2007 PLP 2698 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.-- Naseer Ahmad, appellant, was tried by Sardar Ahmad Khan Maikan, Additional Sessions Judge, Gujranwala in case F.I.R. No.497, dated 1-11-1997, for the offences under sections 302/449/109, P.P.C. registered with Police Station. Sadar Wazirabad" District Gujranwala. Vide judgment dated 23-5-2002, the appellant was convicted under section 302(b), P.P.C. for the .murder of Muhammad Yousaf, deceased, and sentenced to death. He was also .directed to pay Rs.50,000 to the heirs of the deceased under section 344-A, Cr.P.C.

2. The F.I.R was lodged by Abdul Rashid, complainant. According to which the occurrence took place on 1-11-1997. Abdul Rasheed, complainant, stated in the F.I.R. that he had three brothers namely Abdul Hameed and Muhammad Yousaf. Abdul Hameed was residing at Lahore while Muhammad Yousaf, deceased, was Munshi at a Brick Kiln of Chaudhry Basharat and was residing in Naseer Colony, Wazirabad. Muhammad Yousaf, deceased had contracted three marriages but had no child. At the relevant time his third wife Ivlst. Shameem Akhtar was putting up with him at his residence. According to the complainant Muhammad Yousaf, deceased, wanted to sell his land and he had called his brothers at his house for this purpose. When the complainant and Matih Ullah .reached there at-11:00 a.m. they found Muhammad Yousaf, deceased, lying dead on the floor of his room. After a while Mst. Shameem, wife of deceased, also arrived there and told the complainant that she had been dropped at Moaza Dhoungal by Muhammad Yousaf, deceased, last evening. On this report of the complainant the case was registered on 1-11-1997, at 12:00 Noon. On the same day the .complainant submitted an application to the Investigating Officer stating therein that he had been told by Tariq Mehmood and Ijaz, P.Ws., that on the fateful night they saw Naseer Ahmad, appellant, carrying blood-stained Bhughda in his hand while coming out of the house of deceased. In the application it was further stated that he was also told by the said persons that Mst. Shamim Akhtar had illicit relations with Naseer Ahmad and both Mst. Shameem Akhtar 'and Naseer Ahmad were seem standing together and both the said informers heard their conversation. In that conversation allegedly Mst. Shameem Akhtar was saying to Naseer Ahmad, appellant, that if he would murder her husband Muhammad Yousaf, then she would marry him and take him abroad also. In consequence of this application Naseer Ahmad and Mst. Shamim Akhtar were arrested. After investigation they both were challaned.

3. Mst. Shamim Akhtar absconded after being admitted to bail. Hence she was declared P.O. in this case. Naseer Ahmad, appellant, was. charge-sheeted, to which he pleaded not guilty and claimed trial. The prosecution in order to prove its` case produced as many as ten witnesses and tendered in evidence certain documents. The learned- Trial Court summoned Ijaz Ahmad (a given up P.W.) and recorded his statement as C.W.

1. The learned Trial Court after appreciating the entire evidence on record came to the conclusion that the prosecution had established its case against the appellant and. convicted and sentenced him as detailed above. Hence this appeal.

4. The learned counsel for appellant in support, of this appeal has submitted that it was an unwitnessed occurrence and no conviction can be made on mere suspicion; that the complainant had no knowledge about occurrence and the alleged illicit relations of appellant with Mst. Shamim Akhtar, wife of deceased. It is further submitted: that the presence of Muhammad Ijaz (C.W.1) and Tariq Mehmood (P.W.7) at odd hours of the .night in front of the house of deceased at the time of occurrence and .the fact that 4/5 days before, the occurrence they both had also seen Mst. Shamim and Naseer Ahmad in front of the house of deceased and heard their ,conversation .are highly. improbable. The learned counsel contended that had the said witnesses heard the alleged conspiracy they would have informed the complainant or somebody else or the police. It is further submitted that Muhammad Asghar and Tariq Mehmood had no relationship with each other and it is per chance that they were present together on both the occasions that too in the odd hours of the night. According to the learned counsel for appellant on the basis of said evidence of suspicion the conviction of the appellant cannot be made for a capital offence. The learned counsel also submitted that the recovery of Bhugdha was allegedly made by the police on 4-12-1997, but on 3-12-1997, Investigating Officer made an application to the learned Illaqa Magistrate for physical remand of the appellant on the ground that weapon of offence had to be recovered and also that Shamim Akhtar, co-accused, was to be arrested, even the Magistrate had mentioned this fact while. passing order for .remand of the appellant, hence the recovery of Bhughda one day prior to remand is rightly doubtful. The learned counsel submitted that it is highly improbable that the appellant while -holding blood-stained Bhughda at night time would go towards G.T. Road where presence of people even in night time is usual.

5. On the other hand, the learned counsel for complainant submitted that the complainant had no previous enmity with the appellant, therefore the question of false implication does not arise. The .learned counsel further submitted that the appellant and Mst. Shamim Akhtar, wife of the deceased, were not involved by the complainant at the first instance, if he wanted false implication of the appellant and the wife of his brother he could have easily .made statement to this effect .while lodging the F.I.R. It is further submitted that blood-stained Bhugda had been recovered at the instance of appellant, which connects him with the commission of crime, so the prosecution has successfully proved its case against the appellant.

6. We have heard the learned counsel for parties and with their assistance we have gone through the statements of witnesses and documents brought on the record. The occurrence was not witnessed by anybody. Tariq Mehmood, P.W. 7, is one of the two prosecution witnesses who allegedly saw the appellant carrying blood-stained Bhugdha just after the murder of deceased. The other witness Ijaz Ahmad, who had been given up by the prosecution was summoned by the Trial Court as C.W.

1. He has not supported the testimony of Tariq Mehmood, P.W.

7. According to the prosecution both these witnesses were also witnesses of the conspiracy allegedly hatched by Mst. Shamim Akhtar and the appellant. Only Tariq Mehmood, P.W. 7, supported the prosecution in this respect also. The presence of both these persons at 3-00 a. m. in front of the house of deceased is highly improbable. It is also unnatural that a person after having committed the murder of another person would come in an open way while carrying blood-stained Bhughda. He could throw such a weapon in the house or in some dark place. It is .also not believable that the appellant would 'at that time go towards G.T. Road, where presence of .people is. expected even at late hours of night. The fact that the appellant was seen while conspiring .with . Mst. Shamim Bibi in front of the gate of the house. of deceased and Tariq Mehmood P. W. 7 heard the talk of Mst. Shamim Bibi that she would marry the appellant and took film abroad if the appellant would murder her husband is not plausible because it is I not expected .from a sane person that he would conspire about the murder in an open place 'and that too loudly so that a person passing nearby could hear her voice. It was also stated by Tariq Mehmood P.W., that there was an electric bulb in front of the house of deceased in the light of which he saw the blood-stained Bhughda, ,but in the inspection notes the police did not. find such bulb and it is not shown in the site plans prepared by the Investigating Officer and by the - Patwari Halqa. Now there remains the evidence of recovery of blood-stained Bhughda. The learned counsel for appellant has drawn our attention to an application submitted by the Investigating Officer to the Illaga Magistrate. seeking remand of the appellant on the grounds that he had to recover the blood-stained Bhughda and arrest Mst. Shamim Bibi. This application was made on 5-12-1997, which is also evident from the order of Illaqa Magistrate. While, the .prosecution has alleged that -the weapon of offence .was recovered allegedly on the pointation of the appellant on 4-12-1997, which is evident from Fard Maqboozgi Exh.P.F., copy whereof is on Paper Book at page

102. We do not want. to further dilate upon the evidence of recovery of blood-stained Bhughda, which is brushed aside only because of the said fact. This is a murder case. The accused can be awarded death sentence only when the prosecution succeeds in establishing its case beyond reasonable doubt. When the .evidence is susceptible to suspicion and it is neither convincing nor plausible the conviction of the appellant for a capital offence cannot be based on a .solitary statement of a witness. We are of the considered view that the prosecution has failed to bring on record cogent and convincing evidence against the appellant. The appeal is, therefore, allowed. The impugned judgment is set aside. The appellant is acquitted of the charge. He shall be released forthwith if not required in any other case. The Murder Reference is answered in negative. N.H.Q./N-55/L??????????????????????????????????????????????????????????????????????????????????? Appeal accepted.