2006 PLP 1707 (SCMR)

CH. IJAZ AHMAD, J.

The appeal was allowed vide short order of even date in the following term:-- "For the detailed reasons to be recorded later, this appeal is allowed, the impugned judgments of the Courts below are set aside and the appellants are directed to be released from custody unless required to be detained in some other case."

2. Following are the reasons of the short order.

3. The appellants were tried along with their co-accused namely Munir Ahmad and Muhammad Sharif and co-convict Amjad Javed under section 302/34, P.P.C. for the murder of Muhammad Abbas alias Manhoo and sentenced to life imprisonment as Tazir along with compensation of Rs.50,000 each to the L.Rs. of the deceased or in default to suffer six months' S.I. with benefit of section 382-13, Cr.P.C. vide judgment, dated 30-5-2000 of the learned Additional Sessions Judge, Sargodha. The trial Court acquitted Munir Ahmad and Muhammad Sharif. Sentence and conviction of the appellants were maintained on their appeal by the learned High Court vide impugned judgment, dated 11-3-2002 whereas their co-convict Khalid Pervez was acquitted.

4. The learned counsel for the appellants submits that appellants were in jail on the date of occurrence and this fact was admitted by P.W.9, appellants were granted bail by the learned High Court on the basis of plea of alibi and both the Courts below have misread the entire evidence of prosecution especially that of P.W.16, Sarfraz Mahmood Khan, D.S.P., C.P.O. who admitted in cross-examination that appellant Farooq was locked in Faisalabad Jail against Entry No.2897 while Amjad Javed was shown to be confined in Sheikhupura Jail. P.W.9 and P. W.16 however, took up the position that, in fact, instead of the appellants some other persons went to the jail with their names. Evidence of P. W.17 Mr. Ramzan Ali Khan/Judicial Magistrate was also ignored who had stated that he had not signed the proceedings of obtaining the sample thumb-impressions of the appellants. The recovery effected from Muhammad Farooq appellant is totally false and frivolous. The prosecution failed to produce any independent ocular evidence in the case. Abdul Razzaq was the solitary witness, examined as P.W.9, who is brother of the deceased and was inimical towards the appellants, the prosecution had cited two other eye-witnesses namely Babar and Sanaullah, but none of them was produced by the prosecution which clearly gave rise to an adverse inference against the prosecution. P. W.9, having been disbelieved to the extent of the two acquitted co-accused namely Munir Ahmad and Muhammad Sharif could not have been believed against the appellants. Appellant Amjad Javed was declared innocent and nothing was recovered from him. The deceased had received 25 injuries while P.W.9, the complainant did not receive any injury, although the deceased and P.W.9, were earlier tried for the murder of Saeed, brother of the appellants and were acquitted and this was the motive to kill the deceased.

5. The learned counsel for the respondent has supported the impugned judgment.

6. The submissions have been considered. Both the Courts below have recorded concurrent findings as to the guilt of the two appellants and this Court does not normally interfere in such a situation. However, when it is satisfied with findings of the Courts below, have been arrived at by disregarding any provision of law or accepted principles of appreciation of evidence or are based on inadmissible evidence or misreading of evidence, then the concurrent conclusions loose their sanctity. As would be demonstrated hereunder, the conclusions of the learned two Courts are against certain settled principles of appreciation of evidence.

7. P.W.9, Abdul Razzaq, the complainant, was an accused along with Abbas, deceased in which Saeed, brother of the two appellants, was murdered and on the date of occurrence in the present case, the murder case of Saeed was pending. This was statedly the motive for the murder of Abbas (deceased), in this case. Abdul Razzaq was inimical and an interested witness who had a motive to falsely depose against the appellants. However, in case of Muhammad Farooq, the learned two Courts found that recovery of rifle and the report of the Forensic Science Laboratory that the empties matched with the gun recovered at his instance sufficiently corroborated the testimony of P.W.9. As far as Amjad Javed, appellant, is concerned, the only corroborative piece of evidence found was that he had absconded. The plea of alibi of the appellants was rejected on the ground that according to the report of the Finger Print Expert, the persons confined in the District Jails Sheikhupura and Faisalabad were not the two appellants.

8. The emphasis of the learned counsel has been that if presence of P.W.9, at the time of occurrence is disbelieved then the supporting evidence i.e. alleged recovery of rifle from Muhammad Farooq, appellant and absconsion of Amjad would not at all even be relevant.

9. We will first like to examine the question whether presence of P.W.9 at the spot, could in the circumstances, be believed. It may be noted that the deceased had twenty-five injuries out of which eighteen were entry wounds. Besides the deceased Muhammad Abbas, P.W.9 was also challaned in the case of murder of Saeed, the brother of appellants. Had P. W.9 been present on the spot, he was not likely to be spared because the number of injuries on the person of deceased show that at least eighteen rounds were fired. It only shows the degree of venom the killer had-for the deceased. The number of injuries on the person of the deceased also leads us to believe that more than one person participated in the occurrence. Therefore, it is unnatural and improbable that if P. W .9 was present at the spot, he would not be targeted. Another reason for us to doubt his presence is that on the same evidence the co-accused namely Munir and Sharif were acquitted by the learned trial Court while Khalid Pervez was acquitted by the learned High Court. Yet another reason which persuaded us to agree with the contention of the learned counsel is that in the F.I.R. except `Lalkara', no other role was attributed by P. W.9 to Muhammad Sharif. However when he appeared in the witness-box, he attributed a positive role to Muhammad Sharif by saying that he took out carbine from his "Dub" and fired at the deceased. In these circumstances, we are of the view that presence of P. W.9 at the spot was highly doubtful.

10. As far as the alleged recovery of rifle at the pointation of Muhammad Farooq is concerned, even the Sub-Inspector who had effected the recovery, was not produced and the only witness to support the recovery was Muhammad Iqbal, Head Constable. The provisions of section 103, Cr.P.C., were not complied with while the empties recovered from the spot were sent to the Forensic Science Laboratory with undue and unexplained delay. Therefore, we have no doubt in our mind that recovery of rifle at the pointation of Muhammad Farooq could not be believed. Thus, even if presence of P.W.9 at the time of occurrence is accepted, strong corroborative evidence was required to sustain conviction of Muhammad Farooq in view of the rule laid down in Taj Muhammad v. Pesham Khan and another 1986 SCMR 823 which was missing.

11. As far as Amjad Javed is concerned, his case is still simpler. Although we have disbelieved that P. W.9 was present at the spot at the time of occurrence yet we will like to add that absconsion has never been considered to be a corroborative piece of evidence. See. Nazim Khan and 2 others v. The State 1984 SCMR 1092.

12. Apart from the fact that two named eye-witnesses were not produced and the pretexts for their non-appearance, was disbelieved, it has come on record that Abbas deceased had other enemies (apart from the fact that he was accused in the murder case of Saeed, brother of the appellants), as he was an accused in murder case of Riasat Ali registered vide F.I.R. No.652, dated 18-11-1986, Police Station Sadar Sargodha. Therefore, the possibility of somebody else being responsible for the murder of Abbas deceased cannot be ruled out.

13. Coming to the plea of alibi of the two appellants, P.W.9 and P.W.16, had admitted that both the appellants were confined in Faisalabad and Sheikhupura jails respectively. The question to be determined was as to the identity of those persons. The learned two Courts relied upon the report of the Finger Prints Expert. The finding of the learned two Courts was unsustainable for the reason that there was no evidence on record that the Finger Print Expert had compared the thumb-impressions of the appellants in the jail record with their undisputed thumb-impressions. Mr. Ramzan Ali Khan, Judicial Magistrate who was examined as P.W.17, stated that the proceedings of obtaining thumb-impression of Amjad Javed, Khalid Pervez and Muhammad Farooq, do not bear his signatures as the proceedings were not supervised by him. It was some other executive Magistrate and the Investigating Officer inadvertently recorded his name. The Investigating Officer, P.W.16, admitted that there was nothing on the sample papers as to the identification of the accused persons before the Magistrate and that their national identity card number were not given on the sample papers. Therefore, in the absence of proof of comparison by the Expert of undisputed thumb-impressions of the appellants with the thumb-impressions in the jail record, the evidentiary value of the report of the Finger Print Expert was nil. Therefore, we have no doubt in our mind that the plea of alibi was wrongly rejected by the learned two Courts.

14. Resultantly, we allow this appeal, set aside the impugned judgments of the Courts below and the appellants are directed to be released from the custody unless required in some other case. M.H./M-129/SC Appeal allowed.