' RAHMAT HUSSAIN JAFFERI, J.- -- The appellant Ishtiaq Masih was convicted and sentenced to death for offence punishable under section 302(b), P.P.C. With direction to pa v a sum of Rs,2,00,000 as compensation to the legal heirs of the deceased or in default thereof to undergo S.1. For six months. He was also convicted for offence punishable under section 427, P.P.C. And sentenced to two years R.I. And fine of Rs,10,000 or in default of payment thereof to suffer S.I. For six months. Such convictions and sentences were awarded to the appellant by learned Additional Sessions Judge, Gojra vide judgment dated 30-7-2001, which was maintained by Lahore High Court, Lahore under the impugned judgment dated 24-4-2008. Hence the present appeal by leave of the Court.
2. The prosecution alleged that the complainant Nazar Khan (P.W.4) along with Dolat Khan (P.W.5) and another person went to Adda Bashirabad to see the deceased Umer Din, resident of Chak No,180-GB, who was working as Watchman at the said Adda for the last 3/4 years. After meeting the deceased Umer Din, brother of the complainant, they spent the night there, as it became late for them to go back to their village. While they were sleeping at about 2-00 a.m., the complainant and P.Ws. Woke up on hearing a noise and saw the appellant and acquitted accused Muhammad Saleem grappling with the deceased Umar Din. The acquitted accused Muhammad Saleem raised a Lalkara on which the appellant inflicted Chhuri blow to the deceased Umer Din on his left side below the ribs and he fell down on the ground. The complainant and P.Ws. Challenged them but they ran away. They went to the deceased, where they found him lying dead. At the trial, the prosecution examined 9 witnesses, including the complainant Nazar Khan (P.W.4) and eye-witness Dolat Khan (P.W.5).
3. The learned counsel for the appellant has challenged the ocular testimony on the ground that the witnesses were chance witnesses; that they were residing at a distance of about 20/30 kilometers away from the place of incident; that there is no reason for the witnesses to be present at the place of incident; that their evidence is full of improvements and contradictions; that the incident went un-witnessed and that after getting information of the incident, the case was prepared with the connivance of police. Conversely, learned Deputy Prosecutor-General, has stated that the case has been fully supported by the eye-witnesses; that they are not chance witnesses but they came to the Adda Bashirabad to meet the deceased, who was brother of the complainant; that they became late, therefore, they spent the night there and witnessed the incident and that the case is corroborated by the recovery of blood stained Chhuri from the possession of the appellant. He has supported the impugned judgment.
4. Having heard the learned counsel for the parties and perusing the record of the case, we find that the complainant was residing at a distance of about 20 kilometers away from the place of incident, whereas P.W.5 Dolat Khan was resident of a village, which was 30 kilometers away from the place of incident. The prosecution witnesses alleged that they assembled at a village within the jurisdiction of Police Station Rajhana and they reached the Adda Bashirabad through a Bus, which left the village at 4-00 p.m. And reached the Adda at about 7/8-00 p.m. It is important to note that the deceased was not the resident of Adda Bashirabad but he was the resident of Chak No,180-GB.
Dolat Khan P.W.5 deposed that they reached the Adda Bashirabad, while passing from Chak No,180-GB, which is at a distance of 4/5 kilometers away from the Adda. It is surprising to note that if the reason of complainer, was to see his brother, the deceased, then the best course for him would have been to alight from the Bus at Chak No,180-GB so as to meet him and his family members because when they reached the place of incident the duty hours 'of the deceased had not yet started for the reason that he was Chowkidar and his duty hours started during night time.
5. Furthermore, the complainant himself admitted that there was no special reason for him to see the deceased therefore the ground taken by the witnesses to be present at the place of incident creates serious doubt. Dolat Khan P.W.5 deposed that they changed the Bus in Adda Muridwala but nothing was said by the complainant about this aspect. The complainant tried to conceal the relationship of P.W.5 with him, as in the beginning he stated that he was from his Brothery but did not specify the actual relationship, while in the cross-examination he admitted his relationship with P.W.5 as cousin or Chachazad. Similar is the position with P.W.5 Dolat Khan, who also did not admit his relationship with the complainant but stick to his stand that the complainant and deceased were from his Brothery. Thus concealment of relationship with the complainant Nazar Khan and deceased Umar Din by P.W.5 Dolat Khan affects the veracity of the witness. Perhaps the witness wanted to show that he was an independent witness. It is also pointed out that P.W.5 Dolat Khan deposed that they gathered at Rajhana and made program to go to Adda Bashirabad to see the deceased Umar Din, brother of the complainant but such fact was not disclosed by the complainant. However, P.W.5 Dolat Khan was confronted with his 161, Cr.P.C. Statement and it was found that he did not state such fact in the said statement. Thus a serious doubt has been created in respect of reaching of the witnesses at the place of incident and the reason to be present there.
6. As regards witnessing the incident by the witnesses on electric bulb light, P.W.5 Dolat Khan has falsified this stand by admitting that at the time of incident the electric bulb was off. We have also minutely gone through the cross-examination of the witnesses and find that the same are full of improvements and contradictions from heir earlier statements recorded in the F.I.R. And 161, Cr.P.C.
Statements.
7. After considering the material available on record, we are of the considered view that the prosecution has failed to establish the presence of both the witnesses at the time and place of incident beyond any reasonable doubt, therefore, it is very unsafe to rely upon such witnesses on capital charge. After excluding the evidence of ocular testimony, we are left with the corroborative piece of evidence of alleged recovery of blood-stained Chhuri on the pointation of the appellant.
This is a corroborative piece of evidence which by itself is insufficient to convict the appellant in the absence of substantive piece of evidence. Reference is invited to Noor Muhammad v. State 2010 SCM R 97.
8. In the light of what has been discussed above, the convictions and sentences awarded to the appellant Ishtiaq Masih, including the impugned judgment, are set aside and he is acquitted of the charge. He is in custody and should be released forthwith, if not required in any other custody case.