2008 PLP 836 (MLD)

BASHIR A MUJAHID, J.

Muhammad Yaqoob and Safdar Ali, appellants after having been tried under section 302(b)/34, P.P.C. by the learned Additional Sessions Judge, Sahiwal in case F.I.R. No.167 of 1990, dated 7-9-1990 registered at Police Station City, Arifwala for murder of Muhammad Riaz, were convicted as such and sentenced to imprisonment for life each. Benefit of section 382-B, Cr.P.C. was, however, extended in their favour.

2. The brief facts of the prosecution case are that Muhammad Arshad, P.W. got his statement recorded at Tehsil Headquarters Hospital, Sahiwal Exh.PE by Faqir Muhammad S.-I., P.W.9 alleging therein that he was student of 2nd year. Muhammad Riaz, deceased his maternal cousin had come to the house of the complainant for the last 5/6 days. On the day of occurrence at 10-30 a.m. Muhammad Riaz deceased was standing in the ground of Primary School, Mohallah Iqbal Nagar, when Muhammad Hassan accused armed with dagger, Muhammad Safdar, appellant armed with chhuri and Muhammad Yaqoob, appellant armed with dagger residents of Mohallah Iqbal Nagar arrived there and raised lalkara that they had come to teach a lesson for their insult. Muhammad Yaqoob and Safdar Ali caught hold of Muhammad Riaz and Muhammad Hassan gave a dagger blow hitting on his chest. The occurrence apart from the complainant was also witnessed by Muhammad Ashraf, P.W.8 and Muhammad Anwar. The accused fled away from the spot. Muhammad Riaz was taken to the Civil Hospital, Arifwala where he succumbed to the injury. The motive for the occurrence was that on 6-5-1990 at 1-30 p.m. Safdar Ali had a quarrel with the complainant and Muhammad Riaz but the people of the locality had separated them. Safdar Ali extended threats that he would take the revenge of his insult.

3. Faqir Muhammad S. -I., P. W. 9 after recording the statement Exh.PA of Muhammad Arshad, P.W.7 sent the same to the police station for registration of formal F.I.R. Exh.PA/1 which was recorded by Muhammad Iqbal, Moharrir/P.W.2. He himself arrived at the hospital and prepared the injury statement of deceased Muhammad Riaz through memo. Exh.PG and inquest report Exh.PH. Thereafter, he arrived at the spot and collected the blood-stained earth through memo. Exh. P. S: He also took into possession last worn clothes of the deceased produced before him through memo. Exh.PB. On 11-5-1990, he arrested Muhammad Hassan accused who absconded subsequently and Safdar Ali and Muhammad Yaqoob. On 14-5-1990 Muhammad Hassan since P.O. while in police custody led to the recovery of blood-stained dagger which was taken into possession through memo. Exh.P.C. Safdar Ali, appellant was led to the recovery of chhuri P4 which was taken into possession through memo. Exh.PD. After completion of investigation the challan against the accused was submitted.

4. The trial Court framed the charge which was denied by the accused and they claimed trial.

5. During the trial the prosecution examined as many as 12 witnesses to prove the guilt of the accused.

6. The post-mortem examination on the dead-body of Muhammad Riaz deceased was conducted by Dr. Tanweer Ahmad who later on had gone abroad and his evidence was proved by Abdul Jabbar Dispenser, P.W.11.

7. The ocular account was furnished by Muhammad Arshad, P.W.7 who was complainant of the case. He supported the prosecution story and narrated motive for the occurrence. Muhammad Ashraf, P. W.8 was also eyewitness of the occurrence. He corroborated the statement of Muhammad Arshad, P.W.7. He also attested the recovery memo. Exh.PF. Apart from them, Mirza Ashfaq Beg Draftsman, P.W.1 prepared the site plan of the place of occurrence. The remaining witnesses are of formal nature and need not to be discussed.

8. The prosecution evidence was closed by tendering in evidence reports of the Chemical Examiner Exh.PJ and that of Serologist Exh.PK.

9. The statements of the appellants/accused were recorded under section 342, Cr.P.C. They denied the allegations and claimed their innocence and false involvement. In reply to question as to why the case against them and why the P.Ws. deposed against them Muhammad Hassan (proclaimed offender) stated as under:-- "It is a false case. The P.Ws. have made false statement on account of their relationship inter se and also with the deceased and due to enmity with me. It was an un-seen occurrence. The deceased was a person of ill-reputes, who was murdered by some un-known persons, with whom he tried to commit sodomy in the cluster of trees in the school ground at noon time. The actual culprits could not be apprehended and the Police in connivance with the complainant party implicated me and my co-accused in this case on account of previous enmity over elections." 11. (sic) Muhammad Yaqoob and Safdar Ali appellants stated in reply that the explanation of Muhammad Hassan be treated as their reply also.

12. The trial culminated into conviction and sentence of the appellants as mentioned above. Hence this appeal.

13. Learned counsel for the appellants has argued that the appellants have been falsely implicated due to relationship with Muhammad Hassan, co-accused who was declared proclaimed offender and he caused the single chhuri blow at the deceased and there was no need to caught hold of the deceased by the appellants as alleged by the prosecution; that their involvement in the case is doubtful, therefore, the appeal be allowed and the appellants be acquitted of the charge.

14. The appeal has been opposed by the learned counsel for the State who has supported the impugned judgment.

15. I have heard the learned counsel for the parties and examined the record.

16. Admittedly, the appellants had not caused any injury to the deceased. The only allegation against them is that they caught hold of the deceased while their co-accused Muhammad Hassan caused fatal blow to the deceased. I find that it was not necessary to catch hold of the deceased by the appellants for causing the solitary chhuri blow to the deceased which makes the prosecution case against the appellants doubtful. Muhammad Hassan is the main accused who was declared proclaimed offender. After his arrest he was put to trial and after compromise he was acquitted of the charge. This fact has not been controverted by the learned counsel for the State. The matter pertains to the year, 1990 and the appellants have faced the agony of the trial and pendency of the appeal for a period of more than 13 years, therefore, keeping in view the circumstances of the case and the role attributed to the appellants I find that the prosecution has failed to prove its case beyond shadow of doubt, so by extending benefit of doubt this appeal is allowed. The conviction and sentence of the appellants is set aside and they are acquitted of the charge. They are on bail, their surety bonds are discharged. N.H.Q. /M-672/L Appeal allowed.