' SYED HUSSAIN MAZHAR KALEEM, J.--- The above titled appeals have been directed against the judgment of Additional District Court of Criminal Jurisdiction, Dadyal Camp Mirpur dated 18-6- 2005, whereby Khalid Mahmood appellant was awarded life imprisonment for commission of offences under section 302, A.P.C. And 3 years simple imprisonment under sections 13/20/65, Arms Act.
2. Brief facts leading to the background of the appeal are that a case under section 302, A.P.C. Was registered at Police Station Dadyal on the application of Muhammad Azam. It was stated that the complainant is a resident of Anker Maira. Muhammad Saleem son of Ali Shan told him that at 00- 30 a.m. Shoukat Mahmood son of Abdul Aziz went to the house of Arshad Ali to inform him about the death of Fazal Begum. While on his way back as he reached at roof of the house of Mazhar Hussain some one killed him by causing fire-arm injury and his dead body is lying at the place of occurrence. Upon this information the complainant went to the house of Mazhar Hussain where Arshad son of Ali Shan, Ansar son of Abdul Ghani and Noorin wife of Mazhar Hussain were present near the dead body. They told him about the occurrence and he reported the matter to the police.
3. After investigation a challan under section 302, A.P.C. Was submitted before the trial Court against the convict-appellant. The statement under section 242, Cr.P.C. Was recorded on 26-5- 2005. He pleaded not guilty, therefore, the prosecution was ordered to produce evidence in support of its case.
4. After completion of the prosecution evidence the convict-appellant was examined under section 342, Cr.P.C. On 15-6-2005. The trial Court after considering the material on record arrived at the conclusion that prosecution has succeeded in proving its case against Khalid Mehmood consequently he was convicted and sentenced to life imprisonment vide impugned judgment.
Hence these appeals.
5. As both the appeals arise out of the same judgment of Court below, therefore, these are disposed of through this common judgment.
6. The learned counsel representing the appellant argued that the accused has been involved in a false case on account of enmity. He is not nominated in the F.I.R. The occurrence is not witnessed by anybody. He further argued that Ansar, Saleem son of Ali Shan and some others were also arrested by the police soon after the occurrence. Whereas the accused appellant was arrested on 8-4-2005 which shows that no evidence was available against him till that time. The learned counsel submitted that the complainant concocted a false story against the convict-appellant with the connivance of police. All the prosecution witnesses are closely related to the complainant and the deceased. Their statements are full of contradictions. Muhammad Ansar, Muhammad Saleem, witnesses and the Investigating Officer were not produced during trial. The recoveries were also doubtful and no independent corroboration in support of the prosecution case was brought on record. The learned counsel submitted that the prosecution has miserably failed in proving its case against the convict-appellant. The Court below failed to appreciate the evidence on record in a judicial fashion. The prosecution story being highly doubtful is not worth relying, therefore, by accepting the appeal, the convict-appellant may be acquitted of the charge.
7. On the other hand, the learned counsel for the complainant submitted that the prosecution has successfully proved its case against the convict-appellant. Strong evidence in shape of dying declaration, statements of inmates of the house and recoveries effected upon are on record. No enmity between the convict-appellant and the prosecution witnesses is shown, therefore, the question of false implication does not arise. The learned counsel argued that Shoukat Mehmood received firearm injury and was lying at the place of occurrence. In the meantime P.W. Mst. Zubaida Begum came there. Shoukat Mehmood told her that Khalid Mehmood son of Sajawal Khan fired at him P.W. Mst. Noreen and P.W. Mst. Tehmina have also supported the statement of P.W. Mst.
Zubaida Begum. According to the learned counsel the prosecution witnesses were cross-examined at length but the defence failed to bring out anything in favor of appellant. He further argued that weapon of offence the .12 bore gun recovered at the instance of appellant along with the crime- empty of .12 bore gun seized from the place of occurrence, was sent to Forensic Science Laboratory. The report of the Forensic Science Laboratory shows that empty seized from the place of occurrence was fired from the gun recovered at the instance of convict-appellant. The prosecution story stands corroborated by the medical and the Forensic Science Laboratory Expert's reports. He submitted that the trial Court fell in error while awarding the lesser sentence of life imprisonment to the appellant. Normal sentence for the offence is death, therefore, by accepting the appeal the same may be enhanced.
8. I have heard the learned counsel for the parties and gone through the record of the case.
9. The prosecution story as appears from the statement of Zubaida Begum, is that on 27-2-2005 at 12-30 a.m. Ansar Mehmood knocked at the door of Shoukat Mehmood who opened the door and told him that Fazal Begum admitted to a hospital in Islamabad was died and also asked him to bring her dead body. Upon this Shoukat Mehmood went to the house of Arshad Mehmood through stairs and called him from the roof of the house. While on his way back as he reached at the stairs Khalid Mehmood fired at him, she came at the place of occurrence. Shoukat Mehmood told her that Khalid Mehmood fired at him. It further appears that she told P.Ws. Noreen and Tehmina about the said statement of Khalid Mehmood.
10. A perusal of the impugned judgment shows that the trial Court while convicting the appellant relied upon the statement of Mst. Zubaida Begum particularly the part of the statement wherein she deposed that Shoukat Hussain told her that Khalid Mehmood fired at him. The statements of P.Ws. Noreen, Tehmina and recovery of weapon of offence were also relied upon for the purpose.
11. The statements of P.Ws. Tehmina and Noreen show that they heard the sound of fire. Upon this Mst. Zubaida Begum, mother of the deceased went towards the place of occurrence. Both of them followed her and came at the place of occurrence. Zubaida Begum was sitting and was crying near the dead body of Shoukat Mehmood. She told the witnesses about statement of the deceased.
12. It follows that some one from the above-mentioned witnesses told Muhammad Saleem and others and on this information Muhammad Azam lodged the report but surprisingly they did not mention the name of Khalid Mehmood thus, he was not nominated as an accused in the F. I . R.
13. According to the statement of Muhammad Azam complainant, on 27-3-2005 at about 12-15 a.m. Saleem son of Ali Shan came to his house and told him that some unknown persons killed Shoukat Mehmood. Upon this he came at the place of occurrence and saw the dead body. P.Ws.
Noreen, Arshad and Ansar were also present there. They told him about the occurrence and he lodged the report.
14. It is important to note here that after having been informed by Shoukat Mehmood the complainant came at the place. P.Ws. Noreen, Arshad and Ansar were present there. They informed the information and told him that some unknown person killed the deceased. It is clear from the statement of the complainant that no one including P.W. Noreen told him about the statement of the deceased wherein he alleged Khalid Mehmood for causing him fire-arm injury, therefore, the question that why P.W. Noreen suppressed the information regarding to the statement of deceased from the complainant remains shrouded in mystery.
15. It is interesting to note here that according to the statement of Muhammad Azam the police arrested Ansar son of Abdul Ghani for commission of offence of murder and he remained in custody for 12 days. It further appears that the police also arrested Saleem, Ansar and Arshad sons of Ali Shan, Nawaz son of Ameen, Zafar Mehmood son of Abdur Rehman, Muhammad Hanif son of Shafi and Qurban son of Hamid.
16. I am unable to understand that why the police arrested the above mentioned persons after the statements of P.Ws. Zubaida Begum, Noreen and Tehmina which were recorded on 27-3-2005. It is strange that the names of Shoukat Mehmood (who initially informed the complainant about the occurrence) and Ansar son of Abdul Ghani are included in the list of above mentioned suspects.
Later on both were cited as witnesses but during trial were given up.
17. It is no doubt that a verbal dying declaration is as good as a written one but in above mentioned situation such verbal statement needs strong independent corroboration. In the present case F.I.R.
Was lodged on 27-3-2005. According to the prosecution case the statement of the deceased was in the knowledge of P.Ws. Zubaida, Tehmina and Noreen, before the F.I.R. Was lodged. They informed others about the occurrence but surprisingly the appellant is not nominated in the F.I.R.
According to the statement of Investigating Officer the appellant was arrested by the police on 9- 4-2005. According to the statement of the complainant at least eight other suspects were under investigation. It may also be stated here that the site plan does not indicate the presence of Mst.
Zubaida Begum in the courtyard of the house at the time occurrence. In this view of the matter I am unable to persuade myself to accept that the deceased made any statement before his death.
18. According to the prosecution case a crime-empty of .12 bore gun was seized from the place of occurrence on 27-3-2005. The alleged weapon of offence .12 bore gun was recovered on 16-4-2005 in presence of Muhammad Rashid and Nazim Ali. Their statements show that they were informed by the. Police a day before that tomorrow the weapon of offence shall be recovered. The witnesses are close relative of the deceased. They are inimical towards the appellant. It was required that independent respectables of the locality should be asked to join the recovery but unfortunately the Investigating Officer failed to comply with the mandatory provisions of law, therefore, I am of the view that the recovery of weapon of offence is doubtful and is of no help to the prosecution.
19. In my view the trial Court failed to appreciate the above mentioned facts while passing the impugned judgment and also failed to appreciate that the complainant, P.Ws. Zubaida Begum, Noreen Akhtar, Tehmina and witnesses were closely related to the deceased. Particularly complainant was not enjoying good relations with the appellant and as per statement of P.W. Mst.
Zubaida Begum dispute over a piece of land between him and the father of the appellant is there, therefore, their statements need a careful scrutiny.
20. The upshot of the above discussion is that the appeal filed by appellant Khalid Mehmood is allowed. The impugned judgment is set aside and the convict-appellant is acquitted of the charge.
He shall be released from custody if not required in any other offence or case. The counter-appeal filed by the complainant and Mst. Zubaida Begum is dismissed.