1991 P Cr (PLP)

5. The police, after the completion of the investigation, sent up the appellant to the Court of Session for trial.

6. On the commencement of trial, the appellant was charged for the murder of Muhammad Ishaq and, on his pleading not guilty, the prosecution produced as many as 12 witnesses. Excepting Abbas Ali (P.W.7) and Gehla (P.W.8), who gave the eye-witness account as reflected in the above narration of the prosecution case; Dr. Abdur Raheem (P.W.11), who gave the details of the injuries of the deceased and proved the cause of his death and S.I. Rana Muhammad Aslam Investigating Officer (P.W.12), who gave the details of the investigation; rest of the prosecution witnesses were formal.

7. The appellant, in his statement under section 342, Cr.P.C. denied all the incriminating circumstances figuring against him and professed innocence. He, however, produced no defence. On the conclusion of the trial, he was, by the impugned judgment, convicted and sentenced in the manner aforesaid and aggrieved by it he brought this appeal.

8. It is argued on behalf of the appellant that the case was registered after preliminary investigation and this fact was almost admitted even by the complainant himself; that both the families had inter-marriages and the controversy over the match was not the real motive because, according to the statement of the complainant, both the families had remained on speaking terms even after the refusal of the hand of his daughter for the appellant; that the occurrence did not take place in the manner alleged by the prosecution because

(i) there was a glaring contradiction between the medical evidence and the eye-witness account; (ii) the appellant was hardly a teen-alter, having a physical deformity of a leg, while the deceased was about 25-26 years old, having a strong physique and there could be no possibility of the former having strangulated the deceased to death. (iii) had Abbas Ali, the paternal-uncle of the deceased and Ghela P.W. really seen the appellant strangulating the deceased to death from a short distance, they could easily chase, overtake and overpower him as he had a limpid gait due to physical deformity and could not run faster that the P.Ws.; (iv) The occurrence, as per post-mortem report, seems to have taken place some time at mid-night as there was still undigested food in the stomach of the deceased and not at Fajar prayer time as alleged by the prosecution and due to darkness, the assailants were not identifiable; and (v) the complainant's own statement was a hearsay evidence having a number of glaring contradictions with the eye-witnesses as he stated to the police whatever he was told by Abbas Ali P.W. at the village.

9. The family of the appellant and that of the deceased, besides having joint tenancy under the same landlord, had inter-marriages and the motive alleged by the prosecution was not convincing. The appellant was a teen-ager and there could be remoter possibility of his being interested in marrying the sister of the deceased, but if at all there was any move to that effect and the deceased's father had refused to oblige the appellant's father in that regard, it did not spoil their relations to such an extent that the appellant would take an extreme step of killing the deceased, particularly when, as per statement of Dost Muhammad, both the families were on speaking terms even during the days of occurrence. Therefore, it could not be the motive for the crime.

10. Dost Muhammad complainant was not an eye-witness. He stated to the police whatever he was told by his brother Abbas Ali P.W. His statement gives an impression that the police, on the news of the occurrence, came to the village and registered the case after preliminary investigation. This shows that the complainant party was not very sure about the identity of the accused.

11. The presence of undigested or semi-digested food in the stomach of the deceased shows that he was killed some time at the mid-night because had he been murdered at morning prayer time, as claimed by the prosecution, the food in the stomach must have been digested and it would have become almost empty.

12. There seems to be a good deal of substance in the above contention of the learned counsel for the appellant that medical evidence indicates that the deceased at the time of strangulation was subjected to extreme violence, resulting in injuries to certain organs of throat. It could not be the work of a person like the appellant who was comparatively of tender age and of weaker physique as compared to the deceased, rather, in my opinion, the nature of the injuries indicated that more than one person must have strangulated him.

13. The litting of a Diya using kerosine oil and the claim of the eye-witnesses that they had seen the appellant strangulating the deceased with the help of its glow seems to be only a ruse. That type of Diya could not have so powerful glow to enable identification from a longer distance, nor there could be any reason for the assailants to have kept the light on while committing a gruesome crime like murder.

14. For various reasons stated above, the prosecution, in my opinion, could not prove the guilt of the appellant beyond any shadow of doubt. His appeal is, therefore, accepted, his conviction and sentence is set aside, and he is acquitted. Being already on bail, he shall stand discharge of his liability under the bail bonds. N.H.Q./N-438/L Appeal accepted.