' RAO NAEEM HASHIM KHAN, J.--- Mushtaq Ahmad (25) was sent up for trial by Police Station, Kot Sultan, District Layyah, for an offence under section 302, P.P.C. Learned Additional Sessions Judge, Layyah vide judgment dated 3-11-1991 convicted and 'sentenced him to death with fine of Rs.10,000, in default 6 month's simple imprisonment. The fine if recovered would be paid to the legal heirs of the deceased Sardar Muhammad as compensation under section 544-A, Cr.P.C. The convict has appealed. The State has sought confirmation of death sentence through Murder Reference No,491 of 91. Both these matters shall be disposed of by this judgment.
2. Briefly stating the prosecution story as disclosed in F.I.R. (Ext.P.E.) lodged by Khan Muhammad P.W.8, was that the complainant along with Ahmad Bakhsh and Allah Bakhsh were sitting in the house of complainant at the eventful time. All of a sudden they heard alarm and they rushed to the scene of occurrence. They found Mushtaq Ahmad accused and Sardar Muhammad deceased struggling with each other. In the view of the P.Ws., Mushtaq Ahmad accused whipped of a knife and gave blows on arm and belly of Sardar Muhammad who fell on the ground. The P.Ws. Tried to catch hold the accused but he ran away brandishing the knife in the air. Motive for the occurrence was that there was a suspicion of illicit intimacy of the accused with the wife of the deceased.
Sardar Muhammad died at the spot and comply .Ant left for police leaving the P.Ws. Guarding the dead body. During night time boat was not available and complainant could not cross the river and he reached the police station next morning at 8 a.m., and got the case registered.
3. The occurrence took place on 3-6-1990 at 8 p.m. In the area of Galu Arival, 13 miles from South West of village Kot Sultan, Police Station Kot Sultan. F.I.R. (Exh.P.E.) was lodged by Khan Muhammad P.W.8 on 4-6-1990 at 8 a.m., real brother of the deceased recorded by Nazir Ahmad P.W.10/S.I./ S.H.O.
4. Nazir Ahmad P.W.10 S.I./S.H.O. After recording F.I.R. (Exh.P.E.) went to the spot and prepared injury statement and inquest report (Exh.P.C.). He forwarded the dead body to the mortuary, and recorded the statements of the witnesses. He picked up blood-stained earth from the spot and prepared a sealed parcel vide memo (Exh.P.C.). After post-mortem examination Babar Hussain a constable brought back last worn clothes of the deceased which were taken into possession vide memo. Exh.P.D. On 8-6-1990 he arrested the accused and on the potation of the accused he recovered knife P.4 vide memo. Exh.P.F. And prepared sealed parcel of the same. He also prepared site plan of the place of recovery which is Exh.P.F./1. On 9-6-1990 he got prepared site plans from Arshad Hussain, Patwari, P.W.2 which are Exhs.P.A., P.A./1 and P.A./2. The ocular account was furnished by Ahmad Bakhsh P.W.9 and Khan Muhammad P.W.B. Nazir Ahmad, S.I/S.H.O. Had investigated the case. Dr. Ghulam Mustafa P.W.6, Medical Officer, Tehsil Headquarter Hospital, Layyah had conducted the post-mortem on the dead body of Sardar Muhammad.
' At the conclusion of the prosecution evidence, the appellant was examined without oath. He refuted the prosecution allegations and pleaded innocence. However, he neither appeared in his defense on oath nor produced defense evidence.
5. It is submitted by the learned counsel for the appellant that medical evidence is in conflict with the ocular account. Natural conclusion is that P.Ws. Have not witnessed the occurrence; that the absence of inquest report and injury statement also create doubt; that Allah Bakhsh P.W. (given up) and Ahmad Bakhsh P.W.9 are chance-witnesses; that occurrence took place at 8 p.m, witnesses cannot witness the occurrence from a distance of 15 Karams at night; that eye- witnesses are interested being related to the deceased inter se and cannot be relied upon; that it is a case of unseen murder and prosecution has failed to prove its case against the appellant beyond any shadow of doubt.
6. The contentions are opposed by the learned State counsel.
7. We have heard the arguments and gone through the file. The prosecution in order to establish its case has mainly relied upon ocular account furnished by Khan Muhammad P.W.8 and Ahmad Bakhsh P.W.9. Both of them have given detailed account of occurrence ascribing specific role to the appellant. Each of them stated that Mushtaq accused (appellant) gave knife blows on the shoulder and chest of Sardar Muhammad deceased. They tried to catch hold of the accused Mushtaq but he ran away. They specifically mentioned only two knife blows on the body of deceased Sardar Muhammad. Dr. Ghulam Mustafa P.W.6 found the following injuries on the dead body of Sardar deceased at the time of post-mortem:- "(1) Incised 3 c.m x 1 c.m x bone deep on outer side of left upper arm 5 c.m. Below the top of shoulder.
(2) Incised wound 1.5 c.m x 1/2 c.m x inner deep on front of right side of chest.
2.5 c.m from mid line 3 c.m away blow from left nipple.
(3) Incised wound 1 c.m x 1 c.m x inner deep on left side of novel rest nib on mammary lines.
(4) Abrasion 1 c.m x 0.5 c.m on the center of chin.
(5) Abrasion 1.5 c.m x 1 c.m on front of chin 1 c.m blow the nip.
(6) Abrasion 0.5 c.m x 0.5 c.m-on the outer side of right eye.
(7) Dislocation between first and second vertebrae.
(8) Contusion mark 1.5 c.m wide circular around neck on thyroid curtly (ligature mark).
(9) Larynx intake were full of vomitus."
8. From the above discussion it appears that medical evidence is in conflict with the ocular account. Ocular account is quite silent with regard to injuries Nos.7 and 8. Injury No,8 can only be caused by rope or Safa. It means that eyewitnesses Khan Muhammad P. W.8 and Ahmad Baldish P.W.9 had not witnessed the occurrence. They are not only chance-witnesses but also interested witnesses being related to the deceased. Moreover, no one can see the occurrence at night from a distance of 15 Karams. Serologist's Report is also not available on the file. Therefore, we hold that witnesses were not present at the time of occurrence and they have not witnessed the occurrence, so, it is unsafe to rely upon them. The prosecution has failed to establish its case against the appellant beyond any shadow of doubt. It is a case of unseen murder. We are left with no alternative except to acquit the appellant (accused). We, therefore, accept this appeal, set aside the conviction and sentence of the appellant. He is acquitted. Mushtaq Ahmad appellant shall be released forthwith from prison if no required to be detained in any other case. Death sentence is not confirmed. Murder Reference No,491 of 91 is dismissed.