2002 PLP 1927 (YLR)

12. I have heard the learned counsel the appellant as well as the State has also been perused by me.

13. The trial Court has based conviction on the ocular account of the occurrence given by the eye‑witnesses viz Tahir Zaman, FC (P.W.4) and Gulzar Ahmad 71/C‑I (P.W.6), and the testimony of witnesses of extra judicial confession viz Muhammad Ashraf (P.W.13) and Muhammad Nawaz (P.W.14).

14. A perusal of ocular account of the occurrence given by Tahir Zaman, F.C (P.W.4) and Gulzar Ahmad 71/C‑I (P.W.6) would show that it is not confidence inspiring. P.W.4. Tahir Zairian, FC, who is also complainant admitted during cross examination that it was dark night and there was no light at the place of occurrence. He said that he had a torch with him and had identified the accused person in the light of the torch and that during investigation the said torch vas also given by him to the Investigating Officer. This fact of having a torch and identification of the culprits in the light of torch and handing over the torch to the Investing Officer were not mentioned by this witness in his complaint Exh.P.C. He was contradicted on this point by other eye witness Gulzar Ahmad 71/C‑I (P.W.6), who said during cross‑examination that the night of occurrence was dark and they had no torch or lantern with them at the time of occurrence the accused persons were at a distance of 16/17 feet from them. Abdul Wahid Investigating Officer (P.W.7) said his cross‑examination that Tahir Zaman, FC did not produce any torch before him during investigation:

15. It was, therefore, not possible for the eye‑witnesses to have observed the features of the culprits due to darkness and the distance.

16. The other eye‑witness Gulzar Ahmad 71/C‑I (P.W.6) had identified Javed Shaheen (acquitted co‑accused) on 3‑12‑1997 as culprit of this case during investigation parade held in Central Jail, Sahiwal. During cross examination he denied of having taken the said accused to the judicial lock‑up on 22‑11‑1997 after investigation of case against him under section 13 of the Arms Ordinance and as such having seen him earlier than the identification parade. D.W.1, Nazir Ahmad, A.S.I. had produced in the Court Register of Rozenmancha copy whereof is Exh. DD which shows that vide Rept No. 11. dated, 22‑11‑1997 Javed Shaheen accused in case F.I.R. No.235 of 1997 under section 13 of the Arms Ordinance was sent to the Illaqa Magistrate through Gulzar Ahmad 71/C‑I (P.W.6) and according to Rept No. 13, dated 22‑11‑1997 the said Gulzar. Ahmad recorded his return to Police Station Kassowal after sending the said accused to judicial lock‑up consequent to his judicial remand granted by the Illaqa Magistrate. D.W.2, Shaukat Ali, Constable brought the Gate Register and tendered in evidence copy of report Exh. DE. Copy of Gate Register Central Jail Sahiwal showed that Gulzar Ahmad (P.W.6) had brought Javed Shaheen to the Central Jail, Sahiwal on 22‑11‑1997 and had left the jail at 15.37 hours on that day. P.W.6, Gulzar Ahmad had, therefore, suppressed the truth before the trial Court and could not, therefore, be deemed as a truthful witness.

17. Site plan of the place of occurrence Exh.P.A. prepared by P.W.1, Muhammad Tasleem, Patwari on the pointing of the P.Ws. was discarded and was alleged as incorrect by the Investigating Officer Abdul Wahid (P.W.7). During his cross examination he said that the place of occurrence shown in the site plan Exh.P.A. was not correct although the site plan also contained notes in red ink recorded by this P. W. which tally with notes of P. W.1, recorded in black ink. The Investigating Officer insisted that the rough site plan of the place of occurrence Exh.P.K. prepared by him was correct. According to site plan Exh.P.K., place of occurrence is inside the bed of the canal. According to P.W.7, Investigating Officer, water was flowing in the canal at the time of occurrence. This creates a doubt regarding the place or occurrence as both the said site plans were allegedly prepared on the pointing out of the place of occurrence by the eye‑witnesses.

18. Now I come to the evidence of extra judicial confession. It comprises of the statements of Muhammad Ashraf (P.W.13) and Muhammad Nawaz (P.W.14). According to them Nasir (appellant) and Imran accused (since dead) had confessed before Muhammad Ashraf (P.W.13), that they alongwith two others were going to Chak No.116/12‑L, with the intention of committing theft when on the way they were intercepted at the place of occurrence by Latif Shah, Constable who was already known to them. He commanded his companions to catch hold of them whereupon Imran accused had fired at him with his pistol. According to the said P.Ws., both the aforesaid accused had again come to Muhammad Ashraf (P. W.13) about 10/ 12 days thereafter and had told him that they were willing to pay Rs.1,00,000 to the legal heirs of the deceased and had requested Muhammad Ashraf (P.W.13) to get them pardon.

19. The said testimony of P.W.13 and P.W.14 was liable to be discarded outright for the reasons that: (i) during cross‑examination it was admitted by the said P.Ws. that on both the occasions when the accused had come to them, they had neither apprehended the accused nor produced them before the Lumbardar or the police nor they had disclosed about their arrival to anybody inspite of the fact that not only brother of the deceased was known to them for the last 25 years and they were on visiting terms with him, but the S.H.O. of Police Station Kassowal was also on visiting terms with them. It was, therefore, most unlikely that the aforesaid accused may have appeared and had made extra‑judicial confession before Muhammad Ashraf and Muhammad Nawaz because in that event they would have definitely been apprehended by the said P.Ws or the said P.Ws. would have at least informed about the arrival of the accused to the brother of the deceased and the S.H.O. of Police Station Kassowal who were known to them and were also on visiting term with them. (ii) Statements of P.Ws. 13 and 14 were recorded by P.W.10, Noor Muhammad Inspector/Investigating Officer on 15‑12‑1997 after the arrest of Javed Shaheen (acquitted co‑accused) and after his disclosure about his involvement and the involvement of the co‑accused in this case. Javed Shaheen accused was arrested on 21‑11‑1997 in connection with a case under section 13 of the Arms Ordinance during investigation whereof he had made the said disclosure and; (iii) even if the testimony of P.Ws. 13 and 14 is accepted on its face value it contradicts the prosecution version inasmuch as according to the same the said accused who made the extra judicial confession were known to the deceased. The deceased remained alive for about 10 days after being injured and his statement under section 161, Cr.P.C. was recorded by Investigating Officer P.W.7 on 1‑8‑1997. The Investigating Officer stated that according to the report of the doctor the injured was fit to make statement. In his statement, Latif Shah, Constable did not name any of the accused.

20. Finding of the trial Court that the appellant Nasir was identified by Tahir Zaman, FC (P.W.4) and Gulzar Ahmad, FC (P.W.6) during identification parades held under the supervision of two different Magistrates is also incorrect and against record inasmuch as Gulzar Ahmad (P.W.6) did not say in his entire statement that he had ever identified Nasir (appellant). He had only identified Javed Shaheen accused in one identification parade.

21. According to the testimony of the eye‑witnesses, both the accused Javed Shaheen and Nasir did not fire at the deceased and deceased was fired at by their companion Imran. According to the F.I.R. statements of the witnesses as well as testimony of the P.Ws. regarding extra‑judicial confession, it was an unplanned and sudden affair without any motive and had taken place at the spur of the moment. It was for the said reason that in the F.I.R. and in the report under section 173, Cr.P.C. offence punishable under section 34, P.P.C. was not mentioned. Anyhow, charge was framed by the learned trial Court under section 302 read with section 34, P.P.C.

22. A plain reading of the statements of the two eye‑witnesses viz Tahir Zaman (P.W.4) and Gulzar Ahmad (P.W.6) would show that when the culprits were passing near the deceased, deceased ordered them to stop and disclosed their identities whereupon one of them fired at him and they ran away. Any motive, pre‑meditation or common intention was, therefore, neither alleged in the F.I.R. nor it was set up during evidence by the prosecution. According to the evidence produced by the prosecution, deceased was injured by the fire shot of Imran accused (since dead). There‑was absolutely no evidence on record on the basis of which it could have been inferred that the appellant had shared common intention with Imran accused or that the fatal shot was fired by Imran in, furtherance of common intention with his co‑accused. It was for the said reason that during examination of the accused under section 342, Cr.P.C. they were not confronted with any such evidence reflecting that they had shared common intention with Imran accused. No question was put to the appellant during his statement under section

342. Cr.P.C. that he had shared common intention with Imran accused who had fired the fatal shot. Appellant was convicted by the trial Court only on the ground that he had shared common intention with the principal accused which fact was not at all proved on I record.

23. For the reasons stated above, conviction of the appellant was, therefore, not warranted on the basis of evidence which was available on record.

24. For what has been stated above, the appeal is accepted the impugned judgment is set aside and the appellant is acquitted. He be released from the jail forthwith if not required in any other case. N.H.Q./N‑227/L Appeal accepted