BABAR MASIH Versus THE STATE

This judgment will dispose of Criminal Appeal No.711 of 2002 filed by Babar Masih, appellant, who was convicted and sentenced by learned Additional Sessions Judge, Lahore vide his judgment, dated 19‑3‑2002 to undergo imprisonment for life under section 302(b), P.P.C. with the further direction to pay Rs.30,000 as compensation to the legal heirs of the deceased with the benefit of section 382‑B, Cr.P.C.

2. Brief facts of the case as disclosed by Muhammad Azam in complaint Exh.P.A. are that his elder brother Nazeer Ahmad (deceased) was employed as Chowkidar ' in National Bank of Pakistan, Lahore. He also worked as a rickshaw driver after bank duty. He was living in Quarter No.M‑63 of National ‑Bank Colony, Samanabad, Lahore alongwith his family for the last seven years. On 29‑8‑1996, Mst. Safia Ribi, the wife of the deceased leaving three elder sons at Lahore with her younger children, arrived at Baseerpur at about 10‑00 p.m. On 30‑8‑1996 at 10‑00 a.m. Akbar Sahib, the Officer of National Bank convened on telephone at Baseerpur that having sustained a fire, Nazeer Ahmad (deceased) has breathed his last in Combined Military Hospital, Lahore and that they are approaching Baseerpur with his dead body. On the same day, at 7‑30 p.m. Abdul Rasheed, Manager, National Bank, Multan Road, Lahore and Muhammad Akbar, Officer, Main Branch, Lahore arrived at Baseexpur alongwith the dead body of deceased Nazeer Ahmad.

3. Having reached there at Baseerpur, the officer above named narrated to the complainant and other family members that as disclosed by Abdul Majeed and Ghulam Sabir that they were coming back to their home from their work on motorcycle in the‑ night falling in between 29/30‑8‑1996 and when they reached within the area of Ganda Nallah Shadbagh, Lahore, they found Nazeer Ahmad (deceased) in an injured condition lying on the road and that a Rickshaw No.LOT/7924 .was standing nearby him. Nazeer Ahmad (deceased) who was alive at that time told them of his whereabouts and further that three unknown persons who had hired his rickshaw have fired at him when he demanded fare and beseeched to be taken to Combined Military Hospital, Lahore on the rickshaw standing there.

4. On 7‑9‑2000, accused Babar Masih and Muhammad Arshad were charge‑sheeted. Both the accused denied the allegations levelled against them and claimed for trial.

5. At the trial, prosecution in order to prove its case produced 12 witnesses in all, thereafter; learned D.D.A: tendered in evidence report of Forensic Science Laboratory Exh.P.E. and closed the prosecution evidence, then, the statements of the accused were recorded under section 342, Cr.P.C. in which they pleaded innocence.

6. Learned counsel for the appellant after having read the entire prosecution, evidence, statements of the‑ accused recorded under section 342, Cr.P.C. and other relevant material available on record submits that occurrence had taken place in between the night 29/30‑8‑1996, matter was reported to the police on 11‑9‑1996, that there is no eye‑witness in this case, that no post‑mortem of the deceased was conducted in this case, that there is only extra‑judicial confession against the appellant before Muhammad Iqbal F.W.2, Muhammad Akram P.W.3 and Muhammad Aslam P.W.4 and that in the police station before the D.S.P. and S.H.O. concerned, that as far as, recovery of pistol P.3 alongwith bullet P.4 is concerned, it has got no evidentiary value as no crime‑empty was recovered from the spot, that in fact it is, a case of no evidence, that doctor, who has issued the death certificate has also not appeared, before the trial Court.

7. On the other hand, learned counsel for the State submits that as far as, extra‑judicial confession is concerned, those witnesses have no enmity with the appellant, so there was no question of making a false statements by them and that recovery was also effected from the present appellant.

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, the occurrence had taken place in between the night 29/30‑8‑1996, three unknown persons were mentioned in the F.I.R. Muhammad Arshad co‑accused has been acquitted, Muhammad Rehan is proclaimed offender while the appellant has been convicted and sentences by the learned trial Court. Present appellant was arrested in case F.I.R. No.470 of 1998 registered on 21‑11‑1998 under section 399/402, P.P.C. thereafter, he was arrested in this case. Pistol P.3 alongwith bullet P.' was recovered from him but no description of any of the accused was mentioned in the F.I.R., even no identification had held in this case. There is no eye‑witness in this case. No post‑mortem was conducted on the dead body of the deceased to prove that deceased received a pistol shot. There are three witnesses of extra‑judicial confession, namely Muhammad Iqbal P. W .2, Muhammad Akram P. W .3 and Muhammad Aslam P.W.4. It has not been denied by learned State Counsel that extra judicial confession was made by the accused in police station in presence of D.S.P. and SN.O. concerned, so it had got no evidentiary value. As far as, recovery is concerned, no crime‑empty was recovered from the spot so there is no report of Fire‑arms Expert ‑in this regard. On this type of evidence, conviction under section 302(b), P.P.C. cannot be maintained. To my mind, it is a case in which there are so many doubts and benefit of the same always goes in favour of the accused not as matter of grace but as a matter of ‑right, so while granting the same benefit I accept this appeal, set aside the conviction and sentence recorded against the appellant by the learned trial Court. He is on bait, and he shall be discharged from his bail bonds.

N.H.Q./B‑183/L Appeal accepted.