' KHAWAJA MUHAMMAD SHARIF, J.---This appeal is directed against the judgment dated 30-9-2003 passed by the learned Additional Sessions Judge, Faisalabad, whereby, after having tried the appellant, convicted him under section 302(b), P.P.C. And sentenced to imprisonment for life with a further direction to pay a compensation of Rs,50,000 as provided under section 544-A, Cr.P.C. In default whereof to further undergo six months' S.I. Benefit of section 382-B, Cr.P.C. Was extended to the appellant.
2. Brief facts of the case, as given by the complainant in the Private Complaint are that his son Sakhawat was serving with one Bulley Khan; that on the intervening night of 5/6-2-2002 his, said son and P.W. Masoor Shah were sleeping at the Dhari of the above Bulley Khan when at 2-00 a.m., appellant along with others armed with Toka, hatchets and .12 bore gun came there; that the accused removed quilt from the face of Masoor Shah P.W. And told him to remain silent and gave him butt blows; that accused Manzhar Iqbal, Haq Nawaz and Shaukat Ali appellants inflicted numerous blows with hatchets and Toka on the person of deceased Sakhawat at his head and face who succumbed to the injuries at the spot; that the accused decamped from the spot after having fired in the air; that earlier on, the complainant got registered F.I.R. But after having dissatisfied with the investigation, he filed the present private complaint. The motive, as alleged, was that the accused had suspicion about the deceased having illicit relations with their relative Perveen Akhtar daughter of Dost Muhammad.
3. That the accused, including the appellant, were summoned in the complain case to face the trial, accused denied the charge and claimed trial, whereafter, the prosecution, in order to prove its case against the accused, produced four witnesses during the trial.
4. Learned counsel for the appellant in support of this appeal submits that it was a night time occurrence; that in the F.I.R. Neither any body was named nor description of the accused persons were mentioned; that later on complainant filed a private complaint and named the appellant and others; that there is conflict between ocular account and the medical evidence; that there is no eye-witness of the case; that nothing incriminating was recovered from the appellant; that on the same set of evidence, three accused have been acquitted by the learned trial Court; that it is a case of no evidence; that the appellant was declared innocent during investigation of the F.I.R.
Registered on the statement of the complainant; that the prosecution has failed to prove its case against the appellant and that the appellant is entitled to acquittal by this Court.
5. On the other hand, learned counsel for the State submits that the appellant was not named in the F.I.R. But his name was mentioned in the private complaint; that the ocular account is corroborated by the medical evidence; that the ipsi dixit of the police is not binding on the Courts; that the prosecution has proved its case against the appellant beyond a shadow of doubt and that this appeal is liable to be dismissed.
6. I have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.
7. The occurrence in this case, according to the F.I.R., took place at "Fajarwela", matter was reported to the police at 8-00 a.m. Outside the Police Station, formal F.I.R. Was recorded at 8-25 a.m., complainant Hashim is the real father of deceased Sikhawat. According to the F.I.R. Two accused caught hold of the deceased from legs while the third gave Toka blows on his head and he was identified in the light of "Lantern" and motive given in the F.I.R. Was that ten months prior to the occurrence one Nawaz alias Maju son of Dost Muhammad had a dispute with the complainant party due to which the deceased was done to death. It was further alleged in the F.I.R. That they had no enmity with any body else and some unknown person had committed the murder of his deceased son. Later on, the complainant filed a private complaint in which a new motive was introduced wherein it was stated that the accused had suspicion about the deceased having illicit relations with their relative Perveen Akhtar daughter of Dost Muhammad. Even this motive was never proved by the prosecution during the trial. According to the prosecution case, appellant along with others armed with Toka, hatchets and .12 bore gun came there; that the accused removed quilt from the face of Masoor Shah, P.W. And told him to remain silent and gave him butt blows. According to the prosecution case, accused Mazhar Iqbal, Haq Nawaz and Shaukat Ali, appellants inflicted numerous blows with hatchets and Toka on the person of deceased Sakhawat at his head and face but according to the postmortem report conducted by Dr. Muhammad Azam Akhter Gill, Medical Officer (CW1) there is only one injury on the person of the deceased. So, ocular account is fully contradicted by the medical evidence. No Identification Parade was held in this case. Even nothing incriminating was recovered from the appellant. Three co-accused of the appellant, namely, Mazhar Iqbal, Haq Nawaz and Nausher were acquitted from the case and neither the State nor the complainant filed appeal against their acquittal. The appellant was found innocent during the investigation. The Lantern in question was never taken into possession by the police nor the same was produced by the prosecution during the trial. The case of the appellant cannot be distinguished from the three acquitted accused. There is yet another aspect of the prosecution case. In the F.I.R. The occurrence was stated to have taken place at "Fajarwela" while in the complaint it was stated to be happened at 2-00 a.m. Meaning thereby that the prosecution case is full of A doubts. It is settled proposition of law that when on the same set of evidence some accused persons are acquitted from the case then strong and independent corroboration is required to convict the other accused persons which is very much lacking in this case.
8. After having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt to sustain conviction. Resultantly; this appeal is allowed, the impugned judgment is set aside and the appellant is acquitted from the case. He shall be released forthwith if not required to be detained in any other case.