2006 PLP 1001 (YLR)

M.A. SHAHID SIDDIQUI, J.

Zulfiqar Ali alias Zulfi appellant was tried along with two others namely Munawar alias Mahbu and Mukhtar Ahmad under? section 302(b), P.P.C. read with section 34, P.P.C. for committing Qatl-i-Amd of Ayaz Ahmad by the learned Additional Sessions Judge, Mandi Baha-ud-Din in case F.I.R. No.412, dated 23-8-1998 registered at Police Station Malakwal. The appellant alone was convicted under section 302(b), P.P.C. He was sentenced to death and also directed to pay Rs.100,000 as compensation to the legal heirs of the deceased or in default of payment thereof to undergo simple imprisonment for six months under section 544-A, Cr.P.C. vide judgment dated 23-6-2001. Through the same judgment the learned trial Court had acquitted the above said co-accused. Zulfiqar alias Zulfi appellant has challenged his conviction through Criminal Appeal No.1048 of 2001. There is also a reference (Murder Reference No.459 of 2001) before us made by the learned trial Court seeking confirmation of death sentence. We intend to decide both these matters through this consolidated judgment.

2. The occurrence took place on 23-8-1998 at about 6-00 p.m. just in front of the steel gate of the clinic of' Dr. Mazher in Mauza Harya within the area of Police Station, Malakwal, District Mandi Baha-ud-Din. The F.I.R. (Exh.PE/1) is based on the statement of Sardar Khan (Exh.PE) P.W.8 recorded at 7-00 p.m. by Muhammad Irshad, Inspector (P.W.11) who while on patrol duty had met Sardar Khan complainant at Harya Morr. As per F.I.R. Sardar Khan complainant was resident of Duffar. Ayaz Ahmad deceased resident of Chak No.67 Bhachranwala Police Station Jhal Chakian, District Sargodha was his relative. He had been residing with the complainant for the last one year. On 22-8-1998 Sardar Khan? complainant accompanied by Ayaz Ahmad went to Mauza Harya to see Gulzar Ahmad (P.W.9). On the day of occurrence Ayaz Ahmad suffered from fever, therefore, Ayaz Ahmad accompanied by Sardar Khan and Gulzar Ahmad P.W. went to the clinic of Dr. Mazher at 6-00 p.m. They were standing in the street just in front of the door of the clinic of Dr. Mazher. Zafar Iqbal (P.W.10) resident of village Sahna was already standing there on the gate. Some ladies were sitting with Dr. Mazhar. In the meantime, Zulfiqar alias Zulfi appellant, his brother Mukhtar Ahmad both armed with .12 bore guns and Munawar alias Mahbu armed with a rite arrived there from the eastern side. Zulfiqar appellant shouted that Gulzar Ahmad should be given a taste for furnishing information about the Kalashnikov and then opened fire with his gun which hit Ayaz Ahmad deceased on the right side of his head. Second fire was shot by Mukhtar Ahmad (since acquitted) hitting Ayaz Ahmad on his right shoulder. The complainant and the P.Ws. took shelter behind the door in order to save themselves. All the three accused continued to fire. On seeing a large number of persons at the spot the accused decamped.

3. Sardar Khan in his statement (Exh.PE) alleged that 4/5 months prior to the occurrence the Malakwal Police had recovered a Kalashnikov from the possession of Zulfiqar accused who suspected that the recovery of Kalashnicov had been made by the police on the information furnished by Gulzar Ahmad P.W.

4. Muhammad Irshad, Inspector P.W.11 while on patrol duty met Sardar Khan, complainant at Harya Morr and recorded his statement Exh.P.E and sent the same to Police Station for formal registration of the case. He took up initial investigation and reached the spot where he at 7-30 p.m. prepared injury statement Exh.PH and inquest report Exh. PJ and sent the dead body to mortuary for post-mortem examination. Besides completing other formalities he recorded the statement of P.Ws. and many other persons including Dr. Mazhar. On 24-8-1998 he collected the last worn clothes of the deceased and took Muhammad Siddique draftsman to inspect the spot and prepared site plan. He had also taken into possession the licensed gun Exh.P.4 from Gulzar P.W. He arrested Zulfiqar Ali, accused, on 15-9-1998 after dismissal for letter's application for bail before arrest. On 18-9-1998 Zulfiqar, accused, led to the recovery of gun P.5 and five cartridges P.6/1-4. On the same day Munawar, accused, since acquitted led to the recovery of rifle P.7 from the residential house of Zulfiqar, accused. He submitted his report under section 173, Cr.P.C., in which he placed Mukhtar Ahmad, accused, in Column No.2.

5. At the commencement of trial, the learned trial Court formally charge-sheeted all the three accused under section 302 read with section 34, P.P.C. to which they pleaded not guilty and claimed trial.

6. The prosecution examined as many as 11 witnesses and tendered in evidence the report of Chemical Examiner and that of Serologist. Sardar Khan P.W.8, Gulzar Ahmad P.W.9 and Zafar Iqbal P.W.10 furnished ocular account of the occurrence. Sardar Khan and Gulzar Ahmad also deposed about the motive. Similarly Zafar Iqbal stated about the recovery of gun P.5 from the house of Zulfiqar, accused. Doctor Shafique Ahmad, P.W.4, furnished medical evidence. Muhammad Irshad, Inspector P.W.11, deposed about the registration of case, the recovery of blood-stained earth, arrest of the accused and recovery of gun at the instance of Zulfiqar Ali and Munawar alias Mahbu, accused. On an application filed by the accused under section 540, Cr.P.C., the learned trial Court also examined Rana Muhammad Shaukat Hayat, D.S.P. (Legal) Crime Branch as C.W.1, Amjad Ali Tarar, Inspector, as C.W.2. C.W.1 stated that the investigation was entrusted to him and he after investigation had come to the conclusion that Zulfiqar Ali, Munawar Hussain and Mukhtar Ahmad, accused, were found innocent and Gulzar P.W. was found responsible for the murder of the deceased. Amjad Ali Tarar (C.W.2) stated that he recorded the statements of witnesses on the direction of C.W.1. On two other applications moved on behalf of the complainant and accused, the learned trial Court also examined Muhammad Masood Bangish, retired SSP, as C.W.3 and Shehzad Mehmood, SI, as C.W.4 had also investigated the case while he was posted as SSP, Range Crime Branch, Gujranwala. He had found that Zulfiqar Ali and Munawar accused were responsible for the murder of Muhammad Ayaz while Mukhtar Ahmad accused was innocent. The statement of remaining P.Ws. were of formal nature.

7. The learned trial Court after taking into consideration the entire material brought on record acquitted Munawar alias Mahbu and Mukhtar Ahmad, accused. However, the learned trial Court found that the prosecution had succeeded in establishing its case without reasonable doubt against Zulfiqar alias Zulfi, appellant. Accordingly, he was convicted and sentenced to death vide impugned judgment.

8. The learned counsel for the appellant while assailing the conviction has vehemently argued that the learned trial Court has disbelieved the statement of the said three eye-witnesses to the extent of Munawar alias Bahbu and Mukhtar Ahmad alias Malibu co-accused as such their testimony could not be relied upon against Zulfiqar Ali, appellant, without independent corroboration. He also argued that the prosecution has failed to prove the motive and there is no evidence to show that the gun P.5 was used by the appellant in the commission of the crime as such the recovery of the gun at the instance of appellant is also of no consequence.

9. On the other hand, the complainant has maintained that the F.I.R. was lodged promptly and the acquittal of the co-accused does not make the prosecution version furnished by the three eye-witnesses doubtful in any manner.

10. We have made reappraisal of the entire evidence in the light of arguments advanced by the learned counsel for parties.

11. We have noticed that the F.I.R. had not been lodged at the police station. Muhammad Irshad P.W.11, who had conducted the initial investigation stated that the place of occurrence is at a distance of about 8/9 kilometers from the police station whereas Harya Morr where he recorded the statement of complainant, is 2 A or 2-1/2 kilometers from the place of occurrence. He could not specify the time when he left the police station nor did he specify the purpose for which he had left the police station. In these circumstances, the F.I.R. loses its intrinsic worth. It can be inferred that it had been registered after consultation and preliminary investigation at the spot.

12. We have also noticed that Sardar Khan, complainant P.W.8, who is admittedly related to the deceased, is resident of Daffar within the area of Police Station Gojra, which is admittedly at a distance 25 kilometers from the place of occurrence. Similarly, Zafar Iqbal P.W.10 is resident of village Sahna. Both these witnesses are not resident of the locality. Sardar Khan has not explained as to why he had gone to see Gulzar P.W. All the three eye-witnesses attributed Injury No.1 on the head of Ayaz Ahmad deceased to Zulfiqar alias Zulfi appellant and Injury No.2 on the shoulder to Mukhtar Ahmad appellant but their testimony has been disbelieved by the learned trial Court to the extent of Mukhtar Ahmad co-accused firstly on the ground that he had been found innocent by all the' Investigating Officers and secondly on the ground that no weapon of offence was recovered from his possession. We have noticed that Zulfiqar Ali, appellant/accused had also been found innocent by the Range Crime Branch. Gun (P.5) was got recovered by the appellant on 18-9-1998 but no empty was recovered from the spot and sent to Forensic Science Laboratory for comparison. There is absolutely no other evidence to show that the gun P.5 was used in the commission of crime, therefore, the recovery of .12 bore gun (P.5) is also of no legal consequence.

13. The prosecution had also not been able to prove motive for the offence. Sardar Khan (P.W.8) and Gulzar (P.W.9) both claimed that Kalashnikov had been recovered from Zulfiqar alias Zulfi appellant but both did not claim to have witnessed the said incident. No independent proof had been produced to establish that the deceased had acted as an informer in connection with the alleged recovery. Thus, the motive set up by the prosecution had not been established in this case.

14. We have also noticed that Injuries Nos.1 and 2 are in the nature of entry wounds. Dr. Shafique Ahmad, P.W.4, ,admitted that these injuries were on frontal part of the deceased. One of these injuries had been attributed by the eye-witnesses to the appellant and the other to Mukhtar Ahmad co-accused who has been acquitted. These eye-witnesses, therefore, could not be relied upon in the absence of any independent corroboration. No such independent corroboration is available against the appellant. Reference:-- Ghulam Sikandar and another v. Mumaraz Khan and others (PLD 1985 SC 11), Sarfaraz alias Sappi and 2 others v. The State (2000 SCMR 1758) and Iftikhar Hussain and another v. State (2004 SCMR 1185).

15. In view of the above we, therefore, do not consider it safe to place implicit reliance on the ocular account which is not corroborated by any evidence. Thus the prosecution has failed to prove its case beyond reasonable doubt against Zulfiaqr alias Zulfi, appellant, as well. Accordingly, the appellant is entitled to the benefit of 1 doubt. We, therefore, accept Criminal Appeal No.1048 of 2001. The death sentence awarded by the trial Court is not confirmed. The appellant stands acquitted. He is ordered to be set at liberty if not required in any other case. Murder Reference 459 of 2001 is answered in negative. H.B.T./Z-125/L??????????????????????????????????????????????????????????????????????????????????? Appeal accepted.