' MUHAMMAD AHSAN BHOON, J.---This appeal is directed against the judgment dated 12-4-2004 passed by the learned Additional Sessions Judge, Gujranwala whereby Muhammad Shehbaz appellant was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life with a direction to pay Rs,2,00,000 as compensation to the legal heirs of the deceased under section 544- A, Cr.P.C. And in default whereof to further undergo six months' S.-I.
2. As per F.I.R. (Exh.P.B.), brief facts of the case as narrated by complainant Zulifqar Ali (P.W.6) are that he was cultivator and resident of Ghania Purana and his land was situated towards West of Ghania. On 16-9-2003 at 2-00 p.m. He along with Naveed Raza, Qalab Abbas and Ch. Muhammad Hussain residents of Ghania Purana went to see peddy crop and on Purana Lakhia Road towards West at a distance of four Kanals saw a dead body of an unknown person aged about 20/21 years, height five feet six inches lying there, which was in naked condition, both feet were tied with cloth, the dead body was swollen and insects were running in it and was unidentifiable. It appeared that some unknown accused had murdered him and thrown the body there, a shirt was in the mouth of dead body. Rest of the body was naked.
3. After formal investigation, report under section 173 Cr.P.C. Was submitted in the learned trial Court. Charge was framed against the appellant who denied the charge, pleaded not guilty and claimed trial. The prosecution produced as many as ten witnesses. The appellant was examined under section 342, Cr.P.C. In answer to question why this case against him and why the P.Ws. Have deposed again him, the appellant replied as under:-- "I am innocent, I have been falsely involved in this case due to the reason that second wife of father of Shahbaz accused who is step-mother of Shehbaz is from the Bradary of father of deceased and they in connivance with my step-mother has falsely involved me in this blind and unwitnessed occurrence in order to snatch my property. P.Ws. Are related to each other so they have deposed falsely against me."
' The appellant did not opt to appear as his own witness in disproof of the allegation levelled against him as required under section 340(2), Cr.P.C.
4. The learned trial Court after hearing the parties passed the above said conviction and sentence through the impugned judgment, which has been assailed by the appellant.
5. Learned counsel for the appellant contends that it was an unseen occurrence. The dead body in the present case was recovered after four days of alleged occurrence and evidence of extra- judicial occurrence as well as the last seen is discrepant furnished by Salamat Ali (P.W.7) and Shukkar Ullah (P.W.8) as well as Muhammad Arif P.W. And was contradictory to each other. No, recovery was effected by the police so this is a case of no evidence against the appellant.
6. On the other hand, learned D.P.G. On behalf of the State has defended the impugned judgment whereby the appellant Shahbaz Ahmad was convicted. He has argued that the appellant was unable to explain the motive for false implication. Admittedly, it was an unseen occurrence but Salamat Ali (P.W.7) as well as Shukkar Ullah (P.W.8) are the witnesses of last seen when deceased was found in the company of appellant and was taken away by him and thereafter the dead body was found. Both said P.Ws. Were subjected to lengthy cross-examination but nothing came out from their mouth in favour of the defence/appellant. He has further argued that Muhammad Arif (P.W.9) was another witness who saw the appellant along with one Murtaza Butt and a boy aged 12/13 years near the place of occurrence and later on he came to know the name of said child as Dilawar "deceased", so his evidence was also confidence-inspiring and trustworthy and he prayed for the dismissal of ' the appeal.
7. I have heard the learned counsel for the parties and gone through the record.
8. Admittedly, this was a case of unseen occurrence wherein one Dilawar Hussain (deceased) son of P.W.8 Shukkar Ullah lost his life. The occurrence in this case was reported by Zulfiqar Ali complainant (P.W.6) who along with two others Naved Raza (not examined) and Kalab Abbas (P.W.5) were going to see their peddy fields and when they reached Purana Lakhia Road they found a dead body in the peddy fields of the complainant. As per complainant, it was a dead body of man aged 20/21 years which was unknown person having height of 5 feet 6 inches. The feet of dead body were tied with rope, mouth was also closed with a piece of cloth, the body was naked and insects were found in the dead body then he informed the police about the dead body and then police escorted the dead body to the Civil Hospital. Tahir Mahmood S.-I./ Investigating Officer (P. W.10) recorded statement of the complainant and on the basis of same statement (Exh.P.E.) the F.I.R., was lodged. So the evidence of P.W.6 does not furnish any corroboration to the case of prosecution against the appellant because he neither saw anybody around the deceased or at the place of occurrence. Kalab Abbas (P.W.5) was another witness who was in the company of the complainant. He deposed in the line of P.W.6. He also did not see anybody else or the appellant near the dead body or place of occurrence, so his evidence is also of no avail.
' Dr. Sahibzada Fareed Zulfiqar, S.M.O.(P.W.1) conducted postmortem examination on 16-9-2003 at 10-00 p.m. On the dead body of unknown person son of unknown person aged about 20/21 years brought by, Khalid Pervaiz No,2762/C (P.W.3) and Iftikhar No,1633/C (not examined. On external examination he found the following injuries and also gave opinion in the following words:-- "External injuries.
(1) A scar in an area of 15 c.m. x 10 c.m. Was missing with and underline bone fractured at the occipital bone, lower part, maggots were coming out of the wound on right side of back of head.
(2) A whitish mark 15 c.m. x 3 c.m. Across the front of neck upper part, under the tied Azarband.
Opinion ' After thorough external and internal examination of the body, I was of the opinion that death in this case was due to injury to vital organ, brain and asphyxia caused by Injuries Nos.1 and 2 which were sufficient to cause death in an ordinary course of nature individually as well as collectively. All the injuries were ante-mortem in nature and were caused by blunt weapon.
' The probable duration that elapsed between injuries and death was about 15 to 30 minutes and between death and post-mortem was about 4 to 6 days."
' The above-quoted evidence of Dr. Sahibzada Fareed Zulfiqar, S.M.O. (P.W.1) would show that the time between death and postmortem was within 4 to 6 days and the maggots were coming out from the wounds on the right side of back head. I have further found from the evidence of P.W.1 that the dead body of unknown person aged 20/21 years was not identified by any of the P. Ws. In the hospital till the time of the completion of post-mortem examination.
9. Muhammad Arif (P.W.9) was another witness of last seen of deceased Dilawar Hussain with the accused appellant Shahbaz and one Murtaza Butt and he deposed while appearing before the learned trial Court that he saw a boy aged 12/13 years in the company of appellant and later on he came to know the child aged about 12/13 years was murdered and his name was Dilawar Butt. That statement is negated by the evidence of Dr. Sahibzada Fareed Zulfiqar, S.M.0.(P.W.1) as well as Qalab Abbas (P.W.5) and Zulfiqar Ali (P.W.6) and they have consistently said that the deceased was a man of 20/22 years with a height of 5 feet 6 inches. So the evidence of Zulfiqar Ali (P.W.6) is also of no avail.
10. As far as the evidence of Salamat Ali (P.W.7) and Shukkar Ullah (P.W.8) is concerned they said that on 12-9-2003 the deceased had left the company of appellant from Sabzi Mandi and thereafter they saw donkey cart of deceased with the appellant but they did nothing despite the lapse of four days for the search of son of aforesaid P.W.B. Although they had made reference of one Imtiaz Virk resident of Tolayke that he informed him through telephone about the dead body of son of said P.W.8 but even said Imtiaz Virk was not produced by the prosecution and similarly during the course of investigation' neither any weapon of offence nor last-worn clothes of deceased nor allegedly donkey cart was recovered. So the above discussion would show that this is a case wherein there is no motive of occurrence, the dead body was a person of unknown, place of occurrence was not pointed out by the accused, no extra-judicial or judicial confession and there was no recovery and only evidence of last seen was available which was demolished by the medical evidence. Hence I can safely hold that this is a case of no evidence.
' In view of what has been discussed above, I find that the prosecution has failed to establish its case against the appellant beyond any shadow of doubt. Resultantly, this appeal is allowed, conviction and sentence awarded to the appellant vide impugned judgment is hereby set aside.
The appellant is in jail, he be released forthwith if no longer required in any other case.