1. SHAH NAWAZ KHAN, J.-On the report of Raja son of Mir resident of Chak No. 430; Police Station Tandlianwala, District Lyallpur, which was made b0fore the Sub-Inspector in Tandlianwala town, but outside the police station, a case was registered in Police Station Tandlianwala on receipt of the Marasla Exh. P. B. From the Sub-Inspector, against Ahmad son of Bakhtawar resident of the same Chak and Khan 4on of Farid also of the same Chak under section 302, P. P. C. For causing the death of Sanata brother of Raja complainant.
2. Raja had reported that after Isha Azan time he and his brother Sanata, deceased were returning from the Chak to their respective Dharis. He had a Baitri (torch) with him. He stopped at the Dhari of Haji Khushi Muhammad while his brother Sanata, deceased, proceeded towards his own Dhari.
3. When Sanata deceased, reached Square No. 66 belonging to Ahmad son of Murad, he heard the cries of Sanata and then he heard the sound of Khur Khur. He then lit the torch and started towards that side. After travelling some distance, he saw in the light of the torch that Khan son of Farid was holding the deceased from behind and Ahmad son of Bakhtawar was stangulating the neck of Sanata with the help of cloth, which he had put around that. Raja raised alarm and on his noise Jahangir son of Fazil and Bala son of Farid, the first belonging to Tandlianwala and the second belonging to Chak No. 419, who were passing by the side, arrived. Sing them, Ahmad and Khan accused ran away. Sanata fell down on the ground and when they reached near Sanata, they found him dead.
4. According to Raja Ahmad accused was interested in Mst. Khurshid wife of Sanata, deceased, and they bad developed illicit connections with each other. Sanata had prohibited Ahmad and Mst.
5. Khurshid very strongly from meeting each other, but they continued keeping their illicit relationship.
6. Ahmad with a view to remove the deceased from his way killed him because he wanted to marry Mst. Khurshid. As indicated above, the report was lodged, as it appears, to be in the Tandlianwala town, where the Police station is also situated, but the report was not recorded in the police station, and instead when the Marasla was received in the police station, the report was recorded and the case was registered. In any case as it would appear from the F. I. R. Exh. P. B/1 the report was recorded at 10-45 p.m. On 12-3-1974, but we do riot know when the case was actually registered in the police station. In any case the Sub-Inspector proceeded straight to the scene of occurrence where he started investigation. The torch, which was the only mode through which the assailants were identified by Raja and the other two witnesses was, however, not produced before the Sub- Inspector there and then it cannot be found from the record if Raja had taken the torch with him to Tandlianwala whereto he went for report. That torch , according to recovery memo. Exh. P. D. Was recovered and taken into possession by the Said Sub-Inspector on 14-3-1974, although the record of the case put in Court would show that the Sub-Inspector had investigated the case on the spot on 12-3-1974 and 13-3-1974 as well. The Dhoti Exh, P. 1 (chekked) with which the deceased was strangulated was produced by Raja before the Sub-Inspector on 12-3-1974, which he took into possession vide memo. Exh. P. E.
7. Before taking up the evidence, we would refer to the site plan Exh. P. A/1, which is on the file. The deceased (Sanata) was murdered at point No. 1 In Kills No. 66. In the adjacent Square No. 31 of Square No. 37 the Dhari of Haji Khushi Muhammad is situated. These two squares are separated from each other by a Pagdand. The Dhari of Haji Khushi Muhammad is .Shown at point No. 3. It is not clear if in the same Dhari Raja lives because Raja says in his F. I. R. That he stopped at this Dhari while coming back from the Chak and the deceased led his own way to his Dhari. Where the Dhari of the deceased is, has not been mentioned. In any case, the Dhari situated at point No. 3 is on the site plan 5 Killas away from the place where Sanata was murdered. But in this site plan it is nowhere as to wherefrom the other two witnesses (i.e. Jahangir and Bahia came when the occurrence took place.
8. Jehangir (P. W. 9), belongs to Tandlianwala and Bahia belongs to Chak No. 419. Tandlianwala, according to the Investigating Officer, is 2 miles on the proper way and one mile on short cut from the scene of occurrence but he has expressed his ignorance about Chak No. 419 and it is also not shown in the site plan. In any case, according to these witnesses both of them were going on their own way, and they were going to Chak No. 416 from Tandlianwala. According to P. W. Jehangir they started from Tandlianwala at about Azan time of Isha. The occurrence also allegedly took place just after Azan of dsha. In these circumstances it is not under--standable as to how Jehangir or Bahia P. Ws. Could be present near-about the scene of occurrence at that time, after covering two miles distance from Tandlianwala. Jehangir P. W. Says that, that night was dark, and they had no torch or lamp with them. Jehangir also stated that he knew Ahmed accused before hard, who was not or visiting terms with him. Then he says that when they reached the spot Sanata was dead. But he was unable to fell the colour of the cloth which was found on the spot. The witness in his cross- examination gave evasive replies and he denied his relation--ship with Raja P. W., although he admitted that Raja was known to him prior to the occurrence. P W. Jehangir also stated that at that time they were going to the house of the father of Bahia P. W., but later be admitted that they did not go to the house of the father of Bahia, after the occurrence, on that night.
9. Bahla (P. W. 9) has stated that on the `night of occurrence when they reached near the Dhari of Haji Khushi Muhammad they heard the cries. But none of these two witnesses has stated on which path they were going on that dark night without the aid of light from Tandlianwala to Chak No. 419 and they have not been able to state with clarity as to how and why they reached the Dhari of Haji Khushi Muhammad. Moreover it will be appreciated that Raja P. W. Also says that he was at the Dhari of Haji Khushi Muhammad when he heard the cries of the deceased and these two witnesses two were at that time at the Dhari of Haji Khushi Muhammad. According to Bahia P. W. There they heard the cries and then they went towards the spot. But they and Raja did not go together because he says that Raja was already there when they reached the spot. Raja, as be says, had a torch with him, which he lit, add in the light of that torch, they saw that Khan had captured Sanata from behind and Ahmad was strangulating his neck with the help of cloth. Then they raised alarm stating that they were reaching. On this the accused left him and they went away. Sanata fell down on the ground but before the witnesses reached, he was dead.
10. Bahla P. W. Says that, be was taking Jehangir P. W. To his house to his father in Chak No. 419 because they had a family dispute about a Rishta. He also stated that Ahmad accused also used to work at the Dhari of Khushi Muhammad before the occurrence. According to him the Dhari of Khusbi Muhammad may be at a distance of 2 Killas from the spot, but in this respect, he is not supported by the site plan Exh. P. A./1. Then he says that, "I cannot tell the nature of crop, which was standing in the way from where we heard the noise at the place of occurrence". He further stated that he did not know the number of Killas from where they passed through and added that he could not tell the details of the crops standing around the place of occurrence. He was, however, positive in stating that he did not notice any mark of struggle or footprints at the place of occurrence. He, however, denied the suggestion that on arrival of the police, Ahmad son of Murad informed the police that Sanata was killed by some unknown persons in the darkness.
11. Saeed Akbar (P. W. 10), who was then sub-Inspector police at Tandlianwala has stated that he recorded the complaint of Raja P. W., which is Exb. P. B. But he has not explained as to where it was recorded. It was in Tandlianwala but why not in Police Station situated over there. Again Jehangir and Bahia P. Ws. Have stated that they were left behind with the dead body, when Raja left for report, but Saeed Akbar (P. W. 10) has stated that Jehangir and Bahla P. Ws. Met him in the morning, meaning thereby that they were not present on the spot on the night of 12-3-1974 when the Sub- Inspector reached there. Close to the scene of occurrence is the brick---kiln, but P. W. Saeed Akbar Sub-Inspector, says that the persons working at the brick-kiln were not called by him. He did not even call the Chowkidar or Lambardar of the village. He admitted it as correct that the site plan Exh.
12. P. A/1 was prepared by the Patwari on 24-3-1974. He stated that Tandlianwala may 'be at a distance of two miles from the spot on the proper way, and one mile on the short-cut, but he could not tell the distance of Chak No. 419 from the place of occurrence. In this answer of the Sub--- Inspector one thing becomes clear and that is that, Chak No. 419 does not appear to be closely situated to the scene of occurrence or even near about it, and secondly, that on the proper way, Tandlianwala will be two miles from the scene of occurrence. Why Jehangir and Bahia P. Ws.
13. Bypassed the proper way and adopted an unfrequented route not even on a phulla and in such darkness at such a late hour, seriously reflects on the testimony of these witnesses and this is apart from the fact that being closely connected with P. W. Raja and having been left behind with the dead body they were not present when the Sub-Inspector reached the spot and instead appeared or were produced before him on the following day. It would mean that their statements were recorded by the police later although otherwise the police had done a lot on that night on the spot including the recording of the statements of the witnesses.
14. According to Doctor Ghulam Rasool (P. W. 9), (statement made before the Committing Magistrate and transferred to Sessions file) who performed the post-mortem examination on the dead body of the deceased, the death of the deceased in his opinion was due to asphyxia caused by strangulation and the probable time between injuries and death was 3 to 5 minutes. But all the three eye-witnesses have stated that when they reached Sanata, on the spot, he was already dead, which would mean that they came to the spot later when the assailant or assailants, as the case may be, had already disappeared in darkness. Of course motive for charging Ahmad was there, because according to Raja he had illicit connection with Khurshid, wife of the deceased although Khurshid was never produced in the witness box, or cited as a witness. This fact about motive has not found any independent evidence for corroboration. The accused is stated to be aged 45 while the deceased was a younger man, well-built and stout and we know nothing about Khurshid as to how old she is, or whether she has any children from Sanata.
15. On this very evidence the Additional Sessions Judge and the High Court have discarded the testimony of these witnesses so far as Khan accused is concerned and the reason, as given, is that Khan had no motive in the matter and, therefore, he did not participate, although for no stronger proved reason they have found that Ahmad had strangulated to death the deceased and it was purely on the assumed motive, which, as indicated above, has not been proved to the hilt.
16. The High Court's conclusion that the F. I. R. Contained full details of the prosecution case including the name of the appellant supported by the motive and medical evidence and holding that Ahmad was guilty of the offence of which he was accused would not appear to be sustainable. The High Court has also observed that. "There is no mention of the place where the torch was produced by the complainant. Even if it be conceded that it was the place of occurrence, still it does not materially prejudice the prosecution case." And then they maintained that, "A human being is likely to make such mistakes". But they apparently failed to appreciate that it was not a mistake but the prosecution had failed to prove that the assailants had been identified with the help of the light of the torch. The torch was not produced before the Sub-Inspector for two days and it was on the 3rd day of the occurrence' that Raja produced a torch before the Sub-Inspector with the help of which he hart been able to identify the killer in darkness.
17. We have carefully considered the evidence and other material on record and we are of the view that it is an unseen occurrence, and, therefore, the accused is entitled to the benefit. We, therefore, accept this appeal an acquit the accused and direct that he shall be released forthwith, if not required in any other case or for, any other offence.