ABDUL SHAKURUL SALAM, J.---This appeal by leave arises in the following circumstances: The appellant Ishaq Masih was tried alongwith three others, Niamat Masih, Rehmat Masih and Mukhtar alias Mukha Masih under section 302/34, P.P.C. For having caused the murder of Inayat Masih. They were found guilty and sentenced to life imprisonment and fine of Rs. 5,000 each in default to suffer further two years' R.I. Each. It was directed that on realization of the fine the same shall be paid to the heirs of the deceased as compensation under section 544-A, Cr.P.C. Excepting Mukhtar alias Mukha Masih the three convicts filed an appeal before the Lahore High Court which has been dismissed by a learned Judge vide order dated 24-5-1988. Only Ishaq Masih appeals.
2. Relevant facts are that Kashmira (P.W.7) lodged F.I.R. On 16-1-1985 at 7-50 a.m. In respect of the occurrence which had taken place previous night at 9-00 p.m. He said that he alongwith his family lived in village Manik and was a labourer. His paternal-cousin Inayat Masih (the deceased) was a domestic servant for the last two years of Malik Noor Muhammad and lived with his family in the Haveli of his employer situated -in Rakhpura. On 15-1-1985 at evening time, he alongwith Andaryas, resident of Garden Town, Lahore came to see the deceased in the Haveli of Malik Noor Muhammad.
They were sitting in the Baithak of the Haveli when the owner's son Muhammad Amin (P.W.6) switched on the television. He, the deceased, Andaryas and Muhammad Amin were watching the television when there was a breakdown in the electricity at 9-00 p.m. The television went off. While he and the other two persons kept on sitting in the Baithak, the deceased Inayat Masih went out to pass urine. After sometime the complainant, Andaryas and Muhammad Amin came out of the Baithak and heard voices at some distance towards the West of the Haveli. They proceeded to find out about the cause of the voice. The complainant had a torch. When they reached near the place of the voice, he saw in the light of the torch that Mukhtar alias Mukha was giving hatchet blows to the deceased Inayat Masih on his head who on receipt of injuries had fallen down. Then Niamat Masih, Rehmat Masih and Ishaq (the appellant) started giving blows with their Chhuris to the deceased. While doing so the accused were saying that now the deceased would know the consequences of having given the information about the abduction of a woman by Mukhtar Masih who was arrested by Police on the basis of the said information. When the complainant and others reached near the assailants, the latter ran away alongwith their weapons. The deceased died of his injuries.
3. At the trial evidence was led of the occurrence, motives and recovery of Chhuri P8 from the appellant. The appellant denied the charge levelled against him and produced DW 3 Nazir Masih to prove alibi to the effect that he was working in the Lahore Zoo from morning till 10.00 p.m. On the day of occurrence. Testimony as regards the motive and recovery was rejected by the learned trial Court as well as by the learned Judge of the High Court. Reliance was placed on the eye-witness account furnished by the complainant Kashmira P.W.7 and Muhammad Amin P.W.6 for entering the conviction. Relying on the eye-witness account the conviction and sentence have been maintained.
4. Learned counsel for the appellant contended that it was a case of blind murder in the night. The complainant was called from his village next morning of the occurrence when the dead body was found and that is why delay in lodging the FIR. He secondly contended that the story that the deceased had gone from the Baithak to urinate to a distance of 66 Karams, the place of occurrence, in the night is most unnatural when immediately adjacent to the Baithak there were fields, even with crops, where he could have done the needful. So also the story of the eye- witnesses going out and seeing the deceased in torchlight being inflicted injuries by the assailants.
Identification from a distance of 66 Karams per site plan would be nearly impossible. Lastly, it was submitted that there is nothing in the prosecution evidence to show as to how the appellant or his co-accused were to know that the deceased at the particular hour would in the night come out to urinate and cross the fields to reach the place of occurrence.
5. We have heard the learned counsel for the parties and gone through the evidence with their assistance. The learned counsel appearing for the State has not been able to successfully controvert the contentions raised by the learned counsel for the appellant. Both the eye-witnesses are not the residents of the vicinity of the place of occurrence. Muhammad Amin PW 6's residence with his family is in village Jilyana at the distance of two miles and Kashmira P.W. 7 is resident of village Manak. Their presence in the Baithak of the Haveli, looking at the television and going out of the deceased at a considerable distance in the cold wintry night crossing over fields to urinate appears to be too chancy. We do not think that the evidence on record is sufficient enough to warrant conviction in accordance with the well-established principles of safe administration of criminal justice. In this view of the matter, we would allow this appeal. The appellant shall be released forthwith if not required in any other case.