' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,491 of 2001 filed by Abdul Latif, appellant, who was convicted under section 302(b), P.P.C. And sentenced to death with further direction to pay Rs,50,000 as compensation, in default R.I. For two years, by learned Additional Sessions Judge, Faisalabad vide judgment, dated 15-3-2001.
' Murder Reference No,173 of 2001 for confirmation of death sentence or otherwise shall also be replied through this single judgment.
2. Occurrence in this case had taken place 5-20 p.m. On 26-2-2000 at a distance of 18 kilometers from Police Station Hujra Shah Muqeem District Okara while the matter was reported to the police at 8 p.m. On the same night by Muhammad Sharif, complainant through written complaint Exh. P.B.
And the formal F . I. R. Exh. P.B. /1 was recorded at 8-50 p.m. By Irshad Hussain, Head Constable.
3. Briefly stated the facts of the case are that on 26-2-2000 at 5-20 p.m., Latif armed with hatchet, Imran armed with Kassi and Muhammad Ishfaq armed with rifle raised Lalkara and as a consequence, thereof, Muhammad Ishfaq accused took away Muhammad Ashraf son of the complainant towards an old well. There, Muhammad Latif accused gave a hatchet blow on the backside of neck of Muhammad Ashraf. After that, Imran accused gave a blow with Kassi, which landed on the neck towards backside of Ashraf. The neck of Ashraf was chopped from the body.
Muhammad Ishfaq pushed the dead body into the old well. It was further alleged in the F.I.R. That Muhammad Sharif complainant, Barkat Ali, brother of the complainant and Mst. Bashiran wife of the complainant brought out Muhammad Ashraf but he had succumbed to the injuries.
' The motive alleged was that 5/6 months prior to the occurrence, the complainant had purchased land from Latif accused and taken possession thereof. After that Latif intended to get possession back but the complainant asked for the return of his money and that due to this grudge, the accused committed the occurrence.
4. Investigation of the case was taken over by Muhammad Tufail S-I. (P.W.11). He after receipt of information, proceeded to the place of occurrence, recorded statement of the complainant Muhammad Sharif, inspected the dead body, prepared the injury statement Exh.P.J., inquest report Exh.P.K., took into possession the blood-stained earth vide memo. Exh.P.A. And then the investigation was conducted by Muhammad Hussain Bhatti S-I. (P.W.10). He arrested Abdul Latif, Imran and Ishfaq accused on 10-4-2000. Abdul Latif accused while in custody on 17-4-2000 led the police to the recovery of hatchet. P.1 that was taken into possession vide memo. Exh.P.C. Imran accused also got recovered Kassi P.2 that was secured vide memo. Exh.P.D. After completion of all formal investigation, all the three accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 12 witnesses in all. Then the learned Public Prosecutor tendered in evidence reports of the Chemical Examiner Exh.P.M, Exh.P.N., Exh.P . P, reports of the Serologist Exh.P.Q., P.R. And P.S. And closed the case of the prosecution. Statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded false implication. After conclusion of the trial, Ishfaq accused was acquitted while Abdul Latif, the present appellant was convicted and sentenced as stated above. Since Imran was declared juvenile, his case was separated.
6. Learned counsel for the appellant submits that prosecution has failed to prove the motive inasmuch as the Investigating Officer while appearing before the trial Court admitted that no other evidence was produced by the prosecution except the two eye-witnesses. Further submits that both the P.Ws. Are interested and inimical and interested. Elaborating his submission, learned counsel submits that Muhammad Sharif, complainant (P.W.2) is father while Barkat Ali (P.W.3) is brother of P.W.2. It is submitted that there is conflict between ocular account and the medical evidence. In the F.I.R., Latif appellant was attributed only one injury on the person of the deceased but before the trial. Court, the P.Ws. Attributed two injuries on the person of the deceased to Latif, appellant.
' Learned counsel submits that the injury attributed to Imran accused also landed on the neck of the deceased where the injury of the appellant landed but Imran was acquitted. According to learned counsel, case of the present appellant is at par to that of his acquitted co-accused Imran.
Further submits that the doctor who conducted post-mortem examination on the dead body of the deceased submitted that occurrence' could have taken place at 10-30 p.m. On the day of occurrence so it was an unwitnessed occurrence; hatchet was recovered on the pointation of the appellant 50 days after the occurrence, so the same could not have been blood stained, the well where the dead body of the deceased was lying 12 to 14 feet, so it was not possible for a single man to bring out the dead body of the deceased and that the Investigating Officer did not take into possession either fertilizer, the fertilizer bag or the Kassi from the spot. Concluding his submissions, learned counsel submits that the appellant is entitled to acquittal.
7. Learned counsel for the State submits that the occurrence had taken place in the land owned by the complainant, so his presence at the spot was natural. Further submits that the occurrence had taken place in broad-daylight and that the clothes of the deceased were stained with blood and mud. He supports the judgment of the trial Court.
8. We have heard the learned counsel for the parties and have gone through the record with their able assistance. According to case of the prosecution, occurrence had taken place at 5-20 p.m. On 26-2-2000. It was the month of February when the sun sets at the time when the occurrence had taken place and the winter season is on its peak. The F.J.R. Was recorded at the spot. Nobody went to the police station to inform the police, The case of the first informant is that the police came at the spot on its own when the father and uncle of the deceased were present at the spot.
' There are three injuries on the person of the deceased. According to F.I.R., one injury each was caused by appellant and Imran acquitted accused but before the trial Court, both the eyewitnesses attributed two injuries to the appellant only to bring in line the ocular account with the medical evidence as after post-mortem examination, the prosecution came to know that there was three injuries on the person of the deceased. There could have been doubt in mind of the eyewitnesses if the, number of the injuries on the person of the deceased could have been much more in number.
' It is correct that the occurrence had taken place near the house of the complainant but the question arises whether the eye-witnesses were present at the spot or not. Had they been present at the spot. They could not have committed any mistake in ascribing the number of injuries on the persons of the deceased. None of the blood relations of the deceased allegedly being present at the spot but not going to the police station and the variation in the number of injuries on the person of the deceased makes it succinctly clear that the eye-witnesses were not present at tjie spot at the time of occurrence. The doctor who conducted post-mortem examination on the dead body of the deceased had stated in cross-examination that duration of death and post-mortem within 24 hours and that the death might have occurred on 26-2-2000 at 10-30p.m.
' According to case of the prosecution, Imran co-accused of the appellant caused an injury with Kassi, which landed on the backside of neck of the deceased. The injury caused by Latif appellant with hatchet also landed on the backside of neck of the deceased. The case of both the accused was thus on similar footing. But, Imran was acquitted by the trial Court. Appeal filed by the complainant against the acquittal of Imran was dismissed by a DB of this Court.
' The hatchet was got recovered by the appellant after . 50 days of the occurrence so it was not possible that even after this much lapse of time, the hatchet was still blood-stained. So, we disbelieve the recovery of hatchet on the pointation of the appellant.
' The prosecution to support the motive has produced no solid evidence. Even the Investigating Officer has concluded that no evidence was produced by the prosecution to prove the motive.
' It has come on record that the well from where the dead body of the deceased was taken out was 12/14 feet in depth so.It was not possible for a single man, that is Muhammad Sharif, complainant to bring out the dead body of the deceased which was stained with mud.
' Having analyzed the prosecution evidence on record; we are of the considered opinion that the eye-witnesses were not present at the spot, there is variation in between the ocular account and the medical evidence, motive was not proved and the recovery was also doubtful. Resultantly, the prosecution having failed to prove its case against the appellant, the benefit of doubt is extended in favour of the appellant apd he is acquitted of the charge. The appeal filed by the convict appellant is accepted and the conviction and sentence recorded against him by the trial Court is set aside. The appellant is in jail and shall be released forthwith, if not required to be detained in any other case.
' The death sentence is not confirmed and murder reference is replied in the negative.