PLJ 2021 Cr.C. (Note) 4
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b)/34, 324/149 & 148--Conviction & sentence--Challenge to--Dark night occurrence--Testimony of witnesses--Recovery of hatchet without blood stain--No worth while evidence--Acquittal of co-accuseds--Benefit of doubt--Acquittal of--Occurrence, as alleged by complainant and PW took place at about 9.00 p.m. on 25.3.2000, near shrine of Baba Kerianwala where an electric bulb had 'lit up' entire area--The presence of lit electric bulb at spot was not believed by this Court nor by apex Court, besides it had not been taken into possession by Investigating Officer SI (Retd./PW-9) during course of investigation--It figured in testimony of complainant/PW-2 that shrine was at a distance of 20/25 karams i.e. 120/137 feet from place of occurrence--He admitted it as correct that shrine was not fitted With any electricity-connection or meter--The Investigating Officer, SI (Retd.)/P.W.9 deposed that Darbar Baba Kerianwala was not fitted with any electric-meter for supply of electricity light to area thereof--He, however volunteered, that a wire .of electricity had been obtained from haveli of accused persons for supply of electricity to shrine--He also stated that in between shrine and place of occurrence, sheesham trees were grown--The growth of these trees in said area had been denied by complainant in his testimony but his denial to this effect was neutralized, when his attention was drawn to his previous statement, recorded on 11.1.2002 by trial Court, during trial of acquitted co-accused of appellant, wherein he had admitted it as such--Investigating officer/P.W.9 stated that bulb lit on shrine was supplied power from haveli/house of accused--The appellant or his acquitted co-accused were not fool-hardies, that they would light up place of occurrence before they committed crime--It looked that occurrence taken place in intense darkness, making it literally impossible for complainant side to identify assailants--So, to overcome this natural phenomenon, they introduced factum of availability of electric light on place of occurrence at crucial hour--Complainant made some dishonest improvements in his testimony wherefore his attention was drawn to his previous statement as contained in complaint and it transpired that improved upon depositions were not a part thereof--He was also confronted with his previous testimony and it transpired that he had not ascribed role of hatchet-blow on arm of deceased, against appellant--The statement of complainant is an amalgamation of exaggerative depositions, dishonest improvements, a couple of frank admissions, as to existence of previous enmity between parties and some preposterous rhetorics--The other eye-witness PW.3 did more damage to prosecution case than injecting something good into it--He turned out to be inimical towards appellant when he admitted in his statement that he was a prosecution witness in case F.I.R. No. 485 which was registered against appellant in year 1997 or 1998--He also stated that accused (appellant) was a PW in a murder case having been registered against him and other relatives, qua, murder of and his father--He admitted it as correct that his brother was killed in a police encounter in year 2001 along with his companion--He could not deny fact that complainant party was daggers drawn with Waryam etc. and they remained tagged in criminal litigation for years--The testimony of this witness is worth rejecting--It hardly gathers any evidentiary value, having allegedly been recovered about seven years after murder of deceased--Investigating officer, inspector P.W.8 frankly admitted in his testimony that hatchet (PI) was not blood-stained and such sort of hatchets were easily available with common villagers--Prosecution termed appellant an absconder and spoke loudly on this aspect of case but failed to produce any worthwhile evidence in this context--SI (Retd.)/P.W.9 .obtained non-bailable warrant, of arrest and proclamation of appellant but he could not establish their effective execution either by 85/C PW (not produced) or by himself--Record does not reveal as to why constable had been withheld by prosecution--Proclamation which was allegedly executed by P.W.9 himself, did not bear any report of process server on it--Rear side of proclamation is absolutely blank--Non-bailable warrant of arrest of appellant Exh.PR bears on its reverse, a report of Lal Khan constable, but it has not been testified by any local inhabitant--Investigating officer/P.W.9 showed his knowledge of law--When he stated that stipulated period if or declaring an accused a proclaimed offender is thirty (30) days after issuance of proclamation against-him--He however did not hesitate in saying that he declared appellant a proclaimed offender just two days after issuance of proclamation against him and he submitted report under section 512, Cr.P.C. before trial Court accordingly--He did not feel sheepish when he said that proclamation was not backed by any report of process server--In such a situation, it cannot be believed that appellant remained an absconder or he had been declared a proclaimed offender in this case lawfully--It can safely be held that prosecution had badly failed in bringing home guilt of the, appellant beyond any reasonable shadow of doubt--The impugned judgment appears to have been passed by trial Court, probably bearing in mind and talcing into account (hat Crl. A. No. 22/2008 (supra) was still pending adjudication (in year 2016), otherwise, it might not have been a different judgment, than one passed by High Court on 16.3.2006 in Crl. A. No. 646/2002--The impugned judgment, in given circumstances, is liable to be annulled, which is accordingly done--Conviction and sentence of appellant is set-aside and he is acquitted of charge.
[Para 13, 14, 15, 16, 17 & 19] A, B, C, D, E & F
Mian Abdul Quddous, Advocate, assisted by Malik Akhtar Saeed Bhatti, Advocate for Appellant.
Rana Tassawar Ali Khan, Deputy Prosecutor General Punjab for State.
Mr. Akhtar Hussain Bhatti, Advocate for Complainant.
Date of hearing: 15.6.2015.
PLJ 2021 Cr.C. (Note) 4
[Lahore High Court, Lahore]
Present: Shahid Hameed Dar, J.
versus
STATE--Respondent
Crl. A. No. 489 of 2010, decided on 15.6.2015.
Judgment
This Criminal Appeal No. 489 of 2010 and Criminal Revision No. 292 of 2010 arise from the judgment of the learned trial Court (Additional Sessions Judge, Okara), passed by it on 25.1.2010. whereby it convicted Gulzar (appellant) under section 302(b)/34, 324/149, 148 P.P.C. and sentenced him as under:
i) Under section 302(b)/34 P.P.C.: to imprisonment for life with the direction to pay a sum of Rs. 1,00,000/- to the legal heirs of the deceased as compensation under Section 544-A Cr.P.C, in default whereof to further undergo simple imprisonment for six months.
ii) Under section 324/149 P.P.C.: to rigorous imprisonment for five years with fine of Rs. 30,000/- for launching murderous assault on Muhammad Ali injured (P.W.2).
iii) Under section 148 P.P.C.: to rigorous imprisonment for two year.
He was extended the benefit of section 382-B Cr.P.C. with the observation that his sentences would run concurrently.
2. The occurrence took place, at 9.00 p.m. on 25.3.2000, in the area of village Mangan, situated at a distance of eighteen kilometers towards north from. Police Station Chuchak (Okara). It was reported by Muhammad Ali (complainant/P.W.2') to Muhammad Abdullah SI (P.W.9) at bridge of canal Joyia, at 12.05 a.m. 26.3.2000, who reduced into writing complaint (Exh.PB) and despatched it to Police Station through Imam Ali 344/C for registration of case, on the basis whereof Muhammad Shaban AS1/DO drew up formal FIR (Exh.PB/1), at 12.20 a.m., the same day.
3. As far as the prosecution case is concerned, it has been alleged by the complainant. (P.W.2) in F.I.R. (Exh.PB/1) that he along with his paternal nephew Ghulam Ali, Shaukat Ali, Ghafar Ali and Mazhar Ali Raja, moved to their village, after attending Panchayat in Gujjar Colony, at about 9.00 p.m., on 25.3.2000; he and nephew while chatting with each other led their companions by some paces; when they reached near-shrine of Baba Kerianwala, they found it lit by an electric-light; suddenly a group of armed persons including Gulzar Ahmad (appellant), armed with hatchet, Munawar Hussain with rifle, Mulazam Hussain with Sota, Abid alias Babu with Sota, Zakir Hussain with Sota, Farooq with carbine, Shah Khalid with Sota and Muhammad Aslam, armed with Sota emerged from a nearby cluster of trees and attacked them; Gulzar Ahmad accused (appellant) gave a hatchet blow on the head of Ghulam, Ali, due to which he tell down; Munawar Hussain and Farooq made firing at fallen Ghulam Ali and injured his arms and left calf; the Sota blow of Mulazam Hussain broke his (complainant) left wrist; whereafter, Abid, Mulazam Hussain, Zakir Hussain, Shah Khalid and Muhammad Aslam Kumhar recklessly beat him and Ghulam Ali by means of their weapons, due to which many a their bones were broken; Haji Shaukat Ali (P.W.3), Mazhar Ali and Ghafar Ali ran from the spot and raised alarm, which attracted the co-villagers to the crime-scene the accused fled the spot after committing the crime; his nephew Ghulam Ali succumbed to the injuries at the spot; this occurrence was witnessed by Haji Shaukat Ali, Mazhar Ali and Ghafar Ali.
The motive behind the occurrence was that Gulzar Ahmad (appellant) had previously got registered a criminal case against the complainant party, due to which above-said accused had murdered Ghulam Ali. Leaving the other relatives at the spot near the dead body, the complainant along with Muhammad Tufail and Muhammad Ashraf moved towards the hospital for medical aid and he, on the way, came across Muhammad Abdullah SI (P.W.9), whom he reported the matter for registration of F.I.R. against the accused.
4. Dr. Muhammad Nuzhat Kazmi, medical officer (late) medically examined Muhammad Ali (complainant/P.W.2), at 1.30 a.m. on 26.3.2000. He vide medico-legal report Exh.PZ, found following injuries on his person:
1. There was fracture of left radius and ulna near the wrist and with irregular bruises on medial side of the wrist. X.Ray was advised. There was dislocation seen on the wrist and crepitus found.
2. There was oedema with swelling of the right deltoid region with irregular reddish discolouration. Complained of pain on palpation.
3. A six inch long bruise transversely situated on the lateral side of upper part of thigh.
4. A transversely situated 3 inch long bruise on the left side of chest with local tenderness.
5. Complained of pain in the whole body.
5. Dr. Ghulam Hussain Alvi (P.W.7) performed autopsy on the dead body of Ghulam Ali, at 9.00 a.m. on 26.3.2000. He vide post-mortem examination report (Exh.PF) observed following injuries thereon:
1. Incised wound 8 cm x 2 cm into bone cut on left side of head, 15 cm above from left ear.
2. Multiple contusions 33 cm x 5 cm on back of right chest.
3. Multiple contusions 25 cm x 20 cm on right buttock.
4. Multiple contusions 20 cm x 7 cm on buttock, left side.
5. Multiple contusions 30 cm x 13 cm on back of right thigh.
6. Multiple contusions 27 cm x 12 cm on back of left thigh.
7. A lacerated wound 21 cm x 1 cm x bone fractured on the back of right elbow, margins were inverted.
8. Incised wound 1½ cm x 1½ cm on the back and lower part of left upper arm.
9. A lacerated wound 3 cm x 2 cm x bone fractured (tibia) on inner and lower part of left leg. Margins were inverted.
10. A lacerated wound ½ cm x % cm on front and lower part of right leg.
The medical officer opined that death in this case was due to haemorrhage and shock caused by Injuries No. 1, 7 & 9, which, in ordinary course of nature were sufficient to cause death. The probable time that elapsed between injuries and death was “about half (½) an hour” and that elapsed between death and post-mortem examination was about twelve hours.
6. Initially, Muhammad Abdullah SI (P.W.9) carried, out the investigation. He prepared injury statement of Muhammad Ali (complainant/P.W.2) and sent him to hospital for medical examination with Bashir Ahmad 824/C; took into possession blood-stained earth and two crime empties, one of .12-bore (P8) and the other of .7MM (P9) vide seizur memo. Exh.PC; prepared inquest report (Exh.PH) of the dead body of Ghulam Ali and despatched it to the mortuary for autopsy under the escort of Qasim Ali 244/C (P.W.6); prepared visual site-plan (Exh.PJ) of the place of occurrence; he got prepared site-plan in-scale in duplicate (Exh.PE & Exh.PE/1) from Obaidullah draftsman (P.W.4); he arrested Muhammad Hussain, Muhammad Aslam, Shah Khalid, Muhammad Farooq, Abid Hussain, Zahid Hussain accused on 16.4.2000 and Mulazam Hussain (all since acquitted) on 19.4.2000; he got declared Gulzar (appellant) an absconder and submitted report under Section 512, Cr.P.C. against him. Thereafter, investigation was entrusted to Allah Ditta, Inspector (P.W.8), who arrested the appellant, Gulzar Ahmad on 28.9.2007 and interrogated him; during the course of physical remand, he led to the recovery of hatchet (P1), which was seized vide memo. Exh.PA. On completion of investigation, he prepared report under section 173 Cr.P.C. and submitted it before the learned trial Court for trial of the accused in accordance with the law.
7. To prove its case, the prosecution produced eleven witnesses. Dr. Muhammad Hassan (P.W.11) adduced secondary evidence to prove medico- legal report (Exh.PZ) of Muhammad Ali (complainant/P.W.2), originally prepared by Dr. Muhammad Nuzhat Kazmi, who had died by then. Dr. Ghulam Hussain Alvi (P.W.7) proved the post-mortem examination report (Exh.PF & Ekh.PF/1) of the deceased. Muhammad Ali, injured (complainant/P.W.2) and Shaukat Ali (P.W.3) furnished the ocular account of the occurrence. They claimed to have seen the appellant Gulzar, joined by their co-accused causing injuries to the complainant and the deceased. The complainant (P.W.2) also supported the motive as alleged in the F.I.R. Muhammad Abdullah SI(P.W.9) and Allah Ditta, Inspector (P.W.8) are the Investigating Officers, who rendered details of the investigation conducted by them. Rest of the evidence is more or less of formal nature.
8. When examined under Section 342, Cr.P.C, Gulzar (appellant) denied all the incriminating circumstances and in reply to question No. 9, “Why this case against you and why the PWs have deposed against you?” he stated as under:
“It is a false case, all the PWs are related interse and to the deceased and they have made false statements against me and my co-accused (since acquitted) due to their close relationship and enmity with us. In fact, it was a blind murder and un-witnessed occurrence and deceased was all alone when he received injuries with blunt weapons only. There was no electric light or any other source of identification available at the place of occurrence. The deceased did not sustain any fire arm injury or sharp edged injury in the disinternment of Ghulam Ali deceased for its re-post-mortem examination by board of doctors which was allowed by the District Magistrate Okara. The complainant party apprehend their false version by the fire arm and sharp edge injuries on the person of the deceased, opposed the request for re-postmortem examination and filed revision petition as well as writ petition in the Hon'ble Lahore High Court, Lahore and in the August Supreme Court of Pakistan. The alleged petition of the complainant was also dismissed by the Hon'ble Lahore High Court, Lahore. Muhammad Ali complainant of this case also did not sustain any injury in this occurrence being not present at the spot at the time of occurrence and he had obtained fictitious medico legal report in order to import himself to be an eye-witness of the occurrence. The present occurrence took place in the darkness of the night, much after 9.00 p.m. and the complainant party got registered this false case against me and my other co-accused (since acquitted) after making prima facie injuries on the following day on the night of the occurrence.
My co-accused namely Zakir Hussain, Shah Khalid, Muhammad Aslam, Munawar Hussain, Muhammad Farooq and Mulazam Hussain (all acquitted) had already face trial in this case and they have been sentenced to imprisonment for life from the Court of Additional Sessions Judge, Okara. All the above named my co-accused have been acquitted in this case by the Hon'ble Lahore High Court, Lahore by disbelieving the same prosecution witnesses appeared during the trial of this case and the said judgment is intact.”
He did not opt to make statement on oath under Section 340(2), Cr.P.C., but he adduced evidence in defence. He tendered certified copy of the judgment of this Court dated 16.3.2006, passed in Criminal Appeal No. 646/2002, titled Zakir Hussain etc. v. State (Exh.DB); also furnished attested copies of the F.I.Rs. (Exh.DC to DH, Exh.DK to Exh.DZ & Exh.DAA to Exh.DUU) and closed the defence evidence.
On culmination of trial, the learned trial Court pronounced verdict of guilt against the appellant, in mentioned terms, hence, the instant appeal.
9. Learned counsel for the appellant has submitted that it is a case of no evidence against the appellant and he has been convicted/sentenced by the learned trial Court merely on conjectures and surmises; seven co-accused Zakir Hussain, Shah Khalid, Abid Hussain alias Babu, Munawar Hussain, Mulazim Hussain, Muhammad Farooq and Muhammad Aslam whose case was identical to that of the appellant, were held guilty vide judgment dated 14.3.2002 by the learned trial Court, but they were acquitted of the charge by this Court vide judgment dated 16.3.2006 passed in Crl. A. No. 646/2002; further submitted that Muhammad Ali (complainant) filed Crl. A. No. 22/2008 against the judgment of this Court, which was dismissed by the Honourable Supreme Court of Pakistan on 23.1.2014 with some crucial observations, which are equally applicable to the appellant's fate; the prosecution failed to bring on the record any evidence in support of their claim that the appellant remained an absconder for about seven years; the impugned judgment is not based on any plausible material, therefore, it may be set-aside and appellant may be acquitted of the charge.
10. Learned, counsel for the complainant, on the other hand, has a opposed this appeal by contending that the appellant's case is easily distinguishable from the case of his co-accused, therefore, he cannot claim any benefit of the previous judgments passed by the learned trial Court as well as by this Court; the observations passed by the Honourable Supreme Court of Pakistan in Crl. A. No. 22/2008, which had been instituted by the complainant may not be resolved in favour of the appellant because of differentiation of facts, including the factum of his abscondence; the ocular account has been furnished by the injured-complainant (P.W.2) and Shaukat Ali (P.W.3), coupled with the medical evidence tendered by Dr. Ghulam Hussain Alvi (P.W.7), Dr. Tahir Anwar (P.W. 10) & Dr. Muhammad Hassan (P.W.11) easily connect the appellant with the crime, therefore, his appeal may be dismissed and sentence awarded to him by the learned trial Court may be upheld.
11. Learned Deputy Prosecutor General Punjab did not, however look much enthusiastic about the submissions, made by the learned counsel for the complainant and he contended that the observations given by the Honourable Supreme Court of Pakistan in Crl. A. No. 22/2008 would equally be applicable to the appellant's case and it may be difficult to sustain the impugned judgment.
12. After hearing the learned counsel for the parties and perusing the record with the assistance of the learned counsel for the parties, it is straightaway observed that the learned trial Court may not have delivered the impugned judgment in the manner, as given by it, had Crl. A. No. 22/2008 filed by Muhammad Ali (complainant) against the judgment of this Court been decided by the apex Court before 25.1.2010, the date of the impugned judgment. The very basis of the prosecution case stood uprooted when Crl. A. No. 646/2002, filed by seven co-accused of the appellant, namely Zakir Hussain, Shah Khalid, Abid Hussain alias Babu, Munawar Hussain, Mulazim Hussain, Muhammad Farooq and Muhammad Aslam against judgment dated 14.3.2002 of the learned, trial Court, had been accepted and all of them were acquitted of the charge by this Court on 16.3.2006. The factum of wide-ranging enmity of the complainant party, the alleged occurrence having taken place in the pitched darkness, the dubious identification of the assailants, unconvincing ocular account and inherently defective evidence were the factors, which caused collapse of the prosecution case when it was previously dealt with by this Court while deciding Crl. A. No. 646/2002 (supra). Some of the acquitted co-accused had been assigned the role of causing specific injuries to the deceased and the injured witness Muhammad Ali complainant by the same prosecution witnesses, who deposed against the appellant during his trial before the learned trial Court. Each and every bit of their depositions made against the appellant, also figured in their previously recorded evidence, having been disbelieved and rejected by this Court as well as by the Honourable Supreme Court of Pakistan, so it would be pretty difficult, rather impossible to draw any other conclusion/ result than already derived.
13. The occurrence, as alleged by Muhammad Ali (complainant) and Shaukat Ali (PW.3) took place at about 9.00 p.m. on 25.3.2000, near the shrine of Baba Kerianwala where an electric bulb had 'lit up' the entire area. The presence of lit electric bulb at the spot was not believed by this Court nor by the apex Court, besides it had not been taken into possession by the Investigating Officer Muhammad Abdullah SI (Retd./PW-9) during the course of investigation. It figured in the testimony of Muhammad Ali (complainant/PW-2) that the shrine was at a distance of 20/25 karams i.e. 120/137 feet from the place of occurrence. He admitted it as correct that the shrine was not fitted with any electricity-connection or meter. The Investigating Officer, Muhammad Abdullah SI (Retd.)/P.W.9 deposed that Darbar Baba Kerianwala was not fitted with any electric-meter for supply of electricity light to the area thereof. He, however volunteered, that a wire of electricity had been obtained from the haveli of the accused persons for supply of electricity to the shrine. He also stated that in between shrine and the place of occurrence, sheesham trees were grown. The growth of these trees in the said area had been denied by the complainant in his testimony but his denial to this effect was neutralized, when his attention was drawn to his previous statement, recorded on 11.1.2002 by the learned trial Court, during the trial of acquitted co-accused of the appellant, wherein he had admitted it as such.
14. The Investigating Officer/P.W.9 stated that the bulb, lit on the shrine was supplied power from the haveli/house of the accused. The appellant or his acquitted co-accused were not the fool-hardies, that they would light up the place of occurrence before they committed the crime. It looked that occurrence had taken place in the intense darkness, making it literally impossible for the complainant side to identify the assailants. So, to overcome this natural phenomenon, they introduced the factum of availability of electric light on the place of occurrence at the crucial hour.
15. The complainant made some dishonest improvements in his testimony wherefore his attention was drawn to his previous statement as contained in complaint Exh.PB and it transpired that the improved upon depositions were not a part thereof. He was also confronted with his previous testimony Exh.DA and it transpired that he had not ascribed the role of hatchet-blow on the arm of the deceased, against the appellant. The statement of the complainant is an amalgamation of exaggerative depositions, dishonest improvements, a couple of frank admissions as to existence of previous enmity between the parties and some preposterous rhetorics. The other eye-witness Shaukat Ali (PW.3) did more damage to the prosecution case than injecting something good into it. He turned out to be inimical towards the appellant when he admitted in his statement that he was a prosecution witness in case F.I.R. No. 485 (Exh.DC), which was registered against Gulzar Ahmad (appellant) in year 1997 or 1998. He also stated that Gulzar Ahmad accused (appellant) was a PW in a murder case having been registered against him and the other relatives, qua the murder of Bashir Ahmad and his father Qudrat Ullah. He admitted it as correct that his brother Naseer was killed in a police encounter in year 2001 along with his companion Noor Muhammad. He could not deny the fact that the complainant party was daggers drawn with Waryam etc. and they remained tagged in criminal litigation for years. The testimony of this witness is worth rejecting. Done accordingly.
16. So far as recovery of hatchet (P1) on 2.10.2007 vide seizure memo. Exh.PA, at the instance of the appellant is concerned, it hardly gathers any evidentiary value, having allegedly been recovered about seven years after the murder of Ghulam Ali (deceased). The Investigating Officer, inspector Allah-Ditta (P.W.8) frankly admitted in his testimony that hatchet (P1) was not blood-stained and such sort of hatchets were easily available with the common villagers. It needs not to be discussed further.
17. The prosecution termed the appellant an absconder and spoke loudly on this aspect of the case but failed to produce any worthwhile evidence in this context. Muhammad Abdullah SI (Retd.)/P.W.9 obtained non-bailable warrant of arrest Exh.PR and proclamation Exh.PT of the appellant but he could not establish their effective execution either by Lal Khan 85/C PW (not produced) or by himself. The record does not reveal as to why Lal Khan constable had been withheld by the prosecution. The proclamation Exh.PT, which was allegedly executed by P.W.9 himself, did not bear any report of the process server on it. The rear side of the proclamation is absolutely blank. The non bailable warrant of arrest of the appellant Exh.PR bears on its reverse, a report of Lal Khan constable, but it has not been testified by any local inhabitant. The Investigating Officer/P.W.9 showed his knowledge of law when he stated that stipulated period for declaring an accused a proclaimed offender is thirty (30) days after issuance of the proclamation against him. He however did not hesitate in saying that he declared Gulzar Ahmad (appellant) a proclaimed offender just two days after issuance of proclamation against him and he submitted report under Section 512, Cr.P.C. before the trial Court accordingly. He did not feel sheepish when he said that the proclamation Exh.PT was not backed by any report of the process server. In such a situation, it cannot be believed that the appellant remained an absconder or he had been declared a proclaimed offender in this case lawfully.
18. It is the proper stage now to revert to the judgment dated 23.01.2014 of the Honourable Supreme Court of Pakistan whereby Crl. A. No. 22/2008 (supra) was dismissed. The observations contained therein would be equally important herein, which are reproduced hereunder:
“The critical issue involved in the case was that of identification of the culprits. The incident in issue had taken place at 09.00 p.m. and according to the FIR as well as the site-plan of the place of occurrence there was an electric bulb available at a distance of about 114 feet from the place of occurrence which was statedly alight at that time. It had, however, transpired at a subsequent stage that there was no electricity connection available for lighting of that bulb and, thus, the prosecution's case on the issue of identification of the culprits had collapsed. Apart from that on the merits of the case the learned Judge-in-Chamber of the Lahore High Court, Lahore had discussed every piece of evidence available on the record and had then concluded that the eye-witnesses did not inspire confidence, there was no proof produced regarding the motive and the alleged recoveries were legally inconsequential. In this backdrop by extending the benefit of doubt Respondents No. 5 to 7 had been acquitted of the charge. We have undertaken an independent reassessment and reappraisal of the evidence and have found that each and every consideration weighing with the learned Judge-in-Chamber of the Lahore High Court, Lahore for acquitting the said respondents was borne out from the record. No misreading or non-reading of the evidence on the part of the Lahore High Court, Lahore has been pointed out before us. This appeal is, therefore, dismissed.”
19. The appellant's case, besides the discussion on merits made hereinabove, is unequivocally benefitted by the aforesaid judgment/ observations of the Honourable Supreme Court of Pakistan. It can safely be held that the prosecution had badly failed in bringing home the guilt of the, appellant beyond any reasonable shadow of doubt. The impugned judgment appears to have been passed by the learned trial Court, probably bearing in mind and taking into account that Crl. A. No. 22/2008 (supra) was still pending adjudication (in year 2010), otherwise, it might not have been a different judgment, than the one passed by this Court on 16.3.2006 in Crl. A. No. 646/2002. The impugned judgment, in the given circumstances, is liable to be annulled, which is accordingly done. The conviction and sentence of the appellant is set-aside and he is acquitted of the charge. He shall be released forthwith from the prison, if not required in any other case., The appeal stands accepted.
20. Insofar as Criminal Revision No. 292 of 2010 filed by the complainant for enhancement of sentence of the appellant is concerned, it, being meritless, stands dismissed.
(M.M.R.) Appeal accepted
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