' HASNAT AHMAD KHAN, J.---This judgment will dispose of Crl. Appeal No,624/02 filed by Muhammad Akram son of Allah Diwaya appellant who was tried by the learned Addl. Sessions Judge, Vehari in a case F.I.R. No, 7/98 dated 5-1-1998 registered under sections 302/34 P.P.C. With police station City Mailsi for committing Qatal-e-amd of Mst. Maryam Bibi wife of the complainant and was convicted and sentenced under section 302 (b) PPC. For imprisonment for life as Tazir vide judgment dated 28-6-2002. He was also ordered to pay Rs,50,000/- as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default thereof to suffer S.I. For three months. Benefit of section 382-B, Cr.P.C. Was also extended to him.
2. It is pertinent to mention here that initially the appellant wps tried by the learned Addl. Sessions Judge Vehari along with his co-accused namely Mazhar Hussain and Asghar Hussain. But during the trial the appellant claimed himself to be a juvenile and consequently after recording of evidence of six P.Ws. His case was separated vide order dated 21-5-2001. Thereafter, Mazhar Hussain and Asghar Hussain co-accused were tried by Ch. Saeed Ahmed learned Addl. Sessions Judge Vehari and were acquitted of the charge of murder of the said deceased vide his judgment dated 19-10-2001. The case of the present appellant was sent to the learned Sessions Judge, Vehari who after inquiry about the minority of the accused held that Muhammad Akram appellant was major so the trial was again entrusted to the Court of Addl. Sessions Judge, Vehari who proceeded to conduct the trial from the stage when it was separated on 21-5-2001.
3. Briefly the facts of the case are that Muhammad Jamil complainant P.W.4 made a complaint (Exh.PD) to the effect that he had been running a cloth shop in Gulshan Market in the City. On 5-1- 1998 at about 2-00 p.m his servant namely Muhammad Akram (appellant) had returned to the shop after delivering the vegetable at his house situated at Mohallah Tilupura City Mailsi. On the same day at about 5-35 p.m the complainant along with Muhammad Arif and Muhammad Akram, his sons had been allegedly going to his house after closing the shop. When they reached near their house, there was much rush at a nearby shop. They saw three persons coming out from their house. After entering into the house, they saw that all the rooms of the house were locked from inside and the electric bulb was on. They knocked the door of the room, but no one responded.
' They, peeped into glasses of window and found Mst. Maryam wife of the complainant lying dead in the TV Lounge. They entered into the room after breaking the glasses of the window and unlocking the door through Muhammad Akram. They saw injuries on the neck and abdomen of Mst.
Maryam Bibi deceased. The other house hold articles were scattered. The complainant alongwith his sons allegedly raised hue and cry, whereupon other inhabitants of the Mohallah were attracted to the, spot. The complainant further stated that they could identify the accused persons on coming their view.
' During the trial the prosecution produced as many as 12 witnesses to prove its case against the accused/appellant. Dr. Ghulam Mujtaba appeared as P.W.1 and deposed that he had medically examined Muhammad Akram appellant on 26-1-1998 and found the following injuries on his person :-
1. A healing wound 6 cm x 1/2 cm in the middle of palm of right hand. This is incised wound.
2. A healing wound 2 cm x 1/2 cm on the palmer aspect of the thumb of right hand. This is an incised wound.
' Dr. Muhammad Ashraf appeared in the witness-box as P.W.13 and verified the handwriting and signatures of the, lady doctor Tehreem Khalid who had conducted the post-mortem examination on the dead body of Mst. Maryam Bibi. According to the post-mortem report (Exh.PQ) the detail of the injuries found on the dead body of the deceased was given as under:-- I.' An incised wound measuring 1 cm x 4 cm upon the neck near the ear.
2. An incised wound measuring 3 cm x 1 cm on the belly front side. -
3. An incised wound 2 cm x 1 cm skin deep on right cheek.
4. Stab wounds 10 in number at different sides on abdomen.
5. An incised wound 2 1/.2 cm just below left ear going into skin deep.
' According to the post-mortem report death of the lady was due to excessive haemorrhage and damage of vital organs. Ejaz Hussain FC appeared as P.W.2 and deposed about receipt and depositing of blood-stained earth in the office of Chemical Examiner. Meraj Din, Draftsman, appeared as P.W.3 and proved site-plan Exh. P.C., Exh.PC/1 and Exh.PC/2/Muhammad Jamil complainant appeared as P.W.4 and supported the ocular version furnished by him in the F.I.R Muhammad Arif son the complainant appeared as P.W. 6 on 28-10-2000 and supported the ocular version. He was recalled and cross examined on 4-6-2002. Besides the ocular version, he proved the recovery proceedings of blood-stained Chhurri (P5) at the instance of the appellant vide recovery memo. Exh.P.F. ' Syed Muhammad Shafi appeared as P.W.8 and supported the recovery of roll of cloth of "Latha" P6 vide Exh.. P.G. At the instance of Muhammad Akram -appellant.
Muhammad Saleem appeared as P.W.9 and proved the recovery of blood-stained earth through recovery memo. Exh.PM. He also deposed about identification of the dead body of Maryam Bibi deceased. Dr. Muhammad Munir appeared as P.W.10 and deposed about production of last-worn clothes and broken bangles of the deceased before the I.O. Muhammad Yasin Bhatti, S.-I.
Appeared as P.W.11 and verified the hand writing and signatures of Abdullah Qadri, S.-I. (since murdered) and Malik Rafique, S.-I. Who were the Investigating Officer of this case. Muhammad Shahid appeared as P.W.12 and proved recovery memo. Exh.P.J. After producing the reports of Chemical Examiner i.e, Exh.P.R. And Exh.P.T. And reports of Serologist Exh. P.S. And Exh.PU learned DDO
(law) closed the prosecution case.
5. After the closure of the prosecution case the appellant Muhammad Akram was examined under section 342, Cr.P.C. Who in answer to question No,7 replied as under:-- "I am innocent. The P.Ws. Are interested and related with each other"
6. After conclusion of the trial the appellant was held guilty and sentenced as mentioned above.
7. The impugned judgment has been challenged by the appellant through the present appeal.
8. In support of this appeal learned counsel for the appellant has contended that it was a case of unwitnessed occurrence that the ocular evidence has already been disbelieved by the learned trial Court and the appellant has been convicted and sentenced by the learned trial Court on the basis of circumstantial evidence provided in the shape of recovery of blood-stained chhurri as well as roll of cloth of "Latha" at the instance of the appellant. He adds that these pieces of evidence are not believable.
' He maintains that on' the basis of same evidence. Mazhar Hussain and Asghar Hussain co- accused had already been acquitted in an earlier trial and therefore, strong corroborative evidence was required to prove the case against the present appellant but the prosecution had failed to provide such evidence. On the basis of said submissions, he has prayed for the acquittal of the accused.
9. On the other hand learned counsel for the complainant had argued that though the ocular evidence had been disbelieved yet sufficient incriminating evidence in the shape of recovery of blood-stained chhurri and "Thaan ,Latha" at the instance of the appellant was available on the record. Besides that according to the medical evidence, the accused had also received injuries on his hand and therefore, he was rightly convicted and sentenced by the learned trial Court.
10. After hearing the arguments of both the sides and going through the record. I have come to the conclusion that the prosecution case is based upon the ocular evidence recoveries of blood- stained Chhurri and roll of cloth (Thaan Latha) at the instance of the appellant and the injuries found on the hands of the appellant. As far as the ocular evidence is concerned that had already been disbelieved by the learned trial Court. The appellant had been convicted on the basis of circumstantial evidence which was provided in the shape of recovery of blood-stained Chhurri and "Thaan Latha" at the instance of the appellant. Apart from that learned trial Court had awarded the conviction and sentence to the appellant on the ground that the appellant had failed to bring on record any ulterior motive on the part of the complainant for the false involvement of the accused.
The learned trial Court went on to hold that mere statement of the appellant recorded during his statement recorded under section 342 Cr.P.C. Was not sufficient to prove his innocence. The said part of the impugned judgment is against all the norms of justice and the criminal jurisprudence which requires that the prosecution has always to stand on its legs and the falsehood or weekness of the defence cannot be made basis for the conviction of the accused. In this case the ocular evidence has already been disbelieved by the learned trial Court on very valid and sound reasons. I have attended to the observations of the learned trial court in this regard and gone through the prosecution evidence myself which ' reveals that in the F.I.R. It was claimed by the complainant that he along with other-prosecution witnesses saw three unidentified persons coining out of his house.
According to the prosecution version the appellant was working as servant of the complainant and as such was fully known to the complainant and his sons. Had the A appellant been a culprit the complainant and his sons would have definitely identified the appellant at the relevant time. This fact alone demolishes the whole of the ocular version. Besides that during his statement before the learned trial Court the complainant stated that the appellant had left the shop about 20/30 minutes after their departure from the shop. This statement rules out the possibility of the presence of the appellant at the scene of occurrence which was at a distance of 1/2 kilometer from the said shop. Moreover, the complainant made dishonest improvements while appearing as P.W.4 crux of all the discussion is that the ocular evidence was rightly disbelieved by the learned trial Court. As far as recovery of blood-stained Chhurri at the instance of the appellant is concerned the same was allegedly recovered at the instance of the appellant after a month of the occurrence yet it was allegedly found to be blood-stained. Normally after such a long time the blood disintegrates.
Besides that the recovery of Chhurri was allegedly effected from open plot which was not in the exclusive possession of the appellant. Muhammad Shahid who had 'allegedly witnessed the recovery proceedings of said knife appeared as P.W.12 but did not utter even, a single word about recovery of weapon of offence at the stance of the appellant. Therefore, the said piece of evidence is not believable and consequently discarded. Similarly the recovery of roll of cloth (Thaan Latha) is not believable as it was recovered from the shop of the complainant himself and that too after 21 days of the occurrence. As far as the fact of suffering of injuries on the hands of the appellant is concerned that itself cannot become a basis for his conviction. Firstly because according to the doctor who medically examined the appellant after 21 days of the occurrence the said injuries could be result of friendly hands also. Secondly according to the prosecution's own version on the day of occurrence the appellant had returned to the shop of the complainant after providing vegetable etc. At the home of his employer i.e the complainant and it was not the case of the prosecution that at that time he was suffering any injury on his hand. Likewise, it was not the case of the prosecution that after returning from home, he again visited the house of the complainant hence this piece of evidence is also not believable. Occurrence being unwitnessed one medical evidence is of no use for the prosecution.
11. There is yet another circumstance for disbelieving the prosecution story i.e, no motive to commit the murder of the deceased had at all been attributed to the appellant.
12. The crux of all the discussions made above is that the prosecution has miserably failed to prove the case against the appellant hence while giving him benefit of doubt he is acquitted of the charge of murder of Maryam Bibi. He be D released from jail forthwith if not required in any other case.