2017 PLP 177 (YLRN)

MUHAMMAD IQBAL KALHORO, J.

Appellants have been convicted by learned 5th Additional Sessions Judge Karachi Central in sessions case No.121/2005 to suffer imprisonment for life and pay fine of Rs. 50,000/- each for having committed the offense under sections 302(b), 34, P.P.C. Allegations against them are of committing murder of father of the complainant namely Hafiz Rehman. Precisely appellant Khalil Ahmed is alleged to have hatched such conspiracy and hired appellants Muhammad Saleem and Muhammad lntizar for this purpose. They executed it at the time when the deceased was sitting in the milk-shop of appellant Khalil Ahmed situated in Sohail Apartment, Block G North Nazimabad, Karachi, on 17.01.2005 at about 11.30 hours. Appellant Khalil Ahmed made the incident appear as if an attempt of robbery by unknown accused and in this regard he actually lodged an FIR bearing crime No.20/2005 under sections 392, 397 and 34, P.P.C. at P.S. North Nazimabad, which subsequently after registration of the instant case, bearing crime No.91/2005 for the offenses under sections 302, 201 and 34, P.P.C. registered at the same police station, was disposed of as false. Appellant Khalil Ahmed in the back drop of such allegations was also charged under section 201, P.P.C. and was accordingly convicted for 3 years vide impugned judgment dated 15.01.2011.

2. Complainant namely Zeeshan Faisal, an army officer, was posted at Saichen Glacier at the relevant time when he was communicated information of his father's death. He made it to the burial of his father at his native place in Peshawar on the next day where appellant Khalil Ahmed was also present who had come along with the dead body from Karachi. His narration of the incident raised suspicion in the mind of the complainant. He initially for a brief period came in Karachi for enquiring into the matter and came to know about the dispute between his father and appellant Khalil Ahmed over the plot. Then in order to pursue the case wholly, he got himself posted in Karachi where on 29.03.2005, he received an anonymous call informing him that his father's murder was committed by the appellants. He therefore got the FIR lodged on 30.3.2005 @ 0100 hours. Pursuant to which appellants Khalil Ahmed and Muhammad Saleem were arrested on the same date and in the investigation crime weapon i.e. pistol and wallet of deceased were recovered on the pointation of appellant Khalil Ahmed. Appellant Muhammad Intizar was arrested subsequently on 09.11.2005 and on the next day his judicial confession was recorded. During investigation, PW Baber Ali when heard about the arrest of appellants Khalil Ahmed and Muhammad Saleem approached the police and claimed to be eye-witness of the incident. His statement under section 164, Cr.P.C. was recorded on 14.04.2005 wherein he disclosed the entire incident supporting prosecution case. He has reiterated the same facts in his deposition later in the trial. For and against the above facts, learned counsel for the parties argued their respective case.

3. Essentially the prosecution case against the appellants is based on suspicion of the complainant, an anonymous call to him disclosing appellants to be offenders, recovery of crime weapon from appellant Khalil Ahmed and on his pointation recovery of wallet of the deceased, confession of appellant Muhammad Intizar and evidence of PW Babar Ali. In regard to suspicion of the complainant over version of the incident by appellant Khalil Ahmed, it may be said that he has not explained in his evidence as to what actually evoked such suspicion in his mind. Legally speaking, he was not required to establish his intuition of the incident in the trial, but as he has tried to justify it in his evidence by deposing that his father had informed him few days before the incident about his dispute with appellant Khalil Ahmed and consequently his issuing threats to him, I tend to examine it. His cross-examination indicates that he has admitted that neither in FIR nor in his statement before the police he had narrated such facts, and then in an attempt to justify non-mentioning thereof, he states that it was because his father had told him that he would resolve the dispute with Khalil Ahmed. Such explanation indeed further erodes veracity of such plea, because when he got the FIR registered or the statement recorded; his father was already dead for more than two months, and after his death nothing was to be resolved by his late father and appellant Khalil Ahmed that might be construed stopping him from disclosing such facts to the police at the time of recording FIR. Anonymous caller, who informed the complainant about the appellants, never surfaced. Even PW Baber Ali who claims to be the sole eye-witness of entire transaction right from planning to execution does not own that call. Therefore, claim of the complainant that he got suspicious of the circumstances leading to the incident is not free from doubt.

4. Recovery of alleged pistol from appellant Khalil Ahmed is also doubtful Prosecution case is that on 03.4.2005 on the pointation of appellant Khalil Ahmed, the same was recovered from inside a stitched pillow lying in the store of his flat. It was a crime weapon and unlicensed one too, its presence in the store, an easy approachable place for all the family members to use does not appeal to the mind, for in the normal course it should have been ridden immediately after the incident by applicant Khalil Ahmed. Its connection with crime is not established either. On this point, prosecution case is based on the FSL report that discloses that crime empties (recovered from the spot) were fired from this pistol. Report also shows that empties were received in the office concerned duly sealed, however, the memo of their recovery prepared in the robbery case lodged initially belies such version as it does not support sealing of the said empties at the spot. Mashir (PW. 3) Habib Khuwja Qureshi in his evidence does not disclose either that the said empties were sealed at the spot. Therefore, empties' reaching in the office concerned for examination in a sealed condition goes against the very prosecution story in this regard, and it certainly creates doubt that whether it was the same empties allegedly recovered from the spot which were sent for FSL report. And notably the FSL report has put dense cloud on the alleged recovery of pistol from appellant Khalil Ahmed. Memo of its recovery indicates that it was a pistol having an engraved inscription on as "CAL MM 30 MADE AS. ITALY BY MILLAT P.R", whereas the report indicates that the one examined by the Expert was a 30 bore pistol No.MAC-650. Obviously, therefore, the pistol examined by the expert was not the one allegedly recovered from appellant Khalil Ahmed and the prosecution has utterly failed to establish any connection of the alleged recovered pistol with the crime. On 10.04.2005, after almost 3 months of the incident, recovery of alleged wallet of the deceased at the pointation of appellant Khalil Ahmed from nearby 'Nala' with all the documents identifiable and safe is not worthy of credence. For 3 months presence of the wallet at the same place in the 'Nala' flowing with sewerage water in the normal course of things cannot be expected. It has come in the evidence of the complainant that the wallet was recovered with the help of a sweeper, but no such person was examined to lend an element of reliability to such recovery.

5. Another piece of evidence against the appellants is the judicial confession of appellant Muhammad Intizar on 10.11.2005. After his alleged arrest from Sohrab Goth on 9.11.2005, he was produced before the trial court through supplementary challan on 10.11.2005, as the final charge sheet had already been submitted, where he is alleged too volunteer to get his confession record, and thus was sent to the learned Magistrate for this purpose. The circumstances preceding his arrest do not point out to voluntariness of his confession in that it is the prosecutions own case that this appellant was circumventing his arrest and was captured only on 9.11.2005, after almost 10 months of the incident. A person who avoided his arrest for 10 months, and was never called by his conscience during that entire period, immediately just after one night of his arrest volunteered to make confession is beyond comprehension. This appellant not only has retracted the confession in the trial but has also disputed his arrest on 9.11.2005 and claims his arrest from Punjab many days ago, and to this effect has produced defense witnesses. No doubt a retracted confession can be relied upon, but principally it cannot be made a basis of conviction unless corroborated by some independent evidence. And the independent evidence, the prosecution has relied upon in this regard is of PW Baber Ali. According to him, he was servant of appellant Khalil Ahmed at his shop and then after some time at his request he was put into a new shop that his deposition suggests was half a kilometer away from the place of incident. He claims that conspiracy to kill the deceased was hatched before him; yet he remained silent and did not inform the deceased beforehand, (in my view, in fact it makes him an accomplice rather than a witness). His evidence also suggests that even after murder of deceased, which he deposes to have seen himself, he did not inform anyone and only on 12.04.2005 after almost 3 months of the incident, he appeared before the police and narrated the entire facts. He was first examined as PW-4 on 05.01.2009. His deposition shows that on the fateful day he was present in front of Yama State agency before place of incident and saw appellants Intizar and Saleem coming on motorcycle at appellant Khalil's shop, appellant Saleem remained sitting on the motorcycle, whereas appellant Intizar went inside the shop and then he heard noise of one fire, (prosecution case is that two fires were made) appellant Intizar came out of the shop and thereafter both of them fled away on the motorcycle. He has stated in cross-examination that Intzar was muffled face and appellant Saleem was wearing helmet at that time. He has, however not explained how he was able to identify them when their faces were not open. Record also reflects that after his evidence was recorded, he on an application of the prosecutor under section 540, Cr.P.C. was re-summoned and re-examined as PW.5, on 16.05.2009. This time he has given a detailed account of the incident that how before him conspiracy was hatched by appellant Khalil Ahmed whom he tried to stop but he threatened him to remain silent. That on the fateful day, he saw the appellant Intizar and Saleem on the roof of flat of appellant Khalil Ahmed and then leaving on the motorcycle, suspecting some wrong, he followed them up-to the place of the incident where they killed the deceased. In cross-examination he admits that he has not disclosed all these facts in his earlier deposition, and then has tried to explain it by stating that due to threats of the appellants he could not narrate such facts. It is worth noting that his first deposition was recorded on 05.01.2009 when the appellants were in jail and that position had not changed when his evidence for the second time was recorded on 16.05.2009. He has not explained that what happened in between 4 months that made him so brave to reveal every detail of the incident fearlessly. His contradictory stances taken in depositions regarding his reaching the place of incident on the fateful day has made his presence at the spot extremely doubtful. In his earlier deposition he reveals to have reached there from his home, and in his later deposition his claim is that he had seen appellants Intizar and Saleem on roof of the flat of appellant Khalil Ahmed and when they left on motorcycle he followed them on foot to the place of incident. He has not explained where he was present when he saw the appellants on roof of appellant Khalil's flat and why he was present there at the relevant time and how he could see appellants at the roof of the flat which must be situated in some building having some floors, and then how he was able to chase the appellant by foot although they were on motorcycle. His narration of the incident in his two depositions does not match with each other and no confidence-inspiring clarification in this regard has been rendered by him. In my view he is not a trust-worthy witness, and appears to be planted by the prosecution to support the incident as per narration of the complainant. It is also important to mention here that under section 540, C.P.C., no doubt a witness can be recalled and re-examined but it would not mean that the loopholes left and discrepancies made by the witness in his earlier deposition can be allowed to be rectified. And here this witness has given entirely different version of the incident in his second deposition.

6. It also does not appeal to the mind that appellant Khalil Ahmed would make conspiracy of murdering the deceased in presence of his servant to make him star witness, and then instead of liquidating his opponent at some other place would effectuate his murder in his own shop to invite every suspicion against himself. The foregoing discussion has led me to infer that prosecution case against the appellants is not free from doubt. Resultantly, the appeal in hand is allowed, the appellants shall be set free, if not required in any other custody case. The appeal stands disposed of in these terms. HBT/K-17/Sindh Appeal allowed.