1996 P Cr (PLP)

8. The statement of Mohsin Ali Raza (P.W.4) who is real brother of the deceased is that on the day of occurrence at about 8‑45/9‑00 p.m. he reached near the drawing room of Muhammad Hussain and saw Muhammad Ashraf alias Kalia, Sohail Kamran and Zakki Shah accused standing there. His brother Hassan Ali Rata deceased was also with them. On his query, his brother had told him that he would return after a walk with his afore‑referred friends. Shahid Raza (P.W.5) is yet another witness of last seen evidence. He stated that he saw Sohail Kamran, Zakki Shah and Muhammad Ashraf alias Kalia accused near the shop of cigarettes. Hassan Ali Raza deceased was also with them. According to him, he heard Muhammad Ashraf alias Kalia accused demanding Rs.1,500 from Hassan Ali Raza deceased. Wazir Hussain (P.W.6) stated that on the fateful evening when he reached near the Baithak of Dr. Junejo, near the railway ground, he saw Sohail Kamran, Muhammad Ashraf alias Kalia and Zakki Shah accused running. Faiz P.W. tried to stop them but the accused threatened him not to come near them otherwise he would be murdered.

9. Coming to the evidence of extra‑judicial confession, the statement of Ghulam Raza (P.W.2) is to the effect that on 24‑4‑1991 when he was sitting in his house alongwith Syed Jamal Rais Rahim Bakhsh, Muhammad Ashraf alias Kalia came to him. He disclosed that Hassan Ali Raza deceased was his fast friend and he owed Rs.1,500 to Zakki accused. He confessed that he alongwith other co‑accused conspired to murder Hassan Ali Raza on account of non payment of Rs.1,

500. His statement was sought to be corroborated by Ghulam Sarwar (P.W.7) who stated that Zakki Shah accused came to him when he was sitting with Mukhtar Hussain and made a confession that he alongwith other co accused had committed the murder of Hassan Ali Raza deceased as he had not returned Rs.1,500 to him. Fida Hussain (P.W.8) is yet another witness of extra judicial confession but with regard to Sohail Kamran accused only who stands acquitted. Syed Muhammad Jamal (P.W.9) corroborated the statement of Ghulam Raza (P.W.2) qua the extra‑judicial confession of Muhammad Ashraf alias Kalia accused/appellant.

10. The post‑mortem examination of Hassan Ali Raza deceased was conducted by Dr. Muhammad Suleman (P.W.12) who found the following injuries on his person:‑‑ "(1) Circular wound inverted margin 1 x 1 c.m. on the left chest enteriorly 3 c.m. below of left nipple in mid claveicular line. (2) Circular fire‑arm wound with inverted margin with blackening and burning at the level of 11th inter-costal space 2 c.m. posterior to right axillary line. (3) A fire‑arm wound irregular margin splitting ear pina into two halfs entering 1/2 c.m. above left external auditary meatus. There is blackening burning and charing of the wound margins. (4) A lacerated wound (exit wound) 2‑1/2 c.m. x 1‑1/2 c.m. on the right tempro prital region, bleeding with fracture of skull present 8 c.m. above right external ear. (5) A circular wound 1‑1/2 x 1 c.m. below right nipple everted margin (6) A circular wound 1 x 1 c.m. with blackening and tattooing on the back of left chest at the level of 6th rib to 10 c.m. away from vertibral column (exact wound). (7) A fire‑arm entry wound 1‑1/2 c.m. x 1/2 c.m. inverted margin with blackening on interior surface left arm 8 c.m. above left elbow joint. (8) An exit wound 2 c.m. x 1‑1/2 c.m. inverted margin on the interior surface of left arm close to injury No.7 slightly on middle side. (9) An entry wound 1‑1/2 c.m. x 1‑1/2 c.m. on the upper edge of left sternomastoid muscle. (10) An exit wound with inverted margin oval shape 2 c.m. x 1‑1/2 c.m. on the upper end of right sternomastoid muscle. (11) An oval fire‑arm wound 1‑1/2 c.m. x 1 c.m. inverted margin on the lateral aspect of left thigh 9 c.m. below left hip joint. Blackening present. (12) An exit wound 2 c.m. x 1‑1/2 c.m. on the posterior surface of left thigh 13 c. m. below left hip joint. Margins everted." According to him the cause of death were injuries Nos.2, 3 and 6 which led to shock and haemorrhage and ultimate death.

11. The accused when examined under section 342, Cr.P.C. denied the prosecution story and attributed false implication to enmity.

12. The learned counsel for the appellant, in support of his appeal, raised the following points:‑‑ (i) That in the F.I.R. (Exh.P.G./1), the complainant had suspected that Anjuman Sipah‑e‑Sahaba is involved in the murder of his son but the Investigating Officer did not make any investigation on this aspect; (ii) that the report of the Fire‑arm Expert is contradictory with regard to the confession made by the accused. According to Exh.P.S., the crime empty of .30 bore pistol (marked as C.1) was fired from pistol (P.1). The crime empties of .30 bore pistol (marked as C.2 to C.6) were fired from .30 bore pistol (marked as P.2). The pistols P.1 and P.2 were allegedly recovered from Muhammad Ashraf accused whereas according to the confessional statement, three fire‑arms were fired by Sohail Kamran and three fires were made by Muhammad Ashraf at the person of Hassan Ali Raza deceased; (iii) the evidence of "last seen" is repellent to common sense. It is strange as to why Shaukat Ali, Mohsin Ali and Shahid Raza (P.W.) who had allegedly seen the deceased alongwith the accused on the preceding night did not inform the complainant till 11‑00 a.m. the next day when the dead body had already been recovered and despatched; (iv) the manner in which the accused Muhammad Ashraf had allegedly made extra‑judicial confession before Ghulam Raza (P. W.2) father of the deceased is not believable. Strangely enough all the accused allegedly made confessional statements before different persons on the same day and near about the same time.

13. Learned counsel for the State has defended the impugned judgment. As according to him it is a case of circumstantial evidence and the prosecution case stands proved beyond a shadow of doubt.

14. We have gone through the evidence with the assistance of the learned counsel for the parties and have given anxious thoughts to the arguments addressed at the bar.

15. The evidence of last seen furnished by P.W.4 Mohsin Ali Raza (brother of the deceased) and Shahid Raza does not appeal to common sense. For instance 13 PWA in his cross‑examination admits that when the police took the dead body of Hassan Ali Raza deceased to the hospital about 400/500 persons had gathered there and till the arrival of the police he did not narrate the story that he had seen the accused persons with Hassan Ali Raza deceased on the preceding night at about 9‑00 p.m. Similarly even P.W.5 Shahid Raza did not inform the father of Hassan Ali Raza deceased i.e. P.W.2 about his having last seen the deceased in the company of the accused. The withholding of this important piece of evidence by P.Ws.4 and 5 from the complainant (P.W.2) would make their having seen the deceased in the company of the accused rather doubtful.

16. The manner in which the extra judicial confession was allegedly made by Muhammad Ashraf alias Kalia accused/appellant is repellent to common sense. It is in evidence that after the murder, raids were being conducted for the arrest of Muhammad Ashraf accused. No sane person would go to the father of deceased within four days of the occurrence and make a confession that he had murdered his son i.e. Hassan Ali Raza. There was absolutely no occasion for him to adopt such a course.

17. The evidence of crime empties having been recovered from the place of occurrence is also not free from doubt. Those empties do not tend any mention in the F.I.R. Even in the Police Zimnis the recovery of empties from the place of occurrence has not been mentioned and this is borne out from the statement of P.W.13 Muhamnmad Mushtaq Inspector.

18. It is in evidence that Muhammad Ashraf alias Kalia accused remained in police custody from 24‑4‑1991 to 7‑5‑1991. Surprisingly no recovery could be effected during this period. The recovery of pistols (P.1) and (P.5) from him on 7‑5‑1991 is rather doubtful.

19. For what has been discussed above, we are of the considered view that the prosecution has failed to establish the case against Muhammad Ashraf alias Kalia appellant beyond a shadow of doubt to sustain a charge of capital punishment. He is, therefore, acquitted and shall be released forthwith if not detained in any other case. Death sentence not confirmed. H.B.T./M‑5/L Appeal accepted.