1. Appellant Maleek alias Malika son of Kamala Din aged 26 years has filed the present appeal against his conviction by the learned Sessions Judge, Muzaffargarh, dated 29-6:1993 under section 302, P.P.C. sentenced him to life imprisonment and under section 364, P.P.C. to 10 years' R.I. He was also ordered to pay compensation of Rs,25.000 to the heirs of the deceased and in default to undergo 1-1/2 years' R.I. He was further fined Rs,5,000 and in default 6 months' R.I. Both the sentences were ordered to run concurrently.
2. 2.F.I.R. No,26 dated 25-2-1992 (Ex-P) was lodged at Police Station Alipur by Muhammad Siddiq P.W.1 brother of Muhammad Amin deceased aged 50 years recorded by Malik Muhammad Ashraf S.I.
3. P.W.10 11.30 a.m. The distance between the Police Station and the place of occurrence is 7 miles.
4. 3.Brief facts as narrated in the F.I.R. are that Muhammad Saddiq lodged Exh.PA on 25-2-1992 stating therein that his brother Muhammad Amin alias Aami was married to Maleek's sister Mst.
5. Allah Rakhi 5/6 years back. Complainant had promised to give the hand of his daughter to Maleek in return. On 23-2-1992 Muhammad Siddique complainant was present in the house of his brother Muhammad Amin alongwith Abdul Ghani when the appellant arrived and told Muhammad Amin that a person wanted to sell buffalo as he had to purchase the land. Appellant told Muhammad Amin that he would help him in purchasing the buffalo on cheaper rate. The deceased used to deal in buffaloes. He accompanied the appellant and went away. At the time of departure of the deceased with the appellant the complainant informed the deceased that he had to appear in the.
6. Court of Assistant Commissioner Alipur on 24-2-1992 in connection with case relating to possession of the land. Muhammad Amin deceased replied that he would reach the Court straight from Mudwala. The, complainant attended the Court on 24-2-1992 alongwith Abdul Ghani his brother and Muhammad Rafiq and Muhammad Yaqoob his cousins. Muhammad Amin did. not turn up. The case was adjourned to 8-3-1992. Non-appearance of Muhammad Amin caused anxiety to the informant. It is also alleged that the informant has enmity with his maternal uncle Fazal Din due to dispute over possession of land inherited by his mother and already Muhammad Amin was attacked and injured by Fazal Din and his companions. They had also advanced threats to Muhammad Amin who had come to take possession. Muhammad Siddiq went to the house of Maleek at Chah Mudwala alongwith his cousin Muhammad Yaqoob. Abdul Ghani and Muhammad Rafiq who told the informant that they would join him after shopping. At the house of the appellant the complainant came to know from the mother of the appellant that he and Muhammad Amin had stayed at Maleek's house during the preceding night and had left the house for purchasing buffalo. Complainant and Muhammad Yaqoob went in search of the appellant and Muhammad Amin who failed to locate them. They came back in the house of Maleek in the evening where Abdul Ghani and Muhammad Rafiq were already present. All of them spent night in the house of the appellant and left the same in morning of the next day. They reached at the western bank of River Chanab where they came across Maleek. Maqbool, Manzoor and Iqbal who were coming from the south and were walking fast. The complainant tried to stop them unsuccessfully. The appellant told the complainant that he was going in connection with urgent job and Muhammad Amin was present at his land where the complainant and the P.Ws. could see him. Muhammad Siddiq and others went at the land of the appellant but Muhammad Amin was not present there.
7. They remained present for sometime waiting for the return of the appellant. After about half an hour two grazers reached who told that a human dead body was lying in patch of reeds whereupon Muhammad Siddiq and others went to the spot where they found ,that Muhammad Amin was lying dead and soaked-in blood. It is alleged in the F.I.R. that Muhammad Amin was murdered by Maleek and above-named other persons in conspiracy with Fazal Din because of dispute over Watta/exchange marriage with Maleek and enmity with Fazal Din and others over land.
8. 4.After recording the F.I.R. Exh.PA Muhammad Ashraf S.H.O. Police Station Saddar Alipur proceeded to the crime spot where he examined the dead body of Muhammad Amin and prepared the injury statement Exh.PB and inquest report Exh.PI. He recorded the statements of witnesses and prepared sketch of the place of occurrence Exh.PJ. He secured blood-stained earth vide memo. Exh.PB by putting into a sealed parcel and also secured watch, stick, pistol Tasbih and two rings lying near the dead body of Muhammad Amin vide memo. Exh.PC. The dead body was sent to T.H.Q. Hospital Alipur for post-mortem examination. Statements of two other witnesses were recorded. After the investigation the chnllan was submitted against the appellant alone.
9. 5.Learned trial Judge relying upon last-seen evidence of Muhammad Siddiq and Abdul Ghani brothers of the deceased, extra-judicial confession of Nazar Hussain P.W..3, recovery of pistol P.6 taken into possession vide memo. Exh. PD, convicted acid sentenced him as mentioned above.
10. 6.Learned counsel for the appellant contends that there is no direct evidence of the occu rrence circumstantial evidence relied upon by the learned trial Judge is highly doubtful. Two independent witnesses Muhammad Yaqoob and Muhammad Rafi q mentioned in the F.I.R. have not been produced during trial. The extra-judicial confession of Nazar Hussain and last-seen evidence of Muhammad Siddiq and Abdul Ghani P.Ws. does not inspire confidence for conviction of the appellant. No empty was sent with the pistol recovered from the petitioner to the expert to establish that the weapon was used by him at the time of commission of crime. Learned State counsel has submitted that the prosecution evidence consists of reliable witnesses. Although they are related to the deceased yet the appellant is also from their family, therefore, the learned trial Judge has rightly relied upon their residence. He supports the conviction.
11. 7.I have heard the learned counsel for the appellant as well as for the State and perused the record with their assistance. The evidence of Muhammad Siddiq P.W.1 complainant and Abdul Ghani P.W.2 who are brothers of the deceased Muhammad Amin cannot be believed without independent .corroboration. The other two witnesses Muhammad Yaqoob and Muhammad Rafiq have been given up as won over. In order to convict a person on capital charge the standard of the evidence should be of unimpeachable character. The F.I.R. was not lodged immediately. The occurrence has not been seen by anyone. On mere last-seen evidence of Muhammad Siddiq P.W.1 and Abdul Ghani P.W.2, conviction of the appellant is not warranted. Extra-judicial confession furnished by Nazar Hussain P.W.3 does not inspire confidence. He has not given the date or month when the appellant made statement before him confessing the guilt. The evidence of Nazar Hussain is not trustworthy. He has not explained the reason for not having immediately informed Muhammad Siddiq P.W.1 for Abdul Ghani P.W.2 about the confession of guilty by the appellant. His failure to immediately inform the complainant shows that he is not telling the truth and probably has been introduced to secure the conviction of the appellant.
12. 8.The recovery of pistol P.6 from the appellant is also of no consequence. No empty alongwith the weapon was sent to the expert for examination purpose. Recovery of such normal type of weapon hardly connects the appellant with the commission of offence.
13. 9.The overall assessm ent of the circumstantial evidence does not inspire confidence to maintain the conviction of the appellant. The F.I.R. was lodged the next day of the occurrence. The last-seen evidence, extra-judicial confession, and recovery evidence are not of unimpeachable character, therefore, I am convicted that the prosecution has failed to establish case against the appellant beyond any shadow of doubt. The case is not free from doubt.
14. 10.For the reasons stated above, the conviction and sentence of the appellant under sections 302 and 364, P.P.C. is set aside. He is acquitted of the charges. He shall be released forthwith if not required in any other case.