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Petitioner: MUHAMMAD ASHRAF VS Respondent: StateHonorable Justice KHAWAJA MUHAMMAD SHARIFCh. Muhammad Nazir,Tahir Mahmood Gondal
2006 Y L R 1498
2006 Y L R 1498
[Lahore]
Before Khawaja Muhammad Sharif and M.A. Shahid Siddiqui, JJ
MUHAMMAD ASHRAF and another---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No.136-J of 2000, and Murder Reference No.412 of 2000, heard on 1st November, 2005.
Penal Code (XLV of 1860)---
----Ss. 302(b) & 109---Appreciation of evidence---Nobody was named in the F.I.R. as accused and even no evidence was in the case---Occurrence allegedly had taken place at 3.30 a. m. in the month of January when winter season was on its peak and stark dark---No source of light being mentioned in F.I.R., prosecution witness could not have identified accused---Supplementary statement, had no evidentiary value in the eye of law---According to eye-witness account, accused fired a single shot and it was not the case of prosecution that accused had made a second fire---Evidence of extra judicial confession which was joint one, was not admissible in evidence---No other evidence was available against accused persons---Case against both accused persons was of doubtful nature---While extending benefit of doubt, conviction and sentence recorded against accused persons by the Trial Court, were set aside and they were acquitted of charge against them.
Ch. Muhammad Nazir for Appellant (at State expense).
Tahir Mahmood Gondal for the State.
Dates of hearing: 31st October and 1st November, 2005.
JUDGMENT
KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.136/J of 2000 filed by Muhammad Ashraf and Mst. Kubra, appellants. Both these appellants were convicted and sentenced by the learned Additional Sessions Judge, Sargodha vide judgment dated 30-5-2000 as under:--
(1) Muhammad Ashraf---Death and topay compensation of Rs.50,000 in default 6 months' S.I. under section 302(b), P.P.C.
(2) Mst. Kubra---Imprisonment for life with the benefit of section 382-B, Cr.P.C. under section 302(b) read with section 109, P.P.C.
It may be noted that Mst. Kubra convict has also filed Criminal Appeal No.917 of 2000 challenging her conviction.
2. Murder Reference No.412 of 2000 for confirmation or otherwise of death sentence of Muhammad Ashraf convict shall also be replied through this single judgment.
3. Briefly stated that facts of the case are that on 26-10-1998 at 3-30 a.m. Zafar Iqbal, brother of complainant, Zulfiqar Ali went to urinate and did not come back for some time. Being worried, Mst. Kubra, the Bhabi of the complainant sent Muhammad Amin to the complainant to apprise him of the fact. The complainant along with Iftikhar Ahmad his brother searched and when reached near orchard of Ashfaq Ahmad, they saw the dead body of the deceased Zafar Iqbal lying there having an injury on the back of the body. Nobody was named in the F.I.R. and even no motive was alleged against anyone. Abdul Rauf, S.-I. P. W.11 started with the investigation on the day of occurrence he went to the spot, prepared injury statement Exh.P.C., Inquest Report Exh.P.B. and took into possession blood-stained earth from the spot vide memo. Exh.P.F. Also secured an empty cartridge P.4 vide memo. Exh.P.G. Mst. Kubra was arrested on 29-1-1998 while Muhammad Ashraf was arrested on 6-2-1998. Muhammad Ashraf got recovered a .12 bore gun which was taken into possession vide memo. Exh.P.B. After completion of the formal investigation both the accused were challaned to face the trial.
4. At the trial, the prosecution in order to prove its case produced 11 witnesses in all. Then the learned DDA tendered in evidence report of the Forensic Science Laboratory Exh.P.Q and closed the case of prosecution. The accused in their statements under section 342, Cr.P.C. pleaded false implication. After conclusion of the trial both the accused were convicted and sentenced as stated above.
5. Learned counsel for Mst. Kubra appellant submits that no overt act whatsoever was attributed to her; the only evidence against her is that of extra-judicial confession and except that there is no other evidence against the appellant. Further submits that there is no evidence on record to show that both the appellants had any illicit relations with each other.
6. Now, learned counsel for Muhammad Ashraf, appellant submits that occurrence having taken place in dark hours of the night, it was an un-witnessed occurrence; Zafar Iqbal P.W.10 who has alleged himself to be an eye-witness, his name does not find mention in the F.I.R.; there is delay of five/six hours in lodging the F.I.R. and that so far as positive report of the Fire-arms Expert is concerned, that is concocted inasmuch as if a shot is fired with a .12 bore gun, the empty does not eject, until the second shot is made and in the instant case, according to case of the prosecution itself, only a single shot was fired. Concluding his submissions, learned counsel submits that the prosecution has miserably failed to prove its case and the appellant is entitled to acquittal.
7. Conversely, learned A.A..-G. submits that though the appellants were not named in the F.I.R. but their names find mention in the supplementary statement of the complainant; ocular account is fully corroborated by medical evidence and positive report of the Fire-arms Expert lends support to the case of the prosecution. Further submits that there is also evidence of extra-judicial confession. In nutshell, he supports the judgment of the trial Court.
8. We have heard learned counsel for the parties at length and have gone through the record. In the instant case, nobody was named in the F.I.R. as accused. Even there is no eye-witness in this case. The occurrence had allegedly taken place at 3-30 a.m. in the month of January, 1998. The winter season in the month of January was on its peak and stark dark. No source of light was mentioned in the F.I.R. so that Zafar Iqbal P.W.10 could not have identified the accused. The supplementary statement has no evidentiary value in the eye of law.
According to eye-witness account, Muhammad Ahsraf, appellant fired a single shot. It was not the case of prosecution that the accused made a second fire. According to Forensic law, when a shot is fired with a .12 bore gun, the empty does not eject unless the second shot is fired but in the instant case, the Police took into possession from the spot on the day of occurrence, a crime empty. The statement of Zafar Iqbal P.W.10 in our view is afterthought. He, after having seen the occurrence, neither went to house of the complainant nor made report to the Police. The evidence of extra-judicial confession is joint one, which is not admissible in evidence. There is no other evidence against the convict appellants.
Having considered the case from all angles and going through the evidence on record, we are of the considered view that case against both the appellant is of doubtful nature rather doubts are floating on the surface of the record. So, while extending the benefit of doubt, we accept both the appeals filed by the appellants, set aside the conviction and sentence recorded against them by the trial Court vide the impugned judgment and acquit them of the charge. The death sentence of Muhammad Ashraf, appellant is NOT confirmed and Murder Reference is replied in the NEGATIVE. Both the appellants are in jail. They shall be released forthwith, if not required to be detailed in any other case.
H.B.T./M-108/L Appeal accepted.