2012 PLP 419 (SCMR)

IJAZ AHMED CHAUDHRY, J.

Muhammad Ashraf appellant had faced trial along with Muhammad Yousaf in a case F.I.R. No.207 dated 3-7-2007 registered at 9-00 p.m. with Police Station Jalalpur Bhattian District Hafizabad under section 302/34, P.P.C. on the application of Sher Muhammad (P.W.5) father of deceased Jaffar Ali for the incident which had taken place on the same day at evening time in village Narowal five miles from Police Station Jalalpur Bhattian. Subsequently section 109, P.P.C. was also added.

2. Brief facts as stated by the complainant are that his son Jaffar Ali was running a grocery shop in the village Narowal. Muhammad Ashraf appellant purchased some articles from the shop on credit basis and also had borrowed some money. 3/4 days prior to the occurrence Jaffar Ali demanded the amount on which altercation took place between them and they abused each other. The people patched up the matter. Appellant Muhammad Ashraf nourished grudge and threatened the deceased Jaffer Ali to deal with him. On 3-7-2003 at about evening time, complainant, his son Muhammad Azam and brother Munir Ahmad were sitting on the road in front of their haveli. Jaffar Ali was sitting on the nearby wooden logs placed in the premises of saw machine of Manzoor. In the meantime appellant Muhammad Ashraf armed with hatchet and Muhammad Yousaf armed with sota came there. Muhammad Yousaf raised lalkara that Jaffar Ali should not go alive and he be taught a lesson for abusing. The complainant further mentioned that within their view Muhammad Ashraf gave a hatchet blow on the head of Jaffar Ali. The complainant and his companions went forward in rescue of Jaffar Ali upon which Muhammad Ashraf raised lalkara that whosoever came near would meet the same fate. Jaffar Ali fell down and succumbed at the spot.

3. After completion of investigation challan was submitted to the trial Court. The appellant and his co-accused were charge sheeted to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case examined as many as 10 P.Ws. After closure of prosecution case, statement of appellant/accused was recorded under section 342, Cr.P.C. in which he pleaded the plea of grave and sudden provocation. After conclusion of trial and hearing learned counsel for the parties, the learned trial Court acquitted co-accused Maqbool Ahmed while convicted the appellant Muhammad Ashraf under section 302(b), P.P.C. and sentenced him to imprisonment for life with direction to pay Rs.50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default to undergo further SI for six months.

4. Criminal Appeal No. 1796 of 2004 was filed by the appellant Muhammad Ashraf which had been dismissed by a learned Single Judge of the Lahore High Court, Lahore vide judgment dated 9-5-2006 against which Jail Petition No. 266 of 2006 was filed before this Court in which leave to appeal was granted on 10-12-2007 to consider whether the case against the appellant was proved beyond any reasonable doubt.

5. Learned counsel for the appellant has contended that appellant had taken a specific plea of grave and sudden provocation; that both the eye-witnesses were not present at the spot; F.I.R. was not recorded with such a promptitude; and that both the witnesses have made dishonest improvements while appearing in the Court. He stated that actually it was an unseen occurrence and the learned Trial as well as the High Courts had not taken into consideration the contradictions in the statements of the witnesses and had convicted the appellant on surmises and conjectures.

6. On the other hand learned Additional Prosecutor-General has opposed this appeal on the ground that incident was reported without any inordinate delay; that postmortem was conducted on the next day at 10.00 p.m. that both the eye- witnesses have made consistent statements and both the Court below had relied upon the prosecution evidence. It is further contended that the defence plea raised by the appellant was not proved as the appellant had neither appeared under section 340(2), Cr.P.C. nor produced any defence witness in his support, therefore, the appeal may be dismissed.

7. We have heard learned counsel for the parties and have perused the record. Incident in the present case had taken place, according to the prosecution on 3-7-2003 at evening time and case of the prosecution is that F.I.R. was recorded at 9-00 p.m. without inordinate delay and on the other hand postmortem was conducted by P.W.3 Dr. Asghar Ali Hunjra on the next day i.e. 4-7-2003 at 10-00 a.m. If F.I.R. was recorded with such a promptitude then why the postmortem was conducted with such a delay. Even otherwise, according to P.W.3 Dr. Asghar Ali Hunjra, the time between death and postmortem was 15 to 16 hours. So, the F.I.R. was recorded with a delay and cannot be used against the appellant as a corroborative piece of evidence.

8. To prove the ocular account prosecution had produced two eye-witnesses. P.W.5 Sher Muhammad is real father of the deceased while P.W.6 Muhammad Azam is real brother of the deceased. Both are related inter se and with the deceased. They claimed that there was no previous enmity between the parties but they were not on speaking terms as the mother of the complainant had died before the incident and in spite of the fact both parties were residing adjacent to each other but accused party had not come to say Fateha with the complainant. It was admitted by the P.W.5 during cross- examination that deceased was running the grocery shop in village Narowal and adjacent to his grocery shop parents of the appellant were residing and the appellant along with his wife was also residing with his parents. It is admitted fact that he had shifted his place of residence from the said house and started living in a house which was at a distance of one acre from the place of occurrence and the house of the complainant was at a distance of three acres from the place of occurrence, so both the eye-witnesses are chance witnesses as the incident has not taken place in front of their places of residence or places of their business. Both the eye-witnesses are not natural witnesses and they claimed that they had seen the incidence but had failed to explain two injuries caused with blunt weapon on the forehead and below the left eye of the deceased and had only attributed one injury to the appellant at the back of his ear. While appearing in the trial Court they had attributed the blunt weapon injuries to Muhammad Yousaf who allegedly was armed with sota. This improvement was introduced by them to bring the ocular version in line with medical evidence. Both the eye-witnesses had been confronted with their previous statements recorded under sections 154 and 161, Cr.P.C. and the High Court has declared that they had made dishonest improvements in their statements qua the role ascribed to Muhammad Yousaf acquitted accused. Even otherwise quarrel took place at a spur of moment and it is shrouded in mystery how they reached the spot and saw the incident. We have no hesitation in holding that they had not seen the incident. Even otherwise, motive mentioned in the F.I.R. has not been believed by both the courts below and we are in agreement with both the courts below that the motive had not been proved through the evidence on record. Recovery is also useless as the hatchet was not stained with blood. Medical evidence contradicts the ocular account that the incident was promptly reported. Two blunt weapon injuries were also not explained by the eye-witnesses. In the circumstances we find that prosecution has not been able to prove the case against the appellant beyond any reasonable doubt and conviction and sentence awarded to the appellant is not sustainable.

9. Coming to the defence plea raised by the appellant that the deceased had illicit relations with his wife and due to this reason he had shifted his place of residence and had started living at the place which is far from his house and the incident had taken place at the evening time when he had seen his wife in compromising position with the deceased, the deceased had succeeded in running away from the place of incident, the appellant followed him and had caused him injury with hatchet, it may be noted that he neither appeared in his defence as required under section 340(2), Cr.P.C. nor produced any evidence to support his plea. The witnesses had also denied this fact, hence the defence plea is brushed aside.

10. As we have discussed above that the prosecution has failed to prove the guilt against the appellant beyond shadow of doubt, the conviction and sentence awarded to the appellant are set aside and this appeal is allowed. The appellant is acquitted of the charge. He shall be set at liberty forthwith if not required to be detained in any other case. M.W.A./M-7/SC Appeal allowed.