Muhammad. Anwar Bhaur, J.--Iftikhar Ahmad alias Khari and Intizar Ahmad alias Tani sons of Mushtaq Ahmad were tried by learned Additional Sessions Judge, Gujranwala for the murder of Ghulam Mustafa deceased, son of Muhammad Siddique-complainant in case F.I.R. No, 316, dated 1.12.2000, registered under Sections 302/34/109 P.P.C. with Police Station Kat Ladha, District Gujranwala. The learned trial Judge by virtue of his judgment dated 28.6.2003 found Iftikhar Ahmad alias Khari guilty of the said charge, convicted him under Section 302(b) P.P.C. and sentenced him to death with further direction to pay a sum of Rs, 1,00,000/- as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C. or in default of payment thereof to undergo simple imprisonment for six months. The said learned Judge by giving benefit of doubt to Intizar Ahmad alias Tani, acquitted him of the charge.
2. The convict, namely, Iftikhar Ahmad alias Khari (hereinafter to be called as the appellant) by filing Criminal Appeal No, 387/J of 2003 has called in question the conviction and sentence awarded to him through the impugned judgment, whereas the learned Additional Sessions Judge has sent Murder Reference No, 615 of 2003 seeking confirmation or otherwise of the death sentence awarded to the appellant. Muhammad Siddique-complainant has also approached this Court by filing a Criminal Revision (No, 853 of 2003) and has sought enhancement in the compensation amount. We propose to dispose of all these matters together through this single judgment
3. Occurrence in the present case had taken place on 1.12.2000 at 7.00 p.m., in village Hamboki, situate at distance of four miles from Police Station Rot Ladha, district Gujranwala and the matter was reported by Muhammad Siddique, father of Ghulam Mustafa deceased, by making an application (Exh.PD) to Muhammad Yaqoob, ASI (P.W. 11) of the said police station on the same day at 8.36 p.m., when he was available in village Hamboki on patrol duty, who despatched the same to the police station through Shaukat Ali, constable (P.W.5) for formal registration F.I.R. On receipt thereof, Amjad Ali, MHC (P.W.1) drew up (Exh.PPW.13/1) without any addition or alteration on his part on the same day at 9.05 p.m.
4. Prosecution story as enunciated by Muhammad Siddique complainant in his application (Exh.PD) is that he is resident of village Hamboki; on the fateful evening, he along with his son Ghulam Mustafa, Muhammad Asghar son of Nazir Hussain and Muhammad Nawaz son of Khurshid were sitting in the house of Ghulam Mustafa; at about 7.00 p.m., his son Ghulam Mustafa went out in the street by opening the gate to urinate; electric bulb was, on; when his son Ghulam Mustafa after easing himself reached near the gate, the appellant arrived there and asked Ghulam Mustafa how he is and within their view fired a shot through his pistol, which struck Ghulam Mustafa on left side of his chest, who on receipt of injury fell down in front of the gate; when the complainant along with his companions stepped forward, the appellant decamped from the scene while making aerial firing.
The reason behind the outbreak of the incident was that Ghulam Mustafa had abducted paternal cousin (Chacha Zad sister) of the appellant about 22/23 years prior to the instant occurrence and had contracted marriage with her; the appellant having nourished grudge fired at Ghulam Mustafa with a view to kill him; the complainant along with his comrades shifted Ghulam Mustafa in injured condition to Civil Hospital, Qila Dedar Singh for treatment. Initially, F.I.R. was registered under Section 324 P.P.C. and on the demise of Ghulam Mustafa, Sections 302/109 P.P.C. was added to the list of offences.
5. Succeeding registration of the case, investigation into the crime commenced and after completion thereof, the appellant along with his co-accused was challaned to Court.
6. On receipt of challan, the learned trial Judge completed all legal formalities and framed charge, which was put to the appellant and his co-accused, who pleaded not guilty and claimed to be tried. The prosecution in order to prove its case got examined as many as fourteen witnesses, namely, Amjad Ali, constable (P.W.1), Muhammad Hanif, constable (P.W.2), Manzoor Ahmad Bhatti, Draftsman (P.W.3), Mahfooz Ahmad, constable (P.W.4), Shaukat Ali, constable (P.W.5), Munawar Hussain (P.W.6), Irshad Ahmad (P.W.7), Muhammad Asghar (P.W.8), Dr. Iftikhar Hussain (P.W.9), Dr. Capt. Muhammad Munir Hussain (P.W.10), Muhammad Yaqoob, ASI (P.W. 11), Muhammad Akram (P.W.12), Muhammad Aslam, SI (P.W.13) and Muhammad Rafique Khan, SI (P.W.14). Learned prosecutor after giving up remaining witnesses being unnecessary and after tendering in evidence reports of the Chemical Examiner, Serologist and Forensic Science Laboratory (Exhs.PM, PN & PP), respectively, closed the prosecution case.
7. After closure of prosecution evidence, all the incriminating material was put to the accused under Section 342 Cr.P.C. to seek their explanation with regard to the accusations brought against them and also to know their version. They claimed their absolute innocence in the matter and alleged their false involvement in the case due to enmity. However, the appellant while answering question "Why this case and PWs have deposed against you?", stated as under:-- "The PWs are interested as much as they are not only related interse to the deceased, but are inimical towards me and my family. Farkhanda Shaheen was my paternal cousin who was abducted by the deceased 22 years ago and married. Farkhanda Shaheen was murdered by the hands of real brother of Farkhanda Shaheen named Anwar Saeed. The present complainant got lodged the F.I.R. against Anwar Saeed. Later on compromise was effected between the parties and both parties are living in village and attending the funeral ceremony and even marriage of each other. Muhammad Asghar PW was married with Shahnaz Kausar resident of village Jamshed Pur who has blood enmity in the village with Basharat Party. Basharat Party has suspicion that relative of Ghulam Mustafa deceased after committing the murder got shelter in village Hamboke in the supervision of Ghulam Mustafa deceased. Basharat Party committed the murder. They are also absconders, therefore, complainant party did not get lodge F.I.R. against Basharat Party but I was involved in this case suspiciously. PWs are not witness of this occurrence. Due to relationship they have deposed falsely. I am innocent."
Both the accused neither opted to make statements on oath under Section 340(2) Cr.P.C. in disproof of the allegations levelled against them nor opted to adduce evidence in defence.
8. Upon culmination of trial, the learned trial Judge proceeded to pronounce verdict of guilt against the appellant and punished him as aforementioned.
9. Learned counsel for the appellant in support of this appeal contends that this case was got registered on the basis of written application (Exh.PD) submitted by Muhammad Siddique, father of Ghulam Mustafa deceased, wherein besides himself, he also mentioned Muhammad Nawaz and Muhammad Asghar as eye-witnesses of the occurrence, but Muhammad Siddique-complainant and Muhammad Nawaz did not appear as they were murdered during the course of trial, and only evidence available against the appellant on the record is that of Muhammad Asghar (P.W.8); that presence. of said Muhammad Asghar (P.W.8) at the venue of crime becomes doubtful because of the following reasons:-
(a) that had he been present there, he would have taken Ghulam Mustafa, who was injured and subsequently died, to 'the hospital, but he did not make any such attempt because as per medico- legal report (Exh.PE), the injured was brought by Ghulam Murtaza, his brother, who was not even cited as an eye-witness of the occurrence; (b)that Muhammad Asghar (P.W.8) in his statement recorded under Section 161 Cr.P.C. (Exh.DA) had stated that the deceased had received one fires shot on the left side of kis chest, whereas as per medico-legal report (Exh.PE) and post-mortem report (Exh.PD), the deceased received three fire shots of different dimensions and the injuries as per those reports are located at Hypochondrial region and not on the left side of chest, as stated by this witness; (c)that had Muhammad Asghar (P.W.8) been present at the spot, he should have given the details of the fire shots; (d)that when Muhammad Asghar (P.W.8) appeared before the Court, he tried to make improvements by stating that the appellant fired three shots and he was duly confronted with his previous statement as permissible under Article 140 of Qanun-e-Shahadat Order, 1984; (e)that if the story of the prosecution is accepted as narrated by this witness before the Court that shows that minimum four shots were fired at the spot, but no empty was recovered from the spot despite the fact that the place of occurrence is a Pakka street, which negates the statement of this witness;
(0) that even otherwise story of the prosecution is highly improbable because it was winter season and at 7.00( p.m. there was no reason or occasion for the deceased and this P.W. to sit in the Dheurri, when then have the facility of a room and similarly there was no occasion for the deceased to come in the street for urination as the site-plan (Exh.PB) shows that there was a bathroom in the Dheurri and this fact has even been admitted by this witness in his cross- examination; (g)that even no source of light is mentioned by this P.W. or even in the site-plan (Exh.PB) it was not shown; (h)that this P.W. is not resident of the house where he claimed that he was sitting, he is resident of other place, which is though close to the house of the deceased, but he has not given any reason for his presence at this place;
(i) that he being first cousin of the deceased and nephew of the complainant is interested witness, as such, his testimony would not be accepted without any strong corroboration.
Insofar as motive part of the prosecution story is concerned, learned counsel for the appellant vehemently argues that as per F.I.R. the motive was that about 22/23 years back the deceased had abducted paternal cousin (Chacha Zad sister) of the appellant and married her, but while appearing in the Court as P.W.8, Muhammad Asghar stated that motive for the occurrence was that Mst. Farkhanda, real sister of uncle of the appellant was abducted. The learned counsel further argues that this motive is too farfetched as at the relevant time the appellant was only four years old and that Mst. Farkhanda was murdered in the year 1996 by her own brother, who was later on acquitted on the basis of compromise, so there was no occasion for the appellant to commit a murder on this issue, therefore, the same is not proved; that it has also come on record that there was no quarrel or litigation between the parties over this issue for the last 22/23 years ago, when Mst. Farkhanda was abducted; that no exact relationship with said Mst. Farkhanda with the appellant has come on the record; that even Muhammad Aslam, SI (P.W.13), investigating officer of the case, admitted the fact that no quarrel of any sort ever took place between the parties over this issue for the last 22/23 years.
As regards abscondence of the appellant, the learned counsel contends that the appellant was falsely implicated in this case and the prosecution has not been able to prove this fact in accordance with law. But, mere abscondence is no proof of the guilt of the appellant and in support of this contention, he has relied upon the case of Qudratullah v. Maisam and another (2005 P.Cr.LJ. 1667); that the reports of the process server, who was required to execute the warrants of arrest and proclamation, were not put by the Court to the appellant under Section 342 Cr.P.C., therefore, those cannot be used against him. In this behalf, he has placed reliance on the cases of Rasool Muhammad v. Asal Muhammad and another (P.L.J. 1995 S.C. 477) and Mst. Alia alias. Rani v. The State (2005 Y.L.R. 2140).
The learned counsel further contends that it is an unseen occurrence, in which the appellant has falsely been implicated and had there been any motive that could be with Amjad Saeed, who too was subsequently implicated in this case and is still a proclaimed offender; that story of the prosecution is full of contradictions and doubts and as such the appellant deserves clean acquittal.
Lastly, the learned counsel submits that if the Court is not persuaded with the arguments of acquittal, then it is not a case of capital punishment because it is the prosecution own case that the appellant came in the street all of a sudden and that when the deceased came out for urination he was fired at, so immediate cause of death is shrouded in mystery.
10. Conversely, learned Additional Prosecutor General Punjab for the State assisted by learned counsel for the complainant opposed this appeal on the grounds that F.I.R. in this case has been promptly lodged, wherein the appellant has been nominated, but unfortunately the complainant could not appear as he was murdered during the course of trial; that as the parties are known to each other, there was no chance of misidentification; that Muhammad Asghar (P.W.8) is resident of the same area, rather his house is in the same street and being close relative of the deceased, his presence in his house is probable and natural; that there was no reason for false implication of the appellant in this case; that abscondence of the appellant is corroborative piece of evidence as he was arrested in this case on 31.10.2001 i,e, after eleven months of the occurrence and the prosecution has proved his abscondence through Shaukat Ali, constable (P.W.5); that abscondence of the appellant was for the purpose of eliminating the eye-witnesses of the occurrence i,e, Muhammad Siddique-complainant and Muhammad Nawaz, who were murdered on 23.10.2001 and thereafter he appeared before the police on 31.10.2001.
11.We have heard learned counsel for the appellant as well as learned Additional Prosecutor General Punjab assisted by learned counsel for the complainant at considerable length and have also gone through the record with their able assistance, 12.Occurrence in this case took place on 1.12.2000 at about 7.00 p.m. at village Hamboki and the matter was reported to police at 8.30 p.m. on the same day through application (Exii.PD). The formal F.I.R. (Exh.PPW.13/1) was registered at 9.05 p.m. while the distance between the place of occurrence and police station is four miles. The contents of application (Exh.PD) could not be proved at the trial due to the fact that the complainant of the instant case was murdered .before his statement could be recorded by the trial Court.
13.In order to prove its case, the prosecution has produced as many as fourteen witnesses.
According to F.I.R., Muhammad Siddique complainant, Muhammad Nawaz and Muhammad Asghar were cited as eye-witnesses of the occurrence. The complainant Muhammad Siddique and Muhammad Nawaz were murdered during the pendency of trial and in the circumstances there remained only one eye-witness, namely, Muhammad Asghar, who appeared as P.W.B. He, in his statement, stated that on 1.12.2000 he along with Muhammad Siddique, Muhammad Nawaz and Ghullam Mustafa were sitting in the house of Ghullam Mustafa. At about 7.00 p.m., the said Ghullam Mustafa went out to urinate and when he was returning, he confronted with the appellant, who asked him how he was and in the meanwhile he pulled out 30-bore pistol and fired at him.
According to Muhammad Asghar (P.W.8), he along with Muhammad Siddique and Muhammad Nawaz went to the place of occurrence but the appellant fled while making aerial firing.
14.The contention of learned counsel for the appellant that the presence of Muhammad Asghar (P.W.8) at the time of occurrence is highly doubtful appears to have some force as in his statement, while appearing in the Court, he has neither given any reason of his presence at the house of Ghulam Mustafa nor has he taken the injured to the hospital because according to the medico-legal report (Exh.PE), the injured was brought by Ghulam Murtaza, his brother, who was not even cited as an eye-witness. Had Muhammad Asghar (P.W.8) been present at the time of occurrence, he would have taken the injured or accompanied him to the hospital. Even otherwise, the story of the prosecution that the deceased went in the street for urination at 7.00 p.m. in winter season when this is clear from the site-plan (Exh.PB) that bathroom is available in the Dheurri (where the deceased along with others was sitting) is not probable in the circumstances of the case.
15. Insofar as motive part of the prosecution story is concerned, it was alleged in the F.I.R.
(Exh.PPW.13/1) that Ghulam Mustafa deceased had abducted paternal cousin of the appellant some 22/23 years ago and contracted marriage with her. Muhammad Asghar (P.W.8) stated that Ghulam Mustafa deceased had abducted Mst. Farkhanda Bibi, real sister of uncle of the appellant and contracted marriage with her and the appellant has committed the murder of Ghulam Mustafa because of this grudge. The appellant was examined under Section 342 Cr.P.C. wherein it is mentioned that Mst. Farkhanda Bibi was murdered by her real brother Anwar Saeed and a criminal case was registered in this regard against him but the said case was decided on account of compromise, as such, abduction of Mst. Farkhanda Bibi is admitted but we have noticed that at the time of her alleged abduction, the appellant was only four years old. In these circumstances, the motive appears to be farfetched and it would be highly improbable that it would provide a reason to the appellant to commit murder of Ghulam Mustafa deceased. Another factor, which is to be noted by us, is that during this period of 22/23 years; no quarrel of any sort had taken place between the parties and this fact was even admitted by Muhammad Aslam, SI (P.W.13). As such, the motive of the case is not proved. Reliance in this behalf can advantageously be made to the case of Thiraj and another Vs. The State (NLR 1989 Criminal 95), wherein it was observed as under:- - "10. We have heard the learned counsel at length and perused the record. The motive, as given by Jafar Hussain, PW-5 and corroborated by Bashir PW-6 is that earlier Mgt. Amiran was married to Mehmood appellant but she was abducted by Jafar Hussain PW about 25 years back. The appellants in their statements under Section 342 Cr.P.C. also accepted this position. Therefore, the incident of abduction which took place 25 years earlier is proved but there is some force in the contention of the learned counsel for the appellant that both the sides have been living in the same village ever since the abduction but no unpleasant incident ever happened. In these circumstances, the incident of abduction cannot be treated as motive for the present occurrence."
16. The medical evidence has been provided by P.W.9-Dr. Iftikhar Hussain, who stated that post- mortem examination was conducted by Dr. Tariq Javaid, who had gone abroad for one year, and he being fully conversant with his handwriting and signatures has appeared as witness. According to him, on 2.12.2000, Dr. Tariq Javaid had conducted post-mortem examination of Ghulam Mustafa deceased, who found following injuries on his person:--
1. Lacerated wound of fire-arm entry 1.25 x 1 cm going deep with inverted margins on left hypochondrium corresponding hole in sweater.
L/W of fire-arm of entry 1.5 cm x 1 cm going deep with inverted margins 1.5 cm below ht: Injury No, 1.
Corresponding hole in sweater. Injury Nos, 1 and 2 are 10 cm from midline and 16 cm below left nipple.
3. L/W of 1.75 cm x 1 cm skin deep 2.5 cm outer to Injury Nos, 1 and 2.
Doctor opined that death occurred due to damage to major abdominal vessels which resulted in severe blood loss and haemorrhagic shock, which was sufficient to cause death in ordinary course of nature and the injury was result of fire-arm weapons and ante mortem in nature. The probable duration between injury and death was 6 to 8 hours' and between death and post-mortem was 10 to 14 hours.
Prior to his death, the deceased was also medically examined by Dr. Capt. Muhammad Munir Hussain (P.W. 10). According to him, on 1.12.2000 at about 8.10 p.m. he attended the injured Ghulam Mustafa brought by Ghulam Murtaza, his brother and he issued the. MLR No, 874/00. He has given the same injurie's as has been mentioned in the post-mortem report.
In F.I.R. (Exh.PPW.13/1), it was alleged that the appellant had made only one fire shot and Muhammad Asghar (P.W.8) in his statement under Section 161 Cr.P.C. (Ex.DA) also stated that the appellant shot one fire, hitting Ghulam Mustafa on the left side of his chest but when he appeared in the Court as P.W.8 he made an improvement and stated that appellant had made three fire shots at Ghulam Mustafa deceased just to bring his statement inline with the medical evidence, as such, we are constrained to hold that the ocular account is not corroborated by the medical evidence.
17.So far as recovery of pistol from the appellant is concerned, Muhammad Akram (P.W.12) and Muhammad Rafique Khan, SI (P.W.14) are witnesses of recovery of 30-bore pistol effected upon the ppintation of the appellant from roof of the Haveli. The said pistol was sent to the Forensic Science Laboratory from where it was reported that it was in a working condition but as no crime empty was recovered from the place of occurrence and, as such, recovery of pistol is of no avail for the prosecution.
18. As regards abscondence of the appellant, it has been vociferously argued by the learned counsel for the complainant that abscondence of the appellant was with a design to remove all the prosecution evidence, which could have been brought against him. It is further argued that the appellant did not surrender to the police till the murder of two important eye-witnesses, namely, Muhammad Siddique complainant and Muhammad Nawaz. They were murdered on 23.10.2001 and thereafter he surrendered to the police on 31.10.2001. For that a separate murder case was registered against a different set of accused. After giving our serious considerations to the above said arguments, it has been noted that the reports of the process server on the warrants of arrest and proclamation i,e, Exhs.PW5/1 & PW5/3 were not put to the appellant when his statement under- Section 342 Cr.P.C. was recorded. Every criminal case has to be decided as per its own facts and circumstances. The evidence of some other- case cannot be read while deciding the fate of this case. Abscondence may be a relevant fact but the same cannot be used for entailing conviction on capital charge alone when the ocular account is not trustworthy and does not get any corroboration from any other source. In this regard reliance can profitably be placed on the cases of Abdul Sattar v. The State (1974 P.Cr.L.J. 208) and Qudratullah v. Maisam and another (2005 P.Cr.L.J. 1667). In another case reported as Muhammad Farooq and another v. The State (2006 S.C.M.R. 1707), the Hon'ble Supreme Court of Pakistan observed as under:-- "11. As far as Amjad Javed is concerned, his case is still simpler. Although we have disbelieved that P.W.9 was present at the spot at the time of occurrence yet we will like to add that absconsion has never been considered to be a corroborative piece of evidence."
19.For what has been discussed above, we are of the view that the prosecution has failed to prove its case beyond any shadow of doubt against the appellant. In such circumstances, the Hon'ble Supreme Court of Pakistan in case of Muhammad Akram v. The State (2009 S.C.M.R. 230) observed as under:-- "13. It is an axiomatic principle of law that in case of doubt the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCM R 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
20. Accordingly, following the principle of law laid down by the Hon'ble Apex Court, we extend the benefit of doubt to the appellant and by setting aside his conviction and sentence acquit him of the charge. He is directed to be released from custody forthwith if not required in any other case.
This appeal stands allowed.
21.Death sentence awarded to the appellant by the learned trial Court is NOT confirmed and Murder Reference is answered in the negative.
22.Insofar as Criminal Revision No, 853 of 2003 filed by the complainant, seeking enhancement in the compensation amount, is concerned, since the appeal against conviction has been accepted, therefore, the Criminal Revision is dismissed.