2019 PLP 1978 (SCMR)

ASIF SAEED KHAN KHOSA, C.J.

Criminal Appeal No. 68 of 2019 Fayyaz Ahmed appellant and some others had allegedly fired at and killed one Amjad and had injured his wife namely Sumra Bibi in an incident taking place at about 07.00 p.m. on 07.01.2007 in a street in Mohallah Hanjranwala near Family Dental 'Clinic in the area of Police Station B-Division, Sheikhupura in the backdrop of a motive based upon a blood feud, between the parties. With these allegations the appellant and his co-accused were booked in case FIR No. 6 registered at the above mentioned Police Station during the same night and after a regular trial the appellant was convicted by the trial court for an offence under section 302(b), P.P.C. and was sentenced to imprisonment for life and to pay, compensation besides having been convicted and sentenced for an offence under section 148, P.P.C. The appellant challenged his convictions and sentences before the High Court through an appeal which was partly allowed to the extent of his conviction and sentence for the offence under section 148, P.P.C. which were set aside but the same was dismissed to the extent of his conviction and sentence recorded by the trial court for the offence under section 302(b), P.P.C.. Hence, the present appeal by leave of this Court granted on 01.02.2019.

2. 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.

3. The incident in issue had statedly taken place at about 07.00 p.m. in the first week of the month of January and the source of light statedly available at the spot had not been secured during the investigation. According to the prosecution the alleged occurrence had taken place at 07.00 p.m. during the fateful evening, and an FIR in that regard had been lodged by Safdar Mehmood complainant (PW2) at the Police Station at 07.30 P.M. when he had produced a written application in that respect before the local police. This circumstance is squarely contradicted by the medical evidence according to which Sumra Bibi (PW1), the injured eye-witness, had been produced before a doctor at the local hospital at 07.00 p.m. during the same evening and it was a Police Constable who had produced her at the hospital. This showed, and showed quite clearly, that the police had been contacted and was available with the injured victim at the hospital at 07.00 p.m. meaning thereby that the incident in issue had taken place prior to 07.00 p.m. and the local police was in contact with the complainant party much before 07.30 p.m. when the FIR had allegedly been lodged. This circumstance has put us to caution in the mater of appreciating the evidence produced by the prosecution.

4. After evaluating the evidence available on the record the High Court had concluded that the case in hand was a case of chance encounter and there was no common intention or sharing of common object between the culprits leading to individual liability of each and every accused person. It is not denied that Fayyaz Ahmed appellant had not caused any injury to Sumra Bibi (PW-1) and the only role attributed to him was that of causing a firearm injury to Amjad deceased on his lower back. It has already been observed by us above that the occurrence had taken place after darkness had set in in the month of January and no source of light at the spot had been secured during the investigation. According to the FIR as well as the statements of the eye-witnesses produced by the prosecution, i.e. Safdar Mahmood complainant (PW-2) and Sumra Bibi (PW-1) the appellant was the third person who had fired at the deceased's back. In the absence of any source of light at the spot it was inconceivable that the eye-witnesses could see and identify each and every injury caused by different accused persons and could see the locale of the third fire being received by the deceased at the hands of the culprits. In this backdrop attribution of a specific injury to the deceased having been caused by the appellant was a claim too tall to be accepted. Post mortem examination of the deadbody of Amjad deceased had been conducted after about 19 hours of the occurrence giving rise to an inference that time had been consumed by complainant party and the local police for deliberations and for spreading of the net wide so as to falsely implicate their adversaries. Two co-accused of the appellant have already been acquitted by the courts below. Two of the culprits who had opened the assault and had statedly caused specific injuries to the deceased on his back had made themselves scarce and were declared Proclaimed Offenders. The appellant was not directly connected with the motive set up by the prosecution and nothing had been recovered from his custody during the investigation. For whatever its evidentiary value, the investigating agency had declared the appellant innocent. In this peculiar backdrop it could not have been concluded by the courts below that the prosecution had succeeded in proving its case against the appellant beyond reasonable doubt.

5. For what has been discussed above this appeal is allowed, the conviction and sentence of Fayyaz Ahmed 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. Criminal Appeal No. 67 of 2018.

6. Respondent No. 1 namely Tanvir Hussain was convicted by the trial court for an offence under section 302(b), P.P.C. and was sentenced to death and to pay compensation besides having been convicted and sentenced for offences under sections 324 and 148, P.P.C. but on appeal he was acquitted of the charge under section, 302(b), P.P.C. as well as of the charge under section 148, P.P.C. and the High Court had reduced his sentence for the offence under section 324, P.P.C. to rigorous imprisonment for five years and to pay fine. Hence, the present appeal by leave of this Court granted on 01.02.2019.

7. After hearing the learned counsel for the parties and going through the record we have found that causing of a firearm injury by Respondent No. 1 to Amjad deceased on his back was an allegation which did not stand substantiated beyond reasonable doubt. The deceased had received many firearm injuries on his back at the hands of many culprits and in the darkness of the fateful evening it was not possible to specify any particular injury to the deceased on a particular part of his back and to attribute the same to Respondent No.

1. As regards the injury attributed to despondent No. 1 on the right leg of Sumra Bibi (PW1) the High Court had noticed that the said injury was not on a vital part of the victim's body and despite an opportunity being available in that regard Respondent No. 1 had not repeated his fire on the injured victim. We note that Respondent No. 1 has accepted his conviction and sentence for the offence under section 324, P.P.C. recorded by the High Court and by now he has already served out his sentence passed in that regard. The occurrence in this case had taken place way back in the year 2007, i.e. about 12 years ago and at this belated stage we have not felt persuaded to enhance his sentence for the offence under section 324, P.P.C. This appeal is, therefore, dismissed. The bail bond and sureties of Respondent No. 1, if any, shall stand discharged. MH/S-38/SC Order accordingly.