' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal. No,303 of 1996 directed against the judgment dated 20-9-1996 passed by the learned Additional Sessions Judge, Multan, whereby he convicted the appellant under section 302(B), P.P.C. And sentenced him to death with direction to pay Rs,30,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default to undergo six months' R.I.
2. The occurrence in this case took place at 10/11 p.m. On 17-3-1995 in village Bengal Wala Sharqi Bheeni Chah Dadwala situated within the jurisdiction of Police Station Qadirpur Ran, District Multan at a distance of 5 miles towards south-east from Police Station was informed the same day at 12- 30 (midnight).
3. The brief facts as narrated by the complainant in the F.I.R. Are that he alongwith his son Sajjad Hussain and Akhtar Hussain son of Haibat Khan were watering their lands. In the meanwhile they heard the noise 'Dhaar, Dhaar' of his brother Ghulam Muhammad from a distance of one acre. He alongwith his companions went to Haveli from where the noise was coming and entered the same.
They saw that Mukhtar Khan while armed with hatchet was causing injuries to Ghulam Muhammad and that within their view Mukhtar Khan inflicted hatchet blow which landed on the backside of the neck of Ghulam Muhammad on which he fell down. The accused ran away from the spot. The motive behind this occurrence was that the appellant Mukhtar Khan was addict of heroin and required his father Ghulam Muhammad deceased to transfer the land in his favour to see the same to which the deceased had refused.
4. The police after completing the legal formalities headed by S.I. Muhammad Akram proceeded to the place of occurrence. The Investigating Officer prepared injury statement Exh.P.G., inquest report Exh.P.H. And then secured blood-stained earth from the place of occurrence vide memo. Exh.P.D. He also received blood-stained Sweater P.1, a Chaddar P.2, a shirt P.3 vide memo. Exh.P.A. On 26-3-1995 he arrested the accused who while in police custody got recovered blood-stained hatchet from inside the cattle shed vide memo. Exh.P.E. After completing the investigation he challaned the accused and submitted for trial.
5. The prosecution in order to prove its case produced as many as 10 witnesses including Doctor, I.O. And others relevant persons. After tendering in evidence report of Chemical Examiner Exh.P.K.
And that of Serologist Exh.P.L learned A.D.A. Closed the prosecution evidence. Thereafter, statement of the accused/appellant was recorded under section 342, Cr.P.C. In which he pleaded not guilty.
6. Learned counsel for the appellant submits that occurrence had taken place in the dead hours of night, that it was an unwitnessed occurrence, that in fact in order to usurp the land which the appellant had inherited from his father, his uncle Baqir Khan and Akhtar Khan, P.W.5 and P.W.6 have falsely involved the appellant in this case, that no light has been mentioned in the F.I.R., that the appellant according to the prosecution was an addict of heroin. He was alone but there were three eye-witnesses at the spot but they did not try to apprehend the appellant, that there was no case of heroin against the appellant, that there is no date on the recovery memo. Of hatchet allegedly recovered at the pointation of the appellant, that the place of recovery of hatchet was assessable to the public but no independent witness has been produced, that there was no reasons on the part of the appellant to commit the murder of his father, that motive has not been proved by the prosecution. He adds that ocular account is also contradicted by medical evidence.
7. On the other hand, learned State counsel submits that appellant is the only accused, that there is no question of substitution, that two eye-witnesses are the real uncle and cousin of the appellant, that ocular account is corroborated by the medical evidence and the motive furnished by the prosecution and that the prosecution has proved its case against the appellant beyond any shadow of doubt. He supports the judgment of the learned trial Court.
8. We have heard the learned counsel for the parties. In the instant case according to the prosecution the occurrence had taken place on 16-3-1995 at 10/11 p.m. In the dark hours of night and police was informed about this occurrence at 12-30 (mid night) in Police Station at a distance of 5 Miles from the place of occurrence. There was no mention of light at the place where the occurrence had taken place. Complainant was present there alongwith his son Sajjad Hussain and nephew Akhtar Khan at a distance of one acre where they were watering their lands. Tney heard the noise and went to the Haveli of the deceased and saw that his son was giving hatchet blows and specifically in their view he gave a hatchet below on the back of neck of the deceased and the appellant on seeing them ran away from the spot. Nobody tried to chase or apprehend the appellant although three witnesses were present there. According to our minds this is most unnatural conduct of the complainant and the eye-witnesses. We are not going to believe their presence at the spot.
9. Motive behind the present occurrence was that the deceased was addict of heroin and he wanted that his father should mutate the land in his favour but his father due to his addiction did not accede to his request. This version of motive is also falsified from the fact that not a single case registered against the appellant has been produced by the prosecution. One of the eyewitnesses had stated that there were two cases registered against the appellant but we have gone through the Identification/Crtificate of the accused . Only one case was registered against the accused/appellant in 1979 under sections 457/ 380/411, P.P.C. It means that the prosecution story to the extent of motive is not believable. It may be noted here that the appellant was the only son of his family and the complainant is his real uncle. If the death sentence is confirmed then they would inherit the property of the appellant. This is the version of the appellant that his uncle and cousin in order to usrup the land left by his father have involved him in this false case. Even in his statement recorded under section 342: Cr.P.C. Specifically while replying Question No,11 he has taken this version. Answer of Question No,11 is reproduced below:--- "I am innocent. Some unknown assailants at the dark hours of the night committed the murder of my father. The P.Ws. Thereafter had joined hand against me in order to deprive me of the landed property left my deceased father in mauza Banglawala. The witnesses are taking usufruct of the land and for that purpose have falsely involved me in this case."
10. If one goes through the brief facts narrated in the inquest report Exh.P.H., there is no mention of any motive therein so it also proves that F.I.R. Was lodged after the deliberation and consultation and not as stated by the prosecution. As far as recovery of hetchet is concerned, recovery memo.
Does not show the date when it was recovered. Even otherwise the place from where the alleged recovery of hatchet was made, is on open place and is assessible. No reliance can be placed on this recovery this regard. In the F.I.R. It was stated that in their view fatal blow was given by the appellant on the head of the deceased but there are three injuries on the person of the deceased as stated by Dr. Raza Mohyuddin, P.W.8, even the time between the death and post-mortem is 12 to 18 hours. Ocular account is conflicted with medical evidence. No independent witness has also been produced by the prosecution.
11. After hearing the submissions made by the learned counsel for the parties and going through the evidence recorded by the trial Court, we are satisfied in our mind that the prosecution has not been able to prove its case against the appellant beyond any shadow of doubt. In this view of the matter, this appeal is accepted, sentence awarded to the appellant by the learned trial Court is set aside and Murder Reference is replied in the negative. Appellant is ordered to bf!, released from Jail forthwith if he is not required in any other criminal case.
' Death setence awarded to the appellant by the trial Court is not confirmed.