering in evidence report of Chemical Examiner, Exh. P.R. and that of Serologist Exh.P.S. learned D.D.A. closed the prosecution evidence. Thereafter statement of the accused were recorded under section 342, Cr.P.C. in which they pleaded their innocence. After taking into consideration all the evidence and hearing the learned counsel for the parties, the learned trial Court convicted and sentenced the appellant as mentioned above. Hence this appeal.

4. Learned counsel for the appellant in support of this appeal submits that in the F.I.R. there were only three accused namely Hakim Khan, Tariq Mehmood and Muhammad Aslam but later on in the supplementary statement made by the complainant, Zahid Mehmood was also involved in this case as an accused alongwith the present appellant but was acquitted by the Court. Present appellant was convicted as mentioned above. Learned counsel submits that earlier Hakim and Tariq Mehmood were declared P.O. Now Tariq Mehmood has been arrested and he has been tried by the learned trial Court and was awarded life imprisonment. Hakim Khan is still absconder.

5. Learned counsel submits that there was long-standing enmity between the parties, that the appellant was not attributed any injury, even no recovery was; affected from the appellant. No independent person has been produced by the prosecution because Abdul Basit is son of the deceased while Muhammad Akram P.W. is close relative of the deceased. He submits that no case is made out against the appellant and he is entitled to acquittal.

6. On the other hand learned counsel for the State submits that the only argument which he can advance in favour of the prosecution is that presence of the appellant has been proved and he shared common intention with the co-accused.

7. I have heard the learned counsel for the parties. There are two injuries on the person of the deceased according to the statement or P.W.2 Dr. Sher Gul who conducted the medical examination on the person of the deceased when he was alive. There were two entry wounds one on the upper border of buttock while the other is grazing wound on the left thumb. According to the statement of Dr. Maqbool Mubarak who conducted the post-mortem examination on the dead body of the deceased on 23-7-2001, has also stated that there were two injuries on the person of the deceased. As far as present appellant is concerned, only ineffective firing was attributed to him. No injury is attributed to him, no recovery was effected from him. While recording his statement under section

342. Cr.P.C. specially in reply to Question No.9, the appellant has deposed as under:-- In fact I and Zahid Mehmood are totally innocent in this case and have got nothing to do With the alleged occurrence. I and Zahid Mehmood and others accused Hakim Khan etc. have been nominated by Abdul Rauf just for the previous enmity between us. Abdul Rauf was shot at by some unknown assailants in an hilly area and even there is no path present at the place of occurrence connecting the police Station. Abdul Rauf was shot at when he was alone. He was shifted to the police station by the police after about 2/3 hours. The P. Ws. were summoned from their respective homes and were formed as witnesses by the police. The statements were recorded by the police which are fake and frivolous long after the occurrence in the police station as Abdul Rauf was not in a position to make any statement. All the proceedings and the evidence of the prosecution have been prepared by Dost Muhammad S.-I. in collaboration with the complainant party in order to rope in us. Actually Abdul Rauf was shot at by some unknown and untraceable assailants not known to the prosecution as he was a litigant of the highest order and the people of Chikrala were fed up from him."

8. Learned State Counsel was also not in a position to rebut the submissions made by the learned counsel for the appellant so after having heard the learned counsel for the parties and going through the evidence on the record, as no injury was attributed to the appellant, while granting benefit of doubt to the appellant, accept this appeal and set aside the conviction and sentence awarded to him by the learned trial Court. The appellant is on bail, he is discharged from his bail bonds. H.B.T./M-46/L Appeal accepted.