2018 PLP 153 (SCMR)

MANZOOR AHMAD MALIK, J.

Having been convicted under section 302(b), P.P.C. by a learned Additional Sessions Judge, Daska, District Sialkot, vide judgment dated 17.12.2003, the convict-appellant was sentenced to imprisonment for life. He was also directed to pay compensation of Rs.50,000/- (rupees fifty thousand only) under section 544-A, Code of Criminal Procedure to the legal heirs of the deceased and in default of the payment of compensation amount, he had to undergo three months' RI. He was extended the benefit of section 382-B, Code of Criminal Procedure. The criminal appeal filed by the appellant was dismissed through impugned judgment by the learned Lahore High Court, which prompted him to file criminal petition for leave to appeal, wherein leave was granted by this Court on 30.11.2015 to consider the delay in the lodging of FIR and also whether the learned courts below have properly appreciated the evidence on record in consonance with the settled principles for dispensation of criminal justice.

2. Brief facts of the case as divulged from the written complaint of Tariq Mehmood (complainant), on the basis whereof formal FIR was registered are that on 03.10.2001 at 06.00 a.m., the complainant and his father were going to fetch milk. When they reached at the corner of shop of Shafique Ahmad, Nadeem alias Kala (appellant) and an unknown accused who had ambushed themselves emerged there while armed with pistols. The unknown accused held father of the complainant into a japha from the front whereas Nadeem alias Kala fired two successive shots through his pistol at father of the complainant which landed on the right buttock and back side of the right thigh of the complainant's father. On hue and cry of the father of the complainant Tahir Mehmood and Arif Mehmood, PWs who were passing through the street attracted to the scene of occurrence and rescued the complainant's father by beseeching the assailants. The assailants decamped while brandishing their firearms. Father of the complainant was shifted to Civil Hospital Daska from where he was referred to Lahore but he succumbed to injuries on 06.10.2001.

3. At the leave stage none appeared on behalf of the petitioner, however, leave to appeal was granted on 30.11.2015. On the next date of hearing i.e. 04.05.2017, Mr Agha Intizar Ali lmran ASC was appointed to represent the convict-appellant at State expense. Today none has appeared on behalf of the appellant. Since this case was registered in the year 2001, therefore, with the assistance of learned counsel for the complainant and learned Additional Prosecutor General Punjab we have perused the available record.

4. For the following reasons the prosecution case against the appellant is doubtful in nature:- (a) As per contents of the FIR, the occurrence took place on 03.10.2001 at 06.00 a.m. whereas it was reported to the Police on 06.10.2001. Distance between the place of occurrence and the Police Station was just one kilometer whereas Civil Hospital Daska was about 1-1/2 kilometers from the spot. Therefore, there is an inordinate delay of three days in setting the machinery of law in motion. It is case of the complainant in the FIR as well as before the learned trial court that he along with Tahir Mehmood (PW.9) and Arif Mehmood witnessed the occurrence. No plausible explanation has been given by the prosecution for this delay and this sole circumstance makes presence of the witnesses of ocular account at the place of occurrence doubtful in nature. There is an interesting aspect of the case. Maqsood Ahmad (deceased) in injured condition was medically examined by Dr Monum Javed (PW.2) on 03.10.2001 and as per examination in chief of the said doctor, the injured was brought by the Police vide report No.47 dated 03.10.2001 by Shakir Hussain 532/C, which suggests that the occurrence was in the notice of the Police on 03.10.2001 but even then case was not registered on 03.10.2001 or before 06.10.2001. A specific motive has also been set out in the FIR and in the circumstances chances for deliberations and consultations on the part of the complainant for false implication of the appellant cannot be ruled out. (b) Presence of both the witnesses of ocular account i.e. Tariq Mehmood complainant (PW.8) and Tahir Mehmood (PW.9) at the place of occurrence is also not free from doubts. During cross-examination the complainant stated that Maqsood Ahmad (deceased) in injured condition was shifted to Civil Hospital on a carry van but he could not disclose the registration number of the van or name of the driver of vehicle. He also deposed during his cross-examination that his clothes were also stained with blood but stated that he did not produce the blood stained clothes to the Police. On the other hand, Tahir Mehmood (PW.9) during his cross-examination stated that the deceased in injured condition was shifted to the hospital in a Qingqi rickshaw. Both the witnesses contradicted each other regarding arrival of the Police at the place of occurrence because the complainant stated that the Police reached at the spot on the same day before the funeral of the deceased whereas Tahir Mehmood (PW.9) stated during his cross-examination that Police reached at the spot on the day of Qul Sharif of the deceased. (c) The medical evidence is merely a supportive/corroborative piece of evidence but in this case the same is not in line with the ocular account because Dr. Monum Javed (PW.2) noted a firearm entry wound on the front of right thigh whereas it is case of the complainant in the FIR and both the witnesses of ocular account stated before the learned trial court that the other accused had caught hold of Maqsood Ahmad (deceased) from the front side. (d) Recovery of a pistol at the instance of the appellant was not believed by the learned trial court for valid reasons recorded in para 23 of its judgment. The learned appellate court observed in para 11 that non-recovery of weapon of offence will not affect the credibility of other evidence including eye-witnesses account, medical evidence etc. Even otherwise, the said recovery is inconsequential because report of Forensic Science Laboratory was not put to the appellant while examining him under section 342, Code of Criminal Procedure. (e) Motive behind the occurrence was rightly disbelieved by the learned trial court for valid reasons given in para 15 of its judgment whereas the learned appellate court observed that motive is a double edged weapon that cuts both ways and on our own independent reappraisal of the material available on record we have not been able to form a view different to the one taken by the learned trial Court qua motive behind the occurrence.

6. For what has been discussed above, this appeal is allowed. The impugned judgments of the learned Courts below are set aside. The appellant is acquitted of the charge. He is in the jail. He be released forthwith if not required to be detained in any other case. MWA/N-8/SC Appeal allowed.