ZAHIR YOUSAF and another vs The STATE and another

MANZOOR AHMAD MALIK, J.---Crl. Appeal No.286-L/2009 Zahid Yousaf (appellant) was indicted in case FIR No.484/2002 dated 28.09.2002 offence under section 302 read with section 34, P.P.C. registered at Police Station Sadar Jalalpur Jattan, District Gujrat. Vide judgment dated 04.10.2003, he was convicted under section 302(b), P.P.C. and sentenced to death. He was also directed to pay Rs.3,00,000/- (rupees three lac) only as compensation to the legal heirs of the deceased and in default whereof to undergo two years R.I. Feeling aggrieved by the judgment passed by the learned trial court the appellant filed Crl. Appeal No.428-J of 2003 whereas the learned trial court sent Murder Reference No.232 of 2004 for confirmation or otherwise of the sentence of death awarded to the appellant. Both these matters were heard together by a learned Division Bench of the Lahore High Court and through impugned judgment dated 05.06.2009, sentence of death awarded to the appellant by the learned trial court was converted into imprisonment for life. It was also observed by the learned appellate court that in case of non-payment of compensation amount the appellant shall undergo imprisonment for six months. Murder Reference was answered in the negative and the sentence of death was not confirmed. Being still dissatisfied with the judgment of the learned Lahore High Court Zahid Yousaf convict preferred Crl. P.L.A. No.895-L/2009, wherein leave was granted vide order dated 02.09.2009. Hence this appeal. Muhammad Mushtaq (complainant) through Crl. Petition No.1217-L of 2009 is aggrieved of the judgment of the learned appellate court to the extent of conversion of death sentence to life imprisonment.

2. As per prosecution story, the appellant while armed with a pistol fired at Ghulam Sarwar which landed on his head at right side and went through and through. The occurrence took place in the graveyard at 07:30 p.m.

3. We have heard learned counsel for the parties and gone through the relevant record with their able assistance.

4. Admittedly the occurrence took place in the graveyard on 28.09.2009 at 07.30 p.m. In the last week of September the sun sets at around 06.00 p.m., therefore, it was dark and no source of light has been mentioned in the FIR (Exh.PD/1) or scaled site plan (Exh.PA). Moreover, it is not the case of the complainant in the FIR nor the witnesses of ocular account stated so while appearing before the learned trial court that they had witnessed the occurrence in the moonlight. We have also noted that as per the inquest report (Exh.PG) eyes of Ghulam Sarwar (deceased) were open which makes the presence of the witnesses of ocular account at the time of occurrence doubtful because had they been present there they would have closed eyes of deceased who was their close relative. According to the scaled site plan (Exh.PA) distance between the place were corpse of Ghulam Sarwar (point 1) was lying and where the appellant and his cc-accused were present (point 2) was sixteen feet. Dr. Ghulam Abbas Zafar (PW.11) who conducted autopsy upon the dead body of Ghulam Sarwar (deceased) while appearing before the learned trial court in his examination-in-chief stated that injury No.1 was with burnt inverted margins. In the last line of his cross examination, the said doctor stated that blackening occurred on the injury if fired from six feet and burning, if fired from few inches. Therefore, the medical evidence does not support the ocular account. A vague motive was set up in the FIR which is to the effect that about two years prior to the occurrence, there had been a quarrel between the complainant side and the appellant's side. Even if the motive set up by the complainant is taken as gospel truth there is no explanation on the record as to why only Ghulam Sarwar from the complainant's side was targeted by the appellant when three other persons were also available at the place of occurrence.

Recovery of a pistol 30 bore allegedly effected at the instance of the appellant is inconsequential as no crime empty/metallic piece was sent to the Forensic Science Laboratory and report of Forensic Science Laboratory (Exh.PN) is simply to the effect that the weapon was in working order.

In view of the above, we hold that the prosecution case against the appellant is doubtful in nature.

This appeal is accordingly allowed and while extending the benefit of doubt. Zahid Yousaf (appellant) is acquitted of the charge. He is in jail and shall be released forthwith if not required to be detained in any other case.

CRL. PETITION NO.1217-L/2009

5. This petition is barred by 87 days. Even otherwise, Zahid Yousaf (respondent No. 2) has been acquitted of the charge while extending him benefit of doubt, therefore, there remains no question for enhancing his sentence. This Criminal Petition for Leave to Appeal is without any merit which is dismissed on merits as well as being barred by time.