HASNAT AHMAD KHAN, J. - This judgment will dispose of Crl. Appeal No. 624/02 filed by Muhammad Akram son of Allaha Diwata 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 Qatl-e- amd of Mst. Maryam Bibi wife of the complainant and was convicted and sentenced under Section 302(b), P.P.C, 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 was tried by the learned Addl. Sessions Judge, Vehari, alongwith 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 PWs, his case was separated vide order dated 21.5.2001. Thereafter, Mazhar Hussain and Asghar Hussain co-accused were tried by Ch. Saeed Ahmad, 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 PW-4 made a complaint (Ex.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 alongwith 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 the injuries found on the dead-body of the deceased was given as under:-
(1) An incised wound measuring 1 cm x 4 cm upon the neck, near the ear.
(2) As 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 check.
(4) Stab wounds, 10 in number at different sides .On abdomen.
(5) An incised wound 2 and half 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, F.C. Appeared as PW-2 and deposed about receipt and depositing of blood-stained earth in the office of Chemical Examiner. Meraj Din, Draftsman, appeared as PW-3 and proved site plan Ex.PC, Ex.PC/1 and Ex.PC/2.
Muhammad Jamil complainant appeared as PW-4 and supported the ocular version furnished by him in the F.I.R. Muhammad Arif son of the complainant appeared as PW-6 on 28.10.2000 and supported the ocular version. He was recalled the cross-examined on 4.6.2002. Besides the ocular version, he proved the recovery proceedings of bloodstained Chhurri (P5) at the instance of the appellant vide recovery memo. Ex.PF. Syed Muhammad Shafi appeared as PW-8 and supported the recovery of roll of cloth of "Latha" P6 vide Ex.PG at the instance of Muhammad Akram appellant.'
Muhammad Saleem appeared as PW-9 and proved the recovery of blood-stained earth through recovery memo. Ex.PM. He also deposed about identification of the dead-body of Maryam Bibi deceased. Dr. Muhammad Munir appeared as PW-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 PW-11 and verified the handwriting and signatures of Abdullah Qadri, S.I. (since murdered) and Malik Rafique, S.I. Who were the Investigating Officers of this case. Muhammad Shahid appeared as PW-12 and proved recovery memo. Ex.PJ. After producing the reports of Chemical Examiner i.e. Ex.PR and Ex.PT and reports of Serologist Ex.PS and Ex.PU learned D.D.O (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, PWs 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 un witnessed 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 had prayed for the acquittal of the accused.
9. On the other hand, learned counsel for the complainant has 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. 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 being 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 weakness 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 observation 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 alongwith other prosecution witnesses saw three unidentified persons' coming 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 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 V2 kilometer from the said shop. Moreover, the complainant made dishonest improvements while appearing as PW-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 an 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 PW-12 but did not utter even a single word about recovery of weapon of offence at the instance 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 on 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 discussion 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 released from jail forthwith if not required in any other case.