JUDGMENT MAZHAR IQBAL SIDHU, J. - This judgment will dispose of above-captioned three criminal appeal? Filed independently by appellants Zafar, Nasir Ali and Muhammad Mumtaz respectively who were convicted by learned Addl. Sessions Judge-II, Pakpattan Sharif in case vide F.I.R. No. 702/06, dated 24.09.2006 under Sections 302/34, P.P.C, registered at P.S. Saddar, Pakpattan Sharif vide impugned judgment dated 17.4.2009 and sentenced infra:-
(1) ZAFAR,
(2) NASIR ALI
(3) MUHAMMAD MUMTAZ
(i) Life imprisonment each under Section 302(b), P.P.C, and to pay Rs, 50,000/- each as compensation to the legal heirs of the deceased Allah Rakha under Section 544-A, Cr.P.C, and in default whereof to further undergo SI for six months each.
They were also extended the benefit of Section 382-B, Cr.P.C.
2. Pithily the facts of the case as debunked by the complainant Muhammad Munir (PW.8) in F.I.R.
Exh.PA/1 is that he is resident of Dhuddi Khizan Singh, Tehsil Minchinabad, District Bahawalnagar. His brother Allah Rakha son of Allah Din was married with Ms). Shima Bibi 17/18 years ago. Mst. Shima Bibi was abducted by Muhammad Ahmad. Mumtaz who was On visiting terms with the in-laws of his brother AIM Rakha old them that he had "MOAKKALS" in his control and that he could get Mst.
Shima Bibi returned through his Moakkals. In view of this impression, he alongwith his brother Allah Rakha deceased, Ahmad Yar and Ashraf residents of Chak Thanedarwali went to Mumtaz on 23.9.2006 and slept in his cattle shed. The bulb was illuminated. At about 2.30 a.m. (night), he heard the clamour of his brother Allah Rakha deceased, they were up and saw that Mumtaz appellant armed with dagger-, Zafar appellant armed with Chhurri and Nasir appellant armed with knife had encircled Allah Rakha. Deceased and within their view Mumtaz appellant inflicted dagger blow on Allah Rakha hitting him on left side of his chest. Zafar appellant inflicted Chhurri blow hitting his brother Allah Rakha deceased on right side of his belly, Nasir appellant inflicted knife blow hitting Allah Rakha deceased on left side of his belly. Then, all the three appellants one after the other inflicted injuries on face, chin, belly, chest and feet of Allah Rakha with their respective weapons who fell down-ion the ground and succumbed at the spot after a short while. Due to fear, they could not go near. The appellant raising Lalkaras made of from the place of occurrence. All die accused in furtherance of their common intention murdered his brother Allah Rakha, He left Ahmad Yar and Ashraf PWs at the dead-body to guard it and went to police station. Hence, instant case.
3. Khadim Hussaina SI (PW.14) reached at the place of occurrence he inspected the dead-body of Allah Rakha deceased, prepared the injury sheet of dead-body Exh.PB/3 and inquest report Exh.PB/4 and sent the , dead-body to DHQ Hospital, for its post-mortem examination under the escort of Muhammad Rafique 2Q46/C. He inspected the spot, prepared the rough site plan Exh.PH, recorded statements of the PWs under Section 161, Cr.P C., collected the blood-stained earth, made it into sealed parcel and took it into possession vide recovery memo. Exh.PJ attested by the PWs.
Muhammad Rafique Constable produced before him last worn clothes of the deceased i.e. Shirt P.4 and Shalwar P.5 which were blood-stained, the same were taken into possession by him vide memo. Exh.PD attested by the PWs.
Thereafter, the investigation was conducted by Ashfaq Hussain, Si (PW.1 3) who recorded the statements of the witnesses Muhammad Hafiz 1! l/C and Muhammad Sadiq 476/C under Section 161, Cr.P.C. He arrested appellant Mumtaz and Zafar on 17.10.2006. He also got prepared scaled site plan Exh.PC, Exh.PC/1 and Exh.PC/2 from the draftsman. On 28.10.2006 Mumtaz appeal made disclosure and got recovered dagger P.I which was taken into possession vide memo. Exh.PD attested by the PWs. On the same day, Zafar appellant also made disclosure and got recovered Chhurri P-2 which was taken into possession vide recovery memo. Exh.PE attested by the PWs. On 18.11.2006 he. Arrested appellant Nasser Ali who also made disclosure and got recovered knife P-3 from his residential house which was taken into possession vide recovery memo. Exh.PF attested by the PW. He recorded the statements of PWs stage-were. He handed over the case property to the Moharrar for its case custody in Maalkhana. He prepared report under Section 173, Cr.P.C, and submitted in the Court.
4. Learned Trial Court after observing all the pre-trial codal formalities, indicted the appellants to which they did not plead guilty and claimed trial. Thereafter, the prosecution was directed to lead evidence in order to substantiate the charge.
5. The prosecution in order to prove its case produced 14 PWs in all.
The medical evidence was adduced through the statement of Dr. Jaleel Ahmad Bhatti, M.O. (PWA) who on 24.9.2006 performed autopsy on the dead- body of deceased Allah Rakha and observed infra:- INJURIES:
(i) Three stab wounds of size 2.5 cm each on right side of cheek in an area of about 4x4 cm.
(ii) Five stab wounds of size 3 x 1/4 cm on left side of cheek in an area of about 5 cm round.
(i.e) Three stab wounds on upper margin of right eye, each of size 2 x 0.5 cm.
(iv) A stab wound of size 4 x 0.5 cm on supers sternal area going deep.
(v) Nine stab wounds going deep on size 3 x 0.5 cm each in left pre-cordial area of about 10 cm.
(vi) Five stab wounds of size 3 x 0.5 cm on right side of abdomen going deep in about 10 cm area in right flank.
(vii) Six stab wounds of size 3 x 0.5 cm on left side of abdomen going deep in about 7 cm area in left flank.
(viii) Two stab wounds of size 4 x 0.5 cm on front of left thigh which are 1 cm apart.
(ix) Three stab wounds on left buttock in about 5 cm area of size 2 x 0.5 cm.
OPINION: In his opinion, the cause of death was haemorrhage and shock due to injury Nos.4&5 already mentioned. All injuries were anti-mortem in nature and caused by sharp-edged weapon.
Probable time that elapsed, between death and post-mortem was within 12 hours.
Exh.PB was the correct carbon copy of post-mortem report, Exh.PB/1 and Exh.PB/2 was the pictorial diagram of injuries, the same bore his signatures.
Learned ADPP renounced PWs namely Gulzar Ahmad Constable, Muhammad Sharif, and Saleh Muhammad Constable as being de-trop whereas PW Arshad alias Ashraf as being won over by the accused party and thereafter he by tendering in evidence report of Chemical Examiner regarding bloodstained earth Exh.PK, report of Chemical Examiner regarding Dagger Exh.PL, report of Chemical Examiner regarding Chhurri Exh.PM and report of Chemical Examiner regarding knife Exh.PN, closed the prosecution case.
6. Thereafter, statements of the appellants were recorded under Section 342, Cr.P.C, wherein they negated the charges and professed their innocence. They neither opted to make statement on oath as required under Section 340(2), Cr.P.C, nor opted to produce defence evidence.
Appellant Zafar in reply to a question why this case against you and why the PWs deposed against you, replied in/ra:- "I have been involved in this case due to suspicion and my friendship with Mumtaz my co-accused.
I adopt the statement of Mumtaz co- accused in this respect."
Appellant Nasir Ali in reply to the same question replied as follows:- "I have been involved in this case due to suspicion, and because of being tenant of Mumtaz my co- accused. I adopt the statement of Mumtaz Co accused in this respect".
Appellant Muhammad Mumtaz in reply to the same question replied as under:- "The PWs are residents of District Bahawalnagar1 and Chan Peer Pakpattan and their residences are located at a very long distance from the place of occurrence. Allah Ditta son of Bashir Ahmad PW is my opponent and is inimical towards me and my co-accused due to party faction in the village. He was neither cited as eye-witness in the F.I.R.
Nor made any statement as eye-witness during investigation of this case. Due to personal animosity he for the first time appeared in the Court and posed him to be an eye-witness of the occurrence. The PWs have played in the hands of our opponents and involved me and my co- accused in this false case, actually, it was a blind murder taken place in the darkness of the night.
The police did riot try to take the actual culprits and due to influence of Shafiq Khan Balouch, Inspector Police and Muhammad Afzal Balouch, inspector Police involved and challaned me and my co-accused in this case".
7. On the conclusion of trial the appellants were convicted and sentenced as mentioned supra.
Hence, instant appeals.
8. Learned counsel for the appellants submits that occurrence was seen by the complainant examined as PW.8, Ahmad Yar and Muhammad Ashraf, out of whom Ahmad-Yar was declared hostile as he reneged of his previous statement whereas Muhammad Ashraf was given up being unnecessary, however, PW.8 alone supported the contents pf F.I.R. No other evidence exists to corroborate the version of the complainant. Allah Ditta who was the witness of identification of the dead-body when appeared before Court attempted to depose about the ocular account of the prosecution case but his statement was. Duly confronted with his statement recorded under Section 161, Cr.P.C., in this way, his statement qua the improvements carries no value in the eye of law. In these circumstances, learned counsel submits that it would be hazardous to rely upon the sole statement of PW.8 complainant for upholding die life sentences of each appellants and has relied upon case tided Imtiaz v. The State (1999 AC 289) and has thus craved for acceptance of instant appeals.
9. Learned DPG has opposed the submissions of learned counsel for the appellants by tooth and nail.
10. Arguments have been hearkened. Record has been scanned minutely.
11. It has been found expendable to dilate upon the motive, medical evidence as well recovery evidence on account of peculiar circumstances of the case as except PW.8 Muhammad Munir (complainant), any other eye-witness of the F.I.R, has not supported the prosecution version. Now thrust is made to appreciate the statement of complainant Munir Ahmad (PW.8), Undeniably, he is related to the deceased Allah Rakha but has not been corroborated by any independent evidence.
PWs have been shown to have seen the occurrence were also near to him but has not supported his version, perhaps, on account of falsity hut the fact is fact, alone statement of complainant PW.8 exists on the file, therefore, it is difficult to rely upon it in absence of any independent corroboration, therefore, reliance is placed bn case-law tided Imtiaz V, The State (1999 AC 289) and its Headnote
(a) is reproduced infra:-
(a) Penal Code (XLV of 1860)-- "S. 302. Convict would be entitled to benefit of doubt when complainant and PWs had improved their statements where mashirs of recovery were declared hostile. High Court in such case accepting appeal, setting aside conviction/sentence and ordering acquittal of appellant".
(b) Ibid-- "S. 302. Conviction for offence under Section 302 can be based on evidence of solitary witness if it is found to be reliable".
12. In view of this, instant appeals are allowed, consequently, conviction and sentences of all the appellants are set aside and they are acquitted of the charges imputed against them by extending benefit of doubt. Appellants Zafar and Nasir Ali are in bridewell, they are directed to be affranchised, in a trice, if not required in any other case. However, appellant Muhammad Mumtaz is on bail by suspending quantum of sentence. His surety stands discharged fr6m his liability.