2003 P Cr (PLP)

This judgment will dispose of Criminal Appeal No.1213 of 2000 directed against the judgment dated 21-7-2000 passed by the learned Additional Sessions Judge, Sheikhupura, whereby he convicted the appellant under section 302(b), P.P.C. and sentenced him to undergo life imprisonment with fine of Rs.10,000 or in default thereof one year's R.I. Benefit of section 382-B, Cr.P.C. was also granted to the appellant while co-accused of the appellant namely, Muhammad Afzal was acquitted.

2. Brief facts of the case as narrated by the complainant Muhammad Sharif in the F.I.R. are that on 30-11-1998 at 4 p.m. the appellant and his co-accused (acquitted) came to the house of complainant and asked his sister Mst. Amina to go with them to Jamke to compromise the matter with their father, upon which his sister went with them to Jamke. After some time the complainant suspected that some harm may not be given to her, so he alongwith Ahmad Ali brother, Shafique son of Muhammad Sharif proceeded to Jamke, and they saw at about 7 p.m. the appellant and Afzal were quarrelling with Mst. Amina saying that she will not be spared for not paying the expenses. Mst. Amina tried to come out of the house then Asghar appellant took out .12 bore double-barrel gun and fired at her hitting her abdomen who fell on the ground and died at the spot. The motive behind this occurrence was that Mst. Amina off and on used to give the expenses and when she refused then Asghar and Afzal on a pretext took her to Jamke and with common intention committed her murder.

3. After receiving information about the occurrence the local police completed all the necessary formalities and then Muhammad Yousaf, S.-I. alongwith his subordinates proceeded to the spot. He prepared the injury statement Exh.P.H., inquest report Exh.P.I. He also secured blood-stained earth vide memo. Exh.P.B. He also took into possession one empty of .12 bore vide memo. Exh.P.C. and last-worn clothes of the deceased were also received by him vide memo. Exh.P.D. He arrested the accused also. On 13-12-1998 Asghar Ali accused while in police custody got recovered .12 bore gun vide memo. Exh.P.E. Ultimately he completed the investigation and challaned the accused.

4. In order to prove its case the prosecution has produced as many as 9 witnesses including eye-witness, Doctor, Investigating Officer and other relevant witnesses. After tendering in evidence report of Chemical Examiner, Exh.P.L. report of Serologist Exh.P.M. and report of Forensic Science Laboratory, learned S.P.P. closed the prosecution case. Thereafter, statements of the accused were recorded under section 342, Cr.P.C. in which they pleaded their innocence.

5. Learned counsel for the appellant in support of this appeal submits that four witnesses were mentioned in the F.I.R. and out of them three namely Muhammad Sharif complainant, Ahmad Ali and Muhammad Shafique were produced by the prosecution before the trial Court. Muhammad Sharif is real brother of Mst. Amina Bibi deceased and complainant in this case. He has not supported the prosecution case. Learned counsel submits that even Ahmad Ali has not supported the prosecution case and they both were declared hostile. He adds that Muhammad Shafique P.W. is resident of Gujranwala while the occurrence had taken place in village Jamke, District Sheikhupura and his presence at the spot is very doubtful. Learned counsel submits that Muhammad Shafique P.W. is an inimical towards the accused because he had got illicit relations with Mst. Nusrat Bibi sister of the present appellant while the appellant used to reprimand him and in order to implicate the appellant and his co-accused Afzal (acquitted) with mala fide intention made a statement against the appellant before the learned trial Court. Learned counsel for the appellant submits that later on when both the brothers namely appellant and his acquitted co accused were in jail, Muhammad Sharif contracted marriage with Nusrat Bibi. sister of the present appellant. Adds that medical evidence in this case cannot be used in corroboration to the statement of Muhammad Shafique P.W., that there is no independent corroboration to the statement of Muhammad Shafique P.W. Learned counsel submits that it is Muhammad Shafique who is also witness of recovery of gun in the instant case and he cannot corroborate himself, that no independent witness has been produced before the learned trial Court to prove the recovery.

6. Learned trial Court has not believed the motive part Of the story of the F.I.R. Adds that for 10 days weapon of offence was kept in the police station and was not sent immediately, that the prosecution has failed to prove its case against the appellant beyond any reasonable doubt:

7. Learned State Counsel on the other hand submits that the appellant is the main accused in this case as he caused fatal injury on the person of the deceased and ocular account is corroborated by medical evidence and the positive report of Fire-arm Expert is there. He submits that Muhammad Shafique P.W.4 is an independent witness and he has supported the prosecution case.

8. I have heard the learned counsel for the parties, four eye witnesses were mentioned in the F.I.R., one has not been produced, three have been produced and out of them two namely Muhammad Sharif complainant and Ahmad Ali were declared hostile. Father and mother of Muhammad Shafique P. W. who has supported the prosecution case are A resident of District Gujranwala while the occurrence had taken place in Jamke, District Sheikhupura. Even the place of residence of Muhammad Shafique P. W . at Sheikhupura is at. a distance of 10 to 15 k. ms. from the place of occurrence. According to his statement Muhammad Sharif went to the police station and he brought the police at the spot where statement, of Muhammad Sharif and Muhammad Shafique was recorded but according to the record the F.I.R. was recorded at the police station. No.1 person from the locality has been produced by the prosecution to support the prosecution case. The version of the appellant before the learned trial Court in his statement recorded under section 342, Cr.P.C. while replying to question No.8 is as follows:- "I have been falsely involved in this case at the behest of Shafique P.W. who made false statement against me and the co accused on account of his ulterior motive as he had developed illicit relations with my sister Mst. Nusrat and I used to restrain him- from illicit liaison)." In the instant case the natural witnesses could have been Muhammad Sharif and Ahmad Ali and more so Muhammad Sharif who has not supported the prosecution case. According to the statement of Muhammad Shafique the dead body remained in the police station for the whole of the night while according to the Investigating Officer the dead body was removed to the mortuary on the same night. As far as recovery is concerned, occurrence had taken place on 30-1-1998, empties were recovered on the same. day. According to the Investigating Officer recovery of gun was effected from the appellant on 13-12-1998 while according to the Anwar F.C., he took the gun and empty cartridge together on 22-12-1998 but the report of Forensic Science Laboratory which is exhibited on the record as Exh.P.N. shows that both i.e. gun and empty cartridge were received on 31-12-1998. Even this recovery is not believable because both the gun and empty cartridge were sent together. No reliance can be placed on such type of recovery, even otherwise according to the prosecution case only one fire was shot allegedly by the appellant. Only one fire was made at the spot the empty could not have come out from the gun unless the other fire was shot. Motive has been disbelieved by the learned trial Court. Presence of Muhammad Shafique P.W. as mentioned above is also doubtful.

9. Considering all the circumstances as stated above, I am of the view that the prosecution has not been able to prove its case beyond any shadow of doubt so while granting benefit of doubt, I accept this appeal and set aside the conviction and sentence awarded to the appellant. The appellant is behind the bars, he shall be released forthwith if he is not required in any other case. H.B.T./A-707/L Appeal accepted.