2007 PLP 1242 (YLR)

IJAZ AHMAD CHAUDHRY, J.

Ghulam Rasool appellant was convicted for an offence under section 302(b), P.P.C. vide judgment dated 20-4-2000 passed by the learned Additional Sessions Judge, Gujranwala and was sentenced to death and to pay a sum of Rs.1,00,000 as compensation to the legal heirs of the deceased Zafar Iqbal under section 544-A, Cr.P.C. He was also convicted under section 452, P.P.C. and sentenced to seven years R.I. with a fine of Rs.5,000 or in default of payment thereof to undergo simple imprisonment for six months. The appellant has challenged his convictions and sentences before this Court through the present appeal which has been heard by us along with Murder Reference No.219 of 2000 seeking confirmation of sentence of death passed by the learned trial Court against the appellant. We propose to decide both these matters through the present consolidated judgment.

2. The brief story of the prosecution case narrated by Wajiha Nayyar (P.W.1) wife of Zafar Iqbal deceased before Muhammad Tahir S.-I. of Police Station Model Town, Gujranwala on 16-6-1996 at 11-35 p.m. was that she was married to Zafar Iqbal deceased in the year 1978 and out of the wedlock three sons and two daughters were born, who were studying in different classes. Her husband Zafar Iqbal used to work as a contractor in M.E.S., Gujranwala Cantt. On 16-6-1996 at about 9-30/9-45 p.m. Zafar Iqbal took his dinner in the big room of the house and afterwards he along with the complainant came out of the house to have a walk in the lawn of the house. The complainant's "Bhanja" Pervaiz Iqbal and son Sheharyar were already having walk in the lawn. Two persons armed with pistols entered into the house from the main gate who fired one after the other at Zafar Iqbal which hit him on his chest. Zafar Iqbal went inside the house in the big room in a staggering and injured condition and fell on the bed. The complainant raised alarm whereupon Muhammad Siddique an employee of the adjacent Climax Factory reached. Both the assailants had already fled away before the arrival of Muhammad Siddique. Zafar Iqbal was taken to the hospital by' her son Shaharyar, Pervaiz Iqbal (Bhanja) and Muhammad Siddique in a vehicle where he died of the injuries. The complainant suspected that the murder of her husband Zafar Iqbal deceased was committed by Ghulam Rasool appellant with the help of his unknown companion who could be identified by the complainant, her son and "Bhanja" if brought before them. Ghulam Rasool appellant remained a private servant in the house of the complainant who stole away her tractor and Zafar Iqbal deceased had got a case registered against him at Police Station Cantt., Gujranwala. The police recovered the said tractor from the appellant. The appellant had already attacked Zafar Iqbal deceased previously along with his companions with fire-arm. They were arrested in that case. It was due to the said grudge that Ghulam Rasool appellant had been repeatedly giving life threats and thus committed the murder of Zafar Iqbal due to the same enmity.

3. After the registration of the case Muhammad Tahir, S.-I. initially investigated the case but he died in the police encounter during the pendency of the present case and he could not appear as a witness due to his death. Later on Naveed Ahmad, S.-I. (P.W.8) who remained posted with him and was able to identify his hand writing and signatures was produced. He verified the handwriting and-signatures-of Muhammad Tahir deceased on the statement Exh.PA, recovery memo. of blood-stained earth Exh.PB, last worn clothes and phial Exh.PD, injury statement Exh.PH, inquest report Exh.PJ, rough site-plan Exh.PK and red notes on the scaled site plans Exh.PE and Exh.PE/1 the dead body was sent to the mortuary for post-mortem examination by Muhammad Tahir through Nasar Khan, Constable. On 20-1-1997 Munir Ahmad, S.-I. (P.W.9) arrested Ghulam Rasool appellant at Lohiyanwala Bypass who admitted before him that he had committed the murder of Zafar Iqbal deceased and led to the recovery of pistol P.6 from his house on the same day which "was taken into 'possession vide memo. Exh.PF however he could not produce its licence and a case under section 13 of Arms Ordinance XX of 1965 was also registered against him.

4. After the completion of the investigation report under section 173, Cr.P.C. was submitted in the Court, copies as required under section 265(C), Cr.P.C. were supplied to the appellant and charge was framed against him which was denied by him and he claimed to be tried.

5. The prosecution in order to prove the guilt of the appellant produced as many as 13 witnesses; the ocular account was furnished by Mst. Wajiha Nayar Complainant (P.W.1) and Pervaiz Iqbal (P.W.2) while the medical evidence was adduced by Dr. Ghulam Sarwar Cheema (P.W.12) who on 17-6-1996 at 3-00 p.m. had conducted the post-mortem examination on the dead body of Zafar Iqbal deceased and initially the investigation was conducted by Muhammad Tahir, S.I. who was killed in a police encounter during the investigation of the present case and later on investigation was entrusted to Munir, S.-I. who completed the investigation. The remaining witnesses are of formal nature and need not to discuss here.

6. After the close of the prosecution evidence the statement of the appellant was recorded under section 342, Cr.P.C. in which he denied the allegations and professed his innocence. On a question that "why this case against you and why the P.Ws. have deposed against you?" Ghulam Rasool appellant replied as under: "My father is dead and I am the only earning male member of my family. My mother is an old lady. The deceased had enmity with Zahid, his brother and others. On the day of occurrence, at the darkness of night Zahid etc. might had entered into the bed room of the deceased. When he was sleeping and fired at him and fled away. The occurrence was .unseen. The alleged eye-witnesses have concocted a false case involving me. The P.Ws. have involved me in this case only on the basis of suspicion as the real culprits were not known and not traced so being a poor man police and the P.Ws. have made me a scapegoat." However, he did not opt to make statement under section 340(2), Cr.P.C. and also denied to produce any defence evidence.

7. The learned trial Court after hearing arguments of both the parties had passed the impugned judgment of conviction and sentence against the appellant which is being assailed through this appeal.

8. Learned counsel for the appellant contends that the complainant Mst. Wajiha Nayar (P.W.1) and Pervaiz Iqbal (P.W.2) in their statements before the police had not named the appellant as an accused who had fired at the deceased Zafar Iqbal at the time of incident but at the trial both the eye-witnesses had improved their statements by claiming that the appellant along with his companion had trespassed into the house and both of them fired at Zafar Iqbal deceased. It is also contended that in the F.I.R. and in the statement under section 161, Cr.P.C. the complainant and Pervaiz Iqbal had only stated that two unknown persons had fired as a result of which Zafar Iqbal deceased had received the injuries and only suspicion was raised against the appellant for committing this occurrence, who was previously servant of the deceased. It is thus contended that had the appellant Ghulam Rasool participated in the incident, his name would have been mentioned by the witnesses in the F.I.R. and the statement recorded under section 161, Cr.P.C. It is lastly contended that .both the eye-witnesses having contradicted their previous statements have lost their veracity and the prosecution has miserably failed to prove the case against the appellant beyond any shadow of doubt.

9. Learned counsel for the State on the other hand opposes this appeal on the ground that the complainant (P.W.1) was wife of the deceased and established his presence at the spot, who had no motive to falsely implicate the appellant by letting off the real culprit.

10. We have heard the arguments of the learned counsel for the parties and also perused the record with their assistance.

11. The F.I.R. in the present case was got registered at 12-05 a.m. on the night of occurrence, which had taken place at 9-45 p.m. on 16-6-1996. In the F.I.R. Mst. Wajiha Nayar complainant (P.W.1) specifically stated that two persons from the outer gate armed with pistols had entered in the courtyard of the house and both fired repeatedly on her husband. Zafar Iqbal with their pistols hitting on the chest and her husband then went to the room in injured condition and fell on the bed. Similar statement was got recorded by Pervaiz Iqbal (P.W.2) before the police under section 161, Cr.P.C. Only suspicion was raised that the appellant might have committed this occurrence along with his companion. But at the trial they had improved their statements and claimed that' Ghulam Rasool appellant and one unknown person had entered the house and fired at the deceased and the occurrence was witnessed by them in the tube light. According to the P.Ws. Ghulam Rasool appellant had fired hitting on the chest of Zafar Iqbal deceased while unknown person had fired hitting on the left shoulder. Both the eye-witnesses on the point were duly confronted with their previous statements Exh.PA and Exh.DA. It is thus proved that both the eye-witnesses had improved their statements on material points. Moreover, the occurrence had taken place in the night, but they did not disclose the source of light in the statements before the police and also improved their statements by stating that the tube light was on. According to the complainant the appellant had been working as a maid servant in the house of the deceased who was previously known to them. We have noticed that had the witnesses seen the appellant Ghulam Rasool making fire at the deceased, the name of the appellant as one of the accused and attribution of firing could have been mentioned by both the witnesses in their statements before the police as well. Though the complainant had shown suspicion over the appellant that there was a dispute as the appellant had stolen the tractor due to which he had committed this occurrence yet at the trial the fire had been attributed to the appellant specifically which can be termed as a dishonest improvement and it is fatal to the prosecution story. Even otherwise no identification parade was held in the present case. The other eye-witnesses Pervaiz Iqbal (P.W.2) is the nephew of the deceased and he was serving as S.D.O. at Eminabad while his wife was residing at People Colony, Gujranwala who at the most was a chance witness and he was required to give sufficient explanation for his presence at the spot. Though P.W.2 claimed that he used to visit the house of the complainant twice in a week yet he was a chance witness and had not sufficiently explained his presence at the spot. In such circumstances we find that the ocular account in the present case is not trustworthy and cannot be relied upon, for maintaining conviction in a case entailing capital sentence. Even otherwise the post-mortem examination was conducted on the next day at 3-00 p.m. with the delay of fifteen hours after the occurrence in spite of that according to the complainant's version the deceased was immediately removed to the hospital after the incident, who died there. The conducting of delayed post-mortem despite the availability of the dead body in the hospital is sufficient to lead an inference that the time was consumed in concocting the story and the F.I.R. was not got lodged with promptitude in which also the appellant was named only on account of suspicion.

12. The recovery of pistol in the present case from the appellant is useless as no empty was recovered from the spot and report of the Forensic Science Laboratory is only that the said pistol allegedly recovered from the appellant was in a working condition. P.W. claimed that the empty was recovered from the spot while P.W.2 stated that no empty was recovered and only stated that blood stained cotton was taken into possession by the police. The I.O. had also not taken into possession any empty from the spot. In such circumstances the recovery of pistol from the appellant was useless and cannot provide any corroboration to the ocular account.

13. The medical evidence cannot pinpoint the assailants, who had fired at the deceased, which can only be used to support the ocular account regarding the nature of injuries and use of weapon. As such the medical evidence in the present case is of no help to the prosecution for bringing home guilt to the appellant.

14. In the above circumstances we find that the prosecution has not been able to prove the case against the appellant beyond any shadow of doubt and the conviction and sentence is not maintainable. Consequently Criminal Appeal No.88-J of 2000 filed by Ghulam Rasool convict/appellant is accepted, the impugned judgment dated 20-4-2000 passed by the learned trial Court is set aside and the appellant is acquitted of the charge by extending him the benefit of doubt who shall be set at liberty forthwith if not required in any other criminal case.

15. Murder Reference No.219 of 2000 is replied in the negative and the death sentence is NOT confirmed. H.B.T./G-60/L Appeal allowed.