2003 PLP 2318 (YLR)

Date of hearing: 19th February, 2003. This judgment will dispose of Criminal Appeal No. 1583 of 2001 and Criminal Appeal No.788 of 2001 directed against the judgment dated 29-9-2001 passed by the learned Additional Sessions Judge, Hafizabad, whereby he convicted the appellant under section 302(b), P.P.C. and sentenced him to undergo life imprisonment with further direction to pay Rs.50,000 as compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C. or in default six months' S. I. Benefit of section 382-B, Cr.P.C. was also granted to him. Through the same judgment 8 co accused were acquitted by the learned trial Court.

2. The facts in brief of this case are that on 11-2-1998 when womenfolk and villagers of the village went to fields to ease themselves at about 10-00 a.m., they saw a dead body lying in a water channel and they rushed to complainant and told about that. The complainant Muhammad Munir, his brother Mehndi Hassan and his sister Irshad Bibi went there and saw that the dead body of their brother Zubair was wrapped in Chaddar. On their raising hue and cry many inmates of the village came there. Matter was reported to the police by the complainant stating that Nawaz, Ghulam Ali, Allah Ditta, Ahmad, Fateh Muhammad, Shabbir Ahmad, Muhammad Yaqub and two /three unknown persons have committed the murder of Muhammad Zubair with hatchets and Bughdas and after wrapping the dead body of Muhammad Zubair in a Chaddar they have thrown the same into a water channel'. The motive as stated by the complainant behind this occurrence was illicit relations between Muhammad Zubair deceased and Sughra Bibi and Jannat Bibi.

3. After getting information about the occurrence the local police completed all the necessary formalities and thereafter Muhammad Yaqoob, S.-I. proceeded to the spot. He prepared injury statement Exh.C.W.3/F and inquest report Exh.C.W.3/F. He also collected the blood stained earth vide recovery memo. Exh.C.W.2/A. Last-worn clothes were also taken into possession by him vide memo. Exh.C.W.1/A. On 18-2-2000 he arrested Muhammad Nawaz and Ghulam Ali. On 2-3-2000 Nawaz got recovered hatchet vide memo. Exh.C.W.5/A while Ghulam Ali accused got recovered Kassi vide memo. Exh. C.W.5/B. Ultimately after thorough inquiry the police prepared report under section 173, Cr.P.C. against the accused persons but being dissatisfied with it the complainant filed a complaint in which the accused were summoned and tried.

4. Prosecution in order to prove its case has produced three P.Ws. including Doctor. While 8 C.Ws. were examined. After tendering in evidence Chemical Examiner, Exhs. P.C. and P.D. and that of Serologist Exh.P.E. learned D.D.-A. closed the prosecution evidence. Thereafter statements of the accused were recorded under section 342, Cr.P.C. in which they pleaded their innocence.

5. Learned counsel for the appellant in support of this appeal submits that it was an unwitnessed occurrence, that the only evidence against the appellant was of last seen and recovery of hatchet, that the deceased was a person of bad-character and was involved in different criminal cases, that there is delay of four days in lodging F.I.R., that on the same evidence eight accused have been acquitted by the learned trial Court that case of the appellant is on similar footing to that of one acquitted co-accused Ghulam Ali, that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt and that there are material contradictions in the statement of the P.Ws.

6. On the other hand learned counsel for the State submits that evidence of last seen is there against the appellant, that hatchet was recovered on his pointation, that the ocular account is corroborated by the medical evidence. He submits that delay in lodging' the F.I.R. has been explained and he supports the judgment of the learned trial Court.

7. I have heard the learned counsel for the parties. The case of the prosecution is that on 7-2-2000 when the complainant alongwith his brother Muhammad Zubair deceased, Mahndi Hassan, sister Irshad Bibi alongwith other family members were having their meal sitting in their house. In the meantime the accused Muhammad Nawaz reached there and asked his brother Muhammad Zubair to go with him for some piece of work. Muhammad Zubair, after taking his meal went to the house of Muhammad Nawaz alongwith him. After two hours when Muhammad Zubair did not come back, the complainant alongwith his brother Mahndi Hassan went to the house of Muhammad Nawaz to inquire about Muhammad Zubair, Muhammad Nawaz appellant alongwith his other acquitted co accused was present there. The complainant asked Muhammad Zubair deceased to accompany him to the house but Nawaz appellant resisted and asked for more time to keep Muhammad Zubair deceased with him but thereafter Muhammad Zubair did not return to his house. For about four days no F.I.R. was lodged and the same was lodges when the villagers found the dead body of Muhammad Zubair in the field. Nine accused were tried by the learned trial Court, out of them eight were acquitted and the appellant was convicted and sentenced. The evidence against all of them as far as last seen is concerned, was of similar nature because all the acquitted accused specifically Ghulam Ali I were present alongwith Muhammad Nawaz and the deceased Muhammad Zubair in their house. There is no evidence on the record that outside the house of Muhammad Zubair any witness had seen Muhammad Nawaz appellant in the company of deceased. Merelv on this ground conviction and sentence on a capital charge cannot be maintained. As far as recovery of hatchet from the appellant is concerned, no public witness has been produced by the prosecution. All the witnesses in this regard are police officials. Case of the appellant is on similar footing to that of all the acquitted accused specifically Ghulam Ali who also led to the recovery or 'Kassi' alongwith Muhammad Nawaz appellant. As far as pointation of the place from where the dead body was recovered is concerned, that is not admissible in evidence.

8. After having heard the learned counsel for the parties and going through the evidence on the record, I am of the opinion that prosecution has failed to prove its case against the appellant beyond any shadow of doubt. In this view of the matter, this appeal is accepted and the conviction and sentence awarded to the appellant by the learned trial Court is set aside. The appellant shall be released forthwith if he is not required in any other case. H.B.T./M-1759/L Appeal accepted.