2021 Y L R 1449

[Lahore]
Before Ch. Mushtaq Ahmad, J
MUHAMMAD NAWAZ---Petitioner
Versus
The STATE---Respondent Criminal Appeal No. 192-J of 2013, heard on 19th
November, 2020.
Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Un-witnessed
incident---Last seen evidence---Un-natural conduct---Scope---Accused was alleged to have
murdered the minor son of complainant---Prosecution case mainly relied on last
seen evidence as there was no eye-witness of the murder---Two of the prosecution witnesses
had claimed that they had seen the deceased in the company of the accused and two unknown
persons---Both the said witnesses in their cross-examination had stated that they did not go
to accused person's house when they were searching for complainant's son, which conduct
was not in line with the behaviour which should have been of a man of ordinary prudence in
the given situation---Both the witnesses had contradicted each other on material points and
had stated that they did not know the accused---Sickle was recovered on the indication of
accused during the course of investigation---Sickle was shown as the weapon used for cutting
jugular vein of the victim but the Medical Officer in his cross-examination had stated that the
injury could not have been caused by sickle as its cut was irregular as opposed to regular cut
on the neck of deceased---Prosecution had failed to prove the charge against the accused
beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.
Shahid Mahmood Baig and Kamran Javaid Malik, defence counsel for Appellant.
Muhammad Nawaz Shahid, Deputy Prosecutor General for the State.
Etbar Ahmad Khan for the Complainant.
Date of hearing: 19th November, 2020.
JUDGMENT
CH. MUSHTAQ AHMAD, J.---Through this criminal appeal Muhammad Nawaz
appellant has challenged his conviction and sentence. He was tried by learned Additional
Sessions Judge, Jaranwala for the offence under section 302, P.P.C. in case FIR No.816 dated
19.11.2009 registered at Police Station Khurrianwala District Faisalabad. On conclusion of
trial, appellant was convicted vide judgment dated 30.01.2012 and sentenced as under:--
Convicted under section 302(b), P.P.C. and sentenced to undergo rigorous imprisonment
for life with compensation under section 544-A, Cr.P.C. to the tune of Rs.1,00,000/-.
Benefit under section 382-B, Cr.P.C. was extended to the appellant.
2. First Information Report was registered on the complaint made by Sadiq Ali (PW-6).
Per prosecution, complainant's son Faiz Meera aged about eight-nine years went towards
garden to bring back his goat but he did not return. Thereupon, complainant along with
Muhammad Yousaf and Muhammad Tanvir (since given up) started searching for his son. In
the meanwhile, Naveed Ahmad (PW-8) and Akhtar Ali (PW-7) told the complainant that they
had seen his son Faiz Meeran in company of Muhammad Nawaz (appellant) lessee of garden
along with two unknown persons inside garden. Thereupon, complainant along with said
witnesses went to garden, where lessee (appellant) was not found. They remained searching
for complainant's son in garden and adjacent fields for whole night. At 07:30 A.M. (next
morning), dead body of complainant's son was found in square No.55 Kila No.6 in a
sugarcane crop. Jugular vein was cut and dead body was smeared in blood.
 3. Post mortem examination on the dead body was conducted by PW-11 Doctor Abdul
Shakoor Gill, Senior Medical Officer, Rural Health Centre Khurrianwala on 19.11.2009.
Following injuries were found by Medical Officer on the dead body:--
Injury No.1: An incised wound 7 CM x 3-1/2 CM x cutting skin muscles, blood vessels,
trachea, esophagus and upto cervical vertebrae. Major blood vessels cut on front of
neck 5 CM below chin, more on left side. Hyoid bone is also injured.
Injury No.2: Multiple abrasions in area 3 CM x 2 CM on left cheek.
Injury No.3: Multiple abrasions in area 4 CM x 2-1/2 CM, on right mandible.
Injury No.4: A contusion mark 2 CM x 1 CM on front of right leg middle part.
Cause of death according to Medical Officer was injury No.1, which was indicted by sharp
edged weapon. Remaining injuries were caused by blunt source. Time elapsed between
injuries and death was about half an hour and between injury and post mortem examination
was about 26 to 28 hours. Three anal swabs were obtained by Medical Officer for
transmission to office of Chemical Examiner, Lahore.
4. On completion of investigation, appellant was sent up to face trial. He was charge
sheeted by learned trial Court for the offence under section 302, P.P.C. but he pleaded
innocence and claimed for trial. Prosecution in order to prove the charge, examined as many
as thirteen witnesses. After completing prosecution's evidence, statement of appellant under
section 342, Cr.P.C. was recorded. He again pleaded innocence. However, he did not opt to
produce any evidence in his defence. Appellant also did not opt to appear as his own witness
under section 340(2), Cr.P.C. On conclusion of trial, appellant was convicted and sentenced
as mentioned in opening paragraph of this judgment. Hence, this appeal.
5. I have heard learned counsel for the parties and learned Deputy Prosecutor General at
length and perused the record with their able assistance.
6. As per FIR, on 18.11.2009 at 04:30 P.M., complainant in presence of Muhammad
Yousaf and Muhammad Tanvir (since given up PWs) asked his son Muhammad Faiz Meeran
aged about eight-nine years to bring back his goat from garden. When his son did not return
for a long time, complainant and said witnesses started searching for him. In the meantime,
Naveed Ahmad (PW-8) and Akhtar Ali (PW-7) told the complainant that they had seen
Muhammad Faiz Meeran (deceased) inside the garden with Muhammad Nawaz (appellant)
and two unknown persons. Complainant went in the garden and adjacent crops along with
said Naveed Ahmad and Akhtar Ali for search of his son for whole night but Nawaz who was
lessee of the garden, was not found there. On net morning i.e. 19.11.2009, dead body of
complainant's son was found in square No.55 Kila No.6 in sugarcane crop.
7. Reading the crime report, there is no eye-witness of the murder. Prosecution's reliance
in this case, mainly, is on last seen evidence. Muhammad Faiz Meeran deceased went in the
garden on asking of his father PW-6/complainant at 04:30 P.M. in order to bring back his
goat. PW-6/complainant is witness only to that extent and he himself did not see the
deceased in company of appellant. PW-7 and PW-8 claimed that Muhammad Fiaz Meeran
was seen by them in company of appellant and two unknown persons inside the garden at
04:30/04:45 P.M. In their statements PW-7 and PW-8 claimed that they told said fact to the
complainant. However, in cross-examination both the said witnesses stated that they did not
go to appellant's house when they were searching for complainant's son. Both the witnesses
admitted that they did not go to appellant's house during search, so their conduct was not in
line with behaviour which should be of a man of ordinary prudence in the given situation.
Moreover, both the said witnesses are in contradiction with each other on material points. In
cross-examination both the PWs stated that they did not know the appellant. Both of them
claimed that appellant's name was told to them by Safdar, owner of the garden. PW-7 Akhtar
Ali was unable to disclose as to when and where name of appellant was told to him by
Safdar. Also pertinent to note here is that PW-7 in cross-examination claimed that name of
appellant was not told to complainant by him rather the same was narrated by Safdar at the
time of writing of application. But at the same time, he was unable to tell as to where
application for registration of FIR was written. Same was position of PW-8 Naveed in this
respect. PW-7 asserted in cross-examination that sniffing dogs were hired. However, PW-8
stated that dogs were not hired. PW-7 also stated that Zulfiqar, cousin of PW-8 was made to
sit in Police Station by Investigating Officer as suspect. He stated that position with one
Imran was also same. PW-8 in cross-examination denied the suggestion that his cousin
Zulfiqar was made to sit in Police Station. For the above reasons, factum of last seen as
deposed by PW-7 and PW-8 is a highly doubtful affair, which is not worthy of credence.
8. Recovery of a sickle was shown against appellant during investigation as the weapon
used for cutting jugular vein of the minor. Medical Officer noted a sharp edged weapon
injury (injury No.1) on neck of deceased, which was the cause of death. However, in cross-
examination Medical Officer PW-11 stated that injury No.1 could not be result of sickle cut,
as injury No.1 was a regular cut but sickle results in irregular cut. In such backdrop, medical
and recovery evidence which even otherwise are corroboratory in nature, are of no help to
prosecution specially when main reliance of prosecution i.e. last seen has been discarded as
discussed in preceding paragraph.
9. For the above reasons, prosecution had failed to prove charge against appellant beyond
any reasonable doubt. As such, finding of conviction and sentence recorded against appellant
in the impugned judgment are not sustainable, which are set aside allowing, this criminal
appeal. Resultantly, appellant is acquitted of the charge. He is in jail. He be released
forthwith if not required in any other case.
SA/M-8/L Appeal allowed.