' This judgment will dispose of Criminal Appeal No,265/J of 2000 filed by Younas Masih, appellant, through jail who was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life and to pay compensation of Rs,50,000 as required under section 544-A, Cr.P.C., in default six months R.I. With the benefit of section 382-B, Cr.P.C. By learned Additional Sessions Judge, Sargodha vide judgment, dated 13-7-2000.
2. Occurrence in this case had taken place at 10 p.m. On 11-5-1999 within the revenue estate of Chak No,102 Janubi at a distance of 15 kilometers from Police Station Karana District Sargodha while the matter was reported by Siraj Masih at 10-40 a.m. On 12-5-1999 and the formal F.I.R. Exh.PG was recorded by S.H.O. On the same day.
3. Briefly stated the facts of the case are that on 11-5-1999 at about 9 p.m., Ansar Masih took Younas Masih son of the complainant to Chak No,102 from Chak No,105. Ansar Masih did not return back till night. The complainant alongwith Solvester Masih and Ilyas went to the house of Younas Masih at Chak No,105 where Younas Masih was available. The complainant asked Younas Masih about his son Ansar Masih because he had gone alongwith him. Upon this, after some hesitation, Younas Masih told that a. Because Ansar Masih had committed Zina Bil Jabar with his sister Mst. Steelia Bibi, as such he after giving dagger blows to Ansar Masih had thrown his dead body in the canal.
The complainant alongwith his accomplices came towards the canal where the dead body of Ansar Masih was lying with head and arms drowned in the canal. There were injuries on the dead body of Ansar on the back and front side of the chest.
4. On receipt of information, Maula Bukhsh S.I. (P.W.9) visited the place of occurrence, prepared site plan without scale Exh.PK, prepared the inquest report Exh.PE, injury statement Exh.PD, took into possession last worn clothes of the deceased vide memo. Eh.PB, blood-stained earth was also taken into possession 'vide memo. Exh.PH, arrested Younas Masih on 31-5-1999 and after completion of the investigation challaned the accused-appellant to face the trial.
5. At the trial, prosecution in order to prove its case produced 10 witnesses in all, then the learned D.D.A. Tendered in evidence reports of the Chemical Examiner Exh.PL, Exh.PM and that of the Serologist Exh.PN and closed the case of the prosecution. Thereafter, statement of the accused was recorded under section 342, Cr.P.C. Claimed innocence and false implication due to enmity. After conclusion of the trial the appellant was convicted and sentenced as stated above. Being Jail appeal, I depute Muhammad Anwar Tiwana, Advocate to defend appellant at State expenses.
6. Learned counsel for the appellant after having read the entire prosecution evidence submits, that it is a case of un-witnessed occurrence, there is no eyewitness in this case, prosecution has relied upon, the extra-judicial confession of the appellant before the complainant, the father of the deceased, motive has not been proved because Mst. Steelia Bibi was never either summoned by the Investigating Officer nor she appeared before the learned Trial Court, the witnesses are interested inasmuch as P.W.6 is father of the deceased while Sovestor P.W.7 is son-in-law of P.W.6, there are material contradictions in the statements of P. Ws. 6 and 7, the witnesses of recovery of dagger are police officials, no independent witness has been produced and in nutshell the prosecution has failed to prove its case against the appellant as such he is entitled to acquittal.
7. On the other hand, learned counsel for the State submits that there is evidence of last seen against the appellant that the deceased was taken from his house by the appellant, there is evidence of extra-judicial confession before father and brother-in-law of the deceased, recovery of dagger P.4 taken into possession vide memo. Exh.PA with the reports of the Chemical Examiner and that of the Serologist supports the prosecution case, it is a case of single accused, there was no question of previous enmity between the parties and that the prosecution has successfully proved its case against the appellant.
8. I have heard learned counsel for the parties. In the instant case allegation against the present appellant was that he took Ansar Masih deceased from his house in the presence of the complainant, when the deceased did not turn up, the complainant alongwith his son-in-law and one Ilyas went to the house of Younas Masih, appellant, on inquiry of the complainant, after some hesitation, the appellant told the complainant since Ansar Masih had committed forcible Zina with his sister Mst. Steelia, hence he was murdered by him and the dead body was thrown in the canal on which the complainant alongwith others went to the canal and found the dead body having sharp-edged injuries. It is a fact that there is no eye-witness in this case. It is a case of circumstantial evidence. It is not believable that when the complainant approached the accused, he after some hesitation, told that he had murdered the deceased. Nobody confesses his guilt in this way. The appellant did not lead to recovery of the dead body. Dagger P.4 was recovered on 4- 6-1999, it was received by the office of the Chemical Examiner on 20-6-1999 with a delay of 15 days without any proper explanation. No witness from the locality has been cited to have witnessed the recovery of the dagger. The witnesses are police officials. The motive in the instant case remained unproved because the police did not join with the investigation Mst. Steelia. Both the witnesses namely P.W.6 and P.W.7 are father and brother-in-law of the deceased respectively. It is a case of circumstantial evidence and in a case of such-like nature, evidence must have come from an unimpeachable source and all the chains are to be linked in a way that there is no room left for any doubt which is not present in the instant case.
' For what has been stated above, I am of the considered opinion that in the instant case, the prosecution has failed to prove its case against the appellant rather there are doubts and doubts in the prosecution story, so while extending the benefit of doubt to the appellant, this appeal is accepted, conviction and sentence recorded against the appellant are set aside. The appellant is in jail and he shall be released forthwith, if not required to be detained in any other case.