2006 PLP 792 (YLR)

MIAN MUHAMMAD NAJAM?-UZ-ZAMAN, J.

Appellant along with two others was tried by Additional Sessions Judge, Sheikhupura for the murder of one Muhammad Arif in case F.I.R. No.172 of 2002, dated 29-5-2002 for the offence under sections 302/34, P.P.C. registered at Police Station Khanqah Dogran, District Sheikhupura, who vide judgment dated 17-3-2003 while acquitting co-accused convicted appellant under section 302(b). P.P.C. and sentenced him to Imprisonment for life. Appellant was also directed to pay Rs.50,000 as compensation to the legal heirs of the deceased, or in default whereof to further undergo six months S.-I. benefit of section . 382-B. Cr.P.C. was also extended in favour of the appellant.

2. Feeling aggrieved by the impugned judgment, the appellant has filed the instant appeal.

3. In brief the case of the prosecution as penned in the F.1. R. is that the complainant is resident of village Salar Bhattian and a cultivator by profession. Muhammad Hanif alias Mehdi, was his private employee. He was not a willing worker and he used to send his son Bashir alias Pheru for work. Statedly complainant paid as advance Rs.50,000 to Muhammad Hanif and had asked him to do the work as season of paddy crop was approaching. Allegedly the demand of the complainant annoyed Muhammad Hanif and a week ago he had extended threats. On 29-5-2002 at about 5/6 p.m. complainant along with Muhammad Ijaz, Abid Hussain were sitting in their cattle-shed. Father of the complainant was sleeping on a cot under the tree. Muhammad Hanif alias Mehdi. Bashir alias Pheru, Zafar were mending the "Watt" of the land when Zafar raised Lalkara that Arif be taught a lesson for admonishing them. Muhammad Hanif alias Mehdi gave a Kassi blow to Arif father of complainant on the left side of neck. The complainant party raised hue and cry and within their view Bashir alias Pheru took Kassi from his father Muhammad Hanif alias Mehdi and gave second blow to Arif on the backside of the head near the ear. Thereafter they while dragging Arif took hum to the sugarcane field and threw him there. The motive for this occurrence as narrated in the F.I.R. was that Muhammad Hanif alias Mehdi had received Rs.50,000 as advance being a private employee of the complainant. He was not willing worker. So many times he was admonished by the complainant who nourished a grudge in his mind and in order to get avenge with the complainant he along with other accused murdered the father of complainant and threw away the dead-body in the field of sugarcane.

4. The matter was reported to Naseer Ahmad Bajwa, S.-I. P.W.7 who conducted the formal investigation and finally after complying with legal formalities challan was submitted before the trial Court where prosecution produced nine witnesses including Muhammad Saleem complainant P.W.8 and Abid Hussain P.W.9 the eye-witnesses of the occurrence to prove the charge against the appellant.

5. Learned trial Court also examined appellant and his co-accused under section

342. Cr P.C. While answering to the question "Why this case against you and why the P Ws. have deposed against you?" appellant gave the reply which reads as follows.-- "I am physically weak. The factum of advance of Rs.50,000 is absolutely false. It is unseen occurrence. The prosecution witnesses are inimical towards me. The complainant party forcibly want to work as labourer for the field of the complainant. Factually deceased Arif remained in jail in case under section 302, P.P.C. for the murder Shoukat. They apart of Shoukat murdered the deceased Muhammad Arif and being poor people I was involved in the instant case. I am innocent." Neither the appellant made statement under section 340(2), Cr.P.C. nor produced evidence in his defence. Learned trial Court after appraisal of evidence vide judgment dated 17-3-2003 convicted and sentenced the appellant as narrated earlier.

6. Learned counsel for the appellant in support of this appeal submits that it was unseen occurrence; none of the eye-witnesses who had deposed before the trial Court was present at the spot; the ocular account stands contradicted with the medical evidence; the place of occurrence and time of occurrence apparent from the record do not tally with the prosecution story; the F.I.R. in this case was lodged after consultation and deliberation; that the deceased had enmity with other people in the village, prior to this occurrence Muhammad Arif deceased was taken into custody in a case under section 302, P.P.C. and possibility that some unknown persons had committed the murder of the deceased could not be ruled out. Submits that during the investigation no incriminating article was recovered from the appellant; the co-accused of the appellant namely Bashir who had also caused injury to the deceased has already been acquitted by the trial Court, and the evidence of eye-witnesses in such-like situation cannot be relied upon with any independent corroborative piece of evidence. Conversely counsel for the State while supporting the impugned judgment submits that it is a promptly lodged FIR.; this occurrence took place during broad day hours and there is no question of mistaken identity of the assailants; the ocular account supports the medical evidence: this occurrence took place in the village of the deceased and presence of the witnesses at the relevant time who were closely related to the deceased was very natural; the motive for the occurrence stands established from the record. Lastly argues that in the circumstances the impugned judgment needs no interference.

7. With the able assistance of learned counsel for the parties, I have minutely gone through the record of this case as well as the judgment of the trial Court. From the beginning the case of the prosecution as set down in the F.I.R. is that Muhammad Arif deceased was lying on the cot under the tree near his cattle-shed when Muhammad Hanif appellant along with son Bashir and his brother Zafar All launched attack. Statedly Muhammad Hanif gave Kassi blow on the neck of the deceased whereas Bashir gave injury with Kassi on the head. Thereafter they dragged the deceased to the sugarcane field and while throwing him there fled away from the spot. On the other hand, the medical evidence reveals that there were four incised wounds on the person of the deceased, doctor never observed any marks of dragging on the person of the deceased. According to Muhammad Akram Patwari Halqa P.W.4, the place where allegedly deceased was done to death and place where his dead-body was thrown was 10/ 12 Karams. If a person is dragged to such a long distance, the presence of marks of dragging on his person into very natural but in the instant case the absence of said marks of dragging on the person of the deceased belies the story of the prosecution. The dead-body of the deceased as stated by the complainant was recovered from the fields owned by the deceased whereas the stand of Muhammad Akram Patwari P.W.4 was that said field was of Zia Ullah. During the investigation, the Investigating Officer never recovered any blood-stained earth from the place where allegedly the deceased done to death. These lacunas in the prosecution case accumulatively are sufficient to show that his occurrence never took place in the manners as narrated by the eye-witnesses and their presence at the spot is not free of doubts. In this view of the matter, while extending benefit of doubt in favour of the appellant, this appeal is allowed. Appellant stands acquitted of all the charges. He shall be released forthwith if not required to be detained in any criminal case. H.B.T./M-1396/L??????????????????????????????????????????????????????????????????????????????? Appeal allowed.