2018 PLP 506 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Criminal Miscellaneous Application No. 887 of 2013 For the reasons mentioned in this miscellaneous application the same is allowed and the delay in filing of Criminal Appeal No. 393 of 2015 is condoned. Disposed of. Criminal Appeal No. 393 of 2015

2. G.M. Niaz appellant and two others had allegedly fired at and killed one Zahid Iqbal at about 10.00 a.m. on 14.11.2005 at a tea stall in village Lakho Kalam in the area of Police Station Saddar, Kasur in the backdrop of a motive according to which a quarrel had taken place between the parties about two months prior to the present occurrence. After a regular trial the co-accused of the appellant were acquitted by the trial court whereas the appellant was convicted for an offence under section 302(b), P.P.C. and was sentenced to death. The appellant challenged his conviction and sentence before the High Court through an appeal which was dismissed to the extent of his conviction for the offence under section 302(b), P.P.C. but the same was partly allowed to the extent of his sentence of death which was reduced by the High Court to imprisonment for life. The High Court had also passed an order regarding payment of compensation by the appellant to the heirs of the deceased. Hence, the present appeal by leave of this Court granted on 16.09.2015.

3. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise.

4. The occurrence in this case had taken place at a tea stall but admittedly the owner or the staff of the said tea stall had not been produced by the prosecution before the trial court. The ocular account of the incident in issue had been furnished before the trial court by Mahboob Ahmed complainant (PW6) and Qasim Ali (PW5) who were a brother and a paternal cousin of the deceased respectively. The said eye-witnesses were not only very closely related to the deceased but they were also chance witnesses who had utterly failed to bring anything on the record establishing their claimed presence with the deceased at the relevant time. Mahboob Ahmed complainant (PW6) had his residence far away from the spot and the same had not even been shown anywhere close to the place of occurrence in the site-plan. Qasim Ali (PW5) had his residence about ten kilometers away from the scene of the crime. He had maintained that he was present at the spot in order to see a movie but the said reason had not been established before the trial court through any independent evidence. The record of the case shows that Zahid Iqbal deceased was taken to the hospital in an injured condition by a police constable and not by the above mentioned closely related eye-witnesses and this fact completely belied the claim of the eyewitnesses regarding their presence with the deceased at the relevant time. The medical evidence had given a big lie to the ocular account furnished by the above mentioned eye-witnesses inasmuch as in the post-mortem examination of the deadbody three blunt weapon injuries had been found on the deadbody which had not been explained by the eye-witnesses, one firearm entry wound in the abdomen of the deceased had been explained by the said eye-witnesses only through an improvement and post-mortem examination of the deadbody had been conducted after two days of the deceased's death. An FIR in respect of the alleged occurrence had been lodged after about seven hours and forty minutes which by itself was a circumstance doubting the claimed availability of the above mentioned eye-witnesses with the deceased at the time of occurrence. Even the blood-stained clothes of the deceased had not been brought on the record of this case. The High Court had categorically found that the motive set up by the prosecution had not been proved by it and the alleged recovery of a firearm from the appellant's custody during the investigation was legally inconsequential because no crime-empty had been secured from the place of occurrence so as to connect the recovered weapon with the alleged murder. The prosecution had alleged that the appellant had become a Proclaimed Offender after the alleged occurrence but the High Court had clearly found that the alleged abscondance of the appellant had not been proved. Through his statement recorded under section 342, Cr.P.C. the appellant had maintained that he had done the deceased to death when he had made an abortive attempt at raping a sister of the appellant and in support of such plea the sister of the appellant had appeared before the trial court as DW

1. We note that no blood-stained earth had been secured in this case from the tea stall whereat the occurrence had statedly taken place which factor provided some credence to the version of the defence advanced by the appellant and his sister. Failure on the part of the prosecution to produce the blood-stained clothes of the deceased also hinted at a real possibility of the version of the defence being true.

5. For what has been discussed above we have found that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case. MWA/G-2/SC Appeal allowed.