' Instant appeal is directed against the judgment, dated 24-2-1998 passed by Mian Arshad Mahmood, Additional Sessions Judge, Gojra, whereby he convicted the appellants under section 302-C, P.P.C. And sentenced each of them to R.I. For 10 years alongwith compensation of Rs, 10,000 each under section 544-A, Cr.P.C. It was further ordered that the account if recovered, shall be paid to the legal heirs of the deceased. Benefit of section 382-B, Cr.P.C. W as further extended to the appellant.
2. Briefly stated the facts as disclosed in F.I.R. Exh. P.E., dated 12-5-1994 lodged at the instance of P.W.3 Ghulam Shabbir son of Atta Muhammad deceased are that on 22-4-1994 at 8-00 a.m. Muhammad Ashraf and Muhammad Akram accused/appellants alongwith their co-accused Liaqat Ali (since absconder) came to their house. They told his father that engagement of their brother Naseer Ahmad had to be solemnized at Mehdi Abad Gojra, so he (Atta Muhammad deceased) should accompan y them. Upon this, his father took a sum of Rs,8,000 with himself and left with them. As his father did not return till the next day, so he inquired from Liaqat Ali and others who told him that his father had left them on 22-4-1994 at Pir Mahal. The complainant thereafter continued search of his father and during the said search, he met Mahram son of Muhammad Khan and Shaukat son of Mahram who told him that they had met his father alongwith Muhammad Akram, Liaqat Ali and Muhammad Ashraf while travelling in a bus and had travelled alongwith them till Gojra. They further informed the complainant that Atta Muhammad and others told them that they were going to Mehdi Abad in connection with some engagement. The complainant further stated that he came to know only the previous day that an unclaimed dead body was lying at the Police Station, so he alongwith Khadim Hussain and Mursaleen went there and identified the said dead body to be of his father on the basis of photograph as well as clothes of the deceased. He suspected that his father had been done to death by Muhammad Akram, Liaqat Ali and Muhammad Ashraf. He further stated that motive behind this occurrence was that Liaqat Ali had committed theft of Rs,45,000 of his niece and his father had helped for the recovery of the said amount from Liaqat Ali.
3. Ali Asghar Inspector (P.W.11) was posted at Police Station Sadar Gojra on 4-5-1994 when Sharif Masih (P.W.8) informed about the presence of dead body of some unknown person in a field. He recorded his statement Exh. P.H.
And prepared an informatory report Exh. P.H./1. He visited the place of occurrence, prepared statement of injury "
Exh. P.A. And inquest report Exh.P .B. He procured snaps of the dead body and on 12-5-1994 Ghulam Shabbir complainant came at the Police Station and identified the dead body to be of his father . He prepared memo. Of identification Exh. P.G. He also secured Salooka P.1 and Photo P.2. On the same day i,e, 12-5-1994, he recorded statement of Ghulam Shabbir Exh. P.E. And also recorded statements of Mursaleen and Khadim Hussain P.Ws, On 13-5-1994, he visited the place from where the deceased Atta Muhammad was ,taken by the accused and prepared a site-plan without scale Exh:P .I. He also prepared site-plan of the place, from where the dead body of the deceased was secured which is Exh P.J. He also recorded statements of Mahram and Shaukat. On 14-5-1994, he recorded statements of Yousaf and Dilmir . -On 16-5-1994, he got the place of occurrence visited from the Patwari who on 23-5-1994 handed over to h im site plans Exh. P.Dand P.D./1. On 7-6-1994, he arrested the accused Muhammad Akram. On 25-6-1994, he 'arrested the accused Muhammad Ashraf. He got the accused Liaqat Ali declared as absconder and thereafter , completing the investigation, submitted challan.
4. A charge under section 302/201/34, P.P.C. Was framed against the accused to which they pleaded not guilty and claimed trial.
5. In order to bring home guilt to the accused, prosecution examined P.W.1 Dr. Muhammad Ashraf who on 4-5- 1994 conducted post-mortem examination of the dead body which was not identifiable and found the following injury on his person: ' A fire-arm wound of entrance of about 20 c.m. In diameter with lacerated and inverted edges on the back of abdomen. 3 c.m. On the right side of mid-line with blackening and burning which was present around the wound.
There were corresponding holes present on the clothes. There was a corresponding exit wound of 6 x 4 c.m. On the front of abdomen below the umblicus. Cranium and spinal cord were not opened.
' In his opinion, cause of death was shock and haemorrhage due to injury No,1 which was ante-mortem and was caused by a firearm. The said injury was sufficient to cause death in the ordinary course of nature. The duration between injury and death was immediate and between death and postmortem examination was about 5 to 10 days.
He issued post-mortem examination report Exh. P.C. And diagram Exh. P.C./1 which are in his hands. Muhammad Siddique P.W.2 produced site plans Exhs.P .D. And P.D./1 whereas P.W.3 Ghulam Shabbir is the scriber of F.I.R.
Exh. P.E. And he corroborated his contention contained therein. Muhammad Bashi r P.W.4 identified the dead body at the time of exhumation and is a witness of memo. Of identification of dead body on the basis of teeth and nails.
P.W.5 Muhammad Yousaf deposed about his meeting with the accused at the bus stand. Khadim Hussain P.W.6 identified the dead body of the deceased when he visited the Police Station alongwith Ghulam Shabbir complainant. Muhammad Rashid P.W.7 carried out the investigation partly and arrested the accused. Sharif Masih P.W.8 informed the S.H.O. Regarding the presence of an unclaimed dead body in the field on 4-5-1995. Shaukat Ali P.W.9 and Mehram P.W.10 have deposed that they had seen the deceased alongwith the accused at the bus stand.
Ali Asghar Inspector (P.W.11) is the Investigating Officer whose evidence has already been discussed above. The learned S.P .P. Closed the prosecution case vide statement, dated 10-2-1998.
6. When examined under section 342, Cr.P.C. Muhammad Ashraf accused denied the prosecution version and in reply to question No,7 as to why this case had been registered against him and why P.Ws.(cave deposed against him stated as follows: "Liaqat Ali accused is my real brother , he absconded. The local, police forced me and my brother Muhammad Akram co-accused to trace him. We made abortive attempt to locate him. Being annoyed fictitious and false record was prepared against both of us.
' At our instance the investigation of this case was transferred to Amir Umer Niazi, D.S.P ./S.D.P .O. Gojra (since dead). We led defence evidence before him and proved our innocence. He declared us innocent and recommended that we be discharged in the case. He directed Shaukat Ali Inspector/S.H.O. As then, was of Police Station Sadar Gojra to get us discharged from this case. Vide application Exh. D.E. Shaukat Ali Shah Inspector/S.H.O. Police Station Sadar Gojra got us discharged from the case from Magistrate 1st Class. The signature of Shaukat Ali Inspector/S.H.O. Appear at Exh. D.E./l. I obtained certified copy of application for our discharge Exh. D.E. Containing the signature of Shaukat Ali Shah, S.H.O. At Exh. D.E./1 and the order of MIC at Exh. D.E./2."
' Accused Muhammad Akram when examined under section 342, Cr.P.C. Denied the prosecution version and sated that he would endorse the statement of his accused Muhammad Ashraf as given in reply to question No,7 referred above. Both the accused refused to make statement under section 340 (2), Cr.P.C. As well as to lead any defence evidence.
7. After going through the evidence produced by the prosecution, the learned Additional Sessions Judge convicted the accused vide judgment under appeal.
8. Arguments have been heard and record perused.
9. It is submitted by learned counsel for the appellants that there is a delay of 20 days in lodging the F.I.R. Which has not been explained by the prosecution, that as per statement of P.W.I Dr. Muhammad Ashraf, the dead body was unidentifiable, so there is nothing on the record to prove if the dead body regarding which the case has proceeded actually belonged to the father of the complainant, that identification of the dead body has been carried out on the basis of teeth and nails, which is no identification in the eyes of law, that identification of the deceased has also been made on the basis of Salooka P.1 and photograph P.2 which have no legal sanctity in the eyes of law, that no direct evidence connecting the accused with the commission of this offence is available on record, that the only evidence brought on record is that of last seen which has come through the statements of P. Ws. 9 and 10, that circumstantial evidence is not of that type which raises presumption in favour of the prosecution regarding commission of offence ' at the hands of the accused/appellants, that it has come on record that an arbitration deed Exh. D.A. Was reduced into writing between the complainant and the accused and it was found that both the accused/appellants are not responsible for the murder of the deceased that even a discharge report Exh. D.E.
Dated 13-10-1994 has been brought on record which also falsifies the prosecutio n version regarding involvement of the accused/appellants in the comm ission of this offence and that all these facts make the case of the prosecution highly doubtful.
10. Conversely , the impugned judgment has been supported by learned counsel for the State.
11. The accused/appellants stand charged under section 302/201/34, P.P.C. For the commission of murder of Atta Muhammad father of Ghulam Shabbir complainant (P.W.3). Admittedly . There is no ocular evidence as none had seen the accused/appellants committing the murder of the deceased. It has come on record through the statement of P.W.8 Sharif Masih that he had seen the dead body of an unknown person lying in the field on 4-5-1995. He brought this information to the notice of Ali Asghar (P.W.11) who recorded his statement Exh. P.H. And also prepared an informatory report Exh. P.H./1. The dead body was sent to the hospital where Dr. Muhammad Ashraf (P.W.1) conducted his post-mortem examination and submitted post-mortem examination report Exh. P.C. And sketch of injuries Exh. P.C./1. As per statement of P.W.1, the dead body was not identifiable. This admission on the part of Dr. Muhammad Ashraf (P.W.1) clinches the entire prosecution case. The prosecution has brought on record statement of Muhammad Bashir (P.W.4) who identified the dead body on the basis of teeth and nails. The other evidence identifying the dead body is in the form of recovery of Salooka of the deceased which Exh. P.1 and which has been brought on record through the statement of Khadim Hussain (P.W.6). Thus, the identification of the dead body on the basis of his teeth nails and Salooka is not such evidence which conclusively proves that the dead body was that of Atta Muhammad deceased, father of the complainant Ghulam Shabbir . Besides the said evidence, no direct evidence is available on record and only evidence of last seen of the deceased in the company of accused has come on the record through the statements of Shaukat Ali P.W.9 and Mehram P.W.10 which are not trustworthy as the same are replete with contradictions and discrepancies. It is further evident from their statements that they have made improvements which have been highlighted while confronting them with their previous statements. It is also admitted by P.W.9 Shaukat Ali that he has been an accused in one or two cases. Similarly it has been admitted by P.W.10 Mehram that he had been appearing as witness in more than 20/25 cases. Statements of P.Ws.
9 and 10 as such hardly carry any weight and can be made a basis for passing an order of conviction against the accused/appellants.
12. It may also he mentioned here that on 12-9-1994 an arbitration deed Exh. D.A. Was executed between the complainant party and accused party whereby Ch. Dilmeer Hussain was appointed as arbitrator to decide about the innocence or guilt of the accused/appellants. As per arbitration award, dated 20-9-1994, Ch. Dilmir Hussain found the accused/appellants innocent and consequently , a discharge report Exh. D.E. Was also prepared on 12-10-1994 which was approved by the learned Ilaqa Magistrate vide his order , dated 13-10-1994 and the accused/appellants were discharged in this case. This fact coupled with the discrepancies and contradictions appearing in the prosecution case and keeping in view the statement of P.W.1 Dr. Muhammad Ashraf regarding unidentifiable nature of the dead body , it is proved that prosecution has failed to bring home guilt to the accused beyond reasonable doubt. Accordingly , the appeal is accepte d and conviction and sentence awarded to the accused/appellants by the learned Additional Sessions Judge is set aside. They are ordered to be released forthwith if not required in any other case.