2003 P Cr (PLP)

2. This judgment has arisen out of case F.I.R. No. 318 Exh.P.H. registered on 13th of October, 1995 at about 6‑05 p.m. on the statement of Nasrullah Khan P.W.I, recorded by Dost Muhammad, A.S.‑I. P.W.12, at Police Station, Saddar, Bhakkar for an occurrence which had taken place on 13‑10‑1995 at 5‑00 p.m. in the area of Hussain Abad village at about 5 k.ms. of distance from the Police Station Sadar, Bhakkar, in which the appellant and his acquitted co‑accused Mukhtar Hussain were alleged to have tired at the back of the deceased with their pistols, who received injuries and died at the spot in the presence of complainant Nasrullah Khan P. W .9, Inayat Ullah P. W .10 and Falak Sher P.W. given up.

3. The charge was framed against the appellant and his co‑accused which was denied by them and the prosecution in order to prove the guilt of the accused had produced as witnesses.

4. P.W.1 Dr. Abdul Razzaq Ghouri had conducted the post‑mortem examination of the deceased and found for tire‑arm injuries. Two of them were exist wounds and two of them were entry wounds. Remaining witnesses are of formal nature except P.W.9 Nasrullah Khan and P.W.10, Inayat Ullah, who had given the ocular account while P.W.11 Sabir Hussain, Shah, S.‑I. and P.W.12 Dost Muhammad, A.S.‑I. had partly investigated the case.

5. The appellant in his statement under section 342, Cr.P.C. had denied the allegations and to a question that 'Why the P.Ws. deposed against you and why the case against you?" he has made the following reply:‑‑‑ "P.Ws. are related inter se and are close relatives of the deceased Habib Ullah and they are inimical towards me, moreover, they are chance witnesses.

6. The impugned judgment has been passed after hearing the learned counsel for the parties, which is assailed through this appeal, whereas the complainant has requested for the enhancement of the sentence awarded to the appellant.

7. Learned counsel of the appellant contends that it is an admitted fact that Nasrullah Khan P.W.9 was co‑accused with the deceased for the murder of real brother of the appellant and if this motive was correct that the complainant had been present at the spot, then he could have also been murdered by the accused party. It is further contended that Habib Ullah deceased was brother‑in‑law of Nasrullah complainant, while Inayat Ullah was real brother of the deceased and Falak Sher P.W. given up was brother‑in‑law of the deceased, hence, all the three witnesses were closely related inter se and also with the deceased. while previous enmity is admitted between the eye‑witnesses and the accused including the appellant, hence, it can safely be said that ocular account is interested one and cannot be relied upon without independent corroboration. which is lacking in this case and recovery of pistol is also of no use for the purpose of providing any corroboration as the empties were not recovered from the spot. It is also contended that the witnesses are residents of City Bhakkar which is about 6/7 k.ms. away from the place of occurrence, who were only chance witnesses and had narrated totally false and concocted story. It is also contended that on the basis of the same evidence four accused have been acquitted and conviction of the appellant cannot be maintained on the same evidence unless there is any material available against him which is not available on the file.

8. On the other hand, learned counsel for the complainant opposes this appeal on the ground that the appellant had caused fire‑arm injury on the back of the deceased and the doctor was given the opinion that death was due to injuries Nos. 1 and 4 which injuries were caused on the back and could be result of one shot while Mukhtar was found innocent by the police, hence, appellant has rightly been convicted on the basis of evidence produced by the prosecution in‑the shape of ocular account which is corroborated by the medical evidence and recovery of pistol. It is further contended that witnesses are residents of the same locality and the minor contradictions in their statements are not sufficient to discard their evidence.

9. I have heard the both the learned counsel fur the parties and also perused the record. It is admitted fact that deceased Habib Ullah was brother of P.W.9 namely Nasrullah Khan and both were: accused in at murder case of brother of appellant and his co‑accused Mukhtar Hussain who were tried for the same but on account of compromise effected between the parties in lieu of payment of Rs. 2,00,000 As Badl‑e‑Sulah and demand of the hand of Mst. Fizza were acquitted P W.9 Nasrullah Khan during cross‑examination alleged that they were falsely implicated in the murder cast' by the accused. In such circumstances, it can safely be said that had the complainant been in fact present at the shot at the time of occurrence. there was possibility that he should not have been saved I by the appellant and his co‑accused. if the motive as alleged in the F.I.R. was not the only reason for the commission of this offence. It is also admitted fact that P. W. 10 Inayat Ullah was real brother of the deceased. and enmity is established between the parties as it seems that some dispute had arisen after the compromise because Nasrullah Khan P.W.9 was not happy to give the hand of Mst. Fizza his sister to the accused in order to compensate them for effecting the compromise, and suit for dissolution of marriage was also tiled. It is established on the record that the previous enmity existed between the eye‑witnesses and accused/appellant, so their statements can only be relied upon if independent, corroboration is available on record to substantiate their evidence connecting the appellant with the commission of the crime. The mere recovery of pistol itself cannot provide independent corroboration as empties were not recovered from the spot. It cannot be said in the absence of the report of Forensic Science Laboratory that this pistol had actually been used during the occurrence. Another important fact is that Falak Sher brother‑in‑law of the deceased who was cited as an eye witness in the F.I.R. and real sister of the deceased had made statements before P.W.l2 and D.S.P./S.D P.O. that the occurrence had not taken place in the manner as was stated in the F.I.R. It was admitted by P.W.9 Nasrullah Khan and P.W.10 Inayat Ullah that they were serving as telephone operators in City Bhakkar and quarters were also allotted to them by the Railway Department P.W.9 also admitted that his children were staying in City Bhakkar. In such circumstances, the presence of ,the witness at the place of occurrence which is about 6/7 k.ms. away from the places of their working and residence is doubtful. Moreover, there are also contradictions in their statements about their going to mosque when the deceased was attacked by the appellant and his co‑accused. In the absence of any corroborative piece of evidence, it is not safe to rely upon them for the conviction of the appellant for the charge of capital punishment. Learned counsel of the complainant has failed to show any reason for the conviction of the appellant on the same evidence which has not been relied upon for the conviction of the other co‑accused who were acquitted. Mere recovery of pistol from the appellant in the absence of any empties recovered and having them found matched with the pistol by the Forensic Science Laboratory cannot be termed as corroborative piece of evidence to maintain his conviction and sentence.

10. For the foregoing reasons the prosecution has failed to prove. its case beyond any shadow of doubt against the appellant. who is acquitted of the charge against him by giving him the benefit of doubt and setting aside the impugned judgment of conviction and sentence. The appellant is in custody and shall be released forthwith, if not required in any other criminal case.

11. Since the appellant has been acquitted by accepting his appeal, the. Criminal Revision No. 182 of 1997 filed by the complainant for enhancement of the sentence of the appellant cannot proceed any further, which is dismissed. S.M.A.H./G‑209/L Appeal accepted.