1997 PLP 1094 (MLD)

4. During trial, the prosecution examined fourteen witnesses including the doctor and the Investigating Officer. P.W.9 Haji Noor Ahmad is a witness of conspiracy. He stated that three days. 4‑A. During trial, the prosecution examined fourteen witnesses including the doctor and the Investigating Officer. P.W.9 Haji Noor Ahmad is a witness of conspiracy. He stated that three days prior to murder he over‑heard Ashiq and Safdar Ali planning about the murder of Kamal Haq deceased. He heard Nazir Ahmad and Aftab telling Ashiq and Safdar to murder Kamal Haq deceased. Ali Ahmad (P.W.10) is also a witness of conspiracy and he corroborated P.W.9. Khalid Mehmood is P.W.12 who is a son of the deceased is an eye‑witness of the occurrence. On his statement the F.I.R. was recorded. During trial, he made statement supporting the prosecution story as given in the F.I.R. P.W.13 Shamsul Haq who is brother of P.W.12 also corroborated the statement of P. W.12.

5. The accused when examined under section 342, Cr.P.C. denied the prosecution story and attributed false implication to his close relationship with the absconding accused Ashiq Hussain.

6. The learned counsel for the appellant has raised the following pleas in support of his appeal:‑‑ (i) That the evidence of conspiracy furnished by P.W.9 and P.W.10 is weak and does not inspire confidence. According to these witnesses they over‑heard the accused planning the murder of Kamal Haq deceased three days prior to the alleged occurrence but they did not inform police about this alleged conspiracy. This by itself would make their testimony not worthy of credit; (ii) That if the appellant had shared common intention there was nothing to stop him to fire effectively at Kamal Haq deceased particularly when he was, as per the prosecution story, was at very close range and the deceased had fallen down after receiving the gun shot from Ashiq Hussain co‑accused. The fire attributed to him missed and according to the prosecution's own story, he did not repeat the firing; (iii) That the appellant is not connected with the motive part of the prosecution story as admittedly he had no civil or criminal litigation with Kamal Haq deceased; (iv) That all the witnesses are closely related to the deceased and there is no independent corroboration to lend credence to their statements to warrant punishment on a capital charge; and (v) That the recovery of rifle could not be proved and in any case the rifle in question has not been connected with the alleged offence.

7. The learned State counsel, on the other hand, has supported the impugned judgment by submitting that the appellant Safdar Ali was a close relative of Ashiq and therefore indirectly connected with the prosecution story. He, however, conceded that the appellant had no direct motive to fire at Kamal Haq deceased.

8. I have heard the learned counsel for the parties and have also gone through the record.

9. The evidence of conspiracy or abatement does not inspire confidence. Haji Noor Muhammad (P.1.) is a brother of Kamal Haq deceased. It is repellent to common sense that having come to know about the conspiracy three days prior to the alleged occurrence he would not report it to the police. Even otherwise the statements of P.W.9 and P.W.10 not only contradict each other but are inconsistent with their earlier statements made before the police under section 161, Cr.P.C. There is not an iota of evidence connecting Safdar Ali appellant with the motive alleged by the prosecution story. There is no reason why he should have gone to the spot with rifle and even if he had gone, as alleged, why did he content himself by making an ineffective firing at Kamal Haq deceased if he had the intention to kill him. The recovery of rifle (P.8) has not been proved by any witness of the locality and even otherwise there is nothing in evidence to connect the said rifle with the alleged role attributed to the appellant.

10. The investigation of the case had changed many hands. It is in evidence that at one point of time the investigation was entrusted to SP Range Crimes, Faisalabad who appeared as C.W.1. In this cross‑examination he stated that in his opinion, the murder had taken place due to damage of crop of Kamal Haq deceased by Ashiq Hussain (absconder‑accused). This further lends support to the defence plea that the appellant had no motive to share common intention with Ashiq Hussain co‑accused who fired the fatal shot.

11. For what has been discussed above, the prosecution has failed to prove its case against the appellant Safdar Ali beyond a shadow of doubt to sustain the conviction on a charge of capital punishment. By giving the appellant the benefit of doubt, this appeal is allowed, the judgment dated 26‑5‑1993 passed by the learned Sessions Judge, Faisalabad is set aside and the appellant Safdar Ali is acquitted. He shall be released forthwith unless detained in any other case. N.H.Q./S‑462/L ???????????????????????????????????????????????????????????????????????????????? Appeal allowed.