2014 PLP 1698 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Muhammad Rafique appellant was tried in case F.I.R. No.219 registered at Police Station Mandi Ahmed Abad, District Okara on 22-10-1995 for an offence under section 302(b), P.P.C. read with section 34, P.P.C. for the murder of one Mukhtar Ahmed allegedly committed at about 4-00/5-00 p.m. on 21-10-1995 within the area of the above mentioned Police Station. Vide judgment dated 17-11-1997 rendered by the learned Additional Sessions Judge, Okara, Camp at Depalpur the appellant was acquitted of the charge which acquittal had subsequently been reversed by a learned Division Bench of the Lahore High Court, Lahore upon acceptance of Criminal Appeal No.730 of 1997 filed by Falak Sher complainant. Hence, the present appeal before this Court.

2. In support of this appeal the learned counsel for the appellant has argued that the eye-witnesses produced by the prosecution were related and chance witnesses and the stated reason for their presence near the deceased at the relevant time had never been established on the record through any independent evidence; the F.I.R. had been lodged with an unexplained delay; no blood-stained earth had been collected from the place of occurrence; post-mortem examination of the deadbody of the deceased had been conducted with a noticeable delay; the motive set up by the prosecution had been ruled out of consideration by both the learned courts below; no weapon had been recovered from the custody of the appellant during the investigation; and the medical evidence contradicted the ocular account. With these submissions it has been maintained by the learned counsel for the appellant that the learned Division Bench of the Lahore High Court, Lahore was not justified in reversing the appellant's acquittal recorded by the learned trial Court. As against that the learned Additional Prosecutor-General, Punjab appearing for the State has supported the impugned judgment passed by the Lahore High Court, Lahore but he was confronted with the fact that before the Lahore High Court, Lahore the learned counsel for the State appearing at the time of hearing of the complainant's appeal had refused to support the said appeal filed against the appellant's acquittal by the learned trial Court.

3. After hearing the learned counsel for the parties and going through the record we have straightaway observed that the ocular account of the incident in issue had been furnished before the learned trial Court by two eye-witnesses namely Falak Sher complainant (P.W.6) and Abdul Razzaq (P.W.7) who were both related and chance witnesses. Falak Sher complainant (P.W.6) was the father of Mukhtar Ahmed deceased and Abdul Razzaq (P.W.7) was a brother-in-law of the said deceased. Both the said eye-witnesses had claimed that although they lived about one kilometer away from the scene of the crime yet they were present near the spot because they were working as labourers at a project regarding construction of the banks of Kanda Minor at the relevant time which project was being undertaken quite close to the place of occurrence. Before the learned trial Court the said eye-witnesses had utterly failed to establish the stated reason for their presence near the place of occurrence at the relevant time masmuch as they had failed to give any detail of the project in issue and they did not even know the name of the contractor who had hired them as labourers for the purpose. We have noticed that although in the rough site-plan of the place of occurrence prepared by the Investigating Officer an under construction project and the Kanda Minor had been shown near the place of occurrence yet in the formal site-plan of the place of occurrence prepared by a Patwari no such Kanda Minor or the under construction project were shown anywhere close to the place of occurrence. It is an admitted position that no blood-stained earth had been collected from the stated place of occurrence and also that the F.I.R. had been lodged with a noticeable delay and post-mortem examination of the deadbody had also been conducted with significant delay in the following afternoon. All these factors had pointed towards a real possibility that the murder in issue had remained unwitnessed and time had been consumed by the local police in procuring and planting eye-witnesses and in cooking up a story for the prosecution. As if this were not enough the record of the case shows that the related and chance eye-witnesses produced by the prosecution had failed to receive any independent corroboration or support. The motive set up by the prosecution had been ruled out of consideration by both the learned courts below. Although a fire-arm had allegedly been recovered from the custody of the appellant during the investigation yet in the absence of any crime empty such recovery of a firearm was legally inconsequential. According to the medical evidence the firearm injury received by the deceased had blackening around it whereas according to the site-plan of the place of occurrence statedly prepared at the instance of the eye-witnesses a shot at the deceased had been fired from a distance of about eleven feet.

4. For the reasons mentioned above we have found that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and the learned trial Court was quite justified in acquitting him of the charge by extending the benefit of doubt to him. The necessary consequence of such a conclusion reached by us is that the impugned judgment passed by the learned Division Bench of the Lahore High Court, Lahore is unsustainable and it is declared as such. This appeal is, therefore, allowed, the conviction and sentence of the appellant recorded by the learned Division Bench of the Lahore High Court, Lahore through the impugned judgment are set aside and he 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. MWA/M-37/SC Appeal allowed.