' ASIF SAEED KHAN KHOSA, J.--- Ghulani Hussain, appellant was convicted for an offence under section 302(b), P.P.C. Vide judgment dated 11-7-2002 handed down by the learned Additional Sessions Judge, Sialkot and was sentenced to imprisonment for life and to pay a sum of Rs,2,00,000 to the heirs of Asim Shehzad deceased by way of compensation under section 544-A, Cr.P.t. Or in default of payment thereof to undergo simple imprisonment for six months. The benefit under section 382-B, Cr.P.C. Was extended to the appellant. The appellant has challenged his conviction and sentence before this Court through Criminal Appeal No,351-J of 2002 whereas the complainant of this case namely Najam Siddique has preferred Criminal Revision No,1081 of 2002 before this Court seeking enhancement of the convict-appellant's sentence. I have heard both these matters together and I propose to decide the same together through the present consolidated judgment.
2. The prosecution's case against the appellant is that at about 6-15 p.m. On 18-7-1996 the appellant had given a Chhurri blow in the abdomen of Asim Shehzad deceased when the said deceased was present in a graveyard in Mauza Harar situated within the area of Police Station, Uggoke, District Sialkot with his two brothers namely Najam Siddique complainant and Nasir Mehmood and another. Asim Shehzad deceased was taken to a nearby hospital for treatment but he succumbed to the injury and breathed his last. Najam Siddique complainant made a statement before the police in respect of the said incident at 9-00 p.m. On 18-7-1996 at the above mentioned hospital and on the basis of the said statement F.I.R. No,322 was registered at Police Station, Uggoke, District Sialkot at 9-30 p.m. On 18-7-1996 for an offence under section 302, P.P.C. The motive set up in the F.I.R. Was that 2/3 days prior to the said incident a minor altercation had taken place between the appellant and the deceased which matter had been patched up. After completion of investigation a challan was submitted before the learned trial Court which framed a charge under section 302, P.P.C. Against the appellant to which he pleaded not guilty and claimed a trial. During the trial the prosecution produced ten witnesses in support of its case against the appellant. In his statement recorded under section 342, Cr.P.C. The appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. He, however, opted not to make any statement on oath under section 340(2), Cr.P.C.
And also did not produce any witness in his defence. At the conclusion of the trial the learned trial Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt and, thus, the appellant was convicted and sentenced as mentioned and detailed above.
Hence, the present appeal and the connected revision petition before this Court.
3. I have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and, thus, he is entitled to be acquitted. As against that the learned counsel for the State as well as the learned counsel for the complainant have maintained that the prosecution had succeeded in establishing the appellant's guilt to the hilt and, therefore, the appellant's conviction recorded by the learned trial Court does not warrant any interference by this Court. The learned counsel for the complainant has gone on to maintain that in the peculiar circumstances of this case the appellant's sentence ought to be suitably enhanced.
4. After hearing the learned counsel for the parties and going through the record it has been observed by me that the ocular account of the alleged incident had been furnished by Najam Siddique complainant (P:W. I) and Nasir Mehmood (P.W.2). Both the said eye-witnesses happened to be real brothers of Asim Shehzad deceased. The said witnesses had -claimed that after receipt of the injury by the deceased at the hands of the present appellant the deceased was removed by these witnesses to a nearby hospital whereat he died, the police had come to the hospital soon thereafter and the complainant had made his statement before the police at the hospital. This claim of these eye-witnesses is belied by the Inquest Report (Exh.PH.) which does not show presence of any of these eye-witnesses near the dead body at the time of visit of the police to the hospital. Both these eyewitnesses were real brothers of the deceased and if they had been present near the dead body at that time then their presence would surely have been recorded in the Inquest Report. I have further observed that Najum Siddique complainant (P.W.1) had not gone to the Police Station to inform the police about the alleged incident and the police had itself reached the hospital upon receiving information about the alleged incident from an undisclosed source.
The occurrence in this case had taken place at about 6-15 p.m. On 18-7-1996 and according to the statement of Najam Siddiue complainant (P.W.1) the local police had reached the hospital around 7-00 p.m. During the same evening but still the first statement in respect of the alleged incident was made by Najam Siddique complainant before the police at 9-00 p.m. Nasir Mehmood (P.W.2) had admitted before the learned trial Court that he had never made any statement before the police during the investigation of this case. All this clearly shows that both the above mentioned eye-witnesses were not present with the deceased at the time of the alleged occurrence, they had not taken the deceased to the hospital themselves and, in all likelihood, they had been procured and planted in this case by the police after due deliberations and consultations.
5. The motive set by the prosecution had remained far from being established inasmuch as Najam Siddique complainant (P.W.1) was the only witness who had deposed before the learned trial Court regarding the said motive but he had gone on to admit that he knew nothing about the incident forming the motive nor the said incident was witnessed by him or reported to the police.
Muhammad Ramzan, S.-I. (P.W.8), the Investigating Officer, had stated before the learned trial Court in categorical terms that he had not investigated the motive set up by the prosecution nor any evidence in that respect was produced before him or collected by him. In this view of the matter the ocular account in this case had failed to receive any corroboration from the motive.
6. The evidence produced in this case regarding the alleged recovery of a bloodstained Chhurri from the appellant's house at his instance has failed to inspire my confidence. Nasir Mehmood (P.W.2) had clearly stated before the learned trial Court that the appellant had been arrested in connection with this case on the very day of occurrence, i.e, 18-7-1996 whereas Muhammad Ramzan, S.-I. (P.W.8), ale Investigating Officer, had maintained that the appellant had been arrested in this case on 25-7-1996. It had been deposed by him that the recovery of Chhurri had ben effected from the appellant's possession On the day of his arrest. Thus, if die prosecution witnesses themselves do not agree as to when the appellant was arrested then the recovery having been effected from the appellant's possession on the day of his arrest naturally becomes doubtful. Apart from that Muhammad Arshid, F.C. (P.W.3), the recovery witness, had stated before the learned trial Court that 5/7 persons from the public were available at the place of recovery during the recovery proceedings but admittedly no such independent person was made or produced as a witness of the alleged recovery. In this manner the provisions of section 103, Cr.P.C.
Had clearly been violated in this case. The statement made by the abovementioned recovery witness further shows that the house from where the alleged recovery had been effected was open at the relevant time and some relatives of the appellant also lived in that house. It is, thus, evident that the alleged recovery had not been effected from an exclusive possession of the appellant. I may add here that it has been found by me to be rather unbelievable that the appellant had not bothered to wipe off blood from the recovered Chhurri despite keeping the said Chhurri in his possession for as many as seven days before its recovery. On account of all these considerations I am not ready to believe the alleged recovery of a bloodstained Chhurri from the appellant's possession and, therefore, I discard the evidence produced by the prosecution in that regard.
7. The medical evidence produced by the prosecution in this case had clearly contradicted the ocular account inasmuch as in the F.I.R. As well as in the statements of both the eye-witnesses it had categorically been asserted that the appellant had caused a Chhurri blow in the abdomen of the deceased. The post-mortem Examination Report (Exh.P.K.) as well the diagrams of injuries (Exh.P.K./1) and the Inquest Report (Exh.P.H.) unmistakably show that the only injury sustained by the deceased was on his chest which had cut his heart. Such a major contradiction between the ocular account and the medical evidence goes a long way in casting a thick cloud of doubt upon the veracity of the eyewitnesses in this case.
8. For what has been discussed above a conclusion is inescapable that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. Criminal Appeal No,351-J of 2002 is, therefore, allowed, the conviction and sentence of the appellant recorded by the learned trial Court are set aside and the appellant is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required in any other case.
9. For the reasons recorded above Criminal Revision No,1081 of 2002 is dismissed.