1. ' This judgment will dispose of Criminal Appeal No.685 of 2003 filed by Muhammad Arif, appellant, who was Convicted and sentenced by learned Additional Sessions Judge-H, Chunian, District Kasur vide his judgment 31-3-2003 to undergo imprisonment for life under section 302(b)/34, P.P.C. With the further direction to pay R.25,000 as compensation to the legal heirs of the deceased or in default six months S.I. With the benefit of section 382-B, Cr.P.C.
2. ' Brief facts of the case as disclosed by Muhammad Akram complainant are that on 29-5-2002 at about 11-00 a.m. He was present in his house, when Muhammad Wakeel alongwith two persons came and called for his son Javed to accompany them to catch the parrots from Chhanga Manga Forest. Hence on their asking his son Muhammad Javed accompanied to them. However, when his son did not come back till evening time, then he went to the house of Muhammad Wakeel etc. But they tolerated the complainant, but on his stress Muhammad Wakeel etc told that they caught parrots from Chhanga Manga Forest. However, on 1-6-2002, he accompanied the complainant party to Ghora Poli of Canal to search out Javed deceased but he did not take them towards the place of occurrence. However, the complainant continued the search of his son at different places.
3. It has also been alleged by the complainant that today, i.e. 2-6-2002 at about 2/3.00 p.m., one Zulfiqar Lumbardar, informed him that the dead body of his son lying in field No.73 of Chhanga Manag Forest, near Ghora Poli, whose legs and hands were tied, c,pon this information the complainant alongwith his brother and other P.Ws reached in the Forest of Chhanga Manga and saw there the dead body of his son Javed; further that Muhammad Wakeel alongwith his co- accused with their common intention has murdered his innocent son Javed. Hence this case.
4. ' After registration of the formal F.I.R., investigation of the case was handed over to Muhammad Ilyas S.-I. P.W.10, who went to the spot, prepared inquest report Exh. PG and injury statement Exh.PJ/1, took into possession bloodstained earth from the spot vide recovery memo Exh.PH and also prepared rough site-plan Exh.P.I. On 21-6-2002 he arrested accused Arif and Muhammad Wakeel and they while in police custody led to the recovery of Churri P.I, which was taken, into possession vide memo Exh.PH. After completion of the investigation, the acused were challenged to face the trial.
5. ' At the trial, prosecution in order to prove its case produced 11 witnesses in all, thereafter, learned SSP tendered in evidence report of Chemical Examiner regarding Churri Exh.P0, regarding earth Ex.
6. PP and closed the prosecution case, then, the statement of the accused was recorded under section 342, Cr.P.C. In which they pleaded innocence and claimed false implication.
7. ' In support of this appeal, learned counsel for the appellant submits that appellant was not named in the F.I.R, that no identification parade had held, that F.I.R. Was lodged with the delay of two days and in spite of that name of the present appellant was not mentioned therein, that on the same day, a supplementary statement was made by the complainant in which he had mentioned the name of the appellant and one Refique, that said Rafique was discharged during the course of investigation, that allegations of sodomy were levelled against the appellant and his co-accused, that swa b stained with semen allegedly taken by the doctor, who conducted post-mortem examination on the dead body of the deceased, same were sent to the Chemical Examiner and in this regard report is negative, that as far as recovery of Churri from the appellant and his co- accused Wakeel is concerned, that is inadmissible in evidence, being joint one that Muhammad Ashraf P.W.2 is brother-in-law and Muhammad Aslam P.W.3 is real brother of the complainant, that both P.W.2 & P.W.3 appeared before the trial Court and stated that they had told the complainant to the effect that they had seen the deceased in the company of the appellant, and his co- accused Wakeel and Rafique but in spite of that name of the appellant was not mentioned in the F.I.R.
8. ' On the other hand, learned counsel for the State submits that there was no question of false implication of the appellant in this case; that due to decomposition of the dead body swabs were not stained with semen and that all the witnesses are independent. He supports the judgment of the learned trial Court.
9. ' I have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. In the instant case, occurrence had taken place on 31-5-2002, matter was reported to the police on 2-6-2002, only one Wakeel and two unknown persons were mentioned in the F.I.R., on the same day, complainant made a supplementary statment in which he not only named the present A appellant but also one Rafique, who was got discharged by the police during the course of investigation. Muhammad Ashraf and Muhammad Aslam P.W.2 and P.W.3 who are brother-in-law and real brother of the complainant respectively stated that they had told the complainant that deceased was seen in the company of the present appellant, and his co-accused Rafique and Wakeel and even this fact was admitted by the complainant in his cross- examination at the time of trial before the trial Court but in spite of that, complainant did not mention the same in the F.I.R., although the same lodged with the delay of 2 days. There is no eye- witness in this case, even swa bs were not stained with semen according to the report of Chemical Examiner. There is a joint recovery of knife, which is not admissible in evidence.
10. After having heard learned counsel for the parties and going through the record I am of the considered opinion, that it is a case in which there are so many doubts and benefit of the same always goes in favour of the accused nor as a matter of grace but as a matter of right, so while granting the same benefit I accept this appeal, set-aside the conviction and sentence recorded against the appellant by learned trial Court. He is in jail and he shall be released forthwith if not required to be detained in any other case.