Liaqat Ali vs The State etc.

Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT AT LAHORE

JUDICIAL DEPARTMENT

Crl. Appeal No. 1568 of 2010 (Liaqat Ali v. The State etc)

Crl. Revision No.730 of 2010 (Qasim Ali v. Liaqat Ali)

JUDGMENT

Date of hearing: 03.07.2014.___________________________________________ Appellant by: Ms. Syeda Feroza Rubab, Advocate for the appellant.__________ State by: Mr. Iftikhar-ul-Haq Chaudhary, Addl. Prosecutor General.______ Complainant by: Mr. Muhammad Shoaib Bhatti, Advocate for the complainant.___ AALIA NEELUM, J.- Liaqat Ali son of Muhammad Amin, Caste Arain, resident of Mastoo-wal Jhuggian, Police Station Chunian, Tehsil Chunian, District Kasur, appellant was involved in case F.I.R. No.606 dated 23.10.2005, offence under Section 302/34 P.P.C registered at Police Station Chunian, District Kasur and was tried by Mr. Safdar Saleem Shahid, Additional Sessions Judge, Chunian, District Kasur. The learned trial court seized with the matter in terms of judgment dated 05.6.2010 convicted the appellant under section 302(b) P.P.C. and sentenced him to life imprisonment. The appellant was further directed to pay Rs.2,00,000/- as compensation to the legal heirs of the deceased in terms of section 544-A Cr.P.C and in case of default in payment thereof, to undergo SI for six months. Benefit of section 382-B Cr.P.C was also extended in favour of the appellant. The appellant has assailed the judgment of the learned trial court through the instant appeal, whereas Qasim Ali complainant being dissatisfied with the quantum of sentence filed Crl.Rev.No.730 of 2010.

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As both the matters are arising out of one and the same F.I.R., therefore, I intend to dispose of the same through this single judgment.

2.Prosecution story as contained in the F.I.R. (Ex.PH) lodged on the complaint (Ex.PA) of Qasim Ali (PW-1) is that he is resident of Kot Shah Muhammad and is cultivator. The marriage of his sister”s son, namely, Abdul Aziz was solemnized with the daughter of Muhammad Daud of Jhugian Mastowal, ten months prior to the alleged occurrence, a quarrel took place between Liaqat Ali accused and Muhammad Arshad son of Daud and the complainant”s sister son, namely, Abdul Aziz was also named as accused in the F.I.R. and he gave perspicuity of Abdul Aziz upon which he was declared innocent by the police. The complainant had no enmity with any one but Liaqat Ali etc apprehended that he is supporting Daud etc. One month prior to the occurrence, Muhammad Arshad son of Muhammad Daud etc killed Amin son of Noor Muhammad and Altaf son of Amin and the complainant did not support Muhammad Arshad etc. The complainant further alleged that today i.e 23.10.2005 at about 4.00 p.m his son, namely, Ahmad Din aged about 20/22 years was standing with Muhammad Akram and Abdul Aziz son of Ahmad Din near the shop of Muhammad Yousaf, on the “solling” of road. The complainant came out of the mosque after offering prayer when all of a sudden, a blue car arrived from Allah-Abad side in which Liaqat Ali armed with rifle, Riaz (since dead) armed with rifle, Imran (since P.O) armed with rifle and one unknown person, who can be identified, arrived at the bridge and they came out from the car. Liaqat Ali-accused while pointing straight rifle towards the complainant”s son said that be ready and now they would teach him lesson for helping Daud etc and opened burst of his rifle at Ahmad Din, which landed on the abdomen, chest, right flank and on right thigh. Riaz-accused (since dead) made fire with his rifle which landed on the thigh of Ahmad Din, Imran-accused

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(since P.O) made fire with his rifle on Ahmad Din, which landed on the right side of the temple of Ahmad Din and he got smeared with blood. The unknown accused, who was armed with rifle raised “Lalkara” that if any one comes forward, he will be killed. The accused persons boarded in the car while making ineffective firing and drove towards Mastowal. Ahmad Din after sustaining the injuries, succumbed at the spot. The occurrence was witnessed by Muhammad Akram and Abdul Aziz PWs and other people of locality. After leaving Muhammad Akram and Abdul Aziz to safeguard the dead body, the complainant was on way to Police Station to report the matter, when he reached near Darbr Sheikh Illam Din, he met with Muhammad Sarwar, SI (since dead) at 5.00 p.m and moved application (Ex.PA) upon which the Investigating Officer after endorsing police “Karvai” sent the same to Police Station through Muhammad Younas 305/C for registration of formal F.I.R., (Ex.PH). Thereafter, the Investigating Officer visited the spot and prepared the rough site plan of the place of occurrence Ex.PE/1, prepared injury statement Ex.PM and also prepared inquest report Ex.PN and handed over dead body to Muhammad Ashraf Constable (PW-7) for its autopsy. On 26.10.2005, on the direction of the Investigating Officer and pointing out of the PWs Master Sadiq Ali Draftsman (PW-11) took rough notes of the place of occurrence and thereafter, prepared a scale site plan (Ex.PG and Ex.PG/1), secured blood stained earth from the place of occurrence and took it into possession vide recovery memo (Ex.PB) and recorded the statements of the prosecution witnesses. After the postmortem examination, last worn clothes of the deceased were produced before the Investigating Officer, which he took into possession “Qameez” (P-1) and Shalwar (P-2) and Bunian (P-3) all blood stained vide recovery memo Ex.PC. The Investigating Officer made search for the accused persons, however, could not trace out their whereabouts and thereafter adopting all codal formalities obtained non-bailable warrants of

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arrest. Thereafter, the investigation came up before Muhammad Abbas Bhatti, SI (PW-9), who obtained proclamations against accused persons. On 10.7.2008 Syed Ali Hussain Shah, Inspector arrested Liaqat Ali and handed over his custody to Shaukat Ali, Incharge Investigation (PW-13), who during the course of interrogation after making disclosure led to the recovery of rifle 44-bore (P-1), 80 alive bullets (P-2/80) and black bag (P-3) from his house, which the Investigating Officer took into possession vide recovery memo Ex.PE. The Investigating Officer also prepared rough site plan of the place of recovery (Ex.PE/1). During course of investigation the complainant on 18.07.2008 nominated Muhammad Afzal as accused through supplementary statement. On the same day Investigating Officer arrested Muhammad Afzal, who during course of investigation after making disclosure led to recovery of rifle 44-bore (P-4), 10 alive bullets from the residential house of co-accused Liaqat Ali, which the Investigating Officer took into possession vide recovery memo (Ex.PF). The Investigating Officer also prepared rough site plan of the place of recovery (Ex.PF/1).

3.Having found the appellant and co-accused (since acquitted) guilty, the Investigating Officer prepared report under section 173 Cr.P.C and sent the same to the Court of learned Sessions Judge en-routed through the learned Illaqa Magistrate as provided under section 190 (2) Cr.P.C. The learned Additional Sessions Judge, Chunian, District Kasur vide order dated 02.01.2009 formally charge sheeted the appellant and other co-accused. The accused pleaded not guilty and claimed trial. The prosecution in order to substantiate its case, produced as many as sixteen (16) prosecution witnesses.

4.Ocular account in this case had come out from the statements of Qasim Ali, complainant (PW-1), Muhammad Akram (PW-2), Muhammad Abbas Bhatti, SI (PW-9) and Shoukat Ali, SI

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(PW-13) are the Investigating Officers of the case. During proceedings of case Muhammad Sarwar, SI died who was the Investigating Officer and to verify the documents prepared by him, secondary evidence was produced by Shahid Iqbal, ASI who appeared as (PW-16). Dr. Muhammad Arif Mahmood (PW-8) had conducted the postmortem examination upon the dead body of Ahmad Din, deceased and found following injuries on his person.

1.A lacerated wound size 4 c.m x 5 c.m elliptical in shape, brain cavity deep, margins were inverted. It was present on the right side of head 6 c.m above the right ear, brain matter was coming through the wound and was lacerated. There was fracture of right parietal bone.

2.A lacerated wound size 1 c.m diameter, margins were inverted. It was chest cavity on the back of right side of chest, 10 c.m below the right scapula, 5 c.m lateral to mid line.

3.A lacerated wound size 1 c.m x 1 1⁄2 c.m margins were inverted on the front of right side of chest 4 c.m lateral to right nipple. Injury No.2 was entry wound and injury No.3 was its exit wound.

4.A lacerated wound size 1 c.m diameter, margins were inverted, it was abdominal cavity on the right side of abdomen, lateral part 6 c.m below the ambitious and 4 c.m above the iliac crext.

5.A lacerated wound size 1 c.m x 1 1⁄2 c.m margins were inverted, on the right side of abdomen, the fontal part of middle area. The injury No.2 was entry wound and injury No.5 was its exit wound.

6.A lacerated wound size 1 c.m diameter, margins were inverted, it was muscle deep on the right thigh lateral part upper one third. On dissection one bullet was recovered from right thigh.

7.A lacerated would size 1 c.m diameter, margins were inverted, on the right thigh, lower one third lateral part.

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8.A lacerated wound size 1 c.m x 1 1⁄4 c.m margins were inverted on the right thigh inner part, lower on third. Injury No.7 was entry wound and injury No.8 was its exit wound.

After conducting the postmortem examination, the Doctor arrived at the following opinion:-

“In my opinion, the deceased has died of shock and hemorrhage due to injuries. The injuries were ante mortem, caused by fire arms weapons and were sufficient to cause death in ordinary course of nature. The time between injury and death was immediate and between death and post mortem was about 12 to 20 hours”

5.On 03.12.2009, the learned Deputy District Public Prosecutor gave up Abdul Aziz and Muhammad Baksh being unnecessary and tender in evidence the report of Chemical Examiner as Ex.P1, report of Serologist as Ex.PJ and report of Forensic Science Laboratory as Ex.PK on 26.02.2010. Learned Deputy District Public Prosecutor vide separate statement recorded on 02.03.2010 closed the prosecution evidence. Liaqat Ali, appellant was examined under section 342 Cr.P.C, who opted not to appear as his own witness as provided under section 340(2) Cr.P.C in disproof of allegations leveled against him, however, opted to lead defence evidence. In reply to the question why this case is against him and why the PWs have deposed against him, the appellant made the following deposition:-

“This case has been lodged against me for the reason that I could not pursue my aforesaid case FIR No.536/05, P.S Chunian and due to this reason PWs have deposed against me falsely”

6.In defence the appellant after tendering outdoor ticket No.695898 dated 07.11.2005 of Mayo Hospital, Lahore (Mark-A), test report of King Edward Medical College, Lahore bearing No.696844 (Mark-B), test report of Kind Edward Medical College (Mark-C) and

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copy of F.I.R. No.536 dated 22.09.2005 under sections 302/148/149 PPC registered at Police Station Chunian lodged by Liaqat Ali accused as (Mark-D) and closed his defence evidence on 27.04.2010.

7.After hearing the arguments advanced by the learned counsel appearing on behalf of both the parties, the learned trial court, while evaluating the evidence available on the record, found the version of the prosecution correct beyond any shadow of doubt, resulting into conviction of the appellant in the above stated terms.

8.Learned counsel for the appellant has contended that the witnesses were not present at the place of occurrence especially when PW-2 Muhammad Akram stated that he came at the place of occurrence without any purpose and it is prosecution own case that the deceased along with Muhammad Akram and Abdul Aziz were discussing about murder of a woman taken place in that area, which shows that they had gone to the place of occurrence per chance, hence there was no question of ambushing thereby the appellant and other co-accused. Learned counsel has further contended that neither Muhammad Yousaf who could have been most independent natural witness of the occurrence was produced as witness nor he joined the investigation, which creates serious doubt qua the authenticity of the prosecution case. It was further argued that Qasim Ali (PW-1)/complainant and Muhammad Akram (PW-2) did not corroborate each other on salient features of the prosecution case, who even otherwise are not only closely related to the deceased rather they are inimical towards the appellant due to previous admitted enmity between the parties, which fact is spelt out from the bare reading of F.I.R. Learned counsel has also argued that medical evidence is in contradiction to the ocular account. Learned counsel has lastly submitted that this case in which evidence is not confidence inspiring, prosecution failed to prove its case against the appellant

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beyond shadow of reasonable doubt, therefore, the appellant is entitled to be extended benefit of doubt and his ultimate acquittal from the charge.

9.As against above, the learned Addl. Prosecutor General assisted by the learned counsel for the complainant has forcefully opposed the contentions raised by learned counsel for the appellant. It has been argued by the learned counsel for the complainant that prosecution through leading cogent, confidence inspiring and most natural evidence proved its case against the appellant beyond shadow of reasonable doubt. It has been argued by the learned counsel for the complainant that recovery of rifle and reports of Forensic Science Laboratory, Chemical Examiner and Serologist fully substantiated the prosecution case. It has further been argued that the appellant made burst of rifle on most vital part of the body without any reason, therefore, the learned trial court was not justified in inflicting life imprisonment upon the appellant rather normal sentence of death would be appropriate sentence to the act done by him. The learned counsel has vehemently argued that the motive qua incident was strong and a proved one. It was lastly argued that the appellant deserved no leniency.

10.Arguments advanced from all corners have been heard. I have also gone through the record available on the file with the able assistance of learned counsel for the appellant as well as the complainant and State.

11.In the instant case the occurrence had taken place on 23.10.2005 at about 4.00 p.m, whereas inter-se distance between the place of occurrence and the police station is 61⁄2 kilometers whereas in the instant case incident was not reported at Police Station rather Muhammad Sarwar, SI met complainant near Darbar Sheikh Illam Din, who received the complaint (Ex.PA) endorsed the police “Karvai” at

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5.00 p.m and referred the same to the Police Station for lodging of formal F.I.R. The complainant (PW-1) admitted that Adda Sheikh Illam Din is at a distance of 3 1⁄2/4 miles from the place of occurrence and it took 15 minutes to reach at that place when he met the said police officer and he came back at the place of occurrence with police on their official vehicle but Muhammad Akram (PW-2) deposed that 2-3 hours later on, police came at the place of occurrence. During course of cross-examination he deposed as under:-

“The complainant after 10/15 minutes of the occurrence went to the PS. He went on bicycle. He came back along with police after about 2:30/3.00 hours. When he came back with 2/4 police men out of which one was SI, Rana Sarwar and other constables” From the prosecution evidence it reveals that the complainant (PW-1) did not go to police station for reporting the incident to the police. During course of arguments, Qasim Ali, complainant (PW-1) deposed that:-

“I got the application into writing from a Master. However, I do not remember his name. I got reduced the said application prior to meeting with police” It is necessary to mention here that F.I.R. in a criminal case and particularly in a murder case should promptly lodged with all relevant information i.e (1) time of occurrence (2) names of accused (3) mode of occurrence. (4) names of witnesses, if any. (5) specific role of accused (6) kind of weapon used, if any. (7) motive, if any. As entire criminal case depends on the first information rendered through complaint before police and entire evidence depends on said document. The complainant as per prosecution went to police station for reporting the incident but before visiting police station, the complainant went some where etc (the reasons best known to him) and got prepared application for registration of criminal case from one “Master”, whose name was not known to him. Non-mentioning of

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this fact in the application/complaint (Ex.PA) indicates that the complainant (PW-1) had not stated complete truth and that the F.I.R. came into existence later on, after due deliberations and consultations. When and where complaint (Ex.PA) was prepared and author of the complaint should have to state that the complaint was prepared by him under the instructions of the complainant. It is also not a case of the prosecution that the complainant (PW-1) asked “Master” (unknown) to prepare a complaint and accordingly complaint was prepared by “Master” (unknown), which was shown to the complainant, read over to him which was signed by the complaint. The Hon”ble Supreme Court of Pakistan in the case of “Allah Bachaya and another v. The State” (PLD 2008 SC 349) held that:- “In the instant case, the FIR was not recorded at the police stations. It has been held time and again that FIRs which are not recorded at the police stations suffers from the inherent doubt that those were recorded at the spot after due deliberations”

Even the complainant had not given any explanation regarding delay in lodging the report and about preparation of complaint, in the complaint as well as in his statement before the learned trial court, therefore, in these circumstances chance of consultations and deliberations, on the part of the complainant, cannot be ruled out. It creates first dent in the prosecution case.

12.The ocular account has been furnished by Qasim Ali (PW-1) and Muhammad Akram (PW-2). It is in the evidence of Muhammad Akram (PW-2) that complainant is brother of Ahmad Ali and Ahmad Ali is grand-father of Muhammad Akram (PW-2), whereas the complainant Qasim Ali is father of Ahmad Din (deceased). It is the prosecution version that the complainant as well as witnesses are residents of Kot Shah Muhammad Mastuwal. The complainant Qasim Ali (PW-1) during course of cross-examination admitted that his house

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is situated in village Mastuwal. The distance between Kot Shah Muhammad and Mastuwal is 11⁄2 kilometers whereas this witness denied the suggestion that Muhammad Akram is resident of village Babar Khan whereas Muhammad Akram (PW-2) deposed during cross-examination that:-

“On the eastern side of my residence, where I used to live now a days is the vacant land, on the Western side is the house of Abdul Aziz son of Ahmad Din, on the Northern side is house of Easa and Shakeel. The boundary of house mentioned by me is of Babber Khan. The distance between place of occurrence and village Babber Khan is 2/3 kilometers”

Admittedly, the incident took place at Kot Shah Muhammad and not at Mastuwal. The complainant as well as Muhammad Akram could not justify their presence at the spot. The complainant deposed before the learned trial court that:-

“I was in my village Kot Shah Muhammad after offering prayer in the mosque, I came out of the mosque.”

Whereas during cross-examination, he deposed as under:- “I said my Assar prayer in the mosque of Kot Shah Muhammad. I was there at that moment just I keeping my cattle there and used to cultivate there.”

Muhammad Akram (PW-2) in order to justify his presence at the place of occurrence deposed as under:-

“We arrived at that place separately from separate places. I reached at that place first, therefore, Abdul Aziz and thereafter, Ahmad Din deceased reached there. I came there without any purpose.

Volunteered that I used to come there on and off. I do not know why Abdul Aziz on that day came there............ We during our meeting talked about a woman who was murdered in that area. I do not known name of that lady.”

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In this background, presence of the alleged eye witnesses and the complainant on the spot seems to be doubtful, particularly in the circumstances that Liaqat Ali, appellant had not fired at Abdul Aziz, who was named as accused in the F.I.R. lodged by Liaqat Ali (appellant) against murder of his father and brother. The question arises whether he was left alive as eye witness to identify the culprits, whom they could easily be identified. According to the story of prosecution narrated in the complaint (Ex.PA) the accused persons came from Allah-Abad side and de-boarded from car on the bridge, however, while appearing before the learned trial court, PW-1 Qasim Ali deposed that:-

“A car from Eastern side from the side of Thieng-More came there”

Whereas site plan (un-scaled) Ex.PL as well as scaled site plan (Ex.P.G and Ex.P.G/1) reflect that at eastern side it is Rajbah Mastuwal and not Thieng-More or Allah-Abad. It is also in prosecution evidence that by crossing witnesses the car of accused persons stopped, whereas it is prosecution case in Ex.PA that accused de-boarded on bridge. On perusal of the site plan it reveals that bridge is on Southern side, whereas accused de-boarded from car at Northern side. There is difference between site plan and statements of prosecution witnesses, which also creates doubts about the veracity of the prosecution story. Qasim Ali-complainant (PW-1) stated that he went to police station on bicycle, which belongs to some other person. Whereas, as per statement of Muhammad Akram (PW-2), Ahmad Din (deceased) came at the place of occurrence on his bicycle, which was available at the place of occurrence but the complainant had not gone to police station on it. It is also in the statement of Muhammad Akram (PW-2) that bicycle of Ahmad Din (deceased) was taken into possession by the police whereas entire record shows that bicycle was not taken into possession by the Investigating Officer. The complainant Qasim Ali

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(PW-1) and Muhammad Akram (PW-2) further stated that police sent the dead body to the civil Hospital, Chunian, since it was night time, therefore, autopsy was done on the next day, whereas during course of cross-examination Qasim Ali (PW-1) deposed as under:- “The nephew of Shah Muhammad also came along with us to the Police Station, on the day when the dead body was brought to the Police Station”

During cross-examination Muhammad Akram (PW-2) deposed as:- “Thereafter we took the dead body to the Police Station, Chunian from there the dead body was taken to the mortuary at Hospital Chunian”

Whereas Dr. Muhammad Arif Mahmood during course of cross- examination stated that the dead body was brought in the Hospital about half an hour before postmortem examination. Contrary to that Muhammad Ashraf (C) (PW-7) stated that he escorted dead body to THQ Hospital, Chunian on 23.10.2005, whereas he did not remember name of the staff of the Hospital to whom he handed over dead body. It also casts doubts about the prosecution story.

13.The story of prosecution becomes further doubtful as they did not produce Yousaf shopkeeper, who is most natural but independent witness, therefore, presumption under Article 129 of the Qanun-e-Shahadat Order, 1984 could fairly be drawn in circumstances of the case in favour of the appellant as the prosecution withheld most important witness and even said witness was not produced during investigation.

Another important fact of the case is that according to “Karwai Police” of the F.I.R. Ex.PH, it was mentioned by Muhammad Sarwar, SI that complaint (Ex.PA) was received at Adda Sheikh Illam Din and sent the complaint to police station through Muhammad Yousaf 305/C for registration of formal F.I.R. It is in prosecution evidence that after

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forwarding the complaint to police station for lodging the formal F.I.R. Muhammad Sarwar, SI visited the place of occurrence and prepared inquest report, injury statement and secure blood stained earth, however, it is noted that the number of F.I.R. was given in the column of brief fact as well as in the injury statement, whereas till preparation of those documents neither F.I.R. was lodged nor any one produced copy of F.I.R. Qasim Ali/complainant (PW-1) deposed that it took 15/20 minutes to complete the said proceedings by the police. If deposition of Qasim Ali is correct then said documents were not prepared at the spot whereas statement of Muhammad Akram (PW-2) is contrary to the statement of Qasim Ali (PW-1).

There is another strong circumstance that no crime empty was recovered from the place of occurrence whereas it is the prosecution case that the witnesses remained at the place of occurrence till arrival of police. During prosecution evidence nothing was brought on record to explain as why empties were not found at the place of occurrence. All what has been said above, I am of the opinion that it was an un-witnessed occurrence.

14.As far as recovery of rifle along with eighty (80) alive bullets is concerned, it does not support the prosecution case, as no empty was recovered from the spot and it could not be said with certainty that the rifle was used during the occurrence.

As per contents of the crime report (Ex.PH) which was also corroborated by the prosecution witnesses of ocular account, the burst fired by the appellant with his rifle landed on the abdomen, chest and on the right flank on the deceased Ahmad Din whereas in the postmortem examination report as well as while appearing in the witness box, Dr. Muhammad Arif Mahmood during the course of cross-examination deposed that injury No.2 was on the back of chest of deceased and there was no injury on the right flank of the

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deceased. Dr. Muhammad Arif Mahmood (PW-8) also admitted that both injuries were caused from different directions. The relevant part of the deposition of Dr. Muhammad Arif Mahmood is re-produced as under:-

“The injury No.2 was on the back of chest of deceased. The injury No.4 was caused from right side. Both these fires injury No.2 and 4 were short from different direction. There was no injury on the right flank of deceased”

Above stated facts also contradict the prosecution story and extend strength to the defence version that the complainant had not witnessed the occurrence. Even by now it is well settled principle of law that medical evidence only indicates receipt of injuries, kind of weapon used and nature of injury but it did not name the assailant. Reliance is placed on “Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53) and “Mursal Kazmi alias Qamar Shah and another v. The State” (2009 SCMR 1410).

15.As far as motive is concerned, it is a double edged sword, which cut both sides/ways. In the instant case the existence of enmity between two parties i.e the complainant and accused has not been disputed before this Court. Now it is trite law that enmity is a double edge weapon. The existence of a motive on the part of the accused may be a reason for committing the crime, yet the court has to be cognizant of the fact that this may in a given case lead to false implication of the appellant. As per prosecution version put forth in the crime report by the complainant that ten months prior to occurrence, a quarrel took place between Liaqat Ali accused and Muhammad Arshad son of Daud and sister”s son of the complainant (PW-1), namely, Abdul Aziz, (given up) was named in the F.I.R. as an accused and the complainant (PW-1) gave perspicuity of innocence of his “Bhanja” due to which he was declared innocent and Liaqat Ali,

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appellant apprehended that the complainant supported Daud etc. One month prior to the occurrence Muhammad Arshad and Daud etc killed father and brother of the appellant, namely, Amin son of Noor Muhammad and Altaf son of Amin and the complainant did not support Muhammad Arshad etc whereas prosecution has failed to lead evidence of a clear motive that Abdul Aziz was earlier involved in the case and the complainant gave perspicuity upon which Abdul Aziz was declared innocent and the complainant concealed this fact that Abdul Aziz was also nominated by Liaqat Ali (appellant) in murder case of his father and brother, however, during the course of cross- examination Qasim Ali (PW-1) deposed as under:-

“It is in my knowledge that one month to the present occurrence, the father and brother of the accused Liaqat Ali were murdered. It is also in my knowledge that Liaqat Ali is complainant of that case. It is also in my knowledge that Abdul Rauf and Abdul Aziz are accused of that case, who are my real “Bhanjas”

It is also in the testimony of Muhammad Akram (PW-2) that:

“It is in my knowledge that Liaqat Ali accused lodged an FIR against Abdul Rauf and Abdul Aziz for the murder of his father and brother, which took place one month prior to the occurrence in question”

From the prosecution evidence it reveals that the complainant (PW-1) concealed real fact in the complaint (Ex.PA), thus the prosecution has failed to lead evidence of a clear motive. In this background, implication of Liaqat Ali-appellant in the case due to involvement of complainant”s sister sons in the case of murder of Liaqat Ali”s father and brother, it is quite probable for prosecution witnesses to implicate Liaqat Ali in a criminal case. Motive is a double edge weapon for the occurrence and also for false implication. There are always different motives operate in the mind of the person in making false accusation.

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17.The learned counsel for the complainant had put much emphasize that after the occurrence, the appellant absconded. However, in the light of the statement of Riaz Ahmad 421/C (PW-6), it could not be said that the requirements of declaring a person proclaimed offender were met with. Riaz Ahmad (PW-6) admitted that he did not contact the Lumberdar and Chowkidar. It is also an admitted fact that non-bailable warrant of arrest of the three accused Ex.P.6/1 was on one paper. However, the factum of abscondence, even if established, could only be used as corroborative evidence and was not substantive piece of evidence. It is established principle of law that mere absconsion is not a proof of guilt of an accused. Reliance is placed on “Rasool Muhammad v. Asal Muhammad and another” (PLJ 1995 SC 477). From the above it can be ascertained that prosecution has badly failed to bring whom guilt of the appellant through straight forward, confidence inspiring and corroborative evidence.

18.Keeping in view the facts and circumstances of the case, I am of the considered view that it was an un-witnessed occurrence and the appellant was roped in this case due to the criminal case registered by the appellant against the complainant”s sister son, namely, Abdul Aziz and Abdul Rauf for committing murder of father and brother of the appellant. After coming to the conclusion that the prosecution case is lacking sufficient incriminating corroborating evidence especially material contradiction in the ocular account and the medical evidence as well as material points, there is no need to take into the defence plea of alibi taken by the appellant. Under such circumstances, it cannot be said that the prosecution has proved the guilt of the accused-appellant beyond any reasonable doubt to warrant conviction. Needles to mention here that benefit of doubt always goes in favour of the accused.

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19.Resultantly Criminal Appeal No.1568-2010 is accepted. Conviction and sentence recorded by the learned trial court vide judgment dated 05.6.2010 is set aside as a consequence whereof, Liaqat Ali, appellant is ordered to be acquitted of the charge in case F.I.R. No.606 of 2005 dated 23.10.2005 offence under section 302/34 P.P.C. registered at Police Station Chunian, District Kasur and he is directed to be released forthwith, if not required in any criminal case.

16.So far as Criminal Revision No.730 of 2010 seeking enhancement in sentence of respondent No.1 inflicted by the learned trial court is concerned, for the afore-stated reasons, the same has no weight, which is accordingly dismissed.

JUDGE

Approved for reporting.

Hamid/*