' IJAZ AHMAD CHAUDHRY, J.---Arshad Masih has filed this appeal against judgment dated 19-11- 1996 passed by the learned Additional Sessions Judge, Khanewal whereby he was convicted under section 302(c), P.P.C. And sentenced for 20 years R.I. With compensation of Rs,20,000 payable to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default of payment thereof to further undergo S.-I., for six months. The appellant was also convicted under section 364, P.P.C. And sentenced to seven years' R.I. With fine of Rs,3,000 or in default of payment thereof to further undergo S.-I. For two months. All the sentences were directed to run concurrently and the benefit of section 382-B, Cr.P.C. Was also granted.
2. The appellant was sent up to face trial in case F.I.R. No,293 (Exh.P.D.) registered on 3-9-1995 under sections 302 and 364, P.P.C. At Police Station Saddar Mian Channu on the statement of Bashir Masih P.W.2, father of the deceased Gulzar recorded by Manzoor Ahmed Sub-Inspector P.W.6.
3. Brief facts of the prosecution case as mentioned in the F.I.R. Were that on 28-8-1995, complainant along with his son Gulzar Masih, Denial Masih and Nadim was present in his house when at about 2-00 p.m. Arsand Masih, his relative, came there and took Gulzar Masih with him to the agricultural land. They waited for Gulzar Maish up till 8/9 p.m. But he did not turn up. He along with Denial Masih and Nadim Masih contacted the appellant and inquired about Gulzar from him, but he showed ignorance about him. According to the complainant he started search for Gulzar Masih, who was not found anywhere and he raised suspicion that Arshad Masih had abducted his son and subsequently murdered him. Motive behind the occurrence was alleged that he being engaged with Maryam daughter of the complainant used to visit the house but Gulzar deceased was restraining him and due to this reason he had committed this offence.
4. During the investigation, police arrested Arshad appellant on 3-9-1995 and he made confession in the presence of the witnesses. He also led to the recovery of the dead body along with the other articles of the deceased.
5. After the completion of the investigation, report under section 173, Cr.P.C. Was submitted in the Court. The appellant was summoned and charge was framed against him, which was denied by him. Then the prosecution in order to prove the guilt of the appellant produced as many as seven witnesses.
6. P.W.1 is Dr. Abdul Sattar, who conducted the post-mortem examination while Bashir Masih (P.W.2) father of the deceased and Denial Masih (P.W.3) were the witnesses before whom the appellant had allegedly made confessional statement. They also witnessed the recovery of the dead body and the other articles belonging to the deceased. The remaining witnesses are more or less formal in nature except the Investigating Officer Manzoor Ahmad S.-I. (P.W.6) who had investigated the case.
7. After the close of the prosecution evidence, the appellant was examined under section 342, Cr.P.C. And he denied the allegations while claiming innocence. To the question why the case against him and why the P. Ws. Deposed against him, he made the following reply:-- "This is a false case. The deceased had illicit relations with the sister of Nadim P.W. Said Nadim P.W.
Abstained Gulzar deceased not to visit his house. Gulzar and Nadim were inimical to each other for this reason. Complainant party did not want that I should be engaged with Mst. Maryam sister of the deceased but Mst. Maryam wanted to marry with me. It is the complainant party who in fact had killed the deceased Gulzar but I have been involved in this case falsely so that I may also be removed from their way to create any hurdle. The witnesses have deposed falsely. Denial P.W. Is inimical towards me as such, he has deposed falsely. He also did not want that I should marry Mst.
Maryam,"
8. The learned trial Court after hearing the arguments of both the parties passed the impugned judgment of conviction and sentence, which is being assailed through this appeal.
9. Learned counsel for the appellant contends that according to Dr. Abdul Sattar, who conducted the post-mortem examination, the cause of death was not known whereupon the matter was referred to the office of Chemical Examiner but even after the receipt of the report, he could not make any opinion about the cause of death as no poison was detected by the Chemical Examiner.
It is further contended that Bashir Masih father of the deceased had denied relationship with Denial Masih and other but Denial Masih admitted that they were related with each other. It is further contended that both the witnesses also admitted that the confessional statement was made by the appellant when he was in the police custody and as such the same has got no evidentiary value. It is further contended that the recovery of all the articles along with the dead body on the pointation of the appellant was fabricated in order to falsely implicate him and strengthen the prosecution case, otherwise nothing was recovered from the appellant and he is entitled to be acquitted.
10. On the contrary, learned counsel appearing on behalf of the State opposes this appeal on the ground that dead body was recovered on the pointation of the appellant, who was named in the F.I.R. And the complainant had no previous enmity to falsely implicate him in the present case as he was engaged with his daughter.
11. I have heard the arguments of learned counsel for the parties and also gone through the evidence on record.
12. The F.I.R. Was got lodged after about 7 days in which only suspicion was shown against the appellant by Bashir Masih, P.W.2, father of the deceased Gulzar Masih and on the same day appelant was arrested who during the police custody, confessed his guilt. Both the eyewitnesses i.e, P.W.2 and P.W.3 during their cross-examination frankly admitted that said statement was made when the appellant was in the custody of the police. Hence, said confessional statement having got no evidentiary value cannot be given any importance.
13. The other evidence against the appellant was the recovery of the dead body and other articles on his pointation. P.W.2 is real father of the deceased, who during the cross-examination stated that Denial was not related to him but in the F.I.R. It was narrated that Denial and Nadim were his relatives. Similarly Denial while appearing as P.W.3 also admitted that he was relative of the deceased and P.W.2. P.W.2 having made a false statement to show P.W. As an independent witness cannot be relied upon as a truthful witness. Even otherwise no independent witness from the locality was joined in the said recovery proceedings which being violation of section 103, Cr.P.C.
Cannot be considered as an independent corroborative piece of evidence.
14. P.W.1 Dr. Abdul Sattar had also not given any opinion about the cause of death of the deceased and referred the matter to the Chemical Examiner for its opinion, but according to the report of the Chemical Examiner Exh.P.H. No poison was detected. Hence, confessional statement allegedly made by the appellant also did not find support from the medical evidence. Moreover, the doctor also did not give any opinion about the cause of death of the deceased. He admitted during the cross-examination that cause of death was subsequently given by him on the basis of police papers, which was only based on the alleged confessional statement made by the appellant during the custody with the police. Mere recovery of dead body on the pointation of the appellant was not sufficient to connect him with the commission of the crime.
15. For the foregoing reasons, I am satisfied that the prosecution failed to produce any convincing evidence to connect the appellant with the commission of the charge entailing capital punishment beyond any shadow of doubt. Hence this appeal is accepted, the impugned judgmeht conviction and sentence is set aside and the appellant is acquitted of the charge by extending him the benefit of doubt. He shall be released from jail forthwith, if is not required in any other criminal case.