Muhammad Umair vs Muhammad Kamran etc.

Criminal Appeal . No. 690/2014.

Muhammad Umair. Muhammad Kamran etc

01.24.6.2014 Chaudhary M.S. Shad, Advocate for the appellant.

Appellant, Muhammad Umair by way of instant Criminal Appeal has challenged the acquittal of respondents No.1 and 2 recorded by the learned Addl. Sessions Judge, Faisalabad vide judgment dated 28.3.2014 in case F.I.R. No.1657 dated 08.12.2009 registered under sections 302, 109, 34 P.P.C. at Police Station Nisahatabad, District Faisalabad.

2.Succinctly the facts narrated in the crime report are that on 08.12.2009 at 7.30 a.m. the complainant along with Abdul Qayyum Ahmed (PW-2) and Abdullah Tanzeel came at the gate of Mills to meet Muhammad Zubair for some urgent work and they stood out side the gate of the mills awaiting Muhammad Zubair. When at 7.45 a.m. brother of the complainant namely, Muhammad Zubair arrived there on his motorcycle No.6556/FDH, Honda CD-70 from the street towards gate of the Mills, when two unknown accused persons arrived there, one of

whom was of 22/23 years, armed with pistol started firing at brother of the complainant and the fire landed on left leg, backside and chest of Muhammad Zubair, who fell down along with his motorcycle. The complainant and witnesses attended to Muhammad Zubair, who succumbed to the injuries at the spot. The complainant and PWs witnessed the occurrence.

3.On the basis of the complaint (Exh.PA) submitted by the complainant, formal F.I.R. (Exh.PA/2) was chalked out and after registration of case, the investigation was entrusted to Riaz Ahmed, SI. On fateful day, the Investigating Officer visited the place of occurrence and prepared the injury statement as (Exh.PH), inquest report as (Exh.PJ), rough site plan of the place of occurrence as (Exh.PK) and recorded statements of Abdul Qayyum and Abdullah Tanzeel (PWs) under section 161 Cr.P.C. More over, the last worn clothes of the deceased i.e. shirt (P/13), bunyan white colour (P/4), waist black colour (P/15), grey colour jacket (P/16), pent (P/17), underwear gray colour (P/18) along with a phial, all stained with blood, were taken into possession by him vide recovery memo (Exh.PL) whereas Draftsman also took rough notes of the place of occurrence

and prepared scaled site plan (Exh.PG) and (Exh.P-G/1). During investigation, the complainant through written supplementary statement (Exh.PB) nominated accused Muhammad Kamran and Saleem Khan on 14.12.2009. The Investigating Officer arrested accused Muhammad Kamran on 12.01.2010 and during investigation, 30-bore pistol (P-11) was recovered from Muhammad Kamran, accused which was taken into possession by the Investigating Officer through recovery memo (Exh.PF), whereas he made hectic efforts but accused Saleem Khan could not be arrested and ultimately after getting proclamation (Exh.PQ), prepared the challan under section 512 Cr.P.C. by writing the name of the accused-Saleem Khan with red ink and submitted the same before the competent court of law.

4.Having found the accused persons, namely, Muhammad Kamran and Muhammad Nadeem alias Deema guilty, the Investigating Officer prepared report under section 173 Cr.P.C. and sent the same to the court of competent jurisdiction by maintaining the name of third accused, Saleem Khan as proclaimed offender. On 05.4.2012 the learned trial court formally charge sheeted respondents No.1 and 2, to which they pleaded not guilty and claimed

trial. The prosecution in support of its version produced as many as fourteen (14) prosecution witnesses.

5.Ocular account of first part of the occurrence in this case has come out from the statement of Muhammad Umair, complainant (PW-1), Abdul Qayyum Ahmed (PW-2), whereas Muhammad Aslam (PW-4) is witnesses of last seen and extra-judicial confession and Dr. Muhammad Naeem (PW-13) had conducted post mortem examination of the dead body of the deceased Muhammad Zubair on 08.12.2009. The statements of rest of the prosecutions witnesses are formal in nature whereas PWs Muhammad Talha, Abdullah Tanzeel, Tariq Mehmood, Sana Ullah, SI and Muhammad Zafar Ullah DSP being unnecessary, were given up by the learned Assistant District Public Prosecutor, who closed the prosecution evidence after tendering the reports of chemical examiner (Exh.PU) and report of Serologist as (Ex.PW).

6.The accused persons (respondents No.1 and 2) were also examined in terms of section 342 Cr.P.C. wherein both of them opted not to appear as their own witnesses in disproof of the allegations levelled against them in the prosecution version. In response to the particular question, that why this case against

them and why the PWs deposed against them, Muhammad Kamran made the following depositions which reads as under:- “The PWs are either related to the complainant or his close friend. I had resigned from my job sometime prior to the murder of Muhammad Zubair. Since the occurrence was not witnessed by the prosecution witnesses. They lodged the FIR without giving name of any person therein and later on implicated me falsely, on the basis of a for-fetched and false motive and concocted extra judicial confession. It is admitted position in the evidence that the shift was changing at the time of occurrence and thousands of employees were coming and going out of the gates of Mills including the employees of garment unit but no independent witness has been cited. Even the so-called eye witnesses were not in position to give the exact way of coming to the place of occurrence and they are at variance with each other. The PWs have deposed against me to build up a false story but have badly failed to connect me with the occurrence.”

Likewise, Muhammad Nadeem alias Deema, co- accused has also made the following depositions which reads as under:- “I was involved falsely due to previous litigation. None of the PWs/CWs have deposed against me. None of the Investigating Agencies including the

high ups have found me guilty in their investigation. I was summoned by the court on the application of the complainant without recording any evidence, against the spirit of law and without any justification, as such I was released on pre-arrest bail by the same Presiding Officer, by giving all the facts in the bail order mark-A.”

7.The learned trial court after evaluating the evidence available on record and in the light of arguments advanced from both sides, found that the prosecution has miserably failed to prove the allegations levelled against the accused persons (respondents No.1 and 2), resulting into acquittal of the accused persons (respondents No.1 and 2).

8.The learned counsel for the appellant has stated that in the instant case, circumstantial evidence coupled with the extra-judicial confession of respondent No.1 made in the presence of prosecution witnesses, it is clearly established that respondents No.1 and 2 are guilty of the offence with which they were charged; that the extra-judicial confession was spontaneous and natural without any threat, inducement having been voluntarily made by respondent No.1; that the recovery of weapon of offence also furnished sufficient incriminating material to connect respondent No.1 with the commission of alleged offence; that the impugned judgment of acquittal of the accused

is based on misreading and non-reading of evidence; that the impugned judgment is based on surmises and conjectures, as prosecution evidence is consistent on each and every credible evidence but the learned trial court has passed the judgment of acquittal without any lawful justification; that respondents No.1 and 2 be convicted and sentenced for causing Qatl-e-Amd of Muhammad Zubair.

9.We have carefully considered the submissions made on behalf of the learned counsel for the appellant and have gone through the impugned judgment.

10.In the instant case, FIR No.1657 of 2009 dated 08.12.2009 (Exh.PA/2) was recorded on the basis of statement (Exh.PA) of the complainant-Muhammad Umair son of Ghulam Rasool, appellant. Initially in the F.I.R., it was alleged by the complainant-appellant that on 08.12.2009 at about 7.30 a.m. he along with Abdul Qayyum (PW-2) and Abdullah Tanzeel (given up PW) came to the gate of Mills at about 7.30 a.m. to meet Muhammad Zubair for urgent work. They stood outside the gate of the Mill. At 7.45 a.m. brother of the complainant, Muhammad Zubair arrived there on motorcycle No.6556/FDH, Honda CD-70 from the street towards Mills gate, when two unknown

accused, one of whom was armed with pistol, started firing upon brother of the complainant- Muhammad Zubair, who received fire shot on left leg, back side and chest. The brother of the complainant fell down and succumbed to the injuries at the spot. The complainant had not given description of the accused persons and only mentioned in the F.I.R. that one of the accused was of 22/23 years old. During the investigation the complainant-appellant moved an application (Exh.PB) on 14.12.2009 through which he nominated Muhammad Kamran- respondent No.1, who made fire on his brother- Zubair, one fire landed on the back of Muhammad Zubair and second one landed on his left leg and left elbow. Accused Muhammad Kamran-respondent No.1 had made fire with 30- bore pistol whereas Saleem Khan (proclaimed offender) made fire with carbine. The accused fled away from the scene of occurrence while firing towards Nishatabad bridge. The complainant-appellant had not mentioned in Exh.PB that Muhammad Kamran-respondent No.1 is the same person who had fired at his brother whereas the complainant-appellant to prove charge against respondent No.1 produced evidence of last seen Wajtakar and extra-judicial confession. The evidence of last seen, has been furnished by Muhammad Aslam

(PW-4), who is labourer by profession, and have deposed that he along with Tariq Mehmood (since given up PW) were standing near Nishatabad over head bridge and accused persons, namely, Muhammad Kamran and Muhammad Saleem Khan (since proclaimed offender) passed from them, they were coming from Nishatabad Bazar side and they went towards Chenab Mills Gate. This witness also stated that after about 10 minutes he heard the noise of firing and thereafter accused persons while running from Chenab Mills towards Nishatabad crossed him. At that time respondent No1. Muhammad Kamran was armed with pistol whereas Muhammad Saleem Khan accused (since proclaimed offender) was armed with gun. Had this witness present at the spot, he must have informed the police which came at the place of the occurrence in his presence or to the complainant who was also present at the place of occurrence as per prosecution story. This witness on the day of “Quran Khawani” i.e. on 09.12.2009 for first time stated the factum of last seen before the complainant (PW-1)/appellant. Prior to that PW-4 had not disclosed this fact inspite of his presence at the spot to the police or complainant. On the other hand, the complainant did not inform the police about the

names of the accused persons and on 13.12.2009 went to the Dera of Nadeem Jatt accused, when accused persons confessed their guilt in presence of PW-1 complainant, PW-2 Abdul Qayyum Ahmed and PW-4 Muhammad Aslam and thereafter fled away. The conduct of the complainant-appellant who is real brother of the deceased, creates doubts about the veracity of the statements of the prosecution witnesses because the complainant remained mum till 14.12.2009, when he approached the police through written complaint (Exh.PB) and nominated accused persons, namely, Muhammad Kamran and Muhammad Saleem (since P.O). The normal conduct of the complainant should be that he should have to apprise to the police on 09.12.2009 about the fact of last seen but he did not do so. The learned trial court rightly comes to the conclusion that the circumstances since 08.12.2009 to 14.12.2009, are doubtful. It is, thus obvious that the last seen evidence was disbelieved by the learned trial court by advancing cogent reasons. Even otherwise, it is well settled principle of law that such type of evidence is very weak and cannot be implicitly relied upon until and unless it is corroborated by an evidence of quality and coming from

unimpeachable source. In the instant case, no corroboration is available.

11.According to the prosecution as per so- called extra-judicial confession of respondent No.1, the offence is stated to have been committed by him (respondent No.1) and Muhammad Saleem Khan (since P.O.) as he was terminated from the service by the deceased. The motive for commission of offence attributed to respondent No.1 is that Zubair deceased had expelled respondent No.1 from service. It is in the prosecution evidence that the motive was set up by the prosecution through supplementary statement while nominating accused on the basis of extra-judicial confession. Needless to point out that prosecution has failed to produce evidence relating to motive part. The story of motive is not only weak but in fact no motive was shown in the FIR. Even CW-1 Talib Hussain Chaudhry has not stated that Kamran accused was expelled from the mills by Muhammad Zubair- deceased. As far as evidence of CW-2 Tanvir Afzal is concerned he deposed in the witness box that on 08.12.2009 at about 7.45 a.m. accused Kamran contacted him telephonically and inquired about deceased but during cross- examination he admitted that SIM is not

registered in his name nor he gave his number to the police during investigation. In this back ground call data of Mobile Phone could not be secured by the police. It is also strange that accused persons confessed their guilt before PW1, PW2 and PW4 while sitting on their own Dera where PWs visited although no allegation was ever levelled against them in the F.I.R. lodged by real brother of the deceased. All these aspects have been discussed by the learned trial court while discussing the evidentiary value of these pieces of evidence and has rightly concluded that these are not sufficient to corroborate the allegation levelled by the prosecution against the accused persons. Needless to point out that by now it is well settled that so far extra-judicial confession is concerned, it is a very weak piece of evidence and unless it is corroborated by other reliable and trustworthy evidence, it would not be safe to convict an accused solely on the basis of extra-judicial confession. So far as the recovery of pistol (P-11) from respondent No.1 is concerned was of no consequence, as the crime empties were not secured from the place of occurrence. Needless to point out that mere recovery of weapon of offence is of no consequence nor can it be said to be a circumstance to bring home the guilt against

respondent No.1. Nothing has been brought on record so as to persuade this Court to come to the conclusion that respondent No1 caused death of Muhammad Zubair deceased, so on this ground also the prosecution case fails.

12.As per role of respondent No.2- Muhammad Nadeem alias Deema is concerned, no evidence had suggested the instigation or planning of co-accused-Muhammad Kamran for committing the offence or provided weapon. Respondent No.2 was involved in the case on the disclosure of co-accused-Muhammad Kamran. The instigation had to be proved through independent witnesses having no grudge or enmity with the accused. The learned trial court has rightly discarded the said evidence and that having been done no material at all was available on record for conviction of respondents, who has rightly been acquitted of the charge by extending the benefit of doubt.

13.The prosecution evidence as discussed above and looking to the attending circumstances, it would not be safe and proper to convict respondents No.1 and 2 by accepting the submissions of the learned counsel for the appellant. It may not be out of place to mention that the learned trial court on appreciation of

evidence has rightly come to the conclusion in acquitting the respondents No.1 and 2. We have also taken note of the settled principle of criminal jurisprudence that unless it can be shown that the judgment of the learned trial court is palpably wrong, manifestly, erroneous or demonstrably, unsustainable, the same cannot be set aside. If the appellate court comes to the conclusion that the order of acquittal is based on reasonable ground, the order of acquittal is not to be disturbed. Needless to reiterate that the view taken by the learned court below is balanced, based on proper appreciation of evidence and correct application of law, as such there is no merits in this appeal.

14.As a result of the aforesaid discussion, the present appeal is devoid of any merit and it is dismissed in limine under Section 421 Cr.P.C. as the learned trial court has not committed any illegality or material irregularity in exercise of its jurisdiction vested in it.

(SYED IFTIKHAR HUSSAIN SHAH) (AALIA NEELUM)

JUDGE JUDGE

Approved for reporting.

Hamid/*