2017 PLP 1672 (SCMR)

SARDAR TARIQ MASOOD, J.

The appellant along with co-accused was indicted in case FIR No.317/2001, registered at P.S. Phalia, Mandi Bahauddin under sections 302/148, 149/109, P.P.C., on 7.9.2001 for committing murder of Muhammad Ashraf. After full dressed trial, the appellant along with co-accused Imran was convicted and sentenced under section 302(b)/34, P.P.C. to imprisonment for life. They were directed to pay compensation of Rs.50,000/- to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default thereof to further undergo six months' S.I.; whereas, the other co-accused Mehdi was convicted under section 302(b), P.P.C. and sentenced to death and was directed to pay compensation of Rs.1,00,000/- to the legal heirs of the deceased under section 544-A, Cr.P.C. and in default thereof to further undergo six months' S.I. The trial Court also sent Murder Reference No.600/2003, for confirmation or otherwise of death sentence of Mehdi. The appellant challenged his conviction and sentence by filing the appeal (Crl. Appeal No.696/2003) and so did Imran and Mehdi by filing a joint appeal (Crl. A. No.575/2003). The complainant also filed Crl. Appeal No.842/2003, against the acquittal of other co-accused. Learned High Court decided all the matters together by dismissing the appeals of appellant and Imran along with the appeal filed by the complainant and disposed of the appeal of Mehdi while converting his death sentence into imprisonment for life and answered the murder reference in negative, hence this appeal with leave of the Court granted on 15.4.2009, to re-appraise the entire evidence for the safe administration of criminal justice.

2. We have heard the learned counsel for the appellant and learned Additional Prosecutor General and also perused the available record. In the FIR 15 accused were nominated to be present at the place of occurrence; out of them 12 were armed with "Sotas" who allegedly caused multiple injuries on the person of Muhammad Ashraf deceased. The Doctor also observed multiple bruises on the back of Muhammad Ashraf deceased. Besides 12 accused, 03 other accused were also nominated who were present at the place of occurrence with fire arm weapon and allegedly fired ineffectively. The eye-witnesses even during trial gave the same role to all the 15 persons but the trial Court without distinguishing the role of accused persons during the occurrence, acquitted all the other accused persons except the appellant, Mehdi and Imran. Although the case of all the said accused was at par so far their role during the occurrence is concerned, but they were acquitted merely upon the opinion of the Police regarding their innocence which otherwise was inadmissible and irrelevant. The acquittal of the remaining accused persons fully establishes that the evidence of the eye-witness of ocular account was disbelieved to the extent of said accused persons. Surprisingly, no appeal against their acquittal was filed either by the complainant or the State. So the conviction of the appellant can only be sustained if there is independent corroboration to the said witnesses who had been disbelieved to the extent of majority of the accused which presently is lacking because the motive asserted by the prosecution indicates that there was enmity of murder between the parties and the said enmity, being double edge, could be reason for false implication of the appellant. So far as the medical evidence is concerned the Doctor had observed multiple bruises on the back of chest of the deceased and the said injuries were also attributed to the accused persons who had been acquitted by the trial Court and medical evidence was also supporting the witnesses so far as the role of acquitted accused is concerned. It is not known as to which bruise out of multiple bruises were caused by the appellant but the learned trial and High Court have stretched the evidence in favour of the prosecution against the settled principle of appraising the evidence. The alleged recovery of "Sota" is also not helpful to the prosecution as it was not stained with blood. The trial Court and even the High Court relied upon the statement of Mehdi co-convict, recorded under section 342, Cr.P.C. in which he admitted that all the accused persons had caused injuries to Muhammad Ashraf deceased. The said confessional statement appears to have been recorded on some understanding of Mehdi with the complainant party. The connivance of said Mehdi with the complainant party for making said confessional statement under section 342, Cr.P.C. was subsequently exposed, as he was acquitted by the trial Court on the basis of compromise. The order of the learned Additional Sessions Judge dated 28-07-2009, has been placed on record by the learned counsel for the appellant through Criminal Misc. Application No.261-L/2017, so no reliance can be placed on such maneuvered confessional statement of Mehdi accused, against the appellant. Even Imran co-accused was also let free by the complainant party on the basis of compromise. The acquittal of all the other accused, having the similar role as of the appellant, on the same evidence, also entitles the appellant to same treatment. Both the courts below have not considered this important aspect of the case because there is no independent corroboration to the ocular account which has already been disbelieved to the extent of majority of the accused persons especially the acquittal of Anaar, Manzoor and Atta Muhammad, who had also been specifically attributed injuries on the right side of back of Muhammad Ashraf deceased. The evidence which has been disbelieved by both the Courts below to the extent of majority of the accused cannot be made basis for conviction of the appellant unless corroborated by independent piece of evidence which is completely lacking in this case. Consequently, this appeal is allowed, conviction and sentence awarded by the trial Court and upheld by the High Court is set aside and the appellant is acquitted of the charge. He shall be released from Jail forthwith if not required to be detained in any other case. MWA/T-5/SC Appeal allowed.