Mst. ANWAR BEGUM vs AKHTAR HUSSAIN alias KAKA and 2 others

1. MANZOOR AHMAD MALIK, J.---Appellant has called in question the judgment dated 18.11.2008 whereby the learned High Court has allowed the criminal appeals filed by respondents Nos.1 and 2 against his conviction/sentence and while answering the murder reference in the negative, acquitted respondents Nos. 1 and 2 of the charges. Hence, this appeal by leave of the Court.

2. 2.Respondent Nos. 1 and 2 namely Akhtar Hussain alias Kaka and Tanvir Ahmad alias Bagha faced trial in case FIR No.227 dated 23.04.1998 offence under section 302 read with. section 34, P.P.C. registered at Police Station Uggoki, District Sialkot for the murder of Sikandar Ali husband of the complainant. Both of them were convicted by the learned trial court under section 302(b)134, P.P.C. and sentenced to death. They were also directed to pay compensation in the sum of Rs.1,00,000/- (rupees one lakh only) each to the legal heirs of Sikandar Ali (deceased) in terms of section 544-A, Code of Criminal. Procedure and in default whereof they were ordered to suffer simple imprisonment for six months each. Akhtar Hussain alias Kaka (respondent No.1) filed Criminal Appeal No.211 of 2003 whereas Tanvir Ahmad alias Bagha (respondent No.2) filed Criminal Appeal No.212 of 2003 against their conviction and sentence awarded to them by the learned trial court.

3. Mst. Anwar Begum complainant filed Criminal Revision No.218 of 2003 for enhancement of the amount of compensation payable to the legal heirs of Sikandar Ali (deceased). The learned trial court sent Murder Reference No.230 of 2003 for confirmation or otherwise of the sentence of death awarded to Akhtar Hussain alias Kaka and Tanvir Ahmad alias Bagha convicts/respondents Nos.1 and 2. All these matters were heard together by a learned Division Bench of Lahore High Court and through the impugned judgment, convictions and sentences awarded to respondents Nos.1 and 2 by the learned trial court were set aside. They were acquitted of the charges by extending them benefit of doubt. Criminal Revision filed by the complainant was dismissed. Murder Reference was answered in the negative and their sentence of death was not confirmed. Aggrieved thereof Mst.

4. Anwar Begum complainant preferred Criminal P.L.A. No.642-L of 2008 wherein leave was granted vide order dated 16.09.2009. Hence this appeal.

5. 3.We have heard learned counsel for the appellant-complainant assisted by learned Additional Prosecutor General Punjab for the State as well as learned counsel for respondent No.2 and have perused the available record and the impugned judgment with their assistance.

6. 4.This occurrence took place in front of the main gate of Masjid Jafria, Muzzafarpur at about 08.00 p.m. on 23.04.1998. As per contents of FIR, it was reported to the Police on the same night at 08.30 p.m. on the basis of which formal FIR was registered at 08.45 p.m i.e. within forty five minutes of the occurrence. The promptitude posed by the complainant in setting the machinery of law in motion is, however, negated from the other circumstances of the case as postmortem examination on the dead body of Sikandar Ali (deceased) was conducted on the next day i.e. 24.04.1998 at 02.00 p.m.

7. Ihsan Ullah 1492/C (PW.5) who escorted the dead body to the mortuary stated in the opening sentence of his cross-examination that he remained in the mortuary during the whole night but neither Investigating Officer nor DSP came to him during the night till the postmortem. This clearly suggests that the relevant papers were not provided to the doctor.

8. 5.The ocular account was furnished by Mst. Anwar Bibi complainant (PW.2) and Ghulam Jaffar (PW.3). Both the witnesses of ocular account are chance witnesses and had no residence or place of business near the place of occurrence. Ghulam Jaffar (PW3) in his cross-examination stated that by chance he came at the spot 2/3 minutes prior to 8.00 p.m. The Investigating Officer (PW.11) was cross-examined on this aspect of the case and he candidly stated during his cross- examination that the shops or house of the eye witnesses had not been shown in the site plan. He further stated that he had not seen the house of the complainant. He also stated that he had not seen the house of the other eye-witness. It is well settled by now that in order to maintain conviction of a convict on capital charge on the basis of testimony of chance witnesses the court has to be at guard and corroboration is to be sought for relying upon any such evidence. But no corroboration is available in this case. As per contents of, the FIR, three fireshots were attributed to Tanvir Ahmad alias Bhaga (respondent No 2) whereas two fires on the person of Sikandar Ali were attributed to Akhtar Hussain alias Kaka (respondent No.1). However, as per the medical evidence furnished by Dr. Fakhar u Zaman (PW.4) eight firearm injuries were observed on the dead body which included four entry and four exit wounds, therefore, the medical evidence is not in line with the ocular account. The alleged recoveries of pistols at the instance of respondents Nos.1 and 2 and positive report of C Forensic Sbience Laboratory (Exh.PR) to the extent of Tanvir Ahmad alias Bhaga (respondent No. 2) is also inconsequential as the said report was not put to the respondents Nos. 1 and 2 while examining them under section 342, Code of Criminal Procedure. It is well settled by now that a piece of evidence not put to an accused while examining him under section 342, Code of Criminal Procedure cannot be used against him for maintaining his conviction. In view of the above, the testimony of the witnesses of ocular account who were chance witnesses remained uncorroborated and it is highly unsafe to rely upon their testimony.

9. 6.In criminal cases every accused is innocent unless proven guilty and upon acquittal by a court of competent jurisdiction such presumption doubles. Very strong and cogent reasons are required to dislodge such presumption. - The reasons given by the learned High Court, in paras 9. and 11 of the impugned judgment, have not been found by us to be arbitrary, fanciful or capricious warranting interference by this Court.

7. For the foregoing, this appeal having no merit is dismissed.