' MUHA MMAD RAFIQ TARAR, J.--This appeal by Rehmat alias Rehma Masih, with the leave of this Court, is directed against the judgment of a learned Single Judge of the Lahore High Court dated 24-5-1983 whereby his appeal against his conviction under section 302/34, P.P.C. Carrying a sentence of imprisonment for life and a fine of Rs,5,000 was dismissed. The appellant was tried alongwith Ishaque Masih, Niamat Masih and Mukhtar Masih alias Mukha who were also likewise convicted and sentenced by the learned trial Judge.
2. The FIR. Was lodged on 16-1-1985 at 7-15 a.m. By Kashmira P.W.7 a resident of Village Manak wherein he alleged that on the preceding day i,e. On 15-1-1985 he alongwith Andaryas P.W. Went to Village Rakhpura in order to see his paternal cousin Anayat Masih who was working as a domestic servant with one Malik Noor Muhammad and was residing in his Haveli situate in the said village. At night time Muhammad Ameen son of aforesaid Malik Noor Muhammad switched on his television in the Baithak and they started seeing it. At about 9-00 p.m. The television set went off due to breakdown in the electric current. The deceased went out for urination leaving him, Andaryas and Muhammad Ameen in the Baithak. After sometime they also came out of the Baithak and heard vioces at some distance towards the west of the Haveli. They proceeded to that side to find out as to what the matter was. In the light of the torch which was with him (the complainant) he saw Mukha Masih giving a hatchet blow on the head of Anayat Masih. Anayat Masih fell to the ground upon which Rehmat Masih and Ishaque Masih caused him injuries by giving Chhuri blows. While giving blows they were saying that the deceased would now know the consequences of supplying information to the police. The deceased succumbed to the injuries at the spot and the accused persons fled away taking their weapons with them.
' The motive alleged in the F.I.R. Was that a year prior to the occurrence Mukha Masih abducted a woman from Layyah and brought her to Anayat Masih in the Haveli of Malik Noor Muhammad from where police apprehended her. Mukha Masih had a suspicion that Anayat deceased had supplied information to the police about the presence of the abductee in the Haveli of Malik Noor Muhammad.
3. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. He stated that he had been falsely implicated due to enmity being the paternal-cousin of Niamat co-accused with whom the witnesses were on inimical terms.
4. The Courts below rejected the evidence relating to motive and recoveries and relying on the ocular evidence convicted and sentenced the appellant as mentioned above.
5. The appellant's co-convict namely Ishaque Masih was acquitted by this Court in Criminal Appeal No, 125/1988. In this case leave was granted to consider the contention that "the same ground holds good" in the case of the petitioner "which formed the basis of the acquittal of the co- accused".
6. While dealing with the ocular evidence in Criminal Appeal No,125/1988 mentioned above this Court observed as under:- "Both the eye-witnesses are not the residents of the vicinity of the place of occurrence. Muhammad Amin P.W. 6's residence with his family is in Village Jilyana at the distance of two miles and Kashmira P.W. 7 is a resident of Village Manak. Their presence in the Baithak of the Haveli looking at the television and going out of the deceased at considerable distance in the cold wintry night, crossing over fields to urine appear 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 or criminal justice. In this view of the matter, we would allow this appeal."
After hearing the learned counsel and having gone through the evidence on the record with his assistance we find that the case of the appellant is not distinguishable from that of co-convict Ishaque, therefore; his conviction based on the same insufficient evidence cannot sustain.
' In the circumstances we allow this appeal, set aside the conviction and sentence of the appellant and acquit him of the charge. He shall be set at liberty forthwith if not required to be detained in any other case.