2007 SCMR 1307 (PLP)

MIAN SHAKIRULLAH JAN, J.

The appellant through the instant appeal, has questioned the legality and propriety of his conviction under section 302(b), P.P.C. and sentence of imprisonment for life and a compensation of Rs.1,00,000 (Rupees one lac only) to be paid to the legal heirs of the deceased with a benefit of section 382-B, Cr.P.C.

2. The relevant facts had already been given in para.3 of the leave granting order, which reads as under:-- (3) Facts of the case, in nutshell, appear to be that one Haji Fazal Hussain had settled a bargain for purchase of the house of the petitioner in consideration of Rs.4,05,000 through the good offices of deceased Haji Muhammad Ramzan. The deceased had paid an amount of Rs.60ry000 to the petitioner six/seven days earlier by the way of earnest money. It is alleged that the petitioner informed the deceased that he was required to discharge Small Business Corporation loan of Rs.1,00,000 for securing marketable title of his house. Consequently, Haji Fazal Hussain paid the requisite amount to the deceased on 16-2-1998. It is claimed that on 18-2-1998 at about 9-00 p.m. petitioner carried the deceased along with cash amount of Rs.1,00,000 from his house in presence of his son complainant Muhammad Shakeel Ahmed. On the same day at about 12-00 noon, one Iftikhar resident of Jada Taili, a plumber, informed Haji Fazal Hussain on phone that a dead body was lying in his house, whereupon Muhammad Shakeel Ahmad and Haji Fazal Hussain rushed to the house and found the body of the deceased. In the F.I.R. Muhammad Shakeel Ahmad implicated the petitioner along with one unknown person for committing the murder of his father. During the course of investigation, petitioner along with two others was arrested and sent up for trial."

3. There is no direct or ocular evidence against the appellant and the entire case hinges against him on the circumstantial evidence. The circumstances at the most corroborate the version of the complainant qua the murder of the deceased whose dead body was found in a deserted house but what is required for the prosecution to connect the appellant with the crime, the same is not sufficient rather lacking in its essential characteristics to hold the appellant guilty of the offence,: The circumstantial evidence, in addition to what has been stated above i.e., the murder of the deceased, against the appellant is only that of last-seen evidence and a weak motive that the deceased being a property dealer was having some connection, at the relevant days, with the appellant about the sale of his (latter) house and that the appellant was in the knowledge of Rs.1,00,000 (Rupees one lac only) in his (deceased's) possession obtained from purchaser to be paid to the appellant. The last-seen evidence is that the two P.Ws. i.e. Jamil Ahmed P.W.1 and Muhammad Shakil P.W.2 who have deposed that it was the appellant who had taken the deceased from his house and when he did not return for some time, they in their search found him dead in a deserted house. This evidence also suffers from so many infirmities and does not stand the test to be worth of credence and reliability.

4. In addition to the aforesaid witnesses in the circumstantial evidence produced by the prosecution, it is also in the evidence that some articles belonging to a lady were found in the house, where the dead body was lying and according to the medical evidence some scratches of nail were found under injury No.1, which further lead to the fact that the murder has taken place in a mysterious manner. The High Court instead of drawing inference in favour of the appellant, on the principle that an accused is entitled to any doubt arising in the prosecution case, has drawn inferences in favour of the prosecution and against the appellant which is against the principle of administration of criminal justice.

5. The other two co-accused of the appellant had already been acquitted by the trial Court having evidence almost of the same standard as against the appellant.

6. It is not a case in which one can say that the prosecution has been able to prove the case against the appellant beyond reasonable doubt and while giving benefit of doubt to the appellant, this appeal is accepted, the order of conviction passed by the Courts below under section 302(b), P.P.C. is set aside and the appellant is acquitted of the charges. He be released forthwith if not required in any other case. S.M.B./L-7/SC Appeal allowed.