2010 SCMR 1122 (PLP)

RAHMAT HUSSAIN JAFFERI, J.-- The appellant Muhammad Arif along with other accused persons armed with firearm weapons alleged to have committed Qatl-i-amd of deceased Sana Ullah, when he (tile deceased) along with the complainant Muhammad Nazir (P.W.1), Riasat Ali (P.W.7) and Muhammad Ashraf (given up P.W.) reached in a street near the house of Fazal Ahmed Hajjam in village Thattah Hasat on 16-7-1996 at 6-30 a.m. It is alleged that when the deceased and the P.Ws. reached at the place of incident, the appellant and other accused persons came armed from behind, on a Lalkara raised by Mst. Ruqia Begum. On seeking the accused persons armed with deadly weapons, the complainant and P.Ws. started running, but the appellant and his co-accused fired shots from their weapons at the deceased. The complainant and P.Ws. took protection in the house of Ghulam Rasool. After commission of the crime the accused persons ran away. The complainant and P.Ws. came out from the house and found the deceased lying dead.

2. The motive behind the incident was that about 3/4 years prior to the incident of the present case the accused party got an abduction case registered against the complainant and others but the same was cancelled. Thereafter the accused party got a murder case registered against the complainant and others in which the complainant was convicted and sentenced to imprisonment for life, whereas the other co-accused were acquitted. The complainant filed appeal before the High Court and he was released on bail. Further about 1-1/2 years prior to the incident, the accused party committed the murder of one Naseer Ahmed of the complainant party in which the deceased was the complainant. Hence the incident.

3. At the trial, the prosecution examined the complainant Muhammad Nazir (P.W.1) and Riasat Ali (P.W.7). They gave the same details of the incident, as mentioned above. In the F.I.R. and in the deposition, they alleged that the complainant was armed with 8mm rifle. Both the Courts below relied upon the ocular testimony and considered empty of 8mm rifle secured from the place of incident, as corroborative evidence, therefore, convicted the appellant for the offences punishable under section 302(b)/149 and 148, P.P.C. and sentenced him to imprisonment for life as also fine of Rs.100,000, as compensation to be paid to the legal heirs of the deceased or in default thereof to undergo three years imprisonment with benefit of section 382-B, Cr.P.C. The appeal filed Lahore High Court, Lahore failed under the impugned judgment dated 13-10-2006. Hence, the appellant has filed the present appeal by leave of the Court.

4. It is pointed out that the trial Court framed the charge against the appellant and four other accused persons, but during the trial the said accused persons absconded, hence the trial was conducted only in respect of the appellant.

5. Having heard the learned counsel for the appellant, the learned Deputy Prosecutor General, Punjab and perusing the record of the case, we find that both the witnesses viz. P.W.1 and P.W.7 are not only inter se related but related to the deceased also. There is recorded enmity between the parties; as a result of which murders from both the sides were committed. In one case, the complainant was convicted and sentenced to imprisonment for life. The said case appears to be still pending before Lahore High Court, Lahore. As such both these witnesses are interested, hostile and inimical to the appellant, therefore, their evidence requires corroboration.

6. In the facts and circumstances of the case, it appears highly improbable for the witnesses to have specified the weapons carried by each accused person by specifically mentioning that the accused were carrying 7mm, 8mm, .222 rifles and .12 bore guns. From the evidence it appears that as soon as the accused came out from the house, they started firing but the complainant and P.W. started running to save their lives. Therefore, in such state of affairs, it does not appeal to common sense that they would have been in a position to distinguish and specify the weapons carried by each accused person. It is also clear from the evidence that the general allegations have been levelled against the appellant along with other accused persons, as such it is also not known as to whether firearm shot fired by the appellant had hit the deceased. The medical evidence also does not help in specifying weapons used for causing the injuries; therefore, the recovery of empty of 8mm rifle creates serious doubt in connecting the appellant with the commission of crime. As such there is no corroborative evidence to the ocular testimony which requires strong and independent corroboration being interested and hostile, therefore, it is very unsafe to rely upon such evidence.

7. The appeal is barred by 619 days. The appellant has filed an application for condoning the delay. The grounds mentioned in the application are sufficient and reasonable for condoning the delay; therefore, the delay is condoned.

8. After considering the material available on record, we are of the considered view that the prosecution has failed to prove its case against the appellant beyond any reasonable doubt. As such he is entitled to the benefit of the doubt, which was accordingly given to him while passing short order dated 11-1-2010. These are the reasons of said short order, which reads as under: "For the reasons to be receded later on, while accepting the appeal of the appellant, his conviction and sentences, recorded by the Courts below, are set aside. He is acquitted of the charges and be released forthwith, if not required in any other case." N.H.Q./M-15/SC Appeal accepted.