' Appellant alongwith four other co-accused was tried for the murder of one Shah Baig by learned Additional Sessions Judge, Faisalabad in case F.I.R. No,123 of 1992, dated 5-6-1992 under section 302/109/34, P.P.C., registered at Police Station Bahalak. District Faisalabad who vide judgment, dated 26-10-2000 while acquitting co-accused convicted the appellant under section 302(b), P.P.C. And sentenced him to imprisonment for life and to pay Rs,1,00,000 (Rupees one lac) as compensation to the legal heirs of the deceased, or in default whereof to further undergo six months' R.I. The appellant was also given the benefit of section 382-B, Cr.P.C.
2. Being aggrieved by the conviction and sentence the appellant has filed the instant appeal while the complainant has filed Criminal Revision No,867 of 2000 seeking enhancement of the sentence of the appellant. Both these matters are being disposed of by this judgment.
3. The brief facts of the prosecution case as narrated in the F.I.R. Are that on 5-6-1992 at about 5/6 a.m., complainant Sardar Iqbal alongwith his father Shah Baig, Mohsin Ali son of Toraiz and Baig son of Chawa was present at his fields in connection with sowing cotton crop. Shah Baig father of the complainant was present on the Watt and was supervising. All of a sudden, Iqbal, Ghafoor both armed with hatchets, Rafique armed with Ramba came at the spot and launched attack at the father of the complainant. Allegedly Iqbal gave hatchet blow, at the right side of the head of Shah Baig whereas Rafique appellant gave blow with Ramba on left side of the head of father of the complainant. Statedly complainant and other witnesses tried to apprehend the accused persons but the accused managed to flee. As a result of injuries Shah Baig died at the spot.
' The motive for this occurrence as narrated in the F.I.R. Is that six months p ior to the occurrence one Ghulam Ali relative of the accused was murdered and in that case (father of Mohsin P.W.) and his two sons were involved. Statedly in order to get revenge of the said murder, Rafique, Iqbal and Ghafoor at the abetment of Allah Ditta son of Taja and Talib son of Toga had committed the murder of Shah Baig.
4. The matter was reported to the police at the police station by Sardar Iqbal P.W.10. This case was formally investigated by Muhammad Khalid Inspector P.W.13 and Muhammad Anees Lodhi, D.S.P.
P.W.14. During the. Investigation on 2-9-1992 appellant appeared before Muhammad Anees Lodhi, D.S.P. P.W.14 and produced blood-stained Ramba P.3 which was taken into custody vide memo.
Exh.P.C. After complying with all the legal formalities the challan was submitted before the trial Court where the prosecution produced fourteen witnesses to prove the charge against the appellant and then co-accused.
' The ocular account in this case was narrated by Sardar Iqbal P.W.10 (son) and Mohsin Ali P.W.12 (son-in-law) of the deceased Shah Baig. Both of them had supported the prosecution case and narrated the circumstances under which the appellant and their co-accused committed the murder of Shah Baig.
' Post-mortem examination on the dead body of Shah Baig was conducted by Dr. Naseer Ahmad P.W.9, who observed the following injuries:-- "(1) Incised wound 4 c.m. x 2 c.m. On the left ear pinna. The ear pinna cut through and through within two pieces.
(2) Incised wound 5 c.m. x 2 c.m. On left side of top of head DNP about 11 c.m. Above the left ear.
(3) Incised wound 6 c.m. x 2 c.m. DNP on the right side of head, 9 c.m. Above the right ear.
(4) Incised wound 7 c.m. x 2 c.m. And 10 e.m. From the right ear on top of head, adjacent to injury No,3.
' Rest of the witnesses are of formal nature and need no discussion.
5. Learned trial Court also examined the appellant under section 342, Cr.P.C. While answering to the question "why this case is against you and why the P.Ws. Have deposed against you?" the appellant replied as under:-- "I am T.B. Patient since long and unable to act as alleged in this case against me by the P.Ws. The P.Ws. Are interested and inimical towards us. Father and brothers of Mohsin Ali P.W. Murdered Ghulam Ali a relative of me and in investigation. I remained appearing against father and brothers of Mohsin P.W. Who nursed grudge against us. Mohsin and Sardar Iqbal P.Ws. Are brothers-in-law to each other. It was blind murder. The alleged place of occurrence was never in physical construction possession/ownership or in cultivating possession of complainant party. The deceased had many other enmities of criminal cases and also with Shamma and sons of Ahmad etc. Over agricultural lands. On 19-2-1992, the civil appeal filed by sons of Ahmad etc. Had succeeded against said Shah Baig and the deceased did not permit the sons of Ahmad to enter into their lands and proceeding to the murder of deceased firing took place over the possession of the said land and this took serious turns of enmity between them. Deceased was a favorite child of local police. In the days of occurrence, father and real brothers of Mohsin P.W. Were under prosecution for murdering Ghulam Ali, therefore, said Mohsin Ali P.W. Served his own purposes by falsely implicating us and during investigation prosecution version was found false, the P.Ws.
Sardar Iqbal and Mohsin were not found present but prosecution deliberately did not produce those material witnesses. I am innocent in this case and did not murder Shah Baig deceased and had been made a scapegoat by the P.Ws. To take revenge for pursuing the murder case of Ghulam Ali who was found committing Zina with Mst. Rani, the sister of Mohsin and cousin of Sardar Iqbal due to which the family of complainant party was badly defamed. The F.I.R. Was lodged after inordinate delay as real assailants were not known and the alleged P.Ws. Picked up an opportunity to serve their own motives."
' The appellant or his co-accused did not make any statement under section 340(2), Cr.P.C.
However, Ch. Muhammad Riaz, S.P. Was produced in defence as D.W.I. These witnesses have also investigated this case and according to his investigation Iqbal and Ghafoor accused were innocent.
' The learned trial Court after appraisal of evidence vide judgment, dated 26-10-2000 convicted and sentenced the appellant as narrated earlier.
6. I have heard learned counsel for the parties at some length and have also gone through the record with their assistance.
7. According to the prosecution case Rafique appellant alongwith Iqbal and Ghafoor co-accused had participated in this occurrence. Allegedly all of them gave injuries to Shah Baig with their respective weapons, as a result of which he died later on. During the trial Sardar Iqbal P.W.10 and Mohsin Ali P.W.12 narrated the ocular account and had supported the prosecution case. The learned trial Court after careful analysis of the prosecution case disbelieved the statements of these witnesses qua Iqbal and Ghafoor co-accused but convicted Rafique appellant mainly on the ground that ocular account narrated by the said witnesses stands corroborated by the recovery evidence i,e, blood-stained Ramba P.3 at the instance of appellant during the investigation. It is interesting to note that this Ramba was produced by Rafique appellant when he appeared before the police after almost three months of the occurrence. It is repellent to common sense that appellant would have kept this blood-stained weapon as souvenir with him for its presentation before the police at the time of arrest. Even otherwise after such a long time normally the blood stains automatically disappear and in this view of the matter the report of Chemical Examiner is also not free of doubts.
' Statedly at the time of occurrence witnesses were ploughing the land and deceased was supervising them while standing on the Watt but the site plans prepared by the Investigating Officer as well as by the Draftsman, reveal that this occurrence took place in almost middle of Killa No,25 of Square No,63. Similarly the said site maps do not show the presence of eye-witnesses, the signs of ploughing, the presence of tractor etc. Of the place of occurrence. It is established from the record that neither the place of occurrence was owned nor the same was in the physical possession of the complainant at the time of occurrence. The inquest report prepared by the Investigating Officer is also silent about the presence of both the abovesaid witnesses who claimed to have seen the occurrence.
' According to the prosecution case at the time of occurrence the assailants gave three injuries to the deceased but medico-legal report reveals that deceased had four injuries on his person.
Though during the trial eye-witnesses had stated that assailants gave four injuries to the deceased, to bring their case in line with the medical evidence but this conduct of the witnesses is indicative of the fact that they are not worth reliance and whatever they had stated before the trial Court was under some legal advices.
' All the abovesaid circumstances are sufficient to doubt the presence of eye-witnesses at the time of occurrence.
8. The upshot of the above discussion is that at the time of occurrence the presence of both the eye-witnesses namely Sardar lqbal P.W.10 and Mohsin Ali P.W.12, is doubtful. Even otherwise in the circumstances the statements of both the said eye-witnesses who have already been disbelieved by the trial Court qua the co-accused of the appellant, would be of no value in the absence of any independent corroborative piece of evidence. In these circumstances conviction and sentence of the appellant is not sustainable. Accordingly this appeal is allowed, conviction and sentence of the appellant is set aside and he is acquitted of the charge. The appellant shall be released forthwith if not required to be detained in any other case.
9. In the light of the above Criminal Revision No,867 of 2080 seeking enhancement of sentence of appellant having no. Force stands dismissed.