' MUHAMMAD AHSAN BHOON, J.---This appeal is directed against the judgment, dated 22-11-2003 passed by the learned Additional Sessions judge Shakargarh District Narowal whereby the appellants Iftikhar Ahmad alias Kujja and Munir Ahmad alias Buddha were convicted under sections 302/34, P.P.C. And sentenced them to undergo imprisonment for life each along with compensation of Rs,1,00,000 each to be paid to the legal heirs of the deceased as required under section 544-A, Cr .P.C. Learned trial Court through same judgment acquitted their co-accused namely Khalid alias Khala and Khaleel ur Rehman by extending them benefit of doubt in case F.I.R.
No,324, dated 28-9-2002, offence under sections 302/34, P.P.C. Registered at Police Station, Shakargarh District Narowal.
2. The prosecution story in brief as alleged in the F.I.R. (Exh.P.D./1) lodged on the statement of Muhammad Saleem; complainant (P.W.4), is that on 28-9-2002 at 12-00 a.m. He along with his brother Muhammad Tanveer alias Jugnu (deceased) and other family members was present in the house. At about 12 (night) his brother informed him that he was going to see Khalid alias Khala and in the meanwhile, Khalid alias Khala, Saleem Insari, residents of Mohallah Islamabad, Kala Rajput resident of Mardowal and Buddha Qasai son of Ghani resident of National Bank Street came there and called his brother outside the house. He and his brother Tipu Sultan son of Khursheed Ahmad were watching movie along with family members. He and Tipu forbade Muhammad Tanveer from going out of the house but he replied that he would come back after a short while as he had to take some articles from them. His brother accompanied Khalid alias Khala etc., from the house and did not return till morning. He went to Mandi in order to earn his livelihood. At about 9-00 a.m. Muhammad Shahid son of Muhammad Anwar Insari resident of Chowk Hakeeman wala informed him that his brother had been murdered and dead body was lying near slaughter house Chhamal Road, whereupon, he along with Tipu Sultan and his maternal cousin Naeem Akhtar son of Ibrahim, Caste Insari, resident of Mohallah Aabkari reached the spot and identified the dead body of his brother which had received injuries on upper side of ear of the head, left side of neck, upper side of left eye and right foot. He expressed strong suspicion that his brother had been murdered by Khalid alias Khala, Saleem, Kala and Buddah Qasai.
' On the same day the complainant made supplementary statement wherein he stated that he had nominated Saleem Insari resident of Mohallah Islamabad in the F.I.R. Due to inadvertence and in fact Iftikhar alias Khujja son of Mushtaq Ahmad was accompanying Khalid alias Khala, Kala Rajput and Buddha Qasai, whereas Saleem Insari was innocent.
3. After due investigation report under section 173, Cr.P.C. Was submitted in the learned trial Court.
Charge was framed against the appellants and their co-accused who denied of the charge, pleaded not guilty and claimed trial. The prosecution produced as many as 11 witnesses and closed its evidence. The appellants were examined under section 342, Cr.P.C. Neither they opt to appear as their own witness in disproof of the allegation levelled against them as required under section 340(2), Cr.P.C. Nor did they adduce defence evidence. The learned trial Court after hearing the parties passed the above said conviction and sentence, which is being assailed through this criminal appeal.
4. I have heard the learned counsel for the parties and perused the record.
5 Admittedly, occurrence took place in darkness of night falling between 27/28-9-2002. There is no direct evidence against the appellants. The appellants and their acquitted co-accused had been named on the basis of suspicion. As per F.I.R. The complainant Muhammad Saleem (P.W.4), brother of the deceased and Tipu Sultan (P.W. Given up) along with other family members were the witness of last seen evidence where Muhammad Tanveer (deceased) was called by the acquitted accused Khalid alias Khala and Saleem alias Insari (exonerated during the investigation by the complainant), Khalil-ur-Rehman alias Kala (acquitted) and Munir Ahmad alias Bhuddha. Later on the appellant Iftikhar alias Khuja was nominated on the basis of supplementary statement recorded by the complainant. The learned trial Court has disbelieved the evidence of Muhammad Saleem (P.W.4)/ complainant who was the witness of last seen qua the guilt of the acquitted accused. For the purpose of conviction and sentence an independent and confidence inspiring corroboration was A required but in the instant case the prosecution has failed to establish the same. Another witness of last seen namely Tipu Sultan, brother-in-law of the complainant, is concerned the prosecution did not examine him.
6. Similarly, there is no evidence of confession or extra-judicial confession against the appellants or acquitted accused. None of the accused pointed out the place of occurrence. The complainant admitted this fact that appellant Iftikhar alias Khujja was previously known to him but he did not nominate him in the F.I.R. When he was standing. The complainant further stated that his neighbour Muhammad Saleem saw the accused persons when they knocked at the door of his house but said Muhammad Saleem P.W. Was given up by the prosecution. It was admitted by the complainant that he had not seen any weapon of offence in possession of accused persons when they visited his house and similarly he admitted that he had lodged the F.I.R. After due deliberation and consultation with councilor and respectables of the locality so this admission would show that the intrinsic value of last seen evidence stands no where in the eyes of law.
7. The appellants Iftikhar and Munir were arrested on 27-11-2002, 14-12-2002 respectively by Rana Javed Investigating Officer (P.W.11), Churri P.3 was recovered at the instance of Iftikhar appellant on 29-11-2002 whereas Munir Ahmad, appellant got recovered Churri P.4 on 14-12-2002. Same were attested by Rana Javed P.W.11, Muhammad Asif P.W.6 and Muhammad Ashiq (not produced).
According to prosecution case, Churri P.3 was recovered at the instance of Iftikhar appellant from slaughterhouse, which as admitted by the P.Ws., was a public place and large number of people visited slaughterhouse daily and the employees of the Municipal Corporation cleaned it daily but none from the public was made witness of recovery and that too was after more than two months of the occurrence from a place, which was not even in the possession of the accused persons. So the recoveries were made in violation of section 103, Cr.P.C., therefore it could not be used as corroborative piece of evidence against the B appellants.
8. Admittedly, there was no motive of the alleged crime against the appellants nor the same was put forth by the prosecution. So there is no need to dilate upon the same, although there is always motive behind every crime particularly in a case of murder but that is not available in the instant case.
9. For what has been discussed above, I am of the considered view that this is a case of no evidence. Resultantly, this appeal is allowed and the appellants are acquitted of the charge. They are in jail. They shall be released forthwith if not required in any other case.