2016 P Cr (PLP)

MALIK HAQ NAWAZ, J.

The brief facts of the case which have given rise to the istant appeal are that on 14.10.1997 one Sher Ghazi lodged an FIR No. 157/1997 under section 302, P.P.C. for murder of his brother Abdul Hakim, wherein he charged one Mujahid Ali son of Ali Gohar for murder. He was not an eye-witness of the occurrence and he derived information of the occurrence from P.Ws. Akbar Khan son of Abdur Rahman and Zafar Khan son of Ballo, who were allegedly accompanying the deceased at the time of occurrence.

2. After completion of investigation, accused and his real brother Gohar Ali were sent to face trial. The prosecution examined 11 P.Ws. to prove the case and after conclusion of trial the trial Court announced its verdict on 16.12.2014 and by means of the judgment the trial Court acquitted co-accused Gohar Ali but convicted appellant Nizam Ali was awarded life imprisonment and a fine of Rs. 1,00,000/- (Rupees one lac only) to be paid to the legal heirs of deceased under section 544-A, Cr.P.C. Being aggrieved from the said judgment the appellant/convict filed an appeal before this Court on 20.12.2014, which came before us today for hearing.

3. The learned counsel for the appellant at the very outset submitted that the appellant died in jail during pendency of this appeal, however the learned counsel requested to hear the appeal on merits and assisted the Court about maintainability of an appeal of a "dead person". Before discussing other aspects of the case for the purpose of convenience section 431, Cr.P.C. is reproduced as under:- "Section

431. Abatement of appeals ...Every appeal under section 411A, subsection (2), or section 417 shall finally abate on the death of the accused, and every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant".

4. A bare reading of the above provision of law, it is clear that if an appellant dies during pendency of appeal, the appeal did not abate and legal heirs of deceased/appellant could challenge conviction on merits to remove a stigma of conviction and the appeal up to the fine will not abate even after demise of appellant.

5. The learned counsel for the appellant submitted that the appellant was not charged in FIR and was later on substituted. The co-accused Ali Ghoar, who was his real brother, was named as assailant and the P.Ws. mentioned in FIR also charged Ali Gohar in their statement recorded under section 161, Cr.P.C. Strangely during investigation the police arrested present appellant and also challaned him and co-accused Gohar Ali, his real brother.

6. It is worth mentioning that to implicate present appellant neither any supplementary statements of the P.Ws. were recorded nor any identification parade was held to connect the accused with the crime. The alleged eye-witnesses in their Court statements charged the present appellant for commission of murder clearly taking a complete somersault to their previous statements by implicating the present appellant instead of Gohar Ali. Now it is a recognized principle of criminal dispensation of justice that when a witness makes deliberate and dishonest improvement in his statement, he cannot and should not be believed. In FIR the appellant is not charged and his real brother Gohar Ali is charged for the murder of Abdul Hakim. The FIR is a basic document on which the structure of prosecution case is built for later on proceeding. The FIR though is a document pertaining to complainant but at the same time it also protects the right and interest of the accused and any deviation or departure from the first story of FIR, the benefit of such departure would go to the accused. Both the eye-witnesses have contradicted each other on almost all material points and their statements are mutually destructive and hit their own case. Mere recovery of a .30 bore pistol on the pointation of accused will not connect the accused with commission of offence, especially when no Forensic expert report is available on record. Medical evidence only indicates the cause of death and does not establish identity of the accused. The investigation was not fair and honest, which left many inherent lacunas in prosecution case either due to lack of professional skills or for some other extraneous consideration. The learned Dy. A.G. could not satisfy us and was not in a position to rebut the arguments raised by the counsel for the appellant.

7. From the evaluation of evidence, we feel that it is a case of acquittal but since the deceased has already died and his appeal as requested by the learned defense counsel is being contested just to remove a stigma of conviction. The appeal of the appellant/convict is accepted, and the fine imposed by the trial Court is also set aside.

8. The appeal is allowed in the above terms. HBT/38/GB Appeal allowed.