2008 P Cr (PLP)

CH. IFTIKHAR HUSSAIN, J.

Appellant Muhammad Akram through the instant appeal has challenged his conviction and sentence recorded by Ch. Mushtaq Ahmad, the learned Additional Sessions Judge, Depalpur, District Okara vide his judgment delivered on 27-4-2002 in the case F.I.R. No.136, dated 23-3-2001 under section 302, P.P.C. registered with Police Station Baseerpur, Tehsil Depalpur, District Okara.

2. He vide the impugned judgment was convicted under section 302(b), P.P.C. and sentenced to suffer imprisonment for life and to pay compensation Rs.1,00,000 (Rupees one lac) to the legal heirs of the deceased as required under section 544-A, Cr.P.C. and in default thereof to suffer further six months' S.I. He however, was extended the benefit of section 382-B, Cr.P.C.

3. Briefly the facts relevant for the disposal of the instant appeal are that the said case has been registered on the statement of Exh.P.C. of complainant Muhammad Sarfraz (P.W.2). He has mentioned therein that on 22-3-2001 at about 8 p.m. he along with his father Muhammad Tufail, Muhammad Iqbal son of Allah Ditta and Mansha son of Shah Muhammad, caste Wattoo, resident of Dhari Falak Sher Dakhli Dulleyki were present at their Dhari and smoking Huqqa. Muhammad Tufail was sitting with them on a separate cot. A lantern was lit nearby them. All of a sudden Muhammad Akram son of Hakim Ali, resident of Dulleyki Mahar armed with .30 bore pistol came there. He fired with pistol at his father Muhammad Tufail, which hit on the left side of the back of his chest and he fell on the cot. They tried to apprehend him but he fled away. The motive behind the occurrence is that the accused had bad intention towards his sister Mst. Shahida. His father had forbidden him from coming to their house. On grudge over the same he had injured him.

4. The appellant on the completion of the investigation was challaned to the Court. He was formally charged under section 302, P.P.C. He pleaded not guilty to the charge.

5. The prosecution at his trial has examined its seven witnesses. They are Dr. Munir Ahmad (P.W.1), Muhammad Sarfraz, complainant (P.W.2), Muhammad Iqbal (P.W.3), Zahoor Ahmad, Constable (P.W.4), Irshad Hussain Patwari (P.W.5), Muhammad Sadiq (P.W.6) and Ghulam Dastgeer, A.S.-I./Investigating Officer (P.W.7).

6. The report of the Forensic Science Laboratory Exh.P.N. was tendered in the evidence.

7. The appellant in his examination under section 342, Cr.P.C. has denied the allegation against him of Qatl-e-Amd of the deceased by causing his death as a result of firing pistol shot at him hitting on the left backside of his chest on the date, time and place as mentioned above. He has pleaded that on the night of the occurrence the deceased was alone asleep at his Dhari to look after his cattle. At about 10/11 p.m. some unknown thieves came there to steal the cattle. He woke up and raised alarm. The thieves fired at him and they ran away. The occurrence with mala fide had been shown to have taken place at 8 p.m. The alleged eye-witnesses were not present at the spot at that time. He had been involved due to suspicion. He, thus, pleaded innocence. He, however, did not produce evidence in his defence and also not deposed on oath in disproof of the allegation appearing against him in the prosecution evidence.

8. The learned trial Court after hearing the parties came to the conclusion that the prosecution as per its eye-witnesses account supported by the medical evidence and the motive had proved the allegation of the Qatl-e-Amd of the deceased against him beyond any shadow of reasonable doubt. It consequently has convicted and sentenced him as mentioned above.

9. He feeling himself aggrieved of the impugned judgment of his conviction and sentence has assailed the same by way of the instant appeal as said above.

10. It has been argued on his behalf that the eye-witness account rendered by the two eye-witnesses namely Muhammad Sarfraz (P.W.2) and Muhammad Iqbal (P.W.3) was not trustworthy as those P.Ws. firstly were related inter se and to the deceased and secondly their presence at the spot at the relevant time was highly doubtful; that if at all for the sake of arguments, it may be believed that they were present at the spot but still it was per chance and so .their evidence required strong independent corroboration to place reliance upon the same while it is badly lacking in the instant case as the medical evidence had not supported the same and the motive had also not been proved on the record; and that in such circumstances, his conviction and sentence was not justified.

11. As against the same, the learned counsel for the State has supported the impugned judgment saying that the eye-witness account rendered by the two above mentioned eye-witnesses was trustworthy and reliable and the same was fully supported/corroborated by the medical evidence and the motive and so his conviction and sentence was perfectly justified.

12. I have carefully considered the submissions made from both the sides with the help of the available record.

13. The prosecution in support of its case against the appellant has mainly relied upon its ocular testimony, medical evidence, the motive and the recovery of crime weapon pistol P.8 from him. As against the same, the appellant has professed innocence and attributed his involvement in the case to suspicion as is obvious from the above position.

14. The learned trial Court has relied upon the ocular testimony furnished by the above named two eye-witnesses, the medical evidence and the motive against him but not the recovery of the crime weapon pistol P.8 from him. It, however, did not believe his plea of innocence and so rejected the same.

15. The ocular account of the prosecution has been furnished by Muhammad Sarfraz (P.W.2) and Muhammad Iqbal (P.W.3). They both are related inter se and to the deceased. Muhammad Sarfraz is his son and Muhammad Iqbal Maternal-cousin. Though, this itself is not enough to discredit them in their deposition but the fact remains that their presence at the spot at the relevant time was highly doubtful for many reasons.

16. It has been admitted by Muhammad Sarfraz complainant (P.W.2) that he in the days of occurrence was not living at the place of occurrence and rather at Dulleyki Mahar, which is at a distance of 2-1/2 Kms. from there towards the west/north. He, therefore, as per his own showing in those days was not living at the place of occurrence where his deceased father had been living to watch his cattle. Similarly Muhammad Iqbal (P.W.3) was also not the resident of the place of occurrence. He, admittedly, was the resident of the village Dulleyki Mahar, which as said above is at a distance of about2-1/2 Kms. from the place of occurrence. So, they both were the chance witnesses in every sense of the word, even if it may be believed that they were present at the place of occurrence at the relevant time.

17. The occurrence as per their showing had taken place at about 8 p.m. According to them, they were smoking Huqqa at the place of occurrence. It was month of March in those days. They could do so in their home even, if they had wanted the same. They had no need to go to the Dhari of the deceased at night time simply for that purpose. There had appeared no other cause of their presence there at that time. So, their presence at the place of occurrence at the relevant time seems not above doubt. So, it is not readily believable that they were present at the place of occurrence at the relevant time.

18. It may be mentioned here that a chance witness cannot be believed safely, if he fails to offer cause for his presence at the spot at a given time.

19. So, they due to their being closely related to the deceased and chance witnesses were not worthy of placing reliance safely in the case. It rather heavily reflects from the circumstances appearing in the evidence on the record that they were not present at the spot at the relevant time and they rather were brought there after the incident. This is so, evident from the fact in the evidence of Muhammad Sarfraz, complainant. According to him, in the cross-examination, they took the deceased in injured condition from the place of occurrence at 12-30 a.m. The occurrence as said above had taken place at 8 p.m. He is the son of the deceased. He, if was present at the spot at the time of occurrence, then why he had wasted at least 4-1/2 hours in removing his father from the spot for medical aid. This was not his natural conduct in the matter as his father had received fire-arm injury and he needed immediately medical help for safety. He but as per his evidence let his father remained at the spot for about 4-1/2 hours in injured condition. This was not so expected from a son, if he was present there. This, thus, has heavily shown that he was not present at the spot at the relevant time.

20. The occurrence was of night time. The deceased probably was alone present at the spot. Someone seemingly on the report of fire had reached the spot and he had called his relatives, who reached there and thereafter he was removed to the hospital. The presence of the eye-witnesses, therefore, at the spot at the relevant time has appeared to be highly doubtful as said above.

21. It was a night occurrence. The deceased was living alone at his Dhari. Although, it has been shown by the eye-witnesses that lantern was lit near them at the time of occurrence but Investigating Officer Ghulam Dastgeer (P.W.7) has stated that he did not take any lantern into possession from the spot. This shows that lantern was not there. Had it been so, he definitely would have taken it into possession. The absence of light at the spot has strengthened the notion that the occurrence had taken place in the darkness of the night. In such circumstance, there is every possibility that the assailant or assailants could not be identified at the spot.

22. This belief is further strengthened by the fact in the evidence of the doctor that the deceased had two fire-arm injuries on his dead body while Muhammad Sarfraz had mentioned in the F.I.R. Exh.P.C. that the appellant had fired one shot with pistol at him, which hit on the left side of back of his chest. He has improved his stand at the trial by saying that the appellant had fired two shots at his deceased father, which hit him on the left backside of his chest. This is obvious contradiction or improvement in his stand at the trial than the one taken by him in the F.I.R. Exh.P.C. He has mentioned of one fire in Exh.P.C. and not two.

23. He, while in his statement at the trial has stated that the F.I.R. Exh.P.C. was read over to him and he thereafter signed the same in token of its correctness. It means that he has mentioned of only one fire shot in Exh.P.C. The two fire shots, if had been fired by the appellant at his father, he must have heard the report of the same, if he been present there. The non-mentioning of the second fire by him in the Exh.P.C. heavily shows that he had not seen the occurrence with his own eyes. This not only belies the idea of his presence at the spot but also is in great contradiction to the evidence of the doctor on this aspect of the matter. Although Muhammad Iqbal P.W. has mentioned that the appellant had fired two shots at the deceased, which hit on the left side of the back of his chest but the sizes/dimensions of these injuries suggest heavily that these perhaps were caused by two different fire-arms than the one. The doctor has found the following injuries on the dead body:-- (1) Lacerated wound 3/4 x 3/4 c.m. deep going margins inverted. Blackening present, at back and outer part of left side of chest. On posterior exhillary ford 4 c.m. above exhilla above left side (entry wound). (2) Lacerated wound 1-1/2 x 1 c.m. deep going margins inverted, blackening present on back and outer side of left chest 1 c.m. medial to injury No.1.

24. The injury No.1 shows that there had been blackening present at the back of the left side of the chest of the deceased. The doctor has mentioned that this injury possibly have been caused by fire shot from a distance of about 7 to 10 feet and the injury No.2 from the distance of 10 feet.

25. The manner of occurrence as has reflected from the evidence of these eye-witnesses is that the appellant had fired at the deceased from one place. It has not been found from the same that he or the deceased during the occurrence had changed their positions in any way. The two fire shots, if had been made by the appellant with one weapon, the sizes of the injuries could be one and the same. The different sizes of injuries also suggest that these possibly had been caused by the two different fire-arms and not by one. The recovery of two bullets from the body of the deceased by the above doctor has also suggested that the assailant had fired two shots at the deceased and not one. The same again belies the version of Muhammad Sarfraz complainant as mentioned in the F.I.R. Exh.P.C. that the appellant had fired one shot at the deceased. This again shows that he had not seen the occurrence with his own eyes. The same is the position in the testimony of Muhammad Iqbal P.W. The medical evidence, therefore, has not supported/corroborated the ocular testimony and the same is in contradiction to it. The evidence of two eye-witnesses, therefore, could not receive support/corroboration from the medical evidence. The learned trial Court, therefore was wrong in receiving the same as supportive to the same.

26. As regards the motive, the same has been furnished by Muhammad Sarfraz (P.W.2) alone. He in this regard has mentioned that 3/4 days prior to the occurrence the appellant came to their Dhari and tried to develop illicit relations with his sister Mst. Shahida. He in this regard has further mentioned that his said sister had told this incident to her father, who had forbidden him from visiting their house and insulted him by abusing him. Firstly the story put forth by him on this aspect of the matter is an improved version than the one disclosed by him in the F.I.R. Exh.P.C. He has simply mentioned in the F.I.R. Exh.P.C. that the appellant had bad eyes on his sister and his father had stopped him from visiting their house. He did not mention therein that the appellant had tried to develop illicit relations with his sister about 3/4 days prior to the occurrence and she narrated the same to her father and her father had insulted him and forbade from visiting their house. He has been duly confronted with his statement Exh.P.C. than the one made by him at the trial. It was found therefrom that he did not mention all such facts in the same. The same recoils heavily on the bona fide of his story/version. Secondly, none else than him has stated such fact against the appellant at the trial. So much so that Mst. Shahida was also not brought forth to the witness-box to state such story. In these circumstances, I find that the motive part of the story narrated by him has not been proved on the record convincingly. The learned trial Court, thus, was wrong to receive the same as of corroborative value to the ocular testimony.

27. The learned trial Court did not believe the recovery of crime weapon and it was rightly so far the reason that no report of matching of crime weapon with the bullets is-available on the record.

28. I, therefore, have found that the prosecution as per its above discussed evidence on the record has failed to bring home the guilt to the appellant beyond any shadow of reasonable doubt. His conviction and sentence, therefore, is not liable to be sustained.

29. I, therefore, accept his appeal and set aside the impugned judgment of his conviction and sentence and acquit him of the charge giving him the benefit of doubt. He is in custody. He be set at liberty forthwith, if not required in any other case. N.H.Q./M-329/L Appeal allowed.