' Abdur Rehman appellant has appealed in this Court through Superintendent Jail against his conviction under section, 302, P.P.C. And the sentence of life imprisonment and a fine of Rs,2,000 alongwith compensation of Rs,1,000 awarded to him by the learned Additional Sessions Judge, Gujranwala by means of his judgment dated 3rd of April, 1988 in a case registered against the appellant and his brother Muhammad Abbas at Police Station Baghbanpura, Gujranwala under section 302/324/34, P.P.C. Vide FIR No,499/86 causing the death of Munir Masih and murderous assault on Akram Masih, Aslam Masih and Khara Masih on 21st of March, 1986 at about 6 p.m. In Mohallah Chiragh Nagar Noshehra Road, Gujranwala.
2. The other accused Muhammad Abbas was convicted under section 324 P.P.C. For causing injuries to Akram Masih P.W. And sentenced to two years' R.I. And a fine of Rs,1,000 and was directed to pay compensation of Rs,2,000.
3. According to the case of the prosecution Muhammad Abbas co-accused who is brother of the present appellant, had teased Mst. Robina, a niece of first informant Akram Masih and Munir Masih deceased for which he was reprimanded by Akram Masih which resulted in an altercation. It is alleged that Muhammad Abbas co-accused having gone away subsequently came back armed with a hatchet and Abdur Rehman appellant who was armed with a dagger and attacked the complainant party causing injuries to Akram Masih, Aslam Masih, Khara Masih and Munir Masih.
The injury to Munir Masih deceased on his abdomen was attributed to appellant Abdur Rehman who is alleged to have caused it by giving a dagger blow. Subsequently Munir Masih succumbed to the injury.
4. Unfortunately from a perusal of the judgment of the trial Court it appears that the case as against the appellant was neither examined nor-considered by it but conviction was recorded against him without giving any reason. As already noticed, Muhammad Abbas co-accused had admitted his presence at the time of incident while Abdur Rehman appellant had taken up the plea that he was never present. The trial Court while deciding this case appears to have focussed its attention only on the question as to whether the plea raised by Muhammad Abbas co-accused that he has caused injuries to the complainant party while acting in self-defence was correct or not. There is no discussion at all as regards Abdur Rehman appellant's plea of alibi.
5. After hearing the learned counsel for the appellant and appraising the evidence with his assistance it appears that the prosecution has failed to prove its case beyond doubt against the appellant. The incident took place at 6 P.M. On 21- 10-1986 while the F.I.R. Was lodged on 23rd of October, 1986 i,e, after a delay of more than two days. The explanation offered in this behalf that since Munir Masih injured was taken to the Mayo Hospital, Lahore and the F.I.R. Was lodged only after returning the complainant with the medico-legal report which is belied by medico-legal certificate P.1 which bears the date 26th of October, 1989.
6. According, to the case of the prosecution itself that at the time when the occurrence took place, bricks were thrown at the accused but surprisingly enough no injury was found on the person of Abdur Rehman which makes his presence-at the spot highly doubtful. Abbas co-accused was injured during the incident as is proved from medical report and the testimony of D.W.1 Dr. Riaz Ahmad but these injuries were suppressed by the prosecution. The eye-witnesses produced, were intimately connected with the complainant and the deceased and there is no independent corroboration forthcoming on the record. As regards the recovery suffice it to say that out of the two witnesses P.W. Said Masih was given up while other recovery witness P.W.5 namely Bashir Masih was declared hostile. According to his testimony other Mohallandars were present but they were not associated with the recovery. He is not resident of the same street where the appellant resides.
No reason as to why any of neighbours who were present at the time of recovery, was not associated in the proceedings and he had to be specially summoned from his house.
7. From a cross-examination of Akram Masih P.W. It is evident that his statement was full of contradictions and is contrary to his previous statement. Similarly P.W.9 Aslam Masih categorically denied that Abbas accused had been injured during the occurrence but this part of the statement is belied by the medico-legal report of Muhammad Abbas and the statement of D.W. 1 the doctor who had examined him. As regards P.W.1 it is to be noticed that not only he is from the same brotherhood as the complainant but also he and Akram Masih, Aslant Masih and Khara Masih are all employees of Municipal Corporation of Gujranwala. According to his own admission his house is about 3 lanes away from the place of occurrence and that the place of occurrence is not visible from his house. His cross-examination is full of contradictions. He was confronted with his previous statement Exh.D.B. Wherein he had mentioned that he had been attracted to the spot on hearing the alarm while in his statement before the Court his reason for his presence given was that he was coming from his field on his way to his house. He tried to improve his statement and deposed that he has stated before the police that he, was coming from the field and saw the occurrence but it is not so mentioned in his statement Exii.D.B. Other serious contradictions are also apparent on the face of the record.
Even otherwise the version of the prosecution as regards the motive is doubtful and has not been satisfactorily proved. According to the testimony of D Mst. Robina P.W.4 she was pasting cow-dung cakes on the wall of her house. Similar statement 'was made in his examination-in-chief by P.W.8 but, he contradicted himself in cross-examination and stated that that house belongs to him.
However Aslam Masih P.W.9 described the said house as belonging to Khara Masih, grandfather of Mst. Robina. Thcse contradictions also make the case of prosecution doubtful. In these circumstances the appellant is entitled to benefit of doubt.
In view of what has been stated above this appeal is accepted, the conviction and sentence of the appellant is set aside and he shall he set at libertyI F if not required in any other case. The appellant he informed in jail accordingly.