ANSAR ALI and another vs THE STATE

ORDER

' MUHAMMAD AKTHAR SHAHID SIDDIQUI, J.---Appellants Ansar Ali and Akhtar Ali by leave of the court have directed this appeal against the judgment dated 13-10-2005 of Lahore High Court, Lahore in Criminal Appeal No, 2175 of 2003.

2. The occurrence took place on 13-8-2002 after Esha prayers time in the area of Mouza Kirparam, Tehsil and District Pakpattan Sharif at a distance of eight kilometers from Police Station Saddar, Pakpattan Sharif. The background in which the occurrence allegedly took place is that on 21-10- 2001 the son-in-law of Ahmed Ali convict in the instant case was murdered while committing Zina with Mst. Manzooran Bibi, daughter of Mst. Shamim Akhtar alias Shima, complainant. The matter was reported to the police by Ansar Ali appellant vide F.I.R. No, 559 of 2001 against complainant's husband Shah Muhammad and her son Shan Muhammad deceased and few others. During investigation of the case Shah Muhammad was found innocent while rest of the accused were sent to Court to face the trial. Shah Muhammad had also been summoned by the learned trial Court to face the trial.

3. The present occurrence took place on 13-8-2002 after Esha prayers in front of the dera of appellants in the area of Mouza Kirparam, Tehsil and District Pakpattan Sharif at a distance of eight kilometers from Police Station Saddar, Pakpattan Sharif. Mst. Shamim Akhtar alias Shima complainant reported the matter to the police. After having been dissatisfied with the investigation of the case, she filed a private complaint dated 20-12-2002 in which she arraigned Ushnaq Ali son of Mushtaq Ahmed also as accused along with Ahmed Ali, his sons Ansar Ali, Akhtar Ali and Amanat Ali. She alleged that on 13-8-2002 her son Shan Muhammad deceased had gone to Pakpattan City on bicycle to purchase fertilizer. When he reached near the Dera of Ahmed Ali he was way-laid by all the five accused. Ahmed Ali and Ushnaq Ali were armed with sotas while rest of the accused were carrying fire-arms with them. Ahmed Ali shouted that Shan Muhammad be given a taste for committing murder of Muhammad Saeed. On commotion, Mst. Shamim Akhtar alias Shima accompanied by Munir Ahmed (P.W.3) and Muhammad Abbas P.W. (given up) rushed to the spot and within their view Ansar and Akhtar appellants fired from their rifle and .12 bore gun respectively hitting Shan Muhammad on his left thigh. Ahmed Ali and Ushnaq Ali gave several blows with their sotas on the back, nose, right flank, right thigh and right leg of Shan Muhammad. Akhtar Ali and Amanat Ali continued firing from their weapon so that none should intervene. Shan Muhammad was dragged in the dera of Ahmed Ali thereafter the accused decamped. The complainant further alleged that her statement has not been recorded correctly by the police and had omitted to mention the name of Ushnaq Ali in the F.I.R. And had also dishonestly investigated the case, therefore, she has no other option but to file private complaint.

4. The learned trial Court took cognizance on the private complaint filed by Mst. Shamim Akhtar alias Shima and charge sheeted all the five accused under sections 302/148/149, P.P.C. They pleaded not guilty to the charge and claimed trial. P.W.2 Mst. Shamim Akhtar alias Shima and P.W.3 Munir Ahmed furnished ocular account of the occurrence. P.W.1 Dr. Abdul Ghaffar provided medical evidence. C.W.2 Maqbool Hussain, A.S.-I. Who had recorded formal F.I.R. Exh. DA/1 on the basis of Exh.

PD, the statement of complainant, deposed about the retention of sealed parcels of blood-stained earth and crime empties which had been handed over to him by the Investigating Officer. He also produced certain other documents prepared by Muhammad Hussain, Inspector/ &H.

0. Whose appearance could not be procured by the Court.

5. The accused in their statements under section 342, Cr.P.C. Denied the allegations and pleaded their false implication due to enmity.

6. Learned trial Court while concluding the trial held the appellants and their father Ahmed Ali responsible for committing Qatl-eamd of Shan Muhammad. Accordingly, they were convicted under section 302(b)134, P.P.C. And sentenced to imprisonment for life. They were also directed to pay Rs, 50,000 each to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or in default of payment to further undergo simple imprisonment for six months.

7. Leave to appeal was granted by this Court on 4-5-2006 in order to reappraise the evidence so as to ensure the presence of the eyewitnesses at the place of occurrence. Before making reappraisal of the prosecution evidence, we consider it proper to re-produce para 5 of the order dated 4-5-2006, which reads as under:-- "5. We have heard the learned counsel on either side at length. It was contended on behalf of the petitioners that it was a night occurrence where the assailant or assailants had done their job without disclosing their identity and hence the so-called eyewitnesses were false and manipulated. That the existence of bulb on the spot is highly improbable and that whosoever were the assailants could have killed the deceased by hiding themselves in the nearby paddy crop wholly surrounding the spot. We are of the view that the points raised before us need elaborate consideration due to occurrence having taken place at night. Leave is, therefore, granted to reappraise the evidence so as to assure as to whether the eye-witnesses were present on the spot."

8. Learned counsel for the appellants argued that it was night occurrence which was reported to the police on the next day implicating the appellants falsely due to prior enmity.

9. Exh. C.W.2/D2 is the site plan of the place of occurrence. The deadbody of Shan Muhammad was found lying at point No, 1 in the site plan. The house of the accused was surrounded by paddy crop whereas the house of the complainant is shown to be at a distance of more than one acre towards north and it was not possible for the complainant and the witnesses to see the occurrence during night time. P. W.3 Munir Ahmed happens to be the sister's son of Shah Muhammad husband of Mst.

Shamim Akhtar alias Shima complainant who is resident of Chak No, 17/SP which is at a distance of 10/12 miles from the place of occurrence. He in his statement before the police has not mentioned the purpose for which he had Come to the house of complainant. Besides being related to the deceased he is a chance witness. The presence of both the eye-witnesses at the spot has not been established. Both have B made improvement in their statement which inspire least confidence.

Their testimony has already been disbelieved by the learned trial Court to the extent of Ushnaq Ali and Amanat Ali co-accused, therefore, the same cannot be believed qua the appellants as well.

The recovery of guns did not show that these were used in the commission of crime. Therefore, the possibility of false involvement of the appellants cannot be ruled out.

10. In the light of above discussion, this appeal is allowed. The impugned judgment is set aside. The appellants are acquitted of the charges. They shall be released forthwith, if not required in any other case.