The appellant Shah Muhammad S/O Ghulam Fareed was tried alongwith his co-accused namely Allah Bux alias Kalo, Muhammad Rafique and Muhammad Shabbir sons of Khadim Hussain (since absconders) by learned Addl: Sessions Judge, Lodhran in case FIR No, 623/1998 dated 18.12.1998 offence under Section 302/34 PPC registered at Police Station Saddar, Lodhran, who vide judgment dated 21.03.2002 convicted him under Section 302(b)/34 PPC for committing Qalt-e-Amd of Khadim Hussain, deceased and sentenced him to imprisonment for life. Benefit of Section 382(b)
Cr. P. C, was also extended to him.
2. The prosecution evidence comprises of motive, ocular account, medical evidence, recovery and extra judicial confession. The prosecution produced as many as sixteen witnesses to prove its case.
During the course of trial all the accused except the appellant, absconded and proceedings under Sections 87 and 88 Cr.P.0 were conducted against them, whereas the case of the appellant was separated.
3. The appellant at the time of announcement of judgment was on bail, who was taken into custody and was sent to jail.
4. It is inter alia contended that the role attributed to the present appellant is that of catching hold of the deceased and facilitating the principle accused (since absconders) in commission of the offence; that the only evidence on the basis whereof, the appellant has been convicted, is alleged extra judicial confession; that the presence of the PWs at the time of occurrence is highly un- natural; that the PWs are related interse and thus interested witnesses; that the prosecution hopelessly failed to prove its case beyond any reasonable shadow of doubt; that the appellant had continuously been appearing before the learned trial Court and was on bail when the judgment was announced and he was not fugitive from the law which also gives support to his version that he was innocent and rather a law abiding citizen; that there are material contradictions in the prosecution evidence; refers to statement of P.W.8 complainant Ghulam Abbas, P.W.5 Sultan, P.W.10 Haji Muhammad and of Ch. Bashir Ahmad P.W.11, to canvass that there are material contradictions in their statements; that to the extent of the appellant, their testimony cannot be believed; that no date, time, place, motive and detail of occurrence has been mentioned in FIR which also makes the case of the prosecution highly doubtful; that the alleged extra judicial confession being a joint alleged confession, cannot be used against the appellant; that the alleged motive does not find mentioned in the FIR and P.W.8. complainant Ghulam Abbas introduced the motive in his supplementary statement; that there was no lawful justification for the trial Court to convict the appellant on the basis of such a week type of evidence.
5. Conversely, the learned Deputy Prosecutor General vehemently opposes the submission made at bar by the learned counsel for the appellant and submits that the prosecution has successfully proved its case against the appellant beyond any reasonable shadow of doubt. The ocular account is fully supported by the medical evidence, motive, recovery and extra judicial confession.
6. Arguments heard. Record perused.
7. I find material contradictions in the statements of the prosecution witnesses, qua the role of the appellant. I also find that the learned trial Court proceeded to convict the appellant primarily relying upon extra judicial confession. The motive part was introduced subsequently. The appellant had not played as per prosecution evidence any active role in the occurrence except causing of Jappha. The appellant was arrested on 23.11.1999, I am of the considered view that the prosecution could not prove any case against the appellant and it appears that since all the co-accused absconded and the appellant continued to face the trial, therefore, he was convicted on the basis of such a week type of evidence qua the role of the appellant. I, therefore, while extending benefit of doubt to the appellant, allow this appeal, set aside the impugned judgment, consequent conviction and sentence awarded to the appellant, and acquit him from the charges. He shall be released forthwith if not required in any other case.