2007 PLP 2909 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.974 of 2003 filed by Muhammad Yasin appellant and Criminal Appeal No.1007 of 2003 filed by Mohabbat Ali appellant, who were convicted and sentenced by learned Additional Sessions Judge, Chunian, vide his judgment dated 23-5-2003 as under:

Muhammad Yasin appellant under section 302(b), P.P.C. to undergo imprisomnent for life and to pay Rs.100,000 as compensation to the legal heirs of the deceased and in default two years' S.I. with the benefit of section 382-B, Cr.P.C. Mohabbat Ali appellant under - section 302(b), P.P.C. to undergo Imprisonment for life and to pay Rs.10,000 as compensation to the legal heirs of the deceased and in default three months' S.I. with the benefit of section 382-B, Cr. P. C. Criminal Revision No.550 of 2003 filed by Muhammad Akbar complainant for the enhancement of sentence shall also be disposed of through this single judgment.

2. Brief facts of the case as disclosed by Muhammad Akbar complainant, are that he is resident of Center Colony Changa Mangy and was reserve soldier and was working in a Poultry farm, he has six sons and three daughters out of them, Khalil Ahmad aged 20/22 years became partner in poultry farm with Ch. Riaz son of Muhammad Ali Khan. On the previous night i.e. 4-11-1999 complainant along with Nazir Ahmad son of Dil Muhammad and Shaukat Ali son Haji Muhammad Ishaq came to the poultry farm to see his son, as the chicks were to come at night, .they stayed at the poultry farm. At about 3-00 a.m. (night) complainant woke up and on hearing the voice of foot-steps, electric bulbs were lit inside and outside the poultry farm, he witnessed that accused Yaseen armed with Carbine, Muhabbat Ali armed with dagger came under the shed. Accused Mohabbat Ali extended threat that if any one made any interference, he will be done to death. Accused Yaseen gave carbine fire shot, which hit Khalil Ahmad deceased on temporal region on his head and he succumbed to the .injuries at the spot, thereafter, accused went towards Nauak Bungalow while brandishing their weapons. Motive behind the occurrence was that accused Yaseen suspected that one Ghulam Qadir had committed access to his sister and deceased Khalil Ahmad was supporting him and due to this grudge, both the accused in pursuance of their common intention committed Qatl-e-Amd of Khalil Ahmad deceased.

3. After registration of the' case, the investigation of the case was taken over by Munir Ahmad Chahal. Inspector P.W.11. He reached at the spot, examined: the dead body, prepared inquest report Exh.P.I. and injury statement, Esh.P.L/1, collected blood-stained earth vide memo.. Exh.P.A., collected four empty cartridges of .12 bore vide memo. Exh.P.B., recorded the statements of witnesses under section 161, Cr.P.C., prepared rough site plan Exh.P.G. On 19-11-1999. He arrested Mohabbat Ali and Yasin and on 3-12-1999 carbine P.3 was recovered from Yasin accused,. which was taken into possession vide recovery memo. Exh.P.H. After completion of remaining formal investigation, both the accused were challaned to face the trial.

4. At the trial, prosecution in .order to prove its case produced 11 witnesses in all, thereafter, learned D.D.A. tendered in evidence report of Chemical Examiner Exh.P.J. regarding blood-stained earth, report of Serologist regarding earth Exh.P.K., that of Forensic Science Laboratory regarding pistol .12 bore Exh.P.L. and closed the prosecution case, then, the statements of the appellants were recorded under section 342, Cr.P.C. in which they pleaded innocence. It may be noted here, than learned counsel for the complainant had appeared on 14-9-2006 and had been appearing on 21-9-2006 and 22-9-2006 although his presence is not marked on 21-9-2006 and 22-9-2006 and on 25-9-2006 again matter was taken up but as the Court time was over so the actual date was given to learned counsel for the complainant for today. Today case has been called repeatedly but learned counsel for the complainant is not present, however, as the learned State Counsel is present so I proceed to the matter.

5. After having read the entire prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. and other relevant material available on record, learned counsel for Muhammad Yasin appellant submits that complainant Muhammad Akbar/father of the deceased had admitted in his cross-examination that only servant of poultry farm, where the occurrence had taken place, namely, Muhammad Nawaz was not present at the spot. He further submits that empties recovered fram the spot never matched with the carbine recovered on .the pointation of the appellant, that in fact it was a blind murder, that complainant had taken his deceased son when he was in an injured condition in his lap; but his clothes were. not stained with human blood, that in fact complainant was not present at the spot, that both the eye-witnesses, namely, Muhammad Akbar father of the deceased and Shaukat Ali maternal-nephew of the complainant and cousin of the deceased are. closely related to .the deceased, that learned trial Court had not only disbelieved the motive but also the recovery on the pointation of Muhammad Yasin appellant. He lastly, submits that prosecution had failed to prove its case against the appellant beyond any shadow of doubt and he is entitled to acquittal.

6. Learned counsel for Mohabbat Ali appellant submits that no motive is attributed to the appellant, that no recovery was effecte6 from him, that no overt act was attributed to` him and he is entitled to acquittal.

7. On the other hand, learned State Counsel submits that it is a case of capital punishment, that eye-witnesses have supported the prosecution case, that ocular account is fully corroborated by medical evidence and that recovery of carbine from Yasin appellant has been effected. He supports the judgment of the learned trial Court:

8. I have heard learned counsel for the parties at a great length and have also gone, through the record with their able assistance. Occurrence in this case had taken place on 5-11-1999 at 3-00 a.m. .(night) so it was a case of dark hours of night, matter was reported to the police at Railway Crossing Changa Manga at 5-00 a.m. on the same day by Muhammad Akbar father of Khalil Ahmad deceased, although the distance between police station and place of occurrence is 4 Kms. According to the F.I.R. complainant along with Nazir Ahmad son of Dil Muhammad and Shaukat Ali son of Haji Muhammad Ishaq came to the poultry farm to see his son, as the chicks were to come at night, they stayed at the poultry farm. At about 3-00 a.m. (night) complainant woke up and on hearing the voice of foot-steps, electric bulbs were lit inside and outside the poultry farm, he witnessed that accused Yaseen armed with carbine, Muhabbat Ali armed with dagger came under the shed. Accused Mohabbat Ali extended threat that if anyone made airy interference, he will be done to death. Accused Yaseen gave carbine fire shot, which hit Khalil Ahmad. deceased on temporal region on his head and he succumbed to the injuries at the spot.

9. First of all, I would like to discuss motive part of the case, which was furnished by Muhammad Akbar complainant/father of Khalil Ahmad deceased (P.W.4) and Shaukat Ali maternal-nephew of the complainant and cousin of the deceased (P.W.5). The motive given by Muhammad Akbar complainant is as follows:-- "The motive behind the occurrence was that one Ghulam Qadir ravished the sister of Yasin accused???????? ' in the crop' while Khalil Ahmad deceased used to help him." While the motive furnished by Shaukat Ali (P.W.5) is as under:

"The motive behind the occurrence was that Qadir alias Pappu had illicit relations with the sister of Yasin accused. Khalil was a friend of Qadir Pappu. Yasin wanted Khalil, to produce Qadir Pappu before him but he could not. Thus, Yasin killed Khalil. " The bare perusal of the motive furnished by both the eye-witnesses shows that their statements are in conflict with each other as far as motive is concerned. Moreover, learned trial Court has come to the conclusion that prosecution failed to prove the motive and also recovery of ` carbine from Yasin appellant, same conclusion has been drawn by learned trial Court regarding the motive in the last line of paragraph No.10 of the impugned judgment, this Court also comes to the same conclusion, as far as motive is concerned.

10. Now I take up the recovery. As far as recovery is concerned, though the crime-empty was recovered from the spot, same was sent to Fire-arm Expert and when carbine was recovered from Yasin appellant, that was .also sent to Fire-arm Expert but there was no report of Fire-arm Expert on the record, so on this summoned Fire-arm Expert, who while appearing before this Court stated that carbine was received by him but empty was not received and the report was sent only about the carbine, on which I directed learned Additional Advocate-General to issue necessary instructions to S.H.O., concerned to produce the carbine before Fire-arm Expert, then the said carbine was provided to Fire-arm Expert, although the earlier report shows that carbine was received by the office of Fire-arm Expert and that was without trigger so no .comparison was made and ultimately, on the direction of this Court comparison was made and the said report is in negative, which is now Mark "A", so the recovery is also not supporting to the ocular account furnished by both the eye-witnesses. So far as, ocular account is concerned, Muhammad Akbar complainant (P.W.4) is father of Khalil deceased while Shaukat Ali (P.W.5) is maternal nephew of the complainant and cousin of the deceased, they were not resident of the place of occurrence, they had come at the spot by chance, the time of occurrence in this case is 3-00 a.m. (night) and the month was C November, so it was a winter season, even the F.I.R. was not recorded at police station, the servant of the deceased, who used to' present at the poultry farm, was also not present there. Both the eye-witnesses are related inter se and chance witnesses in this case. There is no independent corroboration from any source i.e. either from the motive or from the recovery. So as far as Mohabbat Ali appellant is concerned, although he was armed with dagger but no overt act was attributed to him and he did not cause any injury to the deceased, so his appeal is accepted and conviction acid sentence recorded against him by the learned trial Court is set aside. He is on bail and he is discharged from his bail bonds. As far as Muhammad Yasin appellant is concerned, as has- been observed earlier, there is no independent corroboration to the statements of very--close relatives of the deceased, so he is also granted benefit of doubt and his appeal is also accepted. The conviction and sentence recorded against him by the learned trial Court is set aside. He is in jail and he shall be released forthwith if not required to be detained in any other case. H.B.T./M-206/L????????????????????????????????????????????????????????????????????????????????? Appeal accepted.