' SYED HUSSAIN MAZHAR KALEEM, J.--- The above titled appeals have been directed against the order of Additional District Court of Criminal Jurisdiction, Hajira dated 21-9-2002, whereby the appellant was convicted and sentenced to life imprisonment under section 302, A.P.C. And a fine of Rs,1,000 under section 13/20/65, A.A.
2. Brief facts leading to the background of the appeals are that a case under section 302, A.P.C.
Was registered at Police Station, Hajira on the complaint of Said Muhammad. It was reported that on 16-9-1998 Arshad Azam along with Muhammad Akhlaq was going to his home from Hajira Bazar. At about 7-30 p.m. As they reached at Trapa curve near Pothi Chaprian, they saw two strangers wearing white dress. Their faces were covered with clothes. They asked Arshad Azam to raise his hands and one of them fired with pistol which hit him at his chest. He fell down and succumbed to the injury. Muhammad Akhlaq accompanying the deceased witnessed the occurrence and informed the complainant, who reported the matter to the police nominating Muhammad Akhlaq a suspect.
3. During investigation Muhammad Hayat was brought under investigation and he was found guilty. After completion of the investigation, challan was submitted before the trial Court against accused appellant.
4. After completion of the trial, the Court convicted the appellant and sentenced him to life imprisonment and a fine of Rs,1,000 through the impugned order. Hence the above titled appeals.
5. The learned counsel for the convict-appellant argued that appellant was not nominated in the F.I.R. But Muhammad Akhlaq was shown as suspect and later on he was introduced as eye-witness.
According to the learned counsel the complainant, P.Ws. Azad and Muhammad Akhlaq were closely related to each other. They concocted a story to rope the appellant in a false case to save the real culprit. He emphasized that the F.I.R. Exh.P.B. Was a doubtful document. He further argued that the statement of Muhammad Akhlaq was also highly doubtful which was full of contradictions and there was no lawful justification to rely upon his deposition. The learned counsel contended that the confession of the appellant was not worth-relying as he was forced to make the statement and the same contradicts the statement of Muhammad Akhlaq. According to the learned counsel the recovery of weapon of offence was also doubtful for being made from a deserted place. The statements of attester of the recovery memos. Were also highly doubtful and they failed to prove that weapon was recovered at the instance of accused on the claimed date. The learned counsel submitted that prosecution story being highly doubtful was not worth-consideration. The trial Court failed to appreciate the evidence on record in a judicial manner, therefore, by accepting the appeal the impugned judgment may be set aside and the appellant be acquitted of the charge.
6. On the other hand, the learned counsel for the complainant argued that the F.I.R. Was a genuine document which was promptly lodged and true account of occurrence was given by the complainant. He further argued that P.W. Muhammad Akhlaq witnessed the occurrence. His presence at the place of occurrence was natural and it was not challenged by the defence. The learned counsel contended that weapon of offence was recovered at the instance of the appellant and the same along with crime-empties seized from the place of occurrence was sent to the Forensic Science Laboratory. The report of Forensic Science Expert shows that the crime-empty was fired from the said weapon and it was a strong corroboration to the ocular version. The learned counsel submitted that minor discrepancies in the statement of P.W. Muhammad Akhlaq were not worth-consideration. In light of the evidence it stands established that the prosecution has successfully proved its case against the convict appellant. The trial Court appreciated the evidence in a judicial fashion and arrived at correct conclusion but committed a serious legal error while awarding the lesser punishment of life imprisonment, therefore, by accepting the appeal he be awarded normal sentence for the offence of murder which is death penalty.
7. Since both the appeals arise out of same order of the trial Court, therefore, these shall be disposed of through this common judgment.
8. I have heard the learned counsel for the parties and gone through the record of the case.
9. The prosecution story as relied upon by the trial Court is that three months prior to the occurrence Muhammad Hayat convict-appellant borrowed Rs,12,000 from the deceased and than he was asking him to return the money. On 15-9-1998 they met in Hajira Bazar, Arshad Azam demanded the money and also threatened him to kill. Next day they again met in Hajira Bazar and Arshad Azam repeated the same upon which the appellant promised and asked Arshad Azam as to when he would leave for home. He replied that at about 6-30 p.m., upon this the appellant came at the place of occurrence in wait of the deceased with his face covered with a piece of cloth.
Between 7-00 and 7-30 p.m. He heard Arshad Azam who was talking to someone. As they reached at the place of occurrence the appellant stood up and asked Arshad to raise his hands.
In the meantime he fired which hit him at his chest. Arshad Azam fell down and succumbed to the injury.
10. The Court relied upon the statement of P.W. Muhammad Akhlaq, confessional statement of convict-appellant and recoveries. The most important material which needs serious consideration is the statement of P.W. Muhammad Akhlaq and retracted confessional statement of the appellant.
11. P.W. Muhammad Akhlaq is the person who informed the complainant about the incident, upon which he lodged the report Exh.P.B. Nominating him as suspect and later on he was introduced as witness. During trial he was examined by the prosecution in support of the case. His statement is available at page 59 of the trial Court's file wherein he has stated that he knows the accused and the deceased. The deceased was his cousin. On 16-9-1998 he saw both of them in Hajira Bazar.
They were exchanging harsh words. Arshad Azam was asking for money while the accused was seeking time from him ultimately the deceased threatened the accused and said that tomorrow he must return the money otherwise he will kill him. After sometime the accused came to the witness and asked him that when he and Arshad Azam will leave for home. He replied that at about '6-45 p.m. At about the said time the witness and the deceased left for home. They reached at Tarpa curve and met Mukhtar Hussain who was performing ablution. Then they came at the road and saw a person who had covered his face with a cloth. Arshad asked him that who is he? Upon this the person asked him to raise his hands and said "this is me" and fired which hit the deceased at his chest. In the meantime the cloth used to cover the face fell down, upon which P.W. Identified the person through his voice. The witness also saw a person who was 10/12 steps away from the occurrence who suddenly disappeared. The P.W. Made hue and cry and he jumped to run away from the place of occurrence.
12. During cross-examination he deposed that he came to know that a report has been lodged against him. He was scared and was apprehending that the police will arrest him. He further deposed that on 17-9-1998, the police came to his house but he disappeared and categorically stated that Said Muhammad, complainant did not meet him on the day of occurrence and admitted that he did not tell him anything about the incident.
13. A careful consideration of his statement shows that the P.W. Made deliberate attempt to suppress the truth. His statement was full of contradictions and he negated the claim of the complainant that the report was lodged on his information. The P.W. Was closely related to the deceased and the complainant and his statement requires strong corroboration on each and every point.
14. It was pointed out by the learned counsel for the appellant that during investigation P.W.
Muhammad Akhlaq handed bver Rs,2,449 and 2 pages of the poetry to the police which were seized through a recovery memo. In presence of Muhammad Sher Khan and Muhammad Latif Khan police constables and stated that he took out these things from the pocket of the decease, therefore, the statement of the witness to the extent that as the accused fired at the deceased he jumped and ran away stands contradicted and it shows that he remained present at the place of occurrence after death of the deceased and also searched his body. The recovery memo. Is available at page 32 of the trial Court's file.
15. The alleged motive behind the occurrence as stated by P.W. Muhammad Akhlaq was that three months prior to the occurrence the appellant borrowed Rs,12,000 from the deceased and then he was asking to return the same. Nothing was brought on record to prove the motive, therefore, it was not proved.
16. According to prosecution case weapon of offence .30 bore pistol was recovered from a deserted ravine at the instance of accused appellant in presence of P. Ws. Abdul Qayyum and Muhammad Azad. I have gone C through the statements of both the witnesses. As per deposition of Abdul Qayyum the gun was recovered on 16-9-1998 whereas according to the statement of Muhammad Azad it was recovered on 25-9-1998.
17. It was claimed by the prosecution that the appellant voluntarily recorded his confessional statement. According to the record appellant was arrested by the police on 24-9-1998. S.H.O. Police Station, Hajira requested the Magistrate to record the confessional statement on 29-9-1998. No application on behalf of appellant to record the confessional statement was placed before the Magistrate. The appellant was taken to the Court of Magistrate by the police and there is nothing, on the record to show that it was a volunteer statement, however, I have gone through the confessional statement Exh.P.K. Which shows that appellant borrowed Rs,12,000 from the deceased.
On 15-9-1998 they met in the Hajira Bazar. Arshad Azam asked him to return the money and threatened him to kill. On 16-9-1998 again they met in Hajira Bazar and again Arshad Azam threatened him and asked him to return his money. Later on the convict-appellant asked the deceased that when he will leave Or home and the deceased answered that about 6-30 p.m. The accused left Hajira Bazar. He came at the place of occurrence and covered his face with cloth, and laid in wait of the deceased. Between 7-00 and 7-30 p.m. He heard Arshad Azam talking to someone. As Arshad and his companion reached near him, the accused asked him to raise his hands, fired at him and ran away.
18. It is clear from the statement that neither the appellant mentioned the name of Akhlaq who was known to him nor he admitted that the cloth he used to cover the face fell down as he fired at the deceased. This statement makes the presence of P.W. Akhlaq at the place of occurrence and identification of the accused doubtful.
19. In light of the facts listed above I am of the view that the trial Court failed to appreciate that F.I.R.
Was not a truthful version. The prosecution failed to prove alleged motive. The recoveries were also doubtful and self-contradictory statement of P.W. Akhlaq was not worth-relying in absence of some corroboration from an independent source.
20. The upshot of the above discussion is that the prosecution story being highly doubtful is disbelieved, therefore, the appeal filed by the convict appellant is accepted and he is acquitted of the charge while the appeal filed by Mst. Shahnaz Begum is dismissed.