' This judgment will dispose of Criminal Appeal No,1481 of 2000 directed against the judgment dated 11-9-2000 passed/ by the learned Additional Sessions Judge, Faisalabad, whereby he convicted the appellants under section 302-B/34, P.P.C. And sentenced them to undergo life imprisonment with further direction to pay Rs,50,000 each as compensation required under section 544-A, Cr.P.C. Or in default six months' R.I. They were also convicted under section 201/34, P.P.C. And were sentenced to 7 years' R.I. With tine of Rs,.10,000 each or in default 6 months' R.I. Sentences were ordered to run concurrently with benefit of section, 382-B, Cr.P.C.
2. The facts in brief as narrated by the complainant are that on 5-1-1990 Mushtaq alias Mushtaqi came to Kaloo deceased with the retest that he had an urgent piece of work and they will earn big fortune. He asked Kaloo to accompany him and also asked Kaloo and at about Ishawela Kaloo alongwith Shamsha and Mushtaq set out. Mushtaq left his bicycle at the house of complainant.
' At about -3 a.m. In the night, Shamsha came back and knocked at the door Manzooran wife of Kaloo opened the door when Shamsha informed that Kaloo had been murdered. The complainant also woke up. On their query Shamsha told them that he will take them to the plane where dead body was lying. The complainant along other persons accompanied' Shamsha to Chak No,411-G.B.
But they did not find the dead body of Kaloo till 11 a.m. On that day and no blood or another mark of struggle on that place was found by them. Shamsah produced before him an old cartridge of .12 bore and empty cartridge box. According to the complainant neither the dead body of Kaloo was found nor he returned to home. Having apprehension that his brother had been murdered by Mushtaq, Shamsha and party-men of Kandla party, the complainant got a case registered against them. Motive in this case is long standing criminal litigation.
3. Police after receiving information about the murder of Kaloo, completed all the necessary formalities and 12 persons including the appellants, were challaned.
4. Prosecution in order to prove its case produced as many as 11 witnesses including Investigating Officers and other relevant persons. No documentary evidence was produced in this case and learned ADA closed the prosecution evidence. Thereafter, statements of the accused were recorded under section 342, Cr.P.C. In which They pleaded not guilty and claimed to be tried.
5. Learned counsel, for the appellants in support of, this appeal submits that there is a delay of 5 days in lodging the F.I.R. Without any explanation, that on the same evidence 9 accused have been acquitted by the learned trial Court, that there is no eye-witness in this case, that there is no witness of extra-judicial confession even, that except the evidence that Mushtaq and Shamsha had sent for the deceased Kaloo, which too has come on record through interested witnesses, there is no independent corroboration in this regard, that no dead body was recovered from the accused. It is unbelievable that as the parties were locked in criminal litigation like murder, why the complainant party would allow Kaloo deceased to accompany Mushtaq and Shamsha, that only bones were got recovered by some of the accused but there is no proof that those bones were belonging to deceased. He submits that deceased was person of bad-character having involved in so many cases of theft, receiver of stolen property and that of Arms Ordinance, etc. And a detailed list of those cases i,e, Mark 'A' was submitted before the learned trial Court. Lastly he submits that no case is made out against the appellant.
6. On the other hand learned counsel for the State though supports the judgment of the learned trial Court but half-heartedly but submits that there is no plausibility in the story of the prosecution, that the deceased went along with Shamsha and Mushtaq appellant to commit theft when they were already locked in criminal litigation like murders.
7. I have heard the learned counsel for the parties. In the instant case there is a delay of 5 days in lodging the F.I.R. I am not going to believe the version of Jehangir complainant, the real brother of deceased Kaloo that Mushtaq and Shamsha came at his house and asked Kaloo to accompany them in order to commit theft though there was previous background of enmity between the parties and that of murder. Except interested witnesses like Jehangir P.W. (brother of the deceased)
Mst. Manzooran wife of the deceased, Fazal father-in-law of Jehangir, complainant, no independent witness has been produced by the prosecution. It is a case of capital punishment and in such-like cases evidence should have come on record through an unimpeachable source and then Court can draw only one conclusion which is lacking in the instant case as most of the witnesses in this case are closely related to the deceased. No dead body was recovered. Even there is no report of Fire-arm Expert regarding matching of empty with any of the weapon. Only some bones were got recovered by the appellants but there is no proof on the record whether those bones were of male and female and belonged to the deceased and that too were got recovered three months after the occurrence. I have gone through the list of cases Mark 'A' in which deceased wag involved and these cases are of theft, receiver of stolen property and difficult arms etc. Possibility of his being done to death by some unknown person in the mid-night where he had gone to commit theft and thereafter possibility 'of concealment of dead body cannot be ruled out.
All the three appellants have got enmity with the complainant party. There is no independent corroboration to their statements, even otherwise it is a case of circumstantial evidence and the principle is that in such-like cases of circumstantial evidence every link should be inter-connected in such a way that it should lead the Court to the conclusion that challaned accused were real culprits which is also not present in the instant case. Nine co-accused of the appellants on the same evidence have been acquitted by the learned trial. Court. Possibility of false implication of the appellants in this case cannot be ruled out.
8. The upshot of the above discussion is that there are many doubts and dents in the prosecution case and benefit of doubt always goes in favour of the accused not as a grace but as a right. In this view of the matter, this appeal is accepted and the conviction and sentence awarded to the appellants by the learned trial Court is set aside. Shamsha and Kandla appellants are behind the bars. They shall be released forthwith if they are not required in any other case. As far as third appellant Mushtaq is concerned, it is stated by the learned counsel for the appellants that he has served out his sentence.