KH. MUHAMMAD SHARIF, J. - The appellant Shahid Mahmood alongwith his brother Shahid Mahmood and father Faizal Haq was tried by the learned Sessions Judge, Jhelum, in case F.I.R No. 114 registered at Police Station Chotala on 23.9.2000 for offences under Sections 302/324/34, P.P.C.
Vide judgment dated 3.4.2001, the learned Trial Court, while acquitting the aforesaid co- accused, convicted the appellant for offence under Section 302, P.P.C, and sentenced him to death plus payment Of Rs, 1,0, 000/- as compensation to the legal heirs of the deceased.
2. The appellant Shahid Mahmood had challenged his conviction and sentence through the instant appeal, while Muhammad Ifzal/complainant has brought Criminal Revision . No. 74 of 2001 seeking enhancement of amount of compensation imposed upon the appellant. The complainant has also filed Criminal Appeal Na 189 of 2001 questioning the acquittal of Tariq Mahmood and Fazal Haq, co- accused, Murder Reference No. 353 of 2001 seeking confirmation or otherwise of death penalty inflicted upon Shahid Mahmood appellant has also been placed before us. All these matters are being decided through this consolidated judgment.
3. The brief facts of the case per complaint Ex.PF recorded by Khadim Hussain, S.I./PW.12, at the instance of Muhammad Afzaal, complainant/PW-7, which based the registration of formal F.I.R.
Ex.PF/1, are that the complainant had two elder brothers Muhammad Iqbal and Muhammad Kamal.
Muhammad Kamal had been , working in Saudi Arabia for the last fifteen years, while Muhammad Iqbal had been working in Dubai for the last twenty three years. Muhammad Kamal and Muhammad Iqbal came to the village on 27.8.2000 and 6.9.2000 respectively on receipt of information about the death of their niece. On 23.9.2000 at about 4.30 p.m. Muhammad Kama!
Went to the fields to bring fodder fon his cattle. The complainant and his brother Muhammad Iqbal were present out of heir house near tractor trolley. At about 5.45. p.m. When Muhammad Kamal with a bundle of fodder on his head on his way back to the house reached the common Banna of the lands of Muhammad Aslam and Muhammad Sultan, meanwhile complainant's paternal uncle Fazal Haq (empty handed, alongwith his sons Tariq Mahmood armed with rifle and Shahid Mahmood armed with 12-bore gun, came there. Fazal Haq raised Lalkara that Muhammad Kamal had come to their land, so he should be finished, whereupon Tariq Mahmood fired a straight shot from his rifle, hitting Muhammad Kamal on the left side of the chest, in view whereof Muhammad Kamal got injured and fell down. The fire shot by Shahid Mahmood upon the complainant and Muhammad Iqbal missed the target. On catching sight of the people coming towards the scene of occurrence, the accused, while making aerial firing,-fled away from the spot. Muhammad Kamal succumbed to the injuries on the spot.
The motive behind the occurrence was stated to be litigation with regard to landed property between the parties.
4. On 23.9.2000, on receipt of information about the occurrence, Khadim Hussain, S.I./PW.12, went to the spot; recorded the statement of Muhammad Afzaal/complainant Ex.PF. The Investigating Officer (I.O.) prepared inquest report Ex.PB and injury statement Ex.PC of the deceased and sent the dead-body to the mortuary for post-mortem statement (Mark "A") of the complainant. He secured blood-stained earth from the spot and sealed the same into parcel vide memo. Ex.PH. He collected four empty cartridges P.9/1-4 and another empty cartridge of 12-bore gun from the roof of the house of Fazal Haq through memo, Ex.PJ. All the accused were arrested on 27.9.2000. On 29.9.2000, Tariq Mahmood acquitted accused, while in custody, led tb the recovery of 222-bore rifle P.13 which was taken into possession vide memo. Ex.PL. On 1.10.^000, Should Mahmood-appellant, while in custody, led to the recovery of 12-bore gun P.11 which was taken into possession vide memo. Ex.PJ.
After completion of investigation, the accused were sent up to face trial.
5. To substantiate its version at the trial prosecution produced twelve witnesses and after tendering in evidence the reports of Chemical Examiner Ex.PN, the Serologist Ex.PN/1 and Forensic Science Laboratory Ex.PO closed its side. All the accused in their statements recorded under Section 342, Cr.P.C, pleaded their innocence and false implication. Shahid Mahmood-appellant in reply to question No. 12 made a detailed statement, which was also adopted by his acquitted co-accused, and the same, for facility of reference, is reproduced here-in-below:- "All the PWs are closely related inter-se, they are interested being inimical so they have deposed and supported the false version put by the complainant, In fact complainant party was restraining me and my other family members to use a passage in the land called "Sowanjanwali". On the day of occurrence, I had gone to cultivate the land of one Muhammad Amin as I am having a tractor for this purpose. When I used the said passage, the deceased Muhammad Kamal alongwith his brother his brothers Ifzal and Iqbal restrained me, abused. Me and quarreled with me and also threatened me that if I again used this passage, I will be murdered and when I returned back using the same passage, all the three being armed with fire-arms, attacked me, fired at me, when I rushed to my house, they chased me while they were firing. Hearing the noise of firing by Ifzal, Iqbal and deceased, my brother Tariq went oh the roof top of . Our house. He fired in the air to ward off the assailants. I also went on the roof top. I also fired in the air with the same object i.e. To ward off the assailant. My father did not participate in all this. During the firing of Ifzal, Iqbal and Kamal deceased, it was the fire shot of Ifzal PW which had actually hit the deceased and I never aimed at him nor any of my fire shot hit -him. The complainant well aware of the fact that his fire shot had actually hit the deceased, firstly avoided trying to suppress this fact to mention the deceased being hit by 12-bore shot and alleged that my co-accused Tariq had fired with pacci rifle which had hit the deceased. After the post-mortem, when complainant party came to know that doctor and extracted a 12-bore pellet from the dead-body which was positively mentioned in P.M. Report, they after in connivance with police changed the entire story particularly the allegation pertaining to fire shot hitting the deceased. I am innocent. Complainant party twisted the actual , facts and got a false case registered against me, my brother and father."
6. Learned counsel for the appellant in support of this appeal submits that the parties were so closely related to each other that there could not have been any mistaken identity on the part of the complainant party, that in the first information report, it was stated that Tariq Mahmood, who was armed with rifle, caused an injury on the person of Muhammad Iqbal deceased which hit on his chest, while Shahid Mahmood, who was armed with 12 bore gun, fired at the witnesses, the fire did not hit any body. The learned counsel submits that after post-mortem examination a supplementary statement was concocted by the complainant in connivance with the police and it was stated that is fact, it was Shahid Mahmood appellant, who was armed with 12- bore gun, and had fired a shot which hit on .The chest of the deceased. According to the learned counsel, this is a glaring conflict between the ocular account and the medical evidence coupled with-the factum of changing the accused who fired the shot on the deceased. The learned counsel submits that as regards positive report of the Fire-Arms Expert, that does not affect the merits of the case so far as defence version is concerned, because not only the name of the accused, who caused fatal injury, has been changed but also the weapon which was kept and used has been changed.;
7. Mr. Tanveer Iqbal, learned Assistant Advocate- General has referred to the statement of Shahid Mahmood appellant recorded under Section 342, Cr.P.C., especially answer to question No. 12 at page 60 of the Paper Book, to contend that perusal of the same shows that he has admitted the presence of the eye-witnesses, his on presence and the presence of his co-accused who have been acquitted by the learned Trial Court. Further submits that the positive report of the Fire-Arms Expert also supports the prosecution case.
8. Malik Anwar-ul-Haq, Advocate, for the complainant submits that Fazal Haq acquitted accused is real brother of father of the deceased; that during cross- examination it was brought on record that both the brothers, i. e. That appellant and his acquitted co-accused ^Tariq Mahmood, had fired. The learned counsel submits that this fact clears the confession mentioned in the first information report; that the time, date and place of occurrence is also admitted by both the accused coupled with the factum of motive. The learned counsel submits that from both, the appellant and acquitted co-accused, the weapons have been recovered and the report of the Fire-Arms Expert is positive and there is no ambiguity in the said report. The learned counsel submits that the case set up by the appellant in his statement recorded under Section 342, Cr.P.C, is totally different to the cross-examination done on the eyewitnesses; that the version that the deceased died due to the firing of his brother was brought on record after five months and this version was never taken by the appellant before that. The learned counsel has placed reliance- upon the cases of Abdul Waheed v. The State (2003 SCM R 668), Arshad AH alias Achhu v. The State (2002 SCM R 1806) and Mst. Dur Naz (widow) and another v. Yousuf and another (PLJ 2006 SC 34).
Supports the judgment passed by the learned Trial Court.
9. We have heard the learned counsel for the parties at a great length "and have also gone through the record of the case.
10. For the just decision of case the relationship between the parties is very necessary which is given below. Muhammad Afzaal-cpmplainant and his brother Muhammad Iqbal, the eye- witnesses, are real brothers of Muhammad Kamal-deceased, while they are real cousins inter se of the appellant Shahid Mahmood and acquitted accused Tariq Mehmood and their father Fazal Haq (acquitted accused) is real uncle of both these eye-witnesses; so one cannot say that there could have been any mistaken identity on the part of the eye-witnesses. The only point which agitates our mind is whether the eye-witnesses were present at the spot and had given true picture of the occurrence or not. For that we may reproduce some lines from the F.I.R., which was got recorded by Muhammad Afzaal, complainant/PW.7, hereunder:- [(urdu text MISS)] But thereafter when copy of the post-mortem report was received, it was found that in fact, the only fatal injury on the person of the deceased was with 12-bore gun and not with rifle, then in connivance with the police in order to fill-up the lacuna in the prosecution case, not only the weapon was changed but also the name of the accused was changed, In the F.I.R, the fatal shot was attributed. To Tariq Mahmood but before the Trial Court it was stated that in fact, it was Shahid Mahmood who was armed with 12-bore gun and had fired a shot. The occurrence had taken place at 5.45 pm on 23.9.2000, i.e. Before the sun set. One can say that it was a broad day-light occurrence, In this state of affairs, there should out have been any mistake. Even the F.I.R, was recorded at the spot. Alongwith the appellant his brother Tariq Mahmood and his father were also involved. Both have been acquitted. Though appeal against their acquittal has been filed but no notice has been issued therein and it was ordered to be heard alongwith the appeal of the present appellant. There is glaring conflict between the ocular account and the medical evidence which cannot be reconciled without a pinch of salt. The learned Assistant Advocate-General has drawn our attention to the statement of the appellant recorded under Section 342, Cr.P.C, at page 60 of the Paper Book. We have gone through the same with his assistance, In that statement, a case of cross firing was set up by the appellant coupled with the fact that the stance of the appellant was that due to firing of his. On brother Muhammad Kamal met his death. Although neither the complainant party nor the appellant had come with truth but we are sure in our mind that if the eye-witnesses had been present at the spot, they would not have made such a big blunder. Even KARWAI police shows that after recording the complaint, it was read over to the complainant, who after finding to same to be correct signed the same, It has come to our notice that in cases like the instant one, supplementary statements are recorded in order to fill-up the lacunas in the prosecution case. If we allow such type of supplementary statements to be permissible in the prosecution case, it will open a Pandora box. The law of the land and which is available from the centuries is that the benefit of doubt always goes to the accused and not the prosecution.
11. Now coming to the precedents cited by the learned counsel for the complainant; we have gone through the same and found that the facts and circumstances thereof are distinguishable from that of the present case. So some are not applicable to the case in hand.
12. As far as positive report of the Fire-arms Expert is concerned, it is commonly known that the complainant and the police in connivance with each in order to send the accused to gallows can also obtain positive report from the Fire-arms Expert by manoeuvring the empties and such possibility in the instant case cannot be ruled out.
13. Taking into consideration the above-said facts and circumstances, we are of the considered opinion that the case of the prosecution against the appellant is of doubtful nature. While granting the benefit of doubt to the appellant, we allow this appeal and set aside the conviction and sentence of the appellant. He is acquitted of all the charges. He shall be released forthwith if not required in any other case. The death sentence is NOT confirmed. The Murder Reference is answered in the negative.
14. For the reasons recorded in this judgment, Criminal Appeal No. 189 of 2001 against the acquittal of Tariq Mahmood and Fazal Haq and Criminal Revision No. 74 of 2001 seeking enhancement of amount of compensation against Shahid Mahmood convict-appellant are dismissed.