' This criminal appeal has been directed against the judgment, dated 11-11-1998 passed by the learned Additional Sessions Judge, Jhang in case F.I.R. No, 811 of 1996, dated 24-12-1996 under sections 302/148/149, P.P.C. Registered with Police Station Saddar Chiniot, District Jhang, whereby the appellants were convicted under section 302(b), P.P.C. And sentenced to life imprisonment each. However, benefit of section 382-B, Cr.P.C. Was extended to all the appellants/accused persons.
2. Brief facts of the case are that the complainant lodged F.I.R. On the allegations that he had to take the price of mare from Altaf, Nawaz and Riaz, sons of Habib of the same village. His brother Allah Yar had quarrelled with Altaf, Nawaz and Riaz in connection with the same price of the mare.
On 22-12-1996 at about 4-00 p.m., he alongwith Allah Yar, Muhammad Ashraf son of Bahadar and Mst. Naziran wife of Allah Yar went to the house of Altaf, Riaz and Nawaz for receiving the amount in question. Altaf stated that some time was needed for arranging the money and Allah Yar should stay with them and the rest should go. Therefore, the complainant, Muhammad Ashraf and Mst.
Naziran came back. The complainant further stated that Allah Yar did not come back till 7-00 p.m., therefore, Muhammad Ashraf and Mst. Naziran proceeded towards the house of Altaf etc. They saw that the accused had made Allah Yar fall on the ground. Nawaz and Yousaf had caught hold of him by the arms whereas Riaz and Zulfiqar had caught his legs. The accused Altaf was pressing the throat of Allah Yar. All the accused were having the firearm with them. When the Lalkara was raised to them they hurled the threat that whosoever came near would meet the same fate. Then, the accused made away with the dead body of Allah Yar. The complainant submitted in the last that on that day on the condition that no action shall be taken against them the accused got recovered on their pointation the dead body of Allah Yar from Sirkandas in his presence and in the presence of Muhammad Ashraf son of Bahadar, Zulfiqar son of Pehlwan, Ghulam son of Nijabat and Shehbaz son of Bogha. Submitting that the dead body was still lying there in the supervision of Muhammad Ashraf, Shehbaz and other inhabitants of the Mauza and complainant got lodged the abovesaid criminal case against the culprits.
3. After registration of the case investigation into the crime was conducted and the challan was submitted in the Court of law. The trial Court upon conclusion of the trial Court passed the abovesaid conviction and sentence against the appellants. Hence this appeal.
4. Learned counsel for the appellants contends that the conduct of the complainant is unnatural and is sufficient to hold that the complainant had not seen the occurrence and the story has been concocted. It is further contended that the judgment has been passed on the basis of conjunctures and surmises and is not based on sound judicious reasons. He further contends that it is an unseen occurrence and the witnesses have been subsequently shown as the eye-witnesses. They have not seen the occurrence and had they seen the occurrence, why they kept silent for about one day. He further contends that their statements were not recorded before the police. Learned counsel further contends that the recovery of Kassi does not corroborate the prosecution story regarding the commission of crime in question. It is further contended on behalf of the appellants that extra- judicial confession has been wrongly believed by the learned trial Court. Lastly he contends that the witnesses have made contradictory statements and site plan is also in contradiction with the ocular account, the judgment passed by the learned trial Court is against law and facts, hence the same be set aside.
5. On the other hand learned counsel for the State have opposed the appeal on the grounds that the evidence is sufficient to connect the appellants with the commission of crime in question. The judgment is passed on the basis of law and facts and there are no chances of false implication.
The judgment is liable to be upheld.
6. I have heard arguments of both the sides and have perused the. Record. Shera alias Bogha complainant when made a statement before the police has categorically stated that Nawaz and Yousaf appellants had caught hold of the arms of the deceased while Riaz and Zulfiqar had caught hold of the legs of the deceased and Altaf was pressing the throat. All the appellants took away the dead body and the complainant came back to home alongwith the witnesses. After one day and two nights the dead body was pointed out by the appellants jointly and thus, the case was registered. Similarly statement has been made by him before the learned trial Court while appearing as P.W.6 but during the cross-examination he has tried to improve his case by stating that he could not say whether the Yara has died or is still alive. P.W.7 Ashraf has also made the similar statement that they saw that Altaf was pressing the throat while other accused had caught hold of the deceased from legs and arms and they went to home and continued search for the deceased for a long period. This statement alone is sufficient to hold that their conduct is unnatural and the story has been concocted in order to implicate the appellants in this case falsely. The real brother and the relatives themselves had allegedly seen the deceased in clutches of the appellants and they had murdered him but the real brother and relatives had not tried to rescue the deceased Yara from the clutches of the accused/appellants at the relevant time of alleged occurrence. They strangely came back to home and for what kept on searching for the said deceased. They did not make a report to the police about the alleged incident of murder of deceased Yara. It is sufficient to hold that the occurrence had not occasioned as has been stated by the complainant and the witnesses. In cross-examination both the alleged witnesses have admitted that they kept on searching the deceased and the women-folk of the accused party had given oath on Qur'an that the deceased is not in custody of the accused party. This fact was also not submitted in their statements before the police as well as before the learned trial Court. It has also been stated by the complainant in his statement that the accused/appellants were also armed with fire-arm weapons but it is strange that they have not used any fire-arm during the occurrence. I have found contradictions on the material points in the statements of the complainant P.W.6 and Ashraf P.W.7. They are closely related to each other and have a motive to falsely implicate the appellants in this case as Mst. Naziran wife of brother of the complainant was abducted by the deceased and according to the complainant he contracted marriage with her and case of the appellants was that they are leading an immoral life. The complainant party has a grudge against the accused party due to this reason and has a reason to implicate them falsely in this case. It has also been brought on the record that number of murders had taken place in the village and the deceased was connected with some of them in different manners. It is also brought on the record that the deceased was involved in numerous cases and had a number of enemies.
Case of the appellants is that this is an unseen occurrence and the appellants have been involved due to previous enmity and the witnesses had not seen the occurrence. On the other hand, the prosecution has no other evidence except the statements of two witnesses which alone are not sufficient to hold that the appellants are guilty of the offence imputed to them for which they have been convicted. Medical evidence also does not corroborate the ocular account as 8 injuries have been found on person of the deceased and not a single injury has been explained by the witnesses and the witnesses have failed to explain the same. Moreover, the doctor has found no injury on the hands or the legs of the deceased, which fact also negates version of the prosecution witnesses.
Examination of statements of both the above said witnesses does not show that they are truthful witnesses. F.I.R. Had been lodged with the delay of more than one day. The Investigating Officer has admitted during the cross-examination that he did not investigate as to how much amount was due towards the accused/ appellants and which was payable to the deceased and had also not investigated the motive part. Even P.W.6 complainant could not tell the amount which was paid to the deceased by the accused party. It seems that the story has been narrated in order to create a motive for the registration of the murder case against the appellants. In the absence of any material available on the record it cannot be said that the prosecution has succeeded in proving case against the appellants. I am of the view that the prosecution has failed to establish its case and has also failed to produce the evidence of the standard required for the conviction of accused involved in a case punishable under the capital charge. The prosecution evidence is self- contradictory and is not reliable. Hence the appellants have succeeded in making out a case for acceptance of this appeal. This appeal accordingly is accepted and the appellants are acquitted of the charge by extending benefit of doubt. They are directed' to be released from custody, if not required to be detailed in connection with any other case.