MUHAMMAD ZUBAIR Versus State
MUHAMMAD HASHIM KHAN KAKAR, J.--- Muhammad Zubair petitioner, is purportedly responsible for the shooting and death of Farooq Tauseef at approximately 3:30 p.m. on 28.08.2002. The incident occurred in the context of an insult directed at Farooq Tauseef the previous evening. The petitioner was booked in case FIR No. 255/2002, which was registered at Police Station Garjakh. District Gujranwala on the same day with these allegations. Following a regular trial, the petitioner was convicted by the Trial Court for an offense under section 302(b), P.P.C. and was sentenced to death with compensation. The appellant filed an appeal before the High Court challenging his convictions and sentences. Although the appeal was dismissed, his death sentence was commuted to life imprisonment. Therefore, the present jail petition has been filed.
2. The learned Deputy Prosecutor General's initial request for the dismissal of the jail petition was rendered infructuous by the petitioner's release after serving the entirety of the sentence. On the contrary, Mr. Salman Safdar, the learned counsel for the petitioner, argued, and rightfully so, that the appeal against conviction cannot be considered infructuous solely because the convicted petitioner had served out the sentence imposed. The fundamental purpose of an appeal is to contest the legality and accuracy of the conviction; however, the right to appeal is not forfeited by serving out the sentence. The rejection of such an appeal solely on the basis of the conclusion of the sentence is a confirmation of conviction without an adjudication on the merits, which is in violation of the principles of justice. The petitioner-convict is always entitled to request that the stigma associated with a conviction be removed through the disposition of the appeal on merits. The legal disabilities and disadvantages that persist long after a sentence is served are always "collateral consequences" of a criminal conviction.
3. It is acknowledged that the incident occurred at 3:30 p.m. on 28.08.2002, but the report was submitted at 5:15 p.m. and the post-mortem was administered at 11:10 p.m. This discrepancy has not been satisfactorily addressed. The unexplained delay in filing the FIR and conducting the autopsy has raised suspicions regarding the veracity of the prosecution's narrative.
4. The prosecution's entire case is predicated on the sole testimony of complainant Ashiq Hussain (PW-4) and Tanvir Ahmed (PW-5), who are the father and brother of the deceased Farooq Touseef, after the alleged motive and the recovery of the crime weapon are discarded. The evidence of both witnesses must be examined with a greater degree of care and prudence, as they are not only related but also chance witnesses. In the event that the motive has been disregarded and the recovery is inconsequential, the ocular account's credibility and quality must be impeccable, flawless, and of a nature that compels the judicial conscious to accept it without any reservations. The evidence of Ashiq Hussain and Tanvir Ahmed, which is characterized by inconsistencies and improbabilities and is reliant on chance and related witnesses, falls significantly short of this rigorous standard. Both witnesses were unable to provide an explanation for their presence at the location of the incident at that precise moment. Additionally, their actions during the incident were unnatural, as they failed to raise any alarm, notify the police promptly, or attempt to intervene, despite being five in number. The location of the occurrence in the scale site plan Ex.PE/3 and Ex.PF is also distinct, which raises significant doubts regarding the prosecution's case.
5. We conclude that the prosecution has failed to establish the petitioner's culpability beyond a reasonable doubt for the aforementioned reasons. After declaring the weapon recovery inconsequential and discarding the motive, the conviction is not maintainable, as it is founded on a medley of unreliable ocular evidence. Consequently, the jail petition is converted into an appeal and allowed by setting aside the impugned judgment. The petitioner, Muhammad Zubair, is found not guilty of all charges, therefore, he is acquitted and ordered to be released forthwith if not required in any other case.
6. As a sequel to the above discussion, we do not see any merit in the petition filed by the complainant for enhancement of the sentence, therefore, it is dismissed.
MH/M-108/SC Appeal allowed.