This judgment will dispose of Criminal Appeal No, 297/97 filed by Shah Muhammad alias Shahia and Rashid Ahmad appellants, who were convicted and sentenced by learned Additional Sessions Judge, Kasur. on 23.5.1997 for the murder of Muhammad Mirza deceased to undergo life imprisonment u/S. 302/34 PPC with a fine of Rs, 10,000/- each or in default of payment of fine to undergo one year R.I. each. The amount of fine, if recovered was ordered to be paid to the legal heirs of the deceased as compensation. Benefit of Section 382-B, Cr.P.C. was also granted to the appellants.
2. The First Information Report in this case was lodged at Police Station Ganda Singh Wala on 25.5.1995 at about 12.45 pm. on the basis of the complaint Ex. P.A. In his statement Ex. P.A Master Muhammad Niaz PW.1 stated that he was resident of village Beggey 'Tehsil & District Kasur. On 25.5.1995 at about 7.00 a.m. he was going to his school for teaching at Ratnay Wala, when reached near Karati Khu, he noticed on the left side of the Katcha Path a deadbody of a male unknown person. Thus, he Informed Ghulam Nabi and Bagh Ali Lumberdars who were present at Chowk Chabar. They came near the deadbody, and leaving both the abovesaid two person besides the deadbody, Muhammad Niaz left for police station Ganda Singh Wala to report the matter, when on his way he narrated about the presence of the deadbody at the aforesaid place. Thus, the ASI recorded his statement at Ada Hussain Khan Wala at about 11.15 a.m. on 25.5.1995. It was read and explained to Master Niaz PW. 1 who signed the same accordingly in token of its correctness.
3. Muhammad Aslam ASI sent the aforesaid complaint at Police Station Ganda Singh Wala through Safdar Ali constable for recording the formal FIR, which was accordingly done by Muhammad Rafique MHC on the same day at about 12.45 p.m. Muhammad Aslam ASI visited the spot, prepared the injury statement in respect of the deceased Ex. P.H and inquest report Ex. PH/1 and despatched the deadbody for conducting the postmortem examination thereon through Muhammad Arshad constable. He also prepared "Fard Jama Talashi" Ex. P.H/3 and took into possession certain articles from the pocket and person of the deceased P. 7 to P. 10.
4. Ahmad Khan SI, PW.6 took into possession blood stained clothes and finger tips vide memo Ex.
P.D. and got recovered pistol P. 7 at the instance of Shah Muhammad appellant from his residential house and took the same into possession alongwith bicycle P. 8 vide memo Ex. P.F. Rasheed appellant while in police custody led the police and got recovered blood stained hatchet P. 1, Jute bag P. 2 and string P. 10, which were taken into possession vide memo Ex. P.C. Investigation was completed by this witness and accordingly report u/S. 173 Cr.P.C. was submitted against the appellants.
5. Prosecution in order to prove its case produced 12 witnesses in all, thereafter, the statements of the appellants were recorded u/S. 342, Cr.P.C.
6. Learned counsel for the appellants has read before me the prosecution evidence, statements of the appellants recorded under Section 342, Cr.P.C. and makes the following submissions. He submits that it was an un-witnessed occurrence, that there was no eye-witness in this case, that.' prosecution case rest upon evidence of last seen, recoveries of weapons from both the appellant and motive. He further submits that the, evidence of last seen was furnished by Sardar Ali PW.8 son of the deceased. According to his statement, he saw the deceased in the company of both the appellants on 23.5.1995 at District Court, Kasur, that the other witness PW.9 Muhammad. Ibrahim though not related but his 'statement was recorded 15/20 days after seeing the deceased in the company of the appellants. He submits that Sardar Ali is interested witness being the son of the deceased: As far as, Muhammad Ibrahim is concerned, he is a resident of place which is 50 miles away from the resident of Sardar Ali i.e. situated in Green Town, Lahore from the place of occurrence. He further submits that as far as, recoveries of weapons are concerned, Liaqat PW. 7 was examined about the recovery which was allegedly affected on the pointation of Shah Muhammad appellant, who got recovered pistol P..7. He also submits that no recovery was effected in his presence, according to his cross-examination. He further submits that as far as, recovery of hatchet from Rashid Ahmad appellant is concerned, the witness of that recovery Jan Muhammad was not resident of place of occurrence and there was clear violation of Section 103 Cr.P.C. He further submits that in fact Muhammad Nawaz and Shan Shah were behind the prosecution of this case because they had enmity with the appellants. He further submits that Mst. Shahnaz'Bibi was Ex-wife of Muhammad Nawaz and in fact one of the appellant Shah Muhammad was closely related to Mst. Shahnaz Bibi and he was instrumental for getting her divorce from Muhammad Nawaz and then marrying with deceased Muhammad Mirza. According to learned counsel for the appellants that why he could have murdered the deceased. He lastly submits that in fact it was a case of no evidence.
7. On the other hand, learned counsel for the State submits that prosecution has proved its case against the appellant through ocular account furnished by Sardar Ali and Muhammad Ibrahim corroborated by recoveries from both the appellants. She submits that conviction and sentence awarded to both the appellants be maintained.
8. I have heard the learned counsel for the parties and have also gone through the evidence recorded by the learned trial with their assistance. In the instant case, there is no eye-witness and it was. an unwitnessed occurrence, that in fact the deadbody of the deceased was found by one Master Muhammad Niaz having injuries of different weapons and he reported the matter to the police, lateron, during the investigation police collected the evidence of last seen and the recovery.
Sardar Ali PW.8 is son of the deceased. According to him, he saw the deceased in the company of both the appellants in District Court, Kasur. Sardar Ali is resident of Green Town Lahore which is about 40 miles away from District Court, Kasur. He has been the deceased in the company of both the appellants on 23.5.1995, dead body was seen on 25.5.1995 and the postmortem was conducted on 26.5.1995. According to Dr. Irfan Masood, PW.12, who had conducted postmortem on the dead- body, of the deceased the duration was four days. During corss-examination doctor had admitted that death had taken place on 21.5.1995, so the date of evidence of last seen as furnished by Sardar Ali PW.8 does not fit in with the prosecution story and also is not in line with the statement of doctor, who had conducted the postmortem examination on the dead-body of the deceased. As far as PW.9 is concerned, he is also resident of Green Town, Lahore belonging to brotherhood of Sardar Ali and Muhammad Mirza deceased. He had admitted during cross-examination that his statement was recorded 15/20 days after he had seen the deceased in the company of both the appellants.
No person from District Kasur was produced in this case to prove the prosecution case. As far as recovery is concerned, Liaqat PW. 7 had admitted that recovery of pistol was already, effected from Shah Muhammad appellant and this fact was told to him by Muhammad Ishaq F.0 (not produced in this case) so no reliance can be placed on Liaqat PW.
7. As far as, recovery of hatchet from Rashid Ahmad appellant is concerned, the witness in this recovery is Jan Muhammad and he' is resident of 35/36 miles away from the place of recovery. No person from nearby house of Rashid Ahmad appellant was joined in investigation. It was mandatory upon the 1.0 to have joined some respectable persons from where the recovery was effected at the pointation of Rashid Ahmad appellant. It may also be noted here, that Mst. Shahnaz Bibi the second wife of Muhammad Mirza deceased was maternal niece of Shah Muhammad appellant, it does not appeal to reason that Shah Muhammad could have taken part in the murder of Muhammad Mirza deceased.
Suggestions have been put to the witnesses that one Shah Muhammad and Muhammad Nawaz were instrumental in the prosecution of case. They remained behind the seen and at their behest Sardar Ali PW falsely implicated the present appellants in this case. Muhammad Nawaz is the same person from whom Mst. Shahnaz Bibi got divorced and then married with Muhammad Mirza deceased. There is no eye-witness in this case, and it is a case of circumstantial evidence. There is no evidence of extra judicial confession. To convict an accused person in a case u/S. 302 PPC there should be evidence which should have come from an unimpeachable and independent sources which is lacking in the instant case.
9. Keeping in view the circumstances of the case and the evidence produced by the prosecution I am of the considered view, that prosecution has not been able to prove its case against the appellants beyond any shadow of doubt. In this view of the matter, while extending the benefit of doubt to the appellants I accept this appeal. The conviction and sentence a warded to the appellants by the learned trial Court is set-aside. Shah Muhammad appellant is in custody, he shall be released forthwith if not required in any other case. Muhammad Rashid appellant is on bail, he shall be discharged from his bail bonds.