The above titled appeals have been directed against the order of District Court of Criminal Jurisdiction, Rawalakot dated 4.1.2005, whereby the appellant was sentenced to life imprisonment.
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, Thorar on the complaint of Manzoor Hussain. It was reported that complainant was a resident of Mallot Sattian. He was running a Poultry farm in Mallot Sattian and property business in Rawalpindi. His son Mukhtar Hussain was employed in Army. On 26.8.2004 he came home on leave. It was stated that on 2.11.2004 Mukhtar Hussain and Ishtiaq Hussain left for Rawalakot to get "Taweez". About 6 weeks prior to the occurrence, the complainant sold a plot in lieu of Rs, 2,50,000/- to one of his relative Muhammad Kareem. Rs, 30,000/- were yet to be paid to the complainant. He asked Mukhtar Hussain to get the remaining amount from Muhammad Karim while coming back. On 2.11.2004 the complainant called Muhammad Karim who told him that he gave the money to Mukhtar Hussain who left for home at about 3.30, p.m. On the same day the complainant was informed that some one killed his son. Upon this he lodged the report but did not nominate any suspect.
3. During investigation Ishtiaq, Ishaq and Muhammad Karim were interrogated upon. Muhammad Ishaq and Muhammad Karim were found innocent and they were given benefit of Section 169, Cr.P.C., however, Muhammad Ishtiaq was found guilty and a challan for commission of the alleged offence was submitted against him before the trial Court.
4. After completion of the trial, the Court convicted Muhammad Ishtiaq and sentenced him to life imprisonment through the impugned order. Hence the above titled appeals.
5. The learned counsel for the convict-appellant argued that the occurrence took place during dark hour and it was not witnessed. Circumstantial evidence brought, on record against the appellant was highly doubtful. According to the prosecution case, the appellant and the deceased came at the shop of Zakir Hussain on 2.11.2004 and afterward they were not seen together. The learned counsel further argued that prosecution failed to produce Muhammad Karim who was an important witness and resultantly failed to prove that the deceased took Rs, 30,000/- from him.
Another point raised by the learned counsel is that recoveries were highly doubtful and were of no help to the prosecution case. The learned counsel contended that assuming for the sake of arguments that some of the prosecution witnesses saw the appellant in surroundings of the place of occurrence after the incident even then it cannot be presumed that they were together before the occurrence and the appellant killed him. According to the learned counsel neither the deceased and the appellant were seen together before the occurrence nor any of the prosecution witnesses identified the appellant or the Jeep while leaving the place of occurrence. He submitted that the report of Forensic Science Expert is also a strong circumstance in favour of the convict- appellant as it makes the matter clear that the pistol was not used in the occurrence. The learned counsel submitted that the trial Court failed to appreciate the evidence on record in a judicial manner. The prosecution has miserably failed to connect the chain of circumstantial evidence. The prosecution story being highly doubtful was not worth consideration and there was no justification for the trial Court to convict the appellant, therefore, by accepting the appeal he may be acquitted of the charge.
6. On the other hand, the learned counsel for the complainant argued that the deceased and appellant left the home together. They came at the shop of Zakir Hussain to get Taweez from him.
Later on they-went to Thorar to get Rs, 30,000/- from Muhammad Karim and after getting the money the appellant took the deceased to the place-of occurrence, snatched money and killed him. According to the learned counsel the prosecution has successfully proved its case against the convict appellant through the circumstantial evidence such as statements of witnesses, recovery of 30-bore licensed pistol and stolen money, etc. The vehicle used for commission of offence was seen by Shoukat Hussain soon after the occurrence and was also identified by Abdul Mokeem and Muhammad Rashid. The learned counsel argued that the trial Court has committed serious legal error while awarding lesser punishment of life imprisonment instead of death sentence, therefore, by accepting the appeal he may be convicted under law.
7. The learned Additional Advocate General supported the arguments advanced by the learned counsel for the complainant.
8. Since both the appeals arise out of same order of the trial Court, therefore, these shall be disposed off through this common judgment.
9. I have heard the learned counsel for the parties and gone through the record of the case.
10. The prosecution story as appears from the evidence and believed by the trial Court is that the convict-appellant rented a Photohar Jeep No, 4259 LOP for Rs, 800/- daily. He came to the house of the complainant and stayed there for a night. Next day he left for Bhoosa Gala with Mukhtar Hussain and on 2.11.2004 they went to Rawalakot at the shop of Zakir Hussain to get Taweez from him. Then they came to Thorar to get Rs, 30,000/- from Muhammad Karim and afterward the appellant took the deceased to the place of occurrence where he killed him and snatched the money. The trial Court relied upon circumstantial evidence depending upon statements of the witnesses and recoveries particularly the recovery of Rs, 26,000/- and weapon of offence etc.
11. A perusal of the record shows that appellant and deceased left for Bhoosa Gala on 1.11.2004. Next day they came to Rawalakot at the shop A of Zakir Hussain from where they got a Taweez. The statement of Zakir Hussain also confirmed their presence in his shop.
12. The next part of the prosecution story that both of them went to Thorar to get money from Muhammad Karim gets no support from the record. No evidence to prove that they were together after leaving the shop of Zakir Hussain, was brought on record. Similarly no evidence regarding B their presence in Thorar is available on record. It is interesting to note that Muhammad Karim a close relative of the complainant who was an important witness was not produced by the prosecution to establish that he gave Rs, 30,000/. to the deceased.
13. Another part of the prosecution story is that on 12.11.2004 at about 6.45 and 7.00 p.m. P.W.
Shoukat Hussain saw a vehicle on road turning towards Tain Dhalkot and after 3/4 minutes he heard the sound of fire and came at the place of occurrence. Maqsood and Khan Gul also came there. They saw the dead body of the deceased and informed the Police about the occurrence. A perusal of their statements shows that neither they saw anybody firing at the deceased nor they identified the vehicle, therefore, it cannot be said that it was the same Jeep which was under the use of the appellant, however in light of their statements it stands established that occurrence took place between 6.45 p.m. and 7.00 p.m.
14. An important piece of evidence which needs serious consideration is the statement of P.W Aumngzeb. As per his deposition he was performing his duty at Police Chowki, Dhalkot. At about 6.00 p.m he C saw the appellant crossing the bridge and going towards Kotli Sattian and then coming back' at 8.20 p.m. His statement indicates that appellant was not in the territory of Azad Kashmir at the time of occurrence.
15. Next point which needs resolution is the recovery of money, weapon of offence and crime empties. According to the prosecution case the deceased took Rs, 30,000/- from Muhammad Karim. As stated earlier that Muhammad Karim was not produced by the prosecution and there is nothing on the record to prove that he gave any money to the deceased, therefore, the recovery of money from the appellant is of no consequence. So far the recovery of crime empties from the place of occurrence and weapon of offence is concerned, it is also of ho help to the prosecution case. It may be mentioned here that the crime empties recovered from the place of occurrence and licensed pistol of .30 bore recovered from the appellant were sent to Forensic Science.
Laboratory. The report of Forensic Science Expert Exh.PML shows that empties were not fired from the weapon.
16. In light of the facts listed above I am of the view that the trial Court failed to appreciate the evidence in a judicial manner. The prosecution story being highly doubtful is not worth relying, therefore, the appeal filed by the convict-appellant is accepted and he is acquitted of the charge.
He shall be released from custody forthwith if not required in any other case. Consequently the appeal filed by Zaffar Hussain stands dismissed.