2015 PLP 137 (SCMR)

IJAZ AHMED CHAUDHRY, J.

Appellant along with 4 others was tried in a case registered vide F.I.R. No. 338/1997 under sections 302, 148, 149, P.P.C. at Police Station Saddar Renala Khurd for having caused intentional murder of Ghazi Khan and the learned trial Court vide its judgment dated 13-10-1999 convicted the appellant along with Akram, Noor Ahmed and Riaz co-accused under sections 302(b)/149, P.P.C. and while sentencing the appellant and Akram to death, sentenced Noor Ahmed and Riaz to life imprisonment. They were also ordered to pay compensation of Rs.50,000 each to the legal heirs of the deceased Ghazi Khan. They were also convicted under section 148, P.P.C. and were sentenced to 3 years' imprisonment with a fine of Rs.5,000 each, in default whereof to further undergo SI for one month each. Muhammad Nawaz co-accused was convicted under section 148, P.P.C. and was sentenced to 2 years' RI with a fine of Rs.5,000, in default whereof to further undergo SI for one month. However, the learned High Court while maintaining the conviction and sentence of the appellant, acquitted the other co-accused except Muhammad Nawaz, who having served out the sentence had been released. The appellant filed Jail Petition No.223 of 2006 before this Court in which leave was granted on 12-7-2007 in following terms:-- "

3. Each of the five assailants have been attributed distinct and specific role of causing different injuries on the person of the deceased. Included therein and placed in sequential narration, is the role attributed to the petitioner Muhammad Ali alias Mammo. In the given circumstances, it needs to be thoroughly scrutinized as to how the remaining four accused on the basis of same evidence got acquitted while the only one to be convicted was the petitioner. The evidence in this behalf needs to be reappraised, lest it might have fallen short of principles laid down for the appreciation of evidence in criminal justice. Leave to appeal is accordingly granted, inter alia, to reappraise the evidence on record."

2. Briefly stated the facts of the matter as given in the F.I.R. are that on the fateful day and time at about 9-00 a.m. the complainant Amjad Ali along with Falak Sher, Ali Sher, Mirza and his father Ghazi Khan, deceased, and other passengers were going to Renalakhurd on a 'Dala' which was being driven by Muhammad Manzoor P.W. At about 9-15 a.m. when the said 'Dala' reached at bridge H. plot, Nawaz co-accused came in front of the 'Dala' and stopped it. Noor son of Waryam and Riaz armed with hatchets, Akram armed with .12 bore pistol and Muhammad Ali appellant armed with .7 mm rifle emerged there. Muhammad Nawaz co-accused held Ghazi Khan from his collar, who was sitting in front seat with the driver and pulled him out and asked Noor Ahmed co-accused and others to kill him whereupon Noor Ahmed co-accused gave hatchet blow which landed on the head of Ghazi Khan. Riaz gave hatchet blow hitting him on the right foot. Akram fired on the right calf of Ghazi Khan from his .12 bore pistol. Muhammad Ali appellant fired with his .7 mm rifle on the right thigh. After sustaining the injuries Ghazi Khan died at the spot. The accused threatened that whosoever came forward would be done to death and decamped from the spot. The motive behind the occurrence is previous litigation. The prosecution in order to prove its case produced as many as 11 witnesses including the Doctor and the Investigating Officer. The appellant neither preferred to make statement under section 340(2), Cr.P.C. nor intended to produce defence evidence.

3. Learned counsel for the appellant has contended that the occurrence took place at a distant place; that the witnesses failed to explain their presence at the time of occurrence; that the prosecution of its own has alleged the enmity and in that situation the possibility of false involvement cannot be ruled out; that the ocular account stands belied by the medical evidence; that the medical evidence is also in contradiction with the version given in the F.I.R.; that qua the same set of evidence the learned High Court has acquitted the co-accused of the appellant whereas the appellant has been sentenced to death which is a capital punishment; that it appears from the reading of F.I.R. that the eye-witnesses had not seen the occurrence; that the recovery was not proved through an independent source and no conviction can be made on recovery alone; that Mst. Hajran for whom the complainant party was going was neither produced before the trial Court and that according to the prosecution the appellant only caused one fire and he did not intend to cause death of the deceased.

4. We have heard learned counsel for the appellant and have gone through the evidence.

5. According to the prosecution the F.I.R. has been registered on 10-30 a.m. on the same day for the incident which has taken place at 9-15 a.m. According to P.W.3 Amjad Ali and P.W.4 Manzoor Ahmed, who allegedly had seen the occurrence, the incident has taken place at an open place which was not surrounded by the houses. Admittedly both the P.Ws. are not residents of the locality where the occurrence took place and they are chance witnesses. The role ascribed to Noor Muhammad and Riaz is in contradiction with the medical evidence, as the complainant in his supplementary statement has mentioned that Noor Muhammad gave a hatchet blow on the head of the deceased from the sharp side whereas the said injury was declared by the doctor as caused by a blunt weapon. The medical evidence also does not support the ocular account qua the number of injuries as according to the Doctor P.W.6 the deceased had received as many as 8 injuries. Injuries Nos. 6 and 8 were incised wounds, injuries Nos. 1, 2 and 7 were caused by blunt weapon while injuries Nos. 3, 4 and 5 were caused by firearms. Only one injury on thigh has been attributed to the appellant. The doctor has also found blackening on the injuries which means that the injuries could have been caused from a distance of three feet or less. But according to site plan, the distance between the assailants and the deceased was about 2 karams which is equal to 11 feet. In such circumstances, the presence of the eye-witnesses at the spot is doubtful. Had they been present at the spot and had witnessed the occurrence, they could have ascribed the correct role to the accused and explain all the injuries on the person of the deceased. The Doctor during the cross-examination has admitted that the possibility cannot be ruled out that all the firearm injuries have been caused by one weapon as all the injuries are of same dimension. The Investigating Officer during the cross-examination has admitted that the 'Dala' was not present when he visited the spot and he had not taken into possession the said 'Dala' during investigation. So the story introduced by the eye-witnesses that they were travelling on the 'Dala' when the incident took place is not supported by any connecting material. The same set of evidence has been disbelieved qua the involvement of Noor Muhammad, Riaz and Akram co-accused who were ascribed specific roles of causing injuries on the person of the deceased. Reliance in this regard is placed on Muhammad Akram v. The State (2012 SCMR 440) wherein this Court while considering other factors held that same set of evidence which was disbelieved qua the involvement of co-accused could not be relied upon to convict the accused on a capital charge and acquitted the accused. In Mir Muhammad @ Miro v. The State (2009 SCMR 1188) the death sentence of the accused was confirmed by the High Court while the other co-accused were acquitted on same set of evidence. This Court while holding that the question of sentence required utmost care and caution on the part of the courts, as such decision restrict the life and liberties of the people, modified the sentence of death awarded to the accused by reducing the same to imprisonment for life. Only the positive report of the Doctor is not sufficient to maintain the conviction. Only one empty of .7 mm was recovered from the spot and instead of immediately sending the same for chemical analysis it was sent later on i.e. 22-9-1997 whereas the accused was arrested on 29-10-1997. Both the eye-witnesses had admitted that the accused had no direct enmity to commit the offence and in such circumstances mere mentioning of previous enmity has been falsified. The statement of P.W.3 recorded under section 154, Cr.P.C. is also in contradiction with his statement recorded under section 161, Cr.P.C. We have also noticed that the witnesses had made improvements on the material points. Mst. Hajran Bibi for whose identification, in order to get inheritance mutation sanctioned in her favour, the deceased being sarbrah lumberdar was going to Renala Khurd had also not been produced. In the afore-referred circumstances, we find that the prosecution has not been able to prove its case against the appellant beyond any shadow of doubt.

6. The above are the detailed reasons of our short order of even date vide which this Appeal was allowed in following terms:-- For reasons to be recorded later in the detailed judgment, this Appeal is allowed and the impugned judgment is set aside. Appellant shall be acquitted from jail forthwith unless detained in any other case. MWA/M-51/SC Appeal allowed.