' HASNAT AHMAD KHAN, J.---Vide judgment, dated 26-7-2002 passed by a learned Addl. Sessions Judge Khanewal, Shaukat Hayat and Muhammad Jahangir appellants were found guilty for committing Qatl-eAmd of Wakeel Ahmad, convicted under sections 302(b)/34, P.P.C. And both of them were sentenced to suffer imprisonment for life. They were also directed to pay Rs,50,000 each to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or in default thereof to further undergo simple imprisonment for six months. Both the appellants were also convicted under section 201/34, P.P.C. And sentenced to three years' R.I. Each and a fine of Rs,5,000 each or in default thereof to further undergo two months' S.-I. Each. All the sentences were directed to run concurrently. Benefit of the provisions of section 382-Cr.P.C. Was also extended to the appellants.
2. Shorn of unnecessary details, the facts of the case as narrated in the F.I.R. No,99, dated 20-4-2001 (Exh.P.D.) lodged at the instance of Nazir Ahmad complainant are that on 8-4-2001 Wakeel Ahmad (deceased) brother of the complainant was grazing flock of goats and sheep in the vicinity of Chak No,20/8-BR. At that time Abdul Waheed (given up P.W.) and Alamgir (P.W.6) were also present there. At about 4-00 p.m. Shaukat Hayat and Jehangir appellants who also used to graze their goats, reached there and requested Wakeel Ahmad to accompany them for some urgent piece of work. Wakeel Ahmad deceased accompanied the appellants after having handing over his goats to Abdul Waheed (given up P.W.) but did not return till night, which statedly worried the complainant who in the company of Noor Muhammad visited Shaukat Hayat appellant with a view to inquire about the whereabouts of his brother but failed to receive any reasonable reply. The complainant further alleged that on 12-4-2001 he came to know that the local police had found a dead-body in the canal near "Pull Bangla" within the area of Chak No, 19/9-R whereupon he along with some others reached the hospital, where the dead-body was lying and identified the same as that of his brother Wakeel Ahmad. The complainant went on to state that he had strong suspicion that his brother had been murdered by the appellants. According to the complainant motive behind the occurrencewas that some days prior to the occurrence goats of Wakeel Ahmad deceased were mixed up with those of the appellants who had refused to return the said goats which were subsequently identified by Wakeel Ahmad deceased who demanded the same from the appellants upon which hot words were exchanged between them. Hence, the case was registered.
3. It is pertinent to mention here that before lodging of the F.I.R. Adead-body was discovered floating in the canal, as mentioned above, on the basis of information imparted by Noor Ahmad (P.W.7) and the dead-body was taken into possession by Muhammad Yousaf A.S.-I. (P.W.4) who prepared the rough site-plan of the spot from where the dead-body was recovered (Exh.P.F.) as also the inquest report (Exh.P.C,) and sent the dead-body for postmortem examination through Khizer Hayat Constable No,696.
4. On 20-4-2001 Nazir Ahmad complainant appeared before Muhammad Yousaf A.S.-I. (P.W.4) and got recorded his statement (Exh.P.G.) on the basis of which formal F.I.R. Was registered at the police station. The said A.S.-I. Visited the spot i,e, the place from where the dead-body was recovered and recorded the statements of the P.Ws. The investigation was thereafter transferred from him to Javaid Ahmad Khan S.-I./S.H.O. Who arrested the appellants on 5-6-2001. During the investigation no incriminating material was recovered at their instance. The case was thoroughly investigated but the appellants were found innocent. However, as the complainant was adamant, the accused were challaned to face trial.
5. Charge was framed against the appellants under sections 302/34, P.P.C. To which they pleaded not guilty and claimed to be tried.
6. At the trial the prosecution, in all, produced seven witnesses.
' Dr. Muhammad Umar Farooq who had conducted post-mortem examination on the dead-body of Wakeel Ahmad deceased appeared as P.W.1 and proved the post-mortem report (Exh.P.A.).
Besides that he proved injury statement (Exh.PB) and inquest report (Exh.PC). According to the said doctor the detail of injuries received by Wakeel Ahmad deceased was as under:-- "No apparent injury was found on his body. Tongue was protruded from his month. On dissection, hyoid bone was fractured and neck loosened between 3rd and 4th survical vertebrae. In thorax, walls, ribs were decomposed, plaeurae, lynranx, trachea, right lung, left lung pericardium, heart and blood vessels were partially decomposed. In abdomen, walls, peritoneum, pharynx, diaphragm, stomach, intestines, liver, spleen, kidneys, urinary bladder and organs of generation werepartially decomposed. Stomach contained little amount of semi-digested food, small intestine contained little amount of digested food, large intestine contained faecal matter."
' In the opinion of the doctor, apparent cause of death was due to throatling. Time between injuries and death was immediate and between death and post-mortem was about four days.
' Hameed Arshad A.S.-I. Who had registered the formal F.I.R. (Exh.P.D.) entered the witness box as P.W.2. Maqsood Ahmad, who along with Noor Muhammad had discovered the dead-body of Wakeel Ahmad floating in a canal appeared as P.W.
3. Muhammad Yousaf A.S.-I.Appeared as P.W.4 to depose that he had recorded the statement (Ex.P.E.) of Noor Muhammad regarding information about the dead-body of Wakeel Ahmad, deceased. Besides that he proved rough site-plan (Exh.P.F.) and statement of complainant (Exh.P.G.), as a result of which formal F.I.R. Was registered as Exh.P.D. Nazir Ahmad complainant appeared as P.W.5 to depose about the ocular account of the occurrence as also motive part of the story. Alam Din P.W.6 appeared as witness of last seen. Noor Muhammad entered the witness box as P.W.7 to depose about the recovery of dead-body of Wakeel Ahmad deceased from the canal. After producing the said witnesses, the prosecution closed its evidence.
7. At the end of prosecution evidence both the appellants made statements under section 342, Cr.P.C. When questioned as to why the P.Ws., had deposed against him and why this case against him, Shaukat Hayat appellant replied as under:-- "P.Ws., have deposed falsely against me because of their close relationship with the complainant and the deceased. The case against me is absolutely false and has been registered on the basis of afterthought story and after preliminary inquiry. I have no motive to commit the murder of the deceased. The complainant has involved me in this case without any proof and cogent reason on the basis of misunderstanding and local party friction. Moreover, I have been involved in this case merely on the basis of presumption, nor any kind of direct evidence is available against me and the factum of my involvement on the basis of presumption has been proved during successive investigation. I am innocent in this case."
' Jehangir appellant in response to the said question made a similar reply. The appellants also produced Javaid Ahmad Khan S.-I./I.O. As D.W.1. After tendering F.I.R. As Exh.D.A.The appellants closed their defence. After conclusion of the trial, both the appellant were found guilty, hence they were convicted and sentenced as mentioned above.
8. In support of this appeal, learned counsel for the appellants has contended that it is a case of blind murder; that there is no direct evidence against the appellants to prove their culpability and that the prosecution's case is entirely based upon the circumstantial evidence. While explaining his argument, the learned counsel has submitted that the prosecution's evidence is based upon last seen evidence, motive and medical evidence. According to him the prosecution had miserably failed to prove the story of motive as set up by them. So far as the medical evidence is concerned, he has contended that the occurrence being unwitnessed, the medical evidence does not advance the case of the prosecution. He adds that there is inordinate delay of 12 days in lodging the F.I.R. Which has not been explained at all. He goes on to state that the dead-body recovered from the canal was not that of Wakeel Ahmad and it was of some Safdar Bhatti whose name was engraved on right forearm of the corpse as per the evidence of Dr. Muhammad Umer Farooq (P.W.1) who had conducted post-mortem examination on the same. Learned counsel further maintains that during the investigation both the accused were found innocent. On the basis of the said submissions, he has prayed for the acquittal of both the appellants.
9. Conversely the learned counsel for the State has supported the conviction and sentences awarded to the appellants by contending that the prosecution has fully proved its case by producing the complainant (P.W.5) and Alam Din P.W.6 who had lastly seen the deceased in the company of both the appellants whereafter the deceased never returned back. He adds that the prosecution story is supported by the medical evidence as well as motive part of the story.
10. Learned counsel for the parties have been heard and record has been perused with their assistance.
11. At the very outset it has been observed that it is a case of blind murder which is entirely based upon circumstantial evidence which is mainly based upon the evidence of last seen provided by Nazir Ahmad P.W.5 and Alam Din P.W.6. It is established law that circumstantial evidence is always considered to be a weak type of evidence. After critically analyzing the evidence of P.W. 5 and P.W.
6, I am not inclined to rely upon the same as the same has not been found to be trustworthy. Main reason for discarding said evidence is that according to the complainant and the other witnesses, Wakeel Ahmad deceased was allegedly taken away by the appellants on 8th of April, 2001 and since that day he (deceased) went missing but Nazir Ahmad complainant did not bother to report to the police regarding the abduction of his brother till 12th of April on which date he got information regarding the recovery of the corpse of some deceased. The complainant allegedly went to the hospital and identified the dead-body as that of his brother Wakeel Ahmad but again he did not make any move for lodging the F.I.R. Till 20th of April, 2001. Unexplained delay of 12 days in lodging the FIR. Makes the prosecution story hazy and doubtful.
12. I have further observed that the prosecution has not proved the motive part of the story. No witness had been produced to prove motivating factor behind the occurrence According to the prosecution a few days before the alleged occurrence hot words were exchanged between the appellants and the deceased on a dispute of mixing up of a goat owned by the deceased in the flock of goats of the appellants but nobody had appeared in the witness box to prove the occurrence of motive. During the investigation also said motive could not be proved as is evident from the evidence of the Investigating Officer namely, Javaid Ahmad Khan S.1 who had appeared as D.W.1 and had stated that both the appellants were found innocent during the investigation. As far as the medical evidence is concerned that cannot advance the case of the prosecution inasmuch as the occurrence was unwitnessed one. Besides that, P.W.1 who had conducted the post mortem on the corpse which was recovered from a canal had deposed that word "Safdar Bhatti" was written/engraved on the right forearm of the corpse. The said fact also casts doubt about the recovered dead-body to be that of Wakeel Ahmad as claimed by the prosecution. This doubt gets support from the factor that according to the said doctor all the joints of the deceased were loosened which means that the deceased might have died much earlier when the corpse was recovered from the canal .
13. There is yet another factor causing serious doubt regarding the involvement of the appellants in this case as during the investigation, Nazir Ahmad P.W. Had stated that his brother had been murdered by Nazim alias Najja and Moazam alias Bobi in connivance with the appellants. The defence had brought on record F.I.R. No, 277, dated 8-10-2001 registered under section 324/34, P.P.C.
At Police Station Talamba Distt. Khanewal at the instance of one Mauzam Ali alias Bobi against Nazir Ahmad present complainant and Alam Din P.W. The motive of the said occurrence was stated to be that Nazir Ahmad complainant had doubt that his brother had been murdered by the said Mauzam Ali.
14. In nutshell the prosecution story has been found to be doubtful, benefit of which has to go to the appellants. It is well - settled law that it is better to err in acquittal rather than to err in conviction.
Reliance in this regard is placed upon the case of Tahir Khan alias Niazi v. State 2005 YLR 2220.
Consequently, this appeal is accepted. The conviction and sentences awarded to the appellants are setaside and they are acquitted of the charge. They are set at liberty. They be released from jail forthwith if not required to be detained in any other case.