2008 PLP 653 (MLD)

ASIF SAEED KHAN KHOSA, J.

Shaukat Ali appellant was convicted for an offence under section 302(b), P.P.C. vide judgment, dated 29-9-1999 handed down by the learned Sessions Judge, Faisalabad and was sentenced to death as Ta'zir and to pay a sum of Rs.50,000 to the heirs of Zafar Iqbal deceased by way of compensation under section 544-A, Cr.P.C. or in default of payment thereof to undergo simple imprisonment for six months. Through the same judgment two co-accused of the appellant namely Muhammad Amjid and Muhammad Sajid were acquitted by the learned trial Court. Shaukat Ali appellant has challenged his conviction and sentence before this Court through Criminal Appeal No.1024 of 1999 which has been heard by us along with Murder Reference No.445 of 1999 seeking confirmation of the sentence of death passed by the learned trial Court against the appellant. We propose to decide both these matters together through the present consolidated judgment.

2. The prosecution's case unfolded in the F.I.R. was that Faqir Muhammad complainant was a resident of Mohallah Ali Town, Chak No.120/JB situated within the area of Police Station Nishatabad, District Faisalabad and he used to do business of property dealing with his partner namely Abdul Rehman. The complainant's brother namely Zafar Iqbal was employed in Milan Soap Factory situated on Sargodha Road in Chak No.5/JB, Kamalpur as a contractor. About one and a half years prior to the present occurrence Shaukat Ali appellant had started working in the said factory as a laboruer after obtaining a sum of Rs.40,000 from the complainant's brother by way of an advance payment. The appellant was a habitual absentee and the complainant's brother used to advise him to be regular in his work or to return the money advanced to him. Three days prior to the present occurrence the complainant was present with his brother namely Zafar Iqbal in the latter's baithak when Shaukat Ali appellant also came there and the complainant's brother demanded return of Rs.40,000 from the appellant which led to an exchange of hot words between them. The complainant's brother had hurled filthy abuses upon the appellant and had insulted him on that occasion and the matter had then been patched up by the complainant. In the morning of 4-11-1997 Zafar Iqbal had summoned Shaukat Ali appellant from the latter's house and thereafter both of them proceeded to Milan Soap Factory together on a motorcycle of Zafar Iqbal. At that time the appellant was covering himself with a sheet of cloth. Around the same time the complainant and his business partner namely Abdul Rehman also proceeded to Chak No.5/JB, Kamalpur on a motorcycle and started following Zafar Iqbal and the appellant. At about 8-15 a.m. on 4-11-1997 when they reached near Shalimar Wazan Kanda (weighing station), Sargodha Road near Chak No.7/JB the appellant took out a pistol .30 bore and within the view of the complainant and the other eye-witness he fired at Zafar Iqbal from his back making an entry wound at the back of the latter's right flank and an exit wound on the left side of his front chest. Upon receipt of those injuries Zafar Iqbal stopped his motorcycle and then the appellant got down from the motorcycle and decamped towards the nearby field on the eastern side while waiving his pistol. The complainant also stopped his motorcycle' In the meanwhile the complainant's brother namely Zafar Iqbal had fallen from his motorcycle. The said incident had also been witnessed by Ilyas Ahmad who was available near the spot along with his motorcar. The complainant and the other witnesses then took Zafar Iqbal in an injured condition to Allied Hospital, Faisalabad in the motorcar of Ilyas Ahmad. Upon reaching the hospital Zafar Iqbal succumbed to his injuries and died. The motive set in the F.I.R. was that three days prior to the present occurrence Zafar Iqbal had demanded return of Rs.40,000 from the appellant and had insulted the appellant by hurling filthy abuses upon him. The appellant had allegedly murdered Zafar Iqbal in order to avenge the said insult. Leaving the dead-body of Zafar Iqbal at Allied Hospital, Faisalabad in the care of Abdul Rehman and Ilyas Ahmad P. Ws. the complainant proceeded to report the matter to the police but he met Hameed Masih, S.-I. (P.W.9) on the way and made a statement before him in respect of the said incident at 9-30 a.m. on the basis of the said statement formal F.I.R. No.631 was subsequently registered at Police Station Nishatabad, District Faisalabad at 10.05 a.m. on 4-11-1997 for an offence under section 302, P.P.C. During the investigation of this case the complainant also implicated the appellant's co-accused namely Muhammad Amjid and Muhammad Sajid in this case with an allegation of hatching of a conspiracy to commit the murder of Zafar Iqbal deceased.

3. After registration of the F.I.R. the investigation of this case was conducted by Hameed Masih, S.-I. (P.W.9) and, Ahmad Khan, S.-I./S.H.O. (P.W.8) who inspected the spot, got the dead-body of Zafar Iqbal subjected to post-mortem examination, arrested the appellant and his co-accused, affected recovery of a pistol from the appellant's possession and then, after completing the investigation, prepared a chalan which was subsequently submitted before the learned trial Court.

4. At the commencement of the trial the learned trial Court framed a Charge with two heads under sections 302 and 302/109, P.P.C. against the appellant and his co-accused to which they pleaded not guilty and claimed a trial

5. During the trial the prosecution produced nine witnesses before the learned trial Court in support of its case against the appellant and his co-accused. Faqir Muhammad complainant (P.W.6) and Abdul Rehman (P.W.7) furnished the ocular account of the incident in question. Faqir Muhammad complainant (P.W.6) also deposed about the motive and recovery of a pistol from the appellant's possession during the investigation of this case. Riaz Ahmad (P.W.5) stated about hatching of a conspiracy by the appellant's co-accused. The medical evidence was provided by Dr. Arshad Masood (P.W.1). Hameed Masih, S.-I. (P.W.9) and Ahmad Khan, S.-I./S.H.O. (P.W.8) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.

6. In their statements reported under section 342, Cr.P.C. the appellant and his co-accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They, however, opted not to make statements on oath under section 340(2), Cr.P.C. and did not produce any witness in their defence.

7. At the conclusion of the trial the learned trial Court acquitted the appellant's co-accused namely Muhammad Amjid and Muhammad Sajid but, after finding the prosecution's case against the appellant to have been proved beyond reasonable doubt, convicted and sentence the appellant as mentioned and detailed above. Hence, the present appeal and the connected Murder Reference before this Court.

8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. As against that the learned counsel for the State as well as the learned counsel for the complainant have maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt and, therefore, his conviction and sentence recorded by the learned trial Court do not warrant any interference by this Court.

9. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has straightaway been observed by us that the place of the alleged occurrence as well as the time of the alleged incident had not been conclusively established by the prosecution. It is admitted at all hands that no blood-stained earth had been secured from the place where the incident had allegedly taken place. Even the motorcycle allegedly recovered from the relevant place had no stains of blood on it. It had never been established that the said motorcycle was owned or possessed by Zafar Iqbal deceased. Apart from that the said motorcycle did not have any dent or scratch on it so as to establish that the same was being used by the deceased at the time of the alleged occurrence before the alleged fall of the deceased along with that motorcycle. According to the F.I.R. as well as the statements of the eye-witnesses produced by the prosecution the alleged occurrence had taken place at about 8-15 a.m. on 4-11-1997 but the medical evidence provided by Dr. Arshad Masood (P.W.1) showed that the time of receipt of injuries by the 'deceased could well be around 3-30 a.m. Thus, according to the medical evidence the occurrence could well have taken place in the wee hours of the night or in the small hours of the morning in question. We have also observed that the F.I.R. in this case had not been lodged at the Police Station arousing a suspicion that the same could well have been registered after due deliberations and preliminary investigation at the spot. All these factors point towards absence of the eye-witnesses from the place of occurrence at the time of the alleged incident and, therefore, we have become careful and cautious in our scrutiny of the ocular account of furnished in this case by Faqir Muhammad complainant (P.W.6) and Abdul Rehman (P.W.7).

10. Both the eye-witnesses produced by the prosecution were not only closely related and connected with Zafar Iqbal deceased but they were also admittedly chance witnesses. Faqir Muhammad complainant (P.W.6) was a real brother of Zafar Iqbal deceased and he lived in a house different from that of the deceased. Abdul Rehman (P.W.7) was admittedly a business partner and a close associate of the complainant. Both these eye-witnesses lived almost one kilometer away from the place of occurrence and their place of business was also not shown to be anywhere near the place of occurrence. The reason advanced by these eye-witnesses for their presence at the place of occurrence at the relevant time had remained far from being established inasmuch as both these witnesses had claimed that they were doing a joint business of dealing in property but nothing had been produced before the learned trial Court to substantiate that claim or to establish as to which particular business or property had taken them to the place of occurrence at the relevant time. It had also not been shown that the route adopted by them was the one that took them from their house to their place of business. We have significantly noticed that both these witnesses had claimed to have taken Zafar Iqbal deceased in an injured condition to Allied Hospital, Faisalabad but no independent confirmation in that regard is forthcoming from the record of this case. The relevant columns of the inquestion report (Exh.P.C.) did not show the presence of these witnesses.1vith the dead-body at the time of inspection of the same by the Investigating Officer. The claim of these eye-witnesses that the F.I.R. in this case had been lodged after removing the dead-body to the hospital had been belied by Asmatullah, FC (P.W.3) who had maintained that the dead-body of Zafar Iqbal deceased was available at the spot till 10-00/10-30 a.m. on 4-11-1997 and the dead-body had been removed by him from the spot to the hospital after the murder had already been brought to the notice of the police. The cumulative effect of all these factors available on the record of this case is that we have entertained serious doubts about the claimed presence of these eye-witnesses near the deceased at the time of the alleged occurrence and, therefore, we have felt reluctant in placing a whole-hearted reliance upon the statements of these witnesses without looking for independent corroboration.

11. The Motive set up by the prosecution was described in vague and generalized terms and the only witness deposing about the same was none other than Faqir Muhammad complainant (P.W.6) himself. It goes without saying that the complainant could not provide corroboration to himself because corroboration, by its nature, must come from an independent source. Even otherwise the altercation and exchange of abuses allegedly taking place three days prior to the presence occurrence between the appellant and the deceased had admittedly been patched up by the complainant and, thus, these was hardly any occasion left for the present appellant, a young lad, to avenge the same through the deceased's murder. No independent proof was produced by the prosecution before the learned trial Court regarding the deceased providing employment to the appellant and paying the appellant a sum of Rs.40,000 by way of an advance payment. Even the appellant's asserted irregular attendance in his job had never been substantiated through any evidence. In the absence of any such independent evidence any question of an altercation taking place between the appellant and the deceased three days prior to the present occurrence on that score did not arise at all. Even otherwise if the motive set up by the prosecution were to be accepted as correct then there is no explanation available on the record to explain the conduct of Zafar Iqbal deceased in summoning the appellant from the latter's house in the morning of the day of occurrence and taking him with him on his motorcycle. It had never been claimed by the prosecution that this was just a routine affairs or the normal practice of the appellant and the deceased. In these circumstances the motive set up by the prosecution had neither been satisfactorily proved nor the same could provide adequate corroboration to the ocular account furnished by the prosecution before the learned trial Court.

12. The alleged recovery of a pistol from the appellant's possession during the investigation of this case was legally inconsequential as no crime-empty had been recovered from the place of occurrence so as to connect the said weapon with the alleged offence. Even otherwise the alleged recovery of pistol from the appellant had been disbelieved and discarded by the learned trial Court itself. Thus, no corroboration was forthcoming even from the alleged recovery.

13. The medical evidence produced by the prosecution before the learned trial Court had caused serious dents in. the prosecution's case against the appellant rather than providing support to the same. The eye-witnesses had maintained that the appellant had fired at the deceased from a very close range at a time when he was riding on a motorcycle along with the deceased but Dr. Arshad Masood (P.W.1) had not found any blackening on the entry would available on the dead-body of Zafar Iqbal deceased. According to the doctor the shot received by the deceased could have been fired from a distance of one meter which was surely not the claim of the eyewitnesses. As already mentioned above, the time of the alleged receipt of his fire-arm injuries by the deceased found by the doctor did not synchronize with the time of occurrence stated by the eye witnesses. It may also be relevant to mention here that according to the eye-witnesses the deceased had fallen on the ground after receipt of the fire-shot but the doctor had categorically maintained that the post-mortem examination report did not mention any "mud or stains of earth on the clothes of the deceased". In these circumstances the medical evidence had failed to provide a whole-hearted support to the ocular account.

14. The evidence adduced by the prosecution before the learned trial Court regarding a conspiracy having been hatched by the appellant and his two acquitted co-accused had been disbelieved and discarded by the learned trial Court itself and the co-accused of the appellant had been acquitted. It may be pertinent to mention that the complainant party had implicated the said co-accused in this case at a late stage and the allegation levelled by the complainant party against the said co-accused could not 'stick before the learned trial Court. This surely reflected adversely upon the conduct of the complainant party and hinted at the complainant party being capable of the false implication of innocent persons-on a capital charge.

15. It has been argued by the learned counsel for the complainant that it was a case of a daylight occurrence and the appellant had been nominated in the F.I.R. as the sole perpetrator of the alleged offence of murder and, therefore, this Court ought to be slow in acquitting the appellant. We have, however, remained unable to subscribe to this submission of the learned counsel for the complainant. In the preceding paragraphs we have already found that the claimed presence of the eye-witnesses at the place of occurrence at the relevant time was not free from serious doubts and the eye-witnesses had failed to receive corroboration or support from any independent quarter. In this view of the matter we cannot uphold and maintain the appellant's conviction and sentence merely because it was a daylight occurrence and a case of a single nominated culprit. It has already been held by a Division Bench of this Court in the case of Sher Muhammad v. The State 1999 YLR 1916 that: -- "In this context we are also conscious of the fact that it was a daylight occurrence and a case of double murder. However, we are equally alive to the reality that false implication of innocent persons or planting of false witnesses against actual murderers is not a malady referable exclusively to night-time occurrences or single murders. We are of the considered opinion that whenever genuine and serious doubts arise qua the prosecution's evidence against the accused persons the benefit of such doubt must go to the accused persons irrespective of the time of occurrence or the number of victims. The rising or setting of the sun or plurality of the victims has hardly any relevance to the standard of proof required in a criminal case."

16. For what has been discussed above we have arrived at an inescapable conclusion that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. Criminal Appeal No.1024 of 1999 is therefore, allowed, the conviction and sentence of the appellant recorded by the learned trail Court are set aside and the appellant is acquitted of the Charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required in any other case.

17. Murder Reference No.445 of 1999 is answered in the negative and the sentence of death passed against Shuakat Ali appellant by the learned trial Court is not confirmed. N.H.Q./S-171/L Appeal allowed.