' TASSADUQ HUSSAIN JILLANI, J.--- Appellant Liaquat Ali was tried for the murder of Fazil (in a case registered vide F.I.R. No,157 of 1989, dated 24-8-1989, Police Station Sarai Sidhu, District Khanewal) and the learned trial Court vide its judgment, dated 4-7-1991 acquitted him by giving benefit of doubt. This judgment of acquittal was however, reversed by the learned High Court through the impugned judgment dated 6-9-2004 and he stands convicted under section 302, P.P.C. For the said murder and sentenced to life imprisonment. He was also burdened with a fine of Rs,1,00,000 in default whereof to suffer simple imprisonment for six months.
2. The prosecution story briefly stated is that on the fateful day at about 8-00 a.m. Complainant Shameer (P.W.7) was going to the "Lumberdar" (Revenue Officer) to pay "Abyana" and at that time his cousin namely Fazil deceased was going ahead of him at some distance. Suddenly within his view Liaquat Ali appellant armed with a knife appeared and raised a Lalkara 'that Fazil would not be spared and thereafter gave him successive knife blows on various parts of his body. On hue and cries raised, Muhammad Siddique (P.W.8), Ranjha and Musa (not produced) were attracted to the spot. They tried to rescue Fazil but on being threatened by Liaquat they were unable to protect Fazil deceased and within their view he succumbed to the injuries and died. During trial two witnesses appeared to furnish the ocular account namely Shameer (P.W.7) and Muhammad Siddique (P.W.8). The latter is son of P.W.7. The motive alleged was a dispute over damaging the crops on which Fazil deceased had insulted Liaquat Ali appellant 3/4 days back on account of which latter nursed a grudge and hence the attack.
3. The learned trial Court did not believe the motive part and found the ocular account not confidence inspiring on account of the unnatural conduct of witnesses and inter se inconsistencies. The learned High Court however, did not concur and while setting aside the judgment of the trial Court it rendered a finding of guilt resulting in conviction and sentence vide the impugned judgment.
4. Learned counsel for the appellant submitted that the finding of learned trial Court was just and proper; that the prosecution had miserably failed to prove its case beyond reasonable doubt; that the learned High Court has reversed the finding of acquittal merely on conjectures and has not appreciated that having been tried and acquitted the appellant had earned a double presumption of innocence and a heavy burden lay on the prosecution to rebut the said presumption which it miserably failed to discharge. The judgment of the learned High Court according to him, in these circumstances, cannot be sustained.
5. Learned Additional Advocate-General on behalf of State defended the impugned judgment and submitted that the prosecution had proved its case beyond reasonable doubt and the judgment of conviction may not be interfbred with. He contended that both the witnesses who furnished the ocular account had no enmity with the appellant to falsely implicate him and in a broad daylight occurrence and F.I.R. Having been lodged with promptitude, the accused specifically named therein, there was no question of false implication or mistaken identity.
5-A. Having heard learned counsel for the parties and having gone through the evidence on record, we note that although P.W.7 who is first cousin and brother-in-law of Fazil deceased claims to have seen the occurrence from a distance of 30 ft. (as given in cross-examination) and two other witnesses namely Musa and Ranjha were also attracted to the spot but none rescued Fazil deceased and appellant had a free hand to inflict as many as 9 injuries on his person. The explanation given by these witnesses that since Liaquat Ali had threatened them therefore, they could not go near Fazil deceased to rescue him is repellant to common sense as Liaquat Ali was not armed with a fire-arm which could have scared the witnesses away. He was a single alleged assailant and if A the witnesses were there at the spot they could have easily overpowered him.
This makes their presence at the spot doubtful. This view is further strengthened by the other pieces of circumstantial evidence. For instance although as per P.W.7 Shameer the ground was dry where the occurrence took place, yet the clothes of Fazil deceased were stained with mud. Similarly P.W.7 Shameer is a chance witness, his explanation for being there at the spot was that he was going to "Lumberdar" to deposit "Abyana" but when asked as to how much he had to deposit he could not quantify the same. The exact place of occurrence given by this witness i.e, in front of the house of Iqbal Kunhar was inconsistent with site plan (Exh.P.C.) where the occurrence was said to have taken place in front of the house of Ghana Mirasi. Both these witnesses are closely related to the deceased (Shameer P.W.7 is his first cousin and P.W.8 Muhammad Siddique is son of P.W.7). The motive has been disbelieved and there is no independent corroboration of the ocular testimony.
6. In the afore-referred circumstances, we are of the considered view that the prosecution had failed to prove its case beyond A reasonable doubt. The learned trial Court had rightly acquitted the appellant and the impugned judgment of the learned High Court is not sustainable. Resultantly, this appeal is allowed, the impugned judgment of High Court is set aside and the appellant is acquitted of the charge. He shall be released forthwith unless he is detained in any other case.
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