' ASIF SAEED KHAN KHOSA, J.--- Liaqat Ali alias Kalu, aged 30 years, was convicted by the learned Additional Sessions Judge, Sheikhupura vide judgment, dated 7-7-1991 for an offence under section 302, P.P.C. And was sentenced to death and to pay a fine of Rs,10,000 or in default thereof to undergo R.I. For one year. He was also ordered to pay a sum of Rs,20,000 as compensation to the heirs of Mushtaq Ahmad deceased under section 544-A, Cr.P.C. Or in default thereof to undergo R.I.
For six months. He has challenged his conviction and sentences before this Court through Criminal Appeal No,874 of 1991. We have heard the convict's appeal along with Murder Reference No,373 of 1992 seeking confirmation of the sentence of death passed against him. We propose to decided both these matters together through the present consolidated judgment.
2. The prosecution story narrated in the F.I.R. Was that Ghulam Rasool complainant was a resident of Kot Khawaja Saeed, Lahore and that he and his three brothers owned and cultivated some agricultural land in Chak Kalal in the area of Police Station Sharqpur for supervision of which they often visited that land. On 29-1-1990 the complainant was proceeding to his land when, after alighting from a bus at Bus Stop Kalal Wala at Jaranwala Road, he per chance met Muhammad Tufail and Muhammad Ashiq P.Ws. And they also started walking with him. When they were one acre short of the garden of one Rana Abdul Majid, resident of Dhamkey, in village Mirpur Kohna the complainant's brother Mushtaq Ahmad approached them on a motorcycle. The complainant told his brother to go ahead towards the tube-well as he would be reaching there shortly while chatting with the said P.Ws. At about 10-30 a.m. When Mushtaq Ahmad reached near the said garden of Rana Abdul Majid while riding his motorcycle Liaqat Ali appellant, armed with a double-barrel .12 bore gun, emerged from that garden and straightaway fired at Mushtaq Ahmad. Upon redeipt of that injury Mushtaq Ahmad fell down with his motorcycle. Liaqat All appellant then fired 4/5 times more on the fallen Mushtaq Ahmad while raising Lalkaras that anybody coming near him would be done to death. Thus, the complainant and the P.Ws. Did not go near the appellant who fled away towards the garden after some time. Mushtaq Ahmad died at the spot. The motive set up in the F.I.R. Was that about 1-1/2 years ago Mst. Rani who was the daughter of Mushtaq Ahmad deceased's servant Ashiq Mughal was taken by the appellant, etc. To the tube-well of Mushtaq Ahmad deceased and in that incident the appellant had received injuries. A criminal case had been registered against Mushtaq Ahmad deceased, etc. In respect of the injuries sustained by the appellant whereas the appellant, etc. Had been proceeded against for the attempted abduction of the said Mst. Rani. According to the F.I.R. The appellant had murdered the complainant's brother Mushtaq Ahmad on account of that grievance.
3. Leaving the dead body of his brother Mushtaq Ahmad at the place of occurrence in the care of Muhammad Tufail and Muhammad Ashiq P.Ws. The complainant proceeded to report the matter to the police. He met Irshad Ahmad, Inspector/S.H.O. (P.W.11) at Bus Stop Sharqpur on Jaranwala Road at 11-55 ant on the same day and made a statement (Exh.P.A.) in respect of that incident, Formal F,I.R. No,24 (Exh.P.A./1) was subsequently, registered at Police Station Sharqpur, District Sheikhupura in that regard on the same day at 12-00 noon for an offence under section 302, P.P,C,
4. After recording the statement of the complainant irshad Ahmad, Inspector/S,H2O, (P.W.11) took up the investigation of this case, went to the place of occurrence, prepared injury statement (Exh,P,L) and inquest report (Exh,P,K,) in respect of Mushtaq Ahmad deceased and sent his dead body to the mortuary for autopsy. He also inspected the place of occurrence and collected blood- stained earth vide memo. Exh,P.C. Secured a crime-empty from there vide memo, Exh.P.B, and recorded the statement of witnesses, 5, Post-mortem examination (Exh,P.O.) of the dead body of Mushtaq Ahmad was conducted by Dr. Sikandar Manzoor at 11-00 a.m. On 30-1-1990. He found nine injuries on the dead body which had been caused by fire-arm, In the opinion of the doctor the cause of death was cardiopulmonary arrest due to hemorrhage and shock. All the injuries collectively and injuries Nos,1, 2 and 6 individually were opined to be sufficient to cause death in the ordinary course of nature, The approximate time elapsing between the injuries and death was stated by the doctor to be immediate and that between the death and postmortem examination was opined by the doctor to be between 24-36 hours. Due to non-availability of Dr. Sikandar Manzoor the post-mortem report prepared by him was proved at the trial by Syed Muzatnnial Hussain, Dispenser (P, W,7), 6, After the post-mortem examination of Mushtaq Ahmad deceased Irshad Ahmad, Inspector/S,H2O, (P,W,11), the Investigating Officer, secured the last-wont clothes of the deceased vide memo, Exh,P,E, On 6.2-1990 he arrested the appellant and recovered a ,12 bore gun from him on 12.2-1990 vide memo, Exh,P,E, He also got a formal site plan (Exh.P.H,) of the place of occurrence prepared from a Patwarl. Thereafter, he completed the other formalities and submitted a ehallan in respect of this case.
7. At the commencement of the trial the learned trial Court framed a charge with one head under section 302, P,P,C. Against Liaqat All appellant to which he pleaded not guilty and claimed a trial, 8, During the trial the prosecution produced as many as 11 witnesses hi support of its case against the appellant. Ohulam Rasool complainant.(P,W,5) and Muhammad Ashiq (P.W,4) furnished the ocular account of the incident. The motive set up by the prosecution was also Stated by the said eye-witnesses. Syed Muzarnmal Hussain, Dispenser (P,W.7) provided the medical evidence and Iltaf Hussain (P.W,3) deposed about the recovery of gun from the appellant. Irshad Ahmad, Inspector/S.H.O. (P.W.11) stated about various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
9. In his statement recorded under section 342, Cr.P.C. The appellant denied and controverted all the allegations of fact leveled against him by the prosecution and professed his innocence. He attributed his false involvement in this ease to the enmity nursed against him by the prosecution witnesses. However, he opted not to make any statement on oath under section 340(2), Cr,P,C, and also did not produce any witness in his defiance,
10. At the conclusion of the trial, as mentioned above, the learned Additional Sessions Judge, Sheikhupura convicted and sentenced the appellant as noticed above, Hence the present appeal and the connected murder reference before this Court.
11, We have heard the learned counsel for the appellant as well as the learned counsel representing the State and have also gone through the record of this case with their assistance.
12. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case beyond reasonable doubt. He has maintained that the statements made by the alleged eye-witnesses did not inspire confidence and that, the same had failed to receive any corroboration or support from any independent evidence. As against that the learned counsel representing' the State and the complainant have argued that the prosecution had successfully proved the guilt of the appellant to the hilt as the eye-witnesses produced by the prosecution had made consistent statements which had found ample corroboration and support from the other evidence produced by the prosecution.
'13. After hearing the learned counsel for the parties and going through the record we have no hesitation in observing that the eye-witnesses produced by the prosecution in this case have failed to inspire our confidence, We have noticed that Ohulam Rasool complainant (P,W,S) was not only a brother of Mushtaq Ahmad deceased but was also inimically disposed towards the appellant. He had admitted that a criminal case had been registered against the deceased in a matter which also involved the appellant from the opposite side. The complainant was also a chance witness who had failed to bring anything on the record to substantiate the reason for his presence near the deceased at the time of occurrence. Admittedly, he lived miles away from the place of occurrence.
The occurrence had taken place at about 10.30 a.m. On a working day. The complainant had initially concealed the fact that he was employed in the telephone department and ordinarily he was supposed to be present on duty far away from the place of occurrence at that time of the day.
The Investigating Officer (P.W.11) had also stated that the complainant had not disclosed before him that he was employed in the telephone department. During the trial it was elicited from him through cross-examination that he was employed in the telephone department. Upon this exposure he maintained that he was working on - night duty so as to lend credibility to his claim of presence at the place of occurrence during day time. But he failed to bring anything on the record to establish his claim of performing night duty. It is also noticeable that the complainant had advanced no special reason for his stated visit to his lands on the relevant day. He has also admitted that he had no programme with his deceased brother to visit their lands at the same time. We have noticed that the complainant and the deceased had allegedly gone to the said lands separately and had also used different transport for going there. The complainant had also failed to produce any material before the Investigating Officer or the learned trial Court establishing his travel on a bus on the day of occurrence. Failure by the complainant to specify in the F.I.R. The seats of the injuries sustained by the deceased is yet another circumstance which had made his claim of witnessing the said occurrence doubtful. We have also noticed that the complainant's name does not even figure in the site plan (Exh.P.H.).
14. As ,far as Muhammad Ashiq (P.W.4) is concerned even the learned counsel for the complainant and the State have admitted before us that he was a chance witness who had not substantiated the reason for his alleged presence near the place of occurrence at the relevant time. His place of residence was nowhere near the place of occurrence and the "private work" for which he was allegedly proceeding at the time of occurrence was never disclosed or substantiated by him during the trial. We are not prepared to place reliance on a chance witness in a case involving a capital charge who fails to satisfy us about the reason for his claimed presence at a place where ordinarily he was not expected to be present at a given time. This witness was also related to the deceased and the complainant as he had not denied his relationship with them through his in- laws. Some other factors which had further clouded his claim of being an eye-witness were that he statedly went to the place of occurrence through a Kadin passage which was admittedly not normally used by other; he also failed to specify the seats of the injuries sustained by the deceased during the occurrence; he did not know wherefrom a trolly was arranged for taking the dead body away; and he had admittedly not accompanied the dead body from the spot to the hospital. This witness has, thus, also failed to inspire our confidence.
15. The prosecution has also failed to prove the motive set up by it. Ghulam Rasool complainant (P.W.5) had admitted that he was not personally present during the incident of motive.
Muhammad Ashiq (P.W.4) had also shown his ignorance about some important details of the alleged motive. The complainant had himself stated that he had produced no evidence before the Investigating Officer in support of the alleged motive. The Investigating Officer (P.W.11) had also confirmed that fact and had also gone on to state that he had conducted no investigation in respect of the motive alleged by the complainant party.
16. As the crime-empty recovered from the place of occurrence had not matched with the gun allegedly recovered from the appellant, therefore, the said evidence of recovery is legally inconsequential.
17. It is settled law that medical evidence is only supporting in nature. Therefore, in a case where the eye-witnesses themselves fail to inspire confidence there does not remain anything in the field to be supported by the medical evidence. Even otherwise we have noticed that the eye-witnesses produced by the prosecution had tried to improve their statements by stating that the appellant had advanced towards the deceased for firing some of his shots. Such improvements were apparently made in order to bring the ocular account in accord with the medical evidence which showed presence of blackening on some of the injuries sustained by the deceased. Thus, the medical evidence produced by the prosecution makes its own case worse.
18. For what has been observed above we have no hesitation in concluding that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, accepted and the appellant is hereby acquitted. He shall be released from jail forthwith, if not required in any other case.
19. As the appeal filed by Liaqat Ali alias Kalu appellant against his conviction and sentences has been allowed by us and he has been acquitted, therefore, Murder Reference No,373 of 1992 is answered in the negative.
Death sentence not confirmed.