Muhammad Ashraf Bhatti, J.--Saifullah, the appellant has challenged his conviction and sentence through the above cited Criminal Appeal No, 82 of 2003. He along with five others was tried by the learned Sessions Judge, Bahawalpur in case FIR No, 243 dated 20.7.2000, Police Station Saddar Hasilpur, District Bahawalpur under Sections 364/302/148/149 PPC for the murder of Noor Ahmed (brother of the complainant). Along with this appeal the learned trial Court has also sent a Murder Reference No, 23 of 2003 for confirmation of death sentence awarded to Saifullah, appellant. We propose to dispose of both these matters through this single judgment.
2. After evaluating the evidence brought on record, the learned Sessions Judge, Bahawalpur vide his judgment dated 7.4.2003 came to the conclusion that the prosecution established its case beyond reasonable doubt against the appellant. Accordingly, he was convicted under Section 302(b) PPC sentenced to death. He was also held liable to pay Rs, 1,00,000/- as compensation to the legal heirs of the deceased in terms of Section 544-A, Cr.P.C. and in default thereof to undergo further imprisonment for six months. The remaining accused, namely, Abdullah, Shabbir Ahmed alias Bashir Ahmed, Muhammad Hanif, Muhammad Jamil and Munir Ahmed were acquitted of the charges against, giving them benefit of doubt.
3. Regarding brief facts of the case, it may be stated that occurrence took place in the moon-lit between 19/20.7.2000 at about 2.00 a.m. (night) at a distance of 12 K.M. from police station Saddar Hasilpur. PW-7 Khadim Hussain (brother of the deceased) reported the matter to the police two hours after the occurrence on the same night at about 4.00 a.m. through written application Exh.
PG. According to him his deceased brother Noor Ahmed, Khadim Hussain son of Muhammad Ali and Doctor Ahsan S/o Muhammad Ali were keeping watch on the water-melon (field) of Khadim Hussain near his house. At about 2.00 a.m., (night) Muhammad Hanif S/o Fateh Muhammad armed with .7MM rifle, Saifullah (the appellant) armed with 'Hatchet', Munir Ahmed armed with 'Sota.% Shabbir Ahmed alias Bashir Ahmed armed with 'Wahoula' and Muhammad Jamil armed with .12 bore gun came there and inquired from Noor Ahmed about him (complainant). Noor Ahmed replied that he was not present there whereupon all the accused forcibly abducted Noor Ahmed and took him to their house. Aforesaid Khadim Hussain and Doctor Ahsan told him that above mentioned accused persons had abducted his brother Noor Ahmed and taken him to their house.
The complainant along with Doctor Ahsan and Khadim Hussain reached the house of accused Muhammad Hanif but they started firing from the front. In their view Saifullah and Muhammad Hanif accused gave 'Hatchet' blows on the head of Noor Ahmed while the other accused were catching hold of him who succumbed to the injuries at the spot.
4. Motive behind the occurrence as disclosed in the complaint was that accused persons suspected that complainant Khadim Hussain had illicit relations with sister of Saifullah, appellant which was wrong and that his brother Noor Ahmed was done to death for no fault of him.
5. Syed Alamdar Hussain, lnspector/SHO/(PW-9), the I.O. on the basis of the application (Exh.PG) recorded the formal FIR (Exh. PG/1), reached the spot, place of occurrence and dead body of Noor Ahmed, deceased; prepared the injury statement of the deceased Exh. PC; inquest report Exh. PD and then sent the dead body under the escort of PW-5 Muhammad Idrees, Constable for post mortem examination. Thereafter he collected the blood stained earth vide memo Exh.PJ; took into possession three empties of .12 bore gun (P4 to P6) and one live bullet of .7MM rifle P7 from the spot vide recovery memo Exh.PH; prepared the rough site plan (Exh. PR) of the place of occurrence. After the post mortem examination Muhammad Idrees, Constable produced before him the last worn clothes of the deceased, Shirt P1, Shalwar P2 and Bunyan P3, all blood stained vide memo Exh.PF. He arrested accused Muhammad Hanif, Abdullah, Saifullah (appellant) and Muhammad Jamil on 22.7.2000 whereas the remaining accused, namely, Shahbir Ahmed and Munir Ahmed were arrested on 23.7.2000. Exh. PE and Exh.PE/1 ate the scaled site plans of the place of occurrence.
6. On 29.7.2000 while in police custody accused Shabbir Ahmed got recovered blood stained "Wahoula" P13 from the store of his house. Exh. P0/1 is the place of recovery. On the same day Saifullah, appellant got recovered blood stained 'Hatchet' P10 from his residential room under iron box Exh.PL/1 is the place of recovery. Similarly, Muhammad Hanif, accused also got recovered his licensed .7MM rifle P11 along with live bullet from his residential room. Exh.PL/1 is the place of recovery.
7. After completing the necessary police papers, the I.O. got submitted the challan in the Court concerned where the aforesaid persons were formally charge sheeted on 31.3.2001 to which they pleaded not guilty and claimed trial.
8. At the trial Dr. Muhammad Younis Javed (PW-1), M.O. THQ Hospital, Hasilpur, provided the medical evidence. He conducted the autopsy on the person of Noor Ahmed, deceased and found the following injury:--
(1) "An incised wound measuring about 15cm x 10cm x brain matter deep semi circular in shape present transversely in middle of mid parietal region at the level of ears. Skull was fractured. Brain matter was coming out of injury"
After thorough external and internal post mortem examination of dead body, he opined that Injury No, 1 caused damage to the brain matter which was sufficient to cause death in ordinary course of nature which was ante mortem in nature caused, by sharp edged weapon. Exh.PA is the report.of MLR whereas Exh.PB/1 is the sketch of injuries.
9. In order to prove its case the prosecution mainly relied upon the eye witnesses i,e, PW-7 Khadim Hussain S/o Muhammad Sadiq, complainant and PW-8 Khadim Hussain S/o Muhammad Ali who provided the ocular account reiterating the contents of the FIR (Exh.PG/1). PW-8 Khadim Hussain is also the recovery witness. PW-6 Muhammad Siddique identified the dead body of the deceased.
PW-9 Syed Alamdar Hussain, Inspector conducted the investigation of the case as aforementioned. The remaining, witnesses are more or less of formal nature and so need not be mentioned.
10.After tendering reports of Chemical Examiner, Exh.PT, Exh-PU and those of Serologist and Forensic Science Laboratory Exh.PV, Exh.PW and Exh.PX, the prosecution closed its evidence.
11. The accused-appellants were examined under Section 342 Cr.P.C. who denied the very factum of having committed the offences under reference. Statedly, that they had been falsely involved in this case and that none of them were present at the spot. The appellants, however, did not opt to record their statements on oath in terms of Section 340(2) Cr.P.C. in dis-proof of the allegations against them.
12. The learned trial Court after hearing the arguments of the learned counsel for the parties, recorded the conviction and awarded sentence to the Saifullah, appellant as mentioned in the opening paragraph of this judgment and acquitted rest of the persons facing trial with him.
13. We have heard the learned counsel for the appellant as well as the learned Additional Prosecutor General appearing, for the State in the light of motive as set up by the prosecution, ocular account, medical evidence and recoveries effected from the appellant and then sentence passed on the basis thereof by the learned trial Court.
14. Our reading of the prosecution case gives us the impression that both the eye witnesses i,e, PW- 7 Khadim Hussain' S/o Muhammad Sadiq/complainant and PW-8 Khadim Hussain S/o Muhammad Ali are not truthful witnesses. They have tried to make dishonest improvements in their statements at the trial. The learned counsel for the appellant has very rightly pointed out that the learned trial Court has erred in law when it acquitted all the accused on the charges of abduction on the one hand but found Saifullah, appellant alone responsible for the murder on the other despite the fact that co-accused Muhammad Hanif whose role was shown to be identical to that of the appellant was too acquitted. Having said that his conclusion is justified that if abduction has not been proved then surely, the whole prosecution case falls to the grounds as to the place of occurrence as also the presence of said PWs there. In this regard has also referred to medical evidence furnished by PW-1, Dr. Muhammad Younis Javed who found only one injury on the head of the deceased whereas in the FIR (Exh. PG/1) as well as at the trial both the eye witnesses deposed that Muhammad Hanif and Saifullah, appellant gave hatchet blows on the head of the deceased.
The complainant, however, made twist to his statement and tried to improve it that Muhammad Hanif did not give any 'Hatchet' blow on the head of the deceased.
15. Now, if we look at the site plans, rough as well as scaled one we are unable to find out as to under what circumstances both the brothers i,e, PW-8 Khadim Hussain and Doctor Ahsan (given up PW) happened to be present with Noor Ahmed, deceased in the wee hours by the night of occurrence when there alleged tenant Noor Ahmed was already there taking care of their water- melon field. So their presence at the relevant time seems to be shaky, unbelievable and doubtful in the given circumstances of the case. At the most they can be termed as chance witnesses whose statements cannot be relied upon. It is also not understandable as to their allegedly going to the house of the complainant to tell him about the occurrence and then having, chased the accused persons upto the place of occurrence, All this is nothing but a concocted story because the distance from point 3 of the site plan (Exh.PE) wherefrom Noor Ahmed, deceased was allegedly taken away forcibly is shown at a distance of 138 Karam upto the place where dead body was lying. So, therefore, it is not believable that in the meantime the accused persons had been unable to commit the offence of murder could afford to wait for no obvious reasons. Secondly there is no doubt that blood stained earth was taken from two spots, one from the cotton crop field in the `Baghicha' and the other from near the house of Muhammad Hanif where the sleeper P9 and Bamboo Stick P8 were also lying and taken into possession by the local police. In this scenario the statements of the eye witnesses are not only inconsistent with each other but also are self destructive in nature. Had the deceased been given injuries in their presence there was no reason of the presence of the blood in the cotton crop. It is also in their statements that co-accused Muhammad Jamil and Abdullah made fired with their respective weapons of offence at them from the front but amazingly none of the PWs was injured. Contrary to this PW-8 Khadim Hussain made another funny turn to the facts when he stated that they had gone away from the spot i,e, cotton crop from where Noor Ahmed, deceased was forcibly taken away by the accused party to the house of Muhammad Hanif to inform the complainant and then when they came back they saw the accused persons including the present appellant along with the deceased in the cotton field. In this regard his statement is needed to be reproduced:-- ----About 5/6 karams away from the house of the accused we saw the accused along with said Noor Ahmed in the cotton field. Saifullah inflicted a hatchet blows on the head of Noor Ahmed while the other accused were catching hold of him. Thereafter Jamil accused made a fire shot with a gun towards us. We the PWs ran away therefrom after the said fire. After Noor Ahmed had received the blow he had fallen on the ground. In the morning when the police came to the place of occurrence, we the PWs reached there again on the spot. We saw in the morning that the dead body of Noor Ahmed was lying in front of the house of Muhammad Hanif, accused"
The above statement gives the impression that the appellant inflicted more than one hatchet blows on the head of the deceased while the other had caught hold of him. This is totally contrary to the prosecution case as reflected in the FIR. There is also no mention of Muhammad Jamil making firing with his .12 bore gun towards the PWs.
16. The learned counsel for the appellant has also drawn our attention to the recovery of Wahoula'
P13 which was found blood stained as reported by the Chemical Examiner vide its report Exh.PT.
Astonishingly there is no mention of Wahoula' in the whole occurrence. It was made of iron and had sharp edges. The Additional Prosecutor General appearing on behalf of the State has been unable to explain this lapse on the part of the prosecution. So, it appears that there was apparently two weapons used or it is also possible that no 'Hatchet' was used and it was Wahoula' with which injury was caused on the head of Noor Ahmed but the prosecution has miserably failed to abridge this lacuna.
17. Even the motive set up by the prosecution appears to be far fetched just to involve the appellant and his companions. Admittedly, the sleeping place of the complainant on the night of occurrence was two acres away from the cotton crop. Had the appellant and his companions any motive to murder him, being residents of the same area they could have gone to his house along with Noor Ahmed, deceased to trace him when they all had allegedly replanted to murder him having motive too against him alone and not Noor Muhammad Ahmed, deceased.
18. Further, if case of the prosecution is put in juxta position with that of defence the lacunas pointed out by the learned counsel for the appellant we have no other option but to conclude that none of the PWs was present during the time of occurrence. It was a night occurrence and apparently remained unseen. While assessing statements of eye witnesses we find the same as incredible, shaky, conflicting and inspiring no confidence but are full of dishonest improvements given no edge to the prosecution case; rather have damaged it in as much as that recoveries effected in this case, are rendered useless as the ocular account is not found believable.
19. We find that the evidence produced by the prosecution has failed to pin point the exact place of occurrence. There is no explanation as to how come Wahoula' was too found blood stained and taken into possession during the course of investigation. There is also no explanation as to how come human blood was present at two spots, as mentioned above. Therefore, in view of the above discussion, there are number of discrepancies in the prosecution case which take us to an irresistible conclusion that the prosecution has miserably failed to make a case against the appellant beyond reasonable doubt. It is not necessary that there should be a number of circumstances creating doubt. Even a single circumstance that creates reasonable doubt in the mind of a man of ordinary prudence about guilt of the accused benefit of that must go to him.
Similar is the position of the case in hand. We have been found more than one such instances that have shattered the case of the prosecution as highlighted above and so benefit thereof must go to the appellant. Reliance is placed on Tariq Pervez Vs The State (1995 SCM R 1345) and Riaz Masih alias Mithu Vs The State (1995 SCM R 1730).
20. Resultantly, the Criminal Appeal No, 82 of 2003 filed by Saifullah, appellant is accepted. He is acquitted of the charges against him. The judgment of the learned trial Court is set aside. The appellant is directed to be released from jail forthwith, if not required in any other case.
21. In the light of the above, the Murder Reference No, 23 of 2003 is answered in the NEGATIVE and the death sentence awarded to Saifullah, appellant is NOT CONFIRMED.