' This judgment will dispose of Criminal Appeal No.297 of 1997 filed by Shah Muhammad alias Shahia and Rashid Ahmad appellant, 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 under section 302/34, P.P.C. 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 p.m. On the basis of the complaint Exh.P.A. In his statement Exh.P.A. Master Muhammad Niaz P. W.1 stated that he was -resident of village Beggey Tehsil and 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 dead body of a male unknown 'peison., Thus, he informed Ghulam Nabi and Bagh Ali Lumberdars who were present at Chowk Chabar. They came near the dead body, and leaving both the abovesaid two persons beside the dead body, Muhammad Niaz left, for Police Station Ganda Singh Wala to , report the matter, when on his way he narrated about the presence of the dead body at the aforesaid place.
Thus, the A.S.-I.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 P.W.1 who signed the same accordingly in token of its correctness.
3. Muhammad Aslam A.S.-I. Sent the aforesaid complaint at Police Station Ganda Singh Wala through Safdar Ali constable for recording the formal F.I.R., which was accordingly done by Muhammad Rafique MHC on the same day at about 12-45 p.m. Muhammad Aslam A.S.-I. Visited the spot, prepared the injury statement in respect of the deceased Exh.P.H. And inquest report Exh.P.H./1 and dispatched the dead body for conducting the post-mortem examination thereon through Muhammad Arshad constable. He also prepared "Fard Jama Talashi" Exh.P.H./3 and took into possession certain articles from the pocket and person of the deceased P.7 to P.10.
4. Ahmed Khan S.I., P.W.6 took into possession blood-stained clothes and finger tips vide memo.
Exh.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 Exh.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. Exh.P.C. Investigation was completed by this witness and accordingly report under section 173, Cr.P.C. Was submitted against the appellants.
5. Prosecution in order to prove its case produced 12 witneesses in all, thereafter, the statements of the appellants were recorded under section 342, Cr.P.C.
6. Learned counsel for the appellants has read before me the prosecution evidence, statements cf the appellants recorded under section 342, Cr.P.C. And makes the following submissions. He submits that it was an unwitnessed 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 P.W.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 P.W.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 residence 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 P.W.7 was examined about the recovery which was allegedly effected on the pointation of Shah Muhammad appellant, who got recovered pistol P.7. He also submitsthat 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 appellants Shah Muhammad was closely related to Mst. Shahnaz Bibi and he was instrumental for getting her divorce from Muhammad Nawaz then marrying with aceased 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 Court with their assistance. In the instant case, there is no eye- witnesses and it was an unwitnessed occurrence, that in fact the dead body of the deceased was found by one Master Muhammad Niaz having injuries of different weapons and he reported the matter to the police, later on, during the investigation police collected the evidence of last seen and the recovery. Sardar All P.W.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 seen the deceased in thecompany of both the appellants on 23-5-1995, dead body was seen on25-5-1995 and the post- mortem was conducted on 26-5-1995. Acccirdingto Dr. Irfan Masood, P.W.12, who had conducted post-mortem on the dead body of the deceased the duration was four days. During cross- 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 P.W.8 does not fit in with the prosecution story and also is not in line with the statement of doctor, who had conducted the post-mortem examination on the dead body of the deceased. As far as P.W.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 15/20days 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 P.W.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.C. (not produced in this case) so no reliance can be placed on Liaqat P.W.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 Investigating Officer 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 scene and at their behest Sardar Ali P.W. Falsely implicated the present appellants in this case. Muhammad Nawaz is the same person from whom Mst. Shahnaz Bibi got divorced and the married with Muhammad Miza 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 and accused person in a case under section 302, P.P.C. 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 awarded 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.