2002 PLP 2172 (YLR)

During the trial prosecution examined as many as 15 witnesses to prove the guilt of the accused. Medical evidence was furnished by Dr. Muhammad Imdad Aasi who on 19‑5‑1995 conducted post‑mortem examina tion on the dead body of Wazir Ali and found the following injuries:‑‑ (1) Penetrating lacerated wound 1‑1/2 x 3/4 c.m. on the right side of lower abdomen front side 16 c.m. below the umbilicus. Edges were everted. It was wound of exit. (2) Penetrating lacerated wound 1 x 1 c.m. on the right lateral side of chest on back. The edges were inverted. The wound was directed backward and upward. It was the wound of entry. (3) Penetrating lacerated wound 1/2 x 1/2 c.m. on the right buttock. The edges were inverted and directed upward and inward. It was a wound of entry. (4) Lacerated penetrating wound 2‑1/2 x 1‑1/2 c.m. in midline on back of abdomen 7 c.m. below the hip joint in middle. It was exit wound. The ocular account was furnished by Rashid Ahmad P. W.13 who was complainant of the case. He supported the version of the F.I.R. and stated that Wazir Ali was also member of the police party and on receipt of information from Shahbaz P.W.8 that three persons were busy in committing robbery on the bridge of Sem Nala who was also deprived of his belongings on which they went to the bridge of Sem Nala and were tired at by the accused. They also retaliated tiring in self‑defence. Wazir Ali, Constable was injured due to tiring of the accused and the accused made their escape good from the spot. Wazir Ali was removed to hospital where he succumbed to the injuries. Muhammad Shahbaz P.W.8 was the star witness of the prosecution case who stated that he was going to village Koreke on his motorcycle and on the bridge of Sem Nala three persons stopped him and out of them one was Muhammad Ali alias Shera (appellant) present in Court and the accused searched his person and took away his purse containing Rs.1,220 copy of identity card and also removed Seiko watch and golden ring. He was forced to sit near the bridge where other persons were already present who were also robbed by the accused. He managed to slip away and reached near the village Koreke and informed the police party and accompanied the police officials to the place of occurrence where cross‑firing was in progress and a Toyota Wagon came the from the side of Kotli Bawa. He saw the accused persons in the light of the Wagon. Wazir Ali, F.C. was injured in the firing who later on died. Masud Ahmad Bhatti Draftsman P. W.2 prepared the site plan of the place of occurrence. Nazir Ahmad P.W.3 had identified the dead body of Wazir Ali at the time of post‑mortem examination. Akhtar Ali, F.C. got conducted the post‑mortem examination and produced last‑worn clothes of the deceased before the Investigating Officer and attested the recovery memo. Exh.P.C. Syed Muhammad Hussain, S.‑I. P. W.7 on 30‑6‑1998 interrogated the appellant in the instant case and sent him in judicial lock‑up. Ehsan Ullah, F.C. was examined as P.W.9. He supported the prosecution story and stated that he was member of police party and on 18‑9‑1995 at 6‑16 p.m. one Noor Muhammad, driver stated that he had dropped three persons from his taxi and out of them one was Gulzar Ahmad alias Gulzari. He also stated that Shahbaz P.W.8 informed the police party about the accused persons busy in committing robbery and thereafter there was exchange of tiring and Wazir Ali was injured in the occurrence. Noor Muhammad P.W.11 who was taxi driver stated that the taxi was hired by accused Gulzar Ahmad alias Gulzari who took two persons in his taxi and all of them were dropped by him between village Julka and Koreke but he refused to identify Muhammad Ali alias Shera appellant. Muhammad Tufail P.W.12 was declared hostile and he stated that the accused had muffled their faces. The prosecution evidence was closed by tendering in evidence the report of Chemical Examiner Exh.P.J. and that of Serologist Exh.P.K. Statement of the appellant was recorded under section 342, Cr.P.C. He denied the allegation and claimed his innocence and false involvement. The trial culminated into conviction of the appellant who has challenged his conviction and sentence through Criminal Appeal No.114/J of 1999 while the trial Court has sent up Murder Reference No.244/T of 1999 for confirmation of death sentence. Both the matters are being decided by this single judgment. Learned counsel for the appellant has argued that the appellant was not known to any member of the police party or to Muhammad Shahbaz P.W.8. No description of the accused was given in the F.I.R. or in the statements of the P.Ws. recorded under section 161, Cr.P.C. Nothing was recovered from his possession and he is not connected with the commission of crime by any evidence. Therefore, he is entitled for the acquittal. Conversely, the appeal has been opposed by the learned State Counsel who has supported the impugned judgment. Heard. Record perused. It is admitted fact that the occurrence took place and Wazir Ali Constable succumbed to the injuries received by him during the occurrence, but none of the accused was nominated in the F.I.R. No description as particulars were given either in the F.I.R. or in the statements of any prosecution witness recorded under section 161, Cr.P.C. Muhammad Shahbaz P.W.8 who was star‑witness of the prosecution has stated that he knew the accused and he identified them in the light of the wagon but he did not know the names of the accused. Nothing has been brought on record that on what basis the appellant was found involved in the instant case. No recovery was effected from his possession. Even the weapon of offence or any article allegedly looted by the accused from Muhammad Shahbaz was not recovered from the appellant. According to Shahbaz P.W.8 many other persons were also looted by the accused but none of them was examined. Therefore, we find that no evidence has been brought on record by the prosecution to connect the appellant with the commission of murder of Wazir Ali or robbery and it was case of no evidence. The appellant was not nominated in the F. I. R., therefore, declaring him as proclaimed offender is no ground to connect him with the commission of crime, and the prosecution has failed to establish its case against the appellant. Therefore, Criminal Appeal No.114/J of 1999 is allowed. Conviction and sentence of the appellant is set aside. He be released forthwith if not required in any other case. Murder Reference No.244/T of 1999 is answered in negative. Appeal allowed. H.B.T./M‑1324/L