USMAN alias KALOO vs The STATE

ASIF SAEED KHAN KHOSA, J.---Usman alias Kaloo appellant had allegedly murdered one Noor Muhammad at 11.30 p.m. on 05.03.2005 in Chak No, 410/GB in the area of Police Station Tandlianwala, District Faisalabad and for commission of the said murder he was booked in case FIR No, 108 registered at the said Police Station at 12.55 a.m. on 06.03.2005. The motive set up by the prosecution was that the appellant was carrying on illicit relations with the wife of Noor Muhammad deceased and at the time of occurrence the appellant was surprised by Noor Muhammad deceased inside the house of the latter and in his attempt to decamp from the spot when the deceased had held the appellant by his legs the appellant fired at the deceased resulting in his death. After regular trial the trial court convicted the appellant for an offence under section 302(b), P.P.C. and sentenced him to death and to pay compensation. Later on an appeal filed by the appellant before the High Court failed as far as his conviction was concerned but the sentence of death passed against the appellant was reduced by the High Court to imprisonment for life. Hence, the present appeal by leave of this Court granted on 27.06.2011.

2. 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 gone through the record-of the case and have also attended to their submissions.

3. The occurrence in this case had taken place in the dead of a night, i,e, at 11.30 p.m. on 05.03.2005 and the investigating officer had stated before the trial court in black and white that no electric light was available at the spot. The occurrence in issue had taken place outside the house of the deceased and in the absence of any source of light at the spot the question regarding identification of the assailant had assumed pivotal importance but the prosecution had paid no heed to the same. The FIR about the alleged incident had been lodged at the spot where at the local police had arrived on its own after having statedly been informed of the occurrence by one Afzal who had not been produced before the trial court. The ocular account of the incident had been furnished by Zahoor Ahmad complainant (PW3), Ghulam Farid (PW6) and Manzoor Ahmed (PW7) who were all residents of some other houses and they were not inmates of the house wherein the occurrence had taken place. The said eye-witnesses were, thus, chance witnesses. In the FIR as well as in the statement made by the investigating officer it had categorically been asserted that the appellant had been apprehended at the spot, he was given a beating by Manzoor Ahmed (PW7) and then the appellant as well as the pistol recovered from his custody at the spot had been handed over to the police at the place of occurrence. These assertions made in the FIR and in the statement of the investigating officer had, however, failed to receive support from the statements made by the eye-witnesses before the trial court. Zahoor Ahmed complainant (PW3) had stated that no statement of his had been made before or recorded by the police.

Although he had stated that the police had arrested the appellant at the spot yet he had failed to state that the appellant had been handed over to the police by the eye-witnesses. Ghulam Farid (PW6) was not even related to the complainant party and he had advanced absolutely no reason for his presence in the house of the complainant party at 11.30 p.m. during the fateful night. In his deposition before the trial court he had stated nothing about handing over of the appellant to the police at the spot and he had also not stated anything about arrest of the appellant at the spot by the police. Manzoor Ahmed (PW7) had also failed to state about handing over of the appellant to the police or arrest of the appellant by the police at the spot. It is interesting to point out that although Manzoor Ahmed (PW7) had claimed to be an eye-witness of the occurrence yet he had admitted before the trial court that his statement had been recorded by the police only in respect of recovery of the bloodstained earth. Some of the above mentioned eye-witnesses had maintained that the deceased had received only one injury at the hands of the appellant but the Postmortem Examination Report shows that the deceased had received as many as 8 injuries on different parts of his body. A peculiar feature of this case is that the inmates of the house of occurrence, i,e, the mother, wife and children of Noor Muhammad deceased had never been associated with the investigation of this case and no statement of the said natural witnesses had been recorded by the investigating officer nor were they produced before the trial court. A police official appearing before the trial court as PW8 had clearly stated that he had remained present at the spot with the investigating officer for about one hour and he had not seen the appellant in police custody at the place of occurrence. This surely had taken the wind out of the case of the prosecution against the appellant. As if this were not enough, the investigating officer had categorically stated that after arrest of the appellant at the spot he had taken the appellant to a hospital for his medical treatment but the Medico-legal Certificate available on the record shows that the appellant had not been brought to the hospital by any police official at all. Although an injury statement of the appellant appears to be available on the record yet the investigating officer had stated before the trial court mincingly that he had prepared no injury statement of the appellant.

4. The above mentioned tarnished ocular account produced in this case by the prosecution had failed to receive any independent corroboration inasmuch as the pistol allegedly recovered from the appellant's custody had not even been sent to the Forensic Science Laboratory, the High Court had itself concluded that the motive set up by the prosecution had not been established and the medical evidence had created many dents in the prosecution's case rather than providing support to it, Post-mortem Examination of the dead body had been conducted with a delay of about 10 and a half hours and the duration between death and post-mortem examination recorded in the Post- mortem Examination Report was 12 hours.

5. The discussion made above leads us to an inescapable conclusion 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 recorded and upheld by the courts below 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 be detained in connection with any other case.