1999 PLP 2535 (YLR)

2. The occurrence in this case took place on 23‑4‑1995 at 2‑00 p.m. in front of the house of Allah Ditta situated on Jaranwala. Lahore Road, within the jurisdiction of Police Station Lundianwala which is at a distance of 3 miles from the place of occurrence. The matter was reported to the police by Mubarak Ali, father of the deceased Amanat Ali and his statement Exh.P.E. was recorded by Muhammad Nawaz, S.I. (P.W.13) at Chakku Mor at 5‑00 p.m. while the formal F.I.R. Exh.P.E.1 was recorded on the same day at 5‑20 p.m. at the Police Station.

3. The brief facts, as narrated by the complainant in his complaint Exh.P.E., are that on 23‑4‑1995 at about 2‑00 p.m., he alongwith Bashir Ahmad his brother and Muhammad Amin son of Bashir Ahmad nephew were busy in conversation while in the Verandah of Bashir Ahmad, his brother and his son Amanat Ali came out of his house and proceeded on metalled road leading from Jaranwala to Lahore. When he reached in front of the house of Allah Ditta son of Raja caste Baluch, from behind, Saadi Ahmad accused alongwith Mulazam Hussain (since dead) armed with hatchet raising 'Lalkara' reached there. Mulazam Hussain raised 'Lalkara' that Amanat Ali be not left alive and lesson for their insult be taught to him. The complainant alongwith aforesaid persons also proceeded fastly towards that direction. Within their view, Mulazam Hussain inflicted hatchet blow which hit Amanat Ali on back side of his head who fell down. While he was lying, Saadi Ahmad accused also inflicted a hatchet blow which hit on deceased's head cutting the skull. Then Mulazam Hussain inflicted hatchet blows one after the other which hit Amanat Ali on the back side of neck. The accused, upon seeing the P.Ws. while waiving hatchet, went towards north. The complainant alongwith his companions took care of Amanat Ali who had succumbed to the injuries.

3. The motive as set up was that on the previous night Arif Ali son of Ranjha resident of the same village had a musical show in his house over the birth of his son where Amanat Ali deceased and Mulazam Hussain accused (since dead) had quarrelled with each other and the matter reached up to abuses, but the respectables patched up the same. Mulazam Hussain taking it his insult had developed grudge and on the day of occurrence, he alongwith Saadi Ahmad present accused committed the Qatl‑e‑Amd of Amanat Ali deceased.

4. The Investigating Officer after recording the statement of the complainant sent the same to the Police Station for registration and he himself came to the spot and prepared inquest report and also took into possession the blood‑stained earth vide memo. Exh.P.F. The appellant was arrested on 3‑5‑1995 alongwith his co‑accused. He got recovered hatchet P.1 which was taken into possession vide memo. Exh.P.G. Mulazam Hussain (since dead) accused also recovered hatchet P.2 which was taken into possession vide memo. Exh.P.H. The Report of Chemical Examiner and that of Serologist regarding blood‑stained earth are Exh.P.K. and Exh.P.L.

5. The prosecution in order to prove its case produced 9 witnesses in all. Amongst them three eye‑witnesses were cited. Two of them, namely, Mubarak Ali (P.W.7) father of the deceased and Bashir Ahmad (P.W.8) real brother of the complainant were examined by the prosecution but third eye?witness, namely, Muhammad Amin son of Bashir Ahmad was given up as being unnecessary.

6. Mr. Khalid Naveed Dar, Advocate has been appointed as counsel for the appellant to defend him at State expenses, by this Court.

7. Learned counsel for the appellant has read before me the prosecution evidence and the statement of the appellant in which he had claimed innocence and false implication due to suspicion. Learned counsel for the appellant submits that there is delay of three hours in lodging the F.I.R., although, the Police Station was at a distance of 3 miles from the place of occurrence. Elaborating his arguments he submits that in fact the eye?witnesses were not present at the spot but were summoned from their houses and later on after consultation and due deliberation in connivance with the police the appellant was also implicated in this case alongwith Mulazam Hussain. He further submits that both the eye‑witnesses are close relatives of the deceased, one is father of the deceased and the other is uncle of the deceased. No independent person has been produced by the prosecution, although, the occurrence had taken place in thickly populated place. He also submits that no motive whatsoever is attributed to the appellant in the F.I.R. and the same has also been disbelieved by the trial Court. Adds that as far as recovery of hatchet is concerned, it is planted one because it was not stained with blood and same has also been disbelieved by the trial Court. He submits that only one injury, according to the prosecution, was attributed to the appellant caused on the head of the deceased. According to the P. Ws. the same was caused by the appellant when the deceased had already fallen on the ground, but according to the Doctor the possibility of the same being caused while deceased was fallen on the ground, is not possible. He also submits that there is conflict between ocular account and medical evidence. He submits that no reason whatsoever has been given by the prosecution that why the appellant had joined hands with his co‑accused Mulazim Hussain (since dead). Lastly, he submits that deceased alongwith the appellant and his co‑accused Mulazim Hussain (since dead) were involved in a theft case and they had appeared before the Court on the day of occurrence. Learned counsel submits that the appellant has been falsely implicated in this case due to suspicion.

8. On the other hand learned State Counsel submits that the appellant is named in the F.I.R., specific role of causing injury on the head of the deceased is attributed to him, that ocular account is corroborated by the medical evidence and the appellant is not entitled to acquittal.

9. I have heard the learned counsel for the parties and have also gone through the evidence recorded by the trial Court. Fist of all I will take up motive part of the prosecution story. No motive whatsoever was attributed to the appellant in the F.I.R. He had no quarrel with the deceased, there was no reason for the appellant to have join hands with co‑accused Mulazirn Hussain (since dead). Prosecution witnesses have tried to improve the motive before the trial Court but this improvement was duly confronted by the learned defence counsel. Motive has already been disbelieved by the learned trial Court. Even both the eye‑witnesses have admitted that they were not present at the time of quarrel between Mulazim Hussain and the deceased. I also disbelieve the motive of this case with regard to the appellant. Now I take the case of recovery of hatchet which was allegedly recovered from the appellant, the same was not stained with blood and the same was not sent to the Chemical Examiner for its analysis, so no corroboration can be sought either from motive or from recovery of weapon allegedly recovered from the appellant. Even the trial Court has also disbelieved the recovery. I also disbelieve the same. Now I take up the question of ocular account, there are two eye‑witnesses, namely, Mubarak Ali and Bashir Ahmad. Mubarak Ali is father of the deceased while Bashir Ahmad is real uncle of the deceased. Both are not resident of nearby place of occurrence. Their presence at the spot is doubtful. There is delay of three hours in lodging the F.I.R., and no plausible explanation for delay in lodging the F.I.R. was given by the prosecution. No independent witness has been produced by the prosecution in order to prove its case from the nearby place, although, the place of occurrence is thickly populated one. I see no reason on the part of the appellant to join hands with his co‑accused Mulazim Hussain (since dead). The appellant alongwith deceased and Mulazim Hussain co‑accused (since dead) was involved in a theft case and they have been appearing in the Court of Ilaqa Magistrate. Even on the day of occurrence, they had attended the said Court. The statements of eye‑witnesses are also not truthful regarding injuries on the person of the deceased because in the Court they have stated that the deceased also received injuries on his back but there was none. The injury No.2 is allegedly attributed to the appellant which is on the right side of his head. According to the Doctor, who had conducted the post‑mortem examination, had state before the trial Court while replying the question of learned defence counsel that the possibility was there that the same cannot be caused when the deceased was lying on the ground. In my view prosecution has not been able to prove the case against the appellant beyond any shadow of doubt. While extending the benefit of doubt to the appellant. I accept the appeal of the appellant and acquit him from the charge. He is behind the bars. he shall be released forthwith if not required in any other case. Q.M.H./M.A.K./S‑375/L???????? Appeal allowed.