2007 PLP 3153 (YLR)

CH. IFTIKHAR HUSSAIN, J.

Appellant Gulzar Ahmad @ Gulloo and his co-accused Nisar Ahmad Yaqoob @ Qoobi were tried under sections 148 and 302 read with section 149 P.P.C. in case F.I.R. No.51 registered with Police Station Saddar, District Hafizabad on 18-2-1995 for on the preceding aught, in prosecution of the object of unlawful assembly formed by them and others, in village Saroop Wala committing the Qatl-e-Amd of deceased Mohsin Raza.

2. On the conclusion of their trial appellant Gulzar Ahmad @ Gulloo was found guilty of the Qatl-e-Amd of the deceased and not his aforesaid co-accused.

3. He vide the judgment rendered on 24-10-2000 by Mr. Ghulam Mustafa Shehzad, learned Additional Sessions Judge, Hafizabad was convicted under section 302(b) P.P.C. as Ta'zir and sentenced to death subject to confirmation by this Court and to pay Rs.50,000 as compensation to the legal heirs of the deceased and in default thereof to suffer six months simple imprisonment. His aforesaid co-accused, however, ware acquitted of the charge by giving them the benefit of doubt.

4. He feeling himself dissatisfied with the impugned judgment of his conviction and sentence has assailed the same by way of the instant appeal (No.1670 of 2000).

5. The learned trial Court has submitted the- Murder Reference mentioned above (No.702 of 2000) for confirmation of his sentence of death.

6. As both these matters have arisen out of one and the same case, hence are being disposed of by this single judgment.

7. Briefly the facts relevant for the disposal of these matters are that complainant Mukhtar Hussain (P.W.10) in his statement (Exh.PF) has mentioned that on 17-2-1995 at about 8-00 P.M. he along with his brother Mohsin Rana, Dost Muhammad and Muhammad Akbar were sitting in their Dera and were talking. In the meanwhile, Munawar Hussain @ Mahngoo along with two unknown persons armed with guns came there. They took Mohsin Raza with them and went towards the hospital, Saroopwala. Mohsin Raza, did not return to the house. On 18-2-1995 at about 9/10-00 A.M. Haji Muhammad Zam resident of the village carne to their, dera and informed him that the dead body of Mohsin Raza, was lying in pool of blood in the field of Shaftal belonging to Rangy Ahmad Ali at a distance of two- -acres from the hospital. He on that information reached that place and saw the dead body of Mohsin Raza there. Munawar Hussain @ Mahngoo and two unknown persons have murdered him. The motive behind the occurrence is that Munwar @Mahngoo is a criminal. He twice or thrice had got conducted the raids on him for his arrest. Munawar Hussain @Mahngoo had grudge over the same. He along with his companions had murdered the deceased in the' night.

8. The appellant and his acquitted co-accused after due investigation were challaned to the Court. The learned trial. .Court formally charged them under the above mentioned offences. They pleaded not guilty.

9. The prosecution at their trial examined it's 19 witnesses in all. They were: "Cap Dr. Muhammad Asif (P.W.1), Ghulam Mustafa (P.W.2); Zulfiqar Ali (P.W.3), Muhammad Abbas (P.W.4), Amanat Ali (P.W.S), Muhammad Arif(P.W.6), Mehdi Shah (P.W.7), Ata Muhammad (P.W.8), Zulfiqar Ali (P.W.9), Mukhtar Hussain (P.W.10), Dost Muhammad (P.W.11), Muhammad Azam ASI (P.W.12), Munawar Hussain Inspector (P.W.13), Muhammad Siddique-S-I (P.W.14), Muhammad Khalid (P.W.15), Muhammad Asif-ASI (PW.16), Ijaz Ahmad (PW.17), Muhammad Tariq Warraich-Inspector (P.W.18) and Mukhtar Ahmad-D.S.P (P.W.19)."

10. The report of the Serologist Exh.PM and that of the Chemical Examiner Exh.PN and of the Forensic Science Laboratory Exh.PP and Exh.PQ were tendered in the prosecution evidence.

11. The appellant in his examination under section 342, Cr.P.C. denied the allegation appearing against .him in the prosecution evidence. He pleaded innocence. He, however, neither produced .evidence in his defence nor deposed on oath in disproof of the allegation appearing against him in the prosecution evidence.

12. The learned trial court after hearing the parties came to the conclusion that the charge of Qatl-e-Amd of the deceased stood proved against him. It so, has convicted and sentenced him as mentioned above.

13. After hearing the learned counsel for the parties we have found that the prosecution in support of it's case against the appellant has relied upon it's different pieces of the evidence on the record. These mainly were the last-seen, Wajh Takkar, medical evidence, motive and the recovery of gun P-5 from him.

14. The last-seen evidence has been furnished by complainant Mukhtar Hussain (P.W.10), and Dost. Muhammad (P.W.11). Their version is that on 17-2-1995, at about 8-00 P.M. they along with the deceased and Muhammad Akbar P.W (given up) were present at their Dera. In the meanwhile, the appellant along with Munawar Hussain @ Mahngoo and an unknown person, while armed with .12 bore guns, came there and they took Mohsin Raza deceased with them towards the hospital. Mohsin Raza did not return. to the house and the next day at about 9/10-00 A:M. one Haji Muhammad Azam informed them that the dead body of Mohsin Raza was lying in the Shaftal field of Ahmad Khan resident of that village.

15. Complainant Mukhtar Hussain is the real brother of the deceased. He more than once in his evidence has stated the appellant to be .his enemy. He, therefore, could be said to be an interested witness. Dost Muhammad P.W. is his servant. He, therefore, could be under his influence. It, thus could be expected of him to have deposed on his line due to the same. Their evidence, therefore, is required to be scrutinized cautiously.

16. According to them, they at night tune in the month of February were present in their dera in the company of deceased and Akbar P.W. and the appellant along with Mwiawar Hussain @ Maluigoo (suice dead) and another person, while armed with guns came there and they took away the deceased with them. The complainant, as said above, is the real brother of the deceased. The appellant as per his own showing was his enemy as he had got conducted raids upon him for his arrest. According to him, the appellant .had borne severe grudge against him on that count. It, thus was very strange on his part that he allowed his deceased brother to accompany his enemy acid that ,too at night tone when they, according to his own showing, were armed with guns. His such conduct, if it was so, really seems very strange because in ordinary course of things, he could not allow his brother to accompany his enemy and that too at night time and particularly when .they apparently had no business to come to them and to take away his deceased brother with them. The story narrated by both of them, thus is suspicious. It is, is not readily believable.

17. It was admittedly an un-witnessed occurrence. Haji Muhammad Azam, who according to him had informed them of the presence of the dead body in the field of aforesaid Rana Ahmad Ali had not been produced in the evidence. It, thus was quite probable that they in such circumstances, when the occurrence was un-witnessed and the complainant had emnity with the appellant, he has involved him on the basis of just suspicion and they both had deposed against him falsely due to that reason. The evidence of last-seen evidence, therefore, was not a reliable piece of the evidence without .any independent corroboration.

18. The evidence regarding the Wajh Takkar has not been believed by the Teamed trial court. It is, therefore, hardly required to be discussed here. The prosecution, thus could not use such piece of evidence in corroboration to it's above discussed evidence/version.

19. Dr. Cap. Muhammad Arif, as per his showing, has conducted the autopsy on the dead body of the deceased on 18-2-1995 at 4-30. P.M. He had found thirteen injuries on the same. According to him, Injury No.1 was fatal and the swine was the cause of death of the deceased and all the injuries were ante-mortem and were with firearm. The death was instantaneous and the tune between the death and the post-mortem was within 24 hours. His evidence into doubt has proved that the death of the deceased had occurred due to injury No.1 and the swine was on the front middle part of the chest and the dine that elapsed between the death and the post-mortem un also in proximity to the time of the incident wind the happening of the death of the deceased as is in the evidence of the above mentioned two witnesses but the swine does not lead to clue of the culprits or any other thing. It, thus 'did not provide much support to the above discussed evidence of the prosecution on the record.

20. The motive behind the occurrence has been furnished by complainant Mukhtar Hussain, (P.W.10). According to him, accused Munawar Hussani a Mahngoo was a criminal and man of bad character and he had got conducted raids upon him and so he had grudge against him and his brother and he in connivance with his companions has committed the murder of his brother. He has' narrated such motive in F.I.R. Exh.PF. He did not say anything else in this behalf in the swine. The fact but remanis that the deceased had not got conducted any raid upon said Munawar Hussain a Mahngoo. He even did not do any such thing with the appellant. The appellant then why had joined Munawar Hussain @ Mahngoo in his killnig is not understandable. Thus motive, thus is not convincing.

21. It is also interesting to the note that the complainant in his evidence has narrated another motive. The sprite is that the appellant and one Nasir had grudge against the deceased as he had got registered the case of abduction of their maidservant Shahnaz Bibi, against them. He but in the cross-examination has admitted that Shahinaz Bibi, abductee in that case has stated that she was not- abducted by anyone. The appellant whets has not abducted the said lady, then he had no occasion to nourish grudge against the deceased. This also shows that the appellant had no motive to kill the deceased. This story, even otherwise, was an afterthought as it was never disclosed by the complainant in F.I.R. Exh.PF. The swine, therefore, was not convincing. It, therefore, could not be used as corroborative piece of the evidence to the said version of the prosecution.

22. As regards the recovery of gun P-5 from the appellant, the same is of no consequence as according to Mukhtar Ahmad-D.S.P. (P.W:19), on 18-2-1995, H seven empties P4-1/7 were secured from the spot and the appellant was arrested on 19-3-1995. It, thus was snore than a month after the recovery of these empties. According to Tariq Warraich-Inspector (P.W.18), the appellant on 2-4-1995 had got recovered .12 bore gun P-5 from his Dera underneath the chaff. This recovery was after about 14 days of his arrest. According to Muhammad Azam, A.S.-I (P.W.12), he handed over the sealed parcel of double barrel gun P-5 to Muhammad Khalid-C, (P.W.15) on 2-5-1995 for it's onward transmission to the office of Chemical Examiner. According to Muhammad Khalid-C, he delivered that parcel to the office of Superintendent of Police, Technical Services, Lahore on the same day i.e. 2-5-2005.

23. According, to Amanat Ali-C, (P.W.S), he deposited the sealed parcel of the' empties in the office of the S.P. Technical Services, Lahore on 9-4-1995. The parcel of the empties, therefore, was kept in the police station for .about one month and twenty days. The gun P-5 as mentioned above was recovered on 2-4-1995. The empties, thus were sent to the expert after the recovery of the gun. The above delay in the dispatch of the empties to .the expert has not been explained in the evidence. Anyway, the sending of the empties to the expert after the recovery of the gun is some thing suspicious. So, despite the positive report Exh:PO of the Forensic science Laboratory regarding the empties, the recovery could not be believed. It, therefore, could not be used as a corroborative piece of the evidence to the prosecution version.

24. We, therefore, from the above discussion are constrained to hold that the prosecution could not prove it's case/charge against the appellant beyond any shadow of reasonable doubt. He, therefore, was entitled to acquittal.

25. We, thus accepting his appeal, set aside the impugned judgment to the extent of his conviction and sentence and acquit him of the charge giving him the benefit of doubt. He is in custody. He be set at liberty forthwith, if not required in any case.

26. The Murder Reference is answered in the negative. The sentence of death is not confirmed. N.H.Q.G-177/L Appeal accepted.