MUHAMMAD MUSHTAQ Versus STATE

This judgment will dispose of Criminal Appeal No. 271‑J of 2000 filed by Muhammad Mushtaq appellant from Jail against the judgment, dated 29‑9‑2000 passed by the learned Additional Sessions Judge, Kasur, whereby he convicted the appellant under section 302(b), P.P.C. and sentenced him to undergo life imprisonment with the direction to pay Rs. 50,000 as compensation under section 544‑A, Cr.P.C. He was also convicted under section 459, P.P.C. to undergo 10 years' R.I. Both the sentences were ordered to run concurrently with the benefit of section 382‑B, Cr.P.C. The co -accused were acquitted either on the ground of compromise or on merits.

2. The facts in brief as narrated by Zahoor Khan complainant in the F.I.R. are that he alongwith his son Muhammad Yaqub and one guest Kalay Khan was sleeping in his house. At about 3 a.m. after mid‑night two unknown persons armed with fire‑arms scaled over the wall of the house and trespassed into the house. They directly fired at his son Muhammad Yaqub and caused injuries on the right shoulder and right arm with two different fires. Injured was moved to the hospital. Initially case under sections 324/ 452/34, P.P.C. was registered but later on after the death of the deceased case was registered under sections 302/324/459/34, P.P.C.

3. The occurrence took place on 17‑6‑1994 at 3 p.m. after mid‑night in village Qilla Natha Singh situated in the area of Police Station Allahabad, District Kasur towards east from the place of occurrence at a distance of 6 miles. Matter was reported to the police the same day at 10‑15 a.m.

4. The police after completing all the necessary formalities proceeded to spot from where Muhammad Ashraf, S. I. took into possession blood‑stained earth vide memo. Exh. P.F and blood‑stained clothes of the deceased i.e. Shirt P.1, Shalwar, P.2, Wasket P.3, Safa P.4 woollen Chaddar P.5 vide memo. Exh. P.G. He also got recorded supplementary statement of the complainant in which the complainant nominated Muhammad Siddique, Muhammad Yousaf, Shakeel Ahmad and Mushtaq (appellant). He also prepared inquest report, Exh.P.J. After completing the investigation the Police submitted the challan before the trial Court.

5. The prosecution in order to prove its case has produced as many as 9 witnesses including I.Os., eye‑witnesses, Doctor and other relevant persons. Thereafter statement of the accused/appellant was recorded under section 342, Cr.P.C. in which he pleaded not guilty.

6. Learned counsel for the appellant in support of this appeal submits that nobody was named in the F.I.R. and no identification parade was held. Adds that two co‑accused were acquitted on the basis of compromise and one was acquitted on merits. The main contention of the learned counsel for the appellant is that there is no injury on the shoulder of the deceased but the injuries are either on the middle right forearm or on the back of the chest. He submits that ocular account is contradicted by the medical evidence that no incriminating weapon was recovered from the appellant.

7. On the other hand learned counsel for the State submits that the appellant is named in the F.I.R., specific role is attributed to him, that the complainant has no enmity with, the appellant so there was no question of false implication. He submits that ocular account is fully corroborated by the medical evidence and supports the judgment of the learned trial Court.

8. I have heard the learned counsel for the parties. In the instant case, nobody was named in the F.I.R. In the F.I.R. only two persons were named as unknown but four accused were taken into custody. Two unknown persons were named in the F.I.R. initially. As the occurrence had taken place on 17‑9‑1994 at 3 a.m. after midnight, they were not recognized. Police had challaned four persons i.e. Muhammad Siddique, Shakeel Ahmad, Muhammad Yousaf and the present appellant. Muhammad Yousaf was acquitted on merits by the learned trial Court while Muhammad Siddique and Shakeel Ahmad were acquitted. on the ground of compromise with the complainant. Nobody was named in the F.I.R. and even after the arrest of the appellant no identification parade was held. No recovery was effected from the appellant. According to the statement of the complainant who had improved his statement before the learned trial Court, appellant fired on the right shoulder of the deceased. I have gone through the post‑mortem examination, statement of Doctor Muhammad Arif Mehmood, M.O. examined as P.W.1 and specifically the diagram of injuries. There is no injury whatsoever on the shoulder of the deceased. Ocular account is fully contradicted by the medical evidence. There is no corroboration of ocular account in this case. This is a case under section 302, P.P.C. No person can be convicted under section 302, P.P.C. unless the evidence is such a nature that it should lead the Court to the conclusion that the prosecution has proved its case beyond any shadow of doubt. After going through the evidence, F.I.R., submissions made by the learned counsel for .the parties, specifically post‑mortem report and diagram of the injuries of the deceased, I am of the considered opinion that the appellant has been able to create dents in the prosecution case. In this view of the matter, this appeal is accepted, conviction and sentence is set aside. The appellant is ordered to be released from jail if he is not involved in any other case.

N.H.Q./M‑566/L Appeal accepted.