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Petitioner: MUHAMMAD ARSHAD VS Respondent: StateHonorable Justice Khawaja Muhammad SharifTalaat Farooq Sheikh
2008 Y L R 2563
2008 Y L R 2563
[Lahore]
Before Khawaja Muhammad Sharif, J
MUHAMMAD ARSHAD---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No.1610 of 2002, heard on 10th June, 2004.
Penal Code (XLV of 1860)---
----S. 302(b)---Appreciation of evidence---Benefit of doubt---Accused was 15 years of age at the time of occurrence---No direct evidence being available case against accused rested on last seen evidence and his extra judicial confession---Witness of last seen evidence had stated that he had seen the accused, deceased and other boys while plucking `Jaamin "---Witnesses of extra judicial confession had neither apprehended the accused nor handed him over to police---Even otherwise, such type of evidence was a weak evidence---Nothing incriminating including the dead body of the deceased child as recovered on the pointation of accused---State counsel had also not supported the prosecution case whole heartedly---Benefit of doubt was granted to accused in circumstances and he was acquitted accordingly.
1996 SCMR 188 ref.
Talaat Farooq Sheikh for Appellant.
Rao Ashfaq Ahmad Chaudhry for the State.
Date of hearing; 10th June, 2004.
JUDGMENT
KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.1610 of 2002 filed by Muhammad Arshad, appellant, who was convicted and sentenced by learned Additional Sessions Judge, Faisalabad vide his judgment, dated 17-8-2002 to undergo imprisonment for life under section 302(b), P.P.0 with the further direction to pay Rs.100,000 as compensation to the legal heirs of the deceased or in default six months' S.I.
2. Brief facts of the case are that Amanat Ali, complainant on 2-7-2001 got recorded his statement Exh. P. G. stating therein that on 2-7-2001 he had gone to Faisalabad to attend his job and came back at 5-00 p.m., that his wife Sarwar Bibi told that Muhammad Afzal, his son, aged 8 years, had gone to Railway Station, towards the Dera of Rehmat Ali Sahi, for plucking Jambolana (Jaamin) and had not come back. At this the complainant along with his brother Muhammad Riaz and Liaqat Ali P.Ws. went to search Muhammad Afzal (deceased) and found his dead body in Square No.59, Killa No.5, a Charri field in prone position. The trouser of the deceased was partially off and there was bruise on the neck and blood was found oozed out from nostril and mouth. He suspected the death of his son by unknown person, in an attempt to commit an unnatural offence.
3. After registration of the formal F.I.R., the investigation of the case was taken over by Anwaar-ul-Haq S.-I. P.W.12, he went to the spot, inspected the dead body, prepared injury statement Exh. P. D. and inquest report Exh. P. E., secured blood-stained earth vide memo. Exh. P. H., thereafter, the investigation was entrusted to Yousaf Ali S.-I. P.W.13, who on 13-7-2001 arrested the accused/appellant and then after completion of investigation the accused/appellant was challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 13 witnesses in all, thereafter, APP tendered in evidence report of Chemical Examiner regarding blood-stained earth Exh.P.K. and that of Serologist Exh.P.K./1 and closed the prosecution, then, the statement of the accused under section 342, Cr.P.C. was recorded in which he pleaded innocence and claimed false implication.
5. Learned counsel for the appellant submits that prosecution failed to prove its case against the appellant, that there is no eye-witness in his case, that last seen evidence is to the extent that deceased, was not only seen in the company of the appellant but also with the other boys, that as far as extra-judicial confession is concerned, that's, a weak type of evidence and there is no independent corroboration. He has relied upon 1996 SCMR 188. He further submits that investigation was impartial one because version of the appellant was not brought on record, that no case is made out against the appellant and he is entitled to acquittal.
6. On the other hand, learned counsel for the State submits that prosecution case is doubtful one.
7. I have heard learned counsel for the parties. In the instant case, the deceased Muhammad Afzal was aged about eight years while the appellant was 15 years of age at the time of occurrence, there is no eye-witness in this case, there is no direct evidence against the appellant and the only evidence against the appellant is of extra-judicial confession and last seen. As far as, last seen evidence is concerned, that's, of Shahbaz Hussain P.W.8, he had stated that he had seen the appellant, deceased and other boys while plucking Jambolana (Jaamin). So far as, evidence of witnesses of extra-judicial confession, namely, Muhammad Nazir P.W.9 and Abdul Ghafoor P.W.10 is concerned, that's a weak type of evidence as has been held by this Court and also by the apex Court. If the same was made before them, the first thing, which should have done was that the appellant, should have been apprehended and handed over to the police but this was not done. Moreover, no incriminating article was also recovered from the appellant during the course of investigation; even the dead body of the deceased was also not recovered on the pointation of the appellant and even the learned State counsel has not supported the prosecution case whole heartedly and submitted that it is a case of doubtful nature and rightly so. In this view of the matter, while granting the benefit of doubt, I accept this appeal, set aside the conviction and sentenced recorded against the appellant by the learned trial Court. He is in jail and he shall be released forthwith if not required in any other case.
N.H.Q./M-475/L???????????????????????????????????????????????????????????????????????????????? Appeal accepted.