2005 PLP 669 (MLD)

This appeal is directed against the judgment dated 23-7-2002 passed by the learned Additional Sessions Judge, Gojra, whereby, having tried the appellant in the case registered vide F.I.R. No.439 dated 9-11-1999 under sections 302/324/402/34, P.P.C., Police Station Saddar Gojra, he was convicted under section 302(b), P.P.C. and sentenced to life imprisonment and a compensation of Rs.1,00,000 was also directed to be paid to the legal heirs of the deceased in default whereof to further undergo six months S.I. He was also convicted under section 452, P.P.C. and sentenced to two years R.I. with a fine of Rs.10,000 in default whereof he was directed to undergo one month s S.I.

2. The prosecution story as given in the F.I.R. registered on the statement of the complainant, briefly stated is that he was resident of Chak No.425-JB and was an agriculturist; that on 9-11-1999 at 9-30 p.m. he along with Saeed Akhtar brother, Muhammad Amin, Ghulam Mustafa and Ijaz were present in the baithak and door of the baithak was opened while electric bulb was on when four persons came there, out of them, one was Irfan armed with .222 rifle wearing police uniform and three unknown persons armed with lethal weapons, out of them one was also wearing a police uniform and was armed with .222 rifle, entered the baithak; that Irfan raised a Lalkara to teach a lesson of murdering Pervaiz; that Irfan fired a .222 shot which hit on the left chest of Amin (deceased); that second unknown accused wearing police uniform, fired a shot which hit Muhammad Amin (injured-P.W. on his right wrist which was followed by a shot fired by Irfan which hit Saeed Akhtar on his left buttock whereafter the accused persons decamped from the spot while raising Lalkaras; that Amin succumbed to the injuries at the spot while Saeed Akhtar injured was shifted to the Civil Hospital who was then referred to Allied Hospital, Faisalabad. The motive, as alleged by the prosecution, was that a real Mamoon of Irfan accused was murdered in the police encounter and the accused party had a doubt that the complainant party had provided information to the police in that regard.

3. After having completed legal formalities and having completed investigation of the case, the police submitted challan against the appellant and others to face trial before the learned Court of competent jurisdiction, where, in order to prove its case, the prosecution examined thirteen witnesses including the doctor and the Investigating Officer.

4. The accused, when examined under section 342, Cr.P.C. denied the prosecution case and attributed their involvement to false implication.

5. Learned counsel for the appellant, while canvassing acquittal and advancing arguments in support of this appeal, contend that the appellant was not named in the F.I.R.; that, later on, he was falsely implicated in the case through supplementary statement recorded after four months of the occurrence which has no sanctity in the eye of law; that the involvement of the appellant in the present case is the result of political frictions; that in the F.I.R. no description of the appellant was given which could connect him with the alleged commission of the offence; that the Identification Parade was not held in accordance with law which is not admissible in evidence; that although nothing incriminating was recovered for him yet recovery .222 rifle has been planted on him at a much belated stage and that, in the afore-referred circumstances since the prosecution has failed to prove its case against the appellant, therefore, he is entitled to acquittal from this Court.

6. On the other hand, learned counsel for the State, while defending the impugned judgment of conviction, submits that all the three eye-witnesses including Saeed Akhtar injured P.W., had named the appellant in the case, that the appellant is attributed a fire-arm injury on the right arm of the deceased; that there was no background of enmity between the parties, therefore, no case for false implication or substitution arises on the part of the prosecution.

7. I have heard learned counsel for the parties, have gone through the evidence with their able assistance and have also given anxious consideration to the submissions made by the respective parties at the bar.

8. The occurrence in this case took place at 9-30 p.m. on 9-11-1999, the matter was reported to the police on the same day at 12-05 (a.m.) in the night. According to the F.I.R., four persons were mentioned amongst whom Irfan (Proclaimed Offender) was named while three were mentioned as unknown persons. Two out of the said accused persons, as alleged, were wearing police uniform including Irfan (P.O.) while two were in the civil clothes. The motive, as alleged by the prosecution, was that a real Mamoon of Irfan accused was murdered the police encounter and the accused party had a doubt that the Mehmood of the complainant party had provided information to the police in that regard. Appellant was also arrested in this case as a result of the recording of supplementary statement although he was not named in the F.I.R. More so when the Injured-P.W. Saeed made a statement on 16-11-1999 i.e. six days after the occurrence, but even then he did not name the appellant being a culprit. The appellant was involved in the case through a supplementary statement of Saeed P.W. and that of complainant after four months of the occurrence wherein appellant was named.

9. Having adjudged the case from every angle and having sifted the grain from the chaff, this Court is of the considered view that the case against the appellant is of doubtful in nature because the Identification Parade was not held in the Jail but was held in the police station which has no evidentiary value and is inadmissible in the evidence, the appellant was involved through supplementary statement which was recorded after four months of the occurrence and the recovery of .222 rifle from the appellant, at a much belated stage, is also of no avail to the prosecution. Resultantly, this appeal is allowed, the conviction and sentence recorded against the appellant through the impugned judgment is set aside, he is acquitted from the case and shall be released forthwith if not required to be detained in any other case. H.B.T./S-293/L Appeal allowed.