2002 PLP 1200 (MLD)

This judgment will dispose of Criminal Appeal No. 1957 of 2000 directed against the judgment dated 28‑11‑2000 passed by the learned Additional Sessions Judge, Gujrat, whereby he convicted the appellant under section 302(b)/34, P.P.C. and sentenced him to undergo life imprisonment with further direction to pay Rs.50,000 (Rupees fifty thousand) as compensation payable to the legal heirs of the deceased or in default 2 years' R.I. with benefit of section 382‑B, Cr.P.C.

2. The facts of the case in brief as narrated by the complainant Mst. Bashiran Bibi, are that on the day of occurrence i.e. 28‑10‑1997 at 9 a.m. she along her daughter Shehnaz Begum and son Amjad Iqbal was going to the house of her daughter Shehnaz Begum in the same village. When they reached near the house of Saif Ullah accused (P.O.), Saif Ullah armed with an unknown person came there. Saif Ullah raised Lalkara that he will take revenge of his father and will not spare Amjad Iqbal alive and then he fired two shots at Amjad Iqbal who fell down. Thereafter, all the three accused ran away towards the river while firing, Amjad Iqbal deceased succumbed to the injuries at the spot. The motive behind this occurrence was that 5/6 months back father of Saif Ullah accused (P.O.) was murdered and he had doubt that Amjad Iqbal was involved in that murder. Hence this occurrence. Matter was reported to the police same day at 10-25 a.m.

3. After receiving the information about the occurrence the local police completed all the necessary formalities and then police party headed by Muhammad Akram S.I., proceeded to the spot. The S.‑j inspected the spot. He prepared the inquest report and injury statement He also took into possession blood‑stained earth vide memo. Exh. P. C Last worn clothes of the deceased were also received by him which were Shalwar Qameez Exh. P.B./1 and 2, vest P.B./3, a phial Exh.P.4. He arrested Muhammad Ashraf appellant on 17‑11‑1997 but no recovery was effected. He declared Dr. Ashraf and Mazhar Iqbal accused innocent. After completion of investigation the challan was submitted for trial.

4. Prosecution in order to prove its case has produced as many as 10 witnesses including Doctor, Investigating Officer, eye‑witnesses and other relevant persons. After tendering in evidence report of Serologist Exh. P.G./1: , learned A. P. P. closed the prosecution evidence. Thereafter, statements of the accused were recorded under section 342, Cr.P.C, in which they pleaded not guilty and claimed to be tried.

5. Learned counsel for the appellant in support of this appeal submits that prosecution has failed to prove the motive against the appellant, that no overt act was attributed to the appellant, that according to the F.I.R. appellant was armed with pistol but no recovery was effected in this regard, that no crime empty was recovered from the spot, that appellant was an old man. of 66 years at the time of occurrence and when his statement under section 342, Cr.P.C. was recorded he was 70 years of age, that no independent witness has been produced to prove the case against the appellant, that the appellant was also found innocent by the police during the investigation and that no case is made out against the appellant and he is entitled to acquittal.

6. On the other hand learned counsel for the State submits that appellant was present at the spot and he had common intention with his co‑accused Saif Ullah who is still at large and has been declared P.O. to commit the murder of Amjad Iqbal. He supports the judgment of the learned trial Court.

7. I have heard the learned counsel for the parties. In the instant case five persons namely, Dr. Ashraf the appellant; Ehsan Ullah, Shahid Naveed and Saif Ullah (P.O.) and one unknown person whose name was mentioned as Mazhar Iqbal, later on Ehsan Ullah and Shahid Naveed who were accused of abetment though, were tried but became absconder. Saif Ullah the main accused who caused fatal injuries on the person of Amjad Iqbal deceased is also P.O. Mazoar Iqbal who was shown to be an unknown person in the F.I.R. was got discharged by the local police during the investigation. Appellant is the real maternal‑uncle of the deceased and also of the main accused Saif Ullah. Complainant is the real sister of the present appellant. Motive of the present occurrence was that father of Ehsan Ullah and Shahid Naveed was murdered and they had a suspicion that Amjad Iqbal deceased son of the complainant was involved in the murder. It may be noted here that neither Amjad Iqbal nor any of his brother was arrayed as an accused in the murder case of father of Ehsan Ullah and Shahid Naveed. Learned trial Court has held rightly and so I do the same.

8. Now I take up the ocular account furnished by Bashiran Bibi, P.W.2, mother of the deceased Amjad Iqbal, Zulfiqar and Iftikhar P.Ws. 3 and 4, real brothers of the deceased. P.W.6 Shehnaz Begum is also real sister of the deceased and daughter of Mst. Bashiran Bibi the complainant. No independent witness has been produced in this case by the prosecution. As far as appellant is concerned, he was not connected with the motive of this case. There was no reason for him to join hand with his co‑accused Saif Ullah and others. No recovery was effected from him. He did not fire on the deceased or any of the P. Ws. No crime empty of the pistol was recovered from the spot. Muhammad Akram, S.‑I. the Investigating Officer of this case examined as P.W.10 has also found the appellant as innocent. Occurrence had taken place at a busy place but no independent witness has been produced by the prosecution. Parties were inimical towards each other. Mst. Shehnaz Begum (P. W.6) was married to Muhammad Hussain the real brother of Saif Ullah and she had filed a suit, for dissolution of marriage against her husband Muhammad Hussain though after the occurrence, but in the said plaint she had mentioned that she was deserted by her husband two years prior to the occurrence. I am not satisfied with the prosecution story and in my view possibility of false implication of the appellant in the instant case cannot be ruled out. The fatal injuries which are two in number, are specifically attributed to Saif Ullah co‑accused.

9. After having gone through the prosecution evidence, the impugned judgment and hearing the submissions made by the learned counsel for the appellant, I am of the view that prosecution has miserably failed to prove the case against the appellant. There are many dents and doubts in the prosecution case. In this view of the matter, this appeal is accepted and the appellant, who is on bail, is discharged from his bail bonds. H.B.T./M‑1129/L?????????????????????????????????????????????????????????????????????????????? Appeal accepted.