2008 P Cr (PLP)

MUHAMMAD AHSAN BHOON, J.

This appeal is directed against the judgment dated 30-3-2002 passed by the learned Additional Sessions Judge, Chiniot whereby appellant was convicted under section 302(b), P.P.C. for causing murder of Ahmad Yar and Mst. Khurshid Bibi and sentenced to death on each count. He was convicted under section 380, P.P.C. and sentenced to 2 years' R.I. along with fine of Rs.1,000, or in default thereof to undergo one month's S.I. He was also convicted under section 411, P.P.C. and sentenced to 1 year's R.I. and further he was convicted under section 452, P.P.0 and sentenced to 2 years' R.I. along with fine of Rs.1000, or in default of payment of fine to undergo 1 month's S.I.

2. Apart from this appeal, the learned trial Court has sent Murder Reference No.307 of 2003 for confirmation of death sentence of the appellant under section 374, Cr.P.C. or otherwise. Both the matters are being disposed of through this single judgment.

3. As per F.I.R (Exh.P.N./1), brief facts of the case as narrated by the complainant are that on the night between 3/4-4-2001 he (complainant) along with Ahmad Yar his father, Mst. Khurshid Bibi, his mother, Muhammad Yar son of Noor Muhammad resident of Chak No.144/JB and Rehmat Ali son of Naurang resident of Chak No.152/JB were sleeping in the courtyard of the house. The electric bulb was on. All of a sudden accused Zulfiqar armed with Kassi, Nusrat armed with hatchet, Qasim armed with Sota and Rajab Ali armed with hatchet along with two other unknown persons armed with Sotas, who can be identified if brought before the complainant, all of a sudden entered in the Haveli and soon after the entrance accused Zulfiqar gave blow of Kassi on the mother of complainant which hit on front of her forehead, accused Nusrat caused hatchet blow from wrong side which hit father of the complainant on his head and ear. On hearing hue and cry the complainant tried to support the injured then all the accused fled by saying that today they had taken the revenge of the murder of Noor son of Sultan. Mst. Khurshid Bibi, Ahmad Yar succumbed to the injuries at the spot.

4. After due investigation, report under section 173, Cr.P.C. was submitted in the learned trial Court. Charge was framed against the appellant and acquitted accused who denied the charge, pleaded not guilty and claimed trial. The prosecution produced as many as 13 witnesses. The accused were examined under section 342, Cr.P.C. Rajab Ali appellant/accused in answer to question as to why this case was against him and why the P.Ws. deposed against him stated as under: "All the P.Ws. are related inter se and due to enmity with Zulfiqar etc. they deposed against me." Neither the appellant opted to appear as his own witness in disproof of the allegation levelled against him as required under section 340(2), Cr.P.C. nor did he adduce defence evidence.

5. The learned trial Court after hearing the parties passed the above said convictions and sentences through the impugned judgment, which have been assailed by the appellant.

6. We have heard the learned counsel for the parties and scrutinized the whole evidence carefully with their able assistance.

7. Admittedly in the present case the occurrence took place at 1-00 a.m. on the night between 3/4-4-2001. Mazhar-ul-Haq (P.W.9) son of the deceased was the complainant who stated in the F.I.R that acquitted co-accused Zulfiqar Ahmad Patwari armed with Kassi, Nusrat armed with hatchet, Qasim armed with Sota and Rajab Ali (appellant)/convict armed with Kulhara along with two other unknown accused entered in their Haveli and then acquitted accused Zulfiqar gave a Kassi blow which hit on forehead of Mst. Khurshid Bibi, mother of the complainant, whereafter Nusrat gave hatchet blow from its wrong side which hit on head and ear of father of the complainant and thereafter all the accused ran away. Muhammad Yar (P.W.10), a brother of the deceased also made similar statement under section 161, Cr.P.C. which was produced in evidence (Exh.D.B.) which was in line with the narration of the F.I.R. Mazhar-ul-Haq complainant (P.W.9) and Muhammad Yar (P.W.10) while appearing before the learned trial Court took somersault and all the injuries suffered by both the deceased were attributed to the appellant, who was not attributed any role of causing injury in the F.I.R. This glaring contradiction was duly confronted before the learned trial Court at the time of cross-examination of both the witnesses. The above stated fact would show that none of the P.Ws. had seen the occurrence which occurred in the dark hours of night. It would be important to mention over here that P.W.9 is son of both the deceased whereas Muhammad Yar (P.W.10) is real brother of deceased Ahmad Yar. Similarly the site plan (Exh.P.C.) would show that role mentioned in the F.I.R qua attribution of injuries to accused Zulfiqar and Nusrat (both acquitted) to both the deceased, was very much mentioned in the site-plan, so the same fact also negates the presence of both the eye-witnesses at the time of alleged occurrence. Due to the absolute changed version of both the eye-witnesses and taking complete somersault from their earlier version of F.I.R and statements under section 161, Cr.P.C., we safely hold that the occurrence was an unseen one and both the eye-witnesses had not seen the occurrence.

8. As far as the medical evidence of Dr. Abdul Raheem Khan (P.W.5) and Dr. Bushra Naheed (P.W 6) who conducted post-mortem examination, that does not rehabilitate the case of prosecution when the occurrence was an unseen, as we have disbelieved the presence of both the eye-witnesses.

9. As far as recovery of `Kulhara' P.15 taken into possession vide memo. Exh.P.M., also does not furnish any corroboration to the case of prosecution as the same was recovered from the house of the complainant after about three and half months of alleged occurrence, particularly when the same was neither blood stained nor any report of Chemical Examiner or Serologist is available on record.

10. The motive alleged was of enmity between accused Zulfiqar etc. and the complainant party but all the other accused were acquitted and they were attributed specific role in the F.I.R as well as in statement (Exh.D.B.) of Muhammad Yar (P.W.10) recorded under section 161, Cr.P.C., for causing injuries to both the deceased, so the motive alleged is always a double edged weapon and on the basis of a suspicion in an occurrence which was an unseen, anyone could be involved to whom the complainant party had the enmity.

11. In view of above discussion, we are of the considered view that the prosecution has failed to establish its case beyond any shadow of doubt against the appellant. Hence this appeal is allowed and the conviction and sentence of the appellant awarded to him by the learned Additional Sessions Judge, Chiniot vide judgment dated 30-3-2002 are set aside and the appellant is acquitted of the charge. The appellant shall be released forthwith, if he is not required in any other criminal case. Murder Reference No.307 of 2003 is answered in negative. N.H.Q./R-29/L Appeal accepte