2014 PLP 794 (SCMR)

Criminal Miscellaneous Application No.744 of 2011 ASIF SAEED KHAN KHOSA, J.

It appears that on account of some inadvertence by the office of this Court the paper-book prepared for this Jail Petition reflected that this petition had been filed only by Faqir Hussain convict whereas this petition had in fact been filed not only by Faqir Hussain but also by the present petitioner namely Sabir Hussain who was also a convict having a case almost identical to that against Faqir Hussain. This petition had been converted into Criminal Appeal No. 138 of 2007 to the extent of Faqir Hussain and subsequently the said appeal had been allowed by this Court on 17-11-2011, the convictions and sentences of Faqir Hussain had been set aside and he had been acquitted of the charge. Upon a note put up by the office it had been ordered by one of us (Asif Saeed Khan Khosa, J.) on 23-11-2011 that the present petition may be fixed before the Court from the petition stage so that the case of Sabir Hussain petitioner may, also be dealt with. In these peculiar circumstances this miscellaneous application is allowed in the terms prayed for herein. Jail Petition No. 111 of 2006

2. After hearing the learned counsel for the petitioner and the learned Additional Prosecutor-General, Punjab appearing for the State we have found that the case against Faqir Hussain co-convict was based only upon the motive set up by the prosecution and his alleged absconsion for a period of about two years but through the judgment dated 17-11-2011 this Court had found that the case against the said co-convict was practically a case of no evidence and, thus, the said co-convict was acquitted of the charge by this Court. We have found that the case of the present petitioner namely Sabir Hussain is even on a better footing than that of Faqir Hussain co-convict who has already been acquitted by this Court inasmuch as the only evidence produced by the prosecution against the present petitioner was in the shape of an alleged motive. It goes without saying that no accused person can be convicted on a charge of murder exclusively on the basis of a motive alleged against him. In this view of the matter the case against the present petitioner has been found by us to be a better case on the merits than the case against his co-convict namely Faqir Hussain who has already been acquitted. This petition is, therefore, converted into an appeal and the same is allowed, the convictions and sentences of Sabir Hussain petitioner/appellant recorded and upheld by the learned courts below are set aside and he is also acquitted of the charge. He shall be released from the jail forthwith if not required to be detained in connection with any other case. MWA/S-5/SC Appeal allowed.