2010 SCMR 1054 (PLP)

RAHMAT HUSSAIN JAFFERI, J.

The appellant Naeem Inayat along with acquitted accused Naeem Bakhsh and Nasar Hayat were tried for offence punishable under sections 302, 34, 364, 379 and 404, P.P.C. by the learned Additional Sessions Judge, Bhalwal, District Sargodha.

2. The prosecution alleged that on 1-9-2000 at about 5-00 p.m., the appellant went to the Baithak of the complainant Akhtar Nawaz where deceased Muhammad Nawaz father of the complainant, Sikandar Hayat (P.W.9) and Aurangzeb (not examined) were sitting. The complainant told the deceased that there was an allegation of theft of motorcycle against him belonging to Syed Manzoor Hussain Shah, therefore, they should accompany him to furnish his defence. On the request of the appellant, the deceased and all the above named persons agreed to accompany hint. The deceased sat on the motorcycle of the appellant, whereas the remaining three sat on another motorcycle. At about 5-00 p.m., they reached near sugarcane crop of Fayyaz Sipra where the appellant blow horns of the motorcycle on which absconding accused Muhammad Akbar armed with double barrel gun, acquitted accused Naeem Bakhsh armed with .222 rifle and Nasar Hayat empty handed came out from there. The prosecution further alleged that the appellant shouted that as per plan he had brought the deceased there, therefore, he should be murdered. The deceased got down from the motorcycle, in the meantime the absconding accused Muhammad Akbar fired a shot from his gun, which hit the deceased on his right side of abdomen due to which he fell down on the ground, thereafter they ran away. After the departure of the accused, the complainant and P.Ws. went to the deceased where they found him lying injured, therefore, after arranging a vehicle, he was taken to the hospital but on the way he succumbed to the injuries. Thereafter, the complainant Akhtar Nawaz went to the Police Station and lodged the report.

3. At the trial, the prosecution examined 14 witnesses, including the complainant Akhtar Nawaz (P.W.8) and Sikandar Hayat (P.W.9), being the eye-witnesses of the occurrence. The appellant along with acquitted accused denied the allegations of the prosecution in their statements recorded under section 342, Cr.P.C. No specific defence was taken by them except that they were innocent. The trial court, while acquitting the accused Nasar Hayat convicted the appellant and Naeem Bakhsh for committing the above-mentioned offences, as under: (i) Naeem Inayat: Under section 302(b), P.P.C. to imprisonment for life and fine of Rs.10,000, under section 404, P.P.C. to one-year and fine of Rs.1,000 and under sections 379/411, P.P.C. to two years and fine of Rs.1,000. (ii) Naeem Bakhsh: Under section 302(b), P.P.C. to imprisonment for life and fine of Rs.10,000. (iii) Both the convicts were directed to pay a sum of Rs.50,000 each, as compensation to the legal heirs of the deceased. All the sentences were directed to run concurrently coupled with benefit of section 382-B, Cr.P.C." On appeal, however, Lahore High Court, Lahore while maintaining the conviction and sentence of the appellant acquitted the co-accused Naeem Baldish, under the impugned judgment dated 9-2-2005. Hence, the appellant has filed the present appeal by leave of the Court.

4. Having heard the learned counsel for the parties and perusing the record of the case with their assistance, we find that the case of the prosecution hinges upon the evidence of P.Ws. 8 and 9 only. The allegation against the appellant was that he took the deceased along with him at the place of incident and then shouted that as per plan he had brought the deceased, therefore, he should be murdered. Both the witnesses deposed such facts, but we are surprised to note that if the intention of the appellant was to bring the deceased to the place of incident for the commission of crime then he would have not requested the complainant and two witnesses to accompany him so as to witness the occurrence. This aspect of the case is not fitting in the circumstances of the case and is against the natural conduct of a person. Therefore, we have been put on guard to minutely scrutinize the evidence of the witnesses. While going through the evidence, we find that in order to implicate the appellant, the witnesses had assigned the role of snatching the motorcycle from Sikandar Hayat (P.W.9) and also snatching the rifle from the deceased as per P.W.10 which was not supported by P.W.8. These improvements and contradictions were duly put to the witnesses and confronted with their 161, Cr.P.C. statements and F.I.R. but it was found that neither they stated such facts in the F.I.R. nor in their 161, Cr.P.C. statements. Therefore, the witnesses had improved their statements by assigning other parts except the part assigned to him at the initial stage with a view to strengthen the prosecution case and put the net around the appellant for the specific reason of getting him convicted. On appraisal of the evidence, we find that the incident was not witnessed by these witnesses as they were not present at the scene of incident because the reason shown by them to be present at the scene of incident was the request of the appellant, which has been found to be unreliable, unbelievable and against the natural conduct of a person. Thus serious doubt has been created in the prosecution version with regard to the involvement of the appellant in the commission of crime. Therefore, we are of the view that both the Courts below have misread the evidence and have not appreciated the same in its true perspective, therefore, miscarriage of justice has occurred, hence the convictions and sentences awarded to the appellant cannot sustain. Consequently, the impugned judgment is set aside and the appellant is acquitted of the charges.

5. Above are the reasons of our short order dated 11-2-2010, by which we had allowed the appeal of the appellant in the following terms:-- "For the reasons to be recorded later, this appeal is allowed, conviction and sentence of the appellant, recorded by the Courts below, are set aside and he is acquitted of the charges. He is ordered to be released forthwith, if not required to be detained in any other case." N.H.Q./M-21/SC Appeal accepted.