MUHAMMAD AMIN Versus State
QAZI MUHAMMAD AMIN AHMED, J.--- Criminal Appeal No.837 of 2010 is clubbed with Murder Reference No.43 of 2010 that arise out of an incident which occurred on 16.08.2009 at. 01.00 a.m (after mid night) within the area of Chak No.1/14-L, situated at a distance of 3-miles from Police Station Kassowal District Sahiwal. Case is registered on the complaint (Ex.PB) of Muhammad Rashid (PW-2) at 01.35, a.m. recorded by Muhammad Naeem S.I (C.W.5) wherein it is alleged that Fayyaz Ahmad deceased who ran a grocery shop in the village was asleep in front of his shop when Muhammad Amin-appellant armed with 'Churri' in the company of Nawaz, Mazhar, Amjad and Shah Muhammad armed with sota and .12-bore gun awoke him and started altercation. It is complainant's case that he was attracted to the noise along with Mazhar Hussain and Muhammad Aslam-Pws and saw in the light of electric bulb Shah Muhammad accused raising Lalkara when Muhammad Amin appellant dealt a "Churri" blow to the deceased which landed on his left flank who felled on the ground. Shah Muhammad co-accused is alleged to have threatened the Pws stay at bay. According to the complainant, Muhammad Amin, Nawaz and Mazhar Amjad, lifted Fayyaz Ahmad (deceased) and threw him in the house of Sobia daughter of Naseer.
Motive for the occurrence is that Muhammad Amin appellant suspected illicit liaison between the deceased and aforementioned Sobia.
2. Upon spot inspection I.O. secured earth which according to the report of Chemical Examiner (Ex.PH) and that of Serologist (Ex.PJ) was found stained with blood of human origin; according to Inquest Report (Ex.PG) deceased was wearing shalwar, qameez and vest, all, blood stained.
According to Dr. Naveed Aslam, (Pw-4), there was an incised wound of 4 cm x 1.5 cm on back of chest on left side, 4 cm lateral to spine of vertebrae and 6 cm below lower angle of left scapula. Ex.PE is the postmortem report.
3. Muhammad Naeem, S.I Investigating Officer (C.W.5) on a disclosure effected recovery of blood stained 'Churri' (Ex.CW5/B) at the instance of Tanveer accused on 22.09.2009. Feeling aggrieved with the investigation, Muhammad Rashid (PW.2) preferred to file a private complaint (Ex.PC) on 20.1.2010 wherein all the accused were summoned to face trial and put to charge on 1.3.2010; they denied the charge and claimed trial.
4. Prosecution produced PWs-1, 2, 3 and 4, whereas 5 Court witnesses were examined besides forensic reports to bring home the charge.
5. The appellant took the following position:-
"I am innocent. The prosecution version is false and concocted. In fact Fayyaz Ahmed deceased went to the house of Mst. Sobia at about 9.00 p.m/10.00 p.m to pursue his immoral missions where he was done to death because of his illicit relations with Mst. Sobia and the deceased in fact had received Churi blow in the house of Mst. Sobia and the blood stained earth was as such taken into possession from the house of Mst:Sobia, I and my co-accused were not present at the time and place of occurrence. The complainant party learnt about the occurrence on the following morning, they fabricated false story and involved us in this false case due to enmity with us".
6. Upon conclusion of trial, the learned trial Judge acquitted Shah Muhammad, Atta Muhammad, Mazhar and Tanveer accused while convicting Muhammad Amin-appellant under section 302(b), P.P.C. and sentenced him to death along with payment of Rs.200,000/- as compensation or to undergo six months' S.I. in default thereof.-
7. The learned counsel for the appellant contends that the prosecution story on face of it is not confidence inspiring; that evidence which has been disbelieved qua 4 out of 5 accused cannot furnish basis for appellant's conviction without any independent corroboration which is not forthcoming; that both according to inquest report (Ex.PG) and postmortem (Ex.PE) there was no cut mark either on any of the last worn cloths of the Fayyaz Ahmad (deceased); that there was no earthy reason for the appellant or his co-accused to throw the body of the deceased inside the house of Sobia and that explanation given by Muhammad Amin appellant sounds more plausible when juxtaposed with the prosecution's case.
8. Conversely, the learned D.P.G. assisted by the learned counsel for the complainant argued that prosecution had successfully proved its case beyond a shadow of doubt through ocular account furnished by eye-witnesses who being of locality are natural witnesses having no animus or ill-will against the appellant. According to him parties being known to each other, there is no possibility of mistaken identity and that substitution is a rare phenomenon.
9. We have heard the learned counsel and perused the record with their assistance.
10. Prosecution's case that the deceased was asleep in front of his shop, when confronted by the accused is a position which we find hard to conceive; ordinarily one would prefer to stay over night inside the comforts and safety of his dwelling, after all it was a small village grocery shop that hardly needed round the clock surveillance. Selection of time by the accused to assault the deceased is again mind boggling. What is more astonishing is the allegation that deceased was thrown inside the house of Sobia after he was fatally hit by the appellant. The said house at that odd hours must have been bolted from inside and shifting the deceased there had been quite an exercise for which there appears no earthly reason to undertake such adventure. It appears something happened inside the house. The seat of injury which is back of chest and absence of corresponding cut mark on the last worn clothes of the deceased spell out a scenario on which prosecution's reticence creates a reasonable doubt on the veracity of prosecution's case. Recovery of the 'Churri' at the instance of Akhtar co-accused further destroys what little is left of the prosecution's case. It is nobody's case that Akhtar acquitted co-accused was carrying a 'Churri'. None from the inmates of Sobia's house came forward to support the prosecution. Evidence which has been disbelieved qua 4 out of 5 accused is lacking independent corroboration as the recovery is attributed to Akhtar acquitted co-accused; it is now by well settled that evidence which is rejected against some accused can only be used qua others when corroborated independently and this is not a case in hand. For an accused to earn benefit of doubt, a single circumstance raising reasonable and honest suspicion in a prudent mind not based on pity, sympathy or prejudice but having its foundational basis in evidence is enough. After a fair comparison and careful examination of entire evidence, we feel no hesitation to hold that prosecution case is not free from doubts and explanation offered by the accused sounds more plausible. Therefore, while extending benefit of the doubt to the appellant, set-aside impugned judgment dated 30.06.2010 passed by the learned Additional Sessions Judge, Chichawatni and acquit him of the charge. He shall be set at liberty forthwith if not required in any other case, Criminal Appeal No.837 of 2010 is allowed. Murder Reference No. 43 of 2010 is answered in NEGATIVE and death sentence awarded to appellant is NOT CONFIRMED .
HBT/M-12/L Appeal allowed.