This judgment will dispose of Criminal Appeal No, 583/2003 filed by appellant namely Bashir Ahmad son of Ghulam Muhammad, who was convicted and sentenced by the learned Sessions Judge, Rajanpur vide judgment 27.6.2003 in case FIR No, 104/2002 U/S. 302/34 PPC Police Station City Rajanpur for having committed intentional murder of Zaffar Iqbal deceased, as under:--
1. Under Section 302(b) PPC. Life imprisonment.
Under Section 544-A Cr.P.C. sentenced to pay Rs, 50,000/- as compensation to the legal heirs of deceased and in default whereof to further undergo imprisonment for a period of six months.
Benefit of Section 382-B Cr.P.C. was also awarded to the appellant.
Criminal Revision No, 303/2003 for enhancement of sentence awarded to appellant Bashir Ahmad to capital punishment as well as compensation amount shall also be disposed of through this single judgment.
2. Briefly stated the prosecution story as alleged in the FIR got lodged by Ch. Nazar Hussain on 4.5.2002 is that on the night preceding the date of lodging the report, the complainant's family and families of his brothers were sleeping in the Courtyard of the house; the electric fan and an electric bulb were on. At about 2.30 a.m. a person jumped over the western wall of the house and entered the Haveli/residence of the complainant and others. Zafar Iqbal deceased was sleeping on the western side of the house. The said entrant fired with his .12 bore gun at Zafar Iqbal deceased and the fires shot landed at his chest. On the report office, Talib Hussain, Munawar Hussain PWs, the complainant and their family's members woke up and saw that the said person of medium height wearing white clothes and turban on his head, having a .12 bore double barrel in his hand gun was jumping over the western wall of the house. The complainant, Talib Hussain and Munawar Hussain PWs tried to apprehend the accused, after opening the door of the house. An electric bulb was also on outside the house, as such, they saw three persons running towards the west. The complainant and the PWs raised lalkara. The gun from the hand of the accused, who had entered the house, fell down and he also left the shoes at the place of the occurrence. However, all the three accused succeeded in running away. The complainant further mentioned that the accused could be identified in case of their presence before the complainant and the PWs. Thereafter the complainant and the PWs took care of their brother Zafar Iqbal deceased, who had succumbed to the injuries. It is further mentioned in the FIR that Zafar Iqbal deceased had been murdered by some unknown persons.
3. On the same day, the complainant made a supplementary statement through which he nominated Bashir Ahmed, Nazar Hussain and Nawaz, as accused.
4. During the investigation, the appellant alongwith two other co-accused were found guilty and were challaned against all the three accused. Charge under Section 302/34 PPC was framed against the accused and they did not plead guilty and claimed trial.
5. The prosecution in order to prove its case produced as many as 16 witnesses. Munawar Hussain PW is Moharrar of the Police Station PW-2 Said Ullah constable; PW-3 Khadim Hussain who conveyed the parcels and escorted the dead bodies to the mortuary; PW4, the doctor who conducted the post-mortem examination on the dead body of the deceased. PW-5 Faqir Muhammad Patwari who prepared the site-plan; Ehsan-ul-Haq PW-6 identified the dead body of the deceased at the time of post-mortem examination; PW-7 Ghulam Abbas is the recovery witness; PW-8 Nemat Ullah is the witness of motive part; PW-9 Asghar Ali and PW-10 Shah Nawaz are the witnesses of wajtaker. PW11 Nazar Hussain is the complainant of the case and PW-12 Munawar Hussain furnishes the ocular account. PW-13 Azmat Ullah PW-13 and Muhammad Aslam PW-15 are the witnesses of extra judicial confession; PW-14 Wahid Bakhsh ASI recorded the formal FIR.PW-16 Murid Hussain Inspector. SHO investigated this case and prepared the relevant documents. Learned DDA after tendering in evidence the report of the Chemical Examiner regarding blood-stained earth Ex.PO, report of Serologist with regard to blood-stained earth Ex.PO/1, report of FSL regarding gun .12 bore Ex.PP and the report of FSL with regard to the moulds Ex.PQ closed the prosecution evidence.
6. The statements of both the accused were recorded under Section 342 Cr.P.C. in which they denied the allegations leveled by the prosecution. The accused neither produced any defence evidence nor they opted to appear in the witness box as their own witness.
7. However, after conclusion of the trial, the co-accused - Nazar Hussain and Muhammad Nawaz were acquitted from the charge in this case by extending them the benefit of doubt, whereas, the appellant was convicted and sentenced by the learned trial Court, as mentioned above.
8. Learned counsel for the appellant contends that admittedly it is a blind murder as nobody has been nominated in the FIR; that the appellant and the co-accused have been roped in this case or, account of supplementary statement. It is further contended that the appellant has been convicted on account of circumstantial evidence, which is always taken to be a very weakest type of evidence and conviction on such evidence is considered to be quite unsafe; it is further submitted that it has not been proved on the record that extra judicial confession has been made by the appellant before PW-13 and PW-15;similarly the evidence of Wajtaker has also not been believed by the learned trial Court. It is further submitted that the occurrence in this case has taken place at 9 a.m. whereas the post-mortem examination was conducted at 9 p.m. and no explanation has been given as to why post-mortem has been conducted late; it is lastly submitted that qua the same evidence, the co-accused have been acquitted which is legally not tenable in the eyes of law.
9. Learned DPG assisted by the learned counsel for the complainant contend that the prosecution has proved its case against the appellant qua the ocular account, motive, recovery coupled with the medical evidence; though the extra judicial confession and evidence of wajtaker has not been proved but it is not fatal to the prosecution case as the ocular account is corroborated with the medical evidence. It is further submitted that on account of such lapse, the learned trial Court instead of awarding death sentence to the appellant, has awarded lesser punishment.
10. Heard. Record perused.
11. The bare perusal of the FIR would show that no-body has been nominated in the occurrence and it is on account of supplementary statement that the accused have been implicated in this case; this fact is also, established from the statement of the complainant, who while appearing as PW-11 has categorically stated in his cross-examination that the I.O. had asked us to name the suspects and thereafter I made the supplementary statement to him". It is therefore, proved that the complainant himself has not named the accused rather on the asking of the I.O. has implicated the accused in this case. Besides, the appellant has been convicted on account of circumstantial evidence, which is always taken to be a very weakest type of evidence and thus the conviction on the basis of such evidence cannot sustain. It is also relevant to mention here that the learned trial Court has also observed in its judgment at Page 32 that "there is only circumstantial evidence on the record to establish his guilt"; similarly as regard extra judicial confession, learned counsel submitted that it has not been proved on the record that extra judicial confession has been made by the appellant before PW-13 and PW-15; this fact is also proved from the finding of the learned trial Court, who at Page 26 of the judgment has held "In view of the foregoing reasons, I am of the view that the version given by the prosecution about the extra judicial confession allegedly made by the accused before the PW-13 and PW-15 is concoction to strengthen the case of the prosecution." Moreover; the learned trial Court has also not believed the evidence of Wajtaker put forth by PW-8, PW-9 and PW-10 as at Page 28 of the judgment, it has been held "It is also unreasonable and unbelievable that these PWs were coming home from their land at 2.45 a.m. as there is no detail that when did they go to their fields and how much work they had done to justify this time of their return both the PWs are close relative of deceased. For the foregoing reasons, it appears to be that the witnesses of wajtaker are not true witnesses and their statements are not truth ringing." I have myself gone through the evidence and also find that the learned trial Court has rightly held about the above omissions; besides the occurrence in this case has taken place at 9 a.m. whereas the post-mortem examination was conducted by the doctor at 9.p.m. and the prosecution has failed to explain such delay.
12: It is also relevant to mention here that qua the same evidence, the co-accused of the appellant have been acquitted from the charge. When questioned learned DPG as well as learned counsel for the complainant has failed to establish on record that on such type evidence, whether the appellant can be convicted.
13. For what has been stated above, I am of the considered opinion that cases against the appellant is doubtful in nature, so the result of above discussion is that this appeal filed by appellant Bashir Ahmad is hereby accepted and his conviction and sentence .recorded by the learned trial Court through the impugned judgment is set aside. He is in jail and shall be released forthwith if not required in any other case.
14. For the above reasons, as no case for enhancement of sentence as well as compensation amount is made out, therefore, Criminal Revision No, 303/2003 is hereby dismissed.