ABDUL JABBAR alias JABBARI vs THE STATE

1. Asif Saeed Khan Khosa, J.: Criminal Miscellaneous Application No. $93 of 2012 For the reasons mentioned in this miscellaneous application the same is allowed and the delay in filing of Criminal Appeal No. 491 of 2012 is condoned. Disposed of.

2. Criminal Appeal No. 491 of 2012 2.Abdul Jabber alias Jabbari appellant and some to-accused had allegedly murdered one Manzoor Ahmed by firing at him at about 08.30 a.m. on 17.06.2004 in village Bahawal Garh in the area of Poke Station Minchinabad, District Bahawalnagar in the backdrop of a motive according to which there was a dispute- over possession of land between the accused party and one Khurshid Ahmed and it was understood by the accused party that Manzoor Ahmed deceased used to help the said Khurshid Ahmed in that dispute. With the said allegations the appellant and his co- accused were booked in case FIR No. 213 registered. at the, above mentioned Police Station in the same morning and after a regular trial the co-accused of the appellant' were acquitted by the trial Court but the appellant was convicted for an offence under Section 302(b), PPC and was sentenced to death and to pray compensation. An appeal filed by the appellant before the High Court failed to the extent of his conviction but the same partly succeeded to the extent of his sentence which was reduced from death to imprisonment for life. Hence, the present appeal by leave of this Court granted on 31.12.2012.

3. 3.Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise.

4. 4.Both the eye-witnesses produced by the prosecution, i.e. Madad Ali complainant (PW-5) and Muhammad Abbas (PW-6) were. very closely related to Manzoor Ahmed deceased inasmuch as the complainant was the son of the deceased and the other eye-witness was a nephew of the &Ceased. Both the said eye-witnesses were chance witnesses who had failed to establish the stated reason for their availability at the scene of the crime at the relevant time through any independent evidence. An FIR in respect of the incident in issue had not been lodged at the local Police Station giving rise to an inference that the FIR had been chalked out after deliberations and preliminary investigation at the spot. The Medico-legal Certificate issued in respect of Manzoor Ahmed deceased when he was alive shows that the injured victim was brought to the hospital not by the above mentioned eyewitnesses but by a police official which showed that in air likelihood the said eye-witnesses had been procured and planted in this case at some subsequent stage.

5. Post-mortem Examination Report pertaining to the deadbody of Manzoor Ahmed deceased revealed that despite the deceased having breathed his last in the hospital post-mortem c examination of the deadbody had been conducted after about 12 hours of his death which again indicated that time had been consumed by the local police in procuring and planting eye- witnesses and in cooking up a story for the prosecution. According to the FIR the place of occurrence ought to have been a field wherein the deceased and the complainant were grazing their cattlehead but the site-plan of the place of occurrence shows that the murder of the deceased had been committed inside a compound of an Ihata which surely was not a proper place for cattlehead to graze. Apart from that the above mentioned eye-witnesses had claimed to have seen the occurrence from a distance of about 117 and a half feet and still they had claimed to have witnessed every detail of the incident including the different weapons being used by the accused party which was a claim too tall to be accepted.

6. The prosecution had tried to establish before the trial Court that the FIR was in fact the dying declaration of Manzoor Ahmed deceased but it had been conceded by all the relevant prosecution witnesses that the statement contained in the FIR was thumb-marked by Madad Ali complainant at its bottom. Even otherwise, the said so-called dying declaration of the deceased had never been put to the appellant at the time of recording of his statement under Section 342, Cr.P.C. and, thus, the same could not be considered against the appellant.

6. 6.No independent corroboration or support had been received by the ocular account furnished by the prosecution. The Medico-legal Certified issued in respect of Manzoor Ahmed deceased when he was alive showed that the injuries received by him had been caused by a fire-arm, a sharp-edged weapon as well as a blunt weapon which surely was not the case of the prosecution. Subsequently some improvements had been made by the concerned witnesses in order to bring the ocular account in line with the medical evidence. An injury allegedly received by Manzoor Ahmed deceased on his chin was found in the medical evidence to be non-existent.

7. The High Court had expressly held that the motive set up by the prosecution had not been proved by it. The High Court had also concluded in categorical terms that the alleged recovery of the weapon of offence from the appellant's custody was legally inconsequential because no crime-empty had been secured from the place of occurrence. The prosecution had also alleged that the appellant had remained a Proclaimed Offender for some time before his arrest in connection with this case but the High Court had ruled that part of the prosecution case out of consideration because no evidence had been produced in support of the said allegation regarding abscondance of the appellant.

8. 7.For what has been discussed above a conclusion is irresistible that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to