The appellant Muhammad Haneef, was tried by Additional Sessions Judge, Sadiqabad in case FIR No, 310 of 2003 for offence under Sections 302/392/394/411 PPC registered at Police Station City, Sadiqabad. Vide judgment dated 25.07.2007 the learned trial Judge convicted and sentenced the appellant under Section 302(b) PPC for imprisonment of life and also to pay Rs, 10,00,000/- as compensation to the legal heirs of the deceased, in default thereof to further undergo for six months SI. He is also convicted and sentenced under Section 392 PPC to ten years rigorous imprisonment and a fine of Rs, 5,000/-, in default of payment of fine to further undergo three months SI. He was also convicted and sentenced under Section 411 PPC to three years rigorous imprisonment and a fine of Rs, 2,000/- and in default of payment of fine to further undergo one month SI. Benefit of Section 382B Cr.PC was also extended to him and all these sentences were ordered to be run concurrently. Being aggrieved the appellant has filed this appeal.
2. Brief facts of the case as per complaint Ex.PD, got lodged by Ali Asghar, complainant of the case, are that on 09,07.2003, at about 6(1/2) p.m. his brother Ali Ashraf along with his son Adeel, were going to his house, on motorcycle, situated in Mustafa Town from Sadiqabad. They passed near Azad Nursery where the complainant along with Qari Shahid Iqbal and Maqsood was standing.
When they reached at KHAM Road, three persons armed with fire-arm weapons stopped them, tried to snatch the motorcycle and grappled with the brother of complainant. When the complainant and witnesses reached there, the accused persons threatened them to kill.
Meanwhile, Muhammad Haneef/convict/ appellant fired upon the brother of complainant with his .12 bore pistol which hit on the right flank of his brother who fell down. On hue and cry, the witnesses namely Muhammad Ali alias Papu and Abdul Sattar alias Bholi attracted at the spot and witnessed the occurrence. All the three accused persons fled away on the motorcycle of injured Ali Ashraf.
Complainant asked Maqsood Ahmad-PW.5 and Qari Shahid lqbal-PW.6 to take his brother Ali Ashraf to hospital and complainant along with PWs. Muhammad Ali and Abdul Sattar on motorcycle Yamaha chased the accused persons and when they reached near canal bridge, Basti Samdani, the distance in between the accused persons, complainant and his witnesses became shorten. The accused party started firing upon them, resultantly Muhammad Ali alias Papu sustained injuries by the firing of Muhammad Haneef, accused, whereas, the unknown accused persons gave butt blow on the head of Abdul Sattar alias Bholi. They also beat the complainant and Abdul Sattar with kick and fists blows. The accused snatched Yamaha Motorcycle 100-CC and fled away. When the complainant along with injured/PWs., Muhammad Ali and Abdul Sattar reached to the hospital, Ali Ashraf brother of the complainant succumbed to the injuries; hence, this case.
3. Investigation was conducted. Challan to the extent of Muhammad Haneef was sent up to Court while perpetual warrants of arrest against co-accused Muhammad Akram alias Sultan and Muhammad Sharif were issued.
4. Charge was framed against Muhammad Haneef, accused to which he pleaded not guilty and claimed to be tried.
5. At the trial, prosecution produced almost 13 PWs including Dr. Muhammad Muslam, Medical Officer, THQ Hospital, Sadiqabad. Whereas Ghulam Rasool, Zulfiqar Ali Constable No, 283-C and Muhammad Akbar No, 707/C, PWs have been given up by the prosecution being unnecessary.
PW.8, Dr. Muhammad Muslim, who conducted the post-mortem of the dead body of the deceased, opined that: "The Injury No, 1 (only injury) was ante-mortem inflicted by fire-arm. The injury was sufficient to cause death in ordinary course of nature due to damage to the vessels of blood in abdomen including abdominal aorta leading to severe haemorrhage and shock. The probable time elapsed between injury and death was within 15 minutes and that of between death and post-mortem was about 12 hours."
Statement of accused under Section 342 Cr.PC was recorded in which he deposed that he is innocent and has falsely been involved. He did not opt to record his statement under Section 340(2) Cr.PC. However, produced Muhammad Ali alias Papu and Abdul Sattar alias Bholi as DW.1 & DW.2 in his defence.
6. Learned counsel for the appellant contends that appellant has been falsely involved in this case and allegedly occurrence took place at 6:30 p.m and FIR was registered at 7:30 p.m. at Tehsil Head Quarter Hospital but as this occurrence was in two steps and after second step complainant along with injured-PWs went to Tehsil Head Quarter Hospital where he came to know that his brother namely Ali Ashraf has succumbed to the injuries and statement of complainant was recorded at the hospital in which the appellant was nominated but if series of acts be considered then it does not appeal to reason that the complaint was written at 7:15 p.m. at Civil Hospital, Sadiqabad and it appears that Roznamcha was stopped, concocted story was cooked and under the instruction of police officials the appellant was nominated in the case. The presence of eye-witnesses Ali Asghar-PW 4 and Maqsood AhmadPW.5 and Qari Shahid Iqbal-PW.6 is highly doubtful as the PWs in their statements has stated that their statements were not recorded by the police and they signed the recovery memoes at the police station which establishes that they were falsely introduced in the complaint to cook up a story against the appellant. The presence of complainant-PW.4 is also highly doubtful at the place of occurrence as during eross-examination he states that: "I do not remember whether the accused persons gave slaps to Ali Ashraf deceased at the time of occurrence".
Moreover, his conduct at the spot is unnatural and he further admits that: "I did not take into lap my brother Ali Ashraf deceased after he had sustained fire short injury".
PW.4 further admits that he did not remember the colour of the dress of Muhammad Hanif, accused. The statement of complainant reveals that he did not know Muhammad Hanif accused personally as during cross-examination he states that: "I do not know for how much period the accused Muhammad Hanif had been working in Sabzi Mandi, Sadiqabad I do not know at whose shop he used to work. I and my family members do not work in Sabzi Mandi Sadiqabad".
The other PWs have categorically denied during the cross-examination that the local police did not record their statement regarding the occurrence and moreover, the evidence of these witnesses PW.5 and PW.6 with regard to the memoes allegedly prepared at the place of occurrence have no value at all as both the witnesses during cross-examination have stated that they have signed these memoes at the Police Station which establishes that they were not present at the place of occurrence. Moreover, the appellant Muhammad Hanif was only known to the Investigating Officer-PW.11, Riasat Ali, SI and under his instructions the name of appellant was introduced in the complaint as during cross-examination he admitted that Muhammad Hanif was known to him prior to the registration of present case and in the year, 2002 when he was posted at Police Station Bhong he arrested said Muhammad Hanif in a criminal case. With regard to the recovery of weapon of offence, learned counsel for the appellant contends that recovery after lapse of more than one year is highly doubtful. Moreover, there is no report of Forensic Science Laboratory to connect the recovered weapon of offence with the commission of offence. The PWs have contradicted to each other on material aspects of the case and also with regard to the allegedly recovered weapon. Further contends that as per complaint Ex.PD two witnesses who were admittedly present at the place of occurrence and as per FIR they chased the accused persons and they were injured by the accused persons and they have no relationship and friendship with the accused persons. They have been given up by the prosecution and only interested and related witnesses have been produced who are admittedly relatives and friends. Both the eyewitnesses Muhammad Ali DW.1 and Abdul Sattar-DW.2 appeared and categorically state that they could not identify the accused at the place of occurrence and accused present before the Court was not identified by them, this fact creates a serious doubt in the prosecution story. Lastly contends that prosecution has miserably failed to prove its case; hence, the convict/appellant be acquitted from the charge. Reliance is placed on 2007 YLR 1234 titled as 'Muhammad Amin versus The State", PLD 2008 Supreme Court 349 titled as 'Allah Bachaya and another versus The State" & 2009 M LD 49 titled as "Ghulam Nabi and others versus The State".
7. On the other hand, learned DPG assisted by learned counsel for the complainant states that appellant is nominated in FIR and prosecution has proved its case on the basis of ocular evidence, medical evidence and recovery of weapon of offence and moreover, the accused remained absconder for a considerable period. Minor contradictions could not stand in the way of conviction.
Already a lenient view is taken by the learned trial Court; hence, the appeal may kindly be dismissed.
8. Heard. Record perused.
9. Although the appellant is nominated in the FIR and FIR, as shown by the prosecution, is promptly lodged but the presence of PW.6 and PW. 7 at the place of occurrence is highly doubtful as they admit during cross-examination that their statements were not recorded by the police about the occurrence. Further states that they station signed the memoes of possession proceedings at police station, although these proceedings were taken at the place of occurrence which establishes that they were not present at the place of occurrence and their names were added by the complainant just to establish a Concocted story as per his down wishes and under the instruction of police officials.
10.I have gone through the Police Karwai at the end of Exh.PD which shows that at that time, at emergency of the hospital where the dead body of Ali Ashraf was present, only Muhammad Ali and Abdul Sattar were present, where statement of Ali Asghar PW.4 was recorded as in the Karwai Police it has not been mentioned that Qari Shahid Iqbal and Maqsood Ahmad were present there as per Exh.PD. On the other side, the complainant states in complaint that he directed Maqsood Ahmad and Qari Shahid Iqbal to take his brother to Hospital and he along with other PWs.
Muhammad Ali and Abdul Sattar chased the accused persons, if these witnesses would have taken the deceased in Hospital, their names 'must be incorporated in the Police Karwai. It shows that these names were added by the complainant by joining hands with the police in order to support his concocted story.
11.Although the appellant is nominated in FIR with complete detail of parentage, caste, address and place of business but during cross: examination when the complainant-PW.4, Ali Asghar was questioned with regard to the antecedent of the appellant his answer created sufficient suspicion that he did not know the appellant before the date of occurrence. The complainant-PW.4 was not aware for how long the appellant was working in Sabzi Manch and at whose shop he worked and he could not satisfactorily answer about the other antecedents. On the other side, Investigating Officer-PW.13, .Munir Haidar SI, during his cross-examination admits that Muhammad Hanif, appellant is known to him and earlier he arrested him when he was posted at police station Bhong.
In this background, it appears that the appellant was nominated by the complainant on the asking of SI/Investigating Officer/PW.13, on the basis of suspicion, as otherwise, the appellant admittedly was not known to him earlier.
12.As regard abscondance of the accused, PW.11 himself admits that appellant is Khana Badosh.
He has no permanent address nor any immovable property. Moreover, the police constable to whom warrants of arrest of the appellant was handed over for execution had not appeared before the trial Court as PW and nor police constable to whom proclamation was handed over for its execution had not appear before the Court as prosecution witness in order to ascertain the veracity of their statements whether they executed the warrants of arrest and proclamation in accordance with law or not? For the same reason the abscondance of appellant carries no weight, neither it is proved by the prosecution that appellant was fugitive from law with guilty conscience in this case.
13.Moreover, recoveries of the weapons on the pointation of the appellant carries no weight as independent recovery witnesses did not support the recovery and also the recovery memoes were signed at police station. These facts are sufficient to discard the recovery so, I disbelieve the recovery of weapon of offence on the pointation and custody of appellant.
14.Prosecution gave up two injured witnesses Muhammad Ali and Abdul Sattar who appeared as DW.1 and. DW.2 and they did not support the prosecution story and appellant Muhammad Hanif while present before the trial Court was not identified by them nor at the place of occurrence and these two statements are sufficient to create dent in the prosecution story, identification of the appellant at the place of occurrence is highly doubtful.
15.In the light of above discussion, as the presence of eye-witnesses PW.5 & PW.6 at the place of occurrence does not appeal to reason, the injured eye-witnesses appeared as DW.1 & DW. 2, did not identify the appellant as accused, abscondance could not be established by the prosecution, recovery is disbelieved and act of the complainant, by nominating the appellant in the case is also not established, without any shadow of doubt. All these aspects create a serious doubt in the prosecution story and prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt; hence, the appeal is allowed. Appellant is acquitted from the charge.
Case property and file of the case including decision of appellate Court shall be sent back and kept intact till arrest and trial of the proclaimed offender.