1998 PLP 1262 (SCMR)

SH. IJAZ NISAR, J.

This appeal through leave of the Court is directed against the judgment dated 14-7-1993, passed by the Lahore High Court, whereby the appeal filed by Khalid Shah alias Thoain Shah, appellant herein,, against his conviction, under section 302/34, P.P.C., was dismissed 'and the sentence of imprisonment for life plus fine and compensation, as awarded by the learned trial Court vide judgment dated 27-5-1991 was maintained.

2. Leave to appeal was granted to the appellant vide order, dated 15-6-1994, for re-appraisal of evidence to find out whether evidence on record was sufficient for maintaining conviction of the appellant under section 302/34, P.P.C. in the absence of any fatal injury attributed to him.

3. The appellant was tried under section 302/34, P.P.C. alongwith Muhammad Aamer alias Aameri, Waqas Manzoor (absconders) and an unidentified person, for committing the murders of Aziz Nabi and Farooq Akram Butt deceased, in furtherance of their common intention, with fire arms on 18-6-1989 at 4-30 p.m. in the arrea of village Ugowal, District Gujrat. The matter was reported to the police by Farooq Akram Butt deceased himself in the injured condition while admitted in the hospital. As per his statement recorded on the same day, in the evening, by Muhammad Ashraf S.H.O., he alongwith Aziz Nabi deceased was proceeding on a motorcycle to mouza Jandala to witness a fare, and when they reached the old Bhimber Road, in the Revenue estate of village Ugowal, from the opposite direction came Khalid Shah alias Thoain Shah appellant alongwith co-accused Aamer alias Aarnei and Waqas on two motorcycles. Waqas raised a Lalkara that the abovenamed deceased persons be not let live. Aameri fired with his carbine at Aziz Nabi deceased which hit on his right eye, who fell down and died at the spot. Thereafter, Waqas fired repeated shots at Farooq Akram Butt, which hit on his head, lower part of his stomach, his left leg and other parts of the body. Khalid Shah appellant and the unidentified assailant kept on raising Lalkaras and firing in the air with their pistols. In the meantime, Bashir Ahmad and Noor Din P.Ws., came and witnessed the occurrence. After the occurrence, the accused persons decamped on their motorcycles. The motive for the occurrence was that 8/9 days before the occurrence, Farooq Akram Butt and Aziz Nabi deceased had an altercation with Waqas and others, which led to the incident.

4. A thorough search was conducted for the arrest of Muhammad Aamir alias Aameri, Waqas Manzoor and the third accused, but the police succeeded to arrest Khalid Shah alias Thoain Shah appellant only, who was sent up for trial alone. After recording the evidence of Bashir Ahmad P.W.5 (eye-witness) and Shoaib Akram Butt P.W.10, about the motive, and of the other formal witnesses, the learned trial Court convicted the appellant under section 302/34, P.P.C. and sentenced him to, imprisonment for life with a fine of Rs.20,000, or in. default to undergo 2 years imprisonment, with a further direction to pay Rs.20,000 as compensation to the legal heirs of the deceased.

5. The convict appellant appealed to the High Court. Hafiz Ghulam Nabi, father of Aziz Nabi deceased, also filed a revision petition for enhancement of sentence. The learned Single Judge, vide judgment dated 14-7-1993, dismissed the appeal as well as the revision petition.

6. It is contended by the learned counsel for the appellant that the appellant is not named in the F.I.R., nor any effective role is attributed to him. He was merely alleged to have fired to scare away the witnesses. In the F.I.R. only one Thoain Shah is mentioned, and the prosecution had failed to establish that he was the present appellant, nor was any identification parade held after his arrest, which was essential in view of the statement of Bashir Ahmad P.W.5, who denied any acquaintance with the appellant prior to the occurrence. It is further contended that no motive whatsoever was attributed to the appellant.

7. From the perusal of F.I.R. and the statements of Bashir Ahmad P.W.5 and Shoaib Akram P.W.10, the above assertions stand fully borne out.

8. The prosecution has failed to link the appellant with the motive, the quarrel which is said to have led to this occurrence was between the two deceased and the absconding accused, namely, Waqas etc. No connection between the appellant and the absconding accused is shown, nor was the appellant alleged to be even present at the time of the said incident. From the sequence of events, as narrated by Farooq Akram_ deceased in the F.I.R., it appears that the eye-witness namely Bashir Ahmad P.W.5 had reached the spot after injuries had been caused to the deceased persons. The admission of Bashir Ahmad P.W,, that he did not know the appellant earlier coupled with the fact that the latter is not specifically mentioned in the F.I.R. makes the prosecution case highly doubtful. There is no corroboratory circumstance, for no incriminating recovery was effected from the appellant. To exclude, any chance of false implication, holding of identification parade is essential in the cases where the name and other particulars of accused are not mentioned and instead his nick-name is mentioned only. In the absence of such a test prosecution is required to show that the accused was generally down by that name. No community of interest between the appellant and the absconding accused has been brought on record showing that Khalid Shah appellant could share the common intention with them in doing away with the deceased

9. For the foregoing reasons, the prosecution has failed to bring home guilt to the appellant beyond shadow of doubt. Accordingly, we accept his appeal, set aside his conviction and sentence and acquit him of the charge by giving him the benefit of doubt. He shall be released forthwith, provided he is not required in any other case. N.H.Q./K-15/S Appeal accepted.