' Appellant Javed Akhtar has challenged his conviction and sentence through Criminal Appeal No. 61 of 2009. He was tried by learned Additional Sessions Judge, Multan in case FIR No. 109/2005 dated 03.11.2005 under Section 302, PPC registered with Police Station Budhla Santt, Multan.
Complainant Javed Iqbal has filed Criminal Revision No. 68 of 2009 seeking enhancement of sentence of the appellant. I propose to decide both these matters through this consolidated judgment.
2. On conclusion of trial, learned trial Court vide its judgment dated 24.01.2009 convicted and sentenced the appellant as under:-- Convicted U/S 302(b), PPC and sentenced to undergo Imprisonment for life. He was also held liable to pay Rs. 1,00,000/- as compensation under Section 544-A, Cr.P.C. To the legal heirs of deceased Pervez Iqbal. In default thereof, to further undergo rigorous imprisonment for six months.
Benefit under Section 382-B, Cr.P.C. Was also given to the appellant.
3. Facts of the case as alleged in the FIR, are that on 03.11.2005 at about 06:30 P.M., complainant and his younger brother Pervaiz Iqbal were going to their house from Budhla Sant on their bicycles.
Complainant was following his brother at some distance. When they reached near tube-well of Chaudhary Nazar Hussain alias Muhammad Hussain Randhawa, sound of a fire shot was heard suddenly and brother of complainant fell down from his bicycle. On raising outcry by complainant, Muhammad Akram and Akbar A.I reached the spot. They saw many small wounds at abdomen of Pervaiz Iqbal and a large wound at backside of his abdomen. Pervaiz Iqbal was shifted to hospital but he succumbed to the injuries. It has been alleged in the FIR that some unknown person had murdered Pervaiz Iqbal, brother of complainant.
4. Investigation of this case was conducted by Sakhawat A.I SI (PW-13), who submitted report under Section 173, Cr.P.C. Before Court. Appellant was charge sheeted, however, he denied the allegation.
Prosecution produced as many as thirteen witnesses. On completion of prosecution evidence, statement of appellant was recorded under Section 342, Cr.P.C., wherein he took the plea that he was falsely implicated in this case due to dispute over path with complainant party. He tendered copy of record of rights for the year 2006-07 in his defence evidence. Appellant did not opt to appear in the witness box as required under Section 340(2), Cr.P.C.
5. On conclusion of trial, appellant was convicted and sentenced as mentioned above, hence this criminal appeal as well as revision.
6. Learned counsel for appellant argued that it was a blind murder and appellant was implicated falsely due to his dispute over path with complainant party; that there is no direct evidence against appellant; that story of last seen and extra judicial has been concocted by complainant party; that after planting recovery of weapon of offence, empty was produced and then sent to laboratory for examination; and that, evidence produced in this case was not worthy to be made basis for awarding conviction.
7. Learned Additional Prosecutor General assisted by learned counsel for complainant argued that there was no reason for complainant to falsely implicate the appellant in this murder case. Learned counsel for complainant argued that prosecution had fully established charge against appellant, as such he was liable to be awarded maximum sentence.
8. Arguments heard and record perused.
9. FIR was registered against unknown person and appellant was implicated later on through supplementary statement. To prove charge against appellant, prosecution has relied on recovery of weapon of offence and crime empty, foot mould of appellant, last seen evidence and extra judicial confession. Sakhawat A.I SI conducted investigation of this case. He inspected the place of occurrence on the following day of occurrence and took into possession an empty and step mould of accused. Appellant was arrested on 28.11.2005 and then on 01.12.2005 he allegedly got recovered a carbine. Thereafter, empty as well as carbine were sent to Forensic Science Laboratory for comparison. Likewise, step mould was also sent to laboratory many days after arrest of accused.
As per FIR, complainant was following his brother (deceased) on a bicycle and he was at small distance from him at the time of occurrence. It has been further stated in the FIR that Muhammad Akram and Akbar A.I reached the spot after the occurrence, who shifted the deceased to hospital alongwith complainant. However, none of the said witnesses has been examined by prosecution, rather PW-2 has been introduced as witness of last seen. PW-2 deposed that he saw the accused standing at the place of occurrence while he had something like weapon in his hand. If complainant was at a small distance from his brother and appellant fired at his brother while he was already standing at the place told by PW-2, then why complainant did not see the appellant at that time. This very fact leads me to draw inference that stance of either the complainant or the PW-2 is incorrect. As regards alleged extra judicial confession, it is well settled by now that extra judicial confession is tainted piece of evidence and story of extra judicial confession is usually concocted just to strengthen prosecution case in cases where direct evidence is not available. In view of above, I am of the considered view that evidence produced in this case by prosecution was not confidence inspiring and worthy of credence to record conviction against appellant. Law is well settled that accused is entitled to benefit of doubt if it arises from the facts and circumstances of the case.
10. For what has been discussed above, this Criminal Appeal No. 61 of 2009 is allowed and conviction and sentence recorded by the learned trial Court against the appellant through impugned judgment is set aside and appellant Javed Akhtar is acquitted of the charge. His surety stands discharged of the liability of bail bonds.
11. For the reasons recorded above, criminal revision No. 68 of 2009 for enhancement of sentence of appellant is dismissed.