MUBARAK ALI Versus THE STATE

This judgment will dispose of Criminal Appeal No. 1978 of 2000 filed by Mubarak Ali appellant who was convicted under section 302(b), P.P.C. and sentenced to undergo R.I. for 25 years with further direction to pay Rs.50,000 as compensation, in default six months' S.I. with the benefit of section 382-B, Cr.P.C. by learned Additional Sessions Judge, Kasur vide judgment dated 28-11-2000.

Criminal Revision No.56 of 2000 filed by complainant for enhancement of sentence of the convict-appellant shall also be disposed of through this single judgment.

3. Briefly stated the facts of the case are that on the mid-night of 26th/27th July, 1997 the complainant Shahid Ali and his younger brother Rahat Mahmood were coming towards Jambar Kalan from B.S. Link Canal and when they reached near the houses of Suba Jat etc. firing took place and one fire hit Rahat Mahmood who fell down from the motorcycle after receiving the injury. The complainant also could not control the motorcycle and fell down. Firstly the injured was taken to Civil Hospital, Phoolnagar from where he was referred to General Hospital, Lahore and in the hospital he succumbed to his injury.

4. Investigation of the case was taken over by Liaqat Ali, Inspector P.W.12. He firstly prepared the inquest report Exh.P.J., injury statement Exh.P.L. and then from the place of occurrence took into possession the blood-stained earth vide memo. Exh.P.A. Two crime empties of pistol were taken into possession vide memo. Exh.P.B. The accused was arrested on 1-9-1997 and he while in custody got recovered pistol P.4 which was taken into possession vide memo. Exh.P.I. After completion of the investigation, the accused was challaned to face the trial.

5. At the trial, prosecution in order to prove its case produced 12 witnesses in all. Then the learned A.D.A. tendered in evidence report of the Chemical Examiner Exh. P. O., report of the Serologist Exh. P. P., report of the Forensic Science Laboratory Exh.P.Q. and closed the prosecution case. After that, statement of the accused under section 342, Cr.P.C. was recorded. After conclusion of the trial, the accused was convicted and sentenced as stated above.

6. Learned counsel for the appellant after having read the entire prosecution evidence and other material available on record submits that it was an unwitnessed occurrence, that appellant was not named in the F.I.R., that he was falsely implicated in this case, that occurrence had taken place in the mid-night of 26/27-7-1997, that both the eye-witnesses produced by the prosecution were real brother and maternal-nephew of the deceased, that they were not the resident of the pace of occurrence, that they we're cooked up witnesses, that no independent witness was produced by the prosecution, that name of the appellant is also not mentioned in the brief facts of inquest report of the deceased and the site plan prepared two days after the occurrence, that as far as .recovery is concerned, in this regard, statements of recovery witnesses are contradicted with each other. He lastly submits that prosecution has failed to prove its case against the appellant and he is entitled to clean acquittal.

7. On the other hand, learned counsel for the State assisted by learned counsel for the complainant who has filed revision petition submits that on the same day, that's, 26/27-7-1997 the complainant has made a supplementary statement, giving explanation that he was not in senses after seeing his brother in an injured condition, so he could not name the appellant, that motive has also been mentioned in the supplementary statement of the complainant, that ocular account is corroborated by medical evidence, that report of Fire-arm Expert is positive in nature and that prosecution has proved its case against the appellant. They both support the judgment of the learned trial

8. I have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. In the instant case, it has not been denied by both the sides that parties were known to each other, if this was the position then name of the appellant should have been mentioned in the F.I.R. What to talk of the name of the accused, no description has been given in the F.I.R. Occurrence had taken place in between the night of 26/27-7-1997 but no source of light had been mentioned in the F.I.R. As far as supplementary statement is concerned, there is no provision in whole of the Criminal Procedure Code about the supplementary statement. Supplementary statements are always recorded in order to fill the lacunas of the prosecution case. Moreover, name of the appellant is not even mentioned in the brief facts of the inquest report and this also falsify the version of the prosecution that supplementary statement was made by the complainant just after recording of the F.I.R. The site plan in this case was prepared on 29-7-1997, even there the name of the appellant was not mentioned no reason for the murder of the deceased had been mentioned in the, F.I.R.

9. As far as recoveries are concerned, according to the prosecution two crime-empties were taken into possession by the police on 27-7-1997, those were received by the office of Fire-arm Expert on 21-8-1998 with D the delay of about twenty-five days after the occurrence. I would like to reproduce answer to Question No.7 of the present appellant recorded under section 342, Cr.P.C. as under:--

"The case is false one. In fact my house is situated on the metaled road and Rahat Mehmood deceased was fallen on the metaled road at a distance of 100 feet from the door of my house. Due to this on some suspicion I was involved as an accused in this case and P.W.5 Shahid Ali himself committed the murder of his brother and falsely involved me as an accused. It was a blind murder. The occurrence is an unwitnessed. Shahid Ali and Hamid Mehmood P. Ws. implicated me as accused in collusion with the police after a period of one month after recording the F.I.R. which was against unknown person. On the day of occurrence, I had gone to Sheikhupura with my brother in-law Jamal Din; wherefrom I came back to my village on 27-7-1997 at about 11 a.m. and came to know the fact of murder of Raham Mehmood; on which I alongwith co-villagers attended the funeral of Rehat deceased. On 29-7-1997 Liaqat Ali P.W./S.H.O. summoned me alongwith Shamas Din, Aslam, Ashraf and Riasat and illegally confined all of us at police station. The other persons got themselves released from the clutches of the police by illegal means but due to poverty, I was falsely involved in this blind murder case under the influence of Hamad Mehmood, Advocate. The prosecution witnesses are related inter se and due to this reason they have made a false statement and I was wrongly challaned. I am the only earning man in my family. Due to this false case my family suffered a loss and my animals and property was stolen regarding which F.I.R. No. 624/97 under section 379, P.P.C. was registered at Police Station Phool Nagar. My house is at the Abadi of Suba Jat and there is a deserted place after my house. After which B. S. Link Canal passes and heaps of earth 20-30 feet high are on the bank of the canal. Dacoits committed robberies there normally at night time; which fact is in the knowledge of the police. Ail the record of police is written by Shafqat Mehmood P.W. who prepared forged recovery memos. etc."

According to the above said statement of the appellant, he was taken into custody by Liaqat Ali, S.H.O. on 29-7-1997 alongwith Shamas Din, Aslam, Ashraf and Riasat but three were released by the police after adopting illegal means. The contention of the appellant in his statement that he was arrested by police rings to be true, so in view of this version of the appellant, this recovery also loses its value.

After having heard the learned counsel for the parties and going through the record I am of the considered opinion, that it was an unwitnessed occurrence and it is a case in which there are so many doubts and benefit of same always goes in favour of the accused not as a matter of grace but as a matter of right, so while extending the same benefit I accept this appeal, set aside the conviction and sentence recorded against the appellant by the learned trial Court. He is in jail and he shall be released forthwith, if not required to be detained in any other case. Criminal Revision No.56 of 2001 is dismissed.

N.H.Q./M-1619/L. Appeal accepted.