MUHAMMAD HUSSAIN vs THE STATE

' ABDUL HAMEED DOGAR, J.--- This petition is directed against the judgment, dated 5-6-2006 of a learned Division Bench of the Lahore High Court, Lahore, whereby sentence of death awarded to the petitioner by trial Court was altered to imprisonment for life and fine was enhanced from rs,.50,000 to rs,.1,00,000 or in default whereof to suffer six months' S.I.

2. Briefly, stated facts giving rise to the filing of the instant petition are that about ten years, before the occurrence complainant Muhammad Ishaq was married with Mst. Tasleem whereas Muhammad Riaz his brother-in-law was married with acquitted accused Mst. Shafqat Perveen 10/12 days before the incident, father-in-law of Muhammad Riaz had expired, therefore, complainant along with others, had gone to Chak for offering Fateha. About 12-00 mid night complainant along with his brother-in-law Muhammad Riaz, Ijaz and Shaukat Ali brother were coming to the village from cattle-shed of Muhammad Riaz who was ahead of them. When they reached at the corner of the village near a school on a Pucca road and near the shops acquitted accused Muhammad Akmal alias Pupu armed with .12 bore gun, and petitioner Muhammad Hussain alias Hussaini armed with carbine reached there. Muhammad Akmal acquitted accused raised Lalkara that lesson would be taught to Muhammad Riaz for forbidding him from coming to his house. Muhammad Akmal fired a shot at Muhammad Riaz but same was missed. Thereafter, Muhammad Akmal acquitted accused instigated petitioner Muhammad Hussain to fire at Muhammad Riaz who fired at Muhammad Riaz with carbine which hit on his chest who fell down and succumbed to the injuries at the spot. Petitioner and Muhammad Akmal acquitted accused fled away from the spot while raising Lalkaras.

3. The motive behind the occurrence as stated in the F.I.R. Is that acquitted accused Muhammad Akmal alias Pappu had developed illicit relations with Mst. Shafqat Parveen wife of Muhammad Riaz and used to visit her house which was objected to by deceased Muhammad Riaz and due to this grudge Muhammad Riaz was done to death.

5.(sic) On 21-5-1999 P.W.12 Zafar Iqbal Sub-Inspector arrested petitioner Muhammad Hussain, acquitted accused Muhammad Akmal and Mst. Shafqat Perveen.

6. On completion of investigation petitioner Muhammad Hussain, acquitted accused Muhammad Akmal and Mst. Shafqat Perveen were sent up to face trial before the Additional Sessions Judge, Jaranwala. In order to establish its case, the prosecution examined 13 witnesses in all.

7. On 12-5-1999 P.W.1 Dr. Anwar Saood Saqib, Medical Officer, T.H.Q. Hospital, Jaranwala, conducted the post-mortem examination on dead body of Muhammad Riaz and noticed following injuries on his person:--

(i) A fire-arm entry wound 3-1/2 c.m. x 3 c.m. x abdominal cavity on front of right chest lower part 3 c.m. Away from midline 13 c.m. Below right nipple. Peritoneum was coming through the wound.

Blackening around the wound was present.

(ii) An abrasion 4 c.m. x 2 c.m. On right waist region. He recovered pellet from back of right chest (intercostals space). He recovered an other pellet from back of left chest; lower part from intercostals space; after dissecting a wad was recovered from abdominal cavity. All above mentioned articles were handed over to the police under cover N.C.

8. In their statements recorded under section 342, Cr.P.C. Petitioner, acquitted accused Muhammad Akmal and Mst. Shafqat Perveen pleaded false implication. However, they neither examined themselves on oath as required under section 340(2), Cr.P.C. Nor led any evidence in their defence.

9. On conclusion of trial, the learned trial Court convicted the petitioner under section 302, P.P.C.

And sentenced him to death with a fine of rs,.50,000 or in default whereof to undergo six months' S.I.

It was also directed that the amount of fine, if recovered, be paid to the legal heirs, of deceased Muhammad Riaz as compensation under section 544, Cr.P.C. However, Muhammad Akmal and Mst.

Shafqat Perveen were acquitted while extending them the benefit of doubt.

10. Feeling aggrieved from the conviction and sentence, petitioner preferred Criminal Appeal No,9-J of 2002 before the learned High Court, Lahore, which was disposed of as stated above vide impugned judgment.

11. We have heard Sardar Muhammad Siddique Khan, learned Advocate Supreme Court for the petitioner and Ch. Munir Sadiq, learned Deputy Prosecutor-General, Punjab at length and have gone through the record and proceedings of the case in minute particulars,.

12. Sardar Muhammad Siddique Khan, learned Advocate Supreme Court for the petitioner contended that prosecution has miserably failed to establish charge against petitioner. He argued that ocular evidence having been disbelieved against co-accused could not be relied upon against petitioner without any independent corroboration. He seriously criticized the motive and pleaded that prosecution has failed to establish the same against petitioner as it was against acquitted accused Muhammad Akmal. He further contended that there is a conflict between the ocular and medical evidence which fact was not considered by the Courts below while convicting the petitioner. He further contended that the case of petitioner was not distinguishable from that of acquitted accused against whom the ocular evidence had been disbelieved and, therefore, petitioner was also entitled to the same benefit which had been extended to them. In this context learned counsel submitted that it was a settled principle of administration of criminal justice that an accused could not safely be convicted on the same discrepant prosecution evidence on which benefit of doubt had been extended to co-accused. In the absence of strong corroboration or confirmatory circumstance conclusively proving his participation in the crime no one should be convicted. According to him only one fire-arm injury was attributed to petitioner but according to the post-mortem report there were two blunt weapon injuries on the person of deceased.

13. Ch. Munir Sadiq, Deputy Prosecutor-General appearing on behalf of the State argued that the prosecution had proved its case beyond all reasonable doubts; that the petitioner was present at the time of occurrence and had fired from his weapon which had resulted in the death of deceased; that the weapon of offence had been recovered from the petitioner which further connected him with the prosecution case; that the ocular account furnished by eye-witnesses, namely, Muhammad Ashfaque P.W.8 and Muhammad Ijaz P.W.9 was fully corroborated by the medical evidence and recovery of weapon of offence.

14. In the instant matter, the occurrence took place on 12-5-1999 at 12-30 mid night. To prove its case, the prosecution examined Muhammad Ashfaque (P.W.8) and Muhammad Ijaz (P.W.9). On motive that Muhammad Akmal acquitted accused had developed illicit relations with Mst. Shafqat Parveen wife of Muhammad Riaz there is no direct evidence against petitioner. Prosecution examined Aurang Zaib, Draftsman as P.W.3 who prepared the site plan. In cross-examination he admitted that there was no electricity light arrangement outside the welding shop of Khalid or the saw machines of Rehmatullah toward the place of occurrence. He also admitted that there was no street light arrangement at or around the place of incident except Point No,3 which is a telephone pole. He also admitted that in the cities normally and usually there is no electricity light connected on telephone pole. He frankly conceded that he had neither shown any electricity connection to the tube-light installed on the telephone pole nor mentioned it in the site plan. P.W.12 Zafar Iqbal, S.-I.

Appeared as P.W.9. In cross-examination he admitted that no empty was recovered from the spot.

He also admitted that carbine was neither sealed nor sent to the Forensic Science Laboratory for matching with any empty. It is also an admitted fact that no time of death is mentioned in the post-mortem report. Only one firearm injury was attributed to Muhammad Hussain petitioner but according to the post-mortem report there was another injury on the person of deceased caused with blunt weapon. Complainant party having not been able to establish the charge against co- accused Muhammad Akmal and Mst. Shafqat Perveen by any solid evidence, as such we are of the view that petitioner should have been equally treated. The manner of commission of incidence, on the face of record, does not seem to be A natural and probable. Moreover, motive has also not proved by the prosecution.

15. On a careful scanning of the entire evidence, we are of the considered view that the trial Court as well as learned Members, of the Division Bench have suffered from misconstruction of evidence and wrongly passed conviction, which can hardly be sustained in law. In order to sustain a conviction on capital charge, evidence must come from independent and unimpeachable source rather than tainted and inimical witnesses without any independent corroboration.

16. Vide short order, dated 25-7-2007 we had converted this petition into appeal and allowed the same. The impugned judgment was set aside and appellant was directed to be released from jail forthwith, if not required in any other case.

17. Above are the reasons of our short, order.