2006 P Cr (PLP)

ASIF SAEED KHAN KHOSA, J.

Nadeem alias Baba appellant was convicted for an offence under section 302, P.P.C. vide judgment dated 27-5-2002 and was sentenced to imprisonment for life and to pay a sum of Rs.50,000 to the heirs of Mukhtar Ahmad 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. The benefit under section 382-B, Cr.P.C. was extended to him. Through the same judgment the learned trial Court had acquitted the appellant's co-accused namely Mst. Sughran Bibi on the merits of the case whereas another co-accused of the appellant namely Ghulam Hussain alias Mangu was acquitted by the learned trial Court on the basis of a compromise between the said accused persons and the heirs of Mukhtar Ahmad deceased. Nadeem alias Baba appellant has challenged his conviction and sentence before this Court through the present appeal.

2. The prosecution's case unfolded in the F.I.R. was that Mukhtar Ahmad, a brother of Shabbir Ahmad complainant, had not returned home till late in the evening on 30-5-2001 and, therefore, Shabbir Ahmad complainant (P.W.7) and his cousin namely Muhammad Shahid (P.W.8) along with another witness went out looking for Mukhtar Ahmad deceased. At about 10-15 p.m. on 30-5-2001 the complainant and the other eye-witnesses reached an empty plot of land near a factory within the area of Police Station Ghulam Muhammad Abad, Faisalabad and saw the appellant and his two co-accused quarreling with Mukhtar Ahmad deceased. Soon thereafter within the view of the complainant and the other witnesses Mst. Sughran Bibi accused raised a Lalkara and then Ghulam Hussain alias Mangu accused gave a dagger blow which landed on the left side of the back of Mukhtar Ahmad deceased which was followed by another dagger blow given by the present appellant on the left side of the back of Mukhtar Ahmad deceased. The hue and cry raised by the complainant and the other witnesses attracted many persons to the spot and, thus, the appellant and his co-accused decamped from the same. The motive set up in the F.I.R. was that a few days prior to the said occurrence Mukhtar Ahmad deceased had quarreled with the appellant and his co-accused namely Ghulam Hussain alias Mangu but the matter had been patched up. Mukhtar Ahmad deceased was taken to the hospital in an injured condition but he succumbed to his injuries on the way. Upon receiving an information about the said incident the local police reached the hospital and on the basis of a statement made by Shabbir Ahmad complainant at 1-20 a.m. on 31-5-2001 formal F.I.R. No.322 was subsequently registered at Police Station Ghulam Muhammad Abad, Faisalabad at 1-50 a.m. on 31-5-2001 in respect of offences under sections 302/379/34, P.P.C. During the investigation the appellant and his co-accused were arrested and blood-stained daggers had allegedly been recovered by the police from their possession. After completion of the investigation a challan was submitted before the learned trial Court which framed a charge against the appellant and his co-accused to which they pleaded not guilty and claimed a trial.

3. During the trial the prosecution produced eleven witnesses in support of its case against the appellant and his co-accused. Shabbir Ahmad complainant (P.W.7) and Muhammad Shahid (P.W.8) furnished the ocular account of the incident in question. Shabbir Ahmad complainant (P.W.7) also deposed about the motive. Recovery of a blood-stained dagger from the appellant's possession was deposed about by Abdul Majeed (P.W.9). The medical evidence was provided by Dr. Liaqat Ali (P.W.6). Mushtaq Elahi, S.-I. (P.W.11) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature. In their statements recorded 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.

4. Upon conclusion of the trial the learned trial Court acquitted Mst. Sughran Bibi accused on the merits of the case and acquitted Ghulam Hussain alias Mangu on the basis of a compromise between the said accused person and the heirs of the deceased. The learned trial Court, however, found the prosecution's case against the appellant to have been proved beyond reasonable doubt and, thus, the appellant was convicted and sentenced by it as mentioned and detailed above. Hence, the present appeal before this Court.

5. I 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 beyond reasonable doubt as the eye-witnesses produced by it were related and chance witnesses who had failed to receive any independent corroboration or support from any other piece of evidence. As against that the learned counsel for the State has maintained that the prosecution had succeeded in establishing the appellant's guilt to the hilt and, therefore, the appellant's conviction and sentence recorded by the learned trial Court do not warrant any interference by this Court.

6. After hearing the learned counsel for the parties and going through the record it has straightaway been noticed by me that the occurrence in this case had taken place during a night and the F.I.R. in respect of the same had not been lodged at a police station. There is nothing available on the record to show as to who had informed the police about availability of a dead body in the hospital and had prompted it to reach the said hospital on its own. Even otherwise the recorded time of making of the statement by the complainant before the police at the hospital shows that the F.I.R. had been lodged with a significant, delay which delay could have been utilized by the prosecution not only to procure and plant the complainant and the eye-witnesses but also to fabricate and manufacture a story.

7. Both the eye-witnesses produced by the prosecution, i.e. Shabbir Ahmad complainant (P.W.7) and Muhammad Shahid (P.W.8) were very closely related to Mukhtar Ahmad deceased and they were also chance witnesses. Shabbir Ahmad complainant (P.W.7) was a brother of the deceased whereas Muhammad Shahid (P.W.8) was a cousin of the deceased. Both of them had claimed to have set out on search of the deceased and had managed to reach the place of occurrence in the nick of B time and had, thus, statedly seen both the blows given to the deceased by the appellant and his co-accused namely Ghulam Hussain alias Mangu I have found such a coincidence and timing to be quite extraordinary and, thus, suspicious. Apart from that the statements made by these eye-witnesses before the learned trial Court had been found by me to be inconsistent and failing to inspire confidence. In the F.I.R. Shabbir Ahmad complainant had described the place of occurrence as an empty plot of land near a factory but before the learned trial Court he had described the place of occurrence as the house of Ghulam Hussain alias Mangu co-accused and others. Muhammad Shahid (P.W.8) had described the place of occurrence as an agricultural field. Reliability of Muhammad Shahid (P.W.8) as an eye-witness of the occurrence had been shaken by his admission before the learned trial Court that he could not say as to which accused person had inflicted dagger blow on which part of the deceased's body. Had he actually been an eye-witness of the alleged occurrence then he would have surely known as to which injury had been given to the deceased by which accused.

8. The eye-witnesses produced by the prosecution had failed to receive any corroboration from any independent source. The motive set up by the prosecution had remained far from being established as the c complainant was the only person deposing abut the same but he had failed to specify any date; time or place of taking place of the incident forming the motive. The complainant had also failed to claim that he had himself witnessed the motive incident and he had also failed to divulge the reason for the quarrel taking place between the accused persons and the deceased. Apart from that even according to the complainant's own showing the said matter had been patched up prior to the present occurrence and, thus, on the day of the present occurrence there was hardly any animus between the appellant and the deceased so as to propel the appellant to deprive the deceased of his life.

9. A perusal of the statement made by the appellant under section 342, Cr.P.C. shows that the appellant had never been questioned regarding any recovery of blood-stained dagger from his possession during the investigation of this case. It is settled law that a piece of evidence which is not put to an accused person at the time of recording of his statement under section 342, Cr.P.C. cannot be used against him. In this view of the matter the alleged recovery of a blood-stained dagger from the appellant's possession was legally inconsequential. It is available on the record that the recovery witness namely Abdul Majeed (P.W.9) was a neighbour and a friend of the complainant and of the deceased and also that no independent witness from the relevant locality had been associated with such recovery and, thus, the provisions of section 103, Cr.P.C. had been flagrantly violated in this case rendering the alleged recovery to be suspect. The statement made by Abdul Majeed (P.W.9) shows that the appellant and his co-accused namely Ghulam Hussain alias Mangu had jointly been taken by the police to the same place and then both the appellant and the said co-accused had simultaneously got a dagger each recovered from the same place. Such recovery had the trappings of a joint recovery which is devoid of all evidentiary value or worth. It may also be pertinent to mention here that although the memorandum of recovery of the dagger allegedly recovered from the appellant's possession shows the recovered dagger to be stained with blood yet the recovery witness namely Abdul Majeed (P.W.9) had never claimed before the learned trial Court that the dagger recovered from the appellant's possession was stained with blood. The said recovery witness had also stated before the learned trial Court that both the daggers had been recovered from the appellants' possession. Such a statement was surely contrary to the prosecution's case against the appellant. Mushtaq Elahi, S.-I. (P.W.11), the Investigating Officer had conceded before the learned trial Court that the alleged recovery from the appellant had been effected on the last day of his physical remand and also that the alleged recovery had been effected from a place which was accessible to all and sundry and the recovery had, thus, not been effected from the appellant's exclusive possession.

10. When all the other pieces of evidence produced by the prosecution have failed to inspire any confidence then medical evidence cannot suffice all by itself to take the prosecution case any far. It is established law that medical evidence cannot fix the identity of a culprit.

11. For what has been discussed above I have entertained no manner of doubt that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant recorded by the learned trial 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. N.H.Q./N-115/L????????????????????????????????????????????????????????????????????????????????? Appeal allowed.