' MIAN MUHAMMAD NAJAMUZ-ZAMAN, J.---Appellant-Muhammad Riaz son of Ghulam Qadir along with Allah Yar and Hameed was tried in case F.I.R. No,73 dated 21-3-2002 registered under section 302/34 P.P.0 at Police Station Sadar Kamalia by the Sessions Judge, Toba Tek Singh, who vide judgment dated 3-3-2003 while acquitting co-accused, convicted appellant under section 316, P.P.0 and sentenced him to ten years' R.I. As Ta'zir. Appellant was also directed to pay diyat as notified by the Federal under section 323, P.P.0 to the legal heirs of the deceased. Trial Court also extended benefit of section 382-B, Cr.P.C. In favour of the appellant.
2. Challenging his conviction and sentence appellant filed Criminal Appeal No,428 of 2003 while complainant filed Criminal Revision 341 of 2003 seeking enhancement of sentence of the appellant.
Both these matters are being disposed of together by this judgment.
3. Succinctly the prosecution case is that on 21-3-2002 at 2-30 p.m. Complainant along with Falak Sher deceased and Nawab Bibi, his daughter was going to his fields on foot. Falak Sher deceased was ahead of them. When they reached on the watt of Killas Nos.2 and 3 of Square No,10, all of a sudden Allah Yar, Muhammad Riaz and Hameed accused emerged from the back of a tree. Allah Yar raised a Lalkara that Falak Sher be caught hold of and done to death. The deceased was grappled and made to fall on the ground during this process he was given fist and kick blows by the said accused. Statedly, within the view of prosecution witnesses Muhammad Riaz appellant strangulated the deceased due to which he died at the spot.
4. The motive for this occurrence was an altercation between the accused and the deceased which took place 5/6 days prior to the occurrence over the boundary line of their agricultural land.
5. After the occurrence matter was reported to Muhammad Hussain S.-I. P.W.8 by Sarang P.W.6 when the said police officer was on patrol duty at Lasani Petrol Pump, Kamalia. He recorded his statement Exh.P.G. And sent a copy of the same to the police station for the registration of formal F.I.R. Thereafter the police officer proceeded to the spot and after inspecting the dead body, prepared necessary documents i.e, injury statement Exh.P.B. And inquest report Exh.P.C. And sent the dead body to the mortuary for post-mortem examination. Police Officer also prepared rough site-plan Exh.P.H. As well as recorded the statement of the witnesses under section 161, Cr.P.C. On 22-3-2002 last-worn clothes of the deceased were produced before the Investigating Officer which were taken into possession vide memo. Exh.P.F. During investigation the police officer also got prepared scaled site-plan Exh.P.E. And P.E. /1 through Muhammad Tariq Patwari P.W.2. After the arrest of appellant on 1-5-2002 the Investigating Officer finally submitted the challan before the trial Court where prosecution produced eight witnesses to prove the charge against the appellant and his co-accused.
6. Dr. Zahid Latif P.W.1 conducted post-mortem examination on the dead body of Falak Sher. The doctor neither observed any marks of ligature around the neck nor he observed any marks of violence on the dead body. Reportedly, on dissection of neck hyoid bone was found healthy with all other parts around it. Post-mortem report also reveals that viscera of the dead body were sent to the Chemical Examiner and no poison was detected. Muhammad Tariq Patwari, P.W.2 prepared scaled site-plan Exh.P.E. And P.E./1 Akbar Ali F.C. P.W.3 took the dead body to the mortuary for post- mortem examination and after the same handed over last-worn clothes of the deceased to the Investigating Officer. He also took the parcels (case property) to the office of Chemical Examiner and delivered the same intact. Ijaz Ahmad A.S.-I. P.W.4 entered formal F.I.R. Exh.P.G. At the police station. Noor P.W.5 identified the dead body at the time of post-mortem examination. Sarang P .W.6 and Mst. Nawab Bibi P.W.7 being the eye-witnesses of the occurrence while supporting the prosecution case narrated the circumstances under which the appellant and his co-accused committed the murder of deceased. Muhammad Hussain P.W.8 conducted formal investigation in this case as narrated earlier.
7. Trial Court also examined the appellant and his co-accused under section 342 Cr.P.C. While answering to the question, "do you want to say anything else?", appellant replied as under:-- ' "I am innocent. On the day of occurrence, Manzoor Hussain son of Pehlvan Caste Warbhu, Sheikh alias Sheikhu son of Pathana Caste Sahu, Iqbal son of Muhammad Caste Kathia and Falak Sher deceased were present at the tube-well of one Pir Bakhsh installed in Killa No,12 of Square No,8. I also joined them over there and offered Salam to them to which Falak Sher deceased did not reply but instead he abused me. I also abused him and so hot words were exchanged between us. We were separated by Manzoor, Sheikh alias Sheikhu present over there who sent us both to our houses. In the way Falak Sher deceased when reached at a distance of about two acres in Killa No,2 of Square No,19 he sat on the ground. He was taken to his house by the inmates of his house where he died after about one hour. No P.W. Namely Sarang, Nawab Bibi and Muhammad Shafi were present at the spot at the time of such occurrence. Later on the complainant concocted a false story and got this case registered against me, my younger brother and co-accused Allah Yar.
My version was proved during all the investigations and version of F.I.R. Was disbelieved."
' Neither the appellant nor his co-accused made any statement under section 340(2), Cr.P.C. Nor produced any evidence in defence.
8. Trial Court after appraisal of evidence available on record vide judgment dated 3-3-2003 convicted and sentenced the appellant as narrated earlier.
9. Learned counsel for the appellant while challenging the legality of impugned judgment, argued that it was a case of unseen occurrence, none of the witnesses was present at the spot but were introduced later on just to strengthen the prosecution case, medical evidence contradicts the ocular account and this fact had demolished the entire prosecution case motive was not proved by the prosecution and this piece of evidence had already been disbelieved by trial Court. It was lastly argued that in the circumstances, trial Court had erroneously convicted and sentenced the appellant. Conversely, learned counsel for the State while supporting the impugned judgment, vehemently opposed the contentions raised by the learned counsel for the appellant.
10. Heard. File perused.
11. Sated, Falak Sher deceased was done to death in the presence of Sarang P.W.6, Mst. Nawab Bibi P.W.7 and Shafi (given up) father, sister and paternal uncle of the deceased, respectively, through violence and strangulation by the appellant and his co-accused. The F.I.R. And statements of witnesses before the trial Court reveals that at the relevant time appellant and his co-accused gave fist and kick blows to the deceased and when he fell down appellant throttled the deceased to death. Contrary to the ocular account medical evidence reveals that during postmortem examination which was conducted by Board of doctors no marks of ligature were found around the neck nor there were any marks of violence on the dead body of Falak Sher deceased. The case of prosecution is nothing but a house of cards and is bound to fall down.
' The trial Court while convicting the appellant under section 316, P.P.C has gone too far to bring the case within the fold of said section. It is not understandable as to how trial Court observed that deceased was a patient of blood-pressure. Both the eye-witnesses have denied the suggestion of the defence in this regard. The medical evidence is also silent about the same. The observation of trial Court that deceased was a patient of blood-pressure and his scuffle with the appellant resulted into his death does not find support from the record of this case. The cause of death of Falak Sher deceased is shrouded in mystery.
' The crux of the above discussion is that .t is a case of no evidence against the appellant and he is entitled to get the benefit of doubt. Accordingly, the instant appeal is accepted, conviction and sentence is set aside and the appellant is acquitted of the charge. Appellant is on bail, his bail bonds stands cancelled and surety discharted.
' In the light of the aforesaid circumstances, Criminal Revision No,341 of 2003 having no merits stands dismissed.