1987 PLP 620 (SCMR)

SAAD SAOOD JAN, J.‑‑The appellants, Ahmad and Nasir, in this appeal by special leave were convicted by the Additional Sessions Judge at Faisalabad of an offence under section 302, read with section 34, of the Pakistan Penal Code for causing the death of one Kamir and were sentenced to suffer imprisonment for life and fines of Rs.5,000 each. Their conviction and sentences were upheld by the High Court. Together with them Jaffar, brother of Ahmad appellant, was also tried on the same charge but he was acquitted by the learned Additional Sessions Judge.

2. Briefly stated the case of the prosecution was that on the night of 8‑5‑1976 the deceased, Zulfiqar Ali, Amir (P.W.9) and Yousuf (P.W.10), were sleeping at the Dheri of one Ilyas in Chak 357/G.B. of Tehsil Jaranwala where they had gone to help Ilyas in thrashing wheat. At about 9‑00 p.m. the two appellants with Jaffar came there. The appellants were armed with guns. They fired at the deceased and killed him. The motive for the occurrence was described to be a dispute over property which the deceased had got mutated in his favour to the exclusion of his sisters and paternal‑uncle. After the occurrence Zulfiqar Ali went to the Police Station Jaranwala and lodged the first information at 2‑30 a. m.

3. At the trial the prosecution examined only Amir (P.W.9) and Yousuf (P.W.10) as eye‑witnesses of the occurrence. Zulfiqar Ali was given up as he was reported to have been won over by the defence. Amir (P.W.9) too was declared hostile when he stated in his cross‑examination that it was only on the arrival of the Sub‑Inspector at the spot that he came to learn who the accused were and at the time of occurrence none of the witnesses knew about the identity of the assailants. This left the statement of Yousuf (P.W.10) alone to be considered. Both the trial Court as well as the High Court accepted his testimony and based the conviction of the appellants on his testimony as corroborated by the recovery of the firearm from their possession.

4. After going through the evidence we are not satisfied that Yousuf (P.W.10) was in fact present at the spot at the relevant time. He was a resident of Chak 355/G.B. whereas the occurrence took place in Chak 357/G.B. which was about 12 squares away. The deceased was shot dead at 9‑00 p.m. This was hardly the time when he would ordinarily be away from his own house. The explanation which he offered for his presence at the Dheri of Ilyas was that he had gone there for threshing the wheat crop. According to him the threshing floor was at a distance of two to three Kanals from the Dheri where he was sleeping. Now the Investigating Officer who visited the spot soon after the occurrence stated that no threshing floor or Khulyan could be seen near the place of occurrence. Thus, the very explanation which this witness gave for his presence at the spot has been belied by the Investigating Officer. That being, so, his statement too ought have been ruled out of consideration.

5. It will thus appear that there is no reliable evidence on the basis of which the conviction of the appellants for causing the death of the deceased could be supported. We would accordingly accept this appeal, set aside their convictions and sentences and acquit them of the charge against them. They are already on bail. Their bail bonds shall stand discharged. M.I. /A‑5/S. ??????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.