1988 P Cr (PLP)

This is an appeal by Sardar alias Sardara 27, to challenge his conviction under section 304(11), P.P.C. by learned Sessions Judge, Gujranwala who vide judgment, dated 20th February, 1980 sentenced him to five years' R.I. and fine of Rs.2,000 or in default one year's R:I.

2. The prosecution case is that on 14th October, 1978 Muhammad Siddiq deceased took flock of goats for grazing. He had a quarrel with Sardar accused, which was witnessed by Ahmad P.W.6 and Nazir P.W.7, who happened to be passing nearby at about Degarwela. They both were separated by them. Ahmad and Nazir proceeded further. The goats of Muhammad Panah complainant returned home in the evening but the whereabouts of Muhammad Siddiq deceased were not known. In the evening, Nazir, Ahmad and Dosa P.Ws. inquired from Sardar accused about Muhammad Siddiq who told them that in the fight, Muhammad Siddiq fell on the ground and died. He further told them that he concealed the dead body in the nearby bushes. The witnesses went there and found the dead body of Siddiq lying in the bushes. As it had gone late, Muhammad Panah P.W. on 15th October, 1978, went to the police station and lodged F.I.R. Exh.P.T. at 12 noon. The police undertook investigation and challaned the accused in this case.

3. There is no eye‑witness of the occurrence. The learned Sessions Judge recorded conviction of Sardar appellant firstly because there was motive for him to injure Siddiq deceased; secondly, there was extra‑judicial confession by the accused before Ahmad P.W.6 and Nazir P.W.7, thirdly, that the dead body was recovered on the pointing out of the accused by the witnesses, and finally, that the two witnesses had seen the deceased and the accused together at about Degarwela quarrelling with each other.

4. In support of its case, prosecution examined nine witnesses, Muhammad Aslam P.W.8 stated that 4/5 days before the occurrence, there was quarrel between the accused and the deceased, Muhammad Aslam is son of Muhammad Panah complainant. He admitted in cross‑examination that he did not convey the quarrel between the accused and the deceased to his father. Muhammad Panah P.W.5 was married to a sister of Siddiq deceased. He is not an eye‑witness of the occurrence. He admitted that Nazir P.W.7 is his nephew and that Ahmad P.W.6 is his real cousin. He further admitted that about 30 years earlier, his paternal‑uncle Rajada was murdered by Sher Muhammad, an uncle of Sardar accused and others. He admitted that Saee, father of Ahmad P.W. and others were challaned about 41 years earlier in a hurt case and that Shera, an uncle of Sardar accused was a prosecution witness against them. He further admitted that he alongwith Nazir P.W. was being prosecuted in a case under section 363/366, P.P.C. and that Noor, a cousin of Sardara accused was prosecution witness against them. It is, therefore, clear from the evidence of Muhammad Panah P.W.5 that all the prosecution witnesses are not only inter‑related but have long‑standing enmity against the accused and his family members. Ahmad P.W.6 and Nazir P.W.7 made material improvements in their statements during the trial. They were duly confronted with their statements under section 161, Cr.P.C. Both the witnesses were chance witnesses.

5. In view of the above discussion, I am of the view that the prosecution has failed to prove its case against the accused who had denied the charge and pleaded innocence. This appeal is accordingly accepted. Sardar accused is acquitted. He was allowed bail by this Court by suspension of his sentence during pendency of this appeal. His bail and surety bonds shall stand discharged. S.A./S‑229/L Appeal accepted