' MUHAMMAD AHSAN BHOON, J.-This judgment shall dispose of Criminal Appeal No, 163/2005 filed by Noor Elahi appellant against his conviction and sentence and Criminal Revision No, 89/2005 filed by Lai Bakhsh complainant for enhancement of sentence awarded to Noor Elahi appellant as both arise of out same judgment dated 20-4-2005 passed by the learned Addl. Sessions Judge, Sadiqabad whereby Noor Elahi appellant was convicted under section 302(b), P.P.C, and sentenced to imprisonment for life and to pay an amount of Rs,1,00,000 to the heirs of the deceased by way of compensation under section 544-A, Cr.P.C, or in default thereof to further undergo six months.
Benefit of section 382-B, Cr.P.C, was extended to the appellant.
2. As per private complaint (Exh.PA) filed by Lai Bakhsh complainant (P.W.1) briefly the facts of the case are that his son Waryam had a shop in the shape of a Cabin out of his house. On the night between 30/31st May, 2002 after 'Eisha' prayer he along with his son Riaz Ahmad was present in his house situated at Ghaziabad whereas his other son Waryam (deceased) had slept. Noor Elahi (appellant) came to his house and asked to awake Waryam (deceased) to deliver some items from his shop. Accused Sardar and an unknown person who later on known as Bahawal stood outside the house. The complainant awoke Waryam (deceased) and asked him to give the items but he replied that he would not sell any item to Noor Elahi (appellant and Sardar accused) as they had not paid their previous outstanding amount. The complainant insisted upon him to sell the items to them. Noor Elahi (appellant) then said that after delivering the items he should go with them and they would pay the outstanding amount. Then Waryam (deceased) delivered the items from his shop to them. Waryam told the complainant that he was going to receive the amount from Noor Elahi (appellant) etc, and accompanied them. As it was night time, therefore, complainant, his son Riaz Ahmad and Jan Muhammad (P.W.2) followed Waryam and Noor Elahi (appellant) etc. After some time he heard hue and cry of Waryam and complainant along with Riaz Ahmad, Jan Muhammad (P.W.2) and Gul Baig rushed to the spot and saw that Noor Elahi (appellant) while armed with hatchet inflicted a blow to Waryam which hit on right side of his neck.
Sardar inflicted hatchet blow on right knee of Waryam who fell down. Bahawal accused then inflicted kick blows on private parts of Waryam. On hue and cry of complainant and his companions, Safdar (P.W.3) and Parri pai who were standing in the nearby crops saw the occurrence in the light of torch. When the complainant and his companions, extended lalkara, the accused with their weapons fled toward eastern side. Waryam succumbed to the injuries. Due to odd hours and nonavailability of means of transportation, complainant reached the Police Station Bhong with some delay and got registered F.I.R. No,89/2, for the offences under section 302/34, P.P.C. It has been further stated in the complaint that F.I.R, was not registered in the light of the statement of the complainant because he was an illiterate and his thumb impression was obtained. It was further alleged in the complaint that abovementioned accused committed the murder of Waryam at the instance of accused Bhural and Ghafoor. The police with the connivance of the accused declared Bahawal, Bhuyral and Ghafoor innocent in the investigation, therefore, the complainant filed this private complaint.
4(sic). After recording statement of the complainant, the matter was referred to the learned Illaqa Magistrate for inquiry under section 202, Cr.P.C. The inquiry report was produced in the Court of learned Addl: Sessions Judge, Sadiqabad on 22-9-2003 who vide order dated 30-9-2003 summoned the accused to face the trial. Charge as framed against the -appellant and acquitted accused who denied the charge, pleaded not guilty and claimed trial. The complainant, to prove the charge against the accused produced ten prosecution witnesses. The accused were examined under section 342, Cr.P.C. Noor Elahi appellant/accused in answer to question as to why this case was against him and why the P.Ws, deposed against him stated as under "This case was registered against me due to enmity and suspicion."
' The accused did not opt to appear as their own witness in disproof of the allegation levelled against them as required under section 340(2), Cr.P.C.
' The learned trial Court after hearing the parties passed the abovesaid conviction and sentence through the impugned judgment, which has been assailed by the appellant as well as the complainant through Criminal Appeal and Criminal Revision respectively.
5. Learned counsel for the appellant contends that this is a case of no evidence; all the P.Ws, were interested; there is a delay of 11 hours in lodging of F.I.R.; the delayed post-mortem shows that the occurrence was unseen; the case of prosecution is based on improvements and contradictions which were duly confronted; medical evidence is contra to the ocular account; recovery was effected after a delay of two months and was in violation of the provisions of section 103, Cr.P.C.
6. On the other hand, learned APG assisted by the learned counsel for the complainant has argued that reliable confidence inspiring evidence has been produced by the prosecution; there was, no motive for false implication of the present appellant; a young son of the complainant was brutally murdered by the appellant with a hatchet which was recovered at his behest and same was found blood-stained in view of the report of Chemical Examiner (Exh.PJ); the statement of complainant was corroborated by Jan Muhammad (P.W.2) and Safdar Hussain (P.W.3) and they had no animus to falsely implicate the appellant. The delay in lodging the F.I.R, was due to the reason that there was no source of transportation. The battery/torch was recovered vide memo. Exh.PE through which Safdar Hussain (P.W.3) saw the occurrence and the medical evidence is in line with the ocular account furnished by the eye-witnesses and the prosecution has proved its case against the appellant beyond any shadow of doubt.
7. Heard. Record perused.
8. The ocular account in this case was furnished by Lai Bakhsh complainant (P.W.1) who filed private complaint and was originally the maker of F.I.R. No,89/02, dated 31-5-2002 under section 302/34, P.P.C, registered with Police Station Bhong District Rahim Yar Khan. Later on he being dissatisfied with the police investigation filed private complaint (Exh.PA) on 8-7-2003, Lai Bakhsh complainant (P.W.1) is father of the deceased Waryam and he while appearing before the learned trial Court reiterated the story of private complaint which was corroborated by Jan Muhammad (P.W.2), brother-in-law of the complainant and Safdar Hussain (P.W.3), nephew of Jan Muhammad and maternal cousin of the deceased. According to F.I.R, the occurrence was unseen and in fact the complainant and his companions/P.Ws. Only saw the dead body of the deceased lying on the spot but after about 1 year and 2 months the complainant came with a new story in private complaint whereby he narrated that the occurrence although took place in the dark hours of the night between 30/31-5-2002 after "Eisha" prayer but that was seen by the aforesaid P.Ws. 1 to 3, however, the said improvements with inordinate and unexplained delay were duly confronted to the P.Ws, when they appeared in the witness-box.
9. Another important aspect of the case is that Jan Muhammad (P.W.2) admitted this fact that the deceased and appellant Noor Elahi used to go in routine together and in the police case there was no last seen evidence available but in the complaint case for the first it was alleged that Lai Bakhsh complainant (P.W.1) had awaken the deceased to sell some household items to the appellant.
Neither there was any evidence of 'Vaj Takkar' nor of extrajudicial, confession and at a belated stage a version of direct evidence was introduced by the complainant. It is also pertinent to mention here that the prosecution witnesses admitted the factum of occurrence that it was taken place in dark hours of night and later on concocted that the occurrence was seen through a torch which does not inspire confidence. The learned trial Court convicted the appellant merely on the basis of presumptions. I am afraid, a person cannot be convicted in a case of capital punishment merely on the basis of presumption particularly when it is settled law that the evidence in a case of capital punishment must come through an unimpeachable source and where the witnesses are interested ones then the other corroborative piece of evidence to prove the prosecution case is necessary'
10. Another important aspect of the case is that the F.I.R, was lodged at 8-20 a.m. On 31-5-2002 after a delay of 8 hours of the occurrence when the police station A was only at a distance of about 6 K.M. From the place of occurrence and the postmortem examination &as conduced at evening time at 6-00 p.m. So I am of the considered view that it was a case of unseen occurrence. It would be important to mention here that it was admitted by the prosecution witnesses that the place of occurrence was a deserted place and was not within the populated area. The site-plan (Exh.PF) prepared by Mulazam Hussain Halqa Patwari (P.W.5) further negates the case of the prosecution. If the deceased had to receive outstanding amount from the appellant why he had chosen to move towards a deserted place along with appellant instead of going towards his, house.
11. It would be important to mention over here that the battery/torch allegedly recovered and taken into possession vide memo. (Exh.PE) on 2-6-2002 and the only recovery witness Khurshid constable (P.W.4) appeared, and that too was in violation of section 103 Cr.P.C, particularly when the Investigating Officer of his case was neither summoned by the learned trial Court nor produced by the prosecution, even no effort was made for the production of said witness. As far as the recovery of hatchet P.2 from Noor Elahi appellant is concerned, that too was recovered after two months when the arrest of appellant was made by Saeed Ahmad Inspector but said Inspector could not be produced during the trial and only Jan Muhammad (P.W.2) who is maternal uncle of the deceased and also an eye-witness of the occurrence appeared to support the recovery of hatchet but that was also in violation of the provisions of section 103, Cr.P.C, particularly when the maker of the memo, could not be produced then the whole proceeding of recovery falls on the ground. When the ocular evidence is disbelieved and the presence of P.Ws, is not believed then the only recovery cannot rehabilitate the prosecution case.
12. I may observe here that this is the case wherein the occurrence was unseen and the deceased was done to death in dark hours of the night by some unknown culprits and evidence available on record is full of contradictions rather it negates the original version put forth by the complainant, and if any doubt arises the g benefit of same must go to the accused and it is the duty of prosecution to stand on its own legs.
13 The medical evidence does not corroborate the ocular account as postmortem report negates the time of occurrence as also observed by the learned trial Court. So far injuries on the body of deceased are concerned, no doubt he was done to unnatural death yet when prosecution story and presence of P.Ws, at the time of occurrence has been disbelieved, the injuries itself do not speak about assailants. So in peculiar circumstances the medical evidence does not advance the prosecution case.
14. For what has been discussed above, this appeal is allowed. The conviction and sentence of the appellant is set aside and he is acquitted of the charge. He shall be released forthwith, if he is not required in any other criminal case.
15. In view of above, Criminal Revision No,89/2005 is dismissed.