2016 PLP 2021 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Criminal Miscellaneous Application No. 758 of 2010 For the reasons mentioned in this miscellaneous application the same is allowed and the delay in filing of Criminal Appeal No. 383 of 2010 is condoned. Disposed of. Criminal Appeal No. 383 of 2010

2. Muhammad Javed appellant had allegedly murdered one Faiz Ullah at about 08.30 A.M. on 05.05.2003 in Chak No. 60 Shumali, Jaffarabad in the area of Police Station Jhal Chakian, District Sargodha and for the said murder he was convicted by the trial court for an offence under section 302(b), P.P.C. and was sentenced to death and to pay compensation but on appeal the sentence of death passed against the appellant was reduced by the High Court to imprisonment for life. Hence, the present appeal by leave of this Court granted on 14.09.2010.

3. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have gone through the record of the case.

4. It has straightaway been observed by us that the occurrence in this case had taken place about a kilometer and a half away from the village abadi and at a place which was an open and uninhabited place inside a sugarcane field. The background of this case was a suspicion regarding illicit relations between Faiz Ullah deceased and a sister of Muhammad Javed appellant and in that backdrop a sugarcane field away from the village abadi looked like a perfect setting. Both the eye-witnesses produced by the prosecution, i.e. Ghulam Muhammad complainant (PW7) and Ehsan Ullah (PW8) were very closely related to Faiz Ullah deceased inasmuch as PW7 was a paternal uncle of the deceased and PW8 was a nephew of PW

7. Both the said eye-witness were also chance witnesses as PW7 had claimed to have witnessed the occurrence when he was proceeding to Sargodha on a bicycle whereas PW8 had claimed to have seen the occurrence when he was going to meet a friend. Both the said eye-witnesses had completely failed to establish any reason for their presence at the scene of the crime at the relevant time inasmuch as PW7 had not even disclosed his reason for going to Sargodha and PW8 had not even named the friend that he was going to meet. The said related and chance witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive set up by the prosecution had been brought on the record of the case and although a report of the Forensic Science Laboratory was received in the positive in respect of matching of the firearm recovered from the appellant's custody with a crime-empty secured from the place of occurrence yet the investigating officer (PW9) had clearly acknowledged before the trial court that the crime-empty had been sent to the Forensic Science Laboratory on the day when a carbine had been recovered from the custody of the appellant.

5. For what has been discussed above we have arrived at a confident conclusion that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case. MWA/M-50/SC Appeal allowed.