2018 PLP 326 (SCMR)

MANZOOR AHMAD MALIK, J.

Crl. M. A. No. 653-L of 2009: For reasons mentioned in the application, the same is allowed and delay in filing the criminal appeal is condoned.

2. Appellant Zafar along with his co-accused Liaqat was indicted to face trial in case FIR No. 259 dated 03.09.1999, offence under sections 302, 449, 34, P.P.C., registered at Police Station Kassoke, Hafizabad. The learned trial Court, after a full-fledged trial, vide judgment dated 30.01.2002 convicted the appellant under section 302(b), P.P.C. and sentenced him to imprisonment for life. Benefit of section 382-B, Code of Criminal Procedure was extended to him. Co-accused Liaqat was, however, acquitted by the learned trial Court by giving him the benefit of doubt. The appellant filed criminal appeal against his conviction/sentence before the learned High Court, whereas the complainant filed criminal revision for enhancement of sentence of appellant from life imprisonment to death. Both the matters were heard together by the learned High Court, and vide the impugned judgment, the appeal filed by the appellant was dismissed, whereas while accepting the criminal revision of complainant, the sentence of imprisonment for life awarded to the appellant by the learned trial Court was enhanced to death. Hence, the instant direct appeal.

3. Briefly stated the facts of the case as enumerated in the FIR (Ex.PD) are that on 03.09.1999, complainant was sleeping on the roof of his house. His father Ali Akbar was sleeping in the courtyard of adjacent Haveli. Electric bulb was on At 3.00 a.m., his sleep was disturbed by some noise. He woke up and saw appellant Zafar armed with a kassi, Liaqat armed with a hatchet and three unknown persons standing near the cot of his father. Zafar pointed out his father and gave two blows of kassi on the head and right side of neck of Ali Akbar (deceased), Liaqat gave several blows on the chest and left arm of deceased whereas the unknown persons who were also armed with hatchets gave several blows on the person of deceased with their respective weapons which hit Ali Akbar on his back, below the left shoulder, between the fingers of left hand and other parts of body. On hearing complainant's hue and cry, Riaz and Umer Daraz who were also sleeping nearby came there and on their lalkara the accused fled away towards the east. The complainant has further said in the FIR that he and PWs witnessed the whole occurrence. Ali Akbar succumbed to the injuries at the spot.

4. We have heard learned counsel for the parties at some length and have perused the available record with their assistance.

5. It has been observed by us that the occurrence in this case as per prosecution took place on 03.09.1999 at 3.00 a.m. (later half of night) and the matter was reported to the police on the same day at 8.30 a.m. i.e. after five hours and thirty minutes of the occurrence. The distance between the place of occurrence and the police station is 09 miles. The postmortem on the dead body of deceased was conducted on the same day at 2.00 p.m. i.e. after 11 hours of the occurrence. No explanation whatsoever has been given by the complainant Shahadat Ali (PW5) and Umer Daraz (PW6) in the FIR or while appearing before the learned trial Court qua the delay in lodging the FIR or for that matter the belated postmortem of the deceased.

6. Complainant Shahadat Ali stated in the FIR and before the learned trial Court that he along with his brother Umer Daraz and Riaz (husband of his sister) witnessed the occurrence. Having gone through the statements of Shahadat Ali (PW5) and Umer Daraz (PW6), it has been observed by us that there are certain material contradictions in their statements. Shahadat Ali has alleged in the FIR that appellant committed the murder of his father along with Liaqat acquitted co-accused and three unknown persons. But while appearing before the learned trial Court as PW5, he did not mention the presence of the three unknown persons at the place of occurrence in his examination-in-chief and has just attributed injuries on the person of deceased to present appellant and the acquitted co-accused Liaqat. Umer Daraz (PW6) while appearing before the learned trial Court did state that appellant was present along with Liaqat acquitted co-accused and three unknown persons, but interestingly he did not attribute any injury to any of the unknown persons rather he stated that after the appellant gave kassi blows to deceased, Liaqat accused hit with his hatchet on the arm and chest of the deceased and that he hit him many times on the different parts of his body. Shahadat Ali (PW5)/complainant stated in his examination-in-chief that at 6.00/7.00 a.m., he went to the police station. Umer Daraz (PW6) stated before the learned trial Court that at about 8.00 a.m. police visited the place of occurrence. He (PW6) did not mention at all that he also accompanied the complainant to the police station. Ijaz Ahmad (PW14) who was the investigating officer of the case stated in his cross-examination that when the complainant came to him for lodging the FIR, he was accompanied by both the eye-witnesses and that at 9.00/9.15 a.m. he reached at the place of occurrence.

7. The conduct of the witnesses of ocular account also deserves some attention. According to complainant, he along with Umer Daraz and Riaz (given up PW) witnessed the whole occurrence when their father was being murdered. It is against the normal human conduct that the complainant, Umder Daraz and Riaz (PW since given up) did not make even an abortive attempt to catch hold of the appellant and his co-accused particularly when the complainant himself has stated in the FIR and before the learned trial Court that when they raised alarm, the accused fled away. Had they been present at the relevant time, they would not have waited for the murder of their deceased father and would have raised alarm the moment they saw the appellant and his co-accused standing near the cot of their father.

8. Coming to the medical evidence, we have noted that Dr. Khalid Farooq (PW11) observed 12 injuries on the person of deceased during the postmortem examination. The complainant has alleged in the FIR and before the learned trial Court that Zafar appellant gave kassi blows at the head and neck of his father, therefore, injuries Nos. 1 to 4 at the maximum can be attributed to the appellant, whereas, the allegation against his co-accused Liaqat was that he gave several hatchet blows on the chest and left arm of deceased, therefore, injuries Nos. 8 and 11 can be attributed to him. In the FIR, the complainant alleged that three unknown persons also gave hatchet blows on various parts of body of his deceased father but while appearing before the learned trial Court he totally skipped the presence of those unknown persons. Although Umer Daraz (PW6) stated before the learned trial Court that three unknown persons were present, but he did not say that any of them gave any hatchet blow to his deceased father. Besides, the co-accused of the appellant Liaqat was acquitted by the learned trial Court on the same set of evidence which has been believed qua the role of the appellant. Neither the complainant nor the State preferred any appeal against the acquittal of Liaqat co-accused. In these circumstances, when the injuries on the person of deceased qua Liaqat acquitted co-accused of the appellant have been disbelieved by the learned trial Court and the prosecution felt content with his acquittal, how come the role to the extent of appellant in absence of any strong and independent corroboration can be believed?

9. We have also observed that the complainant has alleged a specific motive in the FIR and before the learned trial Court that his deceased father employed the appellant and gave him some advance money but he ran away. Thereafter, his father forcibly brought him back and insulted him. On account of this grudge, the appellant along with his co-accused committed the murder of his father. In his cross-examination, the complainant stated that the advance amount of Rs. 25000/- was not given by his father in his presence nor any written document was executed in this regard. Similarly, Umer Daraz (PW6) is also silent about this fact. Moreover, both the PWs have not mentioned in their statements before the learned trial Court the names of those persons before whom the deceased had insulted the appellant nor any one from the village has been produced by the prosecution to substantiate this allegation.

10. So far as recovery of kassi at the instance of appellant is concerned, we have observed that the appellant was arrested on 11.05.2001 i.e. after more than one year and eight months of the occurrence and on his disclosure Kassi (P1) was recovered. It has been stated by Muhammad Afzal, ASI (PW2) that the said Kassi was bloodstained and rusty. Therefore, this evidence is of no help to the prosecution. It has also come on record that appellant remained absconder for a considerable period of time and proceedings under sections 87/88 Code of Criminal Procedure were initiated against him. Since the warrants of arrest, proclamation and reports of the process server thereon were not put to him in his statement recorded under section 342, Code of Criminal Procedure, therefore, the evidence of abscondance cannot give any support to the prosecution case.

11. Having discussed all the aforesaid aspects of the case, it has been observed by us that medical evidence, motive, recovery and for that matter abscondance of appellant are merely supportive/corroborative pieces of evidence and when the presence of the eye-witnesses at the place of occurrence at the relevant time has been found by us to be doubtful, no reliance can be placed on the supportive/corroborative pieces of evidence to convict the appellant on a capital charge. In these circumstances, we are of the considered view that prosecution has utterly failed to prove its case against the appellant beyond any shadow of doubt. In this backdrop, we hold that the findings of guilt recorded by the learned Courts below against the appellant are not based on the proper appreciation of evidence in accordance with the settled principles for appraisal/reappraisal of evidence.

12. These are the detailed reasons for our short order of even date which is reproduced hereinbelow:- "Crl. M. A. No. 653-L of 2009: For reasons mentioned in the application, the same is allowed and delay in filing the criminal appeal is condoned.

2. For detailed reasons to follow, this criminal appeal is allowed. The impugned judgments of the learned Courts below are set aside and the appellant Zafar son of Muhammad is acquitted of the charge against him. He shall be released forthwith if not required to be detained in any other case." MWA/Z-1/SC Appeal allowed.