JUDGMENT HASSAN RATA PASHA. J. ---The appellant, Gui Nawaz has challenged the judgment dated 30-9-2006 passed by learned Additional Sessions Judge, Rawalpindi in case F.I.R. No.397 dated 8-8-2004 registered under section 302 and 397 P.P.C. At Police Station Murree District Rawalpindi through instant criminal appeal by which he has been convicted under section 302(b), P. P .0 . And sentenced to death with payment of compensation amount of Rs.50,000 to the legal heirs of deceased under section 544-A, Cr.P.C. He has also been convicted under section 397, P.P.C.
And sentenced to ten years' R.I. The learned trial Court has also submitted reference No.693 of 2006 for confirmation or otherwise of the death penalty. As both the matters are interlinked and interconnected so are being taken up together.
2. Briefly stated the prosecution version as set forth in the complaint Exh.PJ is that on 8-8-2004 at about 10-00 a.m. Son in law of the complainant namely Abdul Hameed who plies a Taxi No.2241, was waiting for a passenger at Bahara Kahu Uthal Chowk, a person having good height with small beard hired his Taxi for Murree. When Abdul Hameed reached Beri the said person asked him to take to Angori road so that they could quickly reach Murree. Upon reaching Sain More at about 11- 30 a.m. Said person got stopped the car, alighted it, came towards the driver side and told him to hand him over whatever he had. Abdul Hameed handed over cash to him and took out mobile from his other pocket. Said person, upon seeing the mobile, fired shots, which hit the chest, arm and leg of the deceased. Complainant was informed through telephone upon which he reached Toll Plaza and shifted the injured Abdul Hameed to Poly Clinic Hospital where he succumbed to the injuries, hence, the F.I.R.
3. After investigation the report under section 173, Cr. P.C. , against the appellant Gul Nawaz was sent up to face trial. He was formally charged to which he pleaded not guilty and claimed trial. The prosecution produced as many as 12 witnesses in support of its version.
4. Raja Sajjad Ahmad appeared as - P.W.5 and desposed that on 8-8-2004 he along with his brother Raja Fayyaz Ahmad was sitting in the Electronic Repair Shop, which is owned by his brother at Uthal Chowk Bahara Kahu. It was about 10-30 a.m. Abdul Hameed deceased had parked FX car/taxi No.LHV/2241 there and after a while Gul Nawaz appellant accused came there and made some conversation with the deceased. Thereafter they both went to somewhere towards Rawalpindi on the taxi. He further deposed that he knew the accused earlier. Aurangzeb complainant appeared as P.W.9 and almost reiterated the contents of F.I.R. He added that someone told this occurrence to him on his telephone. He brought Abdul Hameed from that place in a taxi to Poly Clinic Hospital Islamabad and in the way the injured disclosed him the real facts. He was admitted to hospital. At 1-45 p.m. And he died at 2-45 p.m. On the same day.
5. The medical evidence was adduced through Dr. Zahoor All Khan who conducted autopsy of the dead-body of deceased and found following injuries on his person.
Entry wound of left outer elbow of cm and exit wound on the opposite inner side and posterior end of the elbow.
I) Stitched wound firearm 1 cm below five finger below left nipple.
Stitched wound on left inner middle of chest.
(iv) A lacerated wound firearm right outer edge of the chest.
(v) A lacerated wound firearm of 1 cm entry wound on the anterior aspect of leg 4 finger below right knee joint. Exit wound on inner aspect of middle aspect of thigh According to his opinion Injuries Nos. 2, 3 and 4 led to rupture and damage of left lung, major blood vessels and rupture of liver, which led to internal, haemorrhage, shock and death. Probable time between injuries and death was stated to be within few minutes while between death and postmortem was within few hours.
6. The investigation was conducted by Arif Mehmood Inspector/S.H.O. Who appeared as P.W. 1.2. He took the vehicle No.LHD/2241 into .Possession along with registration book vide recovery memo Ex.PF. He also took into possession two empties of 30-bore and one empty from outside the vehicle through recovery memo Exh.PD. On 20-8-2004 due to summer season of Murree he handed over the investigation to Ghulam Muhammad A.S.-I. Who arrested the appellant Gul Nawaz on 1-9-2004.
On 9-9-2004 during investigation upon disclosure of appellant pistol .30-bore along with five live cartridges. Rs.500, purse of black colour, two photocopies of NIC of deceased and were of deceased and a mobile 3310 were recovered. He prepared a separate complaint under section 13/20/65 A.O. In respect of pistol and took into possession the recovered items through recovery memo Exh.PF. The remaining witnesses are formal in nature.
7. The appellant Gul Nawaz in his statement under section 342, Cr.P.C. In response to question No. I() replied that he had been involved in the case by his brother in law namely Tariq and Raja Sajjad who is the best friend of his brother in law, as his sister filed suit for dissolution of marriage against said Tariq and he had threatened the appellant to withdraw the suit otherwise he would involve him in a criminal case. The appellant also produced Dr. Rashid Saleem Qureshi as DW-1, Muhammad Sadiq son of Sardar Khan as DW-2 and Zulfraz as DW-3 in defence evidence.
8. Learned counsel for the appellant in support of this appeal contends that no direct or indirect evidence is available on record, which could connect the appellant with the commission of offence. It is contended that conviction and sentence have been passed on the basis of conjectures and surmises. It is next contended that statement made by complainant as P.W.9 is hearsay evidence, as he narrated the story allegedly told to him by the deceased so he cannot be safely relied upon and it can be treated as dying declaration. It is next contended that the complainant is father in law of deceased so he is also an interested witness. Further contends that evidence of P.W.5 Raja Sajjad Ahmad who allegedly saw the deceased with the appellant while hiring the taxi is also not reliable as he is closely related to deceased and he did not inform the police or any other person about this fact prior to the registration of instant case. It is further contended that alleged recovery of pistol and other articles is also doubtful, as the place of recovery was an abandoned place and the articles were found near a pillar of poultry form where anybody could have access.
9. On the other hand learned D.P.-G. Opposes this appeal on the grounds that there is to reason for false implication of the appellant in this case; that the last seen evidence furnished by P.W.5 is natural and it finds support from the dying declaration made by the deceased before the complainant when he was in injured condition and that the statement was proved by him. The plea of alibi taken by the appellant is not believable, as it was introduced during trial and this version was not taken during investigation. Besides the murder of an innocent person the appellant also committed robbery and the looted amount as well as the pistol were recovered on his pointation.
Moreover the deceased was real son in law of complainant so there was no question of substitution, which is also a rare phenomenon in our society. Prosecution proved its case beyond any shadow of doubt and learned trial Court rightly convicted and sentenced the appellant who does not deserve any leniency.
10. We have heard the arguments of learned counsel for both the side and perused the record with their able assistance.
11. Admittedly at the time of commission of occurrence there was no body except the deceased and the accused person so the prosecution had to prove the case through circumstantial evidence. P.W.5 Raja Sajjad Ahmad put forth the last seen evidence. He deposed that on 8-8-2004 at 10-30 a.m. He along with his brother was sitting in his shop at Uthal Chowk Bahara Kahu when the deceased parked the taxi and after a while the appellant came there and made some conversation with the deceased. Thereafter they both went to some where towards Rawalpindi on the taxi. He further deposed that he knew the accused prior to this occurrence. During cross- examination he admitted that the deceased was first cousin of his were. He further admitted.
During cross-examination that he did not hear their conversation at the time of seeing them. He also stated that he did not make his statement on the same day before the police. It is pertinent to mention here that according to said P.W. He knew the accused earlier and he got the knowledge of murder of deceased at about 4-00 p.m. While the F.I.R. Was registered at about 8-30 p.m. So the question arises that why he did not inform the police prior to registration of F.I.R. Or soon thereafter that the taxi was hired by the appellant. It casts serious doubt on the truthfulness of P.W.5. Had the P.W.5 actually seen the deceased with the appellant he would have intimated either the complainant or the police much earlier than the registration of the case, after having got the knowledge of the death of the deceased. Moreover according to appellant he is also best friend of his brother in law between whom and the sister of appellant there is a family dispute. He is also closely related to the deceased.
12. Now the only evidence left in the field is the statement of complainant who appeared as P.W.9.
He made an effort to make his statement as dying declaration of the deceased. However he had seen nothing himself rather he had narrated the story whatever allegedly told to him by the deceased. If for the sake of arguments the whole story is considered to be based on truth even then the deceased had not disclosed the name of the appellant rather he just narrated the occurrence to him and if it is not substantiated by other circumstantial evidence the same cannot be believed to be plausible or confidence inspiring. Even otherwise the statement of Dr. Rashid Saleem Qureshi as DW-1 is vital in nature who categorically stated in his evidence that when he examined the deceased in injured condition he was not in a position to talk. The evidence put forth by the prosecution is too weak, which cannot be made basis for conviction of an accused.
Moreover the evidence of recovery of looted property and alleged weapon of offence is also corroboratory in nature and has no conclusive importance. It is a settled principle of law that the defence is required to create only a dent in the prosecution case, which has happened in the instant case for the reasons, recorded herein before.
13. In these circumstances prosecution has failed to prove its case beyond any shadow of doubt. Consequently instant appeal is accepted and the appellant is acquitted of the charge. He be released forthwith if not required to be detained in any other case.
Death sentence is not confirmed and Murder Reference No.693 of 2006, is answered in negative.