' MUHAMMAD FARRUKH MAHMUD, J.---Ameer Ali-appellant along with Mazhar Hussain alias Mazhari was tried by the learned Additional Sessions Judge, Chishtian, District Bahawalnagar, in lieu of case F.I.R. No,15 registered at Police Station, Shehar Fareed on 25-1-2005 for offences under sections 302/109/34, P.P.C. For having committed the murder of Khadim Hussain. Vide judgment dated 24- 9-2005, the learned trial Judge, while acquitting Mazhar Ali/co-accused, convicted and sentenced Ameer Ali for offence under section 302(b), P.P.C. To imprisonment for life and also to pay rupees one lac as compensation to the legal heirs of the deceased. In default in payment thereof, the convict was to undergo S.I. For six months. The convict was given the benefit of section 382-B, Cr.P.C.
2. Aggrieved by his above noted conviction and sentence, Ameer Ali has preferred the instant appeal, while Ghulam Muhammad/complainant has filed Criminal Revision No,167 of 2005 seeking enhancement of sentence inflicted upon the appellant/convict. I propose to decide both these matters through this consolidated judgment.
3. Briefly the facts of the case as gleaned by F.I.R. Exh.PC are that on 24-.1-2005, the complainant Ghulam Muhammad/P.W.3, Muhammad Mansha/ P.W.4 and Zulfiqar Ali were standing in the Chowk of the village when at about 11-40 a.m. The complainant's brother Khadim Hussian and Ameer Ali appellant were riding on motorcycle Registration No,8604/MLA, the complainant inquired from them as to where they were going. Khadim Hussian replied that they had taken motorcycle from one Muhammad Ismail and were going to Shehli Gharbi in connection with some work and would return back after some time. Khadim Hussain did not return till evening, so the complainant got worried and started searching for him. At about 8/9-00 p.m., the complainant went to the house of Khadim Hussain where he was informed by his father that Khadim had not come back.
' The complainant came to his house and slept. On 25-1-2005 early in the morning, the complainant again went to the house of Ameer Ali who had not returned back so far. Then the complainant along with Muhammad. Mansha, Zulfiqar Ali and Muhammad Amin went to Shehli Gharbi on motorcycles in search of Khadim Hussain. When they reached near Bhaini Ali Khokhar, they came to know that a dead body was lying in Sarkandas near Bhaini of Falak Sher Khokhar. The complainant and the P. Ws. Went there and identified the dead body of Khadim Hussain. There were many injuries on different parts of the body.
4. As to motive it was alleged that sister of Ameer Ali appellant had illicit intimacy with Khadim Hussain deceased and Mazhar Hussain/acquitted accused. Mazhar Hussain was not happy over the illicit relations of Khadim Hussain with sister of Ameer Ali. So he had abetted Ameer Ali and one known person to commit the murder of Khadim Hussain.
' The complainant along with Muhammad Amin and Zulfiqar Ali, while leaving Muhammad Mansha and others with the dead body, went to the police station and reported the matter.
5. After registration of F.I.R. Exh.PC on 25-1-2005, Muhammad Zahid Majeed, Inspector/P.W.9, went to the spot; prepared inquest report Exh.PA/2 and sent the dead body for post-mortem examination.
He prepared rough site plan Exh.PG of the place of occurrence. He collected bloodstained earth from the spot, sealed the same into a parcel and took the same into possession vide memo. Exh.PF.
After postmortem examination, the Investigating Officer took into possession the last-worn clothes of the deceased, i.e, Shalwar P.1, Qameez P.2, Sweater P.3, Socks P.4, Wrist watch P.5 and a Ring P.6 through memo. Exh.PB. On 28-2-2005, Ameer Ali appellant was arrested and while in custody on 3- 3-2005 he led to the recovery of dagger P.7 which was taken into possession vide memo. Exh.PD, attested by Ghulam Muhammad/P.W.3 and one Mumtaz Ahmad. On the same date, the appellant, while in custody, led to the recovery of motorcycle which was taken into possession through memo. Exh.PE, attested by the same witnesses. :On 4-3-2005, the Investigating Officer recorded the statements of Zulfiqar Ali/P.W.5 and Muhammad Fiaz/P.W.6 before whom Mazhar Hussain, acquitted co-accused, confessed that he along with Ameer Ali had committed the murder of the deceased. After completion of investigation, the appellant along with his acquitted co-accused was sent up to face trial.
6. In order to prove its case at the trial, the prosecution produced ten witnesses. Dr. Abdul Ghafoor/P.W.1, who, on 25-1-2005 at about 8-30 p.m., conducted post-mortem examination on the dead body of the deceased, while observing fifteen incised wounds on his person, opined that the death had occurred due to brain damage on account of injuries and severe haemorrhage to hypo volaemic shock and cardiorespiratory failure. According to him, these injuries were sufficient to cause death in ordinary course of nature. All the injuries were ante mortem and caused by sharp- edged weapon. Duration between injuries and death was instantaneous, while the time between death and post-mortem examination was within 36 hours. Last seen evidence was furnished by Ghulam Muhammad and Muhammad Mansha, P.Ws.3 and 4. In addition to that, the complainant/P.W.3 also stated about the motive and recovery of dagger (Bughda) at the instance of the appellant. Haji Zulfiqar Ali/P.W.5 and Fiaz/P.W.6 stated that Mazhar Hussain/co-accused had confessed before them that he along with Ameer Ali had committed the murder of Khadim Hussain. Muhammad Zahid Majeed, Inspector/P.W.9, stated about the registration of the case and the investigation thereafter.
7. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false implication due to enmity with the complainant party and suspicion. However, he neither appeared as a witness in his defence under section 340(2), Cr.P.C. Nor did he produce any witness in his defence.
8. Learned counsel for the appellant submit that the appellant has been convicted merely on the basis of presumptions; that except last seen, no other incriminating evidence implicating the appellant was available on the record of the case; that P.Ws.5 and 6 before whom allegedly Mazhar/co-accused had made confession about himself and Ameer Ali have been disbelieved and Mazhar has been acquitted; that the motive was set down against Mazhar Hussain accused, who has been acquitted; that though it was alleged that appellant led to the recovery of bloodstained dagger (Bughda) but the same was never sent for chemical examination and, thus, could not be used against the appellant.
9. Conversely, the learned counsel appearing on behalf of the complainant has argued that P.Ws.3 and 4 have deposed in clear terms that before his death Khadim Hussain was seen in the company of Ameer Ali; both these witnesses though related to the deceased had no previous enmity or grudge against the appellant so as to involve him in a false case; that the evidence furnished by P.Ws.3 and 4 stands corroborated by the medical evidence as well as by the evidence of recovery of dagger and motorcycle which were used during the occurrence; that the acquittal of co-accused Mazhar Hussain would not benefit the appellant, as the only evidence against him was that of extra-judicial confession which was not supported by any recovery evidence.
10. The learned counsel for the State has frankly conceded that prosecution case was not free from doubt.
11. I have heard the learned counsel for the parties and have also gone through the relevant record of the case.
12. Undeniably, the dead body of Khadim Hussain deceased was found lying in a place which was at a distance of 25 kilometres from the residence of the deceased and that of the complainant.
According to prosecution story, the complainant saw his brother Khadim Hussain along with Ameer Ali at 11-30 a.m. On 24-1-2005 while they were going together towards Shehli Gharbi on a motorcycle. However, Khadim Hussain did not return to his house till 8/9-00 p.m., so the complainant went to the house of Ameer Ali. He was informed by father of appellant that Ameer Ali had not returned to his house. Thereafter instead of searching for his brother or reporting the matter to the police, the complainant opted to sleep in his house. However, according to him, he started search for his brother in the morning along with Muhammad Mansha/P.W.4, cousin of the deceased and other P.Ws. During search, at about 1-00 p.m., the complainant discovered the dead body lying in a field. The fact remains that though the body of the deceased was recovered from a place which was at a distance of 25 kilometers from the abode of the complainant and the deceased yet no independent witness spotted the deceased and Ameer Ali together while they were going towards Shehli Gharbi. It is not a case where the deceased was seen in the company of the accused soon before his death. The prosecution evidence is not to be appreciated and analysed in isolated pieces and the credibility of the prosecution evidence is to be adjudged as a whole. In the instant case, motive as set down by the prosecution was that it was suspected that sister of Ameer Ali appellant had illicit relationship with Mazhar Hussain/coaccused and Khadim Hussain deceased. In that case, it is difficult to believed that Ameer Ali and Khadim Hussain deceased moved together on a motorcycle while gossiping with each other. Admittedly, it is an unwitnessed occurrence and the possibility that the appellant was roped in this case due to suspicion cannot be ruled out.
13. The story of extra-judicial confession put forward through the statements of Zulfiqar and Muhammad Fiaz/P.Ws. 5 and 6 stands rightly disbelieved by the learned trial Court. Further more, according to these witnesses, it was Mazhar Hussain/acquitted accused, who had gone and made confession and in that confession he had also implicated Ameer Ali. The acquittal of Mazhar Hussain was challenged but the appeal in that regard was dismissed on 16-5-2006. Obviously, no reliance can be placed on the P.Ws. Qua the appellant, who were disbelieved as against Mazhar Hussain acquitted accused.
14. The medical evidence furnishes information to the extent that deceased lost his life due to injuries caused by sharp-edged weapon but it does not lead to the person who caused the same.
15. According to prosecution case, the appellant was arrested on 28-2-2005 and while in custody on 3-3-2005 led to the recovery of blood-stained dagger (Bughda) P.7. This recovery cannot be used against the appellant as corroboratory evidence for the following reasons:--
(I) The recovered weapon was not sent for chemical examination and, thus, it cannot be said whether it was stained with human blood or not. No plausible reason is available on record as to why the weapon was not sent for chemical examination. It reflects on the incompetency and inefficiency of the Investigating Officer. Nevertheless the benefit of the lacuna cannot be given to the prosecution;
(II) No independent witness was produced during trial to support the recovery of dagger.
' It is also in evidence that one motorcycle bearing Registration No,8604- MLA was recovered from the house of one Muhammad Abdullah at the instance of the appellant but the recovered motorcycle was not produced before the learned trial Court and the recovery of the motorcycle was also not supported during trial by any independent witness. Corroboration of the story of Ghulam Muhammad relating to last seen evidence cannot be sought through his statement about the recovery. The corroboratory evidence should come from F an independent source.
16. As far as motive is concerned, it related to Ameer Ali appellant and Mazhar Hussain acquitted accused. P.W.3 who furnished the evidence of motive has been disbelieved by the learned trial Court qua Mazhar Hussain, so he cannot be believed against the appellant.
17. The upshot of the whole discussion is that the prosecution case is not free from doubts. Hence, while extending benefit of doubt to the appellant, I allow this appeal and set aside the judgment passed by the learned trial Court. The appellant is acquitted of all the charges and would be released forthwith if not required in any other case.
18. For the same reasons, I find no force in Criminal Revision No,167 of 2005. The same is dismissed.