This judgment will dispose of Crl. Appeal No. 1837 of 2002 filed by Nasir Ali appellant and Crl.
Revision No. 1225/2002 filed by the complainant, directed against the judgment dated 9.10.2002 passed by learned Addl. Sessions Judge, Kasur, whereby he convicted the appellant u/S. 302-B PPC and sentenced him to undergo life imprisonment with further direction to pay Rs. 50,000/- as compensation to the legal heirs of the deceased as required u/S. 544-A Cr.P.C. or in default thereof further S.I. for six months. Benefit of Section 382-B Cr.P.C. was also granted to the appellant.
2. Brief facts of the case as narrated by the complainant in the FIR are that on 27.8.2001, he alongwith his brother Zaheer, Fayyaz Ahmad and their servant Nasir was present at Alfreed Gift Centre when two unknown persons came there on a Honda Motor. Cycle at 9.30 a.m. and they while entering in the shop said to Zaheer Ahmad deceased that they have come to teach them a lesson and they started indiscriminate chhurri blows upon Zaheer Ahmad. The complainant and his companions tried to escape Zaheer Ahmad from the said persons but they also made chhurri blows upon them, but luckily the chhurri blow did not hit the complainant but it hit on both the hands of Nasir the servant of complainant party. Zaheer Ahmad deceased sccumbed to the injuries at the spot. The motive behind this occurrence was a. dispute on returning a Bhaloo gift back to Gift Centre owned by the deceased.
3. After getting information about the occurrence the local police completed all the necessary formalities and thereafter Muhammad Siddique alongwith his subordinates proceeded, to the spot.
He prepared the injury statement Ex. P.N and inquest report Ex. P.M. He also received last worn clothes of the deceased vide memo Ex: PA. The S.I also took into possession blood-stained earth vide memo Ex. E.L, and Chhurri P.5 vide memo Ex. P.J. He also recorded the supplementary statement of the complainant. The appellant was arrested by Abdul Aziz S.I. on 11.10.2001. Ultimately the appellant/accused was challaned and was sent to judicial lock up to face the trial.
4. The prosecution in order to prove its case has produced as many as 19 PWs, including Doctor, I.Os, eye-witnesses as well as other formal and relevant witnesses. After tendering in evidence reports) of Chemical Examiner Ex. P.Q., Ex. P.O., Ex. P.P. and reports of Serologist Ex. P.R. Ex. P.S., Ex.P.T and Ex. P.O., the learned ADA closed the prosecution evidence. Thereafter statement of the accused was recorded u/S. 342 Cr.P.C. in which he pleaded his innocence. Learned trial Court after taking into consideration the every aspect of the case and hearing the arguments advanced by both the parties convicted and sentenced the appellant as mentioned above. Hence this appeal.
5. Learned counsel for the appellant in support of this appeal submits that in the FIR which was lodged by Tauqeer Ahmad the real brother of Zaheer Ahmad deceased, it is stated that he (complainant) had seen two persons coming on a Honda Motor Cycle (not named in the FIR) committed the murder of the deceased as the deceased had not taken back the gift (Bhaloo) purchased by one of them from the deceased. Learned counsel submits that on the same day Tauqeer Ahmad made a supplementary statement, stating therein that it was the appellant who had committed the murder of the deceased. Even in that supplementary statement no eye- witness was named. He submits that prosecution has produced 19 witnesses before the learned trial Court including Manzoor Ahmad son of Khushi Muhammad before whom the appellant had made an extra judicial confession, though it was also the case of the prosecution that the appellant had made a confessional statement before the Magistrate namely Tariq Karim Khokhar, which is on oath and the same is totally illegal and void. He further submits that later on an, other eye-witness was produced but Tauqeer Ahmad PW was given up by the prosecution being unnecessary. Learned counsel further submits that when the prosecution closed its case then on 5.6.2002 the complainant submitted an application that Tauqeer Ahmad be examined. Thereafter he was also examined by the learned trial Court. Learned counsel submits that an alleged eye- witness namely Gulraiz Ahmad the real nephew of the complainant and the deceased was produced, then there are two alleged witnesses namely Sheesh Khan and Umar Khan, who are father and son respectively belonged to Roth Rai Abubakr which is situated at a distance of 10 miles away from the place of occurrence, that motive was also changed later on stating therein that the appellant who was an employee of the deceased used to steal the expensive articles from the shop and the house belonging to deceased on which an altercation took place between the deceased and the appellant which resulted in the death of the deceased. He submits that in fact the appellant was an eye-witness who was made an accused later on. He was also injured in this case and he was got medically examined. Lastly he submits that no case against the appellant is made and he is entitled to acquittal.
6. Learned state counsel on the other hand assisted by the learned counsel for the complainant who has also filed a revision petition, submits that there are 17 injuries on the head of the deceased and thirteen injuries on the other parts of the body of deceased, that the blood-stained chhurri was recovered from inside the counter of the shop, that there are injuries on the back side of the hands of the appellant. Learned counsel submits that in judicial confession the appellant has stated that there were illicit relations between the deceased and the appellant. They submit that it was not the case of the defence that there were illicit relations between the deceased and the appellant, neither the appellant had taken this stand in his statement recorded u/S. 342 Cr.P.C. They submit that Nasir Hayat and Allah Waris police officers who are closely related to the appellant had damaged the prosecution case, that the presence of Gulraiz Ahmad had been admitted by the defence in the cross-examination of Umar Khan PW that he was sitting outside the shop on motorcycle at the time of occurrence. They support the case of the prosecution against the appellant.
7. I have heard the learned counsel for the parties. This is strange type of case. The occurrence according to the prosecution took place at 9.30 a.m. on 27.8.2001 and the FIR was lodged by Tauqeer Ahmad complainant the real brother of Zaheer Ahmad deceased. The deceased was present at his shop alongwith the appellant who was his sales man. Two unknown persons came on a motorcycle, they wanted to return back the gift (Bhaloo) which they had purchased from the deceased. The deceased refused to take back the gift on which an altercation took place and thereafter both of them took out chhurris and gave thirty injuries on the different parts of the deceased and even according to the complainant when the present appellant tried to rescue the deceased from those assailants, he also received injuries on his hands. Later .on supplementary statement was also recorded on the same day but it is not mentioned that the same was recorded at what time and how on the same day. All the case diaries are on white papers and not on printed paper. Even in that supplementary statement no eye-witness was mentioned but later on in order to establish a false case against the appellant not only extra judicial confession was concocted but judicial confession was also concocted and it has not been rebutted by the complainant who has also filed a revision petition, that the judicial confession of the appellant was made when he was in hand-cuffs and that too was made on oath which is totally illegal and is ruled out of consideration. Even Gulraiz Ahmad nephew of the deceased who was made an eye-witness in this case, was never named as an eye-witness in the FIR. Then two other persons namely Sheesh Khan and his son Umar Khan were made eye-witnesses who were residents of a place situated 10 miles away from the place of occurrence. They were also not named in the FIR. As many as 19 witnesses were produced by the prosecution and the prosecution evidence was closed on 13.4.2002. Tauqeer Ahmad PW was given up on 13.4.2002. Later on an application was given and he was examined on 6.5.2002 and he made a very detailed statement making dishonest improvements and introducing a story against the FIR.
8. After having heard the learned counsel for the parties and going through the. record available on The file, I am of the considered opinion that the case against the appellant is totally false. He has been convicted and sentenced illegally. In this view of the matter, this appeal is accepted and the conviction and sentence awarded to the appellant is set aside. The appellant is behind the bars, he shall be released forthwith if he is not required in any other case. The revision petition is dismissed.