This judgment will dispose of Criminal Appeal No.83-J of 2001 directed against the judgment, dated 27-2-2001 passed by the learned Additional Sessions Judge, Samundri, whereby he convicted the appellant under section 302-B, Cr.P.C. And sentenced him to undergo life imprisonment with further direction to pay Rs.50,000 as compensation, payable to the legal heirs of the deceased, as required under section 544A, Cr.P.C. Or in default six months' S.I. While other accused were acquitted.
2. The facts of the case in brief as narrated by the complainant are that on 5-8-1998 at about 9/10 p.m. The appellant alongwith Imtiaz, Alamsher and two unknown persons visited the house of the complainant and they took Khizar Hayat brother of the complainant with them who did not return back till night. On the following day the complainant, Umar Hayat and Shahmand inquired from Jafar appellant about Khizar Hayat deceased who flatly refused upon which the complainant and his companions became worried and started search for Khizar Hayat deceased and the same day they found the dead body of Khizar Hayat lying in the maize crop. The motive behind the present occurrence was that the appellant had a suspicion that the deceased had illicit relations with her were. The matter was reported to the police.
3. After completing all the necessary formalities Fateh Muhammad, S.-I. Proceeded to the place of occurrence. He prepared the injury statement Exh.P.D. And inquest report Exh.P.E. He took into possession Safa produced by Jahan Khan, Constable. Thereafter investigation of the case was transferred to Inspector S.H.O. Fazal Hussain who arrested Jaafar on i2-12-1998 and got recovered Safa P.1 and Danda P.2 from him vide memo. Exh.P.A. Ultimately he prepared the challan and submitted the same for trial.
4. Prosecution in order to prove its case has produced as many as 7 witnesses including Doctor, Investigating Officer and other relevant persons. Thereafter statement of the accused was recorded under section 342, Cr.P.C. In which they pleaded not guilty and claimed to be tried.
5. Learned counsel for the appellant in support of this appeal subs flits that there is delay of 3 days in lodging the F.I.R., that it was an unwitnessed occurrence, that except the last seen evidence, there is no other evidence, that recovery of Safa has been planted on the appellant and the same in fact has been produced after the post-mortem examination, that on the same evidence four co-accused of the appellant have been acquitted and there was no motive in this case. He submits that in fact it was a case of no evidence.
6. On the other hand learned State Counsel submits that the motive laid with the present appellant that he had a suspicion that there were illicit relations between the deceased and the were of the appellant, that there is evidence of last seen and that the prosecution has proved its case against the appellant.
7. I have heard the learned counsel for the parties and also have gone through the record available on the record. According to the prosecution case at 9/10 a.m. On 5-8-1998, Jaffar appellant alongwith Imtiaz, Alamsher and two unknown persons whose names later on came to known as Nazir Anmad and Muhammad Nawaz who took Khizar Hayat with them. Thereafter the complainant tried to search him and he asked the appellant and his co-accused to produce Khizar Hayat. On 8- 8-1998 he got an information at 10 a.m. That the dead body of the deceased was lying in the fields of one Muhammad Nawaz and there they saw that the deceased was killed by throatling.
8. It may be stated here that on the same evidence four co-accused of ,the appellant. Have been acquitted by the learned trial Court. There is no eye-witness in this case, even the dead body was not recovered on the pointation of the appellant. From 5-8-1998 to 8-8-1998 no report whatsoever was lodged by the complainant against the present appellant and his acquitted co-- accused.
There is no evidence of extra--judicial confession except the last seen evidence which was also against the acquitted co-accused. Only on the evidence of suspicion and motive as alleged by the prosecution the conviction and sentence under section 302(b), P.P.C. Cannot be maintained.
9. After having heard the learned counsel for the parties and going through the record, I am of the opinion that this case is shrouded in mystery and is full of doubt benefit of which is granted to the appellant. In this view of the matter this appeal is accepted and the appellant is acquitted.
Appellant is in jail. He shall be released forthwith if he is not required in any other case.