2011 PLP 95 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

This appeal, by leave of the Court, is directed against the judgment dated 13-7-2009 passed by the learned High Court vide which appellant's appeal against the judgment of the learned trial Court dated 23-4-2005 for the murder of Javed Iqbal was dismissed. Vide the latter judgment, the learned trial Court while acquitting two co-accused convicted the appellant under section 302(2), P.P.C. and sentenced him to life imprisonment as also to pay a sum of Rs.50,000 as compensation to the legal heirs of the deceased in terms of section 544-A, Cr.P.C.

2. Brief facts and the evidence led during trial are given in the leave granting order dated 11-12-2009 which is as follows: "Brief facts of the case are that petitioner was booked, along with co-accused, for offence under section 302/34, P.P.C. for committing the murder of Javed Iqbal (deceased), brother of the complainant. As per prosecution case, when they were passing through Abadi Deh on the tractor, some unknown persons, with the intention to commit dacoity, made straight fire shots and committed the murder of Javed Iqbal. After completion of formal investigation, the challan was submitted in the Court. The petitioner and his co-accused did not plead guilty and claimed trial: The prosecution, in order to prove accusation against the petitioner, produced 11 witnesses in all. The petitioner, along with co-accused, was also examined under section 342, Cr.P.C. wherein he denied all the incriminating material and took the plea that he has been roped in the case at the behest of his enemies of his village. He, however, refused to appear as his own witnesses in terms of section 340(2), Cr.P.C. and also did not produce any defence evidence. The trial Court, upon conclusion of the trial, while acquitting the co-accused of the petitioner, convicted the petitioner under section 302(b), P.P.C. and sentenced him to imprisonment for life as Ta'zir with direction to pay compensation of Rs.50,000 in terms of section 544-A, Cr.P.C. with the benefit of section 382-B, Cr.P.C. In appeal, the learned High Court, while dismissing the appeal of the petitioner and maintaining his conviction/sentence, observed that; prosecution to prove its case examined Ehsanullah P.W.4 and Munawar Hussain P.W.1; both the eye-witnesses were cross-examined by the defence at length but they remained consistent during cross-examination; the fire shots are attributed to the petitioner and both the eye-witnesses unanimously in so many words stated that he was Umar Hayat, who fired shots with his pistol; recovery of pistol has also been effected from the petitioner; ocular account is fully corroborated by the medical evidence and the recovery evidence; the trial Court has rightly convicted the petitioner. Prosecution case is based on evidence of wajtakar witnesses namely P.W.1 Munawar Hussain and P.W.4 Ehsanullah, whereas F.I.R. was lodged against unknown persons. No identification parade of convict-Umar Hayat was arranged through complainant Pervaiz Iqbal. Although prosecution has also introduced to P.W. Nazir Ahmed, who alleges that on 22-7-2008, co-accused Khawar made extra judicial confession about the commission of offence. As accused Kashif has been acquitted of the charge, therefore, this evidence is of no use to the prosecution. Thus for safe administration of justice, leave to appeal is granted to re-appraise the evidence produced by the prosecution to establish guilt against the accused/petitioner."

3. Learned counsel for the appellant in support of this appeal, submitted that it was a blind murder; that a bare reading of the F.I.R. would show that neither any assailant was named nor it was possible to identify any in the thick darkness at 12-15 midnight; that the so-called two eye-witnesses (P.W.I and P.W.4) could not reasonably explain their presence at the spot; that the recovery of pistol from the appellant was of no consequence in absence of any recovery of empty to connect the same with the commission of the offence and that the prosecution evidence having been disbelieved qua those who stand acquitted is not sufficient to sustain appellant's conviction.

4. Learned Deputy Prosecutor-General, on the other hand, though supported the impugned judgment but he could not deny on Court query that no identification parade was held; that even during investigation most of the Investigating Officers could not say with certainty about the involvement of the appellant in the commission of the offence and that even in the endorsement made on the inquest report indicates that the deceased had been done to death by unknown persons.

5. Having heard learned counsel for the appellant and learned Deputy Prosecutor-General, we are of the view that admittedly none was named as accused in the F.I.R. and if during investigation it had come to light that appellant was involved in the commission of the offence, a proper identification parade ought to have been held in absence of which the evidence of two eye-witnesses namely P.W. Munawar Hussain and P.W.4 Ehsan Ullah would not be free from doubt. Even otherwise, both these witnesses have not reasonably explained their presence at the spot. According to P.W.2 Munawar Hussain he along with one Manzoor Hussain were going towards Adda Birjian but could not reasonably explained as to what brought him there at such an odd hour of night. The contradictions between his testimony in Court and statement recorded under section 161, Cr.P.C. which were brought on record during cross-examination also reveal that he is not a witness of truth. He was specifically confronted as to whether he had mentioned that when he reached the place of occurrence, appellant Umar Hayat and co-accused Kashif were near the place of occurrence; that they had seen the accused in the light of the tractor; that Javed Iqbal deceased after receiving injuries fell down and succumbed to injuries that after the occurrence they proceeded to the house of the complainant and that they narrated the incident when police reached the spot. All the afore-mentioned assertions were not mentioned in his statement recorded under section 161, Cr.P.C. Similarly the other eye-witness P.W.4 Ehsan Ullah was confronted w h his earlier statement recorded under section 161, Cr.P.C. with regard to the manner of attack, the claim to have identified the accused in the light of the tractor; that co- accused Kashif was armed with a pistol and that the accused after committing the murder slipped away from the spot in a white car were not mentioned in their earlier statements. The inconsistencies and contradictions highlighted during the course of cross-examination of both these witnesses make their testimony not worthy of credit. Besides, we find that even during investigation the identification of the assailants/accused remained a subject of doubt. P.W.9 Nafees Ahmad who partly investigated the case in cross-examination admitted that about seven investigations were conducted and only in one investigation two accused could be challaned namely Khawar and Kahsif and that too because they could not take oath of their innocence. Needless to observe the recovery of pistol from the appellant would be of no consequence as no empty was recovered.

6. For what has been discussed above, we are of the view that the prosecution has failed to prove its case against the appellant to sustain conviction on a capital charge. Consequently this appeal is allowed, the impugned judgment of the High Court is set aside. The appellant Umar Hayat shall be released forthwith unless detained in any other case. N.H.Q./U-4/SC Appeal allowed.