This judgment will dispose of Criminal Appeal No, 217/J of 2002 filed by Talib Hussain, appellant through jail who was convicted under Section 302(b) read with Section 34 PPC and sentenced to imprisonment for life with further direction to pay Rs, 50,000/- as compensation, in default six months SI. The conviction and sentence was recorded by learned Additional Sessions Judge, Bhalwal vide judgment dated 1st April 2002.
2. Briefly stated the facts of the case are that on 18.5.2000 at evening time Azhar Iqbal, the complainant alongwith his brother Muhammad Asif had gone to the house of his material nephew namely Tanveer. Both returned from the house of Tanveer at 12 mid night. Asif was some paces ahead to the complainant. When Asif reached near the Baithak of Ghulam Rasool, in front of which an electric bulb was on, Talib Hussain armed with a pistol and Muhammad Yasir armed with a .12 bore gun, emerged. Talib Hussain took Asif into japhha, dragged him to courtyard of the Baithak, made him lie on the ground with threats that if any body came near, he would be done to death.
Thereafter, accused Yasir fired two shots hitting on chest and temporal region of Asif. On hue and cry, Muhammad Idrees and Muhammad Sadiq, attracted to the place of occurrence. The accused fled away and Asif succumbed to his injuries.
Motive behind the occurrence was that few days prior to the occurrence, Muhammad Asif was prohibited by Talib Hussain and Muhammad Yasir for standing in the chowk upon which Muhammad Asif disgraced Talib and Yasir. Due to this grudge, the accused, in furtherance of their common intention committed the murder of the deceased.
3. Investigation of the case was taken over by Anwar Khan SI (PW.10). He, after registration of the formal FIR, visited the spot, prepared injury statement Ex. PG, inquest report Ex. PH and took into possession the blood-stained earth vide memo Ex. PK. The PW arrested Talib Hussain accused on 25.5.2001 and from his possession-recovered pistol P.1, which was secured vide memo Ex. PC. Yasir was declared as proclaimed offender. Finally, Talib Hussain accused was sent to face the trial.
4. At the trial, prosecution in order to prove its case produced 10 witnesses in all. Then the learned DDA tendered in evidence report of the Chemical Examiner Ex. PQ, report of the Serologist Ex. PR and closed the case of the, prosecution. Statement of the accused was recorded under Section 342 Cr.P.C. in which he pleaded false implication. After conclusion of the trial, the accused was convicted and sentenced as stated above.
5. Learned counsel for the appellant submits that appellant has been falsely implicated in this case; the prosecution has failed to prove the motive as the complainant has not stated that he was present at the time of motive occurrence; the occurrence had taken place in the house of Yasir, co-accused of the appellant (since PO); no injury whatsoever was attributed to the appellant; two injuries on the person of the deceased were ascribed to Muhammad Yasir, (Proclaimed offender) and that when the appellant was armed with a fire-arm, there was no need on his part to take the deceased, into japhha. Lastly submits that the prosecution has miserably failed to prove its case against the appellant and he is entitled to acquittal.
6. Learned counsel for the State submits that it was a case of promptly lodged FIR; there was no reason on the part of the PWs to falsely depose against the appellant when they had no enmity whatsoever against the appellant; though complainant is real brother of the deceased but Sadiq other PW has no relationship with 'the complainant party and that the trial Court was right in awarding sentence to the appellant.
7. I have heard learned counsel for the parties and have gone through the record. In the instant case, two persons were named as accused, one the present appellant Talib Hussain and other Muhammad Yasir who is still at large. The motive alleged behind the occurrence was that few days prior to the occurrence, the deceased Asif was prohibited by Talib and Yasir, accused from standing in the chowk upon which the deceased disgraced and called their names. Having this grudge, the accused committed the murder. The complainant was not present at the spot at the time of motive occurrence. No other evidence was produced to prove the motive. The motive as alleged by the prosecution thus remained unproved.
8. According to case of the prosecution, Talib Hussain appellant was armed with a 30-bore pistol, he took the deceased into his collapse, dragged him into courtyard of Baithak, made him to lie the ground, extended threats of dire consequences, if any body came near- and then Muhammad Yasir co-accused (since PO) fired two shots on the person of the deceased Asif. No injury whatsoever was attributed to the appellant. The two injuries on the person of the deceased were ascribed to Muhammad Yasir, co-accused. If the appellant was armed with a fire-arm, there was no need on his part to take the deceased into his collapse, to drag him and made him to lie on the ground and then his co-accused to fire the shots. The recovery of empty from the spot, if any, was of no avail to the prosecution, as the appellant did not use the fire-arm.
The appellant while giving reply to the question" why this case against him and why the PWs have deposed against him, stated as under: "Due to enmity. I have been falsely involved in the case. My house is adjacent to the house of Yasir accused since P.O. The deceased has developed illicit relation with the sister of Yasir accused P.O.
Being a neighbour, I used to go to the house of Yasir P.O. and had good terms with his family. I had seen the deceased visiting the house of Yasir P.O. and meeting his sister at odd hours of night. I had told this fact to Yasir P.O. and he had reprimanded the deceased. On the night of occurrence, the deceased had gone to the house of Yasir P.O. for the said purpose where he was done to death. I was sleeping in my house on the woeful night."
Admittedly the occurrence had taken place in the Baithak of Muhammad Yasir PO at the mid of night.
Taking into consideration the statement of the appellant recorded under Section 342 Cr.P.C. and specially the above quoted reply to the question, the occurrence having taken place at mid night into the Baithak of Muhammad Yasir, co-accused of the appellant, motive alleged by the prosecution remained unproved, and no injury whatsoever having been attributed to the appellant, the possibility of his being falsely implicated cannot be ruled out. So, by extending the benefit of doubt, I accept this appeal, acquit the appellant of the charges, set aside the conviction and sentences awarded to him in terms of the judgment impugned and direct that he shall be released forthwith, if not required to be detained in any other case.