2008 PLP 460 (MLD)

MUHAMMAD FARRUKH MAHMUD, J.

This judgment will dispose of Criminal Appeal No.1003 of 2002 filed by Nadim Akbar, who, along with Ghulam Rasool and Ehsan Ullah, faced trial in case F.I.R. No.29, registered at Police Station Jalalpur Jattan, District Gujrat, on 16-1-2001, for offences under section 302, P.P.C., before learned Additional Sessions Judge, Gujrat, who after conclusion of trial, vide his judgment, dated 14-6-2002, while acquitting Ghulam Rasool and Ehsan Ullah, convicted the appellant under section 302, P.P.C. and sentenced him to Death with compensation of Rs.1,00,000.

2. A Murder Reference No.360 of 2004 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.

3. Brief facts of the case as mentioned in the F.I.R. are that on the fateful day at about 6-30 p.m., while the complainant was present at his house, he was informed by Yaqoob that Ehsan Ullah (son of the complainant who used to sell milk) having fire-arm injuries on his right flank and left wrist was lying in serious injured condition on the way leading from Lambray to Sarai Dheng. The complainant along with his son Allah Ditta, Zakir, Nazir Ahmad and Bashir Ahmad reached the spot and found Ehasn Ullah in serious injured condition, who was shifted to ABS Hospital, Gujrat, where the injured succumbed to the injuries after few minutes. No suspicion has been shown against any one in the F.I.R.

4. After registration of formal F.I.R., the investigation of the case was taken over by Muhammad Safdar, S.-I./P.W.12, who conducted thorough investigation, arrested the accused and after effecting recovery of pistol P.1. at the instance of Nadim Akbar, sent the accused to face trial.

5. At the trial, the prosecution in order to prove its case produced 14 witnesses in all and after tendering in evidence the reports of Chemical Examiner Exh. PK and that of Serologist Exh. PL closed its case. The accused in their statements recorded under section 342, Cr.P.C. pleaded their innocence and false implication. They did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial, the learned trial Court, while acquitting Ghulam Rasool and Ehsan Ullah, convicted and sentenced the appellant as stated above.

6. The learned counsel for the appellant after having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. and other relevant material available on record in support of this appeal has contended that the evidence of dying declaration is nothing but padding; that it was an un-witnessed occurrence; and that the appellant has been convicted wrongly on the basis of insufficient evidence.

7. On the other hand, the learned Additional Prosecutor General, while vehemently opposing this appeal, submits that Allah Ditta is trustworthy witness, who had no motive against the appellant to falsely implicate him and his statement is supported by the medical evidence and circumstances of the case. He supports the judgment passed by the learned trial Court.

8. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely.

9. The occurrence took place at 6-30 p.m. The matter was reported to Muhammad Safdar, S.-I. at ABS Hospital, Gujrat at 9-00 p.m. by Muhammad Khan, father of the deceased Ehsan Ullah. According to F.I.R., the complainant was present in his house along with his other family members when at 6-30 p.m. Yaqoob reached his house and informed him that Ehsan Ullah was lying injured on kacha Road between Lambray to Sarai Dheng, who had received fire-arm injuries. After receipt of information the complainant along with his son Allah Ditta P.W.1, Zakir, Nazir Ahmad and Bashir Ahmad reached the spot and shifted Ehsan Ullah to ABS Hospital, Gujrat, who lost his life within few minutes. No suspicion was laid against any person.

10. During trial Allah Ditta P.W.1 stated that while Ehsan Ullah was being taken to ABS Hospital, Gujrat, he informed him that he had a dispute with accused Ehsan Ullah, Ghulam Rasool (both acquitted) and Nadim Akbar-appellant; and they had fired at him with common intention. Ehsan Ullah further informed this P.W. that he was fired at by Nadim Akbar-appellant. Allah Ditta P.W. admitted that his father Muhammad Khan remained with him up to the Hospital. Muhammad Khan, father of the deceased and P.W. Allah Ditta, appeared before the learned trial Court as P.W.6. He did not state a word that his deceased son while alive had stated to Allah Ditta or to him that he had dispute with the accused and for that reason Nadim Akbar fired at him. After stating in accordance with F.I.R., Muhammad Khan added that later on he came to know that his son was murdered by accused Ehsan Ullah, Nadim and Ghulam Rasool. Neither he stated that it was disclosed to him by Ehsan Ullah-deceased himself nor he specified that it was Nadim Akbar who had fired at his son. As noted above, after receipt of information that Ehsan Ullah was lying injured, Muhammad Khan along with Allah Ditta and other P.Ws. had reached the spot and Muhammad Khan remained present with his son, which was very natural, till shifting to Hospital and his death. If Ehsan Ullah had made any statement then Muhammad Khan must have stated accordingly in the F.I.R., but on the contrary Muhammad Khan who was 70 years old person, could not be persuaded to tell lies in the Court and he did not state that his son had informed him that Ehsan Ullah, Ghulam Rasool and Nadim Akbar had caused injuries to him. It is apparent that additional statement of Muhammad Khan that afterward he came to know that his son had been murdered by the accused was made only under pressure of other family members, but the old man remained firm and did not level charge of murder specifically against the appellant or acquitted accused. In these circumstances, no reliance can be placed on the story put forward by Allah Ditta.

11. The prosecution also introduced the evidence that the deceased having been last seen in the company of the accused. In support of this evidence Abdul Ralf P. W.2 and Muhammad Riaz P. W.3 were produced. Both were cousins of the deceased and Allah Ditta P.W. According to them they had seen the deceased and the accused together at about 6-00 p.m. They came to know about the injuries caused to Ehsan Ullah by 6-30 p.m. yet they did not inform the police or the complainant till next, date. P.W.2 stated that Ehsan was having a cycle with him while P.W.3 did not state anything about cycle. Both of them admitted that their statements were not recorded by the Investigating Officer. No independent witness had seen the deceased in the company of the accused. Obviously this evidence was cooked up to strengthen the case and no reliance can be placed upon it.

12. As far as the motive is concerned, according to Muhammad Khan he had heard that 5/6 days before the occurrence some quarrel had taken placed between the accused and the deceased. He was duly confronted with the contents of F.I.R. wherein no suspicion was laid against any one. The name of the person from whom to P.W. had heard about the quarrel was not disclosed neither that said person was produced before the learned trial Court. This evidence being hearsay is inadmissible. Similarly Allah Ditta did justify as to what was the dispute between the deceased and the accused. He never stated about any quarrel having been taken place between the deceased and the accused 4/5 days prior to the occurrence.

13. Akbar, Ali P.W.7 did not support the evidence of extra judicial confession, which was allegedly, jointly made by all the accused.

14. The recovery of pistol at the instance of Nadim Akbar-appellant is of no consequence, as neither any empty was recovered from the spot nor the pistol was sent to the Forensic Science Laboratory to establish whether it was in working order or not. Furthermore, no independent witness was produced before the learned trial Court to prove the recovery.

15. As far as the medical evidence is concerned, it does not lead towards the assailants.

16. In the above noted circumstances, we have concluded that the prosecution case is not free from doubt. Hence, while extending benefit of doubt in favour of Nadim Akbar-appellant, we allow this appeal, set aside the impugned judgment and acquit the appellant of all the charges. He would be released forthwith, if not required in any other case.

17. As a consequence thereof, Murder Reference is answered in the negative and the sentence of death is not confirmed. N.H.Q./N-16/L Appeal accepted.