Kh. Muhammad Sharif, J.--This judgment will dispose of Criminal Appeal No, 437 of 2000 filed by Muhammad Pervaiz appellant, who was convicted and sentenced by learned Sessions Judge, Islamabad, vide his judgment dated 19.10.2000 as under:-- Under Section 302 PPC, Death and to pay Rs, 50,000/- as compensation to the legal heirs of the deceased or in default six months RI. Under Section 324 PPC, Ten years RI and a fine of Rs, 25,000/- or in default six months RI. Fine if realized, half of it was ordered to be paid to injured Inam-ur-Rehman.
Benefit of Section 382-B Cr.P.C. was also granted to the appellant.
Murder Reference No, 722 of 2000 for confirmation of death sentence of the appellant or otherwise and Crl. Revision No, 170 of 2000 filed by Zameer Ahmad against Muhammad Pervaiz appellant for enhancement of compensation shall also be disposed of through this single judgment.
2. Brief facts of the case, as narrated by Zameer Ahmad complainant are that on 29.8.1998 he alongwith brother Muhammad Yasin (deceased) and son Ina m-ur-Rehman were proceeding to their lands when at about 7 a.m. they reached near the house of Muhammad Ayub, they found that Muhammad Pervaiz accused was standing there by way-laying them while armed with 30 bore pistol. On seeing the complainant party, he raised a Lalkara to the effect that he is going to teach a lesson to the complainant part for not giving the possession of the land. He fired a direct shot with his pistol at Muhammad Yasin, which hit him on the left side of his chest. Muhammad Yasin received serious injury and fell on the ground. The complainant and his son stepped forward whereupon the accused fired further shots on them and one of the fire shot hit Inam-ur-Rehman, son of the complainant on right side of chest, who also sustained injury and fell down. The complainant raised alarm, Which attracted Jehangir, Nasir Manzoor and Mehmood Akhtar. After the occurrence, accused fled away from the spot. The complainant and other put both the injured in the vehicle and brought them to the Hospital. Brother of the complainant Muhammad Yasin succumbed to the injured while reaching the Hospital.
The motive behind the occurrence was a dispute between the parties over the possession of land.
The accused wanted to take forcibly possession of land from the complainant but the deceased had obtained a stay order from the Court. On his failure to take possession of land, the accused committed the murder of Muhammad Yasin and attempted on the life of Inam-urRehman.
3. After registration of the formal FIR investigation of the case was taken over by Azhar Hussain SI.
He went to the place of occurrence, prepared inquest report Ex. PK, prepared rough site-plan Ex. PJ, collected blood-stained earth and took into possession four empties from the spot vide memo vide memo Ex. PF, then, arrested the accused on 31.8.1998 and got recovered 30-bore pistol. After completion of the remaining formal investigation, the accused was challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 15 witnesses in all, thereafter, learned DDA tendered in evidence report of Chemical Examiner Ex.PL, that of Serologist Ex. PM and closed the prosecution case, then, the statement of the accused u/S. 342 Cr.P.C. as recorded, in which he pleaded innocence.
5. After having read the entire prosecution evidence, statement of the appellant recorded u/S. 342 Cr.P.C. and other relevant material available on record, learned counsel for the appellant submits that there were strained relations between the parties, that complainant was confronted about the number of Khasra, which he claimed to have mentioned in the FIR, that neither any measurement of the land nor any place of that land was mentioned in the FIR by the complainant, that complainant party failed to produce any documentary evidence regarding the stay order passed by Civil Court in favour of Yasin deceased, that occurrence had taken place in some other way and not that way, which the prosecution wants to believe, that nobody was sent to the Police Station immediately just after the occurrence, that Police Station falls in'the way while going to Polly Clinic Hospital, that nobody took the complaint from the hospital to the Police Station for registration of formal FIR.
6. Learned counsel further submitted that prosecution failed to bring on record original M.L.R. of injured Inam-ur-Rehman PW.6 and it is a suspicious matter, that Dr. Muhammad Arshad Khan PW.2 at the time of post-mortem examination of the deceased had observed that there was bandage on the wound of the deceased and several injections were also given to the deceased but the prosecution failed to explain anything in this regard. Adds that Rigormortis was fully and completely developed and in fact occurrence had not taken place at 7.00 a.m. on 29.8.1998 but preceding night to the alleged occurrence. Further argued that occurrence had taken place in the summer season, the Rigormortis starts developing after the death within 2/3 hours and completely developed within 6 to 9 hours, that the time of occurrence, which the prosecution has given is not believable in the above said circumstances, that when the doctor was examined he stated that possibility of the occurrence having taking place preceding night to the alleged occurrence could not be ruled out, that mystery remains about the first medicolegal examination of injured Inam-ur- Rehman PW.6, that no blood was found where Inam-ur-Rehman PW.6 had fallen on the ground, that in fact it was the complainant, who went towards the accused and provoked him, that four crime empties were recovered from the spot and licensed pistol of the appellant was also taken into possession but report in this regard is negative one. At this stage, on the query of the Court that where is the report of firearm expert, learned counsel for the appellant in reply stated that the prosecution has concealed the said report? Learned counsel further argued that according to the prosecution case four empties and licensed pistol of the appellant was sent to firearm expert but report is not there and the same has been concealed by the prosecution in a malicious manner, that led of the bullet was recovered from the dead body of the deceased but the same was not sent to Fire Arm Expert. Further submits that it is not necessary that an injured witness will always tell a truth and in this regard, he has relied upon 1981 SCM R 795 and 1994 P.Cr.L.J.
170. Adds that, eyewitnesses have not attested the inquest report, neither there is any time of occurrence in Column No, 3 of the inquest report and even in the Column No, 4 of the inquest report, names of the eyewitnesses, who could easily identify the dead body, are not mentioned and in this regard, he has relied upon NLR 1991 Criminal 199. Further adds that despite the repeated orders passed by the learned trial Court, the prosecution with ulterior motive never produced Azhar Hussain SI/I.O., who was available in Islamabad, at the time of trial and in this regard, reliance is placed upon 2000 PCr.L.J. 1241. Learned counsel lastly submits that prosecution has failed to prove its case against the appellant beyond any shadow of doubt and he is entitled to acquittal.
7. On the other hand, learned counsel for the complainant submits that it is a broad day light murder, that it is a case of single accused, promptly lodged FIR, that star witness of the prosecution in this case is Inam-ur-Rehman injured PW.6, that there was no previous background of enmity between the parties, that it is not a case of substitution because substitution is a rare phenomenon, that as far as motive is concerned, not a single question was put to any of the PWs in this regard, that there was no strained relations between the parties, that there was no question of false implication in this case, that there are three eyewitness and all are independent, that it was the month of summer and peoples of the village take their breakfast early in the morning because they have to go their fields, that as far as, Investigating Officer is concerned, he has gone to Bosnia and there are reports of the effect that there is no likelihood of his arrival to Pakistan in near future, so prosecution was forced to give him up in the above said circumstances. He further submits that in this regard secondary evidence was produced through Abdur Rauf Kiani ASI PW.13, then there is report of Muhammad Hussain SI to the effect that he has gone to Bosnia and not in Pakistan, that it was a case of way laid and the shot was fired on the most vital part of the body of the deceased, that learned defence counsel while arguing the case in the last has raised the plea of provocation very reluctantly. He supports the judgment of the learned trial Court.
8. Learned Assistant Advocate General has referred to Ex. PB and in this regard he has relied upon 2005 SCM R 417. Adds that there was no need of producing the report of Fire Arm Expert though it is present on record because prosecution had proved its case through medical evidence and ocular account. He has relied upon 2004 SCMR 173.
9. At this stage, learned counsel for the complainant though completed his arguments but submits that accused had himself produced his licensed pistol, so there was no question of matching of crime empties recovered from the spot with the said pistol.
10. We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. Before we a give our reasons, we are mindful of the fact that it is a case of single accused " and substitution is a rare phenomenon but the fact remains that according to the prosecution occurrence had taken place on 29.8.1997 at 7.00 a.m., matter was reported to the police on the same day at 9.20 a.m. at Polly Clinic Hospital, Islamabad and the formal FIR as recorded on the same day at 9.45 a.m., deceased in this case is Yasin brother of Zameer Ahmad complainant while there is an injured PW, namely, Inam-ur-Rehman, who is son of Zameer Ahmad complainant. Dr. Muhammad Arshad Khan PW.2 had conducted post-mortem examination on the dead body of the deceased on the same day, at 12.45 p.m., the duration given by the doctor between injury and death was 2/3 hours and between death and post-mortem was within 24 hours, which casts doubt on the prosecution story regarding date and time of occurrence and the said doctor also observed that Rigormortis was fully and completely developed coupled with the fact that in the original post-mortem report in column of death neither the doctor has given date nor the time, it means that till then neither the FIR as registered nor the time of death was available, this fact also finds support from Column No, 3 of the inquest report, in which no time of death has been mentioned although according to the prosecution case the said inquest report was prepared after the completion of complaint by the SI/IO and sending the same to the Police Station for registration of formal FIR, despite that no time has been given in Column No, 3 of the inquest report.
It is the case of the prosecution that Inam-ur-Rehman son of the complainant was also injured but prosecution failed to bring on record his medicolegal report. Dr. Muhammad Arshad Khan PW.2 had also observed at the time of post-mortem examination that there was bandage on the wound of the deceased and so many injections were given to him but prosecution failed to explain that from where these bandages were applied and who was the person who had applied those injection. Occurrence in this case had taken place in the year 1998, trial concluded in the year 2000 and now we are going in the year 2005 but till today no medicolegal report of Inam-ur-Rehman son of the complainant, was produced by the complainant even no application was either submitted by the prosecution before the learned trial Court in this regard or any application before this Court for producing additional evidence as required u/S. 426 Cr.P.C. but only a certificate Ex. PB has been placed on record issued by Dr. Muhammad Arshad Khan PW.2, who had conducted post- mortem examination on the dead body of the deceased but the said doctor did not utter a single word in whole of his statement in this regard. Dr. Muhammad Arif Malik was produced as PW.9 before the learned trial Court, according to his statement he had medically checked Inam-ur- Rehman and in this regard he was called on 16.9.1998 when Inam-ur-Rehman injured was admitted in Hamid Medical Centre Asghar Mall Chowk Rawalpindi. It has been observed by the learned trial Court "learned counsel for prosecution wants to bring on record two certificates issued by Hamid Medical Centre, which are not prepared nor issued by the witness, therefore, the same cannot be admitted into evidence". Dr. Muhammad Arif Malik PW.9 had admitted that he had not brought any record with him on that date. The said doctor had also admitted that he had asked the patient as to where he was admitted and what treatment was given to him. Moreover, four crime empties were recovered from the spot, those were sent to Fire Arm Expert, then the licensed pistol of the appellant was also taken into possession and that was also sent to Fire Arm Expert but in our considered view prosecution with malafide intention and ulterior motive did not produce that report. Learned defence counsel during the course of arguments wanted to show us Photostate copy of that report but we refused to see it. When we were going through the record, we saw that there is an un-exhibited report of Fire Arm Expert at page 77 on the record, which now we place on record for the perusal as "Mark-A", which is negative one The prosecution never produced Azhar Hussain SI/IO in this case and case of the prosecution was that he had gone to Bosnia and there was no likelihood of his arrival in Pakistan in near future. In this regard prosecution has produced 2/3 witnesses while on the other hand, learned defence counsel had submitted an application to the learned trial Court on 19.6.2000 and in this regard interim order passed by the learned trial Court is at page 10 for summoning of the said SI/IO. On 21.6.2000 the learned trial Court had passed a very detailed order, in which he came to the conclusion that "From the reports, it is clear that with malafide intention, service of SI/IO has not been effected. There is strong apprehension that Local Police has deliberately avoided to effect service for the reasons best known to them, thus order of the Court has been violated. The matter is therefore, referred to SSP Islamabad, who shall make an inquiry and take departmental/disciplinary action against the official responsible in this behalf' but the said inquiry report has not seen the day till today.
11. In the instant case, the motive behind the occurrence was that Yasin deceased had got a stay order against the appellant but no copy of any Civil Suit or any stay order passed by the Civil Court as produced by the prosecution before the learned trial Court. As we have mentioned above that substitution is a rare phenomenon but there are also exceptions to the rules and this is a case in which we are not satisfied with the prosecution story. The law of the land is that prosecution has to prove its case against an accused person beyond any shadow of doubt. Taking into consideration the above submissions of the parties and the reasons given by us, we are of the view that prosecution has not been able to prove its case against the appellant beyond, any shadow of doubt. Resultantly, this appeal filed .by the appellant is accepted. The conviction and sentence recorded against the appellant by the learned trial Court is set-aside. Death sentence awarded to the appellant by the learned trial Court is not confirmed and murder reference is replied in negative. He is in jail and he shall be released forthwith if not required to be detained in any other case.
As far as, Criminal Revision No 170 of 2000 filed by Zameer Ahmad against Muhammad Pervaiz appellant for the enhancement of compensation is concerned, that's dismissed.