2008 PLP 707 (SCMR)

KHALIL-UR-REHMAN RAMDAY, J.

Ali Sher, Gohar Ali and Saee Khan were tried by a learned Additional Sessions Judge at Depalpur for committing the murder of Irshad deceased on 23-3-1995 at about 3-30 p.m. on the service road going along Rajbah Gul Shah in the area of Police Station Baseerpur of District Okara. Through his judgment, dated 4-5-1998 the said learned trial Judge acquitted Saee Khan, accused Ali Sher and Gohar Ali were however, found guilty of the charge under section 302/34, P.P.C. and while Ali Sher was directed to suffer death for the said charge, Gohar Ali was ordered to suffer, imprisonment for life for the same.

2. Both these convicts then approached the Lahore High Court through Criminal. Appeal No.374 of 1998, impugned the above-noticed conviction and punishments, recorded against them. The said appeal was dismissed by the Honourable High Court through a judgment, dated 4-12-2002 and answering Murder Reference No.101 of 1998 the sentence of death awarded to Ali Sher convict was confirmed.

3. Ali Sher convict is not before us through Criminal Petition No. 19-L of 2003 challenging the said conviction and punishment whereas Gohar Ali convict has filed Jail Petition No.155 of 2003 for same purpose. Muhammad Akram complainant has also petitioned this Court through Criminal Petition No.115-L of 2003 praying for enhancement of the punishment awarded to Gohar Ali convict.

4. For the reason stated in the application for condonation of delay in the filing of Jail Petition No.155 of 2003 and in the interest of justice, the delay in the filing of the said jail petition is condoned.

5. The above-mentioned petitions are, therefore, being decided together through this single judgment.

6. The prosecution had alleged that Muhammad Akram complainant and his father Irshad deceased had gone to Chak Sher Muhammad on the day of occurrence to offer condolences for the death of Mst. Sharifan Bibi, who was the mother-in-law of Iftikhar Ahmed (P. W.3) who is a nephew of Irshad deceased. It had been further alleged that after doing the needful the said father and the son were returning home along with Iftikhar P.W. and Zulfiqar (given up) and while they were walking about Rajbah Gul Shah on the service road they were surprised by Ali Sher armed with a .7 m.m. rifle and Gohar Ali armed with a .12 bore gun who had emerged from inside the said Rajbah which was dry and had then fired shots at the deceased who consequently died on the spot. It had been claimed by the prosecution that sixteen years prior to the present occurrence, the father of Ali Sher convict was murdered; that Ali Sher and his paternal-uncle Saee Khan accused suspected that it was Irshad deceased of the present case who had got Ali Sher's father killed and that Ali Sher convict had informed Muhammad Din (P.W.4) that his uncle Saee Khan accused was not giving him his share in the ancestral property and was saying that Ali Sher convict would get his share in the said land only when he had avenged the murder of his father. It had been added that it was for this reason that Irshad deceased had been murdered by Ali Sher and Gohar Ali convicts at the instance of Saee Khan accused.

7. We have heard Ch. Muhammad Hussain Chhachhar, Advocate Supreme Court for Ali Sher convict and Mr. Zafar Iqbal Chaudhry, Advocate Supreme Court for Muhammad Akram complainant and we have also perused the entire record with the assistance of the said learned counsel.

8. It was the prosecution's own case that the parties were inimical towards each other since the murder of Falak Sher i.e. the father of Ali Sher convict. As per the statements of the eye-witnesses, the parties had strained relations with each other and were not even on speaking terms eversince the said murder. In this view of the matter, the two eye-witnesses who were closely related to Irshad deceased could not be said to be strictly independent witnesses of the occurrence. The murder in question had been committed not in a village or a town but on a service road running along a Rajbah (small canal/water channel) in the afternoon in the last days of the month of March. It was never claimed by the eye-witnesses that there were other people also going or coming along the said service road at the time of the occurrence and rightly so because not very many villagers come out in the afternoons especially when the days are warm. It had never been brought on record as to when Mst. Sharifan Bibi died and why the deceased despite being so closely related to her, had not participated in the funeral prayer and had gone only for condolence at a later time, It was also not the prosecution case that the day of occurrence was the day fixed for Qul ceremony or the day fixed for Fatiah Khawani which could have promoted the complainant and the deceased to visit the village of late Mst. Sharifan Bibi. Muhammad Akram complainant and Iftikhar P.W. were thus, besides not being independent witnesses, were also chance witnesses of the occurrence in question.

9. In this view of the matter, it would be highly unsafe to base a conviction on the testimony of these two eye-witnesses in the absence of any corroboration of their testimony from independent .and unimpeachable source.

10. Three crime-empties of .7 m.m. rifle and two crime-empties of .12 bore gun had been allegedly found at the place of occurrence which had been taken into possession by Jehangir Khan, S.-I./S.H.O. (P.W.14). Even if it be presumed that the said crime-empties were in fact available at the spot and had been rightly recovered by the Investigating Officer, it is a pity that the said crime-empties had been retained in the police station for more than three weeks and had been sent to Forensic Science Laboratory only on 14-4-1995 and that also along with a .7 m.m. rifle and a .12 bore gun which had been allegedly recovered at the instance of Ali Sher and Gohar Ali respectively. No explanation had been offered as to why the crime-empties had not been dispatched immediately to the Forensic Science Laboratory specially when one Muhammad Mushtaq F.C. (P.W.13) and gone to Lahore on 28-3-1995 carrying the blood-stained earth found in this case for transmitting the same to the Officer of the Chemical Examiner.

11. The crime-empties having been allegedly found at the place of occurrence and having been retained for so long the police station and having been sent to the F.S.L. along with the crime weapons and that also 12 days after the alleged weapons of offence had been allegedly recovered destroys and evidentiary value of the said piece of evidence. These recoveries, therefore, cannot offer any corroboration to the ocular testimony.

12. At the time of the occurrence Irshad deceased and. his companions were walking on the service road running along the above-mentioned Rajbah. The convicts emerged out of the Rajbah and had fired at the deceased from the Patrhi on the bank of the said Rajbah. According to the two eye-witnesses the said bank/Patrhi of the Rajbah was 2 or 2-1/2 feet higher than the service road. However, according to the two independent witnesses, namely, Muhammad Ashraf Patwari (P.W.7) and Muhammad Sarwar F.C. (P.W.12) it was six feet higher than the service road. It could, therefore, be safely presumed that the two assailants were standing at a place which was at least 4/5 feet higher than the place where the deceased was available at the time when the shots had been fired at him. In this view of the matter the direction of the shots entering and leaving the body of the deceased should have been from upward to downwards but according to the description of the injuries as given by Dr. Rehmat Ali Imran (P.W.9) this was not so and in fact in his opinion the direction of the some of these injuries was from downwards to upwards. Consequently, we find it difficult to hold that the medical evidence was in line with the ocular testimony or that the eye-witness account was being corroborated by the medical evidence.

13. It was admitted by Muhammad Akram complainant as also by Iftikhar P.W. that it was three cousins of Akram complainant i.e. the three nephews of Irshad deceased in the present case who had been nominated, challaned, tried and convicted by the Trial Court for the murder of Falak Sher i.e. father of Ali Sher convict. It was further admitted that having been acquitted by High Court, all the said three persons were living and were available in the area. It is, therefore, not understandable that when the actual killers of the father of Ali Sher convict were living and available then why should he had made Irshad deceased the target of his vengeance and why not all or anyone of the three killers nominated for the said murder.

14. It is also on the record that Irshad deceased was one of the accused persons of the murder of one Irshad and that the heirs of the said Irshad suspected that his murder had been committed at the instance of Irshad deceased of the present case. It was admitted by Akram complainant that one Sikandar had been murdered and Irshad deceased was one of the accused persons in the said case and further that the sons of the said Sikandar deceased were still living. It was also admitted by Akram complainant that Irshad deceased had enmity with Noor Muhammad and Muhammad Yar etc. of the area. It had been further suggested to the said complainant that a brother of Irshad deceased, namely, Allah Yar had divorced his wife and it was the opinion of the family of the said divorced wife of Allah Yar that it was Irshad deceased who was responsible for the divorce of their daughter.

15. As has been noticed above, the occurrence had taken place at about 3-30 p.m. on 23-3-1995. As per record the F.I.R. had been recorded at police station at 5-15 p.m. but it was claimed by the defence that the concurrence having gone un-witnessed, the police and the complainant had taken time to fabricate the prosecution story and that the F.I.R. had been recorded much later than the time mentioned in the F.I.R. and further that the two convicts had been falsely implicated merely on account of suspicion. It was Muhammad Sarwar F.C. (P. W.12), who had taken the dead body of Irshad deceased to the mortuary. He was not sure whether he had taken the dead body to the hospital on 23-3-1995 or the next day i.e. on 24-3-1995. He was, however, sure that the documents which had to be sent with the dead body i.e. the F.I.R. and the inquest report etc. had been handed over by him at the hospital on the next morning i.e. on 24-3-1995. This could well be an indication that the F.I.R. had not been recorded till late hours of 23-3-1995.

16. The prosecution story about Saee accused asking Ali Sher convict to avenge the murder of his father after 16 years of that occurrence and Ali Sher convict feeling compelled to oblige his said uncle was also a story which was not easily digestible.

17. The two eye-witnesses not being independent and natural witnesses of the occurrence; infirmities having been found in the prosecution case and doubts having crept into the prosecution version of the occurrence; the possibility of occurrence having gone un-witnessed and no independent corroboration being available in support of the ocular testimony, it cannot be said that the prosecution had succeeded in proving the guilt of the two convicts beyond all reasonable doubts.

18. Consequently, Criminal Petition No.19-L of 2003 and Jail Petition No.155 of 2003 are converted into appeals which are allowed. The conviction and punishments recorded against Ali Sher and Gohar Ali convicts are set aside and they are both acquitted of the charge levelled against them. They shall be set at liberty forthwith if not required to be detained in any other case.

19. In view of the acquittal of Gohar Ali convict, the connected Criminal Petition No.115-L of 2003 seeking enhancement of the punishment awarded to him has become infructuous and is disposed of accordingly. M.H./A-190/SC Appeal allowed.