ALLAH DITTA Versus STATE

ASIF SAEED KHAN KHOSA, J. ‑‑ Allah Ditta appellant was convicted by the learned Additional Sessions Judge, Arifwala vide judgment, dated 15‑12‑1996 for an offence under section 302(b), P.P.C. and was sentenced to death as Ta'zir. He was also ordered to pay a sum of Rs.25,000 by way of compensation to the heirs of Ali Akbar deceased under section 544‑A, Cr.P.C. failing which the same was ordered to be recovered as arrears of land revenue. Allah Ditta appellant has challenged his conviction and sentence before this Court through Criminal Appeal No.36 of 1997. Muhammad Yaqoob complainant has also filed Criminal Revision No.8 of 1997 before this Court' seeking enhancement of compensation ordered against the appellant. We have heard the convict's appeal and the complainant's revision petition alongwith Murder Reference No. 17 of 1997 seeking confirmation of the sentence of death passed against the convict. We propose to decide all these matters together through the present consolidated judgment.

2. The prosecution story narrated in the F.I.R. was that Muhammad Yaqoob complainant was a resident of Zia Nagar, Arifwala situated within the area of Police Station City, Arifwala, District Sahiwal. At about 7‑30 a.m. on 5‑1‑1995 the complainant's son Ali Akbar was returning to the complainant's house on a motorcycle after taking the complainant's wife to the bus -stand for boarding a bus to Lahore. At that time the complainant was returning home with his other sons namely Muhammad Iqbal and Muhammad Ismail, who lived near the bus‑stand, on their motorcycle. Ali Akbar was travelling on his own motorcycle one furlong ahead of the complainant, and others. When Ali Akbar reached near the wheat-grinding machine of one Ghulam Muhammad suddenly Allah Ditta appellant came there from his front and started altercating with Ali Akbar. Then, within the view of the complainant, and others the appellant took out a .30 bore pistol and fired seven shots at Ali Akbar hitting him at his left shoulder, below the chin, chest, left hand, below the ribs, left of chest and left side of the neck. The complainant, and others challenged the appellant but did not go near him due to fear. Ali Akbar succumbed to his injuries at the spot and thereafter, the appellant left the spot firing with his pistol. The motive set up in the F.I.R. was that Ali Akbar used to do the business of milk‑selling and the appellant used to purchase milk from him on deferred payment. According to the complainant his son Ali Akbar had been murdered by the appellant on account of demand made by him from the appellant for the amount of money outstanding against the appellant.

3. Leaving the dead body of his son Ali Akbar at the place of occurrence in the care of Muhammad Ismail and Muhammad Yasin the complainant went to Police Station City, Arifwala, District Sahiwal and lodged F.I.R. No.3 in that regard at 8‑30 a.m. in the same morning. The F.I.R. was recorded by Ghulam Sabir, A.S.I. (P.W.10) for an offence under sections 302, P.P.C.

4. After recording the F.I.R. Ghulam Sabir, A.S.I. (P.W.10) "took up the investigation of this case, went to the place of occurrence, prepared injury statement and inquest report qua the dead body, collected blood‑stained earth, recovered seven crime- empties and the deceased's motorcycle, prepared a rough site‑plan of the place of occurrence, recorded the statements of witnesses and then sent the dead body to the mortuary for autopsy.

5. The post‑mortem examination of the dead body of Ali Akbar was conducted by Dr. Muhammad Raheel (P. W .1) at 12‑00 noon on 5‑1‑1995. He had found 9 injuries on the dead body which were all ante‑mortem and caused by fire‑arm. The cause of death was injuries of the left neck vessels, the right lung and upper lobe left lung leading to severe and rapid bleeding which were sufficient to cause death in the ordinary course of nature. The probable time elapsing between the injuries and death was stated by the doctor to be immediate while the duration between the death and post‑mortem examination was opined by the doctor to be within 6 hours.

6. After the post‑mortem examination of the dead body Ghulam Sabir, A.S.I. (P.W.10), the Investigating Officer, took into possession the blood‑stained last‑worn clothes of the deceased. The investigation of this case was then taken over by Muhammad Anwar Chishti, Inspector/S.H.O. (P.W.11). He got a site‑plan of the place of occurrence prepared by a draftsman, arrested the appellant and recovered a licensed .30 bore pistol from him. Thereafter, he completed the other formalities, finalized his investigation and submitted a challan in respect of this case.

7. At the commencement of the trial the learned trial Court framed a charge with one head under section 302, P.P.C. against the appellant to which he pleaded not guilty and claimed a trial.

8. During the trial the prosecution produced as many as eleven witnesses in support of its case against the appellant. Muhammad Yaqoob complainant (P.W.8) and his son Muhammad lqbal (P.W.9) furnished the ocular account of the incident. Both of them also deposed about the motive. Dr. Muhammad Raheel (P.W.1) provided the medical evidence. Muhammad Iqbal (P. W.9) also deposed about the recovery of weapon from the appellant. Ghulam Sabir, A.S.I. (P.W.10) and Muhammad Anwar Chishti, Inspector/S.H.O. (P.W.11) stated about various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.

9. In his statement recorded under section 342, Cr.P.C. the appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. While answering a question as to why he had been implicated in this case and as to why the prosecution witnesses had deposed against him Allah Ditta appellant had stated that:‑‑

"Ali Akbar deceased was a vagabond person. He belonged to criminal gang. The deceased had enmity with many persons. He also belonged to 'Qabza Group'. He wanted to snatch my house/disposses me from my house so due to that enmity I have been involved in this case. P.Ws. are kith and kins so they also deposed against me."

The appellant opted not to make any statement on oath under section 340(2), Cr.P.C. However, he produced Bashir Ahmad Alvi, Moharrir/H.C. in his defence as D.W.1 who produced copy of a judgment in a criminal case registered against the deceased.

10. At the conclusion of the trial the learned Additional Sessions Judge, Arifwala convicted and sentenced the appellant as noticed and detailed above. Hence, the present appeal, revision petition and the connected Murder Reference before this Court.

11. We have heard the learned counsel for the appellant as well as the learned counsel for the State and the complainant and have also gone through the record of this case with their assistance.

12. It has been argued by the learned counsel for Allah Ditta appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. According to him the witnesses produced by the prosecution did not inspire confidence and that they had also failed to find material corroboration from any independent source. As against that the learned counsel for the State and the complainant have argued that the prosecution had successfully proved the guilt of the appellant to the hilt through convincing, cogent and reliable evidence.

13. After hearing the learned counsel for the parties and going through the record we have no hesitation in concluding that the prosecution had failed to prove its case against Allah Ditta appellant beyond reasonable doubt. The ocular account of the incident in question had been furnished by Muhammad Yaqoob complainant (P.W.8) and his son Muhammad lqbal (P.W.9). Both of them have failed to inspire our confidence. Muhammad Yaqoob complainant (P. W.8) was the real father of Ali Akbar deceased whereas Muhammad lqbal (P.W.9) was the deceased's real brother. Both these witnesses lived separately from each other in different parts of the town and far away from the place of occurrence. Both of them were admittedly chance witnesses. Muhammad Yaqoob complainant (P.W.8) had given no reason whatsoever for his stated visit to the house of Muhammad lqbal (P.W.9) early in the winter morning either in the F.I.R. or in his statement made before the learned trial Court. Muhammad Iqbal (P.W.9) had also remained silent about the purpose of his father's visit to his house in the morning in his examination- in‑chief. The reason advanced by him in that respect during his cross‑examination was also nothing but sketchy and unspecific. If the very reason for the complainant's visit to his son's house early in the morning remained unproved then the story that the son was taking his father back to the father's house and in that process they coincidentally saw the occurrence also necessarily collapsed and crumbled. The Investigating Officer (P.W.10) had also admitted that he had made no inquiry about the mother of the deceased allegedly leaving for Lahore on a bus and the deceased allegedly having gone to drop her at the bus- stand. Even the reason for the deceased's presence at the place of occurrence at the relevant time far away from his house remained unsubstantiated. It is settled law that chance witnesses cannot be safely relied upon on a capital charge in the absence of satisfactory explanation regarding their presence near the place of occurrence where they were ordinarily not expected to bet present.

14. Apart from that both these witnesses admittedly did not go with the dead body to the mortuary. That was surely an unusual conduct on the part of a father and a brother of the deceased. None of the eye‑witnesses had any stamp of injuries on his person to otherwise vouchsafe his presence at the spot at the relevant time. Muhammad lqbal (P.W.9) had also gone on to state that his statement was not recorded by the police on the day of occurrence. We also cannot ignore the fact that these witnesses had claimed that they were travelling on a motorcycle one furlong behind the motorcycle of the deceased. The site‑plan (Exh.PE) shows that if these witnesses were one furlong away from the deceased then they could not be anywhere near the street wherein the deceased had a rendezvous with his death. For all these reasons we have felt great reluctance in accepting the testimonies of the eye‑witnesses produced by the prosecution.

15. The prosecution had also miserably failed to prove the motive set up by it against the appellant. Not an iota of evidence was, brought on the record by the prosecution in support of its claim that the deceased used to sell milk or that the appellant owed the deceased any sum of money on account of sale of milk or even in support of any existing dispute between the two on that or any other account. Thus, there was neither any serious on‑going motive nor any immediate motive available with the prosecution to provide corroboration to the already beleaguered ocular evidence.

16. As regards the recovery of his licensed pistol from Allah Ditta appellant during the investigation of this case suffice it to observe that the evidentiary value and worth of the said recovery has failed to impress us. The recovered pistol as well as the crime‑empties had admittedly been dispatched to the Forensic Science Laboratory together. Thus, the positive report of the laboratory in that respect was not of much corroborative value. Even otherwise Muhammad Iqbal (P.W.9), an alleged eye witness, had deposed in support of the said recovery of pistol from the appellant. It goes without saying that an eye‑witness could not provide corroboration to himself. It is settled law that corroboration must emanate from an independent source.

17. There is no need to discuss the medical evidence produced by the prosecution in this case as medical evidence, by its very nature, cannot identify or locate the actual culprit. Thus, in a case where the presence of the eye‑witnesses at or near the spot at the time of occurrence is itself doubtful there the medical evidence necessarily loses its supportive worth. What can a supportive piece of evidence do where there is nothing left in the field to support?

18. For what has been observed above we have arrived at a confident conclusion that the prosecution had failed to prove its case against Allah Ditta appellant beyond reasonable doubt.

19. The upshot of the above discussion is that Criminal Appeal No.36 of 1997 is hereby allowed, the impugned judgment passed by the learned Additional Sessions Judge, Arifwala on 15‑12‑1996 is set aside and Allah Ditta appellant is acquitted of the charge against him. He shall be released from jail forthwith, if not required in any other case. For the reasons discussed above Muhammad Yaqoob complainant's Criminal Revision No.8 of 1997 is dismissed.

20. As the appeal filed by Allah Ditta appellant has been accepted, with a resultant setting aside of his conviction and sentence recorded by the learned trial Court, and he has been acquitted by us, therefore, Murder Reference No.17 of 1997 is hereby answered in the negative.

Death sentence is Not Confirmed.

N.H.Q./A‑75/L Appeal accepted.