2007 P Cr (PLP)

TARIQ SHAMIM, J.

Shahbaz appellant through this Criminal Appeal No.489-J of 2003 assails the judgment, dated 30-7-2003 passed by the learned Sessions Judge, Ferozewala, whereby he convicted the appellant under section 302(b), P.P.C. and sentenced him to imprisonment for life with a further direction to pay an amount of Rs.1,00,000 as compensation to the legal heirs of the deceased as contemplated by section 544-A, Cr.P.C. and in default thereof to further undergo 6 months' S.I. availing the benefit of section 382-B, Cr.P.C.

2. Briefly stated the facts of the case as gathered from the F.I.R. Exh.P.A. lodged by Muhammad Shafi complainant (P.W:1) are that on 19-12-2001 at about 7-00 p.m. while he along with his wife Mst. Naziran Bibi (deceased) was going to the house of Afzal Shah and his two sons namely Liaqat Ali P.W.2, Shaukat Ali (not produced) and Muhammad Ashraf (also not produced) were following them. When they reached near the house of Muhammad Ashraf son of Barkat Changar, they also met Imran and Qaisar sons of Khurshid Ahmad Chatha and in the meanwhile the accused Shahbaz armed with .222 bore rifle, Muhammad Nisar armed with .12 bore gun along with four unknown culprits having ambushed behind the shop of Muhammad Yousaf emerged there and started firing through their weapons on the complainant and his wife Naziran Bibi wherein Mst. Naziran Bibi sustained injuries on her head as a result of which she expired at the spot while Imran P.W. also sustained injuries and the accused fled away from the spot by raising Lalkaras.

3. The motive for the occurrence as alleged was that said Imran injured P.W. had enmity with Shahbaz etc. and the complainant had visiting terms with Imran which annoyed the accused party resulting in the said occurrence.

4. P.W.8 Allah Ditta S.-I. initially investigated the case and visited the spot, prepared injury statement, inquest report Exh.P.D./3, he wrote two applications one (Exh.P.D./2) for conducting post-mortem of the deceased and the second (Exh.P.D./4) for issuing docket. He handed over the dead body of Naziran Bibi to Constable Gul Shah No.1263/C and Altaf Hussain No.413/C for escorting the same to mortuary at Muridke for post-mortem. He inspected the spot, prepared site plan without scale Exh.P.H., secured blood-stained earth from the place of occurrence vide memo. Exh.P.B., took into possession last-worn clothes of the deceased through memo. Exh.P.C., got recorded the statements of the prosecution witnesses under section 161, Cr.P.C. He got prepared the scaled site plan of the place of occurrence from Ch. Hameed-ud-Din Chishti, Draftsman (P.W.6).

5. Thereafter Muhammad Jafar, S.-I. P.W.10 concluded the investigation by arresting both the accused and effecting recoveries of weapons of offence from them vide recovery memos. Exh.P.J. along with site plan of the place of recovery Exh.P.J./1, Exh.P.K. and Exh.P.K./1 and found both the accused guilty and submitted challan against them in the Court.

6. At the trial, prosecution in order to prove its case produced as many as 10 witnesses and tendered in evidence report of Chemical Examiner Exh.P.J., the report of the Serologist Exh.P.K., and closed its case.

7. After closure of prosecution evidence the trial Court recorded the statement of Muhammad Shahbaz appellant and that of acquitted co-accused Imtiaz Ali under section 342, Cr.P.C. who did not opt to appear as witnesses in their defence under section 340(2), Cr.P.C. In reply to the question "Why this case against you?" Shahbaz appellant stated as under: "Since the agricultural land dispute between injured Imran as well as my father is existing in the village, therefore, I have been involved in the instant case falsely in connivance with local police as well as Imran injured party for depriving us from agricultural land. The complainant party Muhammad Shafi and victim Naziran Bibi deceased were the employees of Imran party so on their instance the present case has been got registered falsely against me."

8. After conclusion of the trial the learned trial Judge while acquitting Imtiaz Ali co-accused convicted the appellant as stated above hence this appeal.

9. Learned counsel for the appellant contended that the motive set up by the prosecution was weak and that to was not proved during the trial; that no specific injury has been attributed to the appellant and no empty was recovered from the place of occurrence to connect any of the accused with the commission of offence of murder; that the murder of Mst. Naziran Bibi was committed by the opponents of Imran injured P.W. with whom the appellant and the other accused had enmity and the said Imran never appeared before the police during investigation or was produced at the trial by the prosecution. The recovery of .44 bore rifle was planted on the appellant at the behest of the said Imran who was P.O. in a number of cases; that there are clear discrepancies in the statements made by the eye-witnesses of the occurrence; that the recovery of weapon of offence allegedly effected from the appellant was made in violation of section 103, Cr.P.C.; that there was no matching of weapons and empties to prove the exact nature of weapons used in the case and that the prosecution having completely failed to prove its case beyond reasonable doubt against the appellant who was entitled to be acquitted.

10. On the other hand learned counsel appearing on behalf of the State argued that the prosecution had proved its case beyond all reasonable doubts; that the appellant was present at the time of occurrence and had fired from his weapon which had resulted in the death of the deceased; that the weapon of offence had been recovered from the appellant which further connected him with the prosecution case; that the ocular account furnished by P.W. and P.W.2 was fully corroborated by the medical evidence, recovery of weapon and the investigation in which the appellant was found guilty, hence, the judgment of the learned trial Court did not call for interference.

11. I have heard the learned counsel for the appellant as well as the learned State counsel and gone through the record with their able assistance.

12. P.W.I Muhammad Shafi and P.W.2 Liaqat Ali appeared as eye-witnesses and also witnesses regarding the motive which according to the said P.Ws. was their employment with Imran injured P.'W. with whom the appellant had enmity. However, P.W.2 himself negated the stand taken by him as in his evidence at the trial he categorically stated that at the time of occurrence neither the complainant P.W. nor he or any of his brothers were employees of the said Muhammad Imran. After going through the testimony of said PM. one gets the impression that there is no direct motive for the appellant to commit the murder of the deceased. The learned trial Court has also observed that the motive as urged by the prosecution was not only weak but in fact the same was shrouded in mystery. The prosecution has, therefore, failed to establish the motive for the said occurrence.

13. The ocular account was furnished by P.Ws.1 and 2 who are father and son. In the F.I.R. Exh.P.A. it was stated by P.W. Muhammad Shari that Mst. Naziran Bibi sustained bullet injuries on the head whereas in their statement before the learned trial Court P.W.1 stated that only one fire-arm injury was sustained by the deceased on her head. On the contrary P.W.2 stated that a number of fires had hit on the head of the deceased. In the F.I.R. as well as in their statements before the learned trial Court the said two P.Ws. did not attribute any specific injury to any of the accused. The star-witness of the prosecution was Imran the injured P.W. This witness neither appeared before the Investigating Officer during the investigation nor was he produced by the prosecution at the trial. Non-production of a most natural and material witness of occurrence, would strongly lead to an inference of suppression of material facts by the prosecution. Thus, the best evidence in the case was withheld by the prosecution at the trial. Further, the contradictions in the statements of the P.Ws. render the eye-witness account unreliable.

14. The autopsy was conducted by P.W.5 Dr. Zahida Noor on the dead body of the deceased Naziran Bibi who found only one fire-arm lacerated wound 20 c.m. x 14 c.m. into brain deep on the upper right forehead of .the deceased. The dimension of the injury does not conclusively point to any particular fire-arm weapon which could have caused the said injury. However, to a certain extent it excludes use of a shot gun as in that case some pellets might have been recovered from the wound. The findings given by P.W.5 are also inconclusive and do not in a definite manner, corroborate the eye-witness account.

15. The weapon of offence alleged to have been recovered from the appellant i.e. .44 bore rifle is of no consequence as no empty was recovered from the place wherefrom the appellant is alleged to have fired at the deceased. Further, the weapon of offence was recovered after a lapse of about 2-1/2 months from the date of occurrence and the witnesses of recovery are P.W.9 Muhammad Ramzan constable and the Investigating Officer P.W.10. No independent witness from the locality was associated with the proceedings although, as per the testimony of the said two P.Ws., several persons from the locality were present. Lastly, the recovery was a joint recovery as the weapon of offence used by Imtiaz acquitted co-accused was also recovered from the same room, however, from a different iron chest. It would be pertinent to note that weapon allegedly recovered from the appellant was not even sent to the Forensic Science Laboratory for obtaining Expert opinion. Therefore, it is established beyond any doubt that the prosecution has failed to prove the factum of recovery from the appellant.

16. The co-accused Imtiaz Ali who was shown to be armed with .222 rifle at the time of occurrence and had been ascribed a similar role as the appellant of firing at the deceased was acquitted by the learned trial Court on the same set of evidence which was believed qua the appellant. This creates serious doubts about the veracity of the prosecution case.

17. In the nutshell, some of the basic infirmities in the prosecution case which are enumerated below:-- (1) Prosecution has withheld the best evidence by not producing the alleged injured P.W. namely Imran without disclosing any plausible reason. (2) No specific injury was attributed to any of the three nominated and four unknown accused in the F.I.R. (3) Neither any crime-empty was secured from the place of occurrence nor any lead bullet was recovered to determine the exact kind of weapon used in the crime. (4) A very weak motive was set up by the prosecution. All the aforementioned facts and circumstances manifestly demonstrate that the prosecution has miserably failed to prove its case against the appellant beyond any reasonable doubt.

18. In view of the above discussion, by accepting the appeal, I set aside the conviction and sentence awarded to the appellant through the impugned judgment and acquit him of all the charges. The appellant, who is in jail, shall be released immediately if not required in any other case. M.H./S-182/L Appeal allowed.