2001 PLP 1726 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.706 of 1996 filed by Muhammad Abbass appellant, who was convicted under section 302(a), P.P.C. and sentenced to death for committing the murder of Muhammad Ilyas by the learned Additional Sessions Judge, Lahore vide judgment, dated 21-9-1996. The appellant was also directed to pay Rs.50,000 as compensation as required under section 544-A, Cr.P.C. to be paid to legal heirs of the deceased. Murder Reference No.248 of 1996 filed by the State for confirmation of the death sentence or otherwise shall also be replied through this judgment.

2. Occurrence in this case had taken place at 4 a.m. (early in the morning) on 2-9-1993 at a distance of one furlong from Police Station Yakki Gate, Lahore while the matter was reported by Muhammad Akram at 5 a.m. on the same day through complaint Exh.P.B. and the formal F.I.R. Exh.P.B./1 was recorded by Arshad Ali, A.S. I.

3. Briefly stated the facts of the case are that on the fateful day, that is 2-9-1993, Muhammad Akram, the complainant, alongwith Liaqat Ali, Noor Hussain and Muhammad Sharif had come to the house of Muhammad Ilyas at evening and slept there. It was at about 4 a.m. early in the morning when Muhammad Abbass called Muhammad Ryes that thieves had come in his house and that the deceased should come down and bolt the outer gate. On the noise of Muhammad Abbass, all the inmates of house of the deceased woke up. Muhammad Ryes went downward first and then complainant, Liaqat Ali, Noor Hussain end Muhammad Sharif also followed him. Muhammad Ilyas after bolting the door when turned to enter in his house, Muhammad Abbass from the backside issued a burst of Kalashnikov as a result of which Ilyas died at the spot. The motive alleged was that a few days prior to the occurrence, there was a quarrel between Muhammad Ilyas (deceased) and Muhammad Abbass over children. The matter was patched up by Zafar Iqbal.

4. After registration of the formal F.I.R. Shamim Haider, S.-I. (P.W.12) went to the place of occurrence, inspected the spot where dead body of Muhammad Ilyas was lying, prepared injury statement Exh.P.I., inquest report Exh.P.J., drafted rough site plan Exh.P.K., took into possession blood stained earth vide memo. Exh.P.C. empties P.5/1-9 were taken into possession vide memo. Exh.P.D. took into possession the last-worn clothes of the deceased vide memo. Exh.P.E., on 3-9-1993 arrested the appellant who in custody led to the recovery of rifle .222 P.14, licence, P.12, 20 live bullets P.16/1-20 and bandolier P.17 which were taken into custody vide memo. Exh.P.F., The Investigating Officer on 3-9-1993 led Imran Bokhari, Draftsman to the place of occurrence who prepared the site plan Exh.P.H. After completion of the formal investigation, the appellant was challaned to face the trial.

5. At the trial, prosecution in order to prove its case produced 12 witnesses in all, then the learned D.D.A. tendered in evidence report of the Chemical Examiner (Exh.P.L.), report of the Serologist (Exh.P.M.) and report of the Forensic Science Laboratory Exh.P.N. and closed the prosecution case. Thereafter, statement of the appellant was recorded under section 342, Cr.P.C. in which he claimed false implication. After conclusion of the trial, the appellant was convicted and sentenced as stated above.

6. Learned counsel -for the appellant after having read the entire prosecution evidence and other material available on record submits that it was a night time occurrence, in fact it was an unseen occurrence, both the eye-witnesses produced by the prosecution are real brother and brother-in-law inter se of the deceased respectively, no independent witness has been produced, ocular account is in conflict with medical evidence, the recoveries are planted one, prosecution has miserably failed to prove its case against the appellant and that the appellant may be acquitted.

7. On the other hand, learned counsel for the State submits that the appellant is single accused, named in the F.I.R. with role, ocular account is fully corroborated by the medical evidence and the recoveries and that the learned trial Court was right in convicting the appellant. In nutshell he supports the judgment of the learned trial Court.

8. We have heard learned counsel for the parties and have gone through the record. According to the prosecution, occurrence in this case had taken place at 4 a.m. on 2-9-1993 and the matter was reported to police at 5 a.m. the same day through complaint Exh.P.B. and the formal F.I.R. Exh.P.B./1 was recorded at 5-05 a.m. It was the case of the prosecution that when the deceased after bolting the outer gate of the house of appellant turned around, the assailant from the window issued a brust with rifle .222 on backside of the deceased. Dr. Naseer Ahmad Chaudhary (P.W.6) who conducted post-mortem on the dead body of the deceased on 2-9-1993 at 3-45 p.m. found four injuries. During the cross-examination, the doctor admitted that injuries 3 and 4 appear to have been caused from backside of the deceased in a straightway forming one exit wound under Injury No.3 whereas there was no exit wound under injury No.4. If one go through the site plan prepared by the draftsman Exh.P.H., according to point "A" the appellant was standing in his window and it was 15' feet and 8 inches high from where he fired at the deceased. Had this been the position, then the dimension of the injuries on the person of the deceased would have been from upward to downward which is negated from the statement of the doctor. This proves that the eye-witnesses were not present at the spot, they must have stated the correct version of the occurrence, had they been present at the spot.

9. Muhammad Akram (complainant) P.W.2 is real brother of the deceased. He is resident of Siddique Gunj, Misri Shah, Lahore which is at a distance of 1-1/2 miles while the occurrence took place within the jurisdiction of Police Station Yakki Gate. His presence at the spot is doubtful. He being brother of the deceased has been made first informant in this case. He did not give any reason in 'the F.I.R. that why he was present in the house of his brother instead of being at his house. His evidence, as mentioned above, is totally in conflict with medical evidence. The other witness in this case is Muhammad Sharif P.W.3. He is husband of sister of the deceased and the complainant. He is also resident of Misri Shah. Like the complainant his presence at the spot is doubtful. His evidence is also in conflict with medical evidence. This witness admitted that the occurrence took place within the jurisdiction of Police Station Yakki Gate while he is resident of Misri Shah which is one mile away from the place of occurrence. He has also admitted his relationship with the deceased and the complainant. He has made improvements about his presence at the spot and -he was duly confronted.

10. The motive given in the F.I.R. was that few days prior to the occurrence, there was a quarrel in between the deceased and the appellant over children but the matter was patched up by Zafar Iqbal the said Zafar Iqbal was never produced by the prosecution to prove the motive.

11. Now we take up the recoveries. According to prosecution, nine crime empties of rifle 222 were taken into possession from the spot by the Investigating Officer on 2-9-1993. The appellant was arrested on 3-9-1993. According to statement of the Investigating Officer (P.W.12) the appellant led to the recovery of rifle P.14, licence P.15 and 20 live bullets P.16/1020 and a bandoliar from his house which were taken into possession vide memo. Exh.P.F. but both the crime empties and the rifle were sent together to Fire-arm Expert on 14-9-1993, so the positive report of the Fire-arms Expert is not trustworthy and we rule out the same from consideration.

12. It is a case in which death sentence has been awarded to the appellant. In a case of such-like punishment, the evidence must have come from an unimpeachable source as laid down by their Lordships of the Honourable Supreme Court of Pakistan in 1999 SCMR 1030. In view of what has been discussed above, it is quite clear that evidence led by the prosecution in the instant case is not of the quality or nature which could be said to have come from an unimpeachable source. The prosecution story is full of doubts and discrepancies the benefit of which has to be extended in favour of the appellant. As a sequel of the above discussion, by extending the benefit of doubt we acquit the appellant and set aside his conviction and sentence recorded by the learned trial Court. The appellant is in jail and he shall be released forthwith, if not required to be detained in any other case. Death sentence is not confirmed and the murder reference is replied in the negative. H.B.T./M-748/L Appeal allowed.