PLJ 2012 SC 44
[Appellate Jurisdiction]
Present: Nasir-ul-Mulk, Anwar Zaheer Jamali & Ghulam Rabbani, JJ.
MUHAMMAD NADEEM alias BANKA--Appellant
versus
STATE--Respondent
Crl. A. No. 77 of 2009, decided on 4.4.2011.
(On appeal from the judgment dated 9.10.2008 passed by the Lahore High Court, Lahore in Criminal Appeal No. 168-J of 2002, Crl. Rev. No. 589/02 and M.R. No. 299/02).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Charge of murder--Conviction and sentence recorded against accused by trial Court--Co-accused was acquitted--Challenge to--Conviction was maintained by High Court--Appreciation of evidence--Question of--Whether evidence of witnesses was natural recovery of pistol was established and motive as alleged was believable--Mere relationship of witnesses was not sole ground to discredit their testimony--Recovery officer and marginal witnesses were shown different places of arrest and recovery of crime weapon from accused--Contradicted each other in other material aspects--Validity--It does not appeal to common sense that an accused of a heinous crime of murder, would instead of swiftly getting rid of weapon used in commission of crime, prefer to carry same all along after 10/11 days to be arrested in dubious manner leading to its recovery to be used against him as strong corroboratory piece of evidence--Recovery of pistol cannot be said to have been established--Neither ocular evidence nor evidence as to recovery of crime weapon was free from doubt, so also the motive as alleged was not believable--It is well settled that prosecution is under obligation to prove the guilt of an offender beyond any shadow of doubt, in which it failed miserably, therefore, benefit must go to the accused--Appeal was allowed. [Pp. 48 & 50] A & C
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence recorded against accused by trial Court--Appeal was dismissed by High Court--Challenge to--Co-accused was made disclosure in his supplementary statement--Validity--Investigating officer while recording supplementary statement of prosecution at place of incident must have learnt the name, father name and place of resident of other accused, even then arranging identification parade of accused to be identified appeared to be illogical--Conduct of I.O, too became highly doubtful. [P. 49] B
Mr. Aftab A. Khan, ASC. for Appellant.
Mr. Ahmad Raza Gillani, Addl. P.G. for State.
Date of hearing: 4.4.2011.
Judgment
Ghulam Rabbani, J.--This criminal appeal with leave of the Court is directed against the judgment dated 9.10.2008 whereby Criminal Appeal No. 168-J-2002 of the appellant was dismissed by a learned Division Bench of Lahore High Court, Lahore.
2. Briefly stated the facts of the case are that the appellant Muhammad Nadeem alias Banka alongwith his co-accused Javaid Iqbal were put on trial on the charge of murder of deceased Tahir by causing him fire-arm injuries in furtherance of their common intention. The Additional Sessions Judge, Toba Tek Singh vide judgment dated 29.4.2002 acquitted the co-accused and having found the appellant guilty of commission of offence, as alleged, sentenced him under Section 302(b) PPC to suffer death subject to confirmation by the High Court. The appellant was also directed to pay compensation of Rs. 1,00,000/- to legal heirs of the deceased and in default whereof to under go six months R.I. The appellant challenged his conviction and sentence by way of appeal which was dismissed and the murder reference of trial Court was answered in positive vide judgment impugned herein.
3. Learned Division Bench of Lahore High Court, while maintaining the conviction and the sentence awarded to the appellant, observed as follows:
"According to the prosecution case, the name of the appellant is mentioned in the FIR and specific role is attributed to him. Both the witnesses have no direct animus with the appellant. They have no motive to falsely implicate him or exaggerate. The evidence of both the witnesses is natural at the spot. The defence has not been able to create any dent in the prosecution. The ocular account is fully supported by the motive, recovery of pistol and medical evidence. The prosecution has proved its case. Therefore, the learned trial Court has rightly convicted the appellant and his conviction and sentence is upheld."
4. Whether the evidence of both the witnesses, as referred to hereinabove, is natural, recovery of pistol is established and the motive as alleged is believable, are the questions of prime importance since these pieces of evidence found favour with learned Division Bench to link the appellant with commission of offence. In order to find pertinent answers to these questions we have gone through the available material in the light of oral submissions of learned counsel for appellant, who contended that the prosecution evidence on the face of it is not believable being un-natural, improbable and inconsistent coming through untruthful witnesses; whereas, learned Additional Prosecutor General supported the impugned judgment.
5. Before we proceed to analyze the evidence it will be appropriate to, first, relate in nutshell, the prosecution story according to which on the fateful day at about 8.00pm the appellant-convict in company of an unknown person (subsequently found to be the acquitted accused Javaid Iqbal) appeared at the house of complainant Muhammad Imtiaz (PW-7) where the latter was sitting with his uncle Muhammad Anwar (PW-8), and the deceased Tahir and took the latter with them in their presence. Since on same night at about 9.00pm the complainant side were to attend a family dinner and the deceased did turn up, both the PWs went out in his search on a motorcycle and on the way they met PW-Muhammad Shafique who informed them that at Rajana Road he had seen the deceased in company of appellant and an unknown person going on Cycle towards Eastern side of Railway line. Therefore, all the three PWs proceeded towards that side but found there no one available and took back when they saw on the railway track in the light of motorcycle that the appellant and the unknown person duly armed with pistols were present at the place of occurrence with deceased and in their presence, the appellant fired at the deceased who fell down having received injury on the right side of his head whereas, the unknown person threatened the PWs of killing if they stepped forward.
6. The prosecution examined complainant Muhammad Imtiaz as PW-7 and Muhammad Anwar PW-8 to prove ocular evidence whereas, the remaining eye-witness namely Muhammad Shafique was given up. All these witnesses are closely related to the deceased, such as, the complainant and the deceased are brothers inter-se while PW-Muhammad Anwar is their paternal uncle and Muhammad Shafique (given up PW) is their maternal uncle. Admittedly, mere relationship of witnesses is not the sole ground to discredit their testimony yet, in view of what is discussed next, it calls for careful study of the prosecution story as put forward in their evidence, to place implicit reliance thereon.
7. The complainant stated in his evidence that he alongwith Muhammad Anwar (PW-8) set out in the search of the deceased, met PW-Muhammad Shafique on the way and on his information all the three of them proceeded towards eastern side of Railway line when they found no one towards that place. He further stated that, "when we were returning back on the Railway track we saw in the light of motor cycle Nadeem accused armed with pistol was present there. Tahir deceased was also there and unknown person who was also armed with the pistol was present there at about 9.30pm. We observed in the light of motor cycle that Nadeem accused fired at Tahir deceased which hit him on the right side of head of Tahir deceased. As a result of which he fell down. We tried to step forward but unknown person threatened us that in case we proceeded forward he would kill them. Tahir succumbed to the injuries at the spot and the accused ran away towards crop sown there". Similar statement has been made by other eye witness Muhammad Anwar (PW-8). From their statements, on one hand it appears that while searching for the deceased they reached the place of occurrence by chance and on the other it seems as if, the appellant and co-accused, were keenly waiting for their arrival to reach there and witness the causing of murder of the deceased. Here, it will not be out of place to mention that if the appellant and the co-accused had intention to kill the deceased and they were so audacious to do so in presence of his close relations, they could have done it right infront of complainants' house. In our estimation, the story of murder of deceased as portrayed by the eye-witnesses appears to be highly improbable and does not satisfy the judicial mind to believe in, the same being against the ordinary course of human conduct.
8. In the FIR lodged at about 10.15pm the complainant Muhammad Imtiaz (PW-7) had not named the co-accused Javaid Iqbal; instead described him to be an "unknown person", albeit in his supplementary statement recorded on the same night he disclosed his name. In his examination-in-chief, the complainant revealed that "I made a supplementary statement on the same night that other accused and who had accompanied Nadeem accused was Javaid Iqbal". In his cross-examination, as well, he stated that "had stated in my supplementary statement that other accused was Javaid Iqbal s/o Ghulam Muhammad mohal by caste and was resident of Chak No. 705 GB". If it was so, it became evident that he spoke a lie in his FIR that the other accused was an unknown person. As a liar he appears to be, the complainant again took a summersault to contradict himself in his another statement in cross-examination to say that "It is also incorrect that I knew the accused Javaid Iqbal and his parentage and the chak where he resided prior to joining the identification parade". Thus, having made his above-noted conflicting statements the complainant cannot be considered a truthful witness.
9. Coming to the recovery of crime weapon namely .30 bore pistol from the appellant, according to prosecution, the recovery was made from the appellant on 28.9.2001 i.e. 11 days after the alleged incident by I.O. Muhammad Akram, SIP (PW.10) in presence of other police personnel including, amongst others, ASI Muhammad Yaqoob and constable Abdul Ghafoor (PW-4) who acted as marginal witnesses of the recovery. Abdul Ghafoor, Constable (PW-4) stated in his evidence that on 20.9.2001 he alongwith police officials was present with Muhammad Akram, SIP, I.O. of this case "at Jakhar bridge on patrol duty", which bridge according to him is situated on Kamalia-Jakhar metalled road. This witness further stated that, "At about 8.00 p.m. on that day Muhammad Nadeem accused present in Court came there. On seeing police party he attempted to slip away but was apprehended at some distance. His person was searched by Muhammad Akram SIP. Pistol .30 bore was recovered from the naifa of his shalwar. On unloading the pistol 4 live bullets were recovered therefrom". In his cross-examination he has stated about the appellant that "he was coming on a cycle", and that "we had apprehended Nadeem accused at a distance of 20/25 feets from said bridge. The cycle of Nadeem accused was also taken into possession by the I.O. A memo. of recovery of cycle was prepared by the I.O. at the spot". He stated further that "there was no barrier at the bridge for toll tax or barrier of Zila tax". Interestingly, Muhammad Akram, SIP gave a different version as to arrest and the recovery from appellant by saying in his cross-examination that "place from where I arrested accused Nadeem alias Banka is situated at wahgi pull on Kamalia Jakhar road"; that "he was arrested at the distance of 2 acres towards north from wahgi bridge"; that "the accused was on foot"; that "it is incorrect that at that time the accused was coming on cycle" and that there is "a tool tax barrier near the bridge". From above it is evident that it is not only that the recovery officer and the marginal witness have shown different places of arrest and recovery of the crime weapon from the appellant but they have also contradicted each other in other material aspects. Be that as it may, it does not appeal to common sense that an accused of a heinous crime of murder, in this case the appellant, would, instead of swiftly getting rid of the weapon used in commission of crime, prefer to carry the same all along after 10/11 days to be arrested in a dubious manner leading to its recovery to be used against him as a strong corroboratory piece of evidence. The recovery of pistol in the circumstances cannot be said to have been established.
10. As regards motive, the complainant stated in his examination in chief that, "the motive for the present crime was that few days prior to the occurrence there was a quarrel between Nadeem accused and Tahir deceased. The matter was compromised but inspite of that Nadeem accused nourished grudge against the deceased". On a suggestion he stated that, "I had not asked Tahir deceased as to why he was leaving with the accused at that time and for what reason volunteer. I had not asked him because Nadeem accused was friend of Tahir deceased and on other occasion he accompanied Nadeem accused as well". Both the afore-noted statements of the complainant do not appear to reconcile with each other. At one place the complainant has dubbed the appellant as a friend and at other place he states that the appellant nourished grudge against the deceased. Had it been so, the complainant would have been very reluctant to see the deceased leave with the appellant, more so, with an unknown person as described by him in his FIR. Here, it may be stated that even otherwise the motive as alleged does not seem to be so strong to force causing blatant murder of the deceased.
11. It has come in the evidence that the I.O. recovered the empties, blood stained earth and the cycle from the place of occurrence. According to I.O., he visited the place of occurrence twice i.e. first time on 9.9.2001 and next time on 10.9.2001. On 9.9.2001 he proceeded to the place of occurrence and found the dead body of Tahir lying, he prepared injury statement (Exh. PB) and inquest report (Exh.PC) "while sitting near the dead body" and took into possession a pair of chappal of deceased (Exh.PH) and recorded the statements of Muhammad Anwar, Muhammad Shafique and supplementary statement of complainant Muhammad Imtiaz. Next day i.e. 10.9.2001 he again inspected the spot and secured .30 bore empty from there made it into a sealed parcel, secured blood stained earth from the place of "wardat" on that day which, too, was made into a sealed parcel (Exh.PJ) so also, he secured the cycle (Exh.PK) in presence of PW-8 and PW Shafique. When asked in his cross-examination he stated that "I had not inspected the spot minutely at night time and in fact had deferred the detailed inspection of spot till next morning", though admitted that "I had prepared injury statement and inquest report while sitting near the dead body. I had seen the cycle at the night time, but the detail inspection of the place of occurrence was deferred by me due to darkness of night therefore, I had inspected the spot on the next day". It is thus evident that on his first visit of place of occurrence darkness did not come in the way of I.O. in recording statements of witnesses, preparing inquest report etc., but, he had to wait for day light and deferred further proceedings for recovery of important pieces of evidence, such as empty, blood stained earth and the recovery of cycle on which it was alleged that the deceased and the culprits were found going towards place of incident. At least the I.O. could have secured the cycle and the blood stained earth, when he could secure chappal of deceased and do other things on his first visit of place of incident. He has admitted in his evidence, relevant passage therefrom has been noted above, that he has seen the cycle at night time. Besides, it is evident from foregoing paras that the complainant had, on the very night of incident and lodgment of FIR, made disclosure in his supplementary statement that the other accused was Javaid Iqbal s/o Ghulam Muhammad resident of Chak No. 705 GB. Needless to observe that the I.O. while recording supplementary statement of the complainant at the place of incident must have learnt the name, fathers' name and place of resident of other accused, even then arranging the identification parade of appellant to be identified by the complainant appears to be illogical. Thus, the conduct of the I.O., too, becomes highly doubtful.
12. Thus, evaluating the available material as discussed above, it becomes crystal clear that neither the ocular evidence nor the evidence as to recovery of crime weapon is free from doubt, so also, the motive as alleged is not believable. Indeed a serious doubt pervades the whole case. It is well settled that prosecution is under legal obligation to prove the guilt of an offender beyond any shadow of doubt, in which it failed miserably, therefore, the benefit must go to the appellant.
13. Considering the foregoing, by our short order dated 4.4.2011 we allowed this appeal, set aside the impugned judgments and the conviction and sentences of the appellant and acquitted him of the charge framed against him with direction that he should be set at liberty forthwith, if not required in any other cause.
14. These are the reasons for our short order of even date.
(R.A.) Appeal allowed.
[Appellate Jurisdiction]
Present: Nasir-ul-Mulk, Anwar Zaheer Jamali & Ghulam Rabbani, JJ.
MUHAMMAD NADEEM alias BANKA--Appellant
versus
STATE--Respondent
Crl. A. No. 77 of 2009, decided on 4.4.2011.
(On appeal from the judgment dated 9.10.2008 passed by the Lahore High Court, Lahore in Criminal Appeal No. 168-J of 2002, Crl. Rev. No. 589/02 and M.R. No. 299/02).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Charge of murder--Conviction and sentence recorded against accused by trial Court--Co-accused was acquitted--Challenge to--Conviction was maintained by High Court--Appreciation of evidence--Question of--Whether evidence of witnesses was natural recovery of pistol was established and motive as alleged was believable--Mere relationship of witnesses was not sole ground to discredit their testimony--Recovery officer and marginal witnesses were shown different places of arrest and recovery of crime weapon from accused--Contradicted each other in other material aspects--Validity--It does not appeal to common sense that an accused of a heinous crime of murder, would instead of swiftly getting rid of weapon used in commission of crime, prefer to carry same all along after 10/11 days to be arrested in dubious manner leading to its recovery to be used against him as strong corroboratory piece of evidence--Recovery of pistol cannot be said to have been established--Neither ocular evidence nor evidence as to recovery of crime weapon was free from doubt, so also the motive as alleged was not believable--It is well settled that prosecution is under obligation to prove the guilt of an offender beyond any shadow of doubt, in which it failed miserably, therefore, benefit must go to the accused--Appeal was allowed. [Pp. 48 & 50] A & C
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence recorded against accused by trial Court--Appeal was dismissed by High Court--Challenge to--Co-accused was made disclosure in his supplementary statement--Validity--Investigating officer while recording supplementary statement of prosecution at place of incident must have learnt the name, father name and place of resident of other accused, even then arranging identification parade of accused to be identified appeared to be illogical--Conduct of I.O, too became highly doubtful. [P. 49] B
Mr. Aftab A. Khan, ASC. for Appellant.
Mr. Ahmad Raza Gillani, Addl. P.G. for State.
Date of hearing: 4.4.2011.
Judgment
Ghulam Rabbani, J.--This criminal appeal with leave of the Court is directed against the judgment dated 9.10.2008 whereby Criminal Appeal No. 168-J-2002 of the appellant was dismissed by a learned Division Bench of Lahore High Court, Lahore.
2. Briefly stated the facts of the case are that the appellant Muhammad Nadeem alias Banka alongwith his co-accused Javaid Iqbal were put on trial on the charge of murder of deceased Tahir by causing him fire-arm injuries in furtherance of their common intention. The Additional Sessions Judge, Toba Tek Singh vide judgment dated 29.4.2002 acquitted the co-accused and having found the appellant guilty of commission of offence, as alleged, sentenced him under Section 302(b) PPC to suffer death subject to confirmation by the High Court. The appellant was also directed to pay compensation of Rs. 1,00,000/- to legal heirs of the deceased and in default whereof to under go six months R.I. The appellant challenged his conviction and sentence by way of appeal which was dismissed and the murder reference of trial Court was answered in positive vide judgment impugned herein.
3. Learned Division Bench of Lahore High Court, while maintaining the conviction and the sentence awarded to the appellant, observed as follows:
"According to the prosecution case, the name of the appellant is mentioned in the FIR and specific role is attributed to him. Both the witnesses have no direct animus with the appellant. They have no motive to falsely implicate him or exaggerate. The evidence of both the witnesses is natural at the spot. The defence has not been able to create any dent in the prosecution. The ocular account is fully supported by the motive, recovery of pistol and medical evidence. The prosecution has proved its case. Therefore, the learned trial Court has rightly convicted the appellant and his conviction and sentence is upheld."
4. Whether the evidence of both the witnesses, as referred to hereinabove, is natural, recovery of pistol is established and the motive as alleged is believable, are the questions of prime importance since these pieces of evidence found favour with learned Division Bench to link the appellant with commission of offence. In order to find pertinent answers to these questions we have gone through the available material in the light of oral submissions of learned counsel for appellant, who contended that the prosecution evidence on the face of it is not believable being un-natural, improbable and inconsistent coming through untruthful witnesses; whereas, learned Additional Prosecutor General supported the impugned judgment.
5. Before we proceed to analyze the evidence it will be appropriate to, first, relate in nutshell, the prosecution story according to which on the fateful day at about 8.00pm the appellant-convict in company of an unknown person (subsequently found to be the acquitted accused Javaid Iqbal) appeared at the house of complainant Muhammad Imtiaz (PW-7) where the latter was sitting with his uncle Muhammad Anwar (PW-8), and the deceased Tahir and took the latter with them in their presence. Since on same night at about 9.00pm the complainant side were to attend a family dinner and the deceased did turn up, both the PWs went out in his search on a motorcycle and on the way they met PW-Muhammad Shafique who informed them that at Rajana Road he had seen the deceased in company of appellant and an unknown person going on Cycle towards Eastern side of Railway line. Therefore, all the three PWs proceeded towards that side but found there no one available and took back when they saw on the railway track in the light of motorcycle that the appellant and the unknown person duly armed with pistols were present at the place of occurrence with deceased and in their presence, the appellant fired at the deceased who fell down having received injury on the right side of his head whereas, the unknown person threatened the PWs of killing if they stepped forward.
6. The prosecution examined complainant Muhammad Imtiaz as PW-7 and Muhammad Anwar PW-8 to prove ocular evidence whereas, the remaining eye-witness namely Muhammad Shafique was given up. All these witnesses are closely related to the deceased, such as, the complainant and the deceased are brothers inter-se while PW-Muhammad Anwar is their paternal uncle and Muhammad Shafique (given up PW) is their maternal uncle. Admittedly, mere relationship of witnesses is not the sole ground to discredit their testimony yet, in view of what is discussed next, it calls for careful study of the prosecution story as put forward in their evidence, to place implicit reliance thereon.
7. The complainant stated in his evidence that he alongwith Muhammad Anwar (PW-8) set out in the search of the deceased, met PW-Muhammad Shafique on the way and on his information all the three of them proceeded towards eastern side of Railway line when they found no one towards that place. He further stated that, "when we were returning back on the Railway track we saw in the light of motor cycle Nadeem accused armed with pistol was present there. Tahir deceased was also there and unknown person who was also armed with the pistol was present there at about 9.30pm. We observed in the light of motor cycle that Nadeem accused fired at Tahir deceased which hit him on the right side of head of Tahir deceased. As a result of which he fell down. We tried to step forward but unknown person threatened us that in case we proceeded forward he would kill them. Tahir succumbed to the injuries at the spot and the accused ran away towards crop sown there". Similar statement has been made by other eye witness Muhammad Anwar (PW-8). From their statements, on one hand it appears that while searching for the deceased they reached the place of occurrence by chance and on the other it seems as if, the appellant and co-accused, were keenly waiting for their arrival to reach there and witness the causing of murder of the deceased. Here, it will not be out of place to mention that if the appellant and the co-accused had intention to kill the deceased and they were so audacious to do so in presence of his close relations, they could have done it right infront of complainants' house. In our estimation, the story of murder of deceased as portrayed by the eye-witnesses appears to be highly improbable and does not satisfy the judicial mind to believe in, the same being against the ordinary course of human conduct.
8. In the FIR lodged at about 10.15pm the complainant Muhammad Imtiaz (PW-7) had not named the co-accused Javaid Iqbal; instead described him to be an "unknown person", albeit in his supplementary statement recorded on the same night he disclosed his name. In his examination-in-chief, the complainant revealed that "I made a supplementary statement on the same night that other accused and who had accompanied Nadeem accused was Javaid Iqbal". In his cross-examination, as well, he stated that "had stated in my supplementary statement that other accused was Javaid Iqbal s/o Ghulam Muhammad mohal by caste and was resident of Chak No. 705 GB". If it was so, it became evident that he spoke a lie in his FIR that the other accused was an unknown person. As a liar he appears to be, the complainant again took a summersault to contradict himself in his another statement in cross-examination to say that "It is also incorrect that I knew the accused Javaid Iqbal and his parentage and the chak where he resided prior to joining the identification parade". Thus, having made his above-noted conflicting statements the complainant cannot be considered a truthful witness.
9. Coming to the recovery of crime weapon namely .30 bore pistol from the appellant, according to prosecution, the recovery was made from the appellant on 28.9.2001 i.e. 11 days after the alleged incident by I.O. Muhammad Akram, SIP (PW.10) in presence of other police personnel including, amongst others, ASI Muhammad Yaqoob and constable Abdul Ghafoor (PW-4) who acted as marginal witnesses of the recovery. Abdul Ghafoor, Constable (PW-4) stated in his evidence that on 20.9.2001 he alongwith police officials was present with Muhammad Akram, SIP, I.O. of this case "at Jakhar bridge on patrol duty", which bridge according to him is situated on Kamalia-Jakhar metalled road. This witness further stated that, "At about 8.00 p.m. on that day Muhammad Nadeem accused present in Court came there. On seeing police party he attempted to slip away but was apprehended at some distance. His person was searched by Muhammad Akram SIP. Pistol .30 bore was recovered from the naifa of his shalwar. On unloading the pistol 4 live bullets were recovered therefrom". In his cross-examination he has stated about the appellant that "he was coming on a cycle", and that "we had apprehended Nadeem accused at a distance of 20/25 feets from said bridge. The cycle of Nadeem accused was also taken into possession by the I.O. A memo. of recovery of cycle was prepared by the I.O. at the spot". He stated further that "there was no barrier at the bridge for toll tax or barrier of Zila tax". Interestingly, Muhammad Akram, SIP gave a different version as to arrest and the recovery from appellant by saying in his cross-examination that "place from where I arrested accused Nadeem alias Banka is situated at wahgi pull on Kamalia Jakhar road"; that "he was arrested at the distance of 2 acres towards north from wahgi bridge"; that "the accused was on foot"; that "it is incorrect that at that time the accused was coming on cycle" and that there is "a tool tax barrier near the bridge". From above it is evident that it is not only that the recovery officer and the marginal witness have shown different places of arrest and recovery of the crime weapon from the appellant but they have also contradicted each other in other material aspects. Be that as it may, it does not appeal to common sense that an accused of a heinous crime of murder, in this case the appellant, would, instead of swiftly getting rid of the weapon used in commission of crime, prefer to carry the same all along after 10/11 days to be arrested in a dubious manner leading to its recovery to be used against him as a strong corroboratory piece of evidence. The recovery of pistol in the circumstances cannot be said to have been established.
10. As regards motive, the complainant stated in his examination in chief that, "the motive for the present crime was that few days prior to the occurrence there was a quarrel between Nadeem accused and Tahir deceased. The matter was compromised but inspite of that Nadeem accused nourished grudge against the deceased". On a suggestion he stated that, "I had not asked Tahir deceased as to why he was leaving with the accused at that time and for what reason volunteer. I had not asked him because Nadeem accused was friend of Tahir deceased and on other occasion he accompanied Nadeem accused as well". Both the afore-noted statements of the complainant do not appear to reconcile with each other. At one place the complainant has dubbed the appellant as a friend and at other place he states that the appellant nourished grudge against the deceased. Had it been so, the complainant would have been very reluctant to see the deceased leave with the appellant, more so, with an unknown person as described by him in his FIR. Here, it may be stated that even otherwise the motive as alleged does not seem to be so strong to force causing blatant murder of the deceased.
11. It has come in the evidence that the I.O. recovered the empties, blood stained earth and the cycle from the place of occurrence. According to I.O., he visited the place of occurrence twice i.e. first time on 9.9.2001 and next time on 10.9.2001. On 9.9.2001 he proceeded to the place of occurrence and found the dead body of Tahir lying, he prepared injury statement (Exh. PB) and inquest report (Exh.PC) "while sitting near the dead body" and took into possession a pair of chappal of deceased (Exh.PH) and recorded the statements of Muhammad Anwar, Muhammad Shafique and supplementary statement of complainant Muhammad Imtiaz. Next day i.e. 10.9.2001 he again inspected the spot and secured .30 bore empty from there made it into a sealed parcel, secured blood stained earth from the place of "wardat" on that day which, too, was made into a sealed parcel (Exh.PJ) so also, he secured the cycle (Exh.PK) in presence of PW-8 and PW Shafique. When asked in his cross-examination he stated that "I had not inspected the spot minutely at night time and in fact had deferred the detailed inspection of spot till next morning", though admitted that "I had prepared injury statement and inquest report while sitting near the dead body. I had seen the cycle at the night time, but the detail inspection of the place of occurrence was deferred by me due to darkness of night therefore, I had inspected the spot on the next day". It is thus evident that on his first visit of place of occurrence darkness did not come in the way of I.O. in recording statements of witnesses, preparing inquest report etc., but, he had to wait for day light and deferred further proceedings for recovery of important pieces of evidence, such as empty, blood stained earth and the recovery of cycle on which it was alleged that the deceased and the culprits were found going towards place of incident. At least the I.O. could have secured the cycle and the blood stained earth, when he could secure chappal of deceased and do other things on his first visit of place of incident. He has admitted in his evidence, relevant passage therefrom has been noted above, that he has seen the cycle at night time. Besides, it is evident from foregoing paras that the complainant had, on the very night of incident and lodgment of FIR, made disclosure in his supplementary statement that the other accused was Javaid Iqbal s/o Ghulam Muhammad resident of Chak No. 705 GB. Needless to observe that the I.O. while recording supplementary statement of the complainant at the place of incident must have learnt the name, fathers' name and place of resident of other accused, even then arranging the identification parade of appellant to be identified by the complainant appears to be illogical. Thus, the conduct of the I.O., too, becomes highly doubtful.
12. Thus, evaluating the available material as discussed above, it becomes crystal clear that neither the ocular evidence nor the evidence as to recovery of crime weapon is free from doubt, so also, the motive as alleged is not believable. Indeed a serious doubt pervades the whole case. It is well settled that prosecution is under legal obligation to prove the guilt of an offender beyond any shadow of doubt, in which it failed miserably, therefore, the benefit must go to the appellant.
13. Considering the foregoing, by our short order dated 4.4.2011 we allowed this appeal, set aside the impugned judgments and the conviction and sentences of the appellant and acquitted him of the charge framed against him with direction that he should be set at liberty forthwith, if not required in any other cause.
14. These are the reasons for our short order of even date.
(R.A.) Appeal allowed.
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