' ASIF SAEED KHAN KHOSA, J.---Shahadat Ali appellant was convicted for an offence under section 302(b), P.P.C. Vide judgment dated 21-3-2006 rendered by the learned Additional Sessions Judge, Faisalabad and was sentenced to imprisonment for life and to pay a sum of Rs,1,00,000 to the heirs of Muhammad Hussain deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months. The benefit under section 382-B, Cr.P.C. Was extended to him. Through the same judgment the learned Trial Court had acquitted the appellant's co-accused namely Zulfiqar. The appellant has challenged his conviction and sentence before this Court through the present appeal.
2. The occurrence in this case had taken place at about 3-30 a.m. On 2-9-2004 in an open plot in Mohallah Bilal Nagar, Chak No, 121/JB situated within the area of Police Station Nishat Abad, District Faisalabad and F.I.R. No,810 was registered in respect of the said occurrence on the basis of an application submitted by Noor Ahmad complainant at 11-25 a.m. On 2-9-2004 at Police Station Nishat Abad, District Faisalabad for offences under sections 337-A (iii)/337-A (i)/34, P.P.C. On 5-9- 2004 the injured victim namely Muhammad Hussain succumbed to his injuries and died and resultantly section 302, P.P.C. Was added to the F.I.R. According to the F.I.R. Noor Ahmad complainant and his nephew namely Muhammad Hussain were sleeping in an open plot where their cattle-head were kept and at about 3-30 a.m. Shahadat Ali appellant gave two Kassi blows to Muhammad Hussain, Zulfiqar accused gave two hatchet blows to Muhammad Hussain and another unknown companion of his co-accused also gave injuries to Muhammad Hussain with his weapon. The said incident was also allegedly witnessed by Mazhar Hussain (P.W.5) and Ibrar Hussain (P.W.6). The motive set up in the F.I.R. Was that the complainant and Muhammad Hussain deceased used to tether their cattle-head in an open plot adjacent to the house of Shahadat Ali, appellant and they used to throw the waste of their cattle-head in the street which was objected to by the appellant and he used to forbid Muhammad Hussain deceased from throwing their waste in the street.
3. After registration of the F.I.R. The criminal case in hand was investigated by Ibrar Hussain, S.-I.
(P.W.10) and Muhammad Razzaq, S.-I. (P.W.11). During the investigation the appellant and his co- accused namely Zulfiqar co-accused were arrested, was recovered from the appellant's possession and after completing the other formalities the investigation was finalized and a Challan was submitted.
4. At the commencement of the trial the learned Trial Court framed a charge in respect of an offence under section 302, P.P.C. Against the appellant and his co-accused to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced eleven witnesses in support of its case against the appellant and his co-accused. Noor Ahmad complainant (P.W.4), Mazhar Hussain (P.W.5) and Ibrar Hussain (P.W.6) furnished the ocular account of the incident in question and Noor Ahmad complainant (P.W.4) and Mazhar Hussain (P.W.5) also deposed about the motive. Wajid Ali (P.W.8) stated about recovery of a Kassi from the appellant's possession during the investigation of this case. The medical evidence was provided by Dr. Tahir Ismail (P.W.7) and Dr. Javed Iqbal (P.W.3).
Ibrar Hussain, S.-I. (P.W.6) and Muhammad Razzaq, S.-I. (P.W.1) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced, by the prosecution was more or less formal in nature.
6. In their statements recorded under section 342, Cr.P.C. The appellant and his co-accused denied and controverted the allegations of fact levelled against them by the prosecution and professed their innocence. They, however, opted not to make statements, on oath under section 340(2), Cr.P.C. And did not produce any witness in their defence.
7. Upon conclusion of the trial the learned Trial Court acquitted the appellant's co-accused namely Zulfiqar but after finding the prosecution's case against Shahadat Ali appellant to have been proved beyond reasonable doubt it convicted and sentenced him as mentioned and detailed above. Hence, the present appeal before this Court.
8. I have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that the occurrence in this case had taken place during a night and the source of light had not been established by the prosecution; the eye-witnesses produced by the prosecution had made discrepant statements and one of the eye-witnesses namely Ibrar Hussain (P.W.6) had been declared hostile; the motive set up by the prosecution had remained far from being established; the Kassi allegedly recovered from the appellant's possession was not stained with blood and the same provided no corroboration to the ocular account; and, thus, the prosecution had failed to prove its case against the appellant beyond reasonable doubt entitling him to be acquitted by this Court. As against that the learned Deputy Prosecutor-General appearing for the State has maintained that the prosecution had succeeded in establishing the appellant guilt to the hilt and, therefore, the conviction and sentence of the appellant recorded by the learned Trial Court do not warrant any interference by this Court.
9. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has straightaway been observed by me that the occurrence in this case had taken place in the small hours of a night, i.e, at 3-30 a.m. And although availability of an electric bulb at the place of occurrence had been mentioned in the F.I.R. And had been deposed about by the eye-witnesses produced by the prosecution yet the site-plan of the place of occurrence prepared by the Draftsman did not show availability of A any such electric bulb anywhere at the place of occurrence. Akbar Ali Nizami, Draftsman (P.W.9) had also confirmed that there was no source of light available at the place of occurrence. Noor Ahmad complainant (P.W.4) had himself conceded before the learned Trial Court that there was no electricity meter available at the open plot where the occurrence in issue had taken place. In this view of the matter identity of the assailant had not conclusively been established before the learned Trial Court.
10. The ocular account in this case was furnished by Noor Ahmad complainant (P.W.4), Mazhar Hussain (P.W.5) and Ibrar Hussain (P.W.6). Noor Ahmad complainant (P.W.4) was a paternal uncle of Muhammad Hussain deceased and Mazhar Hussain (P.W.5) was also a B paternal uncle of the said deceased whereas Ibrar Hussain P.W.6 was a neighbour of the complainant. It had been claimed by Noor Ahmad complainant in the F.I.R. lodged by him that the open plot where the occurrence had taken place belonged to the complainant party whereas before the learned Trial Court he had conceded that the open plot did not belong to the complainant party and the complainant did not even know the owner of that plot. It was claimed by the complainant in the F.I.R. As welL as before the learned Trial Court that he had taken Muhammad Hussain deceased to the hospital in an injured condition whereas the Medico-legal Certificate issued in respect of that injured victim (Exh-PC) as well as the statement made by Dr. Tahir Ismail (P.W.7) clearly established that it was one Muzammal Hussain who had brought Muhammad Hussain deceased to the hospital in an injured condition at 4-25 a.m. The said Muzammal Hussain was a brother of Muhammad Hussain deceased and he had never been produced by the prosecution as an eye- witness. The record of this case, thus contradicted the complainant regarding his claim regarding taking the injured victim to the hospital. The complainant had claimed that he had presented an application before the local police at the hospital and on the basis of that application an F.I.R. Had subsequently been chalked out whereas Abdul Ghaffar, MHC (P.W.1) had stated before the learned Trial Court that the complainant had presented the said application before him at the police station. The injuries allegedly caused by Shahadat C Ali appellant to Muhammad Hussain deceased described in the F.I.R. Were described differently by the complainant before the learned Trial Court. I have pertinently noticed that Noor Ahmad complainant (P.W.4) had admitted before the learned Trial Court that he had sworn an affidavit (Exh.DA) wherein he had observed that Zulfiqar accused had been implicated by him in this case on account of some misunderstanding and that as a matter of fact Zulfiqar accused was not present at the scene of the crime at the relevant time. He had gone on to concede' that he had nominated Zulfiqar accused in the F.I.R. On the basis of suspicion "due to odd night". It is of critical importance to mention here that the same complainant had attributed specific injuries to the deceased to Zulfiqar accused and he had also attributed some other specific injuries to the deceased to the present appellant. If Zulfiqar accused had been implicated by the complainant on the basis of a suspicion then the same could equally be true vis-a-vis the present appellant as well. The said Zulfiqar accused attributed specific injuries to the deceased had been acquitted by the learned Trial Court which acquittal had furnished by Noor Ahmad complainant (P. W . 4).
11. Mazhar Hussain (P.W.5) had stated before the learned Trial Court in black and white that he had seen only one person at the spot causing injuries to Muhammad Hussain deceased. The statement made by the said witness had contradicted not only the F.I.R. Registered in this case but also the statement made by Noor Ahmad complainant P.W.4 before the learned Trial Court. Mazhar Hussain P.W.5 had also sworn an affidavit regarding absence of Zulfiqar accused from the place of occurrence at the relevant time which showed that all the accused persons in this case had actually been implicated on the basis of some suspicion and not on the basis of actually witnessing the occurrence itself. I have pertinently observed that the first statement of Mazhar Hussain P.W.5 had been recorded in this case by the local police on 14-9-2004, i.e, after twelve days of the alleged occurrence and there is no explanation available on the record as to why this so- called eye-witness had appeared before the police after such .a long delay. This witness had claimed before the learned Trial Court that Shahadat Ali appellant had been apprehended by the complainant party at the spot but that was not this prosecution's case at all. Mazhar Hussain P.W.5 had clearly stated before the learned Trial Court that he had reached the place of occurrence after the occurrence was already over. In this view of the matter the status of this witness as an eye- witness of the occurrence was unacceptable.
12. Ibrar Hussain (P.W.6) was a neighbour of the complainant and he had admitted before the learned Trial Court in so many words that he had not seen Shahadat Ali appellant causing any injury to Muhammad Hussain deceased. He had conceded that he had reached the place of occurrence after the injuries had already been caused to Muhammad Hussain deceased. He had maintained that a Kassi had been snatched away by the complainant party from Shahadat Ali appellant at the spot but the Memorandum of Recovery (Exh.PD) shows that a Kassi had been recovered from the appellant's possession on 14-9-2004 i.e, after twelve days of the alleged occurrence. This witness had been declared hostile by the learned Trial Court and he had maintained that the appellant had given one Kassi blow to the deceased whereas the prosecution's case that the appellant had given two Kassi blows to the deceased.
13. The discussion made above clearly shows that the eye-witnesses produced by the prosecution were utterly unreliable and there was every likelihood that they had not seen anybody causing any injury to Muhammad Hussain deceased in the small hours of the night and that they had been procured and planted in this case at some subsequent stage.
14. The motive set up by the prosecution had remained far from being established. The place of occurrence was never proved by the prosecution to be a place where the complainant party used to tether its cattle-head. No date, time or place of any quarrel taking place between the appellant and the deceased prior to the present occurrence had ever been specified by any prosecution witness and, thus, no independent evidence was available on the record to establish the motive set up by the prosecution.
15. The Kassi allegedly recovered at the instance of the appellant during the investigation was not stained with blood and no report of the Chemical Examiner or the Serologist is available on the record of this case so as to connect the recovered Kassi with the alleged offence.
16. For what has been discussed above a conclusion is irresistible and unavoidable that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the F appellant recorded by the learned Trial Court are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case.