2002 PLP 484 (YLR)

Date of hearing; 25th January, 2002. This judgment will dispose of Criminal Appeal No. 1464 of 2000 filed by Muhammad Afzal, appellant; who was convicted and sentenced by learned Additional Sessions Judge Sheikhupura vide his judgment dated 11-9-2000 to undergo imprisonment for Life and to pay Rs. 25,000 as compensation to the legal heirs of deceased as required under section 544-A Cr.P.C., in default six months' S.I, ruder sections 302/149, P.P.C. with the benefit of section 382-B, Cr.P.C.

2. Occurrence in this case had taken place at 1-00 p.m. on 21-9-1996 within the jurisdiction of Police Station Factory Area, Sheikhupura at a distance of three miles away while the matter was reported to the police on the same day at 9-00 p.m. by Chiragh Din complainant through complainant Exh.P.B and the formal F.I.R. Exh.P.B/1 was recorded in the Police Ration by Israr Khan Moharrar at 9-30 p.m.

3. Brief facts of the case as disclosed by Charagh Din complainant are that he is a labourer and he is resident of Kot Noor Shah. The drug sellers of Dhudian Chahar were used to sell narcotics at Adda Kot Noor Shah. The other respectables of his village and also his son namely Javed have been asking theses persons not to do on. On 21-9-1996 at about 8/9 a.m. his son Javed aged 28/29 years has asked Labha son of Bashir not to sell heroin there. A quarrel between his son Javed and Labha took place and Labha had threatened him. On the same day, at about 1.00 p.m. the accused Labha armed with. 12 bore gun, alongwith Qasim alias Nikko. son Taj Din armed with.12 bore gun, Manzoor Hussain alias Jhoori son of Issa armed with rifle, Mithu son of Ali Ahmad armed with rifle and Kaleem Ullah son of Asghar armed with rifle came at Adda Kot Noor Shah. The accused Labha has raised a Lilkara to teach a lesson to his son Javed over the quarrel. Jafar, Asghar, his son Muhammad Mansha and the complainant but the accused persons have not taken care of for any request made by them. The accused Labha made a fire from his gun which hit the deceased Javed on head. Hi: all other companions have also made direct firing. Javed has fallen on the ground while sustaining the injuries and the accused persons have managed to run away. Javed was taken to Mayo Hospital, Lahore and was referred to General Hospital, Lahore where he succumbed to the injuries.

4. After registration of the forma: F.I.R. Muhammad Safdar S.H.O. P.W.12 proceeded to the General Hospital, Lahore prepared injury statement of the deceased Exh.P.I and inquest report Exh.P.J thereafter, he proceeded to the place of occurrence, inspected the same and recorded the statements of the P.Ws. On 15-11-1996 he arrested Kaleem, Qasim and Mujahid Iqbal alias Mithu accused and or 27-11-1996 he arrested Javaid alias Jaiddi accused. After completion of the investigation, the accused was challaned to face the trial.

5. At the trial, prosecution in order to prove its case produced 14 witnesses in all. thereafter, learned A.D.A. tendered in evidence report of . Chemical Examiner pertaining to blood-stained earth Exh. P. L. that of the Serologist Exh.P.M .and closed the prosecution case then the statements of the accused were recorded under the section 342, Cr.P.C. in which they pleaded innocence and claimed false implication.

6. Learned counsel for the appellant submits that there is a delay of eight hour, in lodging the F.I.R., that on the same set of evidence the other five cc-accused of the appellant named in the F.I.R., namely Qasim, Kaleem Ullah, Mujahid Iqbal alias Mithu, Javed Iqbal and Manzoor, who were also armed with fire-arm and fired at the spot have been acquitted by the learned trial Court, that no recovery was effected from the appellant, that motive was not proved by the prosecution, that learned trial Court had disbelieved the motive in this case, that there is a conflict between ocular account and. medical evidence, that both the eye witnesses are closely related to the deceased, that there are material contradictions in the statements of the witnesses, that there is no corroboration of these interested witnesses from any source, that place of occurrence is also doubtful in this case. He lastly, submits that prosecution has failed to prove its case against the appellant beyond any shadow of doubt.

7. On the other hand, learned counsel for the State submits that appellant was the person, who caused fatal blow on the head of the deceased, that three empties of .12 bore were also recovered from the spot and recovery memo. Exh.P.G was also prepared, that occurrence had taken place in a broad daylight, that prosecution has proved its case against the appellant beyond reasonable doubts. He ,supports the judgment of the learned trial Court.

8. I have heard learned counsel for the parties at a great length and have also gone through the record very minutely with their able assistance. In the instant case, including the complainant there were two eye-witnesses, who were named in the F. I. R., Police. Station was at a distance of 3 miles away from the place of occurrence, complaint Exh.P.B was made at 9-00 p.m. at Saeed Chowk, Jaranwala, anybody besides the complainant amongst the eye witnesses could have approached the police station to lode the F.I.R. and moreover, F.I.R. was not recorded at police station, it seems that F.I.R. was recorded after due deliberation and consultation and even with the delay of 8 hours without any convincing and plausible explanation, on the same set of evidence five co-accused of appellant, who were also armed with fire-arms have been acquitted by the learned trial Court, though there is only one injury on the person of the deceased which is attributed to the present appellant but they fired at the spot and they were vicariously liable, no recovery was effected from the appellant during the course of investigation, appellant had fired only one shot, he was having.12 bore gun bat it is not written in the fire that the said gun was double barrel gun, there is also a conflict between ocular account and medical evidence. In the instant case, Tic. Muhammad Aslam Hameed P.W.6, who had conducted the post-mortem examination on the dead body of the deceased found injuries on the chest, eye brow, head, wrist and leg of the deceased. According to Chairagh Din P.W.9, who is father of the deceased fire was shot from a distance of 1-1/2 Karam, had this been the position then there should have been blackening on the wound, even there should have been only one injury because shot was fired from a very close range, the spreading of pellets and injuring different parts of the body would show that the same was fired from a long distance but later on, when draftsman prepared the site plan and showed the distance between deceased and the appellant 37 feet the same was improved to make the case in lines with the medical evidence, had the, eye-witnesses been present there and specially the complainant, he must have stated before the trial Court when the question was asked about the distance between appellant and the deceased 30/40 feet, he is also father of the deceased and the other witness Muhammad Asghar is grandson of the complainant, no ,dependent witness has been produced by he prosecution, recovery was not effected from the appellant, motive has been disbelieved, ocular account is not corroborated by medical evidence, capital punishment cannot be maintained on such l ike evidence, no Court can 'convict or maintain the sentence on capital charge unless the ocular account is corroborated by either medical evidence, motive or recovery which is lacking in the instant case. Merely, on such-like ocular account which has also come on record from close elations this conviction cannot be maintained, even otherwise, the motive set up in the F.I.R. that appellant was dealing n the business, of narcotics and deceased reprimanded him, no case on record has been brought by the prosecution in this regard. In fact, P.W.9 complainant had admitted that case F.I.R. No.248 of 1995 dated 9-9-1995 under sections 3/4 of prohibition was registered against his son Muhammad Javed deceased for having 10 grams of heroin, this was the base on which, the prosecution tried to fill the story when the base is not there then the story would definitely fall on the ground. This is a case in which there are so many doubts and the benefit of which always goes in favour of the accused not as a matter of grace but as a matter of right because complainant who claims himself to be lather of the deceased and to be present at he spot gave the distance 1-/12 Karam between deceased and accused and it has made the whole of the prosecution case doubtful, so while extending the benefit of doubt, I accept this appeal, the conviction and sentence recorded against the appellant by the learned trial Court is set aside. He is in jail and he shall be released forthwith if not required to be detained in any other case. N.H.Q./M-1009/L Appeal accepted.