2007 PLP 2731 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This appeal is directed against the judgment dated 28-6-2003 passed by the learned Additional Sessions .Judge, Mandi Bahauddin, whereby, having tried the appellants in the case registered vide F.I.R. No.137 of 1999 under sections 302/201/34, P.P.C., Police Station Kuthiala Sheikhan, they were convicted under section 302(6), P.P.C. and sentenced to imprisonment for life as Tazir with a compensation of Rs.50,000 each to be paid to the legal heirs of the deceased each coupled with benefit of section 382-B, Cr.P.C. Benefit of doubt was extended to the acquitted accused, namely, Inayat and Riaz. Criminal Revision No. 917 of 2003 was filed by the complainant for enhancement of sentence of the appellants while Criminal Appeal No.1421 of 2G03filed against the acquittal of Inayat and Riaz was dismissed by a learned. Division Bench of this Court vide order dated, 15-10-2003 which, admittedly, still holds the field.

2. The prosecution. story, as unfolded Through the statement of 'Ghulam Rasool son: of Ghulam Qadir real father of deceased Muhammad Tariq, was that the deceased Tariq was his only son and he had also five daughters; that on 25-2-1999 his said son Tariq disappeared from the house; that he started search of his son; that for sometime he waited but could not get any clue of him; that after 2/3 months Inayat son of Ghulam Ahmad and Muhammad Mandi told him that they had seen his said son along with Amjad, Jamshaid Riaz and Inayat. accused standing on the Dhoke Saharan Bus Stop; that after receiving this information, he inquired from the accused persons about his son; that the said accused persons promised to give -some clue but after some time they refused to give whereabouts of his son; that he made report to the Police Station Pahrianwali; that prior to this occurrence Riaz accused's sister, namely, Shamim Akhtar who was the step daughter of Inayat accused was abducted by his deceased son; that for this reason all the four accused persons after abducting his son, murdered him, threw his dead body in the canal; that the dead body of the said Tariq was retieived by the Police Station Kuthiala Sheikhan on 8-3-1999; -that the photograph of the dead body of his son was shown. to him in the Police Station Kuthiala Sheikhan and he identified him to be his son from his last-worn clothes and pair of sock.

3. After having completed usual formalities and investigation of the case, the police. submitted challan against the accused before the learned Court of competent jurisdiction, where, in order to prove its case, the prosecution examined 12 witnesses.

4. The accused, when examined under section 342, Cr. P. C. denied the prosecution case, attributed their involvement in the present case to false implication and claimed trial.

5. Learned counsel for the appellants, in support of this appeal contended that it was an unwitnessed occurrence dated 25-2-1999 regarding which two F.I.Rs. were recorded i.e. one vide F.I.R. No.134 dated 8-3-1999 (Exh.PA/1) and .the other F.I.R. No.372 dated 8-10-1999 (Exh.PB); that there is no eye-witness in this case; that there is no extra-judicial confession that this case only consists upon the evidence of last seen and recovery of a hatchet,. knife and a bicycle from the appellants; that. there is no report of the Chemical Examiner on the record; that the motive is attributed to the acquitted accused Inayat and Riaz who, as stated above; have already been acquitted by the learned- trial Court and appeal against their acquittal was dismissed by a learned Division Bench of this Court; that the impugned judgment has been passed against the weight of evidence on record; that it is based on surmises and conjectures; that the prosecution has failed to prove its case against the appellants beyond reasonable doubts and that, in the afore-referred circumstances, the appellants are entitled to acquittal from this Court.

6. On the other hand, while defending the impugned judgment of conviction, learned counsel for the State assisted by learned counsel for the complainant, submits that there is not reason for false implication of the appellants in the case in hand; that the ocular account is corroborated by the medical evidence and the evidence of recovery; that the contradictions, if any, are of minor in nature; that the accused have failed to prove their innocence and that since the prosecution has proved its case against the appellants beyond an iota of doubt, therefore, in the afore-referred circumstances the appeal filed by the appellants against the said judgment is liable to be dismissed.

7. I have heard learned counsel for the parties, have gone- through the impugned judgment and the record with their able assistance and have also given exhaustive consideration to the arguments of the respective parties.

8. In this case, in which complainant's son, named, Tariq was done to death, two F.I.Rs. were recorded i.e. ore vide F.I.R. No.134 dated 8-3-1999 (Exh.PAi 1) recorded on the statement of Raja Munir Ahmad against unknown accused .persons and the other F.I.R. No.372 dated 10-8-1999 (Exh.PB) recorded on the statement of father of the deceased about an occurrence which took place on 25-2-1999 and when he did not return home. There is a two type of evidence which has been produced by the prosecution i.e. the evidence of last seen and the evidence of recoveries. It may be noted that in all four accused. persons were challaned in this case, namely, appellants Amjad and Jamshaid and acquitted accused, namely, Inayat and Muhammad Riaz. The motive given by the father of the deceased was that his deceased son had abducted one Shamim daughter of Inayat acquitted accused and real sister of Riaz an year prior to the occurrence and in order to take revenge they, in connivance with the present appellants, .have committed the murder of the deceased. No relationship whatsoever of the present appellants has come on record with the acquitted accused, namely Inayat and Riaz and .Criminal Appeal No.1421 of 2003 filed against their acquittal has already been dismissed by a learned Division Bench of this Court vide order dated 15-10-2003. Now this Court is left with the case of the present appellants, namely, Amiadi and Jamshaid. Both of them had no motive to kill the deceased. So there was no question of their joining hands with the acquitted accused. The evidence against help present appellants is of last seen furnished) by Inayat and Mehdi. Mehdi was not produced while Inayat is also very closely related to the complainant i.e. cousin.) According to Inayat (P.W.4), 2.3 months after leaving the house by the deceased; rte had seen him in -the company of all the four accused persons, .including the present appellants, 'but, surprisingly, notwithstanding his close relationship with the complainant party, he did not inform them about the said very crucial aspect of .the ' case and kept mum for such a long time which does not appear to conunor serge. He has also not given any plausible) explanation for the said lapse on his part. Therefore, it can safely be concluded that he had not seen the deceased in the company of the accused persons or the appellants as was told by him. Then there is a recovery from both the appellants i.e. Amjad appellant ,got recovered a hatchet from the house of Inayat acquitted accused on 9-9-1999 while appellant Jamshed alleged to nave recovered a knife. The eye-witnesses produced to prove the said recoveries were. Inayat P. W . 9, who is first cousin of the complainant and Arshad given up. The witnesses produced against Jamshaid was A.S.-I. Tariq and Arshad. Arshad was brother-in-law (Sala). of the complainant. Strangely, both. these recoveries were not blood-stained. Moreso, that those recoveries were not sent to the Chemical Examiner or the Serologist for Expert opinion. In fact it was an unseen C occurrence. There is no tangible evidence available on record against the appellants. Therefore, it can safely be said that the ocular. account is not corroborated by the medical evidence. It is cardinal principle of criminal dispensation of justice that if on the basis of same evidence some accused were acquitted then the testimony of the same witnesses regarding the convicted accused must be ,corroborated from same independent corroborative evidence which is very much lacking in the present case. It is also settled principle of law that the evidence of last seen, which has been disbelieved above, is a weak type of evidence- and conviction cannot be based on the basis of such an evidence. The argument advanced by the learned counsel for the complainant that the appellants .have failed to prove their innocence, has no force because it is settled by now that the prosecution has to prove its case and. may. not derive benefits from the evidence produced or pleas taken by the defence although those were not proved during the trial.

9. After having adjudged the case from every angle, having sifted grain from the chaff and after having applied independent judicial mind, the Court is of the considered view that the prosecution has failed to discharge the onus on its shoulders and has miserably failed to prove the case against the appellants. Once the prosecution has failed to discharge its duty to prove the case against the appellants, its benefit must go to the accused by way of their acquittal. Resultantly, this appeal is allowed, the impugned judgment is set. aside and [he appellants are acquitted from the case. They are directed to be released forthwith if not required to be detained in any other case. For the above reasons, Criminal Revision No.917 of 2003 has no force which is herby dismissed. N.H.Q./A-647/L Appeal accepted.