' This judgment will dispose of Criminal Appeal No,696 of 2000 filed by Muhammad Yaqoob, appellant, who was convicted under section 302(b) P.P.C., and sentenced to imprisonment for life with further direction to pay Rs,50,000, in default six months' S.I. As required under section 544-A,.
Cr. P.C. By learned Additional Sessions Judge, Lahore vide judgment dated 29-4-2000.
2. Occurrence in this case had taken place at 6-15 p.m. On 14-12-1994 at a distance of 2 kilometers from Police Station Misri Shah, Lahore while the matter was reported by Ashraf Ali through complaint Exh.P.A at 8-15 p.m. On the same night and the formal F.I.R. Exh.P.A/ 1 was recorded by Liaqat Ali, S.I.
3. Briefly stated the facts of the case are that on 14-12-1994, the complainant wanted to install ventilator towards the street in his toilet and in this context, he hired the services of Nasir Iqbal son of Syed Manzir Hussain to make the necessary repairs of wall and to install the ventilator upon which his neighbour Muhammad Yaqoob felt annoyed and threatened him to stop installing/fixing the ventilator. The complainant tried to satisfy him but Yaqoob was not satisfied. On the same day at 6-15 p.m. When Nasir lqbal was working in the house of the complainant, he (complainant) along with Iqbal Hussain and Muhammad Tariq were sitting in the room and taking tea. Suddenly, his wife Qamar un Nisa aged 32 years with hue and cry entered the room through door and meanwhile both Muhammad Yaqoob and Muhammad Arshad armed with Chhuri also entered the room. Muhammad Yaqoob raised the Lalkara to Arshad to teach them a lesson for not accepting his request and kill. Qamar un Nisa upon which Arshad gave a Chhuri blow which landed on the left shoulder of Qamar un Nisa and the blood started oozing. Arshad repeated the Chhuri blow, which landed on the back of buttock of Qamar un Nisa. She fell down and was taken to hospital in injured condition but in the way she succumbed to her injuries.
4. After registration of the formal F.I.R., investigation was carried out by Nazir Ahmad S.I. Who expired before the trial so could not be produced. He took into possession the blood-stained earth vide memo. Exh.P.B. During the course of investigation, Muhammad Arshad (P.O.) led to the recovery of Chhuri P. 4 which was secured vide memo. Exh. P.D. Injury statement Exh.P.G/1 and inquest repot Exh.P.H were also prepared by him and after completion of the investigation the report under section 173 Cr. P.C. Was prepared and submitted by Zafar Iqbal, Inspector (P.W.9).
5. At the trial, prosecution in order to prove its case produced 9 witnesses in all. Then the learned DDA tendered in evidence reports of the Chemical Examiner Exh.P.K, P.K, reports of the Serologist Exh.P.M, P.N. And closed the prosecution case. Thereafter, statements of the accused were recorded udder section 342, Cr. P.C. In which they claimed innocence. The accused in their defence also produced Muhammad Hafeez and Ishtiaq Ahmad W.Ds. 1 and 2. However, during the trial, Muhammad Arshad, co-accused of the present appellant became absconder and till today he is P.O. While the present appellant Yaqoob was convicted and sentenced as stated above.
6. ' Learned counsel for the appellant after having read the entire prosecution evidence and other material available on record submits that the appellant being real brother of main accused namely Arshad who is P.O. Has been falsely involved in the case. Further submits that no overt act whatsoever is attributed to the appellant towards the deceased except of raising the Lalkara. Adds that the appellant in order to prove his innocence also produced two D.Ws. Further adds that two eye-witnesses produced by the appellant are interested witnesses being closely related to the deceased and that no independent witness has been produced by the prosecution. Concluding his submissions, learned counsel for the appellant submits that even the prosecution has failed to prove the motive as alleged in the F.I.R., hence the appellant is entitled to clean acquittal.
7. On the other hand, learned counsel for the State submits that it was the appellant who started the quarrel, he is the person behind this occurrence, he took altercation with the complainant and thereafter under his influence, Arshad his son now P.O. Caused injuries on the person of Qamar un Nisa deceased who lost her life.
8. I have heard learned counsel for the parties and have gone through the record. In the instant case, apart from the present appellant, his son Arshad was one of the accused. Arshad (P.O.) was alleged to have caused injuries to the deceased who met her death. As far as appellant is concerned, it was stated in the complaint Exh.P.A and before the trial court by Ashraf Ali complainant that on the Lalkara raised by the appellant, his son Muhammad Arshad gave injuries on the person of the deceased.
9. Prosecution in order to prove its case produced Ashraf Ali, complainant as P.W.1. He is husband of Qamar-un-Nisa, the deceased in this case. Muhammad Tariq (P.W.2) is closely related to the deceased. He seems to be a chance witness being not resident of the place of occurrence and no reasons for his presence in the house of her sister has been given by him. Similarly, Iqbal Hussain (P.W.3) is real brother of Mst. Qamar-un-Nisa deceased. Nasir Iqbal who was alleged to have been making repair in the house of the complainant and was mentioned as an eye witness was not produced by the prosecution.
10. The motive was furnished by Ashraf Ali, complainant (P.W.1) His statement on the point of motive was not corroborated either by Tariq or Iqbal Hussain P.Ws. 2 and 3 respectively. So, I disbelieve the motive furnished by the prosecution.
11. The appellant during the trial took the defence that the deceased was a lady of lose character, the people of the mohallah including the appellant used to give applications against her character to the Police and for that reason, he was falsely involved in the instant case.
12. Without prejudice to the case of either party, it is not denied that no overt act whatsoever was attributed to the appellant except to raise the Lalkara. He was not even alleged to be armed. It has become order of the day that along with the actual accused, his near and dear one's are also involved, so the Court- has to sift the grain from the chaff. Applying this principle to the facts and circumstances of the instant case, the appellant being real father of the main accused Arshad now P.O. Possibility of his false implication cannot be ruled out. Arshad son of the appellant is P.O. But the appellant cannot be penalized for the fault of his son. In these circumstances, by extending the benefit of doubt, I accept this appeal and set aside the conviction and sentence recorded against the appellant by the learned trial Court. The appellant is on bail and his bail bonds shall stand discharged.