MUHAMMAD NAWAZ Versus State

CH. MUSHTAQ AHMAD, J.--- Through this criminal appeal Muhammad Nawaz appellant has challenged his conviction and sentence. He was tried by learned Additional Sessions Judge, Jaranwala for the offence under section 302, P.P.C. in case FIR No.816 dated 19.11.2009 registered at Police Station Khurrianwala District Faisalabad. On conclusion of trial, appellant was convicted vide judgment dated 30.01.2012 and sentenced as under:--

Convicted under section 302(b), P.P.C. and sentenced to undergo rigorous imprisonment for life with compensation under section 544-A, Cr.P.C. to the tune of Rs.1,00,000/-.

Benefit under section 382-B, Cr.P.C. was extended to the appellant.

2. First Information Report was registered on the complaint made by Sadiq Ali (PW-6). Per prosecution, complainant's son Faiz Meera aged about eight-nine years went towards garden to bring back his goat but he did not return. Thereupon, complainant along with Muhammad Yousaf and Muhammad Tanvir (since given up) started searching for his son. In the meanwhile, Naveed Ahmad (PW-8) and Akhtar Ali (PW-7) told the complainant that they had seen his son Faiz Meeran in company of Muhammad Nawaz (appellant) lessee of garden along with two unknown persons inside garden. Thereupon, complainant along with said witnesses went to garden, where lessee (appellant) was not found. They remained searching for complainant's son in garden and adjacent fields for whole night. At 07:30 A.M. (next morning), dead body of complainant's son was found in square No.55 Kila No.6 in a sugarcane crop. Jugular vein was cut and dead body was smeared in blood.

3. Post mortem examination on the dead body was conducted by PW-11 Doctor Abdul Shakoor Gill, Senior Medical Officer, Rural Health Centre Khurrianwala on 19.11.2009. Following injuries were found by Medical Officer on the dead body:--

Injury No.1: An incised wound 7 CM x 3-1/2 CM x cutting skin muscles, blood vessels, trachea, esophagus and upto cervical vertebrae. Major blood vessels cut on front of neck 5 CM below chin, more on left side. Hyoid bone is also injured.

Injury No.2: Multiple abrasions in area 3 CM x 2 CM on left cheek.

Injury No.3: Multiple abrasions in area 4 CM x 2-1/2 CM, on right mandible.

Injury No.4: A contusion mark 2 CM x 1 CM on front of right leg middle part.

Cause of death according to Medical Officer was injury No.1, which was indicted by sharp edged weapon. Remaining injuries were caused by blunt source. Time elapsed between injuries and death was about half an hour and between injury and post mortem examination was about 26 to 28 hours. Three anal swabs were obtained by Medical Officer for transmission to office of Chemical Examiner, Lahore.

4. On completion of investigation, appellant was sent up to face trial. He was charge sheeted by learned trial Court for the offence under section 302, P.P.C. but he pleaded innocence and claimed for trial. Prosecution in order to prove the charge, examined as many as thirteen witnesses. After completing prosecution's evidence, statement of appellant under section 342, Cr.P.C. was recorded. He again pleaded innocence. However, he did not opt to produce any evidence in his defence. Appellant also did not opt to appear as his own witness under section 340(2), Cr.P.C. On conclusion of trial, appellant was convicted and sentenced as mentioned in opening paragraph of this judgment. Hence, this appeal.

5. I have heard learned counsel for the parties and learned Deputy Prosecutor General at length and perused the record with their able assistance.

6. As per FIR, on 18.11.2009 at 04:30 P.M., complainant in presence of Muhammad Yousaf and Muhammad Tanvir (since given up PWs) asked his son Muhammad Faiz Meeran aged about eight-nine years to bring back his goat from garden. When his son did not return for a long time, complainant and said witnesses started searching for him. In the meantime, Naveed Ahmad (PW-8) and Akhtar Ali (PW-7) told the complainant that they had seen Muhammad Faiz Meeran (deceased) inside the garden with Muhammad Nawaz (appellant) and two unknown persons. Complainant went in the garden and adjacent crops along with said Naveed Ahmad and Akhtar Ali for search of his son for whole night but Nawaz who was lessee of the garden, was not found there. On net morning i.e. 19.11.2009, dead body of complainant's son was found in square No.55 Kila No.6 in sugarcane crop.

7. Reading the crime report, there is no eye-witness of the murder. Prosecution's reliance in this case, mainly, is on last seen evidence. Muhammad Faiz Meeran deceased went in the garden on asking of his father PW-6/complainant at 04:30 P.M. in order to bring back his goat. PW-6/complainant is witness only to that extent and he himself did not see the deceased in company of appellant. PW-7 and PW-8 claimed that Muhammad Fiaz Meeran was seen by them in company of appellant and two unknown persons inside the garden at 04:30/04:45 P.M. In their statements PW-7 and PW-8 claimed that they told said fact to the complainant. However, in cross-examination both the said witnesses stated that they did not go to appellant's house when they were searching for complainant's son. Both the witnesses admitted that they did not go to appellant's house during search, so their conduct was not in line with behaviour which should be of a man of ordinary prudence in the given situation. Moreover, both the said witnesses are in contradiction with each other on material points. In cross-examination both the PWs stated that they did not know the appellant. Both of them claimed that appellant's name was told to them by Safdar, owner of the garden. PW-7 Akhtar Ali was unable to disclose as to when and where name of appellant was told to him by Safdar. Also pertinent to note here is that PW-7 in cross-examination claimed that name of appellant was not told to complainant by him rather the same was narrated by Safdar at the time of writing of application. But at the same time, he was unable to tell as to where application for registration of FIR was written. Same was position of PW-8 Naveed in this respect. PW-7 asserted in cross-examination that sniffing dogs were hired. However, PW-8 stated that dogs were not hired. PW-7 also stated that Zulfiqar, cousin of PW-8 was made to sit in Police Station by Investigating Officer as suspect. He stated that position with one Imran was also same. PW-8 in cross-examination denied the suggestion that his cousin Zulfiqar was made to sit in Police Station. For the above reasons, factum of last seen as deposed by PW-7 and PW-8 is a highly doubtful affair, which is not worthy of credence.

8. Recovery of a sickle was shown against appellant during investigation as the weapon used for cutting jugular vein of the minor. Medical Officer noted a sharp edged weapon injury (injury No.1) on neck of deceased, which was the cause of death. However, in cross-examination Medical Officer PW-11 stated that injury No.1 could not be result of sickle cut, as injury No.1 was a regular cut but sickle results in irregular cut. In such backdrop, medical and recovery evidence which even otherwise are corroboratory in nature, are of no help to prosecution specially when main reliance of prosecution i.e. last seen has been discarded as discussed in preceding paragraph.

9. For the above reasons, prosecution had failed to prove charge against appellant beyond any reasonable doubt. As such, finding of conviction and sentence recorded against appellant in the impugned judgment are not sustainable, which are set aside allowing, this criminal appeal. Resultantly, appellant is acquitted of the charge. He is in jail. He be released forthwith if not required in any other case.

SA/M-8/L Appeal allowed.