TARIQ SHAMIM, J.-Qasim Ali appellant along with his co-accused Tahzeeb Hassan and Mst. Irshad Bibi was tried by the learned Additional Sessions Judge, Sheikhupura, in case F.I.R. No.38 dated 17-1- 2002 registered under sections 302/364/34, P.P.C. With police station Saddar Sheikhupura. The said learned Judge while acquitting both the coaccused, convicted the appellant under section 302(b), P.P.C. For the murder of Zamir Haider and sentenced him to imprisonment for life as Tazir along with payment of compensation of Rs. 1,00,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. The benefit of section 382-B, Cr.P.C. Was extended to the appellant. Feeling aggrieved, the appellant has filed the instant appeal.
2. The brief facts of the case as disclosed in the F.I.R. (Exh.PA/1) recorded by Mukhtar Ali Alvi, S.-I./ S.H.O. At the instance of Gulzar Hussain complainant are that he along with Ghulam Murtaza and Nawazish went to the house of his son Zamir Haider deceased situated at Jahangir Town, Sheikhupura. The accused Irshad Bibi, Qasim, Boota, Tahzeeb and ah unknown person knocked at the door of the house and took Zamir Haider along with them on the pretext to return the money advanced to them by the deceased for sending him abroad for, employment. The son of the complainant did not return at night and therefore, the complainant and others started a, search for him in the morning. They saw people gathered near the Railway track and on reaching there the complainant and others saw the dead body of the deceased Zamir Haider lying there. The complainant lodged the F.I.R. Against the accused for committing the murder of his son.
3. ' Mukhtar Ali Alvi, S.-I./S.H.O. (P.W. 12) recorded the' complaint Exh.PA on the statement of the complainant and dispatched the same to the police station on the basis whereof formal F.I.R.
(Exh.PA/1) was registered. During investigation he recorded the statements of the witnesses, completed all other legal formalities regarding investigation and submitted challan against the appellant and other co-accused to face trial.
4. At the trial, the prosecution produced as many as thirteen witnesses. Khadim Hussain A. S.-I.
Scribe of the F.I.R. Appeared as P.W.l, Dr. Israr-ul- Haque, Senior Medical Officer; DHQ Hospital Sheikhupura appeared as P.W.2. He conducted the post-mortem examination on the dead body of Zamir Haider. Khalid Javed Constable appeared as P.W.3, Ghulam Jaafar Head Constable/Moharrir of the police station appeared as P.W.4, Muhammad Raiz Patwari, who prepared site-plan, appeared as P.W.5, Muhammad Irshad Constable got recorded his statement as P.W.6, Binyamin Constable, a witness of recovery of Chhuri P.l at the instance of the appellant which was sealed into a parcel vide memo. Exh.PG, appeared as P.W.7, Muhammad Mansha Constable, who escorted the dead body of the deceased to the mortuary, appeared as P.W. 8, Muhammad Saleem S.-I., appeared as P.W.9, Gulzar Hussian, complainant of the case, appeared as P.W. 10 and reiterated the story of the F.I.R., Ghulam Murtaza appeared as P.W. 11 and supported the prosecution case as narrated by the complainant. Mukhtar Ali Alvi S.-I./S.H.O. Police Station City Muridke, who thoroughly investigated the matter, appeared as P.W. 12 and Saeed Ahmad, who identified the dead body of Zamir Haider at the time of autopsy, appeared as P.W.13.
5. After closure of prosecution evidence the learned .Trial Court recorded statements of the appellant and other co-accused under section 342, Cr.P.C. The appellant in reply to the question "why this case against you?" stated "P.Ws. Are inter se related and deposed falsely against me."
6. Upon conclusion of the trial learned trial Court heard the arguments of the parties and pronounced the conviction and sentence as stated above against the appellant, hence this appeal.
7. The learned counsel for the appellant contended that the entire prosecution case was based on evidence of last seen which was not credible; that the motive as asserted by the petitioner could not be proved at the trial; that the recovery allegedly effected at the instance of the appellant was not reliable as no independent witness was produced at the trial to prove the same; that the recovery was effected after more than three months of the occurrence and thus, it was not worthy of any credence and that two co-accused of the appellant had been acquitted by the learned trial Court on the basis of the same set of evidence on which the appellant had been convicted and therefore, the appellant was also entitled to promised to be returned by Mst. Irshad be acquitted.
8. The learned Deputy Prosecutor General Punjab representing the State contended that the prosecution witnesses had no enmity to involve the appellant in a false case;, that the evidence of last seen was fully supported by the medical evidence and corroborated by the, evidence of recovery of Chhuri at the instance of the appellant and that the judgment passed by the learned trial Court was well reasoned and based on proper appreciation of evidence.
9. I have heard the learned counsel for the parties and have gone through the entire evidence with their able assistance.
10. The F.I.R. Was lodged after the dead body of Zamir- Haider, son of complainant, was discovered near Killa Amber Singh village. It was and unseen occurrence and the entire prosecution case rests on circumstantial evidence. According to Gulzar Hussain, P.W.10 and Ghulam Murtaza, P.W.Ll, they had last seen the deceased leaving his house in the company of the appellant and his co-accused at 8-00 p.m. On 16-1-2002. The following day in the morning they discovered the dead body of the deceased near the railway tracks and on a written complaint Exh.PA, formal F.I.R., Exh.PA/1 was recorded. The motive for the occurrence was stated to be the demand of the. Deceased for the return of Rs.50,000 advanced by him to Mst. Irshad Bibi for the purpose of sending him abroad for employment. The money had been borrowed by the deceased from his father/ the complainant of the F.I.R., who had. Been invited by .The deceased in order to pay back the money
11. It has been noticed from the statements of the witnesses that the house of Irshad Bibi was adjacent to the house of the deceased yet when the deceased did not return during the night, no effort was made by Gulzar Hussain P.W. 10 to contact Mst. Irshad Bibi. Both witnesses, P.W. 10 and P.W.Ll, have admitted that they were residents of Okara which was 70/80 miles from the place of occurrence. The explanation provided for their presence in the house of the deceased on 16-1-2001 is neither plausible nor proved on the record. The entire prosecution story to the extent of motive has been disbelieved by the learned trial Court thus, creating serious doubt about presence of the witnesses at the police of occurrence on 16-1-2002.Ghulm Murtaza P.W.Ll stated that he had arrived with the complainant and had returned to Okara the same day which implies that the witnesses had arrived at Sheikhupura on 16-1-2002 and not on 16-1-2002. In his statement before the learned trial Court Mukhtar Ali, S.-I./S.H.O. P.W. 12, who had investigated the case stated that the prosecution witnesses had been informed telephonically about the recovery of the dead body of the deceased whereafter they arrived at Sheikhupura from Okara. The said witness further stated that no one had appeared before him from the locality on the first day of his investigation who stated before him that he had seen the deceased in the company of the accused alive. In the aforesaid circumstances, it is manifestly clear that the evidence of last seen furnished by P.W. 10 and P.W.Ll is neither credible nor reliable.
12. It is stated in the F.I.R. That the accused Mst. Irshad Bibi had receive Rs.50,000 from the deceased on the pretext of sending him abroad for employment and the murder was committed by the accused as he had been demanding return of the money. The complainant P.W.10 admitted that no person of the accused family was residing abroad. It has also been admitted by the said witness that the amount in question had not been given to Mst. Irshad Bibi by the deceased in his presence. Further, no date or time has been mentioned as to when and where the transaction took place. The Investigating Officer P.W.12 in his cross-examination admitted that he had not made any enquiry regarding receipt of the disputed amount by Mst. Irshad Bibi from the deceased. He further stated that he did not investigate as to whether Mst. Irshad Bibi had any acquaintance or relative living abroad. To a question put by the defence the witness admitted that the motive as stated in the F.I.R. During investigation was found to be false and that there was another motive for the occurrence which was illicit relations between Mst. Irshad Bibi and the deceased. It has been noticed that neither the Investigating Officer cited or examined any witness with regard to the said motive nor the prosecution has produced any evidence in support thereof before the learned trial Court. In the above noted circumstances, it can be safely said that the motive was concocted by the complainant, which was rightly rejected by the learned trial Court.
13. The crime weapon Chhuri P.l was recovered at tfce instance of the appellant from an open field,after more than three months of the occurrence. The witnesses of recovery are Binyamin Constable P.W.17 and the Investigating Officer P.W.12. Apart from other infirmities in the recovery proceedings there is blatant disregard of the provisions of section 103, Cr.P.C. This makes the recovery of the weapon of offence highly doubtful and not worthy of any credence. Even otherwise, the evidence of recovery has corroborative value only and cannot be itself prove the culpability of the accused in a crime. It is worth noting that the learned trial Court has convicted the appellant only on the basis of evidence of recovery of Chhurri as otherwise the case of the appellant is at par with the acquitted co-accused Mst. Irshad Bibi and Tahzeeb. The learned trial Court while recording acquittal of the co-accused observed that their case was on a different footing than the appellant as no role had been ascribed to the co-accused by the prosecution. The learned Judge failed to appreciate that there was not an iota of evidence on the record to even remotely suggest that the appellant had been attributed any specific role by the prosecution.
14. . In so far as the medical evidence is concerned, suffice it to say that in the peculiar facts and circumstances of the case j it is not of much importance as it can only corroborate eye-witness account which is conspicuously non-existent."
15. For what has been discussed above I am of the considered view that the prosecution has failed to prove its case against the appellant beyond a reasonable doubt. Consequently, I allow this appeal j and set aside the conviction and sentence awarded to the appellant. He is acquitted of all the charges and shall be released from the jail forthwith if not required in any other case.