This judgment will dispose of Criminal Appeal No.303 of 2001 filed by Mubarak Ali, appellant, who was convicted and sentenced by learned Additional Sessions Judge, Kasur vide his judgment dated 13-2-2001 for the murder of Muhammad Ismail under section 302-B, P.P.C. To undergo imprisonment for life and to pay a compensation of Rs.50,000 to the legal heirs of the deceased or in default six months' S.I.
2. Occurrence in this case had taken place at 9-00 a.m. On 13-8-1998 within the jurisdiction of Police Station Khudian at a distance of five miles away while the matter was reported to the police by Mst. Siraj Bibi complainant through complaint Exh.PA at 3-00 p.m. On the same day and the formal F.I.R. Exh.PA/1 was recorded by Ijaz Ahmad, M.H.C. On the same day at 3-30 p.m.
3. According to the F.I.R. Exh.PA/1, the facts of the prosecution case are that on 13-8-1998 at 9-00 a.m. Complainant party was digging their land, when Muhammad Mansha son of Ahmad Din accused (since dead) armed with a hatchet, Haider Ali accused armed with a "Sota", Mubarak accused (present appellant) armed with "Sota" and Umer accused armed with "Sota" alongwith one unknown person came there and Muhammad Mansha accused (since dead) inflicted hatchet blow upon the head of Ismail son of Mst. Siraj Bibi complainant and Haider Ali, Mubarak Ali and Umer accused also inflicted "Sotas" blows upon the person of Ismail, who fell down and became unconscious and this occurrence was witnessed by Murad Ali and Mansha P.Ws., who rescued the complainant party from the assailants and the accused ran away by raising "Lalkara" but Muhammad Ismail succumbed to the injuries on 14-8-1998 at General Hospital, Lahore.
4. After registration of the formal F.I.R. Shaukat Ali, P.W.11, proceeded to the spot, inspected the same, prepared site plan Exh.PJ, recorded the statements of the P.Ws., prepared inquest report Exh.PL and injury statement Exh.PM, took into possession blood-stained earth vide memo. Exh.PC, thereafter, the investigation was entrusted to Muhammad Sharif Bhatti, Inspector, P.W.9, who on 16-8-1998 arrested the accused-appellant, who while in police custody led to the recovery of Sota P.3 which was taken into possession vide memo. Exh.PF. After completion of the remaining formal investigation the accused was challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 12 witnesses in all, thereafter, learned A.D.A. Tendered in evidence report of Chemical Examiner Exh.PP, report of Serologist Exh.PQ, and closed the prosecution case then the statement of the accused was recorded under section 342, Cr.P.C. In which they pleaded, innocence.
6. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record, learned counsel for the appellant submits that except Mst. Siraj Bibi complainant (P. W.1) none of the other eye--witnesses namely, Murad Ali and Mansha have also supported the prosecution, that Mansha was declared hostile while Murad appeared in defence of the appellant, that despite Murad one Asghar Ali was also produced in defence of the appellant as D.W.2, that in fact, Mst. Siraj Bibi complainant was not present at the spot, that in fact it was one Tufail, who had illicit relations with Naziran Bibi sister of the deceased and Siraj Bibi complainant while Muhammad Ismail deceased used to ask Mst. Siraj Bibi and Naziran to break of their relations with Tufail, on which Tufail annoyed and he caused the death of the deceased, that one of the accused Mansha who died during the trial was having a hatchet but there is no injury on the person of the deceased with sharp-edged weapon, that there is a conflict between ocular account and medical evidence, that there was no occasion on the part of the appellant to have committed the murder of the deceased and he is entitled to acquittal.
7 On the other hand, learned counsel for the State submits that appellant has been named by Siraj Bibi, P.W.1 though mother of the deceased but she has got no animous against the appellant, that Court has to see quality of evidence and not the quantity of evidence, that prosecution has proved its case against the appellant and the sentence awarded to him by the learned trial Court be maintained.
8. I have heard learned counsel for the parties at, a great length and have also gone through the record. In the F.I.R. Four accused persons were mentioned. Mansha armed with hatchet (since dead and not tried), Haider Ali and Muhammad Umer tried and acquitted. As far as, Mubarak Ali present appellant is concerned, he was also armed with Sota and on the same set of evidence two above mentioned accused have been acquitted although they were also assigned injuries on the person of the deceased. Muhammad Mansha (since dead) was alleged to have caused injury with hatchet on the head of the deceased but there was no sharp-edged injury on the head of the deceased. In the F.I.R. Alongwith Mst. Siraj Bibi. Complainant two persons, namely, Mansha and Murad were mentioned as eye-witnesses. Mansha had appeared as. P.W.2, he did not support the prosecution case, he exonerated not only the present appellant but all the accused mentioned in the F.I.R., he was declared hostile. Murad was given up by the prosecution, he appeared as D.W.1, he also supported the appellant and exonerated him from the charge and did not support the prosecution case. One Asghar Ali was examined as D.W.2. He stated that he along with Akbar and Inayat were appointed as arbitrators by both the parties and Mst. Siraj Bibi complainant offered that if Asghar Ali along with Akbar and Inayat took oath for the innocence of the accused she will accept the same, although this type of arbitration is not accepted either by this Court and the Hon'ble Supreme Court of Pakistan but the fact' remains that there is no independent corroboration to the statement of Mst. Sira, Bibi. On her evidence, the conviction of the appellant cannot be maintained while two co---accused of the similar roles have been acquitted by the learned trial Court and moreover, two eye-witnesses mentioned in the F.I.R. Have not supported the prosecution case and one of them, namely, Murad appeared as D. W.1.
9. After having heard the learned counsel for the parties and going through the record I am of the opinion that participation of the appellant in this case is doubtful, so while extending the benefit of doubt I accept this appeal, set aside the conviction and sentence recorded against the appellant by the learned trial Court. He is in jail and he shall be released forthwith if not required to be detained in any other case.