' BASHIR A. MUJAHID, J.---Farooq Ahmad and Ghulam Murtaza appellants have challenged judgment, dated 24-3-2003 passed by learned Additional Sessions Judge, Faisalabad whereby they after having been tried under sections 302/201/34, P.P.C. In case F.I.R. No.274 of 2001, dated 15- 10-2001 registered with Police Station Dijkot, District Faisalabad at the instance of Nemat were convicted under section 302(b), P.P.C. For murder of Abid Hussain and sentenced to imprisonment for life. They were also ordered to pay compensation in the sum of Rs.1,00,000 (Rupees one hundred thousand only) each to the legal heirs of the deceased under section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C. Was also given to the appellants. It is pertinent to be mentioned here that Yousaf Masih co-accused of the appellants was acquitted of the charge as no evidence was produced against him by the prosecution. The appellants were, however, acquitted of the charge under section 201, P . P. C .
2. Brief facts of the prosecution case are that Nemat Ali P.W.4 got F.I.R. Exh. PB recorded on the basis of statement Exh.PB/1 before Hamid Masih S.-I. P.W.18 alleging therein that he was owner of 6-1/4 acres land in Square No.10 of Chak No.272/RB. That on 14-10-2001 his son Abid Hussain went to irrigate land on a bicycle as there was his turn of water from 7-10 p.m. To 9-45 p.m. But did not return till morning. A search was made and dead body of Abid Hussain was found on the raw road.
His bicycle was also lying nearby. He also stated that 2-1/2 years ago Abid Hussain had abducted the daughter of Yousaf Masih and a case was registered wherein Abid Hussain and one Yasin were challaned. Farooq Ahmad accused-appellant used to support Yousaf Masih. The complainant suspected that death of his son was caused by Yousaf Masih, ' Farooq Ahmad and an unknown person by a fire shot of .12 bore gun. Hamid Masih S.-I. P.W.18 after recording the statement of the complainant sent the same to the Police Station for registration of formal F.I.R. He examined the dead body and prepared injury statement Exh.PD and inquest report Exh.PE. He also prepared rough site-plan Exh.PJ. He secured blood-stained earth from the place of occurrence through memo. Exh.PG and cycle of the deceased through memo. Exh.PH. Then he dispatched the dead body for autopsy. On the same day he took into possession the last worn clothes of the deceased produced before him through memo. Exh.PA. Thereafter he recorded the statements of the prosecution witnesses under section 161, Cr.P.C. After that investigation of the case was taken over by Ashiq Hussain, S.-I./P.W.19 who recorded the statement of Ashiq Ali P.W.5 and Amdad Ali P.W.6 under section 161, Cr.P.C. Murtaza accused did not join the investigation and he obtained his warrant of arrest. Thereafter investigation of the case was transferred to Khalid Mehmood S.-I. P. W.14 who arrested Farooq Ahmad on 3-11-2001. Ghulam Murtaza A.S.-I. P.W.15 also investigated the case. On 26-3-2002 he arrested Ghulam Murtaza accused and on 9-4-2002 on the pointation of said accused .12 bore gun were recovered from his house along with 10 live bullets.
The case was also investigated by Mehr Nabi Bakhsh Lukk Superintendent Police P.W.16. After completion of the investigation challan was submitted in the Court. The learned trial Court framed the charge which was denied by the accused and they claimed trial.
3. Prosecution produced as many as nineteen witnesses to prove the guilt of accused.
4. Medical evidence was furnished by Dr. Liaqat Ali Rana P.W.B. Who conducted the post-mortem examination on the dead body of deceased and found the following injuries:-- INJURIES:
1. A fire-arm entry wound 3 c.m. x 3 c.m. On the back of left chest, 4-1/2 c.m. From spinal cord, 12 c.m. From the tip of scapula, entering the thoracic cavity with damage to the left . Lung, left lobe and heart, plastic wad was imbedded in the heart, 8 pallets lodged below the skin after fracture of sternum at a level of 7th and 8th ribs.
1.B An exit wound 1/2 c.m. x 1/2 c.m. In front of right chest, close to sternum, 8 c.m. From right nipple for one pallet. Eight pallets and plastic wad were removed and sealed in a phial.
5. The ocular account was furnished by Nemat Ali P.W.4 who supported the version of F.I.R. And narrated the motive of the occurrence as Farooq accused had illicit relations with Mst. Naziran wife of the deceased. Ashiq P.W.5 was real brother of the complainant. He supported the prosecution story as narrated by the complainant and according to him Ghulam Murtaza appellant approached him and confessed his guilt and requested him to effect compromise with Nemat Ali complainant. The accused was directed by this witness to contact Amdad Ali. Amadad Ali P.W.6 was the husband of deceased' sister. According to him Ghulam Murtaza appellant came to him on 9-2-2002 and confessed his guilt and requested him to effect compromise with the complainant.
But he had shown his inability. Hamid Ali P.W.7 was the cousin of the deceased. He had to take the turn from the deceased and on the way to the fields, Farooq Ahmad accused armed with .12 bore gun along with two other unknown persons with semi masked faces met him. He called Abid Hussain at 9-43 p.m. From his field but no reply was received. He took his turn at the fixed time. In the morning when he returned home wife of the deceased came to her and told that at 12-00 or 1- 00 (in the night) Farooq and two others had come to her and directed her to open the door. They told her that they had murdered Abid Hussain. Madad Ali P.W.10 stated that during the night intervening 14th and 15th of October, 2001 he along with his cousin Naseer were standing near the house of the accused Farooq Ahmad handed over his .12 bore gun to Ghulam Murtaza who kept the same in his house. Thereafter they sat in a Suzuki car and went away to unknown place. In the morning he along with Naseer went to Karachi by bus and returned from Karachi after six months and narrated this fact to the complainant.
6. Apart from above witnesses Muhammad Yaseen FC P.W.1 had escorted the dead body for post- mortem examination. Abbas Ahmad H.C. P.W.2. Recorded the formal F.I.R. Exh.PB/1 on the basis of statement of the complainant Exh. PB. Tanvir Ahmad FC P. W.3 deposited the parcels at the office of Chemical Examiner. P.W.9 Allah Yar Patwari had prepared the site-plan of the place of occurrence.
Sabir Hussain P. W.11 attested the recovery memos of the articles taken into possession from the spot. Muhammad Alim P.W.12. Attested the recovery memo. Of weapon of crime. Iftikhar P. W.13 identified the dead body of the deceased at the time of post-mortem. The prosecution evidence was closed after tendering in evidence the report of Chemical Examiner Exh.PQ.And that of Serologist Exh.P.R. Thereafter statements of the accused under section 342, Cr.P.C. Were recorded wherein they denied the allegations and claimed innocence. In reply to question No.11 Farooq Ahmad appellant stated as under:-- "I am innocent. In fact, about 4 years ago Yousaf Masih son of Ismail Masih, caste Christian, resident of Chak No.272/RB had got registered a case of abduction of his daughter Kalsoom Bibi against Abid Hussain deceased and one Muhammad Yaseen resident of District Sheikhupura. In those days Yousaf Masih was my servant due to which I supported Yousaf Masih in the aforesaid case. The complainant party nursed grudge against me and in connivance with the police they roped me in this dark night and blind murder as a scapegoat, after a period of three months of the occurrence.
My co-accused Ghulam Murtaza has been involved in this case falsely as he is related to me. On 14-102001 I along with my co-accused Ghulam Murtaza and our relative Muhammad Boota went to the house of Abdul Razzaq son of Irshad and Irshad son of Ibrahim, caste Mughal, residents of Chak No. 207/RB, Sannat Singh Wala at about 4-00 or 5-00 p.m., because Muhammad Boota had to take land on lease from Abdul Rehman, resident of Gulfishan Colony, Faisalabad but said Abdul Rehman did not meet us, so we stayed at night at the house of Abdul Razzaq and Irshad and took meal there. Therefore, we were not present in the village on the night of occurrence. In this connection aforesaid Abdul Razzaq and Irshad appeared before DSP, Mehr Nabi Bukhsh Lukk during the investigation and they offered oath on Holy Quran, that on the night of occurrence I and my co- accused Ghulam Murtaza along with Muhammad Boota were present with them in Chak No.207/RB, Sannat Singh Wala, Faisalabad. That the motive as alleged by the prosecution in the F.I.R. Is totally different from the evidence produced by the complainant party. The P.Ws. Have deposed against us as being related to the complainant as well as the deceased."
7. Similarly in answer to question No.12 Ghulam Murtaza appellant deposed as under:-- "I have falsely been involved in this case as being related to my co-accused Farooq. The P.Ws. Are closely related to the complainant as well as the deceased and due to this relationship they have falsely deposed against me and my co-accused Farooq. On 14-10-2001 I along with my co- accused Farooq, our relative, Muhammad Boota went to the house of Abdul Razzaq son of Irshad and Irshad son of Ibrahim, caste Mughal, residents of Chak No.207/RB, Sannat Singh Wala at about 4-00 or 5-00 P.M., because Muhammad Boota had to take land on lease from one Abdul Rehman, resident of Gulfishan Colony, Faisalabad and we stayed at night at the house of Abdul Razzaq and Irshad, as Abdul Razzaq was not present at home. We took meal there. Therefore, we were not present in the village on the night of occurrence. It was a dark night and blind murder. At about 4 years ago Yousaf Masih son of Ismail Masih, caste Christian resident of Chak No.272/RB Tehsil and District Faisalabad had got registered a case of abduction of his daughter Mst. Kalsoom Bibi against Abid Hussain deceased and one Muhammad Yaseen resident of District Sheikhupura and that in those days Yousaf Masih was a servant of my co-accused Farooq who supported Yousaf Masih in the aforesaid case. Due to that grudge the complainant party in connivance with the Police roped me and my co-accused Farooq as a scapegoat in this dark night and blind murder, after a period of three months of the occurrence".
8. The trial culminated into the conviction of appellants as mentioned above. Hence this appeal.
9. Learned counsel for the appellants has argued that it was an unwitnessed night occurrence and the appellants have been implicated due to suspicion; that the evidence collected during the investigation against them is highly doubtful and unbelievable; that the prosecution witnesses are closely related inter se and their testimony has not been corroborated by independent source, therefore, case against the appellants is doubtful and they are entitled to be acquitted by extending the benefit of doubt.
10. The appeal has been opposed by the learned counsel appearing on behalf of the State.
11. I have heard the learned counsel for the appellants as well as that of State exhaustively and examined the record.
12. Admittedly appellant Ghulam Murtaza was not nominated in the F.I.R. The complainant has shown his suspicion against Yousaf Masih and Farooq appellant due to abduction of daughter of Yousaf Masih. Yousaf Masih has been acquitted by the learned trial Court and his acquittal has not been challenged. Ghulam Murtaza appellant was subsequently implicated by the complainant. He was summoned to join the investigation but he failed to appear on which his warrant of arrest was got issued on 26-3-2002. Evidence against him is only that of Ashiq Ali P.W.5 and Amdad Ali P.W.6.
They stated that he approached these witnesses and confessed his guilt of having committed the murder of Abid Hussain along with Farooq appellant but these witnesses did not take any step for causing his arrest at the time he had made confession before them. The witnesses are closely related to the complainant also they are not persons in authority to help the accused. Therefore, any statement made by Ghulam Murtaza before these witnesses is not reliable and does not connect him with the commission of the crime and it cannot be used against Farooq appellant also. Similarly statement of P.W.10 who stated that after the commission of murder of Abid Hussain both the appellants had come to the house of deceased and informed Mst. Naziran about having committed murder of Abid Hussain appears to be cooked up story. His statement is hearsay and Mst. Naziran has not been examined as prosecution witness. Statement of P.W.7 Hamid Ali that he along with his cousin had seen the accused near the place of occurrence during the night but they went to Karachi in the morning and returned after six months and got their statements recorded is not believable as during this period they never narrated this fact to the complainant or any other prosecution witness. The statement of Ashiq Ali P.W.5 to the effect that he saw Farooq appellant along with two unknown persons and mere recovery of gun on the pointation of Ghulam Murtaza does not connect him with murder of Abid Hussain. Show that he saw Farooq B near place of occurrence therefore, this witness cannot be termed as witness of wajtakar. Motive of illicit relations with Mst. Naziran has also been introduced later on therefore, after reappraisal of evidence I find that the prosecution case has not been established against him beyond shadow of doubt.
Therefore, this appeal is allowed. The conviction and sentence of the appellants is set aside and they are acquitted of charge and ordered to be released if not required in any other case.