2006 PLP 313 (MLD)

IJAZ AHMAD CHAUDHRY, J.

This judgment will dispose of Murder Reference No.680 of 2003 sent by the learned trial Court for confirmation of death sentence of Nazir Ahmad, Criminal Appeal No.1701 of 2002 filed by Nazir Ahmad appellant and Criminal Appeal No.1855 of 2002 filed by Shafique Ahmad appellant as all these matters have arisen out of the same judgment dated 26-10-2000 passed by the learned Additional Sessions Judge, Sheikhupura whereby Nazir Ahmad appellant was convicted under section 302(b), P.P.C. and sentenced to death while Muhammad Shafique appellant for the same offence was sentenced to life imprisonment. Both of them were also directed to pay Rs.30,000 each as compensation under section 544-A, Cr.P.C. to the legal heirs of Safdar Hussain deceased or in default of payment thereof to undergo S.-I. for six months each. However, Robert co-accused died before the commencement of trial.

2. The occurrence in the present case had taken place on 19-5-1996 at 10-00 a.m. within the area of Salaar Bhattian situate at a distance of three miles from Police Station Khanqah Dogran while the matter was reported to the police by Muhammad Jamil (P.W.6) father of Safdar Hussain deceased through Ferd statement (Exh.P.A.) recorded by the Inspector/S.H.O. Muhammad Zafarfullah (P.W.9) at 6-10 p.m. near Lorry Adda on the basis of which formal F.I.R. No.146 of 1996 (Exh.P.A A) was reduced into writing at Police Station Khanqah Dogran at 6-20 p.m. by Abdul Majeed, MHC (P.W.1).

3. The prosecution story narrated in the F.I.R. is that Muhammad Jamil complainant (P.W.6) was a cloth merchant and his son Safdar Hussain deceased was his associate in the said business. On 19-5-1996 at 6-00 a.m. the deceased had gone to Mauza Kot Din Muhammad for recovery of amounts from the customers. After doing the job he was going while riding a bicycle on the bank of the canal towards Salaar Bhattian and when reached opposite to the lands of Khalid Abdullah Warraich, he was intercepted by Nazir Ahmad appellant armed with carbine .12 bore, Shafique appellant armed with carbine and Robert Masih co-accused (since dead). They asked him to give them everything. On resistance, Nazir Ahmad appellant made a fire with carbine hitting Safdar Hussain and second fire made by Shafique appellant hit Robert co-accused on the arm, who had held Safdar Hussain deceased in clasp. According to the complainant the occurrence was witnessed by Ashiq Hussain (not produced) and Nizam Din (P.W.8) while present on the opposite bank of the canal who were also returning from Mian Ali Dogran. The accused had committed this occurrence for robbing Safdar Hussain deceased.

4. After registration of the case Muhammad Zafarullah Inspector (P.W.9) had visited the place of occurrence, prepared the site-plan (Exh.P.R.), collected blood-stained earth vide memo. Exh.P.L., took into possession two empty cartridges P3/1-2 vide memo. Exh.P.K. attested by the witnesses. The dead body of the deceased Safdar Hussain deceased was found on 21-5-1996 while lying in the canal and identified by Nizam Din (P.W.8) along with Ashiq Hussain, which was taken into possession vide memo. Exh. P. M. Then he prepared the inquest report Exh.P.C. and injuries statement Exh.P.D. The dead body was sent to the mortuary for post-mortem examination through Tasawar Hussain constable (P.W.4). Both the appellants along with Robert co-accused were arrested on 1-6-1996. On 4-6-1996 Nazir accused led to the recovery of Carbine P.8 which was taken into possession vide recovery memo. Exh.P.Q. while Shafique appellant led to the recovery of bicycle P.7 and the same was taken into possession vide memo. Exh.P.O. On the same day Robert co-accused also led to the recovery of currency notes P.4, handkerchief P.6 and Identity Card P.5, which were taken into possession vide memo. Exh.P.N. After completion of the formalities and finalization of the investigation report under section 173, Cr.P.C. was submitted in the Court. Robert co-accused died before the commencement of the trial and both the appellants were charge-sheeted by the learned trial Court to which they pleaded not guilty and claimed to be tried.

5. The prosecution examined as many as nine witnesses to prove the guilt of the appellants. The ocular account was furnished by Muhammad Jamil P.W.6 and Nizam Din P.W.B while medical evidence was led by Dr. Muhammad Aslam Hameed (P.W.2) who conducted post-mortem examination of Safdar Hussain deceased and Dr. Mian Khalid Javed (P. W.3) who medically examined Robert co-accused after his arrest and the case was investigated by Muhammad Zafarullah Inspector (P.W.9). The other witnesses are more or less of formal nature.

6. When examined under section 342, Cr.P.C. both the appellants denied the allegations and professed innocence. According to them they were falsely involved in this case at the instance of the complainant/their enemy with the connivance of local police. However, they did not produce any defence evidence except of copy of birth certificate of Shafique appellant nor opted to make statements under section 340(2), Cr.P.C. After conclusion of the trial and hearing the learned counsel for the parties, both the appellants were convicted and sentenced as aforesaid. Hence these matters.

7. Learned counsel for the appellants have contended that the appellants were falsely involved in the present case due to enmity and suspicion; that both the witnesses were interested witnesses being closely related inter se and with the deceased, who had made improvements on material points during the course of trial; that evidence of the complainant P.W.6 was based on hearsay but while appearing in the witness-box he wrongly claimed him to be an eye-witness as well in contradiction with the story narrated in the F.I.R. hence they are not worthy of reliance; that the dead body was recovered after three days of the alleged occurrence, but in the F.I.R. there was no mention that the dead body was drowned in the canal by the appellants, which fact was introduced at the trial; that P.W.8 who allegedly witnessed the occurrence was not resident of the place of occurrence and was a chance witness, who failed to establish his presence at the spot and his evidence alone without any corroboration from any independent piece of evidence was not sufficient to connect the appellants with the commission of the crime. According to the learned counsel the alleged recovery of weapons of offence from the appellants is inconsequential as there is no report that these matched with the empties recovered from the spot.

8. On the other hand learned State Counsel have opposed these appeals while contending that both P.Ws.6 and 8 had no previous enmity to falsely implicate the appellants in the present case whose statement is trustworthy and the medical evidence is in line with the ocular account.

9. We have heard the learned counsel for the parties and perused the entire record minutely. The occurrence in the present case was alleged to have taken place at the bank of the canal within the area of' Mauza Salaar Bhattian, which was neither place of residence of P.Ws.6 and 8 nor it was their routine pass way. P.W.6 was father of Safdar Hussain deceased while P.W.8 was brother of the wife of the deceased and as such they were closely related inter se and with the deceased. No doubt mere close relationship of the witnesses is not sufficient to declare them as interested witnesses but at the same time non-existence of any previous enmity of the witness with the accused cannot be considered sufficient to term their evidence as a gospel truth. In Ata Muhammad and another v. The State (1995 SCMR 599) the Hon'ble Supreme Court has categorized the ocular account. The relevant portion is reproduced as under: "The ocular evidence may be classified into three categories

Firstly, wholly reliable; secondly, wholly unreliable; and thirdly, partly reliable and partly unreliable. In first category conviction may safely be sustained on uncorroborated testimony. In the second category, even strongest corroborative evidence may not rehabilitate such evidence. In the third category, conviction cannot be recorded unless such evidence is corroborated by oral or circumstantial evidence coming from distinct source." ??????????? According to the contents of the F.I.R. got lodged by P.W.6, he was not an eye-witness of the occurrence and was informed about the occurrence by Nizam Din (P.W.8) and Ashiq Hussain (not produced), but while appearing in the witness-box he, claimed him to be an eye-witness as well alleging that at the time of occurrence he was accompanying the deceased who was assaulted by the appellants and Robert co-accused. It is strange that if P.W. was with the deceased, but no injury was caused to him by the assailants nor he made any effort to save the life of the deceased or restrained the assailants from drowning the deceased in the canal. His house was situated at a distance of four miles from Mian Ali (place of occurrence). P.W.8 was also resident of about 4/5 kilometers away from the place of occurrence and at the most was a chance witness, who was obliged to establish his presence at the spot to have witnessed the alleged occurrence beyond any shadow of doubt, but he had not given any specific purpose for his presence there during the examination?-in-chief. According to him he had left his place of' residence at 6-00 a.m. but failed to explain that how after four hours he was present at the place of occurrence and where he had spent the intervening period. Moreover, according to him during the days of occurrence he used to work at the shop from 8-00 a.m. to Maghrab prayer. After perusal of evidence of both P.Ws. 6 and 8 we are satisfied that they have failed to establish their presence at the spot at the time of the alleged occurrence. They C have made statements in contradiction with each other and self-contradictory as well. No seat of injury was given in the F.I.R. but at the trial the P.Ws. claimed that the fire of Nazir appellant had hit Safdar deceased near the left ear.

10. The most astonishing aspect which has created doubt in the prosecution story, is that both P.Ws. 6 and 8 claimed to have witnessed the occurrence and Safdar Hussain, who was their close relative was alleged to be thrown in the canal after sustaining injury, but in spite of' their close relationship the P.Ws. did not make any effort to bring him out for saving his life and the dead body was recovered on the third day of the occurrence. Had the P.Ws. been present at the time of occurrence, they would have made immediate arrangements for saving the life of the deceased. The conduct of the P.Ws. at the time of the occurrence was unnatural, which is sufficient to disbelieve their presence at the spot. According to P.W.6 he remained present at the place of occurrence while weeping till 7-00 p.m. when he was brought to home by the Mohalladars whereas P.W.8 claimed that after leaving him at the place of occurrence he had gone to the police station. The F.I.R. was shown to be lodged at 6-20 p.m. while P.W.8 stated that the police had visited the place of occurrence after Assar prayer. It is sufficient to infer that the E F.I.R. was not got lodged by the prosecution promptly, but the same was recorded after preliminary investigation and due deliberation. Mere recording of F.I.R. on the same day of the occurrence and receiving of fire-arm injury by the deceased during the post-mortem examination cannot be held sufficient to corroborate the ocular account, which itself is highly doubtful and unreliable.

11. The Hon'ble Supreme Court has declared the maxim for corroboration in Ata Muhammad's case (supra), which is reproduced as under:-- "We know by our experience that time of recording of F.I.R. is not always genuine. The police, after learning about the commission of the crime keeps the space in the daily diary (Roznamcha) and a page in the F.I.R. Register blank for incorporating therein the gist of the information, the factum of registration of the case and the detailed report subsequently, in the light of preliminary investigation made by it. Furthermore, in this case the F.I.R. was lodged by Bati eye-witness himself. So, his previous statement recorded in the F.I.R. does not come from any distinct source. It is well-settled that a witness cannot corroborate himself by repeating the version before different person on different occasions. The evidence at the trial cannot be corroborated or reinforced by proving that the witness had F made a similar statement to a third party on a previous occasion. Mere repetition of a story will not give it any force or prove its truth." The alleged recovery of weapons of offence from the appellants is of no avail to the prosecution as there is nothing on the record to suggest that these matched with the empties shown to have been recovered from the place of occurrence. Similarly the recovery of bicycle P-7 at the instance of Shafiq appellant is not sufficient to provide any independent corroboration as the same was of common pattern and none was produced to identify the same as that of the deceased. Moreover, the said recovery was effected in violation of section 103 Cr.P.C. as no independent person from the locality was associated and P.W.8 who allegedly witnessed the said recovery was a close relative of the deceased.

12. For the foregoing reasons, we are satisfied that the prosecution has not been able to bring home guilt to the appellants beyond any shadow of doubt through any reliable distinct source. Hence, Criminal Appeal No.1701 of 2000 and Criminal Appeal No.1855 of 2000 are accepted, the impugned judgment of conviction and sentence is set aside and both the appellants, namely, Nazir Ahmad and Shafique Ahmad are acquitted of the charge by extending them the benefit of doubt. Shafiquc Masih appellant is on bail as operation of his sentence was suspended during the pendency of this appeal and he shall be discharged of the liability of surety bonds while Nazir Ahmed appellant is in custody, who shall be released from jail forthwith, if is not required in any other criminal case.

13. In view of above, Murder Reference No.680 of 2003, is replied in the negative. N.H.Q./N-105/L????????????????????????????????????????????????????????????????????????????????? Appeals accepted.