MUHAMMAD ASHFAQ Versus State

ASIF SAEED KHAN KHOSA, J .---Muhammad Ashfaq appellant was convicted for an offence under section 302(b), P.P.C. read with section 34, P.P.C. vide judgment dated 26-11-2002 rendered by the learned Additional Sessions Judge, Kasur, Camp at Kasur Jail and was sentenced to imprisonment for life and to pay a fine of Rs.50,000 or in default of payment thereof to undergo rigorous imprisonment for six months. The benefit under section 382-B, Cr.P.C. was extended to him. Through the same judgment the learned trial Court had acquitted five co- accused of the appellant namely Muhammad Boota, Munawar Hussain, Yasin, Muhammad Ramzan and Muhammad Sharif whereas the case of one co-accused namely Khalid had been separated by the learned trial Court as he had been declared a Proclaimed Offender. Muhammad Ashfaq appellant has challenged his conviction and sentence before this Court through the present appeal.

2. According to the prosecution's case Falak Sher deceased had been done to death in his house at about 11-00 p.m. during the night between 26/27-4-1999 in village Shamas Pura situated within the area of Police Station Sadar, Kasur by, the present appellant and his six co-accused. F.I.R. No.274 was lodged in respect of that incident by Muhammad Ashiq complainant, a brother of Falak Sher deceased, at 2-30 a.m. on 27-4-1999 at Police Station Sadar, Kasur for offences under sections 302/148/ 149, P.P.C. After completion of the investigation a challan was submitted before the learned trial Court which ' framed a charge against the appellant and five of his co-accused to which they pleaded not guilty and claimed a trial. During the trial the prosecution produced eleven witnesses in support of its case. In their statements recorded under section 342, Cr.P.C. the appellant and his co-accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They, however, opted not to make statement on oath under section 340(2), Cr.P.C. and did not produce any witness in their defence. Upon conclusion of the trial the learned trial Court acquitted the appellant's five co-accused but convicted and sentenced the appellant as mentioned and detailed above. Hence, the present appeal before this Court.

3. I have heard the learned counsel for the parties and have gone through the record of this case with their assistance.

4. According to the prosecution's case the incident in issue had been witnessed by Muhammad Ashiq complainant (P.W.6) and Rasheed Ahmad (P.W.7) and both of them had maintained before the learned trial Court that effective firing at Falak Sher deceased had been done by Khalid (Proclaimed Offender), Muhammad Boota, Muriawar Hussain and Yaseen accused whereas Muhammad Ashfaq appellant was only accompanying the said accused persons besides Muhammad Ramzan and Muhammad Sharif accused. According to the prosecution Muhammad Ashfaq appellant, Muhammad Ramzan accused and Muhammad Sharif accused had committed no overt act at all and had caused no injury to the deceased or to anybody else. The impugned judgment passed by the learned trial Court shows that the learned trial Court had found the statements made by the above-mentioned eye-witnesses to be replete with- serious contradictions and unworthy of implicit reliance in respect of Muhammad Boota, Munawar Hussain and Yaseen accused who had been attributed by the said eye-witnesses effective firing at the deceased. I have failed to understand as to how the learned trial Court had found it fit to rely upon the same eye-witnesses so as to convict and sentence the present appellant who had admittedly never fired at the deceased or at anybody else during the alleged occurrence. I have also found it to be quite intriguing that the same eye-witnesses had been disbelieved by the learned trial Court also to the extent of Muhammad Ramzan and Muhammad Sharif accused whose role in the alleged occurrence was identical to that of the present appellant but the same eye-witnesses had somehow been relied upon by the learned trial Court to the extent of the present appellant. It appears that while convicting and sentencing the appellant the learned trial Court had been heavily influenced by the opinion expressed by the different police officers during the investigation of this case regarding involvement of the present appellant in the alleged occurrence. The learned trial Court ought to have appreciated in this context that an opinion of a police officer regarding guilt or innocence of an accused person is inadmissible' in evidence being irrelevant and such an opinion cannot be made the sole basis of conviction of an accused person in a criminal case.

5. For what has been discussed above this appeal is allowed, the conviction and sentence of the appellant recorded by the learned trial Court are set aside and the appellant is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required in any other criminal case.

H.B.T./M-248/L Appeal allowed.