2005 P Cr (PLP)

Sh. Arshad Ali for the State. Date of hearing: 5th May, 2004. Khan Muhammad appellant has been convicted under section 302, P.P.C. and sentenced to rigorous imprisonment for 14 years and directed to pay Rs.3,00,000 as Diyat to the legal heirs of the deceased under section 308, P.P.C. vide judgment dated 24-3-2003 passed by a learned Additional, Sessions Judge, Burewala in case F.I.R. No. 111, dated 19-5-2002 Police Station Sahuka Tehsil Burewala.

2. The occurrence took place on 19-5-2002 at about 1-00 p.m. in the house of Khan Muhammad appellant. According to the prosecution version Mst. Manzoor Mai wife of Khan Muhammad appellant-accused had gone to Lahore to see her relatives about eight days prior to the occurrence and had returned to her house about 2/3 days prior to the occurrence Khan Muhammad suspected that Mst. Manzoor Mai had eloped with her relative Muhammad Nawaz. At the, relevant time Muhammad Ramzan, father of Mst. Manzoor Mai, Bashir Ahmad (P.W.4) and Manzoor Ahmad (P.W.7) were present in the house when Khan Muhammad appellant got flared up and started giving hatchet blows to Mst. Manzoor Mai, deceased. Due to fear the P.Ws could not rescue the deceased. Khan Muhammad fled away from the spot Manzoor Mai was being removed to the hospital when she died on the way. Muhammad Ramzan reported the matter to the police on the same day at 3-00 p.m.

3. Zulfiqar Ali, S.-I. reached the spot and completed the usual investigation He arrested Khan Muhammad accused on 29-5-2002 and recovered hatchet P.5 at the instance of the accused from his house. He recorded the statements of the P.Ws. got prepared site plans and lastly submitted his report under section 173, Cr.P.C.

4. At the commencement of the trial the accused was formally charge-sheeted by Arfan Ahmad Saeed, Additional Sessions Judge, Burewala. The accused pleaded not guilty and claimed trial. The prosecution examined as many as nine witnesses in order to substantiate the charge. The accused in his statement under section 342, Cr.P.C denied the allegation. He did not produce any evidence in his defence. The learned trial Court while concluding the trial held the appellant guilty under section 302(b), P.P.C. but sentenced under section 308, P.P.C. Hence, this appeal.

5. Learned counsel for the appellant argued that Muhammad Bashir (P.W.4) and Manzoor Ahmad (P.W.7) were expected to furnish the ocular account of the occurrence but they have exonerated the appellant as such it was a case of no evidence and the conviction and sentence cannot be sustained.

6. Learned counsel appearing on behalf of the State submitted that the occurrence took place in the house of Khan Muhammad appellant and this circumstance fully corroborated by the recovery of hatchet P.5 made at the instance of Khan Muhammad accused is sufficient to sustain the conviction.

7. I have made reappraisal of the entire material in the light of the arguments advanced by the learned counsel for the parties. The statements of Ahmad Bakhsh (P.W.1), Muhammad Nawaz, constable (P.W.2), Muhammad Iqbal (P.W.3), Nazir Ahmad (P.W.5), Qasim Ali (P.W.9) are more or less of formal nature. The fate of the case hinged on the testimony of Muhammad Bashir (P.W.41 and Manzoor Ahmad (P.W.7). Muhammad Bashir (P.W.4) in his examination-in-chief did depose about the occurrence but in cross-examination he disclosed that the occurrence was in fact narrated to him by his deceased father Muhammad Ramzar, whereas Manzoor Ahmad (P. W.7) was declared hostile as he had not deposed about the occurrence. In the absence of any evidence the recovery of hatchet P.5 and the medical evidence furnished by Lady Doctor Naheed Malik (P.W.8) becomes inconsequential. The occurrence has certainly taken place in the house of Khan Muhammad appellant but this fact alone does not prove that Mst. Manzoor Mai was assaulted and injured by Khan Muhammad appellant. The result is that the prosecution has failed to discharge the onus miserably. Therefore, the conviction recorded by the learned trial Court cannot be sustained. Accordingly this appeal is allowed. The conviction and sentence recorded by the learned trial Court is set aside. The appellant stands acquitted. He shall be set at liberty forthwith if not required in any other case. H.B.T./K-59/L Appeal allowed.