2011 PLP 1190 (SCMR)

ASIF SAEED KHAN KHOSA, J.

According to the prosecution Irshad Ahmed appellant had murdered one Shehzad Ahmed by giving blows on different parts of his body with a hatched and a chhurri at about 7-30 p.m. on 13-8-2001 in Chak No. 176 Murad, situated within the area of Police Station Dahranwala,, District Bahawalnagar and the said incident had been witnessed by Mukhtar Ahmed complainant and his brothers namely Shaukat Ali and Muhammad Rafiq. The motive stated for that murder was that the appellant suspected that Shehzad Ahmed deceased had spoken foul about the womenfolk of the former's family. F.I.R. No. 137 was lodged in respect of that occurrence by Mukhtar Ahmed complainant, the father of Shehzad Ahmed deceased, at Police Station Dahranwala, District Bahawalnagar at about 10-05 p.m. on 13-8-2001 for an offence under section 302, P.P.C. During the investigation the appellant was arrested and after completion of the investigation a Challan was submitted against him whereafter a full-dressed trial of the appellant took place. At the end of his trial the appellant was convicted for an offence under section 392(b), P.P.C. vide judgment dated 24-6-2002 rendered by the learned Additional Sessions Judge, Bahawalnagar and was sentenced to death and to pay a sum of Rs.50,000 to the heirs of Shehzad Ahmed deceased by way of compensation under section 544-A, Cr.P.C. or in default of payment thereof to undergo simple imprisonment for six months. The appellant challenged his conviction and sentence before the Lahore High Court, Bahawalpur Bench, Bahawalpur through Criminal Appeal No. 206 of 2002 which was heard along with Murder Reference No. 74 of 2002 seeking confirmation of the sentence of death passed by the learned trial Court against the appellant. Through the judgment dated 17-2-2006 the appeal filed by the appellant was dismissed by a learned Division Bench of the Lahore High Court, Bahawalpur Bench, Bahawalpur and the connected Murder Reference was answered in the affirmative. Hence, the present appeal by leave of this Court.

2. We have heard the learned counsel for the appellant and have gone through the record of this case with his assistance. It has been argued by the learned counsel for the appellant that the eye-witnesses produced by the prosecution were related and chance witnesses; the post-mortem examination of the dead body had been delayed for the purpose of cooking up a story of the prosecution and for planting eye-witnesses; the motive set up by the prosecution was vague and the same had remained far from being proved; two different weapons being used by the same culprit was an allegation which was hard to believe; and the investigation of this case showed that some critical aspects of the case had not been established by the prosecution. He has, therefore, submitted that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and, thus, he is entitled to be acquitted. None has appeared before this Court on behalf of the State despite notice and, therefore, we have ourselves gone through the entire record of this case with the assistance of the learned counsel for the appellant in order to satisfy our conscience.

3. The ocular account of the incident in issue had been provided before the learned trial Court by Mukhtar Ahmed complainant (P.W.1) and Shaukat Ali (P.W.2) and we have found that both the said witnesses were not only very closely related to Shehzad Ahmed deceased but they were also chance witnesses. Mukhtar Ahmed complainant (P.W.1) was the father of Shehzad Ahmed deceased whereas Shaukat Ali (P.W.2) was a brother of the complainant and a paternal uncle of the deceased. The occurrence in this case had taken place far away from the houses of the said witnesses and they had statedly seen the occurrence when they were in search of the deceased. We have found it to be quite strange that if the appellant had to murder the deceased then he did not have to wait for arrival of the said witnesses for starting infliction of injuries upon the deceased. It is also noticeable that despite their claimed presence at the scene of the crime at the relevant time the said eye-witnesses had not tried to stop the appellant from inflicting injuries upon the deceased especially when the appellant was not armed with any firearm to ward the said eye-witnesses off or to keep them away. The medical evidence provided by Dr. Muhammad Aslam (P.W.7) had shown that the murder of the deceased could have taken place at about midnight during the night between 13/14-8-2001 and not at about 07-30 p.m. on 13-8-2001 as asserted by the above mentioned witnesses. We have further observed that the post-mortem examination of the deadbody of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the deadbody conducted. There is also yet another factor available on the record which detracts from the veracity of the above mentioned eye-witnesses produced by the prosecution and that is that both the said witnesses had claimed that the hatchet stuck up by the appellant on the, head of the deceased had got stuck in his head and that hatchet was still stuck in the head of the deceased when the police had arrived at the spot. The statement made by Ghulam Mustafa S.-I. (P.W.8), the Investigating Officer, before the learned trial Court showed that upon his first visit to the spot he had found the deadbody of Shehzad Ahmed deceased at the place of occurrence and after preparing the Inquest Report the deadbody was sent by him to the mortuary for its post-mortem examination. The said investigating officer had said absolutely nothing about seeing any hatchet stuck in the head of the deadbody and even in the Inquest Report the Investigating Officer had said nothing about finding any hatchet stuck in the head of the deadbody. It is, however, strange that Dr. Muhammad Aslam (P.W.7) had stated before the learned trial Court that at the time of conducting the post-mortem examination he had taken a hatchet out of the head of the deadbody wherein it was found stuck at that time. The record further shows that it was a police officer who had subsequently produced that taken out hatchet before the Investigating Officer after the post-mortem examination of the deadbody.

4. All the factors mentioned above are available on the record of this case and in view of availability of such factors on the record we have remained unable to place implicit reliance upon the statements made by the eye-witnesses before the learned trial Court regarding witnessing the appellant implicating injuries upon Shehzad Ahmed deceased. We have further noticed that at the time of the alleged occurrence Irshad Ahmed appellant was a young lad and the motive set up by the prosecution was nothing but vague and unspecific. The said motive set up by the prosecution was not only disbelieved by the learned trial court but the same had also been discarded by the learned Division Bench of the Lahore High Court, Bahawalpur Bench, Bahawalpur. The record of this case also shows that Irshad Ahmed appellant and Shehzad Ahmed deceased were otherwise good friends and they were on visiting terms with each other and, thus, in the absence of any established motive there was no earthly reason for the appellant to do away with his friend.

5. For what has been discussed above a conclusion is unavoidable and irresistible that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant recorded and upheld by the learned courts below are set aside and the appellant is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case. M.H./I-3/SC Appeal allowed.