2006 P Cr (PLP)

MUHAMMAD KHALID ALVI, J.

Appellant Shahzad Masih alias Chian along with his co-accused Raza Masih and Aamer Masih were tried by the learned Additional Sessions Judge, Gujranwala in case F.I.R. No.438, dated 28-10-1998 for offences under sections 302/34/109, P.P.C. at Police Station Gakhar Mandi, Gujranwala. After the conclusion of the trial, the learned trial Court vide judgment, dated 1-11-2000 convicted Shahzad Masih appellant under section 302(b), P.P.C. and sentenced him to death for the murder of Mehmood Masih deceased. He was also directed to pay Rs.1,00,000 as compensation under section 544-A, Cr. P. C. to be paid to the legal heirs of the deceased. In default he was to suffer six months' S.I. Co-accused Raza Masih and Aamer Masih were however, acquitted. The appellant has challenged his conviction through the instant appeal while a reference has been sent by the learned trial Court for confirmation of his death sentence.

2. Prosecution story, in brief, as narrated in the F.I.R. Exh.P.D. lodged by Mehboob Bhatti complainant P.W.3 is that on 27-10-1998 at about 9 p.m., his brother Mehmood Masih deceased was taken from his house by Shahzad Chian appellant and Aamer Masih co-accused who did not return during the night. On 28-10-1998 at about 5 a.m. complainant came to know that dead body of Mehmood Masih deceased was lying in the street of Jinnah Town, Gakhar Mandi. He went along with Sohan Masih and Barkat Masih and found the dead body of Mehmood Masih lying there. He also found fire-arm injuries on the body of the deceased. The complainant further stated in the F.I.R. that Shahzad Chian appellant and Aamer Masih co-accused committed the murder of his brother. Later on supplementary statement of the complainant was also got recorded according to which, Raza Masih co-accused provided his licensed pistol .30 bore to Shahzad Masih alias Chian appellant who committed murder of Mehmood Masih. During investigation Aamer Masih co-accused was found innocent by the police who was placed in Column No.2 whereas appellant and Raza Masih co-accused were found guilty.

3. Prosecution in order to establish its case produced 11 witnesses. It is an unseen occurrence, therefore, the prosecution has relied upon circumstantial evidence out of which following is the only incriminating evidence against the appellant. (i) Last seen. (ii) Recovery of crime pistol (iii) Recovery of two empties. There is no motive attributed in the instant case. Medical evidence in the instant case is of no consequence. Last seen account has been furnished by P.W.2 Maqsood Masih and P.W.3 Mahboob Masih complainant, both brothers of the deceased. Crime weapon (pistol P.8) was recovered on 4-12-1998 vide memo. Exh.P.M. Two crime-empties (P.6/1-2) were recovered on 28-10-1998 vide memo. Exh.P.B.

4. Appellant Shahzad Masih was arrested on 4-12-1998. The case was investigated by P.W.11, Muhammad Riaz, A.S.-I. Ch. Zubair Mumtaz, S.-I. S.H.O. (not examined) and P.W.8 Muhammad Azam, A.S.-I. After completion of the investigation, report under section 173, Cr.P.C. was placed before the learned trial Court.

5. The appellant in his statement under section 342, Cr.P.C. took the plea of complete denial and pleaded false implication. He did not appear as his own witness under section 340(2), Cr.P.C.

6. It is argued by the learned counsel for the appellant that only incriminating evidence against the appellant is that of the recovery of crime weapon and two empties from the place of occurrence. According to him the same were sent to Forensic Science Laboratory with a considerable delay after the arrest of the appellant, therefore, recovery has lost its significance. It is further argued that the evidence of last seen and that too, furnished by two brothers of the deceased without there being any motive is only a week type of evidence and without any strong corroborative evidence cannot form basis for conviction.

7. On the other hand, learned counsel for the State has opposed the contention of the learned counsel for the appellant.

8. We have considered the arguments of the learned counsel for the parties.

9. Crime empties (P.6/1-2) were recovered by the police immediately on the day of registration of the case and were kept with them for a considerable time and were sent to Forensic Science Laboratory on 31-12-1998 after the arrest of the accused on 4-12-1998. Likewise pistol P.8 was allegedly recovered from the appellant on 4-12-1998 i.e. on the date of his arrest and sent to the Forensic Science Laboratory on 13-4-1999 as is evident from the report of the Forensic Science Laboratory Exh.P.P. Although the report indicates that the crime-empties were fired from the same pistol which was recovered from the appellant but considerable delay in their dispatch to the Laboratory and that too, after the arrest of the appellant casts serious doubt on the prosecution story.

10. There is yet another aspect i.e. P.W.4 Doctor Muhammad Safdar Sheikh, apart from other articles of deceased has also handed over a sealed bottle to Muhammad Arshad Constable P.W.5, who also acknowledges that such a sealed bottle was handed over to him which was produced by him before the Investigating Officer, who took it into possession vide recovery memo. Exh.P.C. P.W.1 Barkat Masih who is witness of the recovery memo. Exh.P.C. stated that the said sealed bottle/parcel was containing (sic). P.W.8 Muhammad Azam, A.S.-I. the Investigating Officer also states that such a sealed bottle/phial P.7 was recovered by him through memo. Exh.P.C. From the above resume of evidence, it is established that a bullet was recovered by the Medical Officer from the body of the deceased Mehmood Masih and taken into possession by the Investigating Officer. This bullet was never sent to the Forensic Science Laboratory so as to seek opinion as to whether said bullet was fired with the crime weapon and also matched with the crime-empties recovered from the spot. Absence of such material evidence speaks volumes about the bona fide of the prosecution case.

11. The prosecution is now left with only the last seen evidence of two P.Ws. who are real brothers of the deceased and have also not alleged any motive against the appellant. Last seen evidence by itself is not a substantive piece of evidence, it can either lend support to some substantial evidence or can be relied with the aid of some other corroborative evidence which is missing in the instant case.

12. For what has been stated above, this appeal is allowed, appellant Shahzad Masih is acquitted from the charges. He shall be released forthwith from jail, if not required in any other case. Murder reference is answered in negative. H.B.T./S-116/L Appeal allowed.