'SYED MAZAHAR ALI AKBAR NAQVI, J.---Through this single judgment I intend to dispose of Criminal Appeal No,2047 of 2003 titled "Ghulam Rasool v. The State" and Criminal Appeal No,2048 of 2003 titled "Noor Ahmed v. State".
2. These two appeals are directed against the judgment dated 15-10-2003 passed by Additional Sessions Judge, Jaranwala District Faisalabad whereby both the appellants were convicted under section 302(b), P.P.C. And sentenced them to undergo imprisonment for life and to pay compensation of Rs,50,000 each in terms of section 544-A, Cr.P.0 to the legal heirs of the deceased and in default thereof to further undergo six months' S.I. Each. The benefit of section 382-B, Cr.P.C.
Was also extended to both the appellants. Through these criminal appeals the appellants sought setting aside the conviction and sentence awarded to them by the learned trial Court being against law.
3. The brief facts as narrated in the F.I.R. No,414/2002 dated 15-8-2000 are that the appellants Ghulam Rasool son of Ismacel and Noor Ahmed son of Allah Ditta were alleged to have committed murder of one Muhammad Ishaq within the local limits of Police Station Lundianwala Tehsil Jarranwala District Faisalabad.
'Nosher P.W.6 (complainant) made a statement-before Zafar Ali S.-I./S.H.O. Police Station Lundianwala on 15-8-2000 wherein he alleged that he is resident of Tutthi Baigay Ki Dakhali Chak No,384/GB and is labourer by profession. He has two sons and three daughters. The eldest son Muhammad Ishaque deceased was alleged to have been murdered by the appellants due to previous motive. According to him two years prior to the occurrence said Muhammad Ishaq abducted Haleema Bibi, real sister of his Behnoi Noor Ahmed (appellant) from his house as he used to visit the house of Noor Ahmed, appellant on the pretext to see Zainab Bibi, wife of Noor Ahmed appellant, being the real sister of said Muhammad Ishaque. After the abduction of said Haleema Bibi, she was returned back due to compromise between the parties, thereafter the relations between the parties were normalized so much so that Noor Ahmad appellant used to reside in the house of complainant while he used to work in Faisalabad. On 13-8-2000, the said Noor Ahmed along with Ghulam Rasool appellants came to the house of the complainant and after taking evening meal, they took Muhammad Ishaque along with them on the pretext of going out for walk.
When Noor Ahmad and Ghulam Rasool left the house along with Muhammad Ishaque. Mansha son of Sardara and Sarfraz son of Ali were also sitting in the house of complainant. After the departure of said Noor Ahmed and Ghulam Rasool along with Muhammad Ishaque deceased, they did not return back till the morning when they received information that dead body of Muhammad Ishaque is lying in Killa No,12 owned by one Rai Arif Hussain, the landlord of the area. The neck of the deceased was wrapped through the string and the dead body was also having other injuries which were apparently caused by sharp-edge weapons. It was informed to the police that the appellants due to the previous grudge of abduction of Haleema Bibi had committed the murder of Muhammad Ishaque on the pretext of taking him away.
4. It is contended by the learned counsel that the appellants have falsely been implicated in this case. There is no direct evidence against them to connect their culpability qua the crime. The prosecution evidence adduced during the course of trial do not substantiate the allegations against the appellants. The prosecution evidence rests upon 12 prosecution witnesses out of which P.W.6 Nausher son of Khan, complainant, and P.W.7 Sarfraz son of Ali Sher are the witnesses who had seen the appellants taking away the deceased with them from the house of the complainant who happened to be father-in-law of the appellant Noor Ahmed. During the course of trial while appearing as P.W.6, Nausher son of Khan has admitted in the following word:-- "Noor Ahmed accused and Mst. Zainab Bibi has got a son aged about two years. A case for abduction of Mst. Haleeman by Muhammad Ishaque was got registered. He further admitted that I permitted the deceased to accompany Ghulam Rasool and Noor Ahmed to go out of the house as the matter had already been patched up."
5. Apart from the statement of the complainant (P.W.6), Sarfraz could not fortify the prosecution case in any manner except to supplement the statement of the complainant that both the appellants had left the house in the company of Muhammad Ishaque deceased. Admittedly this occurrence had taken place on 15-8-2000. That the recovery of Chhuri (Exh.P4) from Ghulam Rasool which was taken into possession through recovery memo (Exh.PG) was effected on 28-8- 2000; while handle of the knife (Exh.P5) blood stained from appellant Noor Ahmed was also taken on the same day from the same place by the Investigating Officer in the presence' of same witnesses which depicts that the recovery had been effected on the last date of remand. This practice of effecting recovery on the last date of remand has been deprecated by the superior courts in various judgments from time to time.
6. As per statement of the Doctor (P.W,1) the death has occurred due to injuries 2, 3, 4, 6, 7, 8 and 10 which resulted in haemorrhage and shock as well as injury No,1 which if be closely observed the ligature mark around the neck of the deceased and its dimension is 38 cm x 2 cm which caused asphxyia and was sufficient to cause death in this case. Sarang (P.W.10) has admitted that when the police came to the place of occurrence, Noor Ahmed and Ghulam Rasul accused present in Court were sleeping and the police arrested them from the same house and the complainant made statement at belated stage; while appearing as P.W.10 Sarang refuted that both the accused had made extra judicial confession before him and due to that he was declared hostile and was allowed to cross-examine by the complainant counsel. But during the course of cross- examination, the prosecution could not abstract any piece of evidence which could be termed as legal to supplement the prosecution case for the purpose of conviction. Learned trial Court while delivering the judgment tried to give impression that if the accused do not appear under section 340(2), Cr. P. C . During the course of trial this could be termed as an additional circumstance to connect the accused/appellants. I am afraid that non appearance of the persons under section 340(2), Cr.P.C. Is not mandatory in any manner. Rather it is salutary principle of law that prosecution has to establish its case beyond reasonable doubt.
7. I have heard the arguments of the learned counsel for the parties and have also gone through the record. I do not see prosecution evidence of the standard which is required to convict any person under the charge of murder.
8. Therefore, keeping in view the dictum laid down by the superior Courts from time to time that the prosecution has to stand on its own legs cannot be lost sight of. The prosecution has miserably failed to substantiate its case against the appellants.
9. In view of the above circumstances, both these appeals are allowed and the appellants are acquitted of the charge. They shall be released forthwith if they are not required in any other criminal case.