2007 PLP 2525 (YLR)

HASNAT AHMAD KHAN, J.--Through this single judgment I indent to dispose of Criminal Appeal No.70 of 2006 (Muhammad Hussain v. The State) and Criminal Appeal No.140 of 2006 (Sadiq Hussain v. The State) as both are stemming from one and the same judgment i.e. dated 13-2-2006 passed by learned Additional Sessions Judge Muzaffargarh whereby Muhammad Hussain and Sadiq Hussain appellants were found guilty under section 302(b), P.P.C. and were sentenced to suffer imprisonment for life. Both of them were further directed to pay Rs.50,000 each to the legal heirs of Ashiq Hussain deceased as compensation under section 544-A, Cr.P.C. or in default thereof to undergo 6 months' S.I. However, they were given benefit of the provisions of section 382-B, Cr.P.C.

2. Shorn of unnecessary details the prosecution story as unfolded in the FIR. Bearing No.40 of 2004 registered under section 302/34, P.P.C. at Police Station Shehar Sultan District Muzaffargarh at the instance of Nazar Hussain (P.W.1) was that he lived in Mauza Makol with his uncle Ali Muhammad and cousin (Ali Muhammad's son) Ashiq Hussain (deceased) along with other family members. 6/7 days prior to the occurrence said Ali Muhammad had gone to Khan Pur Katora whereas other family members had gone to Damarwala Janoobi 2/3 days earlier to attend some marriage function while his cousin ,some Hussain deceased was alone at his house. The complainant stated in the F.I.R. that on the .fateful day i.e. 10-3-2004 at 6-30 a.m. he along with Fazal Hussain and Muhammad Shafi P.Ws. was present in the fields of Ali Muhammad at the distance of one Acre from his house when they heard shrieks coming from the house of Ali Muhammad. Thereupon all of them proceeded towards the said house and saw that Noor Muhammad (acquitted accused) armed with Chhurra, Jamil Ahmad (acquitted accused) armed with hatchet along with an unknown person were causing injuries to Ashiq Hussain (deceased). According to the complainant he and the other eye-witnesses tried to intervene but all the above mentioned accused managed their escape from the spot along with their weapons. Motivating factor statedly behind the occurrence given in the F.I.R. was that Ali Muhammad (P.W.6) had divorced his first wife Mst. Maryam Bibi and had contracted second marriage with Mst. Saleem Mai. Noor Muhammad (acquitted accused) had developed illicit relations with said Mst. Saleem Mai to which Ashiq Hussain deceased had objected and forbade Noor Muhammad not to visit their house which resulted exchange of hot words between them prior to the occurrence which allegedly provided cause of murder to Noor Muhammad.

3. During the investigation, Mst. Maryam Mai mother of the deceased came forward with a different version and implicated Nazar Hussain (Complainant of the F.I.R.), Fazal Hussain, Muzaffar, Safdar alias Sardar, and Azhar Hussain as murderers of his son Ashiq Hussain. At this stage prosecution story took another turn inasmuch as Ali Muhammad father of the deceased put forward his own version implicating both the appellants as well as Ghulam Shabbir, Niaz Hussain and Sajid Hussain as the real culprits of murder of his son Ashiq Hussain. Shabbir Hussain and Niaz Hussain became proclaimed offenders while Sajid Hussain being a juvenile was tried separately. All the accused nominated in all the three versions were challaned to the Court.

4. During the trial the prosecution produced as many as 16 witnesses. Nazar Hussain, the of iginal complainant of the F.I.R. appeared as P.W. 1 and reiterated his version as given in the F.I.R. Fazal Hussain another witness nominated in the F.I.R. appeared as P'.W.2 and tried to support Nazar Hussain P.W. Apart from narrating the ocular version he deposed about the recovery of blood-stained earth and Churri (P.1) at the instance of Sadiq Hussain appellant. Said Chhuri was taken into possession through memo. Exh.PB. Haji Muhammad Hashim who had identified the dead body appeared as P.W.3. Mst. Maryam Mai, mother of the deceased who had given her own version regarding the occurrence appeared as P.W.4 and supported her version. She was supported by Abdul Khaliq P.W.5 who is brother of the deceased. Ali Muhammad who had got recorded third version appeared as P.W.6 and on the basis of hearsay evidence, implicated the appellants and Ghulam Shabbir, Niaz Hussain proclaimed offenders and Sajid Hussain as murderers of his son. His version was supported by Abdul Rashid (P.W.7) whose evidence is also based upon suspicion. Dr. Mushtaq Rasool who had conducted the post-mortem examination on the dead body of Ashiq Hussain and gave the detail of injuries received by him appeared as P.W.B. According to him the deceased had received as many as 8 injuries. Considering the facts of the case detail of injuries is not required to be re-produced. Saleem Abbas Patwari who had prepared site-plan (Exh.PJ/1-2) appeared as P. W .9. Sardar Ali Si Allah Diwaya Ashiq Hussain D.S.P., Liaqat Ali D.S.P. and Muhammad Iqbal Qaisarani retired D.S.P. appeared as P.Ws. 10, 11, 13, 14 and 16 respectively and provided the details of investigation having been conducted on their part. Rest of the witnesses are formal in nature.

5. After closure of the prosecution evidence statements of all the accused were recorded under section 342, Cr.P.C. In response to Question No.6 as to why the case against him, Muhammad Hussain appellant replied as under:-- "I am innocent. It was a blind murder case. Actually, the case was registered against Noor Muhammad and Janice! Ahmad accused. Although there was ocular account against the said Noor Muhammad and Jameel Ahmad accused but the police declared them innocent. Thereafter another set of the accused was named and they were also declared innocent by the police as there was no ocular account against them. Since it was a blind murder. The police in order to get rid of the case falsely challaned us in this case. The P.Ws. are interested witnesses and inimical towards me." Sadiq Hussain appellant in response to Question No.7 made the similar reply.

6. After conclusion of the trial, all the accused involved in the first two versions were acquitted. However, born the appellants were convicted and sentenced as mentioned above.

7. In support of this appeal, learned counsel for the appellants has contended that it was a case of a blind murder; that the appellants were not nominated in the F.I.R.; that it was a case of three versions; first one was got recorded by Nazar Hussain (P.W.1); second version was got recorded by Mst. Maryam Mai (P.W.4) the mother of the deceased while the third one was provided by Ali Muh'almnad (P.W.6) father of the deceased; that there was no direct evidence against the appellants and therefore they are entitled to be acquitted. Learned counsel for the State has half-heartedly opposed the appeal. ?

8. After hearing the arguments of learned counsel for both the parties, it has been straightaway noticed that it is a case of three versions. The appellants were not nominated in the F.I.R. which was got registered by Nazar Hussain (P.W.1). The second version was got registered by Mst. Maryam Mai, (P.W.4) mother of the deceased. She also failed to implicate the appellants. The appellants were involved on the basis of a statement made by Ali Muhammad (P.W.6) father of the deceased during the investigation who just on the basis of suspicion had involved the appellants in this case. A perusal of the F.I.R. reveals that at the time of lodging the F.I.R. Ali Muhammad (P.W.6) was accompanying Nazar Muhammad complainant of the F.I.R. but at that time he did not nominate the appellants. Rather A in his presence first set of accused was involved for the murder of his son. During the trial no direct evidence had come on the record against the appellants. Only ocular evidence which had been produced against the appellants is in the shape of statements of Ali Muhammad (P.W.6) and Abdul Rashid (P.W.7). Both of them had candidly conceded that they were not eye-witnesses. Ali Muhammad (P.W.6) claimed that public at large had informed him that his son was murdered by the appellants, along with Ghulam Shabbir, Niaz Hussain, proclaimed offenders and Sajid Hussain (separately tried as juvenile). Abdul Rashid (P.W.7) made a similar statement and stated that according to his suspicion the above mentioned accused were murderers of Ashiq Hussain deceased. I am failed to understand how the appellants could be convicted on the basis of such evidence. It seems that the learned trial Court had convicted both the appellants just on the basis of opinion of the police according to which the appellants had been found guilty. I am pained to note such like conclusion arrived at by the trial Court. Opinion of the police being not admissible in evidence, nobody can be convicted just on the basis of the opinion of the police in absence of any other evidence whatsoever. Apart from that, the only piece of evidence which remained in the field was in the shape of recovery of "Chhuri" at the instance of t Sadiq Hussain appellant. In the absence of any direct evidence the appellants could not be convicted on the basis of recovery of a "Chhuri" especially when the same was not blood-stained and had been recovered after more than nine months of the occurrence. Besides that the witnesses of recovery had candidly admitted that the said Chhuri was of common nature.

9. So looking from whatever angle, I have come to the conclusion that it was a case of no evidence and the prosecution had miserably failed to prove the case against the appellants. Consequently, Criminal I Appeal No.70 of 2006 and 140 of 2006 are accepted and the appellants are acquitted of the charge. They are set at liberty and be released forthwith if not required to be detained in any other case. H.B.T./M-331/L????????????????????????????????????????????????????????????????????????????????? Appeal accepted.