' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Zahoor Ahmad son of Akbar Khan, caste Watoo, resident of Chak No,396, GB, Tehsil Tandilianwala, (District Faisalabad appellant along with Umar Farooq and Muhammad Saeed was involved in case F.I.R. No,173 of 2006, dated 24-4-2006, offence under sections 302, 109, 34, P.P.C., registered with Police Station Pir Mahi, District Toba Tek Singh, and was tried by learned Additional Sessions Judge, Toba Tek Singh, who vide judgment dated 30-7-2008, convicted the appellant under section 302(b), P.P.C. And sentenced him to imprisonment for life and under section 457, P.P.C., the appellant was sentenced to 10 years' R.I. With fine of Rs,3,000 and in default whereof, to further undergo two months simple imprisonment. Benefit of section 382-B, Cr.P.C. Was also extended in favour of the appellant and both the sentences were ordered to run concurrently. Feeling aggrieved by the judgment of the learned trial Court, the appellant has assailed the same through filing of instant criminal appeal.
2. The prosecution story as alleged in the F.I.R. (Exh.G/1) lodged on the complaint (Exh.G) of Muhammad Murad (P.W.8) is that he is labourer by profession and at night between 23/24-4-2006 at 12-45 a.m, he, his brother Inayat, Mst. Bushra and children were sleeping in the courtyard, where the electric bulb was lit. Meanwhile, two unknown persons armed with hatchets trespassed into the house by scaling over the wall. On hearing the voice of their steps, he and Mst. Bushra Bibi (P.Ws.) awoke up. The culprits raised lalkara that if anybody made noise, he would be done to death.
Simultaneously both the culprits inflicted successive hatchet blows on the head of Inayat deceased. The culprits were wearing shalwar qameez and were of normal height, stature and wheatish colour. They fled away taking the same course. The complainant and Mst. Bushra Bibi attended the deceased Inayat who succumbed to the injuries at the spot. On hue and cry of the complainant and others, people of the locality reached at the spot. The complainant and Mst.
Bushra Bibi could identify the culprits on their production in view of their stature, colour and other features. The complainant was about to proceed for reporting the matter to Police Station, Liaqat Ali, S.-I. Reached at the place of occurrence after receiving information about the occurrence, who recorded the statement of complainant, upon which formal F.I.R. Exh.PG/1 was lodged without any addition, deletion or omission.
3. After registration of formal F.I.R., Asghar Ali, S.-I. (P.W.13) the Investigating Officer proceeded to the place of occurrence, inspected the dead body, prepared injury statement and inquest report. The Investigating Officer also handed over the dead body to Muhammad Sadiq, constable for escorting the same to the mortuary. The Investigating Officer also collected blood-stained earth from the place of occurrence and took the same into possession vide recovery memo Exh.PF. The Investigating Officer also prepared site plan Exh.PJ. After post mortem examination, Muhammad Sadiq, constable presented one sealed envelope, last worn clothes of the deceased including bloodstained qameez (P-1) and shalwar (P-2). Thereafter the investigation was handed over to Liquat Ali S.-I., (P.W.12). The complainant through supplementary statement recorded on 25-4-2006 nominated the appellant along with others and the Investigating Officer formally arrested the appellant on 31-7-2006, who during physical remand made' disclosure and led to the recovery of hatchet (P-7), which the Investigating Officer took into possession from his residential house vide recovery memo. Exh.PH. On the direction of Investigating Officer and on the pointing out of P.Ws., Muhammad Ashraf, Draftsman (P.W.2) prepared the scaled site plant of the place of occurrence Exh.PB and Exh.PB/1. The Investigating Officer also recorded the statements of prosecution witnesses under section 161, Cr.P.C.
4. During the course of investigation, the Investigating Officer found the appellant guilty and submitted report under section 173, Cr.P.C., to the court of competent jurisdiction, which was en- routed through Illaqa Magistrate as provided under section 190(2), Cr.P.C.
5. The learned Additional Sessions Judge, Toba Tek Singh, framed charge against the appellant.
The appellant pleaded not guilty and claimed trial. Prosecution in order to substantiate its case, produced as many as 14 witnesses.
6. Occular account in this case has come out from the statements of Muhammad Murad, who is complainant of this case (P.W.8) and Mst. Bushra Bibi, widow of Inayat deceased (P.W.9).
Muhammad Ashraf, Draftsman appeared as P.W.2, who on the directions of the Investigating Officer and on the pointing out of P.Ws. Prepared scaled site plan of the place of occurrence Exh.PB and Exh.PB/1. Liaqat Ali, S.-I. (P.W.12) and Ashgar Ali, S.-I. (P.W.13) are the Investigating Officers of this case while identification parade was conducted by Mr. Wajid Minhas, Judicial Magistrate, (P.W.14).
Dr. Faquir Muhammad Chaudhary, Deputy DHO Kamalia (P.W.4) had conducted the postmortem upon the dead body of Inayat, deceased and found following injuries on his person:-- "(1) A cut wound 23 cm x 15 cm x bone cut (brain is out from front to back of head).
(2) A cut wound 13 cm x 8 cm x bone cut on the left side of forehead and head."
' After conducting postmortem examination, the doctor arrived at the following opinion: -- "In my opinion, the cause of death was shock and haemorrhage (external and internal) due to Injuries Nos.1 and 2 which were sufficient to cause death in ordinary course of life. All the injuries were ante-mortem and were caused by sharp-edged weapon. The probable duration that elapsed between injuries and death was immediate and between death and post mortem was about 6 to 8 hours."
' Statements of rest of the prosecution witnesses are formal in nature.
7. On 21-5-2008, the learned DDPP, gave up Allah Ditto, P.W. Besides giving up Muhammad Saleem and Kambeer P.Ws. On 28-5-2008 being unnecessary. Vide separate statement; the learned DDP after tendering report of the Serologist closed the prosecution case.
8. Zahoor Ahmad, appellant was examined under section 342, Cr.P.C; wherein he opted not to appear under section 340(2), Cr.P.C. As a witness of his own to disprove the allegations levelled against him, however opted to produce defence evidence. In response to the question why the case is against him and why the P.Ws. Deposed against him, he made the following deposition:-- "On both sides i.e, complainant side and accused side murders were committed. My father Muhammad Khan was murdered in 1991 by Enayat deceased and Muhammad Murad complainant. They faced trial. After deliberation they involved me in this case. Some enemy of the deceased committed his murder. I had not committed his qatal. Due to previous enmity and commission of murders on both sides when I was a child both sides knew each other. Muhammad Murad P.W. And Mst. Bushra P.W. Know me as I had been attending the murder case of my. Father.
As I was involved they would have nominated me in the F.I.R. Drama of identification parade was played. To make sure I was shown to them at the Police Station as admitted by Muhammad Murad in cross-examination. Even at the time of identification parade a relative of the deceased was detailed to call P.Ws. Inside the room in District Jail, Jhang at the time of identification parade. The Magistrate was in person. Prior the time that person was sent outside the room to call P.Ws. After seating me at the particular place. Thereby he informed the P.Ws. About my position. Thus Muhammad Murad and Mst. Bushra Bibi P.Ws. Were facilitated to identify me at the time of identification parade."
' On 16-7-2008, appellant while tendering copy of F.I.R. No,49 dated 21-3-1991 Exh.BA, copy of F.I.R.
No,275 dated 17-6-1991 Exh.DB, copy of F.I.R. No,333 dated 17-6-1991 Exh DC and copy of F.I.R. No,332 dated 13-7-1993 Exh.DB closed the defence evidence.
9. After hearing the arguments advanced by the learned counsel appearing on behalf of both the parties, the learned trial Court, while evaluating the evidence available on record, found the version of the prosecution correct, resulting into conviction of the appellant in the above said terms.
10. Learned counsel for the appellant contends that initially the F.I.R. Was lodged against two unknown culprits, but later on through supplementary statement got recorded by the complainant, the prosecution has enhanced the number of the same from two to four, Learned counsel next submits that the appellant is not nominated in the F.I.R. Learned counsel further argues that both the parties are closely related to each other and during the whole proceedings before the learned trial Court, the prosecution witnesses have not stated that the culprits were with muffled faces at the time of alleged incident, as such, being closely related to each other, when the culprits were with open faces, therefore, question of non-identification at the time of alleged occurrence cannot be taken as true. Learned counsel further argues that Muhammad Khan, the father of the appellant was murdered by Inayat, deceased and as such, the appellant had been falsely implicated in this case. Learned counsel further submits that Muhammad Murad, (complainant), P.W.8 has admitted close relationship between the parties. Learned counsel further submits that as per record, date of arrest of the appellant has been mentioned as 31-7-2006, whereas according to the statement of Liaqat Ali, S.-I. P.W.12/Investigating Officer, the appellant got recovered the hatchet on 4-10-2006, so recovery of the hatchet after the lapse of three months is un-understandable. Learned counsel further submits that out of four persons nominated through supplementary statement recorded on 25-4-2006, Umer Farooq co-accused was acquitted by the learned trial Court, whereas Muhammad Saeed, co-accused was declared as proclaimed offender by the learned trial Court.
However, the police declared Muhammad Sarfraz co-accused innocent and he was not even sent for trial. Learned counsel submits that the learned trial Court has given the premium of innocence to Umer Farooq, co-accused, whereas the appellant has been convicted on the basis of same set of evidence. Learned counsel submits that in view of admitted previous enmity between the parties, statements of the prosecution witnesses cannot be taken into consideration without independent corroboration, which is lacking in the instant case. Learned counsel next stated that prosecution case is based on conjectures and surmises and the incident had taken place at odd hours of night, therefore, the story advanced in the crime report does not appeal to prudent mind.
Learned counsel lastly argued that in the given circumstances, the appellant is also entitled to be acquitted of the charge.
11. As against above, learned D.P.-G. Has forcefully opposed the contentions raised on behalf of the appellant. Learned D.P.-G. Submits that the appellant had got recovered hatchet. Moreover, in the identification test parade held on 16-9-2006, the prosecution witnesses have correctly identified the appellant as culprit and further that during the course of investigation, the appellant has also been found guilty. It is stated that the prosecution had proved its case against the accused beyond shadow of doubt by leading cogent and confidence inspiring evidence, therefore, the learned trial Court while appreciating the prosecution evidence in its true perspective, has rightly convicted the appellant. It was lastly argued that minor discrepancies in the statements of the prosecution witnesses are natural and these do not shatter the prosecution evidence in totality.
The learned trial Court had rightly convicted the appellant while giving plausible reasons and no exception can be made to the judgment rendered by the learned trial Court.
12. I have given my anxious consideration to the arguments advanced by learned counsel for the appellant as well as learned D.P.-G. And gone through the record with their able assistance.
13. Admittedly the appellant is not nominated in the F.I.R. Initially in the crime report lodged at the instance of Muhammad Murad, complainant (P.W.8.), two unknown persons were stated to have committed the murder of Inayat deceased while trespassing into his house, but later on through supplementary statement made by the complainant on 25-4-2006, the number of accused persons has been enhanced from two to four. Moreover, out of said four persons, accused Sarfraz had been found innocent by the police and even he was not sent for trial before the learned trial Court, whereas accused Muhammad Saeed has been declared proclaimed offender and Umer Farooq has been acquitted of the charge by the learned trial Court. It is an admitted fact on the record that Inayat deceased was involved in murder of father of present appellant and they were also closely related to each other. Previous enmity between the parties is admitted in the instant matter and in view of previous enmity; statements of the prosecution witnesses without independent corroboration cannot be taken into consideration. Moreover, the alleged recovery of hatchet after the passage of three months is also doubtful. Though during the course of identification test parade, Muhammad Murad, complainant (P.W.8) had identified the appellant, but it is admitted by him while appearing as P.W.8 that prior to identification test parade, the appellant was seen by him in the police station and he remained there for a considerable time, which fact has also not been refuted by the Investigating Officer. The appellant in his statement recorded under section 342, Cr.P.C. Has stated that he had been repeatedly shown to the prosecution witnesses by the police in the police station. Even otherwise, there is no denial to this fact that both the parties are related inter se and in case the accused persons were not with muffled faces at the time of occurrence, identification of the appellant was not difficult for the prosecution witnesses at the spot. Moreover, on the basis of same prosecution evidence, the learned trial Court acquitted Umer Farooq co-accused.
14. From the facts and circumstances narrated above, I am persuaded to hold that prosecution has badly failed to substantiate its case against the appellant to the hilt and the impugned judgment rendered by the learned trial Court is based on misappreciation of evidence available on record and is against all cannons of law recognized for the dispensation of criminal justice. As per dictates of law benefit of every doubt is to be extended in favour of the accused and the learned trial Court was not justified in convicting the appellant while basing such interesting evidence especially when co-accused Umer Farooq had been acquitted of the charge. Resultantly Criminal Appeal No,180-J of 2008 is ACCEPTED in toto. The sentence inflicted upon the appellant by the learned Additional Sessions judge, Toba Tek Singh, vide judgment dated 30-7-2008 is set at naught, as a consequence whereof Muhammad Zahoor appellant is acquitted of the charge and he is ordered to be released forthwith, if not required in any other case.