MUHAMMAD YOUNAS vs THE STATE

This judgment will dispose of Criminal Appeal No. 1407 of 2000 filed by Muhammad Younas, appellant, who was convicted and sentenced by learned Additional Sessions Judge, Lahore vide his judgment, dated 23-8-2000 to undergo imprisonment for life under section 302(b), P.P.C. With the further direction to pay Rs.50,000 as compensation to the legal heirs of the deceased or in default six months' S.I. With the benefit of section 382-B, Cr.P.C.

2. Facts of the prosecution case as disclosed by Muhammad Khalid P.W.1 are that he was running a shop of crockery near Akram Park. On 27-5-1998 at about noon Muhammad Younas father of Dawood came to his shop and the complainant said to him that the latter was to pay Rs.1,500 to him for the articles sold to him earlier, so he should clear the debt, that day. Hearing this Muhammad Younas behaved rudely and went away calling names. The same day at 6-45 p.m.

The Complainant and his father were present in the shop that in the meanwhile Kala, Kaka son of Muhammad Younas armed with mausers and an unknown person also armed with a mauser came at the shop. Mian Dawood (since dead) and his father Muhammad Younas came and stood by the side of the shop of Dr. Shahid Nazir Dar. Mian Dawood and his father Muhammad Younas shouted a Lalkara that Muhammad Khalid and his father Ashiq Hussain be taught a lesson for demanding the debt and be killed. Kaka, Kala and the unknown person started firing at the complainant and his father indiscriminately. The complainant hid himself behind the counter and one fire shot by Kala hit on the right cheek of Ashiq Hussain, the father of the complainant and he fell down in the shop bathed in blood. Upon hearing the alarm and hue and cry of the complainant and the report of firing Najam-ul-Hassan, Baqir Hussain and Muhammad Asif P.Ws. Reached and saw the occurrence. The accused fled shouting Lalkara. The complainant and his brother Asif had removed their father Ashiq Hussain to Services Hospital but he succumbed to the injuries.

3. Mian Dawood, the co-accused allegedly died in the police encounter reported in case F.I.R.

No.273 of 1998, Police Station Shadbagh, the unidentified culprit could not be traced and Muhammad Younas and his two sons Kala and Kaka were declared P.Os. Subsequently, Muhammad Younas was arrested and was sent up for trial. Warrants of arrest were again issued against the P.Os. And proceedings under sections 87 and 88, Cr.P.C. Were taken up against them and they were proceeded under section 512, Cr.P.C.

4. On the strength of final police report submitted against Muhammad Younas accused under section 173, Cr.P.C. The accused was charged under sections 302, 109, P.P.C. He did not plead guilty to the charge and the prosecution. Was directed to lead its evidence.

5. At the trial, prosecution in order to prove its case produced 11 witnesses in all, thereafter, learned D.D.A. Tendered in evidence report of Chemical Examiner Exh.P.K. And also that of Serologist Exh.P.L.

And closed the prosecution case, then, the statement of the appellant was recorded under section 342, Cr.P.C. In which he pleaded innocence, and claimed false implication.

6. Learned counsel for the appellant in support of this appeal submits that only Lalkara was attributed to the present appellant that alongwith the appellant his three sons, namely, Kaka, Kala (P.Os.) Mian Dawood who was killed in a police encounter and one an unknown person was falsely implicated that there is only one injury on the person of Ashiq Hussain deceased which was attributed to Kala (P.O.), that only fault of the appellant is that he is father of three accused, that no case is made out against the appellant and he is entitled to acquittal.

7. On the other hand, learned counsel for the State submits that appellant is named in the F.I.R., he raised a Lalkara, that he asked his co-accused to commit the murder of the deceased, that he is fully responsible for the murder of Ashiq Hussain deceased. He supports the judgment of the learned trial Court.

8. I have heard learned counsel for the parties at a great length and have also gone through the record very minutely. In the instant case, two eye-witnesses, namely, Muhammad Khalid and Najam-ul-Hassan were produced by the prosecution. Muhammad Khalid is son of the deceased while Najam-ul-Hassan is nephew of the deceased. According to the prosecution occurrence had taken place in a very thickly-- populated area but the prosecution has produced not a single independent witness from the said locality. Appellant is real father of three co-accused, namely, Kaka, Kala (P.Os.) and Mian Dawood, who was killed in a police encounter. The unknown accused was never arrested by the police, only Lalkara is attributed to the present appellant. To my mind, the possibility of false implication of the present appellant being father of three co-- accused cannot be ruled out while granting the benefit of doubt. 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.

Office shall inform the appellant through Superintendent of concerned jail, that-his counsel Mr. Zafar Mehmood Chaudhry, Advocate who had filed the appeal never appeared before this Court, although the appeal was fixed on 16-12-2002, then on 20-1-2003, he was not present and I had appointed Mirza Abdullah Baig an Advocate to argue the case on behalf of the appellant at State expense and in that order I had directed the office to issue notice to Mr. Zafar Mahmood Chaudhry, Advocate at his address mentioned in the appeal. On 31-1-2002, learned counsel for the appellant was present but the Court time was over and case was adjourned for today, so I have heard the appeal on merits and decided on merits, therefore, office is directed to inform the appellant about the order of this Court.