RAJA AFRASIAB KHAN, J: -- Iftikhar Ahmad alias Popi (23/34) and his brother Zulfiqar Ahmad alias, Bhola (27) were tried by Ch. Muhammad Saeed, learned Additional Sessions Judge, Lahore, for the murder of Suleman (21/22). By judgment, dated 10-1-1987 the learned trial Judge convicted Iftikhar Ahmad and sentenced him to death plus a fine of Rs.5,000 or in default thereof to suffer R.I. For two years under section 302/34, P.P.C. Zulfiqar Ahmad was convicted and sentenced to life imprisonment plus a fine of Rs.5,000 or in default to suffer R.I. For two years under the same charge vide the same judgment. After conclusion of trial, Zulfiqar Ahmad above-said, was killed in a police encounter. Iftikhar Ahmad has challenged his conviction and sentence by filing Criminal Appeal No. 64 of 1987. The learned trial Judge has sent a reference under section 374, Cr.P.C. For confirmation of death sentence of Iftikhar Ahmad. Haji Ghulam Ali, complainant, has filed Criminal Revisional No.241 of 1987 praying that an adequate amount of compensation may be awarded under section 544-A, Cr.P.C. In case of Iftikhar Ahmad and that the sentence of Zulfiqar Ahmad may also be enhanced to death. We propose to dispose of the above matters by this judgment.
2. The prosecution case is that Nazir Ahmad (P.W.2) on 3-1-1985 at about 8-00 p.m. Was standing outside the hotel of Abdul Karim at Chamra Mandi, G.T. Road, Lahore. Suleman son of Haji Ghulam Ali and Habib-ur-Rehman's son of Taj Din came on a motor-cycle to the shop of Zulfiqar alias Bhola and Iftikhar alias Popi which is situated just close to the aforesaid hotel. Zulfiqar and Iftikhar apart from doing business of selling Milk Shake and Juice, also do the business of renting out V.C.R.
And video films. Habib-ur-Rehman's parked the motor-cycle near the complainant Nazir Ahmad while Suleman went inside the shop for returning the V.C.R. And T.V. Which they had taken on rent from the owner. Nazir Ahmad son of Nizam Din P.W.3 also came there. Zulfiqar and Iftikhar were present inside the shop. Zulfiqar told Suleman that he had returned T.V. And V.C.R. Late and that he would have to pay an additional sum of Rs.30 as rent whereupon Suleman replied that he had brought back the two articles well in time and as such he would not pay the additional rent.
Suleman came out of the shop and Zulfiqar also followed him. Zulfiqar caught him from his collar.
He declared that he would not allow him to leave unless the additional amount was paid to him for using T.V. And V.C.R. Zulfiqar exhorted his brother Iftikhar to attack whereupon he took out a Chhuri and inflicted an injury on his chest. On receipt of injury Suleman fell down. Iftikhar and his brother ran away with their weapon. Suleman died on the spot. Nazie Ahmad, complainant, lodged the report with the police station on which F.I.R. Exh. P.B. Was registered by Muhammad Akram Inspector (P.W.15)..
3. Muhammad Akram, Inspector/S.H.O. (P.W.15), investigated the case. On 3-1-1985, he visited the spot and prepared injury statement Exh. P.O. And inquest report Exh P.P. Of the deceased. The dead body was sent to Mayo Hospital, for post-mortem examination through Muhammad Ramzan and Munir Ahmad, Constables. Blood-stained earth from the place of occurrence was taken into possession vide memo. Exh. P.D. Motor-cycle No.3639-LHK vide memo. Exh. P.C. Was taken into possession. Licence of motor-cycle P.11 National Identity Card of the deceased P.12, Insurance Certificate P.13 and Registration Book P.14 were taken into possession vide memo. Exh. P.E. Last worn clothes of deceased, Qameez P.1, Shalwar P.2, Shoes P.7 and Bunyan P.8, were taken into possession vide memo. Exh. PA. Site plans Exh. P.J. And Exh.P.J./1 were got prepared by the Inspector from Inam Ali Shah, Draftsman (P.W.6). He arrested Zulfiqar accused on i1-2-1985. At the instance of the accused Zulfiqar, T.V. P.10, V.C.R. P.9 alongwith lead were P.15 and a bunch of five keys P.16 vide Exh.
P.K. Were taken into possession by the Police Officer.
On 23-5-1985 Abbas Ali Shah, S.I. P.W.12 partly investigated the case. On 27-5-1985, Iftikhar led to the recovery of Chhuri P.10 from the graveyard behind the house of Ghulam Nabi, which was taken into possession vide memo --Exh. P.N. The Chhuri was not found blood-stained.
4. Dr. Saeed Ahmad P.W.4 conducted the post-mortem examination upon the dead body of Suleman on 4-1-1985 and found the following injuries on it: (1)Stab wound vertical in direction 2.75 c.m. x 1.25 c.m. x cavity deep, frontof left chest 2.5 c.m.
Medial and below left nipple.
(2) Abrasion size 0.75 x 0.5 c.m. Left angle of jaw. (3) Abrasion size 15 x 0.5 c.m. Left side neck, 1 c.m.
Below left ear.
(4)Abrasion size 1 c.m. x 0.5 c.m. Left side neck, 1 c.m.
(5)Abrasion size 0.5 c.m. x 0.5 c.m. Back of right hand thumb proximalphalynx.
(6)Abrasion 2.5 x 1.5 c.m. Right leg front, 8 c.m. Below right knee.
5. Eye witness account was furnished,, by Nazir Ahmad P.W.2 and Nazir Ahmad Butt P.W3. The appellant denied the allegation levelled against him while making a statement under section 342, Cr.P.C. He took the plea of alibi. He stated that he had a separate shop near Nilam Cinema known as Haroon Music Radio Centre, which is situated at a distance of about 1-1/2 kilometres from the shop of Zulfiqar. He disclosed that 2/3 days prior to the occurrence, he had gone out of Lahore. On 2-1-1985, he suffered an attack of appendicitis and as such was admitted in Rural Health Dispensary Dahranwala where he was operated upon According to him, he remained admitted in the Dispensary from 2-1-1985 to 9-1-1985. Zulfiqar Ahmad (deceased-convict) also denied the allegation levelled against him while making a statement under section 342, Cr.P.C. He took the plea that V.C.R. And T.V. Shop belonged to him and these articles, were taken into possession by the police in his absence from his shop. While answering, another question, he disclosed that Suleman (deceased) was armed with a Chhuri with which he opened an attack upon him. He tried to save himself by snatching the Chhuri from the assailant and as a result thereof both grappled with each other. Suleman fell down and the Chhuri held by him accidentally injured him. He states that the prosecution witnesses are related to the deceased. According to they are Kamboh by caste. He too pleaded his innocence. Dr. Arshad Ali Bajwa, Medical Officer, Rural Health Centre Sherh Farid (D.W.1) appeared in support of plea of the appellant. He deposed that he conducted an operation upon the appellant. Mukhtar Ahmad an employee of National Bank of Pakistan also appeared as D.W.2.
He supported the defence plea of the appellant. The learned trial Judge believed the statement of the complainant Nazir Ahmad P.W.2 and the medical evidence and proceeded to convict and sentence the appellant as stated earlier.
6. Learned counsel submits that the prosecution has failed to prove its case beyond reasonable doubt. According to the learned counsel the evidence of Nazir Ahmad P.W.2 has not been corroborated by any other independent evidence. Mr. R.A. Awan, learned counsel for the complainant has withdrawn the revision petition disclosing that the parties have entered into a compromise and as such would not press the said revision.
7. We have heard the learned counsel for the parties at considerable length and have read the record with utmost care. Nazir Ahmad Butt P.W.3 was not believed by the learned trial Court. Nazir Ahmad P.W.2 is the only witness relied upon by the learned trial Judge. We are not prepared to believe his evidence without corroboration. The requisite corroboration is missing in the case. He is maternal-uncle of Suleman deceased. He does not live in the locality where tire occurrence took place. He has admitted in his statement that his house is about 300 yards away from the place of occurrence. The prosecution has wholly failed to explain the presence of this witness at the spot.
The recovery of Chhuri P.10 is of no avail to the case of the prosecution because the said weapon was not found stained with human blood. Evidence shows that a single injury with Chhuri was inflicted to Suleman. However, Dr. Saeed Ahmad P.W.4 noted as many as six injuries on the person of Suleman (deceased). The prosecution has wholly failed to explain the remaining injuries on the person of the deceased. In our view, the medical evidence runs counter to the entire ocular account. We are not convinced with the prosecution evidence. The plea of alibi of the appellant is certainly more convincing inasmuch as it is established on record that the appellant was admitted for his operation in Rural Health Centre on 2-1-1985 where he was operated upon by Dr. Arshad Ali Bajwa D.W.1. It is proved that the appellant remained in the said dispensary under treatment of the aforesaid doctor from 2-1-1985 to 9-1-1985. The evidence of D.W.1 has been supported substantially by Mukhtar Ahmad, D.W.2, an employee of National Bank of Pakistan. We do not find any justification to ignore the reliable anal confidence inspiring evidence deposed by D.W.1 and D.W.2. It may be noted that the learned trial Judge examined the place of operation of the appellant in open Court and a note thereof was also given by him in that behalf. We, therefore, proceed to accept the evidence deposed by D.W.1 and D.W.2 on the plea of alibi of the appellant and reject that of prosecution in its entirety.
8. In consequence, we conclude that the prosecution did not at all succeed in proving any case against the appellant beyond reasonable doubt. Accordingly, the conviction and sentence of the appellant is set aside and he is acquitted. He shall be released forthwith provided he is not required in any other criminal case. The appeal succeeds and is allowed. The murder reference is answered accordingly. The death sentence of the appellant is NOT confirmed.
9. Criminal revision of the complainant has been with drawn by the learned counsel and as such the same is dismissed in limine. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.