' Instant appeal is directed against the judgment dated 25-11-1991 passed by Ch. Muhammad Nawaz learned Additional Sessions Judge, Okara whereby he convicted the appellant alongwith Muhammad Asghar son of Ali Muhammad (not appellant before this Court) and sentenced them to imprisonment for life and to pay a fine of Rs,10,000 each or in default thereof to undergo R.I. For 6 months each. He further extended benefit of section 382-B, Cr.P.C. To both of them.
2. Briefly stated the prosecution case as disclosed by Munir Ahmad complainant (P.W.6) in complaint Exh. P.B is that he runs a shop at Renala Khurd whereas his elder brother Muhammad Hanif used to ply Suzuki Car bearing registered No,779-BRB. On 15-6-1990 his brother was present on the taxi stand, when he alongwith Ch. Muhammad Alam and Muhammad Hanif were also present there, At about 10-00 a.m. Muhammad lqbal Sajjid son of Muhammad Khan, Muhammad Abbas alias Billu son of Muhammad Shafi and Muhammad Asghar son of Ali Muhammad, who were known to him previously, came there. They asked his brother that they wanted to go to Kamalia, in connection with some urgent work and for that hired his taxi. His brother settled the fare with them and then all of them made for Okara. The complainant alongwith his other companions also left for Okara, as they had also to go there in connection with their own business. The complainant waited for the return of his brother for about 4 days, but as neither he returned nor he sent any intimation, so it caused suspicion and he started search of his brother, but failed. He suspected that Muhammad lqbal Sajjid, Muhammad Abbas alias Billu and Muhammad Asghar had abducted his brother with the intention to commit his murder. He then lodged complaint with Ahmad Nawaz Inspector (P.W.11) who thereafter sent the same to the police station for formal registration of case. He then inspected the spot and prepared site plan Exh.P.F. On 27-6-1990 Rao Muhammad Saleem and Sardar Muhammad P.Ws. Produced Muhammad Asghar before him and he arrested him. On 29-6-1990 the accused Muhammad Asghar led to the recovery of Suzuki Car P.1 which was standing outside his house and he secured the same vide memo. Exh.P.C. On the same day he also led to the recovery of one shoe P.2 from Link Canal which he also secured vide memo. Exh.P.D. On 15-7-1990 Muhammad Iqbal Sajjid accused was also produced by Rao Muhammad Saleem and Sardar Muhammad P.Ws. And he accordingly arrested him. On 17-7-1990 accused Muhammad Iqbal Sajjid led to the recovery of two number plates Exh.P.3/1-2 and one registration book P.4 which he secured vide memo. Exh.P.E and also prepared site plan of place of recovery Exh. P.E.I. He continued the search of dead body of the deceased but failed. On 6-8-1990 he got the site plans Exh.P.A. And Exh.P.A.1 prepared from Muhammad Hanif Patwari. He thereafter completed the investigation and submitted the challan.
3. A charge under section 302/379/201/34, P.P.C. Was framed against the accused to which they pleaded not guilty and claimed trial.
4. To bring home guilt to the accused, prosecution examined P.W.1 Muhammad Hanif Patwari, who prepared site plans Exh.P.A. And Exh.P.A.1, P.W. 2 Riaz Hussain A.S.I. Recorded formal F.I.R. Exh.P.B.1 on the basis of complaint Exh.P.B. Muhammad Mukhtar P.W.3 is witness of recovery memo. Exh.P.C.
Pertaining to the recovery of Car P.1 at the instance of Muhammad Asghar accused, as well as of memo. Exh.P.D. Regarding the recovery of shoe P.2 at the instance of aforementioned accused. He is also witness of recovery of memo. Exh.P.E. Pertaining to securing two number plates Exh.P.3/1-2 and registration book P.4 at the instance of Muhammad lqbal Sajjid accused. Muhammad Akram P.W.4, Sharafat Ali P.W.5, Muhammad Yousaf P.W.7, Khalid Javed lqbal P.W.8 are all witnesses regarding last seen of deceased in the company of accused. Rao Muhammad Saleem P.W.9 and Sardar Muhammad P.W.10 are witnesses regarding extra-judicial confession of accused Muhammad Asghar and Muhammad Iqbal Sajjid. Out of them former has supported prosecution version whereas the latter has not and as such was declared hostile. Ahmad Nawaz S.I. (P.W.11) is the Investigating Officer, whose evidence has already been discussed. Thereafter, the learned D.D.A. Closed the prosecution evidence on 13-10-1991.
5. When examined under section 342, Cr.P.C. Muhammad Iqbal Sajjid accused/appellant denied the prosecution version and stated that he has been implicated in this case falsely. He also stated that neither he would examine himself under section 340(2), Cr.P.C. Nor produce any defence evidence.
6. After going through the evidence produced by the prosecution, the trial Court while acquitting Muhammad Abbas alias Billu accused, convicted the appellant Muhammad lqbal Sajjid as well as Muhammad Asghar vide judgment under appeal.
7. Alongwith this appeal, Criminal Revision No,249 of 1992 has also been filed for the enhancement of sentence awarded to the appellant. As both the appeal and criminal revision arise out of the same judgment so these are being disposed of by this single judgment.
8. Arguments have been heard and record perused.
9. Contention of the learned counsel for the appellant is that trial Court has not believed the evidence of P.Ws. 6 and 7 in respect of Muhammad Abbas alias Billu accused, since acquitted, hence the same could not be believed in respect of appellant, that even the very presence of P.Ws.
6 and 7 at the spot is highly doubtful as both of them belong to a village situated at' a distance of 2/1-2 miles from there, that there is delay of 6/7 days in lodging the F.I.R. Which also lends support to the defence version that complainant was not present on the spot, that even the presence of complainant and others is not shown in the site plan Exh.P.F. Dated 23-6-1990 prepared by Ahmad Nawaz S.I. (P.W.11), that besides the statements of P.Ws. 6 and 7, there are statements of P.Ws.4 and 5 who had seen the deceased in the company of appellant alongwith his other co-accused Muhammad Asghar and Muhammad Abbas alias Billu, that so far Muhammad Abbas alias Billu is concerned, he has already been acquitted by the trial Court by discarding the evidence of P.Ws. 4 to 7, that so far as Muhammad Asghar is concerned, he has been acquitted by Federal Shariat Court vide judgment dated 5-12-1993 by disbelieving the said P.Ws. 4 to 7, that if the evidence of P.Ws. 4 to 7 is discarded and disbelieved, the ingredients of offence under section 364, P.P.C. Also stand disproved and as such impugned judgment cannot hold the field. He, further argued that last seen evidence being weakest type of evidence cannot be made a base for passing an order of conviction unless corroborated by some other evidence which is lacking in this case. He, thus submitted that prosecution has failed to prove case against the appellant as such appeal be accepted and he be acquitted. He also resisted the criminal revision and asserted that as prosecution has failed to prove its case against the appellant, so the revision also fails and be dismissed.
10. Conversely the impugned judgment has been supported by the learned counsel for the complainant assisted by the learned counsel for the State. He asserted that prosecution has not only proved its case under section 364, P.P.C., but under section 302/201, P.P.C. As such the sentence awarded to the appellant be enhanced.
11. According to the prosecution version contained in complaint Exh.P.B, the deceased was last seen at Bus Stand Renala Khurd by P.W. 6 Munir Ahmad, P.W. 7 Muhammad Yousaf and Muhammad Alam (given up being won over) when the appellant alongwith his co-accused hired his taxi for going to Okara. Prosecution has examined P.W.4 Muhammad Akram who has deposed that he had seen the deceased with the accused at Bus Stand, Okara, his statement was recorded after one month and 7 days of the occurrence as such it hardly carries any weight. So far as statement of Sharafat Ali (P.W.5) is concerned, he is said to have seen the deceased in the company of the accused at Akhtar Abad Bus Stand. His statement was also recorded after a long time of occurrence as such it also does not deserve any credence. Muhammad Yousaf (P.W.7) and Munir Ahmad (P.W.6) are stated to have seen the deceased with the accused at Renala Khurd, Bus Stand.
According to the statement of Muhammad Yousaf (P.W.7) he was accompanied by Muhammad Alam who has not been examined by the prosecution, which also creates doubt about the authenticity of prosecution version. The presence of P.W.6 Munir Ahmad complainant and Muhammad Yousaf (P.W.7) is neither proved from record nor their presence at the relevant time is natural as both of them are residents of 2/1-2 miles from Bus Stand Renala Khurd. Besides the said witnesses prosecution has examined Rao Muhammad Saleem and Sardar Muhammad P.Ws. 9 and 10 regarding extra-judicial confession of accused Muhammad Asghar and Muhammad Iqbal Sajjid. Out of them Sardar Muhammad (P.W.10) has been declared hostile for not supporting the prosecution version which fact further gives a fatal blow to the prosecution version.
12. In the instant case admittedly there is no ocular evidence of the commission of offence except the last seen evidence which has come on record through the statements of P.Ws. Referred above.
The statements of P.Ws. 6 and 7 have not been believed so far as the involvement of Muhammad Abbas alias Billu` is concerned. So far as Muhammad Asghar accused is concerned, he filed an appeal in the Federal Shariat Court and has been acquitted vide judgment dated 12-5-1993. A perusal of said judgment dated 12-5-1993 reveals that statements of P.Ws.6 and 7 have also not been believed by the said Court. Now the same evidence is available on record in respect of present appellant. It is admitted proposition of law that evidence of a witness which has not been believed to the extent of one accused, should not be believed against the other accused, unless and until that is corroborated by some independent evidence, as held in Ghulam Sikandar and another v. Mumariz Khan and others PLD 1985 SC 11. In the present case the same witnesses have been examined against Muhammad Asghar and Muhammad Abbas alias Billu accused, out of whom the former has been acquitted by the Federal Shariat Court whereas the latter was acquitted by the trial Court itself. Thus, there being no independent evidence available on record to corroborate the statements of P.Ws. 6 and 7, the judgment under appeal cannot be sustained.
Resultantly appeal is accepted and the appellant is hereby acquitted. He is already on bail. His bail bonds stand discharged.
13. With the acceptance of this appeal, Criminal Revision No,249 of 1992 fails and is hereby dismissed.
Appeal accepted.
2000 Y 'L R 1184 [Lahore] Before Mian Muhammad Najum-uz-Zaman, J MAQSOOD---Petitioner versus THE STATE---Respondent Criminal Miscellaneous No,235-B of 1999, heard on 23rd February, 1999.
Criminal Procedure Code (V of 1898)--- ----S.497---Penal Code (XLV of 1860), S. 302/34/ 109---Bail---Two Investigating Officers during investigation had found the accused innocent-One arm of the accused according to police record was not in working condition---No recovery was effected from the accused--- Participation of accused in the occurrence in such circumstances could only be determined by the Trial Court after proper assessm ent of prosecution evidence---Case of accused, prima facie, needed further inquiry and he was admitted to bail accordingly. 1p. 1185] A Altaf Ibrahim Qureshi for Petitioners.
Raht Raza Malik for the State.
' Maqsood petitioner is arrested in a case F.I.R. No, 393 of 1997, dated 2511-1997 registered under section 302/34 read with section 109, P.P.C. At Police Station, Gaggo, District Vehari.
2. The precise allegation as alleged in the F.I.R. Is that on 25-11-1997 at about 3-00 p.m. Petitioner being armed with Rifle alongwith his two other co-accused while riding on a motorcycle forcibly stopped Bus bearing No,8875/LHH in which the deceased alongwith other passengers were travelling. Allegedly the petitioner entered into the bus alongwith his co-accused namely, Sabir.
The allegation against the petitioner is that he fired at the deceased which hit on his wrist whereas the fire made by Sabir hit the deceased on his head.
3. Learned counsel for the petitioner submits that left hand of the petitioner is incapacitated and the same cannot be used. Thus, it is not possible for a person to make fire with one hand. Further contends that during the investigation two Investigating Officers declared him innocent argues that the case of the petitioner requires further inquiry and he is entitled to the concession of bail.
The contention raised by the learned counsel for the petitioner has been vehemently opposed by the learned State counsel.
4. I have heard the learned counsel for both sides and perused the record.
5. During investigation two Investigating Officers found the petitioner innocent. The fact that one arm of the petitioner is not in working condition, is also established from the police record. During investigation no recovery was effected from the petitioner. The question as to whether petitioner could participate in the occurrence can only be determined by the trial Court after proper assessm ent of the prosecution evidence. Prima facie, the circumstances of this case are sufficient to bring the case of the petitioner within the ambit of further inquiry. Accordingly the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs,1,00,000 (Rupees one lac only) with two sureties in the like amount to the satisfaction of the trial Court.