2007 PLP 1232 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This appeal is directed against the judgment dated 12-5-2004 passed by the learned Additional Sessions Judge, Gujrat, whereby, after having tried the appellant, he was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life with a further direction to pay an amount of Rs.50,000 as compensation to the legal heirs of the deceased in default whereof to further undergo R.I. for six months as provided under section 544-A, Cr.P.C. and benefit of section 382-B, Cr.P.C. was extended to him. However, benefit of doubt was extended to Mst. Zohra Bibi and she was acquitted from the case, but, neither the State nor the complainant assailed her acquittal.

2. After having completed legal formalities, challan was submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where, the prosecution, in order to prove its case against the accused, produced eleven prosecution witnesses during the trial.

3. Learned counsel for the appellant in support of this appeal submits that five real brothers along with their mother were falsely implicated in this case; that two were murdered while two are absconders; that co-accused Mst. Zohran (who is real mother of the present appellant) was acquitted by the learned trial Court; that no specific injury is attributed to him; that no recovery was effected from him; that the complainant party was of desperate character; that they were also involved in different criminal cases; that no independent prosecution witness has been produced although occurrence had taken place in a, busy bazaar; that there was enmity between the parties; that the prosecution has failed to prove its case against the appellant and that the appellant is entitled to acquittal by this Court.

4. On the other hand, learned counsel for the State submits that the appellant is named in the FIR., he along with his four real brothers came armed at the spot, made firing at the deceased, who received five fire-arm entry wounds and died at the spot, F.I.R. was lodged promptly, ocular account in this, case is corroborated by the medical evidence; that the prosecution has proved its case against the appellant beyond any shadow of doubt and that this appeal is liable to be dismissed.

5. I have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.

6. The occurrence in this case had taken place on 15-1-2001 at 4-00 p.m. at the shop of the deceased at a distance of two miles from the police station.

7. The allegation against the appellant was that he along with his four real brothers armed with fire-arms and in furtherance of their common intention came at the appellant's shop, raised a Lalkara upon which Imran Butt (later on murdered) fired a shot which hit on the neck of Mushtaq deceased, then Ghulam Abbas (later on murdered) fired a shot with his rifle on the right armpit of the deceased, then Zaman Butt, Arshad Butt and Asif Butt (appellant) made firing with their respective weapons which hit on the right side below armpit on ribs of the deceased, on the hue and cry raised Sajjad came at the spot and had seen the occurrence, Mushtaq succumbed to the injuries at the spot while mother of the appellant Zohran Bibi widow of Ghulam Rasool was shown as abettor in the F.I.R.

8. Motive behind the occurrence was that there was a case registered against Aslam, brother of the complainant for the murder of Ghulam Rasool father of the appellant. It is settled by now by the Superior Courts of the country including the apex Court that the motive is always a double edged weapon.

9. To prove its case, two eye-witnesses were produced during the trial by the prosecution. P.W.3 is Amjad Mehmood who is first cousin of the deceased while Muhammad Farooq is the real brother of the deceased.

10. Site-plan (Exh.P.W.) shows that the occurrence had taken place in a thickly populated bazaar having shops on both the sides. Enmity between both the parties had not been denied even by the prosecution witnesses. No independent eye-witness was produced by the prosecution. Although five accused were shown to be present at the spot who fired at the deceased with different fire-arms but appellant was stated to be armed with .30 bore pistol. No empty of pistol was recovered from the spot and only empties of .7 mm rifle were recovered. Even after arrest of the appellant no weapon of offence was recovered from him.

11. There is yet another important aspect which has bearing effect on the merits of the case i.e. the appellant, in his first version, pleaded innocence which has been 'admitted by P.W.10, namely, Musawar Ali Shah (Investigating Officer). The said witness has also stated before the learned trial Court that he had summoned the complainant party and Muhammad Aslam alias Acchu son of Muhammad Ashraf who was real brother of deceased Mushtaq. He further stated that Muhammad Aslam alias Acchhu stated before him that Asif accused was not present at the time of occurrence coupled with the further admission that he had not effected any recovery from the appellant Asif.

12. Bath the eye-witnesses are related to the deceased and are inimical to the appellant. There is no independent corroboration because no independent eye-witness has either been produced before the police or the learned trial Court.

13. Then there is statement of Dr. Zafar Iqbal (P.W.2). According to him there are five entry and five exit wounds. During the course of cross-examination, he admitted that Injuries Nos. 2-A, 3-A and 4-A are entry wounds of similar size, so, one can say that those were caused with one weapon.

14. To maintain a conviction on the capital charge especially when both the parties are inimical towards each other, independent corroboration is very necessary which is lacking in this case.

15. It would not be out of place to mention here that it has come on record that the complainant party was also involved in the murder of some other persons which factum has also been admitted by both the eye-witnesses.

16. After having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt to maintain conviction. Resultantly, this appeal is allowed, the impugned judgment is set aside, appellant is acquitted from the case and is directed to be released forthwith if not required to be detained in any other case. It is further observed that the observations made in this judgment shall not prejudice case of either side during the trial of the two absconders of this case after their arrest. H.B.T./M-554/L Appeal allowed.