KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.175 and Murder Reference No. 312 of 1998 directed against the judgment dated 6-3-1998 passed by Khawaja Muhammad Sharif, Additional Sessions Judge, Chunian, District Kasur, whereby he convicted the appellant under section 302 P.P.C. And sentenced him to death sentence while his co-accused were acquitted. The appellant was also awarded Rs.50,000 as fine or in default thereof he shall have to undergo 2 years R.I.
2. Brief facts of the case as narrated by the complainant in the F.I.R. Are that the occurrence took place on 30-5-1994 at about 6-00 p.m. In Village Naki situated at a distance of 7 k.Ms. From Police Station, Chunian. According to the complainant (now accused/appellant) he, along with Muhammad Ghaffar brother, Khurshid Ahmad, father was coming to village Sh. Ilamdin and when they reached near Churri crop they saw Mushtaq Ahmad armed with pistol, Muhammad Younas Muhammad Arif armed with guns .12 bore, Muhammad Afshad and Muhammad Ibraheem armed with Toka encircled Faqir Hussain, who was going ahead them and then Muhammad Arshad and Muhammad Ibraheem caused Toka blows on the body of the deceased Faqir Hussain. Faqir Hussain fell on the ground on which Mushtaq, Younas and Arif fired at him with their respective arms. The deceased died at the spot. The motive behind the occurrence was that a year before the present occurrence Faqir Hussain deceased, Muhammad Ibraheem and Muhammad Arshad had injured Khurshid Ahmed and Mst. Nabeela Bibi. The matter was reported to the police the same day at 9-00 p.m.
3. After getting information about the occurrence the local police completed all the necessary formalities and thereafter investigation of the instant case was entrusted to Aman Ullah Khan, S.-I.
On the day of occurrence he visited the spot. On 31-5-1994 he prepared injury statement Exh.P.G.
And inquest report Exh.P.H. He also took blood--stained earth vide memo. Exh.P.B. On 31-5-1994 he received last worn clothes of the deceased vide memo. Exh,P.C.
4. On 1-6-1994 Muhammad Sarwar and Muhammad P.Ws. Appeared before him and stated that they had seen Abdul Jabbar while committing the murder of Faqir Hussain and then the investigation took a new turn. On 4-6-1994 Mst. Zainab Bibi widow of deceased appeared before him and produced a copy of her statement recorded under section 164, Cr.P.C. He also recorded her statement under section 161, Cr.P.C. He arrested Abdul Jabbar on 22-6-1994 who while in police custody got recovered weapon of offence i.e. Toka vide memo. Exh.P.A., on the same day. On 25-6- 1994 he also got recovered blood-stained clothes which he was wearing at the time of occurrence vide memo. Exh.P.D. Investigation of the instant case was also conducted by D.S.P., C.I.A., Kasur who also arrayed Abdul Jabbar as accused and found Mushtaq Ahmad etc. As innocent. Ultimately challan was prepared against the appellant and sent him behind the bars to face the trial.
5. The prosecution in order to prove its case has produced as many as 15 witnesses including Doctor, I.Os., eye-witnesses and other relevant persons. After tendering in evidence reports of Chemical Examiner, Exh.P.L--- Exh.P.M., Exh.P.N. And that of Serologist Exh.P.O. And Exh.P.Q. The learned S. P. P. Closed the prosecution evidence. Thereafter statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded their innocence. After taking into consideration the evidence and hearing the arguments advanced by both the parties, learned trial convicted and sentenced the appellant mentioned above. Hence this appeal.
6. Learned counsel for the appellant in support of this appeal submits that in fact Faqir Hussain was the real uncle of Abdul Jabbar who was complainant of this case but later on in connivance with the accused and the police made the appellant as a scapegoat in this case, that all the accused mentioned the F.I.R. Were got discharged by the police Learned counsel submits that in order to get acquittal of those accused persons who were nominated in the F.I.R., Muhammad Sarwar. P.W.14 and Muhammad Ali, P.W.15 who were close relatives of the said accused persons after a considerable delay named Abdul Jabbar appellant and nominated him as an accused, that the recovery has been planted on the appellant, that in fact it was a case of no evidence against the appellant, that Mst. Zainab Bibi, widow of Faqir Hussain deceased made a statement on 4-6-1994 under section 164, Cr.P.C. Implicating the father of Abdul Jabbar appellant namely Khurshid Hanifan and brother Abdul Jabbar, that it is a case of no evidence and the appellant is entitled to acquittal.
7. On the other hand learned State Counsel submits that the impugned order .Is a detailed one and he supports the judgment of the learned trial Court.
8. We have heard the learned counsel for the parties. In the instant case the occurrence had taken place according to the F.I.R. On 30-5-1994 at 6-00 p.m. And the police was informed in this regard on the same day at 9-00 p.m. By Abdul Jabbar appellant who is real nephew of Faqir Hussain deceased. In the F.I.R. He has mentioned Mushtaq, Younas, Muhammad Arif, Muhammad Ibraheem and Arshad as assailants of the deceased. Later on Mst. Zainab Bibi widow of the deceased made a statement under section 164, Cr.P.C. And two eye-witnesses Muhammad Sarwar and Muhammad Ali appeared before the police and stated that they had seen the appellant Abdul Jabbar giving Toka blows on the person of the deceased. We have gone through their statements with the assistance of the counsel for the appellant unnatural and improbable come on the record during examination that after the occurrence they went to Okara and did not inform the police about the murder allegedly committed by Abdul Jabbar. They even did not inform Mst. Zainab. They came back from Okara and after three days of the occurrence they informed the police. The above-said fact clearly shows that they are set up witnesses. Had they seen the appellant committing the murder of Faqir Hussain, then their first duty was to inform the police or the widow of the deceased.
It has also come on the record that all the accused persons mentioned in the F.I.R. Exh.P.F. Were near relative of Muhammad Sarwar P.W. While the police on the other hand got them discharged, in our view, with mala fide intention. Abdul Jabbar appellant was also tried along with his mother Mst. Hanifan, his father Khurshid and Abdul Ghaffar his brother. Learned trial Court acquitted the co-accused and convicted the appellant.
9. As far as recovery is concerned, only a police official was produced as P. W. In this regard by the prosecution but nobody was joined from the adjacent houses. There was a clear violation of section 103, Cr.P.C. This is, a case of capital punishment. In such-like cases evidence should be of such a nature which should be convincing one and appeal to reason while in the instant case both the two eye-witnesses produced by the prosecution seems to be set up witnesses. Had they been present at the spot, they must have acted in another manner than the which they had acted as stated by them during the cross-- examination. The basic principle is that the prosecution has to prove its case against the accused beyond any shadow of doubt. In the instant case the prosecution has failed to prove the same.
10. The upshot of the above discussion is that the prosecution has failed to prove its case against the appellant so in this view of the matter, we accept this appeal and set aside the conviction and sentence awarded to the appellant by the learned trial Court. Murder Reference is replied in the negative. The appellant is ordered to be released forthwith if he is not required in any other case.
Death sentence awarded to the appellant by the learned trial Court is not confirmed.